Exhibit 10.2

EXECUTION VERSION

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ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

Dated as of March 30, 2007

by and between

Solar Star NAFB, LLC

and

PowerLight Corporation

 

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ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

This ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT, dated as of March 30, 2007 (“ Agreement ”), is by and between Solar Star NAFB, LLC, a limited liability company formed under the laws of the State of Delaware (“ Solar Star ”) and PowerLight Corporation, a corporation formed under the laws of the State of Delaware (“ Contractor ”).

RECITALS:

WHEREAS, Solar Star is developing an approximately 15 MWp solar photovoltaic power plant as more fully described in Schedule 4.1 (the “ System ”) to be located on approximately 140 acres owned by the Government of the United States of America, acting through Nellis Air Force Base (“ NAFB ”) in Clark County, Nevada and leased to Solar Star (the “ Site ”);

WHEREAS, NAFB has issued that certain Solicitation, Offer and Award to Contractor, which has been novated to Solar Star (the “ PPA ”), pursuant to which Solar Star has agreed to arrange for the construction of the System and provide all electrical energy produced therefrom to NAFB;

WHEREAS, Contractor designs, constructs and installs photovoltaic systems and as such is able to engineer and construct the System and all the necessary ancillary systems to make available electric energy to NAFB;

WHEREAS, Solar Star desires to engage Contractor to supply and install the System at the Site; and

WHEREAS, Contractor desires to provide such supply and installation services, all in accordance with the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

AGREEMENT:

1. Definitions.

Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement shall have the respective meanings set forth in this Section 1; (b) the singular shall include the plural and vice versa; (c) the word “including” shall mean “including, without limitation”, (d) references to “Sections”, “Schedules” and “Exhibits”

 

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shall be to sections, schedules and exhibits hereof; (e) the words “herein”, “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection hereof; and (f) references to this Agreement shall include a reference to all schedules and exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time.

“ Agreement ” shall have the meaning set forth in the preamble.

“ Applicable Law ” shall mean, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, consent or requirement of such Governmental Authority, as construed from time to time by any Governmental Authority.

“ Applicable Permits ” shall mean each and every national, autonomic, regional and local license, authorization, certification, filing, recording, permit or other approval with or of any Governmental Authority, including, without limitation, each and every environmental, construction or operating permit and any agreement, consent or approval from or with any other Person that is required by any Applicable Law or that is otherwise necessary for the performance of the Work or operation of the System, as listed on Schedule 4.4 .

“ Change Order ” shall mean a written document in the form of Schedule 1D signed by Solar Star and Contractor authorizing an addition, deletion or revision to the Work or an adjustment of the Contract Price or Construction Schedule issued after execution of this Agreement.

“ Construction Schedule ” shall mean the schedule for prosecution of the Work as set forth on Schedule 1A .

“ Contract Documents ” shall mean this Agreement, the exhibits and schedules hereto, and drawings, specifications, plans, calculations, models and designs that are part of Exhibit 1 and that have been prepared by Contractor or any Subcontractor exclusively for the Work.

“ Contract Price ” shall mean the amount for performing the Work that is payable to Contractor as set forth in Section 17.1 , as the same may be modified from time to time in accordance with the terms hereof.

“ Contractor ” shall have the meaning set forth in the preamble.

“ Contractor Representative ” shall mean the individual designated by the Contractor in accordance with Section 3.2 .

 

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“ Disclosing Party ” shall have the meaning set forth in Section 34 .

“ Dispute ” shall have the meaning set forth in Section 32.1 .

“ Dollar ” and “ $ ” shall mean the lawful currency of the United States of America.

“ Effective Date ” shall mean the date on which this Agreement becomes effective, as defined in Section 13.1 .

“ Equipment ” shall mean (a) all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto that are required for prudent design, construction or operation of the Systems in accordance with Industry Standards and (b) all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto described in, required by, reasonably inferable from or incidental to the Work or the Contract Documents.

“ Final Completion ” shall mean satisfaction or waiver of all of the conditions for completion of the System set forth in Section 6 .

“ Force Majeure Event ” shall mean, when used in connection with the performance of a Party’s obligations under this Agreement, any act or event (to the extent not caused by such Party or its agents or employees) which is unforeseeable, or being foreseeable, unavoidable and outside the control of the Party which invokes it, and which renders said Party unable to comply totally or partially with its obligations under this Agreement. In particular, any of the following shall be considered a Force Majeure Event:

 

(a)

war (whether or not war is declared), hostilities, revolution, rebellion, insurrection against any Governmental Authority, riot, terrorism, acts of a public enemy or other civil disturbance;

 

(b)

acts of God, including but not limited to, storms, floods, lightning, earthquakes, hailstorms, ice storms, tornados, typhoons, hurricanes, landslides, volcanic eruptions, fires, winds in excess of ninety (90) miles per hour, and objects striking the earth from space (such as meteorites), sabotage or destruction by a third party (other than any contractor retained by or on behalf of the Party) of facilities and equipment relating to the performance by the affected Party of its obligations under this Agreement;

 

(c)

strikes (whether local, regional, national or sectorial), walkouts, lockouts or similar industrial or labor actions or disputes; and

 

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(d)

acts of any Governmental Authority that materially restrict or limit Contractor’s access to the Site or its activities at the Site; provided that no act by the Government of the United States of America shall constitute a Force Majeure Event in respect of any obligation of Solar Star hereunder regarding Work completed or in process (such as Equipment ordered but not yet received) as of the date and time of such Force Majeure Event.

“ Governmental Authority ” shall mean any national, autonomic, regional, province, town, city, or municipal government, whether domestic or foreign, or other administrative, regulatory or judicial body of any of the foregoing.

“ Hazardous Material ” shall mean oil or petroleum and petroleum products, asbestos and any asbestos containing materials, radon, polychlorinated biphenyl’s (“PCBs”), urea formaldehyde insulation, lead paints and coatings, and all of those chemicals, substances, materials, controlled substances, objects, conditions and waste or combinations thereof which are now or become in the future listed, defined or regulated in any manner by any federal, state or Applicable Law.

“ Indemnified Party ” shall have the meaning set forth in Section 25.4 .

“ Indemnifying Party ” shall have the meaning set forth in Section 25.4 .

“ Industry Standards ” shall mean those standards of care and diligence normally practiced by solar engineering, construction and installation firms in performing services of a similar nature in jurisdictions in which the Work will be performed and in accordance with good engineering design practices, Applicable Permits, specifications and processes recommended by the equipment manufacturers, and other standards established for such Work.

“ Knowledge Group ” means Gregory Rosen, Howard Wenger, Bruce Ledesma Gary Wayne, Kevin Hennessy, and Dan Shugar.

“ MWp ” means MWdc, which is the manufacturer’s rated wattage of a photovoltaic system.

“ Notice to Proceed ” means the notice to be delivered to the Contractor by Solar Star instructing Solar Star to commence the Work, which notice shall be reasonably acceptable to the Contractor.

“ Party ” shall mean, individually, each of the parties to this Agreement.

 

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“ Performance Tests ” means, with respect to each Phase, the tests of the portion of the System to be brought online conducted in connection with such Phase, as more particularly described in Schedule 1B .

“ Person ” shall mean any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority.

“ Phase ” means each of Phase I, Phase II and Phase III.

“ Phase I ” means the construction phase projected to achieve Substantial Completion on ***, comprising a portion of the System having a nominal generating capability of approximately 33% of the total MWp of System, as described more fully in Schedule 4.1.

“ Phase II ” means the construction phase projected to achieve Substantial Completion on ***, comprising an additional portion of the System having a nominal generating capability of approximately 33% of the total MWp of System, as described more fully in Schedule 4.1.

“ Phase III ” means the construction phase projected to achieve Substantial Completion on ***, comprising an additional portion of the System having a nominal generating capability of approximately 34% of the total MWp of System, as described more fully in Schedule 4.1.

“ PPA ” shall have the meaning set forth in the second recital.

“ Project Documents ” shall include the PPA and other key documents set forth in Schedule 1C .

“ Receiving Party ” shall have the meaning set forth in Section 32 .

“ Retention ” shall have the meaning set forth in Section 18.2 .

“ Schedule of Values ” shall mean the breakdown and valuation of the work for progress payment purposes as set forth on Schedule 1E .

“ Site ” shall have the meaning set forth in the first recital, and is more fully described in Exhibit 1 hereto.

“ Solar Star ” shall have the meaning set forth in the preamble.

“ Solar Star’s Representative ” shall mean the individual designated by Solar Star in accordance with Section 3.1 .

 

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“ Subcontractor ” shall mean any Person, other than Contractor and Suppliers, retained by Contractor to perform any portion of the Work (including any Subcontractor of any tier) in furtherance of Contractor’s obligations under this Agreement.

“ Substantial Completion ” shall mean, for each Phase, satisfaction or waiver of all of the conditions set forth in Section 13.3 .

“ Substantial Completion Date ” shall mean the actual date on which the Substantial Completion of the System, as defined in Section 13.3 , has occurred.

“ Suppliers ” shall mean those Equipment suppliers with which Contractor contracts to build the System.

“ Technical Advisor ” shall mean the independent engineering firm appointed by Solar Star to supervise the completion of the Performance Tests and execute the certificates approving any Performance Test contemplated in Section 4.6 .

“ Technical Dispute ” shall have the meaning set forth in Section 32.2 .

“ Warranty ” shall mean the warranty of Contractor set forth on Schedule 23.1 .

“ Work ” shall mean all obligations, duties, and responsibilities assigned to or undertaken by Contractor and described on Schedule 4.1 with respect to the System.

2. Scope . Contractor shall (a) provide, on a turnkey basis, all professional design and engineering services, Equipment procurement, supervision, labor, materials, equipment, tools, construction Equipment and machinery, utilities, transportation, and procurement of the Applicable Permits for the System (but excluding any related fees), and other facilities, items and services, in each case to the extent necessary for the proper execution and completion of each Phase, in accordance with the Contract Documents, which are each made a part hereof, and (b) supervise and direct the Work in accordance with Industry Standards. Contractor shall have sole control over the engineering, design and construction means, methods, techniques, sequences, and procedures and for coordination of all portions of the Work under this Agreement unless the Agreement specifically provides otherwise.

3. Representatives .

3.1 Solar Star Representatives. Solar Star designates, and Contractor agrees to accept, Joe Kastner as Solar Star Representative for all matters relating to Contractor’s performance of the Work (except for the execution of the certificates approving any Performance Test contemplated in Section 4.6 ). However, for the exclusive purposes of executing the certificates approving any Performance Test contemplated in Section 4.6 , Solar Star

 

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unconditionally and irrevocably appoints the Technical Advisor as its representative. The actions taken by Solar Star Representative regarding such performance shall be deemed the acts of Solar Star and shall be fully binding for Solar Star. Solar Star may, upon written notice to Contractor, pursuant to Section 33 hereof, change the designated Solar Star Representative or Technical Advisor; provided , however , that Solar Star shall notify Contractor of the replacement of the Technical Advisor at least one (1) month prior to the beginning of the first Performance Test contemplated in Section 4.6 .

3.2 Contractor Representatives . Contractor designates, and Solar Star agrees to accept, Richard Hanson as Contractor Representative for all matters relating to Contractor’s performance under this Agreement. The actions taken by Contractor Representative shall be deemed the acts of Contractor. Contractor may, upon written notice to Solar Star, pursuant to Section 33 hereof, change the designated Contractor Representative.

3.3 The Parties shall vest their Representatives with sufficient powers to enable them to assume the obligations and exercise the rights of Contractor or Solar Star, as applicable, under this Agreement.

3.4 Notwithstanding Sections 3. 1 and 3.2 , all amendments, Change Orders, notices and other communications between Contractor and Solar Star contemplated herein shall be delivered in writing and otherwise in accordance with Section 33 .

 

4.	The Work .

4.1 Subject to Section 21 , Contractor shall perform the Work in accordance with the express description thereof on Schedule 1C .

4.2 Contractor shall perform all Work in accordance with Industry Standards, Applicable Law, Applicable Permits and, to the extent applicable, the terms and conditions of the Project Documents.

4.3 Contractor shall perform engineering and design services, using qualified architects, engineers and other professionals selected and paid for by Contractor, in each case as are necessary to prepare all Contract Documents and submit the Contract Documents to Solar Star for its review and approval.

4.4 Contractor, at its expense, shall obtain, and shall file on a timely basis any documents required to obtain any necessary Applicable Permits on a timely basis. Contractor shall pay for all taxes, fees and costs in order to obtain the Applicable Permits for which Contractor is responsible under this Section 4.4 .

 

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4.5 Contractor, at its expense, shall purchase, transport, deliver, inspect to the extent it deems necessary, and construct and install all Equipment necessary or useful in order to complete the System in a manner consistent with Industry Standards. Contractor shall use commercially reasonable efforts to maintain standard manufacturer’s and supplier’s warranties for the Equipment. With respect the System, Contractor shall assign to Solar Star all of Contractor’s right, title and interest in each component of the System upon delivery thereof to the Site. In addition, upon Substantial Completion of each Phase, Contractor shall assign to Solar Star all related manufacturer’s and/or supplier’s warranties for the applicable Phase.

4.6 Contractor shall startup each Phase and perform the Performance Tests therefor and for the System described on Schedule 4.6 . Solar Star shall provide such electricity and consumables as may be required to carry out the Performance Tests. The Contractor’s technical personnel (or, when applicable the installer and/or manufacturer’s personnel, with Contractor’s supervision) shall operate the applicable Phase during the Performance Tests, although Solar Star (and Solar Star’s personnel) shall be entitled to be present during any Performance Test. Any third party entrusted with the supervision, oversight or quality control of Contractor shall be entitled to observe the Performance Tests. Contractor shall provide Solar Star with at least seven (7) days’ prior written notice of the commencement of each Performance Test at Substantial Completion of a Phase in order to permit Solar Star’s Representative coordinate attendance and observation of the Performance Tests.

Upon completion of the relevant Performance Tests, Contractor shall submit to the Technical Advisor the certificate of the results thereof for its approval or rejection. Solar Star and Contractor agree that the approval or rejection by the Technical Advisor shall fully bind Solar Star, and that no certificate of the results of the Performance Tests executed by Solar Star’s Representative (and not by the Technical Advisor) shall be a valid approval or rejection of such Performance Tests.

If the results of the Performance Test can be obtained at the Site immediately following the performance of the Performance Test and the Performance Test has been completed successfully, Solar Star’s Representative and Contractor’s Representative shall execute the relevant certificate including the results achieved in the Performance Test. If the results of the Performance Test cannot be obtained at the Site immediately following the performance of the Performance Test, Contractor shall submit promptly the relevant certificate containing the results of such Performance Test to Solar Star’s Representative as soon as practicable. Solar Star’s Representative shall promptly review such certificate and the results set forth therein and shall determine whether the Performance Test has been successfully completed within five (5) business days following receipt of such certificate.

If any Phase (or component thereof) fails to satisfy any Performance Test, Solar Star’s Representative and Contractor’s Representative shall execute the relevant certificate

 

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including the results achieved in the relevant Performance Test for such Phase. Contractor shall repeat the Performance Test for the applicable Phase or component one or several times before Substantial Completion of the applicable Phase. Contractor shall take all corrective actions so that Phase or component may successfully complete the Performance Tests, without prejudice to Solar Star’s rights and remedies in accordance with this Agreement; provided, however, that if such Phase or component does not successfully complete the Performance Tests before the Substantial Completion of the applicable Phase, the applicable portion of the Contract Price shall be adjusted in accordance with Section 17.1 .

If any Dispute regarding the Performance Tests arises, Contractor shall be entitled to submit the Dispute to an independent expert in accordance with Section 32.2 . If the independent expert contemplated in Section 32 determines that any Performance Test has been completed successfully, such decision shall prevail and shall be binding on Solar Star, Contractor and the Technical Advisor and, therefore, the relevant Performance Test shall be deemed approved for all the purposes contemplated in this Agreement.

4.7 Contractor shall provide to Solar Star a copy of the operations and maintenance manual for the System. Contractor shall provide the drafts and the final version of the operations and maintenance manual on or before the dates contemplated in Section 4.12 . After Final Completion, Contractor shall remove debris, unused equipment (other than spares) and surplus materials from the portion of Site where the System is located and leave such portion of the Site in “broom clean” condition.

4.8 Solar Star shall be solely responsible for soliciting and obtaining any subsidies, rebates or other incentives that may be available from any Governmental Authority pursuant to or in connection with the purchase of the System or otherwise, and Contractor makes no representation or warranty to Solar Star as to the availability of any of such subsidies, rebates or incentives. If reasonably requested by Solar Star, Contractor shall, at Contactor’s sole cost and expense, provide Solar Star reasonable assistance in obtaining such subsidies, rebates or incentives. IN NO CASE SHALL CONTRACTOR HAVE ANY LIABILITY TO SOLAR STAR FOR ANY FAILURE BY ANY OF ITS INVESTORS TO OBTAIN ANY OR ALL OF THE BENEFIT OF ANY INVESTMENT TAX CREDIT OR DEPRECIATION.

4.9 Exclusions . Contractor shall not perform any work or activity beyond the scope of the Work, as defined in this Agreement. In particular, the following shall not be included in the Work and therefore shall be performed by Solar Star:

4.9.1 Solar Star shall provide the Site for the Work and continuous and suitable access thereto so that Contractor may gain access to the Site to perform the Work as soon as any necessary work permits, licenses and authorizations are obtained;

 

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4.9.2 Solar Star shall select its own personnel so that it is present at the Performance Tests prior to the date of Substantial Completion of each Phase and entry into commercial operation of the applicable Phase;

4.9.3 Solar Star shall be responsible for hiring any third party entrusted with the supervision, oversight or quality control of Contractor, such third party shall not, however, be responsible for the quality assurance and control of Work, other than reporting to Solar Star;

4.9.4 Solar Star shall be solely responsible for securing and paying for all asset management services relating to the System and will not require any such services from Contractor;

4.9.5 Solar Star shall be solely responsible for, and shall bear any fees, costs and expenses of, obtaining any authorization or permit, and the making of any filing, certification or declaration, required under state or federal energy laws or regulations; provided that Contractor shall provide reasonable cooperation to Solar Star in connection with such efforts; and

4.9.6 Contractor shall not be responsible for any environmental liabilities relating to the Site, except for such pollution, toxic emissions, and other Hazardous Materials as are caused by Contractor during construction of the System and for Hazardous Materials associated with the existing landfill at Site which are disturbed or removed during Contractor’s provision of Services under this Agreement; provided , however , that Contractor shall be required to comply with all applicable environmental laws and regulations during construction of the System without prejudice to the provisions of Section 28.2.

4.10 Title; Risk of Loss .

4.10.1 From the Effective Date and until the date of Substantial Completion of a Phase, and subject to Sections 4.10.2, 4.10.3 and 4.10.4, Contractor assumes risk of loss and full responsibility for the cost of replacing or repairing any damage to the applicable Phase and all materials, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased by Contractor for permanent installation in or for use during construction of such Phase, regardless of whether Solar Star has title thereto under this Agreement.

4.10.2 Solar Star shall bear the risk of loss and full responsibility in respect of a Phase from and after the date of Substantial Completion of such Phase, and if any component of such Phase is lost or damaged for whatever reason from and after such date, then Contractor shall restore or rebuild any such loss or damage and complete the

 

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Work in accordance with this Agreement at the sole cost and expense of Solar Star; provided , however , that Contractor shall not be obligated to restore or rebuild any such loss or damage unless Solar Star has obtained and maintained the insurance that Solar Star is required to maintain pursuant to Section 24 and Contractor has received reasonable assurances from Solar Star that Solar Star will prosecute such claim in a commercially reasonable manner and Contractor will receive the insurance proceeds, if any, paid under such Solar Star-maintained insurance policy in accordance with the disbursement provisions of this Agreement.

4.10.3 Notwithstanding anything herein to the contrary, but subject to the following sentence, Contractor shall bear the risk of loss and full responsibility for the cost of restoring or rebuilding any damage to such Phase and all materials, Equipment, supplies and maintenance equipment (including temporary materials, equip