1     Definitions

When used with initial capitals, the following definitions shall apply to this Contract. (Not all of the defined terms are necessarily used in this Contract). Additional definitions may be set forth in the body of the Contract.

Accepted as Certified when applied by Company to Contractor's Deliverables, means that if the comments noted by Company are incorporated by Contractor into its Deliverables, such Deliverables as revised appear to interface properly with Company-furnished components of the Project and, except as noted in Company’s comments, Company has not identified any other statement or feature that appears to deviate from the requirements of the Contract.

Accepted ,   when applied by Company to Contractor's Deliverables, means that such Deliverables appear to interface properly with Company-furnished components of the Project and Company has not identified any statement or feature that appears to deviate from the requirements of the Contract.

Actual Cost   means Contractor’s indirect and direct costs excluding overhead and profit, as it relates to GMP definition.

Affiliated Companies means entities that either control or are controlled by Company by means of a majority ownership interest.

Authorized Representative means the person designated, in writing pursuant to this Agreement, by either Party to send and receive any Notices and / or Directives that may be required and to bind the Party he or she represents with regard to all matters related to this Contract.

Certified Payroll means a payroll ledger with a statement that it is a true and correct representation of the actual payroll paid for a particular period of time signed, under penalties of perjury, by an officer of Contractor (president, CFO, treasurer, or controller) and notarized, listing vertically the names of personnel and their classification (e.g., apprentice 3rd period, journeyman, foreman, etc.) and horizontally the days of the period, and under each day the hours worked for each shift on straight time, time-and one-half, and double time, with a total to the right listing the period's hours worked for

each category which shall be multiplied by the rate for each category to calculate the gross and net total paid to the worker, with an additional set of columns for all payroll taxes and withholdings (FICA/FUTA/SUTA and Federal, State and Local Withholding Taxes), and insurances (Workers Compensation/General Liability).

Change Order Request shall have the meaning set forth in Section 37.

Change shall have the meaning set forth in Section 37.

Claim shall have the meaning set forth in Section 37.

Commercial Operation Date means the date of the Project when it has commenced generating electricity for sale, excluding the generation of electricity generated during testing and commissioning of the Project prior to Commercial Operation.

Company Directive or Directive means formal written instructions i.e. formal letter from Company to Contractor directing Contractor to proceed in the manner described therein.  E-mail will be used only as a courier to transport formal correspondence.

Company means the entity identified as such in the Contract and includes Company’s Affiliated Companies and the officers, directors, agents, employees, successors, and assigns of each and where appropriate Authorized Representative to act on behalf of the Company.

Competent Person means a person with the skill, knowledge, experience, training, and authority to carry out his assigned responsibilities safely and in accordance with industry practice.

Construction Schedule means the detailed critical path network schedule for the Work that is developed by Contractor using the Project Schedule identified by Company.

Construction Works means all construction equipment including tools, consumables, utilities, supplies, temporary work, scaffolding, form lumber, templates, buildings, facilities, electronic gear, computers, software, and similar items which are used in the execution, performance, maintenance, completion, or management of the Work by Contractor, but which are not intended to become a permanent part of the Project. 

Unless specifically stated otherwise in this Agreement, all Construction Works are to be provided by the Contractor.

Contract means this agreement and any schedules and exhibits attached hereto or specifically referenced herein, including, without limitation, any RFCPs, FWOs, CORs or Change Orders as such terms are defined in Section 37.

Contract Schedule means the schedule described in Section 6.

Contract Time means the total amount of calendar time allowed in the Contract Schedule for performance of the Contractor’s Work.

Contractor Means the Party identified as such in this Contract. Unless the context clearly requires otherwise, the term shall include all those employed by or in privity with Contractor at any tier including all Subcontractors and Suppliers.

Corrective Work shall have the meaning set forth in Section 33.

Craft Labor means trade workers. By way of example, Craft Labor includes laborers, carpenters, operators, pipe fitters, boilermakers, electricians, and sheet metal workers. Refer to Attachment B – Price & Payment, Section 3 for definition of supervision

Days mean calendar days unless specifically stated otherwise.

Dead-Band means an established plus or minus range whereby profit is fixed for the cumulative value of Change Orders provided the cumulative Change Order Value remains within the range. Cumulative value of Change Orders that fall outside the range will be applicable to profit adjustments as defined in Attachment B – Price and Payment, section

Deliverables or Drawings mean all of the documentation including cut sheets, reports, drawings, certificates, schedules, plans, invoices, and other submittals that Contractor is required to furnish pursuant to this Contract.

Effective Date means the date set forth in the Contract as the date on which the Contract is effective.

Engineer means the person or entity designated as such in Attachment A.

Engineered Materials and Equipment means Materials and Equipment that will be designed and fabricated by Contractor as part of its Work.

Field Non-Manual Labor (“FNM”) all workers other than Craft Labor.

Field Work Order shall have the meaning set forth in Section 37.

Final Acceptance means Company’s written acknowledgment that Contractor has achieved Final Completion as provided herein.

Final Completion means that all obligations of Contractor under this Contract have been completed except for obligations which Company has waived or excused in writing and except for obligations of Contractor that survive termination of this Contract such as warranty and indemnity.

Force Majeure means an event beyond the reasonable control and without the fault or negligence of the Party claiming Force Majeure, including acts of God, acts of the government (including failure or delay by the government in issuing, or cancellation or non-renewal of, any applicable permit, in each case without just cause), fire, flood, pandemics, earthquake, explosion, riot or civil insurrection, war, sabotage, nuclear accident, pandemic, acts of terrorism, and any industry or trade wide strike or any other strike not specifically directed at Company, Contractor, a Subcontractor, or Supplier.

Goods, Materials and Equipment mean all materials, commodities, supplies, apparatus, equipment, and machinery that Contractor, unless other wise stated, is obligated to provide and which will become a permanent part of the Project when it is completed. The provisions of the Uniform Commercial Code as adopted and set forth in the Montana Code Annotated, shall apply to Goods unless otherwise specified in writing agreed to by the Parties.

Guaranteed Maximum Price (GMP) The term “GMP” means the Guaranteed Maximum Price (excluding approved Change Orders) that shall be established by executing this Contract and, is the total maximum amount that the Contractor may be compensated under the GMP scope of work. The GMP shall include Contractor overhead and profit. The GMP will not be adjusted for the value of approved Change Orders. Approved Change Orders shall be managed outside the GMP structured price. Refer to Attachment B – Price & Payment section 9. Contractor shall be solely liable and responsible for and pay any and all costs in excess of the Guaranteed Maximum Price without entitlement to reimbursement from the Company.

GMP Contract Cost means Actual Costs plus overhead and profit.

Hazardous Materials means any chemical substance, mixture or contaminant, pesticide, source material, regulated nuclear material, residual radioactive material, harmful physical agents, air pollutants, or hazardous waste or by-product material that is regulated or defined by Law. Includes the purchase, possession, transportation, use, and/or disposal of such material.

Industry Practice means, with respect to each of engineering, design, construction, operation, and maintenance of the Work, the practices, methods, procedures, equipment, and tools which comply with all applicable Laws and are used by a significant portion of other similar businesses and industries in the United States.

Labor means all Field Non-Manual Labor and Craft Labor.

Laws mean all laws, statutes, regulations, ordinances, executive orders, codes, and similar pronouncements published by any governmental authority.

Lender   means the financial institution providing all or a portion of the Project financing and includes Lender’s subsidiaries, affiliates, agents, representatives, successors or assigns, officers, directors, agents, and employees.

Lien means any claim, lien, mortgage, encumbrance, pledge, charge, lease, easement, servitude, right of others, or security interest of any kind.

Limited Notice to Proceed (“LNTP”) means a Notice specifying the date Contractor is authorized by Company to start the Work to the limited extent specified in the LNTP.

Losses mean any claims, demands, suits, proceedings, fines, penalties, liabilities, judgments, awards, damages, interests, costs, or other such expenses including reasonable attorney fees and court costs, but do not include any indirect, special, incidental, consequential, or exemplary damages.

Mechanical Completion means the stage in the progress of the Work when all Materials and Equipment which Contractor is responsible to install: (a) have been completely installed, connected mechanically and electrically, aligned, balanced, lubricated, charged with proper lubricants, chemicals, and/or gases; and (b) are otherwise mechanically and electrically sound in all respects; and (c) have successfully completed all pre-operational tests; and (d) are capable of being operated within manufacturers’ recommended limits in compliance with all Laws and without hazard or danger to any property and without danger of injury to persons or property.

Notice means a written document prepared and delivered by one Party to another Party.

Notice to Proceed (“NTP”) means a Notice specifying the date Contractor is authorized by Company to start the Work.

Notify means to provide Notice.

Person means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, non-incorporated organization, or government or any agency or political subdivision thereof.

Professional Services mean the performance of engineering, design, consulting, testing, or other technical services performed by persons specially licensed, certified, or otherwise acknowledged to have specialized training, experience, and skills in the art. Professional Services require the exercise of skilled judgment and expertise in addressing and completing the Work.

Project means the total effort being undertaken by the Company, of which the Work performed under this Contract may be the whole or may be a part, and which may include work by other Contractors to Company or by Company or by Company’s own forces including Persons under separate contracts with Company.

Project Safety Plans shall have the meaning set forth in Section 11.

Project Schedule means the overall integrated schedule for the Project developed by Company with input from others, including Contractor.

Project Site means the land and other places on, under, in, or through which the Work is to be installed, executed or carried out, and any other lands or places provided for the purposes of the Project, together with such other places as may be specifically designated in this Contract as forming part of the Project Site. Where the Work is but a part of the Project, Contractor may be granted access for ingress, egress to the particular part of the Project Site where the Work is to be performed, but not necessarily to the entire Project Site.

Revise and Resubmit , when applied by Company to Contractor's Deliverables, means that the Deliverables are unsatisfactory, as determined by the Company in its sole discretion, because they do not interface properly with Company-furnished components of the Project or do not comply with the requirements of the Contract.

Services mean those efforts expended, that do not produce a tangible input to the direct construction and installation of the plant facility.

Site Manager means Contractor’s senior representative on the Project Site.

Specifications mean the documents identified as such or referred to in this Contract and which sets forth the technical requirements for the Work and for the performance of related Services.

Stop Work Order means a Company Directive ordering Contractor to cease all Work to the extent described in the order.

Subcontractor means any person, at any tier, who has a contract with Contractor or with any other Lower Tier Subcontractor to perform a portion of the Work at the Project Site.

Substantial Completion means the stage in the progress of the Work when:

(a) Mechanical Completion has been achieved; and

(b) operational testing, whether by Contractor, Company, or both, has been successfully completed; and

(c) performance guarantees, if any, have been demonstrated; and

(d) the Work is ready for uninterrupted operation; and

(e) the Work or designated portion thereof is sufficiently complete in accordance with this Contract so that Company can occupy the Work and utilize it for its intended use; and

(f) remaining items are set forth in the punch list mutually agreed by Contractor and Company, inclusive of anticipated completion dates for items on the punch list, which the Parties shall endeavor to agree upon promptly and in good faith.

Integrated plant operation will not occur until all 3 units are available.  Tie-ins and unit outages will be performed as necessary during the construction effort to complete the plant.

Supplier means any Person providing or supplying any Goods, Construction Works, or Materials and Equipment to Contractor or to its Subcontractors.

Technical Document List (“TDL”) means the documents, Drawings and Specifications compiled in a list as required.

Total Contract Cost means cumulative value of GMP Contract Cost, approved Change Orders, plus half of shared savings.

Warranty Period shall have the meaning set forth in Section 64.

Work means all the resources including Goods, Labor, Construction Works, Materials and Equipment, Services, supervision, and management required by this Contract, whether provided by Contractor or provided to Contractor by Company, its Authorized Representative or others in order to fulfill Contractor’s obligations under this Contract. Work also includes all duties, responsibilities, and other obligations undertaken by Contractor under this Contract, whether expressed or implied.

2     General

This Contract constitutes the complete integrated agreement between the Company and Contractor regarding the Work, and it supersedes all prior agreements or undertakings.  Any exceptions or additional terms, whether written or oral, including those terms in the Contractor’s bid or proposal not expressly incorporated herein, are rejected.  No course of prior dealing or performance between Company and Contractor or industry usage shall be construed or interpreted to modify any term, condition, requirement, or instruction set forth in the Contract.

3     Representations by Contractor

3.1     Contractor represents that it has thoroughly examined the Contract; has studied all information provided or otherwise made available by Company; has familiarized itself with all applicable state and Federal, and local laws; and is experienced, qualified, and licensed (to the extent required by applicable Laws) to perform the Work.

3.2     Contractor also represents that it has visited the Project Site and that the GMP includes consideration of all the general and local conditions that might impact the Work including climatic conditions, existing surface conditions, existing structures, availability of qualified labor, availability of utilities, access to the Project Site, transportation facilities, disposal, storage, handling of Materials and Equipment, and any necessary Construction Works.

3.3     Contractor agrees and acknowledges that any surface or subsurface reports, topographic maps, geotechnical reports, information regarding the physical condition or character of the Project Site, existing structures at the Project Site, or material equipment or materials at the Project Site, or other information made available to Contractor by Company or its Authorized Representative are solely for Contractor’s convenience and not represented or warranted to be accurate.  Contractor acknowledges that Company and its Authorized Representative assume no responsibility or liability for conclusions or interpretations made by Contractor based on any information Company or its Authorized Representative has made available to Contractor.  Contractor further acknowledges that Company and its Authorized Representative assume no responsibility or liability for any understandings reached or representations made by third parties, including Company, or its employees or agents, and its Authorized Representative concerning conditions that may affect the Work.  Any failure by Contractor to take the actions described in this Section 3 shall not relieve Contractor from its responsibility for properly estimating the difficulty and cost of successfully performing the Work.

4     Scope of Work

The Contractor’s detailed scope of work is set forth in Attachment A - Scope.  Unless otherwise stated in the Contract, Contractor shall provide all resources including Goods, Labor, Construction Works, Materials and Equipment, Services, supervision, and management, necessary to fulfill Contractor’s obligations under this Contract.

5     Price & Payment

The GMP and payment terms are set forth in Attachment B - Price & Payment. Attachment B – Price and Payment also contains the schedule of liquidated damages that may be imposed by Company for Contractor delay. The GMP includes the cost of all resources necessary to complete the Work in accordance with the requirements of the Contract. Contractor acknowledges and agrees that the Total Contract Cost will be paid to Contractor in trust first for the benefit of Contractor’s employees, Subcontractors, and Suppliers.

6     Schedule

6.1     The Contract Schedule for the performance of Contractor’s Work is set forth in Attachment A.  Contractor shall begin its Work upon receipt of a LNTP or an NTP.  However, Contractor shall not begin any physical Work on the Project Site until it receives a fully executed “Release to Work” (Exhibit 3) from Company. Contractor agrees and acknowledges that time is of the essence in the performance of this Contract. Provided that the Company is not in breach of this Contract, Contractor shall take whatever measures are necessary to complete its Work according to the Contract Schedule.  Contractor agrees and acknowledges that at times, the Project Site may have very limited areas available for lay down of materials, staging of materials, fabrication facilities, or pre-assembly operations.  In addition, several contractors will be working on the Project Site at the same time, and Contractor will have to coordinate its activities with those of Company, its Authorized Representative and other Subcontractors.  At times, this will require Contractor to focus on activities other than those most critical to the Contract Schedule.

6.2     If Contractor cannot timely complete the Work on the Project as a result of third parties, other than those third parties under Contractors control and supervision as defined in the general terms and conditions of this Contract, interfering with Contractor’s Work, then Contractor shall be entitled to an equitable adjustment to the Contract Schedule.

6.3     Contractor shall Notify Company and its Authorized Representative of any potential delay to the Work, including delays caused by third parties, other than those third parties under Contractor’s control and supervision as defined in the general terms and conditions of this Contract, within five (5) days after the event giving rise to the potential delay becomes known to Contractor. The Notice shall describe the cause of the potential delay and the plan Contractor proposes to avoid,

mitigate, or recover from the delay. Such recovery plan shall be subject to Company’s or its Authorized Representative’s review and approval. If Contractor fails to take steps that Company or its Authorized Representative determine are necessary to avoid or recover from the delay, Company or its Authorized Representative may direct Contractor to accelerate its Work by providing additional resources to recover and maintain the Contract Schedule.  Unless the delay is caused by the Company, third parties other than those third parties under Contractor’s control and supervision as defined in the general terms and conditions of this Contract, or Force Majeure, all costs incurred by Contractor to accelerate its Work shall be the responsibility of the Contractor.  In addition to its right to direct Contractor to accelerate its Work, Company or its Authorized Representative may exercise any other remedy specified herein or otherwise available under applicable Laws or in equity. Company or the Company’s Authorized Representative’s approval of Contractor’s proposed action to recover the delay or Company's or its Authorized Representative’s Directive to accelerate the Work shall not constitute a waiver of any right or remedy available to Company under this Contract, at law, or equity.  Further any directive to accelerate work shall not constitute a waiver of any of the provisions of this Contract.

7     Independent Contractor

7.1     Contractor is and shall operate as an independent contractor in the performance of the Work and not as an agent or employee of Company. Nothing contained in this Contract is intended nor shall be construed as creating any contractual relationship between any Persons other than Company and Contractor. Contractor shall obtain any and all state and/or local licenses, certificates, or permits required to obtain and maintain independent contractor status that may be required by the State of Montana.

7.2     At all times, Contractor shall be solely responsible for the means, methods, sequences, and procedures for performing its Work.

7.3     Subject to the limits in Section 8, Contractor has sole authority, control and responsibility to employ, discharge, supervise and otherwise manage its employees.

8     Supervision and Labor

Contractor shall provide an adequate number of Competent Persons to perform the Work. Prior to the start of the Work, Contractor shall submit the resume of a

Competent Person to act as Contractor’s supervisor.  Once approved by Company, said supervisor shall be present on the Project Site whenever Contractor is performing Work. Contractor’s supervisor shall have complete authority to act on behalf of Contractor in all matters pertaining to execution of the Work. Contractor shall not remove or replace its supervisor or any other of its supervisory staff assigned to the Work without the prior written consent of Company.

9     Subcontractors and Suppliers

Contractor shall not subcontract performance of any portion of the Work to any Subcontractor or Supplier that does not meet the prequalification criteria applicable to such Subcontractor or Supplier as set forth in Attachment G. If there is an issue with Subcontractor or Supplier prequalification, Contractor may address the matter with Company. Upon request, Contractor shall furnish Company and its Authorized Representative a copy of any subcontract or purchase order for Company’s or its Authorized Representative’s information. Contractor shall also furnish to Company and its Authorized Representative such information pertaining to the proposed Subcontractor or Supplier as Company or its Authorized Representative may reasonably request including financial statements, safety data, and references.  Contractor shall not subcontract any portion of the Work to any Person that has a direct contractual relationship with Company. Failure of Contractor to comply with this Section 9 may, at the sole discretion of Company, be deemed to be a material breach of this Contract.  Notwithstanding anything to the contrary in this Section 9, Contractor shall remain liable to Company for any and all Losses incurred by Company caused by or related to any act of any Subcontractor or Supplier.

10     Labor Relations

10.1     Contractor shall strictly comply with all the Project Job Rules (Attachment D) and any procedures established by Contractor for employee conduct at the Project Site.  Company reserves the right to revise any such rule, and Contractor shall fully comply with such rules as revised.

10.2     Contractor shall use its best efforts to minimize the risk of labor-related delays including, if applicable, using its best efforts to negotiate a Project agreement that includes a no-strike provision.  Contractor shall promptly take any and all steps that may be available to resolve violations of collective bargaining agreements and jurisdictional disputes including the filing of appropriate processes with any court or administrative agency having jurisdiction to settle, enjoin, or award damages resulting from violations of collective bargaining agreements or jurisdictional disputes.

10.3     Contractor shall promptly Notify Company and its Authorized Representative of any actual, anticipated, or threatened labor dispute that might affect the performance of the Work of Contractor or any of its Subcontractors or Suppliers.

10.4     Contractor acknowledges that Materials and Equipment to be furnished by Company, if any, may be provided by non-union shops, and Contractor expressly agrees that any labor disputes resulting from this circumstance shall not constitute an event for which Contractor may seek relief under Force Majeure or any other provision of this Contract.

11     Environmental, Health & Safety

11.1     Contractor acknowledges and agrees that its paramount obligation under this Contract is to perform its Work in a safe manner. To that end, Contractor shall, at a minimum, perform its Work in accordance with all applicable State, Federal and Local Laws and regulations.  Further, Contractor hereby represents and warrants that it has a comprehensive safety, health, and environmental program and corresponding policies to insure human as well as environmental health and safety.

11.2     Contractor agrees to develop, in advance of project commencement, a written, comprehensive, site-specific project safety plan covering all aspects of the Work required to complete the project.  This plan will be available at the main office of the construction site and available for review at all times Contractor employees are at Work on the project.  A copy of this plan will be submitted to the Company prior to the commencement of work.

11.3     As part of the site specific project safety plan, the Contractor will develop and implement an effective training and inspection program to ensure all Contractor employees understand and follow all Contractor required safety rules and requirements.  Details of the training and inspection program shall be included in the site specific project safety plan.

11.4     Prior to mobilizing at the Project Site, Contractor shall designate a Competent Person who shall have the overall responsibility for implementing the requirements of the Project Safety Plans. The Competent Person shall (a) be present on the Project Site whenever Contractor is performing Work, (b) be able to identify hazards associated with the Work, and (c) have complete authority to stop the Work if he / she deems it necessary.  The designation of this Competent Person will be identified in the site specific project safety plan described in Attachment E.

11.5     The Contractor will develop an effective program to preclude and prevent the potential for any Contractor or Subcontractor employees to be using or under the influence of any alcohol or controlled substance (drugs) while on the project site.

11.6     Notwithstanding any of the requirements of this section, including the submission of the site specific project safety plan or any safety related actions by the Company, the Contractor retains sole responsibility for the safe execution of the Work and the overall safety of both Contractor and any Subcontractor employees.  All the requirements of this section shall apply equally to any Subcontractors hired by the Contractor.

12     Hazardous Materials

12.1     Contractor shall be solely responsible for all Hazardous Materials on the Project Site including reporting, accounting, licensing, care, transportation, storage, use, treatment, and disposal introduced by Contractor. This excludes pre-existing hazardous material. In carrying out its obligations under this Section 12, Contractor shall comply with the site specific project safety plan and all applicable Laws.

12.2     A Hazardous Material is any substance or material identified now or in the future as hazardous under any federal, state or local law or regulations, or any other substance or material that may be considered hazardous or otherwise subject to statutory or regulatory requirement governing handling, disposal or clean-up. The Contractor shall not be obligated to commence or continue work until any pre-existing Hazardous Material discovered at the Worksite has been removed, rendered or determined to be harmless by the Contractor as certified by an independent testing laboratory and approved by the appropriated government agency.

12.3     If after the commencement of the Work, pre-existing Hazardous Material is discovered at the Worksite, the Contractor shall be entitled to immediately stop Work in the affected area. The Contractor shall report the condition to the Company, and, if required, the government agency with jurisdiction.

12.4     The Contractor shall not be required to perform any Work relating to or in the area of pre-existing Hazardous Material without written mutual agreement.

12.5     Contractor must obtain Company approval prior to offsite disposal of existing soil.

13     Cleanup

Contractor acknowledges and agrees that cleanliness is an important factor in creating a safe work environment.  Contractor shall at all times keep work areas in a neat, clean, and orderly condition and shall promptly and properly dispose of all debris and rubbish resulting from Contractor’s operations.  If Contractor fails to maintain its work areas in a manner satisfactory to Company or its Authorized Representative or fails to immediately clean up after receipt of Notice from Company or its Authorized Representative to do so, Company or its Authorized Representative shall have the right, without further notice to Contractor, to clean up Contractor’s work areas and backcharge the cost to Contractor.

14     Stop Work Orders

Contractor is responsible for conducting the Work, however, Contractor shall at all times abide by the reasonable instructions of Company’s Site Manager and its Authorized Representative and any Company Directives.  If Contractor fails to comply with any such instructions, Directives, or the requirements of this Contract, Company or its Authorized Representative shall have the authority (a) to stop any portion of the Work affected by such failure until such failure is remedied or (b) to terminate this Contract for default in accordance with Section 41.  In the event that Company or its Authorized Representative is forced to issue a Stop Work Order, Contractor shall be liable for all resulting cost and Contract Schedule impacts.

15     Permits & Licenses

Contractor shall promptly apply for and procure, without additional compensation, all certificates, licenses, permits, and similar permissions required by applicable Laws necessary to perform except for such permits as may be specifically set forth as Company’s responsibility elsewhere within this Contract.

16     Submittals

16.1     Contractor shall submit to Company or its Authorized Representative all Deliverables required by the Contract. The submission of any such Deliverables shall be certification by Contractor that the information set forth therein is accurate in all material respects and conforms to the Contract requirements and all applicable Laws.

16.2     Unless the Contract indicates that any such Deliverable is to be for Company' or its Authorized Representative’s information only, Company or its Authorized Representative, upon receipt of Contractor's Deliverables, shall review and return same to Contractor, marked as "Accepted," "Accepted as Certified," or "Revise and Resubmit".

The timing of Contractor's Deliverables and Company’s review shall be in accordance with the Contract Schedule. If the Schedule does not show a time for submission or approval, the submissions shall be made so as not to delay the Work, and Company or its Authorized Representative shall have a reasonable period to review the Deliverables.  Contractor shall be entitled to an equitable adjustment to the Contract Schedule if the Company, in reviewing the Deliverables, directly causes a material delay in the construction progress.

16.3     Upon receipt of a Deliverable marked "Accepted," Contractor may proceed with the Work to the extent of and in accordance with the Accepted Deliverable.

16.4     Upon receipt of a Deliverable marked "Accepted as Certified" and if Contractor concurs with Company's or its Authorized Representative’s comments, Contractor shall incorporate the comments and may proceed with the Work to the extent of and in accordance with the Accepted as Certified Deliverable. Within fourteen (14) Days, Contractor shall submit a revised Deliverable in which Company's or its Authorized Representative’s comments have been incorporated.  If Contractor determines that it cannot incorporate Company's or its Authorized Representative’s comments without prejudice to Contractor's warranty or other obligations under this Contract, Contractor shall so advise Company and its Authorized Representative in writing within seven (7) days of its receipt of Company's or its Authorized Representative’s comments, stating the reasons therefore. In this case, Contractor may proceed with the Work to the extent of and in accordance with the Accepted as Certified Deliverable only after resolution of Company’s or its Authorized Representative’s comments and Contractor’s objections.

16.5     Upon receipt of a Deliverable marked "Revise and Resubmit," Contractor shall immediately take all necessary action to revise its Deliverable in accordance with Company's or its Authorized Representative’s comments and to resubmit the document to Company and its Authorized Representative.  In no event shall Contractor proceed with the affected Work until its revised Deliverable has been returned to Contractor marked as "Accepted" or "Accepted as Certified" by Company.

16.6     Use of the term “Accepted” or “Accepted as Certified” shall not excuse or otherwise discharge Contractor from its responsibility to supply

Materials and Equipment that interface with Company-furnished components and comply with the requirements of this Contract, including the Specifications and Drawings as provided in the Contract and the documentation incorporated thereto.  Provided the review does not directly cause a material delay to the Contract Schedule, review and comment by Company or its Authorized Representative of Contractor’s Deliverable shall not relieve Contractor of its obligation to maintain the Contract Schedule and to complete the Work in accordance with this Contract, and any such review and comment by Company or its Authorized Representative shall not constitute a waiver of Company’s rights under this Contract with respect to nonconforming Work.

17     Issued for Construction Documents

17.1     Contractor shall perform the Work using only Drawings and Specifications marked by Contractor as "Issued for Construction" or equivalent designation.

17.2     Contractor shall maintain at the Project Site, a complete and current set of "Issued for Construction" Drawings and Specifications.

18     Ownership and Use of Contractor Deliverables

18.1     All Deliverables prepared or developed by Contractor and submitted to Company in the performance of the Work shall be the property of Company, and such Deliverables may be used by Company without restriction in the design, construction, operation, maintenance, and use of the Project.

18.2     To the extent that the Deliverables contain any intellectual property belonging to Contractor, Company shall have a royalty-free perpetual license, at no additional charge, providing the Company the right to use such property in the design, construction, operation, maintenance, and use of the Project.

18.3     Company and its Authorized Representative shall have the right to reproduce all Deliverables received from Contractor that are related to the Project notwithstanding any notice to the contrary appearing on the document.  If requested by Company or its Authorized Representative, Contractor shall provide a certificate to that effect.

19     Substitutions

Contractor may propose substitutions for the specified Goods or Materials and Equipment.  Contractor’s proposal shall constitute a warranty by Contractor that the proposed substitution is equal or superior to the item for

which it is being   substituted and is fit for its intended purpose.  Company's or its Authorized Representative’s decision on the use of any such substitution shall be final.  If the substitution is accepted, the Company will issue a Change Order to that effect in accordance with Section 37.  Company’s or its Authorized Representative’s approval shall not excuse any of Contractor’s obligations including its warranty obligations.  Contractor shall be solely liable for the cost and schedule impacts of using any substitution.

20     Discrepancies

Whenever, in Contractor's opinion, the Contract documents or any portion of the Work are defective, deficient, or at variance with each other or with any Laws applicable to the Work, Contractor shall immediately discontinue performance on the portion of the Work affected thereby and Notify Company and its Authorized Representative of such opinion.  Thereafter, Contractor shall not proceed with the portion of the Work so affected until it has received a Directive specifying what action, if any, is to be taken.  If Contractor proceeds with any affected portion of the Work prior to receiving such Directive, such Work shall be at Contractor’s risk.

21     Quality Control/Quality Assurance Program

21.1     Contractor shall submit for review a Project-Specific Quality Control Program.  Contractor shall assign a Competent Person at the Project Site to implement and supervise Contractor’s Quality Control Program.

21.2     For Work that includes the installation, placement, storage, or preventative maintenance of Materials and Equipment, Contractor shall use Contractor’s appropriate procedures, systems, and forms to generate and track quality and inspection documentation, turnover punch lists, and preventive maintenance.

21.3     Contractor shall, without additional compensation, make or cause to be made all inspections and tests required by this Contract.  If the results or methods of performance of such inspections or tests fail to conform to the requirements of the Contract, Company or its Authorized Representative may, at its sole discretion, require Contractor to perform additional inspections and tests, all costs of which shall be to the account of Contractor.  Contractor shall furnish Company and its Authorized Representative with satisfactory documentation of the results of all inspections and tests. Company and its Authorized Representative shall be given not less than seven (7) days Notice of any inspections or tests to be made by Contractor or by its Subcontractors or Suppliers so that Company or its Authorized Representative

may, at its option, witness any such inspections or tests.

21.4     Unless specifically permitted by the Specifications, Contractor shall employ a qualified and approved independent testing agency, acceptable to Company and its Authorized Representative, to perform all required testing.

22     Materials Management Procedure

22.1     If required by the Scope of Work (Attachment A), Contractor shall, prior to the start of the Work, prepare and submit for approval a Project-Specific Materials Management Procedure (“MMP”). Contractor shall assign a Competent Person at the Project Site to implement and supervise Contractor’s Materials Management Procedure.

22.2     The MMP shall be a comprehensive computer-based system capable of tracking Contractor-supplied Materials and Equipment from requisition through order placement, delivery to the Project Site or other storage areas, receipt into inventory, and issuance from inventory for incorporation into the Work.

22.3     In addition, the MMP shall be used to track all Materials and Equipment furnished to Contractor by Company, its Authorized Representative, or third parties.  These Materials and Equipment shall be tracked either from purchase order information furnished by Company or other third parties or from the actual receipt and turn-over of Materials and Equipment to Contractor.

23     Control of Materials and Equipment Furnished by Company

23.1     Materials and Equipment furnished by Company to Contractor for Contractor’s installation, erection, or incorporation into the Work shall be offloaded and received by Contractor in the presence of Company’s or its Authorized Representative’s site representative or his designated representative.  Quantities of such Materials and Equipment shall be checked jointly by Contractor and Company or its Authorized Representative.  Contractor’s receiving and acceptance of such Materials and Equipment shall be recorded in writing and evidenced by Contractor’s signing of forms satisfactory to Company or its Authorized Representative.

23.2     If the nature of the shipping packaging allows, Contractor shall inspect and carefully note any visible shortage of or damage to the Materials and Equipment furnished by Company prior to the unloading of same from the carrier.  Where such inspection and inventory is not possible prior to

unloading, Contractor shall inspect and inventory such Materials and Equipment as soon after unloading as practicable, but in any event, prior to moving such Materials and Equipment to storage.  Such inspection and inventory may require the opening and resealing of crates or cartons in order to ascertain the existence of any visible damage or of shortages in the quantities indicated in the shipping documents.  Contractor shall Notify Company or its Authorized Representative promptly of any shortages or damage revealed by its inspection.

23.3     Provided that the Company and Contractor were available for a timely inspection under 23.2, any shortage of or damage to such Materials and Equipment that is found after the time required for inspection under Section 23.2, and that would have been revealed in a proper inspection pursuant to Section 23.2, shall be deemed to have been caused by Contractor, and Contractor shall assume full responsibility for any shortages in, loss of, or damage to such Materials and Equipment and for any delay in completion of the Work caused thereby.

23.4     Contractor shall Notify Company or its Authorized Representative of any additional requirements for Materials and Equipment being supplied by Company.  Such Notice shall be made as soon as the need for the additional requirement is discovered, but, in any event, in sufficient time for Company or its Authorized Representative to address the requirement.  In the event of a misfit of the Materials and Equipment furnished by Company, Contractor shall immediately Notify Company or its Authorized Representative of such misfit.  Contractor shall take all reasonable steps to avoid standby time due to lack of such Materials and Equipment or misfits and shall continue to perform other portions of the Work pending resolution of such situations by Company and its Authorized Representative.

23.5     Contractor shall Notify Company or its Authorized Representative of any Materials and Equipment supplied to Contractor that are surplus and shall cooperate with Company and/or its Authorized Representative in the disposition of such surplus as directed by Company or its Authorized Representative.

24     Project Controls Requirements

24.1     Contractor shall provide Company and its Authorized Representative with appropriate reports and updates in sufficient detail to enable Company and its Authorized Representative to measure

Contractor’s progress against the current short term work plan on a weekly basis.  In addition,   Contractor shall schedule and conduct   Contractor shall schedule and conduct weekly progress meetings and weekly coordination meetings unless a need for more frequent meetings are needed or requested by the Contractor, the Company or the Company’s Authorized Representative.

24.2     Detailed Contract Schedule

a.   Within thirty (30) calendar days of the effective date of this Contract, Contractor shall submit, for Company or its Authorized Representative’s review and approval, a detailed Contract schedule in CPM format using the latest software (currently Primavera 6.0).  Company or its Authorized Representative shall set the Project activity codes dictionary structure, calendars, activity ID and Project ID numbering system etc. in consultation with the Contractor.  The Company’s or Authorized Representative’s Project planner will also arrange a Project calendar to set the data dates for schedule updates, in order to facilitate easy electronic integration of the overall Project Schedule. This Contract Schedule shall include ample allowance for normal delays and difficulties that may be encountered in the work of this nature including weather, holidays, coordination and normal job site congestion.  At a minimum, the detailed Contract Schedule must support the dates given in the Project Schedule and show a logical and orderly array of resource loaded activities (materials, equipment and man hours) required to achieve completion of the work.  Individual activity durations shall not be longer than twenty (20) work days.  In case the submitted Contract Schedule is found deficient by the Company or its Authorized Representative, the Contractor shall correct the deficiencies and resubmit the schedule within five (5) working days for Company or its Authorized Representative’s approval.  The approved Contract Schedule will become the baseline against which schedule performance is measured.  Forecasted deviation of the completion date from this baseline by greater than one week will require a recovery plan addressing the causes of the deviation. The baseline will not be revised except by Change Order.

b.   In conjunction with the development of the detailed Contract Schedule, Contractor shall produce production and quantity installation schedules for each major discipline, commodity, and craft activity.  These schedules shall reflect in tabular and graphical form the Deliverables to be produced or quantities to be installed each period.  These schedules shall be updated by Contractor on a weekly basis throughout execution of the Work.

24.3     Four Week Schedule (Three Week Look-Ahead)