AMENDED AND RESTATED USEC PROPRIETARY INFORMATION Contract No. 662574 (9-11-08) CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS. THE CONFIDENTIAL REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE...
USEC PROPRIETARY INFORMATION
Contract No. 662574 (9-11-08)
PORTIONS. THE CONFIDENTIAL REDACTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH REDACTIONS.
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Contract No. 662574 (9-11-08)
ARTICLE 1. DEFINITIONS | 14 | |||||||
Section 1.1 | AEA | 14 | ||||||
Section 1.2 | Agent | 14 | ||||||
Section 1.3 | Agreement | 14 | ||||||
Section 1.4 | Approved Subcontractor | 14 | ||||||
Section 1.5 | Budget Amount | 14 | ||||||
Section 1.6 | Business Day | 14 | ||||||
Section 1.7 | Intentionally Omitted | 14 | ||||||
Section 1.8 | Change | 14 | ||||||
Section 1.9 | Change in Law | 14 | ||||||
Section 1.10 | Change Order | 15 | ||||||
Section 1.11 | Change Order Request | 15 | ||||||
Section 1.12 | Codes and Standards | 15 | ||||||
Section 1.13 | Commissioning | 15 | ||||||
Section 1.14 | Conflict of Interest | 15 | ||||||
Section 1.15 | Contractor | 15 | ||||||
Section 1.16 | Contractor Indemnities | 15 | ||||||
Section 1.17 | Contractor Party | 15 | ||||||
Section 1.18 | Contractor Party Loss | 15 | ||||||
Section 1.19 | Contractor’s Representative | 16 | ||||||
Section 1.20 | Critical Path Activity | 16 | ||||||
Section 1.21 | Day | 16 | ||||||
Section 1.22 | Intentionally Omitted | 16 | ||||||
Section 1.23 | Debtor Relief Law | 16 | ||||||
Section 1.24 | Defects or Deficiencies | 16 | ||||||
Section 1.25 | Deliverables | 16 |
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Section 1.26 | Design Criteria | 16 | ||||||
Section 1.27 | Design Documents | 16 | ||||||
Section 1.28 | DOE | 16 | ||||||
Section 1.29 | “Dollars” or “$” | 16 | ||||||
Section 1.30 | Drawings | 16 | ||||||
Section 1.31 | Drawings and Specifications | 16 | ||||||
Section 1.32 | Equipment | 17 | ||||||
Section 1.33 | Existing Structure | 17 | ||||||
Section 1.34 | Expiration Date | 17 | ||||||
Section 1.35 | Extraordinary Weather Conditions | 17 | ||||||
Section 1.36 | Final Acceptance | 17 | ||||||
Section 1.37 | Payment | 17 | ||||||
Section 1.38 | FOCI | 17 | ||||||
Section 1.39 | Force Majeure Event | 17 | ||||||
Section 1.40 | GCEP | 17 | ||||||
Section 1.41 | Good Engineering Practices | 17 | ||||||
Section 1.42 | Governmental Authority | 18 | ||||||
Section 1.43 | Government Approval | 18 | ||||||
Section 1.44 | Final Completion/Acceptance Notice | 18 | ||||||
Section 1.45 | Hazardous Material | 18 | ||||||
Section 1.46 | Indemnified Person | 18 | ||||||
Section 1.47 | Invoices | 18 | ||||||
Section 1.48 | Key Milestones | 18 | ||||||
Section 1.49 | Law | 19 | ||||||
Section 1.50 | Lender | 19 | ||||||
Section 1.51 | Lien | 19 | ||||||
Section 1.52 | Loan Agreement | 19 | ||||||
Section 1.53 | loss | 19 |
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Section 1.54 | Mechanical Completion | 19 | ||||||
Section 1.55 | Mechanical Completion of the Plant | 19 | ||||||
Section 1.56 | Notice | 19 | ||||||
Section 1.57 | NRC | 20 | ||||||
Section 1.58 | Owner | 20 | ||||||
Section 1.59 | Owner Indemnities | 20 | ||||||
Section 1.60 | Owner’s Representative | 20 | ||||||
Section 1.61 | Payment Schedule | 20 | ||||||
Section 1.62 | Person | 20 | ||||||
Section 1.63 | Plant | 20 | ||||||
Section 1.64 | Plant Site | 20 | ||||||
Section 1.65 | PORTS | 20 | ||||||
Section 1.66 | Prime Rate | 20 | ||||||
Section 1.67 | Project Schedule | 20 | ||||||
Section 1.68 | Progress Report | 20 | ||||||
Section 1.69 | Project | 21 | ||||||
Section 1.70 | Punch List | 21 | ||||||
Section 1.71 | Punch List Items | 21 | ||||||
Section 1.72 | Quality Program | 21 | ||||||
Section 1.73 | RCRA | 21 | ||||||
Section 1.74 | Sales Tax | 21 | ||||||
Section 1.75 | Scope of Services and/or Scope of Facilities | 21 | ||||||
Section 1.76 | Site Plan | 21 | ||||||
Section 1.77 | Start-up | 21 | ||||||
Section 1.78 | Statement of Work or “SOW” | 21 | ||||||
Section 1.79 | Subcontractor and Subcontract | 21 | ||||||
Section 1.80 | SWU | 22 | ||||||
Section 1.81 | System and Sub-system | 22 |
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Section 1.82 | Taxes | 22 | ||||||
Section 1.83 | Technical Consultant | 22 | ||||||
Section 1.84 | Turnover | 22 | ||||||
Section 1.85 | Turnover Notice | 22 | ||||||
Section 1.86 | Warranty | 22 | ||||||
Section 1.87 | Warranty Period | 22 | ||||||
Section 1.88 | Warranty Procedures | 23 | ||||||
Section 1.89 | Work | 23 | ||||||
ARTICLE 2. TERM | 23 | |||||||
ARTICLE 3. SCOPE OF WORK | 23 | |||||||
ARTICLE 4. STANDARDS OF PERFORMANCE | 23 | |||||||
Section 4.1 | Compliance with Nuclear Safety and Safeguards and Security Requirements | 23 | ||||||
Section 4.2 | Security of Classified Information and Controlled Areas | 24 | ||||||
Section 4.3 | Unclassified Controlled Nuclear Information | 27 | ||||||
Section 4.4 | Employee Protection | 28 | ||||||
Section 4.5 | Quality Program | 31 | ||||||
Section 4.6 | Schedule Notification | 31 | ||||||
Section 4.7 | Professional Standards | 32 | ||||||
Section 4.8 | Cooperation | 32 | ||||||
Section 4.9 | Contractor General Responsibility | 32 | ||||||
Section 4.10 | Owner’s General Responsibility | 32 | ||||||
Section 4.11 | Government Approvals | 33 | ||||||
Section 4.12 | Contractor Procedures | 33 | ||||||
Section 4.13 | Work Control | 33 | ||||||
Section 4.14 | Submission of Items/Performance of Work | 33 | ||||||
Section 4.15 | Nonconforming Materials/Work | 33 | ||||||
Section 4.16 | Documentation and Retention Periods | 34 | ||||||
ARTICLE 5. REPRESENTATIVES | 35 |
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Section 5.1 | Owner’s Representatives | 35 | ||||||
Section 5.2 | Intentionally Omitted | 35 | ||||||
Section 5.3 | Contractor’s Representative | 35 | ||||||
Section 5.4 | Replacement | 35 | ||||||
Section 5.5 | Intentionally Omitted | 35 | ||||||
ARTICLE 6. WORKFORCE | 36 | |||||||
Section 6.1 | Workforce | 36 | ||||||
Section 6.2 | Key Personnel | 36 | ||||||
Section 6.3 | Q-Cleared Personnel | 37 | ||||||
Section 6.4 | Workforce Continuity | 37 | ||||||
Section 6.5 | Removal of Contractor Employee | 37 | ||||||
ARTICLE 7. PLANT SITE | 37 | |||||||
Section 7.1 | Sufficiency of the Plant Site | 37 | ||||||
Section 7.2 | Pre-existing Materials | 37 | ||||||
Section 7.3 | Plant Site Operations | 38 | ||||||
Section 7.4 | Plant Rules and Regulations | 38 | ||||||
Section 7.5 | Access | 38 | ||||||
Section 7.6 | Hazardous Material | 38 | ||||||
Section 7.7 | Pre-existing Contamination | 40 | ||||||
ARTICLE 8. PROJECT SCHEDULE | 40 | |||||||
Section 8.1 | Project Schedule | 40 | ||||||
ARTICLE 9. ENGINEERING AND DESIGN | 41 | |||||||
Section 9.1 | Engineering | 41 | ||||||
Section 9.2 | Design Document Review | 41 | ||||||
ARTICLE 10. INTENTIONALLY OMITTED | 42 | |||||||
ARTICLE 11. CONSTRUCTION | 42 | |||||||
Section 11.1 | Contractor Responsibilities | 42 | ||||||
Section 11.2 | Owner Participation | 43 | ||||||
Section 11.3 | Owner Required Activities | 43 |
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Section 11.4 | Subcontractors and Technical Consultants | 44 | ||||||
Section 11.5 | Procurement Planning Activities | 46 | ||||||
Section 11.6 | Customs | 46 | ||||||
Section 11.7 | Royalties and LicenseFees | 46 | ||||||
Section 11.8 | NRC Support | 46 | ||||||
Section 11.9 | Coordination | 46 | ||||||
Section 11.10 | Safety | 47 | ||||||
Section 11.11 | Tools and Equipment | 47 | ||||||
Section 11.12 | Unit Cost Reporting | 47 | ||||||
Section 11.13 | Project Labor Agreement | 48 | ||||||
ARTICLE 12. CONSTRUCTION SEQUENCE | 48 | |||||||
Section 12.1 | Mechanical Completion | 48 | ||||||
Section 12.2 | Turnover | 48 | ||||||
Section 12.3 | Final Acceptance | 49 | ||||||
ARTICLE 13. START-UP, COMMISSIONING, TRAINING | 50 | |||||||
Section 13.1 | Staffing, Start-Up and Testing Spares and Training | 50 | ||||||
ARTICLE 14. CONTRACTOR TESTING | 50 | |||||||
Section 14.1 | Testing | 50 | ||||||
ARTICLE 15. REPORTING AND MEETINGS | 51 | |||||||
Section 15.1 | Progress Reports | 51 | ||||||
Section 15.2 | Subcontractor Information | 51 | ||||||
Section 15.3 | Meetings | 51 | ||||||
Section 15.4 | Subcontractor Initiative Results | 51 | ||||||
ARTICLE 16. CHANGES | 51 | |||||||
Section 16.1 | Further Refinement, Corrections and Detailing | 51 | ||||||
Section 16.2 | Changes | 51 | ||||||
Section 16.3 | Procedure for Changes | 53 | ||||||
Section 16.4 | Undefinitized Orders | 54 |
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Section 16.5 | Changes Due to Changes in Law/Codes/Government Approvals | 54 | ||||||
Section 16.6 | Effect of Force Majeure Event | 54 | ||||||
Section 16.7 | Continued Performance Pending Resolution of Disputes | 54 | ||||||
Section 16.8 | Documentation | 54 | ||||||
Section 16.9 | Acceleration of Work | 54 | ||||||
ARTICLE 17. INTENTIONALLY OMITTED | 55 | |||||||
ARTICLE 18. OWNER INSPECTION | 55 | |||||||
Section 18.1 | Inspection | 55 | ||||||
Section 18.2 | Notice for Inspection and Testing | 55 | ||||||
Section 18.3 | Contractor Inspection | 55 | ||||||
Section 18.4 | Examination and Testing | 56 | ||||||
ARTICLE 19. COMPENSATION | 56 | |||||||
Section 19.1 | Compensation | 56 | ||||||
Section 19.2 | Invoices | 58 | ||||||
Section 19.3 | Payment | 58 | ||||||
Section 19.4 | Interest | 58 | ||||||
Section 19.5 | Deficient Requests for Payment | 59 | ||||||
Section 19.6 | Payment Processing | 59 | ||||||
Section 19.7 | Overpayment | 59 | ||||||
Section 19.8 | Payment or Use Not Acceptance | 59 | ||||||
Section 19.9 | Payments to Owner | 60 | ||||||
Section 19.10 | Taxes | 60 | ||||||
Section 19.11 | Examination of Costs | 62 | ||||||
ARTICLE 20. Limitation of Funds | 62 | |||||||
Section 20.1 | Incremental Funding | 62 | ||||||
ARTICLE 21. WARRANTY | 63 | |||||||
Section 21.1 | In General | 63 | ||||||
Section 21.2 | Warranty Period | 63 |
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Section 21.3 | Subcontractor Warranties | 65 | ||||||
Section 21.4 | Limitation of Liability for Warranty | 65 | ||||||
Section 21.5 | Additional Testing | 65 | ||||||
ARTICLE 22. LIMITATION OF LIABILITY | 65 | |||||||
Section 22.1 | Limitation | 65 | ||||||
Section 22.2 | Exclusions | 65 | ||||||
ARTICLE 23. CONSEQUENTIAL DAMAGES | 66 | |||||||
ARTICLE 24. FURNISHED PROPERTY | 66 | |||||||
Section 24.1 | Use of Owner’s Property | 66 | ||||||
Section 24.2 | Markings | 66 | ||||||
Section 24.3 | Care, Custody and Control | 67 | ||||||
Section 24.4 | Disposal | 67 | ||||||
Section 24.5 | Damage to Furnished Property | 67 | ||||||
ARTICLE 25. INSURANCE | 67 | |||||||
Section 25.1 | Minimum Insurance | 67 | ||||||
Section 25.2 | Certifications of Insurance | 68 | ||||||
Section 25.3 | Insurance Flow Down | 68 | ||||||
Section 25.4 | Other Insurance | 69 | ||||||
Section 25.5 | Nuclear Liability Protection | 69 | ||||||
Section 25.6 | Price Xxxxxxxx Indemnification | 70 | ||||||
ARTICLE 26. INDEMNIFICATION | 74 | |||||||
Section 26.1 | Contractor Indemnity | 74 | ||||||
Section 26.2 | Owner Indemnity | 75 | ||||||
Section 26.3 | Indemnities for Hazardous Material | 75 | ||||||
Section 26.4 | Actions by Employees | 76 | ||||||
Section 26.5 | Compliance with Laws | 76 | ||||||
Section 26.6 | Lawsuits | 76 | ||||||
ARTICLE 27. TERMINATION FOR CONVENIENCE | 77 | |||||||
Section 27.1 | General | 77 |
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Section 27.2 | Claims for Payment | 78 | ||||||
ARTICLE 28. TERMINATION FOR DEFAULT | 78 | |||||||
Section 28.1 | Contractor Events of Default | 78 | ||||||
Section 28.2 | Remedies | 80 | ||||||
Section 28.3 | Owner Default | 80 | ||||||
ARTICLE 29. SUSPENSION | 80 | |||||||
Section 29.1 | The Work | 80 | ||||||
Section 29.2 | Owner Directed Change | 81 | ||||||
Section 29.3 | Resumption | 81 | ||||||
Section 29.4 | Extended Suspension | 81 | ||||||
ARTICLE 30. FORCE MAJEURE | 81 | |||||||
Section 30.1 | Force Majeure Event | 81 | ||||||
Section 30.2 | Excused Performance | 82 | ||||||
Section 30.3 | Failure to Provide Notices | 83 | ||||||
Section 30.4 | Burden of Proof | 83 | ||||||
Section 30.5 | Failure to Mitigate | 83 | ||||||
Section 30.6 | Prolonged Force Majeure | 84 | ||||||
ARTICLE 31. INTELLECTURAL PROPERTY, PROPRIETARY INFORMATION AND OWNERSHIP RIGHTS | 84 | |||||||
Section 31.1 | Definitions | 84 | ||||||
Section 31.2 | Owner Proprietary Information | 85 | ||||||
Section 31.3 | Contractor Proprietary Information | 85 | ||||||
Section 31.4 | Required Disclosure | 86 | ||||||
Section 31.5 | Standard of Care | 87 | ||||||
Section 31.6 | Ownership of Drawings | 87 | ||||||
Section 31.7 | Allocation of Patent Rights in Subject Inventions | 87 | ||||||
Section 31.8 | Ownership of Copyrights | 88 | ||||||
Section 31.9 | Background Rights | 88 | ||||||
ARTICLE 32. INFRINGEMENT | 89 |
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Section 32.1 | Indemnity by Contractor | 89 | ||||||
Section 32.2 | Effect of Owner’s Actions | 90 | ||||||
Section 32.3 | Owner Indemnity | 90 | ||||||
ARTICLE 33. FINANCING | 90 | |||||||
ARTICLE 34. REPRESENTATIONS OF THE PARTIES | 90 | |||||||
Section 34.1 | Contractor Representations | 90 | ||||||
Section 34.2 | Owner Representations | 92 | ||||||
ARTICLE 35. CONFLICT OF INTEREST | 93 | |||||||
Section 35.1 | Prohibited Activities | 93 | ||||||
Section 35.2 | Disclosure of Conflicts of Interest | 93 | ||||||
ARTICLE 36. DISPUTE RESOLUTION | 94 | |||||||
Section 36.1 | Mutual Agreement | 94 | ||||||
Section 36.2 | Disputes Subject to Arbitration | 94 | ||||||
Section 36.3 | Hearings and Award | 94 | ||||||
Section 36.4 | Confidentiality | 95 | ||||||
Section 36.5 | Arbitration Award Binding Upon Successors | 95 | ||||||
ARTICLE 37. GENERAL PROVISIONS | 95 | |||||||
Section 37.1 | Entire Agreement | 95 | ||||||
Section 37.2 | Owner’s Obligations to be Non-Recourse | 95 | ||||||
Section 37.3 | Interpretation | 95 | ||||||
Section 37.4 | Independent Contractor | 96 | ||||||
Section 37.5 | Binding on Successors | 96 | ||||||
Section 37.6 | Notices | 96 | ||||||
Section 37.7 | Technical Communications | 97 | ||||||
Section 37.8 | Third Party Beneficiaries | 97 | ||||||
Section 37.9 | Article Headings and Subheadings | 97 | ||||||
Section 37.10 | No Waiver | 97 | ||||||
Section 37.11 | Severability | 98 | ||||||
Section 37.12 | Counterpart Execution | 98 |
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Section 37.13 | Further Assurances | 98 | ||||||
Section 37.14 | Assignability | 98 | ||||||
Section 37.15 | Survivability of Representations, Warranties and Guarantees | 98 | ||||||
Section 37.16 | Surviving Obligations | 98 | ||||||
Section 37.17 | No Oral Modifications | 99 | ||||||
Section 37.18 | Record Retention | 99 | ||||||
Section 37.19 | Nondiscrimination | 99 | ||||||
Section 37.20 | Joint Effort | 99 | ||||||
Section 37.21 | Publicity Releases | 100 | ||||||
Section 37.22 | Order of Precedence/Intent of Agreement | 100 | ||||||
Section 37.23 | Exclusive Remedies | 100 |
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A | Statement of Work | |
B | Key Milestones | |
C | Contractor Key Personnel | |
D | Limited Agency Agreement | |
E | Mechanical Completion | |
F | Notice of Final Completion/Acceptance | |
G | Reimbursable Costs | |
H | Vehicles, Equipment, Tools and Support Services | |
I | Fixed and Incentive Fee | |
J | Release of Lien |
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a. | Contractor shall comply with all applicable Laws including, but not limited to, the nuclear safety, safeguards and security requirements set forth in this Agreement and the requirements and commitments under the NRC licenses obtained by USEC (each a “Nuclear Safety, Safeguards and Security Requirement”) . Contractor shall conduct self-assessments and cooperate with the Owner, DOE, and the NRC in activities that address these requirements. |
b. | In the event that Contractor becomes aware of any failure to comply with a Nuclear Safety, Safeguards and Security Requirement, Contractor shall promptly notify the Owner or, if applicable, USEC’s site regulatory |
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Contract No. 662574 (9-11-08)
compliance manager and, in consultation with such person(s), take appropriate preventive and/or corrective action to achieve compliance, and assure continued compliance, with such requirements. | |||
c. | In the event that DOE or NRC initiates an enforcement action against Owner arising out of Contractor’s failure to comply with any such Nuclear Safety, Safeguards and Security Requirement, Contractor agrees to cooperate fully with Owner in responding to such enforcement actions by providing all information, assistance, and documentation required by Owner. The Parties agree to coordinate their legal and factual position in a timely manner so that all submittals are made in a timely manner, as determined by Owner to DOE or NRC, as the case may be. | ||
d. | All costs incurred by Contractor in connection with Owner’s response to an enforcement action in accordance with Section 4.1(c) above shall be borne by Owner and shall be subject to reimbursement by Owner under this Agreement, provided however such reimbursement shall not include Contractor’s cost to the extent that such violation arises solely out of wrongful acts or omissions of Contractor. However, Contractor agrees to indemnify and hold Owner harmless against (i) any and all governmental penalties, fines, and (ii) any and all third party losses, claims, costs or expenses arising from whistleblower claims, including costs of defense, settlement and reasonable attorney’s fees, that Owner may incur, become responsible for, or pay out to the extent resulting solely from Contractor’s negligent acts or omissions which result in a failure to comply with any Nuclear Safety, Safeguards and Security Requirement, in accordance with Article 26. | ||
e. | Owner agrees to indemnify and hold Contractor harmless against (x) any and all penalties, fines, and (y) all losses, claims, costs or expenses arising from whistleblower claims (including costs of defense, settlement and reasonable attorney’s fees) that Contractor may incur, become responsible for, or pay out, as a result of Owner’s failure to comply with any Nuclear Safety, Safeguards and Security Requirement, in accordance with Article 25 and 26. For purposes of the Parties’ indemnification obligations under this Section 4.1, either Party’s receipt of a notice of violation or any other notice from the NRC or DOE shall not be deemed as such Party’s failure to comply with the referenced requirements by the virtue of its issuance. |
i. | “Classified Information” means any information or material, regardless of its physical form or characteristics, that has been determined pursuant to Executive Order 12356 or prior Executive |
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Orders to require protection against unauthorized disclosure, and which is so designated; and all data concerning design, manufacture or utilization of atomic weapons, the production of special nuclear material, or the use of special nuclear material in the production of energy, but shall not include the data declassified or removed from the Restricted Data category pursuant to Section 142 of the AEA unless protected under Section 142d of the AEA. | |||
ii. | The Parties recognize that the DOE or the NRC may determine security classifications and issue security clearances required for performance of all or part of this Agreement. Contractor shall follow the applicable rules and procedures of DOE, NRC and other responsible governmental authorities regarding access to and safeguarding of Classified Information, security clearances and other security matters, including the requirements of DEAR 952.204-2, Security, DEAR 952.204-70 Xxxxxxxxxxxxxx/Xxxxxxxxxxxxxxxx, 00 XXX 00, and the procedures with respect to FOCI in DEAR 904.7000 et seq. and DEAR 952.204-73, Facility Clearance. Contractor shall not permit any individual to have access to any level or category of classified information, except in accordance with applicable laws and procedures. Contractor shall not be granted access to any classified information until the Owner’s Representative has notified Contractor that such access has been approved by a DOE FOCI determination. |
b. | Site Access. The Plant Site is enclosed by a perimeter fence establishing a “controlled” area. At the time of initial entrance to the site, Contractor’s employees shall report to the Owner’s badge office for security processing. Processing of Contractor’s employees will be done without charge to Contractor. All Contractor employees working under this Agreement must be United States citizens. Unless informed by Owner of a different procedure, Contractor shall ensure that, once issued, badges are worn by Contractor’s employees at all times while on site. If a Contractor’s employee is a naturalized citizen, proper evidence must be furnished. All Contractor employees must have picture identification with them upon arrival at the Owner’s badge office. The continued presence of Contractor’s employees on-site is subject to review by Owner and Governmental Authorities based upon a check of appropriate records of law enforcement agencies. |
c. | Badges. Badges will be furnished to Contractor’s employees at the Plant Site at no charge to Contractor. Badges shall remain the property of the Owner or the Governmental Authority issuing the badge, and Contractor and its personnel must return the badges with the appropriate documentation, as provided by Plant procedures, to the badge office upon request of Owner or |
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termination of employment at the Plant Site. While working within the controlled limits of PORTS, badges must be worn above the waist and in plain sight at all times. | |||
d. | Vehicle Operation. Contractor’s employees working under this Agreement driving vehicles on the PORTS site are required to have valid driver’s licenses. All vehicles shall be operated in a safe manner, in accordance with the Ohio Vehicle Code, and in compliance with the posted limits of the PORTS site and any other site rules and regulations, including parking restrictions. Failure to comply with this Section 4.2 may result in Owner revoking the on-site driving privileges of the offending employee. | ||
e. | Technology Transfer Controls. Even if not classified, information related to enrichment, an enrichment facility or a component of an enrichment facility, are subject to U.S. Government restrictions on technology transfers, including, but not limited to, those found in 10 CFR Parts 110, 810, or 1017 or 15 CFR Part 779. Accordingly, Contractor shall not disclose such information in any manner inconsistent with any such U.S. Government restriction. Further, Contractor shall not use, nor permit any Technical Consultant to use, any non-U.S. national or non-U.S. owned entity in connection with (i) delivery to, or work at, a controlled area or (ii) Work involving information or goods that are subject to U.S. government control, without first ensuring that such activities fully comply with all applicable restrictions. | ||
f. | Foreign Nationals. Foreign nationals are not permitted to perform work at Owner (or its subsidiary the United States Enrichment Corporation) facilities without prior written permission from the Owner. Contractor’s request for permission for use of foreign nationals on the Project must be submitted to the Owner at least ninety (90) days prior to their anticipated work date. | ||
g. | Export Controlled Information | ||
(1) Definition “Export Controlled Information” or “ECI” is defined as unclassified technical information whose export is subject to export control and whose unrestricted public dissemination could help proliferants or potential adversaries of the United States. | |||
(2) Oral or Visual Disclosure A party that discloses Export Controlled Information orally or visually shall identify it as Export Controlled Information at the time of disclosure. | |||
(3) Marking All tangible objects, such as drawings, reports, programs or documents, which constitute and/or contains or may contain Export Controlled Information shall be Marked “Export Controlled Information” or “Information Contained Within May Contain Export Controlled |
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Information” or such other markings as required or permitted by DOE or other applicable Governmental Authority guidance. Markings inadvertently omitted from Export Controlled Information when disclosed to a recipient shall be applied by such recipient promptly when requested by the disclosing Party, and such Export Controlled Information shall thereafter continue to be treated as provided by this Agreement. | |||
(4) Export Controlled Information shall be protected in accordance with the DOE guidelines on Export Control and Nonproliferation and with U.S. Government export control laws and regulations. Each recipient shall not disclose the information to suppliers or contractors who are not U.S. owned and managed or to employees who are not U.S. Citizens, except in accordance with the DOE Guidelines on Export Control and Nonproliferation, and with U.S. Government export control laws and regulations. This restriction applies to written and oral guidance concerning performance, which may be provided by Owner technical representatives. | |||
(5) Unless specifically and expressly approved in writing by Owner, Contractor shall not disclose any ECI or information that may contain ECI provided or furnished by Owner for any purpose to any individual who is not a U.S. citizen or to any non-U.S. person or entity (including any non-U.S. employee, supplier or contractor). For purposes of this Section 4.2 (g), a person or entity is considered to be non-U.S. if it is incorporated, organized or created under the laws of a foreign country, or is foreign owned, controlled or influenced as defined in applicable regulations and guidelines. This restriction applies to written and oral information and guidance which may be provided by Owner and applies to any information provided by any contractor, or Subcontractor to Owner or any other person acting on behalf of Owner. Prior to disclosing any ECI to any person, Contractor shall include this Section 4.2(g) in a contract or agreement with the recipient. |
a. | Certain of the Drawings and Specifications and other documents referenced in this Agreement contain Unclassified Controlled Nuclear Information (UCNI) as defined in Section 148 of the AEA, as amended. Only authorized individuals can have access to UCNI documents. An authorized individual is someone working for or with the U.S. (Federal) Government, USEC, or its contractors requiring access to specific UCNI in the performance of official duties. The information shall be controlled and handled according to applicable Laws and the instructions set forth below (in the event of a conflict the applicable Laws shall take precedence): |
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i. | Handle UCNI material in such a way it will not be available to anyone to whom you are not deliberately transmitting it. An authorized individual shall maintain control over all UCNI to prevent unauthorized access. Physical control shall be maintained over documents in use to prevent unauthorized disclosure. In a controlled or guarded area, unlocked files, desks, or similar containers are adequate protection. In an uncontrolled or unguarded area, a locked drawer or desk, a locked repository or a locked room is adequate. | ||
ii. | UCNI may be transmitted to a person who needs to know the information to do his/her job and is an employee of the Contractor. Refer to the DOE Manual 471.1-1 (or any successor manual or instructions) for criteria/authorization on dissemination of UCNI to a wider audience. | ||
iii. | When transmitting UCNI, alert the recipient to the fact the transmission includes UCNI. The sensitive content of the information shall also be documented by the inclusion of markings on documentation and inclusion of an UCNI cover sheet. Documents shall be packaged to prevent disclosure or presence of UCNI. The information should be appropriately marked UCNI within the package or envelope. The outside of the package or envelope shall be marked “TO BE OPENED BY ADDRESSEE ONLY.” UCNI shall be transmitted by U.S. Mail (U.S. First Class, Express, certified or registered mail) or other commercial carrier who can provide tracking of packages. Refer to DOE Manual 471.1 or 10 CFR 1017 for additional criteria. | ||
iv. | When the Drawings and Specifications or the Statement of Work are no longer required by the Contractor, destroy them in a manner that will assure sufficient complete destruction to prevent its retrieval. Refer to DOE Manual 471.1 (or any successor manual or instructions) or 10 CFR 1017 for additional criteria. |
b. | This Section 4.3 shall be included in all contracts or subcontracts for performance of Work under the Contract that require use of the above referenced Drawings and Specifications or Statement of Work. |
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a. | Notification and Indemnification Obligations with Respect to Section 211 of the Energy Reorganization Act of 1974, as amended (the “ERA”). |
i. | Section 211 of the ERA, and 10 CFR Section 76.7 (applicable to item/services provided in support of operations at a gaseous diffusion plant), 10 CFR Section 70.7 of the NRC regulations (applicable to Work in support of the Plant) and 10 CFR Part 708 of the DOE regulations (applicable to item/services provided in support of USEC’s centrifuge demonstration project), implementing Section 211, as applicable, applies to the performance of Work under this Agreement. Contractor acknowledges its obligation to comply with the requirements of Section 211 of the ERA, and the applicable regulations (10 CFR Section 76.7 or 10 CFR Section 70.7 of the NRC regulations or 10 CFR Part 708). The Contractor represents and warrants that the management and supervisory personnel assigned to this Agreement are familiar with the requirements imposed under Section 211 of the ERA and the NRC regulations implementing Section 211. The Contractor also recognizes its obligation to require that any Technical Consultant and Subcontractor engaged in connection with the performance of this Agreement comply with the requirements of Section 211 and the NRC regulations implementing Section 211. | ||
ii. | In the event that an employee of the Contractor, or an employee of any Technical Consultant or Subcontractor, files a complaint with the U.S. Department of Labor (the “DOL”) alleging that the Contractor, or any of its Technical Consultants or Subcontractors, violated the requirements of Section 211 of the ERA with respect to such employee while he or she was performing any of the Work in connection with this Agreement, the Contractor shall promptly notify the Owner’s Representative of the filing of such complaint, and shall keep the Owner’s Representative apprised of the status of the complaint itself and all material developments in any DOL or judicial proceedings related to the complaint. | ||
iii. | In the event that Contractor becomes aware of an allegation of retaliation or safety raised to the NRC or DOE, Contractor shall promptly notify the Owner’s Representative of the filing of such allegation, and shall keep the Owner’s Representative apprised of the status of the allegation itself and all material developments in any NRC, DOE or judicial proceedings related to the allegation. | ||
iv. | The Contractor further agrees to indemnify and hold the Owner harmless against any and all costs, losses, claims, damages, |
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liabilities, civil penalties and expenses, including reasonable attorneys’ fees, imposed upon or incurred by the Owner in connection with (A) any DOL proceeding brought against the Owner by an employee or former employee of the Contractor , or any Technical Consultant of the Contractor, based upon the Contractor’s or its Technical Consultant’s actual or alleged violation of Section 211 with respect to such employee or former employee, (B) any investigation or enforcement action by the NRC based upon such an actual or alleged violation of Section 211 or applicable regulations (10 XXX Xxxxxxx 00.0, 00 XXX Section 70.7 or 10 CFR Part 708); and (C) any civil action brought against the Owner based upon the Contractor’s , or its Technical Consultant’s, actual or alleged violation of Section 211. Such costs, losses, claims, damages, liabilities, civil penalties and expenses, including reasonable attorney’s fees, shall not be recoverable from the Owner under any other provisions of this Agreement. The Contractor will further require that all contracts with its Technical Consultants and all Subcontracts in connection with the construction of the Plant will provide for the above-stated indemnity obligations. |
b. | Contractor employees working on the Plant Site or other facilities may be required to attend training on the Owner’s Employee Concerns Program (“ECP”). Contractor employees are authorized access to, and use of, the Owner’s ECP. Contractor shall afford all employees access to the Owner’s ECP at all reasonable times. Any Contractor employee working on the Plant Site or another facility owned or controlled by the Owner or its affiliates under this Agreement whose employment is terminated prior to the completion of this Agreement shall be required to meet with the Owner’s ECP Manager, or his representative, prior to departure from the Plant Site so that the employee may raise any concerns. | ||
c. | Contractor shall maintain records of all adverse employment actions taken against employees working under this Agreement and shall make these records available to the Owner upon reasonable request consistent with applicable federal and state laws. | ||
d. | The Contractor further agrees to pass the requirements imposed by this Section through to its Technical Consultants or Subcontractors by including a provision similar to this Section 4.4(d) in all contracts or Subcontracts for the performance of any of the Work; provided that this requirement may be waived in writing by the Contractor for specific subcontractors upon the submission of written notice to the Owner’s Representative advising him/her of such waiver and the basis therefore. |
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e. | Contractor shall notify the Owner’s Representative if any Contractor employee is subject to an NRC or DOE Order or enforcement action. The Owner reserves the right to determine that the employee may not be used in the performance of this Agreement. |
a. | The Contractor shall maintain a quality program (“Quality Program") acceptable to the Owner in accordance with the quality requirements necessary for the specific Work as set forth in this Agreement and perform the Work under this Agreement in accordance with the applicable Quality Program. The Quality Program shall comply with USEC QAPD# NR-3605-0003 as may be modified by Owner and provided to Contractor. The extent of the program is dependent upon the importance to safety, type and use of the item or service being procured. The Owner shall have the right to inspect the Contractor’s work areas (both on Plant Site and off Plant Site) to ensure compliance with this program. The Contractor shall provide access by the Owner’s Representative, or his/her designated representative, at all reasonable times to work areas and to the Contractor’s quality records required under the Quality Program or Work performed under this Agreement (including access to all procurement documents). The Owner’s verification activities do not relieve the Contractor from the responsibility for verification of quality achievement. |
b. | The Contractor shall perform the Work and require Technical Consultants and Subcontractors to comply with any special instructions and requirements as identified in this Agreement. | ||
c. | The Contractor shall evaluate any lower-tier suppliers that supply items or services covered by the requirements of this Section 4.5 and require that the supplier has a quality program, if required, that is acceptable under this Section 4.5. | ||
d. | The Contractor shall insert the requirements of this Section 4.5, appropriately modified, in all Subcontracts or contracts with Technical Consultants for Work covered by the aforementioned regulations/statutes. |
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a. At all times be fully qualified and capable of performing every phase of the Work;
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a. | The persons specified in Exhibit C are each considered a “Key Person” and shall be assigned by Contractor to perform the Work. |
b. | Contractor shall not remove any Key Person from performing the Work without prior written consent of the Owner. Contractor shall provide to the Owner at least thirty (30) Days notice prior to any Key Person becoming unavailable for a period of one (1) month or longer to perform the Work, unless the unavailability is due to a cause not under the control of Contractor, in which case Contractor shall notify the Owner of such unavailability as soon as possible but in no event more than three (3) Business Days of learning of such unavailability. Whenever any Key Person is unavailable for performance of the Work due to reasons beyond the control of the Contractor, Contractor agrees to replace such Key Person with an individual of substantially equal abilities and qualifications acceptable to the Owner. Contractor shall make such replacement not later than ten (10) Business Days prior to such Key Person becoming unavailable; provided, however, that Contractor shall have not less than twenty (20) Business Days from the day that |
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a. | The Contractor, its Technical Consultants, Subcontractors and all Contractor, Technical Consultant and Subcontractor employees shall comply with the applicable rules and regulations in force at the Plant Site or any other facility where Work is performed. This includes, but is not be limited to complying with all applicable USEC, United States Enrichment Corporation, NRC, and DOE rules and regulations when performing Work at the Plant Site, PORTS (procedure UE2-HR-LR1038 or its successor) or other USEC sites. |
b. | The Contractor shall require the substance of this Section 7.4 be included in all contracts or Subcontracts for Work at or on the Plant Site, PORTS, or the USEC sites. |
a. | The discovery or encountering of Hazardous Materials on the Plant Site (other than materials brought to the Plant Site by Contractor, Subcontractors (provided Subcontractors comply with their contractual obligations related to Hazardous Materials, given the parties’ intent that Contractor not be denied the relief herein or liable in any way due to any Subcontractor non-compliance) or Technical Consultants) not previously identified and to the extent it affects the Work shall be treated as a Change under Article 16. |
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i. | Introduction/Generation If Contractor’s performance of the Work includes supplying, using, or generating Hazardous Materials, Contractor shall furnish prior Notice to Owner not less than fourteen (14) Days before bringing such Hazardous Materials to the Plant Site unless waived by Owner in writing. Notice shall include a listing of the name, chemical composition, a Material Safety Data Sheet and the location of use/storage for each Hazardous Material and established quantity of each Hazardous Material to be used or generated at Plant Site. Contractor shall require Technical Consultants and Subcontractors to provide such notice and comply with the provisions of this Section 7.6(c). |
ii. | Hazardous Materials Used by Contractor Contractor shall be fully responsible for any Hazardous Materials brought on the Plant Site by Contractor or any Technical Consultant (“Contractor Hazmats”) and for the proper handling, removal, transportation and disposal of such Contractor Hazmats. Contractor Hazmats shall be stored and used in accordance with the requirements of this Agreement and applicable Law. Contractor shall maintain an accurate record and current inventory of Contractor Hazmats used at the Plant Site, identifying quantities, location of storage, use and final disposition. Contractor shall implement and administer a Hazardous Material handling program for all of its employees and all Technical Consultants. The program shall include: (i) development of guidelines and training with respect to the proper handling, use and disposal of Contractor Hazmats and (ii) the development, implementation and enforcement of procedures for notification of Owner and appropriate Governmental Authorities about, and clean-up of, spills and other emissions of Contractor Hazmats. |
iii. | Clean-up Contractor shall be responsible for all clean-up and mitigation required in connection with any spills, emissions or environmental problems related to Contractor Hazmats. | ||
iv. | Removal Contractor, upon completion of the applicable portion of the Work, shall remove all Contractor Hazmats. not used or consumed in performance of the Work from the Plant Site unless otherwise specified in writing by Owner. |
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a. | Contractor shall design the Plant to comply with the requirements of this Agreement, applicable Laws and Code and Standards. |
b. | Contractor shall prepare all Design Documents including comprehensive drawings and specifications setting forth in detail the requirements for the procurement and construction of the Plant. |
a. | The Parties shall establish a review process and agreed turnaround time of ten (10) working days for review and re-submittal of the Design Documents. Contractor shall timely submit the agreed to Design Documents for approval by the Owner in a format approved by Owner. |
b. | Any review by Owner of other Design Documents shall be for informational purposes only. Owner’s review shall not relieve Contractor from responsibility for: (i) complying with Agreement; (ii) any errors or omissions in Design Documents; (iii) confirming and correlating all quantities, details and dimensions; (iv) selecting fabrication processes and construction techniques; and (v) performing Work in a safe and workmanlike manner. The Owner’s review of Design Documents shall not be deemed to authorize deviations or substitutions from the requirements of this Agreement. |
c. | All drawings shall be prepared in the format and using the agreed to computer aided design software. |
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a. | Contractor shall procure all materials, Equipment, supplies, consumables, transportation, labor, supervision and other necessary services for the completion of the Project either directly for miscellaneous supplies or materials or as Agent for Owner, whether on or off the Plant Site, that are not expressly specified to be furnished by the Owner. |
b. | Contractor shall enter into Subcontracts as Agent for Owner and shall enter into direct contracts with Technical Consultants. Contractor shall be responsible for obtaining from Technical Consultants and Subcontractors procurement, transport, receiving, unloading and safekeeping of all materials and Equipment, construction aids and other things required for the completion of the Project. Contractor shall ensure that operability, maintainability, reliability, quality and compatibility with other systems used in the Plant are significant selection factors in procurement. |
c. | If Owner specifies Equipment or materials by name or as products of certain manufacturers, Contractor shall require of the Technical Consultant or Subcontractor that the proper quality and/or type of Equipment or materials is used. Contractor may utilize substitutions of equivalent Equipment or materials only with prior Owner written approval. |
d. | Supplier Relationship Agreements (SRA) |
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a. | During construction, Contractor shall provide Owner with information which is in its possession related to the selection of third party contractors. If Owner directs a selection of a third party contractor or Subcontractor other than Contractor’s choice, Contractor shall share any information relative to that choice including price differences and adjustments to cost and schedule in accordance with the provisions for change. Owner shall cooperate with Contractor to maintain the Project Schedule. |
b. | Owner may stop Work affected by any regulatory, quality or safety concerns |
a. | Owner is responsible for providing the Plant and removing from the Plant Site any existing materials, machines and systems that are of no value for use in the Plant. Contractor shall immediately notify the Owner if Contractor’s activities identify additional equipment or material that needs to be removed or indicate that some of the existing systems to be removed by Owner should remain at the Plant. |
b. | Owner has considerable experience in the enrichment of uranium and expects to perform certain design activities that are directly related to the centrifuge machines, cascade design and the operation of installed Equipment. Contractor agrees to coordinate its design activities in areas related to the centrifuge machines, cascade design and the operation of installed Equipment with the Owner’s engineering staff. |
c. | Owner shall provide all utilities and lay down areas as required. |
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d. | Owner shall not obstruct Contractor’s Work and shall support the Contractor’s efforts as specified in this Agreement. | ||
e. | Owner shall cooperate with Contractor to provide it timely inputs, reviews, comments and approvals as may be necessary. | ||
f. | Authorized Work Areas— Owner shall obtain site approvals as may be necessary for defined work areas prior to Contractor entering such work areas such that such areas have been evaluated and determined to be available for the work specified to be performed. | ||
g. | Owner is responsible for Configuration Management which includes but is not limited to identification of Boundary Definition Documents (BDD’s); Design Criteria Documents (DCD’s) and System Requirements Documents (SRD’s) and that the existing Structures, Systems and Components (SSC’s) are in compliance with the new design. | ||
h. | Owner is responsible for the license and any other NRC interface including but not limited to license Change Evaluations (CE’s). | ||
i. | Owner is responsible for verifying and certifying that all Work requested by Owner which will be performed by Contractor hereunder is being performed on premises or facilities expressly covered by the GCEP Lease. Owner will provide information and documentation in existence, as reasonably requested by Contractor, to substantiate that Work is being performed on such leased premises or facilities. | ||
j. | Owner is responsible for the DOE leased facilities and any other DOE interface for the lease or for the performance of this scope of work. This includes, but is not limited to, submitting 10 CFR Part 810 Applications and subsequent approvals necessary in order to deal with foreign suppliers / vendors. | ||
k. | Owner is responsible for providing Contractor with current and future | ||
l. | updates to Owner specifications and procedures that affect Contractor’s work. |
a. | Owner reserves the right to approve prospective Subcontractors and Technical Consultants, such approval shall not be unreasonably withheld. Owner may provide Contractor with a list of Approved |
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b. | Contractor shall use its best efforts in requiring that all Subcontracts contain appropriate flow down provisions as required by Owner which provisions may include: (i) warranties to the Owner and/or its designee with rights to assign by Owner to third parties; (ii) providing for a cancellation charge schedule; (iii) meeting the insurance requirements, as appropriate; (iv) providing for confidentiality and the ownership of Design Documents by the Owner; (v) providing for compliance with applicable Laws and procedures; (vi) clauses containing Sections 19.10 and 19.11 herein that are of the cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable type, or any combination of these; (vii) inclusion of Article 31 suitably modified to identify the parties, in all subcontracts, regardless of tier that call for the delivery of information or data, the performance of the services or the performance of experimental, developmental, or research work under this Agreement, other than contracts for the supply of off-the-shelf commercial items; (viii) Section 4.5; and (ix) Section 7.6(c). Owner has the right to review all Subcontracts to confirm inclusion of required flow down provisions. |
c. | Contractor shall require all Subcontractors and Technical Consultants to adhere to Contractor’s project quality plan and project safety requirements as applicable. |
d. | The Contractor shall require that all Subcontractors and Technical Consultants include protection against Conflicts of Interest acceptable to the Owner’s Representative. |
e. | Contractor may contract any portion of the Work to any qualified Technical Consultant or affiliates subject to Owner’s review and approval and such approval shall not be unreasonably withheld. Contractor agrees that it shall be fully responsible to Owner for all Work and for the acts and omissions of its Technical Consultants and affiliated entities and of persons directly or indirectly employed by them, as it is for the acts or omissions of persons directly employed by Contractor. Contractor shall be responsible for the Work performed pursuant to this Agreement. |
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f. | Protection of Owner. For the purpose of protecting Owner’s interest in all materials, Equipment, tools and supplies with respect to which title has passed to Owner or where Owner has made advance or progress payments but which remain in the possession of another party, Contractor shall require Subcontractors and Technical Consultants to take or cause to be taken all steps reasonably necessary under the laws of the appropriate jurisdiction(s) to protect Owner’s title and to protect Owner against claims by other parties with respect thereto. |
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a. | When Contractor believes Mechanical Completion of a System or the Plant (as the case may be) has been achieved, it shall provide the Owner with Turnover Notice which shall provide sufficient information for Owner to determine whether the requirements for Mechanical Completion of such System or the Plant, as set forth in Exhibit E, have been met. With that Turnover Notice, Contractor shall include its proposed initial draft of the Punch List for the System or the Plant, as applicable. | ||
b. | Within ten (10) business days after receipt of Turnover Notice, Owner shall advise Contractor in writing whether it concurs that the conditions of Mechanical Completion of the System or Plant have been satisfied or which conditions have not been satisfied. If Owner does not respond within ten (10) Business Days, the System or the Plant (as the case may be) will be deemed Mechanically Complete. The date of Mechanical Completion for such System or the Plant shall be the date of the Owner’s written confirmation or ten (10) business days after receipt of the Turnover Notice if Owner fails to respond that Contractor has met all the requirements of Mechanical Completion for such System or the Plant. | ||
c. | The achievement of Mechanical Completion of a System or the Plant shall not relieve Contractor of any of its other obligations under this Agreement, including its obligation to achieve the Mechanical Completion of the Plant or any other System. |
a. | Immediately upon achieving Mechanical Completion of a System or the Plant, Contractor shall assist Owner with Turnover of such System or the Plant, as set forth in Exhibit E. Contractor understands and agrees to cooperate with Owner to ensure that preparation for Turnover is included to the greatest extent possible in the activities between Mechanical Completion of the System or |
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the Plant and Turnover. Turnover shall occur within ten (10) business days after the date of Mechanical Completion of a System or the Plant, as applicable, or such other date as agreed to by the Parties. The Parties recognize the necessity of transitioning the Plant to the Owner during Turnover. Towards that end, Contractor agrees to reasonably cooperate with Owner and its representatives. As required in Exhibit A and Exhibit E, Contractor and Owner shall establish Turnover protocols and procedures. | |||
b. | The Parties shall agree on a schedule and protocol to allow Contractor access to complete Work after the Turnover of a System or the Plant. Contractor acknowledges it has taken into consideration the obstacles of completing its Work after a System or the Plant is in commercial operation under control of the Owner. | ||
c. | Pursuant to the protocol established in this Section 12.2 , the Parties shall coordinate the Punch List Work and Warranty Work with the Owner as well as scheduled access for on-going completion Work to allow Contractor to complete any Work remaining to achieve Final Acceptance, as set forth in Exhibit E. | ||
d. | The Parties acknowledge Contractor’s Work performed after Turnover of a System or the Plant may include the requirement for shutdown or reduction in Plant operations. Contractor shall use and comply with Owner’s process with respect to such shut-down. Contractor shall use its best efforts to minimize requests for a shutdown or reduction of the Plant operations and accomplish modification or repair with minimal interference with operation of the remainder of the Plant. |
a. | When Contractor believes it has achieved all requirements for Final Acceptance of the Project, it shall provide the Owner with Final Acceptance Notice, as set forth in Exhibit F. Within ten (10) business days after receipt of Final Acceptance Notice, Owner shall advise Contractor in writing whether it concurs that the requirements of Final Acceptance have been satisfied or which conditions Contractor has failed to satisfy. | ||
b. | The requirements of Final Acceptance of the Plant include achieving Mechanical Completion, completing all Punch List Work, posting warranty period security delivering all documentation including final as-built drawings, operating manuals and spare part listings, system and equipment descriptions, performance and test |
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data, engineering calculations, correcting all identified warranty items, providing all Lien waivers and releases, and assigning any remaining warranties to the Owner and other requirements specified in Exhibit A and Exhibit E. | |||
c. | In the event Owner elects to take the care, control and custody of a System or the Plant prior to Mechanical Completion, Owner shall submit such request in writing. |
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a. | If Owner’s Representative, expressly referring to this Section 16.2, requests in writing for performance of Work in excess of or modifications to Contractor’s Statement of Work, standard work day or work week, or such shorter times as are provided by applicable collective bargaining agreements, or on a holiday customarily observed by Contractor; | ||
b. | The discovery of any subsurface conditions by Contractor after the commencement of the Construction Phase which differ from: (i) those shown in or reasonably inferable from the Agreement (or the documents known), or (ii) those ordinarily encountered herein in the area of the Project Site; | ||
c. | Errors or omissions in or delay in furnishing any Design Criteria or other information to be supplied to Contractor which materially impacts the Project Schedule or the Contractor’s cost; | ||
x. | Xxxxx or suspension of, or interference with Contractor’s Work by Owner or any other person, entity or governmental authority, including without limitation force majeure event; and | ||
e. | Any change in law. |
a. | The Parties agree that any adjustment to the Fixed Fee, as defined in paragraph 2. of Exhibit I, shall occur only in the event the Parties agree to change the Target Cost. The Fixed Fee will be increased or decreased by the amount equal to ***** percent (*****%) of the agreed upon change to Target Cost. | ||
b. | The Parties agree that the Project Target Cost, as defined in paragraph 2. of Exhibit I, shall be adjusted based on the following: |
(i) | in the event the agreed upon Target Cost is adjusted by means of Project Change Notice (PCN) to add or reduce the Scope of Work under this Agreement, or | ||
(ii) | any other Change as described in Section 16.2 above or as elsewhere allowed under this Agreement. |
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a. | In the event either Party seeks a change in the Work, the Party seeking such change shall advise the other Party and the Parties shall then promptly consult concerning the price and Project Schedule impact of implementing the proposed change. | ||
b. | If Owner desires to make a Change, Owner shall submit a Change Order Request to Contractor. Contractor shall promptly review the Change Order Request and notify Owner in writing of the options for implementing the proposed Change and the impact of such options on cost, schedule and performance. As soon as is reasonably practicable, Contractor shall provide Owner with the necessary information related to the proposed Change, including but not limited to, a detailed written estimate of the proposed change, setting forth in detail, a breakdown by labor, Equipment and, if available, a breakdown by trades and work classifications and the effect, if any, of the proposed Change on the Agreement costs, the Key Milestone Dates, the Project Schedule, and warranties. Owner shall review the Contractor’s estimate of the impact of a proposed change with Contractor for the purpose of determining whether to proceed with such change in the Work and, if so, for the purpose of agreeing on the matters set forth therein, including a mutually acceptable adjustment to costs, the Project Schedule, the Completion Date, and warranties, if any, if the proposed Change requires a modification of the Work. Owner may direct Contractor to proceed with such Change prior to the parties’ agreement on the resultant impact which will be mutually agreed upon at a later date, provided that Contractor is paid for all Work performed related to such Change and all associated costs as a result of Owner’s directive. | ||
c. | As soon as Contractor becomes aware of any circumstances which Contractor has reason to believe may necessitate a Change, Contractor shall submit to Owner a Change Order Request which shall include documentation sufficient to enable Owner to determine (i) the factors necessitating the possibility of a Change; (ii) the impact which the Change is likely to have on the cost of Contractor’s performance; (iii) the impact which the Change is likely to have on the Project Schedule; and (iv) such other information which Owner may reasonably request in connection with evaluating such Change. If Owner denies all or a material element of Contractor’s Change Order Request, it shall do so in writing within fifteen (15) Days of Owner’s receipt of the request. Owner shall state the basis of its denial. Contractor may appeal the |
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a. | In addition to any testing, examination or inspection requirements specified in the Agreement, Owner, as part of its inspection and at its own cost, may examine or may require Contractor to examine, inspect and test any materials and workmanship, or check the progress of manufacture of all materials and equipment being supplied. Owner shall cooperate with Contractor so that inspections do not cause any unreasonable delay, interference, or cost increase in the execution of the relevant Work. Any such inspection, examination or testing or waiver of such shall not constitute acceptance or be construed as an approval of such materials and workmanship or in any way affect or reduce Contractor’s obligations to complete the Work in accordance with this Agreement. | ||
b. | If the Owner performs inspections or tests on the premises of Contractor or of a Technical Consultant or Subcontractor, Contractor shall furnish, and shall require each such Technical Consultant or Subcontractor to furnish, all reasonable facilities and assistance for the safe and convenient performance of these inspections or tests. | ||
c. | If any of the Work does not conform to Agreement requirements, Owner may require Contractor to re-perform the Work in conformity with Agreement requirements. | ||
d. | Inspection and testing by Owner shall not relieve Contractor from any responsibility to meet the Agreement requirements. | ||
e. | Inspection and testing by Owner does not constitute acceptance of the Work to be provided under this Agreement. Acceptance of such Work shall be determined by any acceptance procedures set forth elsewhere in this Agreement, or otherwise by Owner’s failure to reject the Work within a reasonable time (but not more than thirty (30) Days) after completion of all Work under this Agreement. Acceptance shall not limit Contractor’s liability under applicable warranties, including the Warranty in Article 21. |
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a. | Direct Productive Labor Hour (“DPLH”) means the hours expended by Contractor that are directly attributable to the performance of Work by Contractor for home office and field staff | ||
b. | Owner shall pay Contractor the reimbursable costs listed in Exhibit G for DPLH performed hereunder. | ||
c. | The DPLH rates include all charges for Contractor’s direct labor, labor benefits and burdens, and general and administrative expenses, plus all Taxes. The DPLH rates shall be varied by virtue of a Contractor employee having performed any of the Work on an overtime basis per Exhibit G. | ||
d. | Direct Costs (other than those items included in the DPLH rates or covered by Fluor’s Rate Schedules ) which costs are actually and reasonably incurred by Contractor for supplies and travel necessary for the performance of the Work (“Other Direct Costs” or “ODCs”) shall be reimbursed by Owner per Exhibit G. | ||
e. | Any reimbursement permitted under this Section 19.1 for ODCs shall be paid by the Owner based upon supporting documentation submitted by Contractor in accordance with this Section 19.1(e) and any reimbursement policies provided to Contractor by the Owner. All travel shall utilize the lowest-cost means available through the Fluor Travel Services Group. In the case of domestic air travel, only coach class fares will be used. The Owner reserves the right to purchase air and rail tickets for Contractor. | ||
f. | Direct materials, as used in Section 19.1(d), are those materials which enter directly into the Work, or which are used or consumed directly in connection with the furnishing of the Work. Owner shall pay Contractor the cost of direct materials, as set forth in Exhibit G. Owner shall pay directly, third party contractor’s costs and expenses as set forth in Exhibit G and Exhibit I. | ||
g. | All other Reimbursable costs incurred in the performance of the Work including without limitation those costs set forth in Exhibit G. | ||
h. | Owner shall pay Contractor a fee (the “Fee”) in accordance with Exhibit I. | ||
i. | Contactor will supply revised Fluor Rate Schedules for use under this Contract when updates are issued from time to time. |
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a. | Funding and Payments Each payment made pursuant to an invoice shall be paid directly to Contractor. Such payment shall be wire-transferred to the following account for the Contractor: |
SAN FRANCISCO, CA
ABA NO.: *****
ACCOUNT NO.: *****
ACCOUNT NAME: FLUOR ENTERPRISES, INC.
REF:
(Invoice Number)
b. | Contractor may designate a different bank or account by Notice to Owner given not less than 30 (thirty) Days prior written Notice from Contractor. |
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a. | Contractor Taxes | ||
Contractor is responsible for the payment of its own Taxes, and except for certain Sales Taxes, Owner shall not pay Contractor additional compensation for Taxes. When reasonably documented, the Owner shall pay to Contractor or Subcontractor(s), as additional compensation, any Sales Taxes which Contractor or Subcontractor(s) are obligated by law to pay on their purchases of materials included in all Work items accepted by the Owner. including any assessments imposed on Contractor related to the State of Ohio not allowing Contractor’s “good faith” acceptance of Owner’s Sales Tax Certification and resulting Ohio sales and use tax liability procedures referenced in Section 19.10 (b) ii. Notwithstanding the foregoing to the contrary, however, Work items and materials do not mean equipment, tools, supplies, fuel, lubricants, cutting and welding gases, energy or other property purchased, leased, or rented, or employment services or other taxable services consumed by Contractor while performing their contractual obligations and are not intended at the time of purchase to be transferred to Owner as Work items, and Sales Taxes thereon shall not be paid by Owner to Contractor as additional compensation. | |||
b. | Sales Tax Accounting and Compliance |
i. | Contractor will work with Owner to identify those Work items that will constitute, upon completion, real property and tangible personal property for Sales Tax purposes. Owner and Contractor will determine the appropriate Sales Tax treatment of such Work items and ensure that accurate accounting is undertaken to support tax compliance. |
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Unless otherwise provided elsewhere in this Agreement, Contractor will purchase materials and services as Agent for Owner. Owner is the taxpayer liable for paying Sales Tax on such material. This does not prohibit Contractor or Subcontractor(s) from seeking reimbursement of Sales Taxes paid on materials incorporated into real property which becomes part of Work items as provided in this Section 19.10. | |||
In cases where title to or possession of Work items pass to the Owner as tangible personal property, Owner is the taxpayer liable for paying any applicable Sales Tax. Any Sales Tax for which Owner is liable to pay shall be paid, to the extent practicable and lawful, by Owner directly to Ohio under a direct pay permit. As such, Contractor agrees that the prices, fees, charges (including expenses for which Contractor seeks reimbursement) or any other consideration to be paid by Owner for Work items that pass to Owner as tangible personal property shall not include any Sales Tax. | |||
ii. | Sales Tax Certification. Owner, in its sole discretion, may certify in accordance with Ohio law that all or a portion of the Work will constitute tangible personal property for Sales Tax purposes. Owner shall notify Contractor in writing of its intent to so certify the Work and shall ensure certificate forms in accordance with applicable laws are completed and forwarded to Contractor. To the extent that Owner certifies the Work will constitute tangible personal property and Contractor or Subcontractor(s) pays Sales Tax on such Work, Sales Tax shall not be paid by Owner to Contractor or Subcontractor(s) as additional compensation unless required to be paid by the applicable Tax authorities. | ||
Owner and Contractor understand that such certification may alter Sales Tax accounting and compliance procedures referenced in the preceding subsection. In the event the Owner elects to so certify the Work, Owner and Contractor shall memorialize in writing their understanding of the new Sales Tax responsibilities arising as a result of the certification. At the request of Contractor, Owner shall use its best efforts to secure written guidance from the Ohio Department of Taxation approving such accounting and compliance procedures. Contractor and Subcontractor(s) shall take any reasonable steps required by Owner to provide cost and accounting information and to otherwise support Owner’s decision to certify the Work. |
c. | Cost Segregation. For purposes of facilitating the administration of the foregoing, Contractor and Subcontractor(s) shall work with Owner to separate charges in a reasonable fashion between real property and tangible personal property. | ||
d. | Minimize Taxes. Contractor and Subcontractor(s) shall take any steps reasonably requested by the Owner to lawfully minimize the Owner’s liability for taxes, including, but not limited to, facilitating discussions with Contractor’s and Subcontractor’s employees, |
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providing access to drawings and other construction related documents and providing documentation to support costs incurred. |
i. | The proceeds of project specific insurance obtained (or required to be maintained) by Owner under this Contract; | ||
ii. | Owner’s indemnity obligations under Section 26.2; |
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iii. | Owner’s indemnity obligations for Proprietary Information and Intellectual Property under Article 31; and | ||
iv. | Any case of fraud, deliberate default, gross negligence or willful misconduct by Owner. |
a. | That the Work performed under this Agreement shall be performed in accordance with Good Engineering Practices, generally accepted applicable Codes and Standards, skill, diligence and competence applicable to engineering and construction and project management practices, all Governmental Approvals, applicable Laws and the Quality Control and Inspection Program; | ||
b. | That the Plant shall be designed in compliance with the SOW and Exhibit A; | ||
c. | That Contractor shall use all reasonable efforts to complete the Work by the Scheduled Mechanical Completion Date and such Work shall be performed in compliance with all Laws and Government Approvals; and | ||
d. | Upon proper payment by Owner to Contractor, that title to all work, materials, supplies and Equipment provided hereunder shall pass to Owner free and clear of all liens, claims, security interests and other encumbrances, and that none of such work, materials, supplies or Equipment shall be acquired by Contractor subject to any agreement under which a security interest or other lien or encumbrance is retained by any Person. |
a. | Contractor warrants that the Work will meet the standards of care set forth in Section 21.1 for the period of one (1) year from Mechanical Completion of the Plant, or in the case of a termination for convenience under Article 27 or a termination for default under Article 28 for a period of one (1) year from the date of such termination, (the “Warranty Period”). All Work performed and all Equipment furnished under this Agreement shall conform in all respects to the requirements of this Agreement and be free from |
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material Defects or Deficiencies. If Contractor is terminated pursuant to Article 27 or 28, the Warranty shall only apply to the portion of the Work completed by Contractor. All Work which does not conform to these standards shall be considered faulty or defective and Contractor agrees to correct such Work and be paid for such Work in accordance with Article 19. Except as provided in this Section, all costs incurred by Contractor in performing such corrective services during the Warranty Period shall be reimbursable under Article 19, but no Fee shall be paid on such corrective services. Contractor shall re-perform any Work resulting from any Defects or Deficiencies its Work resulting from Contractor’s gross negligence or willful conduct, at its sole expense and such costs shall not be reimbursable under Article 19, and no Fee shall be paid on such corrective Work. | |||
b. | Contractor agrees to make reasonable efforts to obtain from the respective manufacturers, Subcontractors and third party contractors of major Equipment, at the Owner’s request, warranties for a period of one (1) year after Mechanical Completion. Such warranties shall obligate the respective manufacturers to refurnish, remove and replace nonconforming or defective Work or Equipment in substantially the same manner and on terms and conditions substantially similar to those contained herein. All manufacturers’ warranties obtained as the agent of Owner shall be for the benefit of Owner. Contractor has no liability or responsibility for manufacturers’, Subcontractors’ or third party contractors’ warranties. | ||
c. | Neither any final certificate nor Final Payment nor any provision in this Agreement shall relieve Contractor of responsibility for Work not conforming to Contractor’s Warranties and, unless specified, Contractor shall, remedy all Work not conforming to Contractor’s Warranties which shall appear during the Warranty Period. If, after expiration of the Warranty Period, any other Work not conforming to Contractor’s Warranties appears, Contractor shall provide all existing diagnostic design and engineering data and reasonable ancillary technical assistance and data support. | ||
d. | Contractor shall, at all times during the Warranty Period maintain sufficient personnel to respond promptly to Owner’s request for specific diagnostic or warranty work. At any reasonable time during the Warranty Period, Contractor shall promptly perform such test, inspection or other diagnostic services as may be reasonably requested by Owner as a reimbursable cost. |
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do so (i) in good faith coordination with Owner’s schedule of operations so as to minimize any adverse effect on the operations of Plant, and (ii) in accordance with the Warranty Procedures set forth in herein. |
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a. | The proceeds of project specific insurance obtained (or required to be maintained) by Contractor in accordance with Article 25; | ||
b. | Contractor’s indemnity obligations under Article 26.1; | ||
c. | Contractor’s indemnity obligations for Proprietary Information and Intellectual Property under Article 31; | ||
d. | Any case of fraud, deliberate default, gross negligence or willful misconduct by Contractor. |
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a. | Except as provided in Section 25.6(c), in the event the agreement of indemnification or nuclear liability insurance described in Section 25.6) expires or is terminated or is not available for a facility constructed in the Construction Phase or in utilizing any Deliverable or design that Contractor creates for Owner prior to Construction under this Agreement, then Owner shall indemnify, defend and hold Contractor harmless from Public Liability in the same amount and to the same extent provided in Section 170 of the Atomic Energy Act of 1954 or the nuclear liability insurance as required by the NRC. | ||
b. | In the event that the nuclear liability protection system contemplated by Section 170 of the AEA, is repealed, changed or terminated, Owner shall maintain in effect during the period of Plant operation, insurance or self-insurance or such other indemnity plan as may be available which will provide Contractor with no less protection than would have been provided in Section 170 of the Atomic Energy Act of 1954 or the nuclear liability insurance as required by the NRC. | ||
c. | Owner represents that in addition to the indemnity agreement described in Section 25.6 for GCEP there are indemnity agreements, entered into by the Owner with DOE under the authority of Section 170 of the AEA for the areas leased by Owner from DOE at PORTS and the Paducah, Kentucky Gaseous Diffusion Plant, and for the K- |
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1600 facility at the East Tennessee Technology Park in Oak Ridge Tennessee. Under such indemnity agreements, DOE has indemnified Owner and other persons indemnified under the AEA including Contracts against claims for Public Liability brought against them arising out of, or in connection with, activities under Owner’s lease of the two above referenced gaseous diffusion plants, or K-1600 facility from DOE. The indemnity applies to covered nuclear incidents which (a) take place at one of the two above referenced gaseous diffusion plants, or the K-1600 facility arising out of, or in connection with, activities under the lease; or (b) occur during uninterrupted transportation within the U.S. of source, special nuclear or byproduct material (all as defined under Section 11 of the AEA), to or from such facilities in connection with or arising out of, activities under the lease. The obligation of the DOE to indemnify is subject to the conditions stated in the indemnity agreement and the AEA. | |||
d. | This Section 25.5 shall survive any termination, expiration or cancellation of this Contract, as well as the completion of work, and shall apply notwithstanding any other provision of this or any other contract between the Parties. |
a. | Authority. This Paragraph is incorporated into this Contract pursuant to the Lease agreement (the “GCEP Lease”) between Owner and the Department of Energy (the “Department”). | ||
(b) | Definitions. The definitions set out in the Atomic Energy Act of 1954, as amended (the “Act”) shall apply to this Paragraph. | ||
(c) | Financial protection. Owner shall obtain and maintain, at its expense, financial protection to cover public liabilty, as described in paragraph (d)(2) below in such amount and of such type as is commercially available at commercially reasonable rates, terms and conditions, provided that in the event the Nuclear Regulatory Commission (NRC) grants a license for a uranium enrichment facility not located on federally-owned property, the amount is no more than the amount required by the NRC for the other facility. Owner shall name Contractor as an additional named insured on such insurance and will provide evidence of such insurance as reasonably requested by Contractor. | ||
(d) | Indemnification. |
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(1) | To the extent that Owner and other persons indemnified are not compensated by any financial protection required by paragraph (c), the Department and Owner will indemnify Contractor and other persons indemnified up to the full amount authorized by Section 170 of the Act against (i) claims for public liability as described in subparagraph (d)(2) of this Paragraph; and (ii) such legal costs of Contractor and other persons indemnified as are approved by Owner. | ||
(2) | The public liability referred to in subparagraph (d)(1) of this Paragraph is public liability as defined in the Act which (i) arises out of or in connection with the activities under the GCEP Lease, including transportation; and (ii) arises out of or results from a nuclear incident or precautionary evacuation, as those terms are defined in the Act. |
(1) | In the event of a nuclear incident, as defined in the Act, arising out of nucler waste activities, as defined in the Act, the Contractor, on behalf of itself and other persons indemnified, agrees to waive any issue or defense as to charitable or governmental immunity. | ||
(2) | In the event of an extraordinary nuclear occurrence which: |
(i) | arises out of, results from or occurs in the course of the construction, possession or operation of a production or utilization facility; or | ||
(ii) | arises out of, results from, or occurs in the course of transportation of source material, by-product material, or special nuclear material to or from a production or utilization facility; or | ||
(iii) | arises out of or results from the possession, operation, or use by the Contractor or a subcontrator of a device utilizing special nuclear material or by-product material, during the course of the GCEP Lease activity; or | ||
(iv) | arises out of , results from, or occurs in the course of nuclear waste activities, the Contractor, on behalf of itself and other persons indemnified, agrees to waive: |
(A) | Any issue or defense as to the conduct of the claimant (including the conduct of persons through whom the claimant derives its cause of action) or the fault of persons indemnified, including, but not limited to: |
1. | Negligence; | ||
2. | Contributory negligence; |
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3. | Assumption of risk; or | ||
4. | Unforeseen intervening causes, whether involving the conduct of a third person or an act of God; |
(B) | Any issue or defense as to charitable or governmental immunity; and | ||
(C) | Any issue or defense based on any statute of limitations, if suit is instituted within (3) three years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof. The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waiver shall be judicially enforceable in accordance with its terms by the claimant against the person indemnified. |
(v) | The term extraordinary nuclear occurrence means an event which the Department has determined to be an extraordinary nuclear occurrence as defined in the Act. A determination of whether or not there has been an extraordinary nuclear occurrence will be made in accordance with the procedures in 10 CFR Part 840. | ||
(vi) | For the purposes of that determination, “offsite” as that tem is used in 10 CFR Part 840 means away from “the contract location” which phrase means any Department facility, installation, or site at which activity under the GCEP Lease is being carried on, and any Owner-owned or — controlled facility, installation or site at which Owner is engaged in the performance of activity under the GCEP Lease. |
(3) | The waivers set forth above: |
(i) | Shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action; | ||
(ii) | Shall be judicially enforceable in accordance with their terms by the claimant against the person indemniified; | ||
(iii) | Shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages; | ||
(iv) | Shall not apply to injury or damage to a claimant or to a claimant’s property which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant; |
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(v) | Shall not apply to injury to a claimant who is emplyeed at the site of and in connection with the activity where the nuclear incident of extraordinary nuclear occurrence takes place, if benefits therefore are either payable or required to be provided under any workmen’s compensation or occupation disease law; | ||
(vi) | Shall not apply to any claim resulting from a nuclear incident occurring outside the United States; | ||
(vii) | Shall be effective only with respect to those obligations set forth in this Section and in insurance policies, contracts or other proof of financial protection; and | ||
(viii) | Shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the protection afforded under (A) the limit of liability provisions under subsection 170e. of the Act, or (B) the terms of the GCEP Lease and the terms of insurance policies, contracts, or other proof of financial protection. |
(f) | Notification and Litigation of Claims. The Contractor shall give immediate written notice to Owner and the Department of any known action or claim filed or made against the Contractor or other person indemnified for public liability as defined in paragraph (d)(2). Except as otherwise directed by Owner or the Department, the Contractor shall furnish promptly to Owner and the Department, copies of all pertinent papers received by the Contractor or filed with respect to such actions or claims. Owner and the Department shall have the right to, and may collaborate with, the Contractor and any other person indemnified in the settlement or defense of any action or claim and shall have the right to (1) require the prior approval of Owner and the Department for the payment of any claim that Owner or Department may be required to indemnify hereunder; and (2) appear through the Attorney General on behalf of the Contrctor or other person indemnified in any action brought upon any claim that the Department may be required to indemnify hereunder, take charge of such action, and settle or defend any such action. If the settlement or defense of any such action or claim is undertaken by the Department, the Contractor or other person indemnified shall furnish all reasonable assistance in effecting a settlement or asserting a defense. | ||
(g) | Continuity of the Department’s Obligations. The obligations of the Department under this Paragraph shall not be affected by any failure on the part of Owner to fulfilll its obligation under this GCEP Lease and shall be unaffected by the death, disability, or termination of the existence of Owner, or by the completion, termination or expiration of the GCEP Lease. | ||
(h) | Effect of other Clauses. The provisions of this Paragraph shall not be limited in any way by, and shall be interpreted without reference to, any other clause of the GCEP Lease provided, however, that this Paragraph shall be subject to any provisions that are |
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later added to the GECP Lease as required by applicable Federal law, including statutes, executive orders and regulations, to be inclded in Nuclear Hazards Indemnity Agreements. | |||
(i) | Inclusion in Contracts. This paragraph shall not be applicable to this Contract if the Contractor is subject to Nuclear Regulatory Commmission (NRC) financial protection requirements udner Section 170b. for the Act or NRC agreements of indemnification under Sections 180c. or k. of the Act for the activities under the Contract. | ||
(j) | Relationship to General Indemnity. To the extent that the Contractor is compensated by any financial protection, or is indemnified pursuant to this Paragraph, or is effectively relieved of public liability by an order or orders limiting same, pursuant to 170e of the Act, the provisions of Article V of the GCEP Lease with respect to indemnification of Owner shall not apply but only to such extent. |
a. | To the extent covered by the scope and limits of the project specific insurance specified to be purchased by Contractor in Article 25, Contractor does hereby assume liability for, and does hereby agree to indemnify, protect, save and hold harmless Owner, Lender, DOE and each of their respective employees, affiliates, successors, assigns, agents, officers and directors, and anyone else acting for or on behalf of any of the foregoing Persons (collectively “Indemnified Persons” and each, an “Indemnified Person”) from and against any and all liabilities (including but not limited to liabilities arising out of the application of the doctrine of strict liability), obligations, losses, damages, royalties, penalties, claims, actions, suits, judgments, costs, expenses and disbursements, whether any of the foregoing be founded or unfounded (including, but not limited to, fines, court costs, legal fees and expenses and costs of investigation), of whatsoever kind and nature arising out of property damage loss that may be imposed on, suffered or incurred by or asserted against any Indemnified Person and in any way relating to or arising out of the negligent acts or omissions of Contractor or its Technical Consultants. Notwithstanding the foregoing, Contractor shall not be responsible for any loss or portion thereof to the extent attributable to the negligence or willful misconduct of Owner or any other Indemnified Person hereunder for which Owner has agreed to provide indemnification under Section 26.2 hereof. |
b. | To the fullest extent permitted by law, Contractor does hereby assume liability for, and does hereby agree to indemnify, protect, save and hold harmless Indemnified Persons from and against any and all liabilities (including but not limited to liabilities arising out of the application of the doctrine of strict liability), obligations, losses, damages, royalties, penalties, claims, actions, suits, judgments, costs, expenses and disbursements, whether any of the foregoing be founded or unfounded (including, but not limited to, fines, court costs, legal fees and expenses and costs of investigation), of whatsoever kind |
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and nature arising out of death or injury of persons or damage to third party property loss that may be imposed on, suffered or incurred by or asserted against any Indemnified Person and in any way relating to or arising out of the negligent acts or omissions of Contractor or its Technical Consultants. Notwithstanding the foregoing, Contractor shall not be responsible for any loss or portion thereof to the extent attributable to the negligence or willful misconduct of Owner or any other Indemnified Person hereunder for which Owner has agreed to provide indemnification under Section 26.2 hereof. |
a. | Contractor shall defend, indemnify and hold harmless Indemnified Persons from and against any and all damages, losses, liabilities, obligations, penalties, claims, judgments, suits, actions, proceedings, costs and/or expenses (including, without limitation, attorneys’ and consultants’ fees, expenses and disbursements) of any kind or nature that may at any time be imposed upon, incurred by or asserted against the Indemnified Person relating to, resulting from or arising out of any Hazardous Material brought onto the Plant Site by Contractor, its Technical Consultants and negligently disposed of or handled by Contractor or its Technical Consultants excluding however, any Hazardous Material present at the Plant Site on the date hereof or brought to the Plant Site after the date hereof by Owner; | ||
b. | Owner shall defend, indemnify and hold harmless Contractor and its Technical Consultants and their employees, agents, representatives, officers and directors (the “Contractor Indemnitees”) from and against any and all damages, losses, liabilities, obligations, penalties, claims, judgments, suits, actions, proceedings, costs and/or expenses (including, without limitation, attorneys’ and consultants’ fees, expenses and |
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disbursements) of any kind or nature that may at any time be imposed upon, incurred by or asserted against the Contractor Indemnitees relating to, resulting from or arising out of any Hazardous Material present at the Plant Site as of the date hereof or thereafter generated or transported to the Plant Site by Owner (or its contractors). | |||
c. | The indemnities set forth above are personal to the Parties named above and may not be transferred or assigned by any or all of them to any other Person, it being understood, however, that any Person that is or becomes a Lender under a Loan Agreement and its respective employees, representatives, agents, officers and directors shall be entitled to all of the benefits of an Indemnified Person. |
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a. | In case of termination of all Work, Contractor shall receive as compensation for the Work performed through the date of termination and demobilization, and as compensation in connection with and as a consequence of such termination an amount determined as follows: |
i. | All amounts due and not previously paid to Contractor for Work completed in accordance with this Agreement prior to such notice of termination, and for Work thereafter completed as specified in such Notice; | ||
ii. | Reasonable costs including without limitation, administrative costs of settling and paying cancellation costs arising out of the termination of Work under any applicable Subcontracts or purchase orders; | ||
iii. | Reasonable costs incurred in demobilization and the deposition of residual material, plant and equipment; and | ||
iv. | A reasonable profit equal to the amount of profit or fee attributable to the percentage of Work completed |
b. | The amount to be paid to Contractor pursuant to this subsection shall be subject to adjustment to the extent the Work contains any Defects or Deficiencies unless Contractor corrects any such Defects or Deficiencies. If payments made to Contractor prior to termination are less than this amount, Owner shall pay the additional amount to Contractor. If payments already made to Contractor prior to termination are more than this amount, Contractor shall pay Owner the difference. |
c. | Contractor shall provide supporting cost data as requested by the Owner and permit Owner’s auditors access to those records within Contractor’s custody or control that verify such cost data in order to facilitate the determination of the appropriate compensation due to Contractor pursuant to this Agreement. |
d. | The amount due Contractor as provided in this Section 27.1 is the sole and exclusive liability of Owner and remedy of Contractor with respect to the payments for the |
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termination of the Work. Owner shall have no further liability to Contractor in the event of any such termination for incidental, consequential or other damages, notwithstanding the nature or amount of any actual damages which Contractor may have sustained. Contractor waives any claims for damages, including loss of anticipated profits for uncompleted Work on account of the termination of the Work pursuant to this Article 27. Both Parties recognize that the provisions specified in Section 37.16 shall survive such termination, provided that Article 21 shall survive only with respect to that portion of the Work which was completed, installed and paid for at the time of such termination and all such warranties shall commence on the effective date of such termination. |
e. | Contractor shall exercise reasonable efforts to provide to Owner the right, at its sole option, to assume and become liable for any reasonable written obligations and commitments that Contractor may have in good faith incurred with any Subcontractor and any reasonable written obligations and commitments that Contractor may have in good faith undertaken with third parties in connection with the Work. If Owner elects to assume any obligation of Contractor as described in this Section then, as a condition precedent to Owner’s compliance with any subsection of this Section, Contractor shall execute all papers and take all other reasonable steps requested by Owner which may be required to vest in Owner all rights, set-offs, benefits and titles necessary to such assumption by Owner of such obligations described in this Section. |
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a. | Contractor becomes insolvent, or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes an assignment for the benefit of creditors; | ||
b. | Contractor commences any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution, or composition of itself or its debts or assets, or adopts an arrangement with creditors, under any bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar law of the United States or any state thereof for the relief of creditors or affecting the rights or remedies of creditors generally (individually a “Debtor Relief Law” and collectively, “Debtor Relief Laws”); | ||
c. | There shall be instituted against Contractor under any Debtor Relief Law any case, proceeding or action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of Contractor, or its debts or assets, which shall not have been terminated, stayed or dismissed within thirty (30) Days after commencement, or a trustee, receiver, custodian or other official is appointed for or to take possession of all or any part of the property of Contractor; or Contractor conceals or removes any part of its property with the intent to hinder, delay or defraud its creditors, or makes or suffers any transfer of its property which may be fraudulent under any Debtor Relief Law; | ||
d. | Contractor assigns or transfers this Agreement or right or interest herein, except as expressly permitted under Section 37; | ||
e. | Contractor fails to make prompt payment for any labor, Equipment or materials pursuant to Contractor’s agreement for such labor equipment or material; | ||
f. | Contractor fails, neglects, refuses or is unable at any time during the course of the performance of the Work, except for any of the reasons described in Article 30, to provide sufficient material, Equipment, services, or labor to perform the Work in accordance with this Agreement; | ||
g. | Any representation or warranty made by Contractor was materially incorrect when made, or any such representation or warranty of Contractor becomes materially incorrect and as a result thereof it reasonably could be expected that Contractor will be unable to observe and perform its material obligations hereunder or under the contracts applicable to such entities; | ||
h. | Contractor defaults in its observance or performance under any material provision of this Agreement or fails to cure a defect it is required to cure under the provisions of this Agreement; | ||
i. | Contractor fails to pay or cause to be paid any amount that has become due and payable by Contractor to Owner pursuant to this Agreement and such failure continues for ten (10) Business Days after written notice from Owner; |
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j. | Contractor disregards any applicable Law, the disregard of which may have a material adverse effect on Owner’s rights under this Agreement, the Work or the Plant and such disregard continues for ten (10) Days after Notice from Owner; or | ||
k. | Contractor abandons the Work (except due to a suspension of the Work permitted pursuant to this Agreement). |
a. | Owner reserves the right to suspend all or a portion of Project upon ten (10) Days Notice in writing to Contractor, and Contractor shall require that similar rights be included in any contracts with its Technical Consultants or with any Subcontractors. Upon receipt of the Notice of suspension and to the extent specified in the Notice, Contractor shall immediately discontinue Work, provide a status report of the Work, place no further orders or Subcontracts on Owner’s behalf as Agent, promptly obtain suspension terms satisfactory to Owner of all purchase orders, Subcontracts, rentals, or any other agreements existing for performance of the Work or assign those agreements to Owner as directed, and take any other reasonable steps to minimize costs associated with such suspension. | ||
b. | A suspension is an Owner Change as long as it is neither attributable to the fault or neglect of Contractor nor necessitated by any loss or damage to the Project for which Contractor is responsible. |
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c. | Upon Notice to Contractor to resume Work, the Contractor shall remobilize and recommence Work as promptly as practicable. Contractor shall submit a recovery plan that includes making good any loss in the Schedule if possible, that has occurred during the suspension. | ||
d. | If suspension has continued for more than one hundred and eighty (180) Days, the Parties shall meet to assess the situation. If, within thirty (30) Days, they are unable to agree on a basis for maintaining the suspension and the conditions for eventual resumption of Work, Owner shall terminate the Agreement for convenience under Article 27. |
a. | As used in this Agreement, a “Force Majeure Event” shall mean any event or circumstance that prevents the affected Party from performing its obligations under this Agreement, to the extent that the event or circumstance is beyond the reasonable control of and not the fault of the affected Party or any person acting on behalf of the affected |
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Party (including contractors and subcontractors at any tier) and such Party has been unable to overcome such event or circumstance by the exercise of due diligence; such event or circumstance shall include, without limitation: acts of God, fire, explosion, embargo, riot, tornado, earthquake, hurricane, Extraordinary Weather Conditions at or away from the Site, epidemic, acts of the public enemy and war, terrorism, bomb threats, or a national, regional or local strike or work stoppage except as provided below, shortages of labor, equipment or materials based on local conditions, any nuclear incident not caused by Contractor, or any unreasonable delay by a Government Authority in taking, or unreasonable failure of a Government Authority to take, requested action necessary in connection with performance of the Work, provided that the taking of the requested action by the Government Authority is legal, customary and within the Government Authority’s jurisdiction, proper and timely application therefore was made, taking into account all facts and circumstances generally known about the time required for such requested action, payment of all necessary fees and charges was made, and diligent pursuit of the application was made. | |||
b. | The Parties acknowledge and agree that Force Majeure Events shall not include the following: strikes or work stoppages (including collective bargaining lockouts) which endure for less than thirty (30) Days, however, after the thirtieth (30th) Day (whether occurring at one time or over several/separate instances) of a strike or work stoppage, it may be considered a Force Majeure Event pursuant to Section 30.1(a); breakage or improper handling of Equipment or materials; conduct of any Subcontractors; reasonably anticipated climatic conditions; or delays in transportation, except to the extent due to an independent Force Majeure Event; delay or denial of any Contractor acquired or required permit. |
a. | The non-performing Party gives the other Party prompt oral notice, and within ten (10) Business Days of occurrence of the Force Majeure Event, Notice describing the particulars of the occurrence, including an estimation of its expected duration and probable impact on the performance of such Party’s obligations hereunder, and continues to furnish timely regular reports with respect thereto during the continuation of the Force Majeure Event; | ||
b. | Within ten (10) Days after giving Notice of the Force Majeure Event, Contractor shall give Owner an estimate of the Force Majeure Event’s expected duration and probable impact on the Work, and shall continue to furnish the Owner with timely regular reports during the continuation of the Force Majeure Event. |
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c. | The suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event and the Party shall continue to perform any unaffected obligation under the Agreement; | ||
d. | No liability of either Party or a default of a Party which arose before the occurrence of the Force Majeure Event causing the suspension of performance shall be excused as a result of the occurrence; | ||
e. | The non-performing Party shall exercise all reasonable commercial efforts to mitigate or limit damages to the other Party as a result of the Force Majeure Event and shall begin activities to correct or cure the event or condition excusing performance; | ||
f. | The non-performing Party shall use its best efforts to continue to perform its obligations hereunder and to correct or cure the event or condition excusing performance; | ||
g. | When the non-performing Party is able to resume performance of its obligations under this Agreement, that Party shall give the other Party written notice to that effect and shall promptly resume performance hereunder; and | ||
h. | In no event shall a Party be excused by a Force Majeure Event from making payments of amounts already due from it to the other Party. |
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a. | Except with respect to the manufacture, installation and use of the centrifuge machines and other Owner supplied Equipment Contractor shall obtain all royalties and license fees payable under or in respect of, and shall defend, indemnify and hold harmless each of the Indemnified Persons from and against any loss arising out of or resulting from or reasonably incurred in contesting any claim or legal action for unauthorized disclosure by Contractor or use of any trade secrets or of any patent, license, copyright or trademark infringement arising from Contractor’s performance or that of its Technical Consultants under this Agreement or asserted against such Indemnified Person that: (i) concerns any Equipment, materials, supplies, or other items provided by Contractor or any Technical Consultants under this Agreement; (ii) is based upon the performance of the Work by Contractor or any Technical Consultants, including the use of any tools, implements or construction by Contractor or any Technical Consultants; or (iii) is based upon the design or construction of any item or unit specified by Contractor under this Agreement or the operation of any item or unit according to directions embodied in Contractor’s final process design, or any revision thereof, prepared or approved by Contractor. | ||
b. | Contractor agrees to use its best efforts to include, as a term or condition of each contract, Subcontract or purchase order employed by it in the performance of the Work, an indemnification provision extending to the Contractor, Owner and their assigns from each supplier under such contract, Subcontract or purchase order. | ||
c. | If claim or legal action for infringement as specified by this Section results in a suit against an Indemnified Person, Contractor shall, at its election and in the absence of a waiver of this indemnity by such Indemnified Person, have sole charge and direction thereof on such Indemnified Person’s behalf so long as Contractor diligently prosecutes said suit. If Contractor has charge of a suit brought against an Indemnified Person by a third party, such Indemnified Person shall render such assistance as Contractor may reasonably require in the defense of such suit except that such Indemnified Person shall have the right to be represented therein by counsel of its own choice and at its own expense. If such Indemnified Person is enjoined from completion of the Plant or part thereof, or from the use, operation or enjoyment of the Plant or any part thereof as a result of such claim or legal action or any litigation based thereon, Contractor shall promptly arrange to have such injunction removed at no cost to any Indemnified Person. In case any device in such claim or action is held to constitute an infringement and its use is enjoined, Contractor shall either secure for each of the Indemnified Persons the right to continue using such device by suspension of the injunction, by procuring for such Indemnified Person a license, or otherwise, or will replace such device with a non-infringing device or modify it so that it becomes non-infringing or remove the said enjoined device and refund the sums paid therefore. |
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a. | With respect to the enrichment machines, Owner shall pay all royalties and license fees payable under or in respect of, and shall defend, indemnify and hold harmless each of the Contractor Indemnified Persons from and against any loss arising out of or resulting from or reasonably incurred in contesting any claim or legal action for unauthorized disclosure by Owner or use of such technology arising from Owner’s performance under this Agreement or asserted against such Contractor Indemnified Person. |
b. | If claim or legal action for infringement with respect to the enrichment machines results in a suit against a Contractor Indemnified Person, Owner shall, at its election and in the absence of a waiver of this indemnity by such Indemnified Person, have sole charge and direction thereof on such Indemnified Person’s behalf so long as Owner diligently prosecutes said suit. If Owner has charge of a suit brought against a Contractor Indemnified Person by a third party, such Contractor Indemnified Person shall render such assistance as Contractor may reasonably require in the defense of such suit except that such Contractor Indemnified Person shall have the right to be represented therein by counsel of its own choice and at its own expense. If such Contractor Indemnified Person is enjoined from completion of the Plant or part thereof, as a result of such claim or legal action or any litigation based thereon, Owner shall promptly arrange to have such injunction removed at no cost to any Contractor Indemnified Person. |
a. | The Owner may choose to finance certain Contract activities and the acquisition of Equipment (including the centrifuge machines) with private or public financing. Contractor acknowledges that certain of the obligations placed upon the Owner by prospective Lenders may only be performed with the cooperation of the Contractor. Contractor agrees to cooperate with Owner in carrying out its obligations under the Lender’s financing documentation. Contractor may be required to execute and deliver to Lender, a consent and agreement and to provide such information, certificates, opinions and other documents as may be reasonably requested by Owner or Lender, and reasonably available and acceptable to Contractor. |
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a. | Organization, Standing and Qualification. Contractor is a company duly organized and validly existing in good standing under the laws of the State of California. Contractor has all necessary power and authority to carry on its business as presently conducted and to enter into and perform its obligations under the Agreement to which it is or is to be a Party. Contractor is duly qualified or licensed to do business in the State of Ohio and in all other jurisdictions wherein the nature of its business and operations or the character of the properties owned or leased by it makes such qualification or licensing necessary and where the failure to be so qualified or licensed would impair its ability to perform its obligations under this Agreement or would result in a material liability to or would have a material adverse effect on its financial condition, business, operations or prospects; | ||
b. | Due Authorization, No Approvals, No Defaults, Etc. Contractor has all necessary power and authority to execute, deliver and perform its obligations under this Agreement, and each of the execution, delivery and performance by Contractor of this Agreement has been duly authorized by all necessary action on the part of Contractor, does not require any approval, except as has been heretofore obtained, of the Board of Directors of Contractor or any consent of or approval from any trustee, lessor or holder of any indebtedness or other obligation of Contractor, except for such as have been duly obtained, and does not contravene or constitute a default under the certificate of incorporation or bylaws of Contractor or, to the best knowledge of Contractor, any provision of applicable Law or any agreement, judgment, injunction, order, decree or other instrument binding upon Contractor, or subject the Plant or any component part thereof or the Job Site or any portion thereof to any lien other than as contemplated or permitted by this Agreement; and Contractor is in compliance with all applicable Laws and Government Approvals (i) which govern its ability to perform its obligations under Agreement, or (ii) the noncompliance with which would have a material adverse effect on its ability to perform its obligations under this Agreement; | ||
c. | Governmental Approvals. Neither the execution and delivery by Contractor of this Agreement, nor the consummation by Contractor of any of the transactions contemplated hereby, requires, with respect to Contractor, the consent or approval of, the giving of notice to, the registration with, the recording or filing of any document with, or the taking of any other action in respect of any Government Authority, except such as are not yet required, and Contractor has no reason to believe that the same will not be readily obtainable in the ordinary course of business upon due application therefor, or which have been duly obtained and are in full force and effect; | ||
d. | Enforceable Contract. Contractor has duly and validly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of Contractor enforceable against it in accordance with its terms, except as (i) such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting creditors’ or lessors’ rights generally |
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and (ii) the application of general equitable principles may limit the availability of certain remedies; | |||
e. | Professional Skills. Contractor is a qualified architectural—engineering organization and has all the required skills and capacity necessary to perform or cause to be performed the Work in a timely and professional manner, utilizing sound engineering principles, project management procedures and supervisory procedures, all in accordance with Good Engineering Practices; | ||
f. | Financial Condition. Contractor is financially solvent, able to pay its debts as they mature, and possessed of sufficient working capital to complete its obligations under this Agreement. Contractor is able to furnish the tools, materials, supplies, Equipment, labor, and design services needed for the Plant, is experienced in and competent to perform the Work, both construction and design, contemplated by this Agreement; | ||
g. | Patents, Licenses and Franchises. Contractor owns or has the right to use all the patents, trademarks, service marks, trade names, copyrights, licenses, franchises, permits or rights with respect to the foregoing (other than with respect to the Centrifuge machines) necessary to perform the Work and to carry on its business as presently conducted and presently planned to be conducted without conflict with the rights of others. In addition, Contractor holds or works under the general supervision of a Person holding any and all consents, licenses, permits and other authorizations, both construction and design, permits or special licenses required by Law to perform the services under this Agreement; and | ||
h. | Legal Proceedings. There is no action, suit or proceeding, at law or in equity, or official investigation before or by any Government Authority, arbitral tribunal or other body pending or, to the best knowledge of Contractor, threatened against or affecting Contractor or any of its properties, rights or assets, which could reasonably be expected to result in a material adverse effect on Contractor’s ability to perform its obligations under this Agreement or on the validity or enforceability of this Agreement. |
a. | Owner Organization, Standing and Qualification. Owner is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware. Owner has all necessary power and authority to carry on its business as presently conducted, to own or hold under lease its properties and to enter into and perform its obligations under the Agreement to which it is or is to be a party. Owner is duly qualified to do business in the State of Ohio; | ||
b. | Owner Due Authorization, No Approvals, No Defaults, Etc. Owner has all necessary power and authority to execute, deliver and perform its obligations under this Agreement, |
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and each of the execution, delivery and performance by Owner of this Agreement has been duly authorized by all necessary action on the part of Owner, and does not contravene, to the best knowledge of Owner, any provision of applicable Law or any agreement, judgment, injunction, order, decree or other instrument binding upon Owner; | |||
c. | Agreement Enforceable Against Owner. Owner has duly and validly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of Owner enforceable against it in accordance with its terms, except as (i) such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or similar laws affecting creditors’ or lessors’ rights generally and (ii) the application of general equitable principles may limit the availability of certain remedies; | ||
d. | Owner Governmental Approvals. Neither the execution and delivery by Owner of this Agreement, nor the consummation by Owner of any of the transactions contemplated hereby, requires, with respect to Owner, the consent or approval of, the giving of notice to, the registration with, the recording or filing of any document with, or the taking of any other action in respect of any Government Authority, except such as are not yet required, and Owner has no reason to believe that the same will not be readily obtainable in the ordinary course of business upon due application therefor, or which have been duly obtained and are in full force and effect; and | ||
e. | Legal Proceedings. There is no action, suit or proceeding, at law or in equity, or official investigation before or by any Government Authority, arbitral tribunal or other body pending or, to the best knowledge of Owner, threatened against or affecting Owner or any of its properties, rights or assets, which could reasonably be expected to result in a material adverse effect on Owner’s ability to perform its obligations under this Agreement or on the validity or enforceability of this Agreement. |
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If to Contractor: | X.X. Xxxxxxxxx | |||
Fluor Enterprises, Inc. | ||||
000 Xxxxx Xxxxxx Xxxxx | ||||
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||
Phone: 000 000 0000 | ||||
Fax: 000 000 0000 | ||||
Copy to: | X. Xxxxxxxx | |||
Fluor Enterprises, Inc. | ||||
000 Xxxxx Xxxxxx Xxxxx |
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Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||||
Phone: 000 000 0000 | ||||
Fax: 000 000 0000 | ||||
If to Owner: | Xxxxx X. Xxxxx | |||
USEC, Inc. | ||||
0000 X.X. Xxxxx 00 Xxxxx | ||||
Xxxx Xxxxxx Xxx 000 | ||||
Xxxxxxx, Xxxx 00000 | ||||
Copy to: | Xxxxxxx Xxxxxx, XX-0000 | |||
USEC, Inc. | ||||
0000 X.X. Xxxxx 00 Xxxxx | ||||
Xxxx Xxxxxx Xxx 000 | ||||
Xxxxxxx, Xxxx 00000 |
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a. | Articles 1 through 37 as such provisions may be amended in accordance with the terms hereof; | ||
b. | Exhibits of this Agreement; and | ||
c. | Drawings and Specifications and other documents. |
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FLUOR ENTERPRISES, INC. | USEC INC. | |||||||||||||
By: | /s/ P. Oostervees | By: | /s/ Xxxxxx X. Xxxxxx | |||||||||||
Name: | P. Oostervees | Name: | Xxxxxx X. Xxxxxx | |||||||||||
Title: | Senior Vice President | Title: | Senior Vice President |
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(PURCHASING AND CONTRACTING)
1. | Owner hereby appoints Fluor as its Agent, and Fluor hereby accepts such appointment to issue contracts and to purchase in Owner’s name and on behalf of Owner for the limited purpose of procuring equipment, materials, supplies and services under the EPCM Contract solely for use on or related to the Project. This limited agency is subject to the terms and conditions of the EPCM Contract and this Limited Agency Agreement. |
2. | Fluor may issue or sign contracts as Agent to Owner, in Owner’s name or, on behalf of Ownerand as part of such agency relationship the following obligations shall be met: |
3. | Such purchases and contracts shall be made by special purchase orders and contract forms that shall show on their face that Fluor is acting as agent for Owner. Fluor shall furnish Owner with a copy of the document at the time the purchase order or contract is issued. All such purchases and contracts shall be carried out in accordance with procedures as set forth in the Project Procedure Manual or in accordance with written purchasing directions provided by Owner’s Representative. |
4. | All purchase orders and contracts issued by Fluor hereunder shall be signed by Fluor as Agent and/or Construction Manager for Owner and shall be identified by a distinctive numbering system approved by Owner. In addition, such orders shall contain instructions to vendors, as set forth in the Project Procedure Manual, with respect to the inclusion or exclusion of sales and/or use taxes in the purchase price. The ownership and title of all items purchased hereunder shall pass directly from the selling party to Owner, and Fluor shall at no time be a party to such transaction, other than as Agent of Owner. |
5. | All purchase orders and contracts issued or entered into by Fluor in accordance with this Limited Agency Agreement shall be deemed to be a contract directly between Owner and the selling party and shall provide that Owner shall have all the rights and obligations under the contract and that Owner’s obligations may be satisfied through the performance of Owner’s contractors including Fluor under its EPCM Contract. |
6. | The agency created hereby shall be limited to the purchase, in accordance with this Limited Agency Agreement, of materials, equipment, supplies and construction services as authorized under the EPCM contract for the Project and to such ancillary activities as may be necessary or appropriate in connection therewith, including but not limited to freight movement, freight consolidation and freight forwarding; expediting of deliveries of purchased items; and receiving and handling of such items when they arrive at the Project. |
7. | The authority granted to Fluor by Owner hereunder is limited exclusively to the activities described in this Limited Agency Agreement. The agency authority established by this Agreement may be terminated by either party at any time upon written notice to the other. |
OWNER | FLUOR ENTERPRISES, INC. | |||||||||||||
BY: | /s/ Xxxxxxx X. Xxxxxx | BY: | /s/ Xxx Xxxxxxxxx | |||||||||||
TITLE: | Director, Procurement & Contracts | TITLE: | V.P. & General Mgr. E&C |
2
2.1. | “Contractor” shall mean Fluor and as defined in the Contract Signature Document. | ||
2.2. | “Owner” shall have the meaning set forth in Article 1 of the Contract. | ||
2.3. | “Work” shall have the meaning set forth in Article 1 of the Contract. | ||
2.4. | “Mechanical Completion” shall have the meaning set forth in Article 1 of the Contract. | ||
2.5. | “Final Acceptance” shall have the meaning set forth in Article 1 of the Contract. | ||
2.6. | “System” and “Sub-System” shall have the meanings set forth in Article 1 of the Contract. | ||
2.7. | “Commissioning” shall have the meaning set forth in Article 1 of the Contract. | ||
2.8. | “Mechanical Completion Documentation Files” shall mean the files to be organized to reflect the acceptance status of each element of work being turned over and indexed to indicate contents. A Turnover Package is a group of Mechanical Completion Documentation Files. Fluor’s CompleteItsm software will be utilized. (See additional details in Section 3.7 of this Exhibit.) | ||
2.9. | “Turnover” shall have the meaning set forth in Article 1 of the Contract. | ||
2.10. | “Turnover Notice(s)” (which establishes the Mechanical Completion date for particular System(s)) are normally issued by the Contractor with a Punch List attached which details outstanding, incomplete work that has been determined, in coordination with Owner, to be of such content that it will not impede planned commissioning/start-up activities. Turnover Notices are issued for each System(s) as they achieve Mechanical Completion and shall be submitted to Owner within three (3) days of the day upon which work was completed. Owner will sign, noting its agreement, or otherwise, to each Turnover Notice and accept responsibility for the care, custody and control of such System(s) or Plant. | ||
2.11. | “Punch List” shall mean_a working document, used jointly by the Contractor and Owner to provide for completeness of the work being prepared for Turnover and Mechanical Completion. This is a comprehensive electronic listing prepared by the Contractor of the remaining work items, including those submitted by Owner, showing a target completion date for each item. At Turnover, Contractor is to |
use the format shown in Appendix 2, Turnover Notice, to this Exhibit for the electronic listing. For ease of coordination and communication, each item of the list is given a number according to the Contractor’s numbering system. | |||
2.12. | “Start-up” shall have the meaning set forth in Article 1 of the Contract. |
3.1. | Contractor’s base scope of work is complete following Owner’s acceptance that Contractor has achieved Mechanical Completion, including acceptance of the completion of the Punch List items. Contractor’s responsibility for Mechanical Completion of each System includes: |
3.1.1. | The general activities set forth in the following article, Article 4.0, PROCEDURE. | ||
3.1.2. | The specific scope of work requirements set forth in the Contract Scope of Services / Scope of Facilities. | ||
3.1.3. | Those items noted as “Mechanical Completion — Fluor Responsibility” in Appendix 1 to this exhibit. |
3.2. | Performance and completion of the Punch List items that will be performed after Mechanical Completion (during the OWNER’s Commissioning period) shall be coordinated with OWNER. | ||
3.3. | The Plant acceptance sequence will be by system/sub-systems or by specific areas (e.g. control building and warehouse when feasible). However, the checkout and Start-up of the plant will be by systems/sub-systems that will, in some cases, take precedence over the area concept. The system/sub-system approach will expedite Turnover, and Commissioning and Start Up by Owner. | ||
3.4. | Contractor will incorporate the system/sub-system approach into the System Turnover schedules developed in accordance with the Contract as the construction nears completion. | ||
3.5. | A Turnover package will be prepared by Contractor for each system/sub-system on the project. These documents will provide the basis for checkout as they provide definition of the Systems and the checks necessary to confirm Mechanical Completion of the System. Contractor will designate a single point of contact to coordinate the turnover activities for a system/sub-system with Owner’s established EPC (Engineering Procurement Construction) team. | ||
3.6. | At the time of issuing the Turnover Notice for a System, Contractor will be required to identify and complete the work on the System Punch List except for those items that Owner agrees are acceptable to be completed after Mechanical Completion. Those items remaining will form the basis of the Punch List. Punch list items will be assigned one of the following categories |
• | Category A — Shall be completed prior to system/sub-system Turnover. |
• | Category B — Shall be completed before Final Acceptance. These are minor items that do not prevent the start of Commissioning activities. These items are also called Exception Items. |
• | Category C — Owner identified items that were not in original scope. If punch item is added to scope, it will change categories to either an A or B item. |
Punch List (See Appendix 2, Turnover Notice, to this Exhibit for format) is prepared by Contractor, after review with Owner at the time of Turnover, when it is ready to issue the Turnover Notice. | |||
3.7. | The Mechanical Completion Documentation Files shall contain records of tests and inspections, and checkouts that were prepared by Contractor and submitted to Owner after they are carried out. | ||
The CompleteItSM Program administers a database that maintains the generated documents by Engineering, Construction and Turnover. The program issues a consistent and simple verification of the certification processes and the transference of the System(s) and Subsystem(s) of the project. | |||
The Mechanical Completion Documentation Files for each System may be separated into sub-systems and shall be contained in a “loose leaf” binder and presented to the Owner at time of issue of the Turnover Notice. The following documentation shall be contained and organized in the loose leaf binders: |
• | Table of Contents | ||
• | System P&IDs (Piping & Instrumentation Diagrams) with System Boundaries marked | ||
• | Electric One-Line Drawings with System Boundaries marked | ||
• | Quality Control and Quality Assurance documentation | ||
• | Construction Testing Data including, as an example only, the following: |
• | Hydro Testing Results | ||
• | Piping System Acceptance Criteria and attested results | ||
• | Mechanical/Electrical Test Data | ||
• | Equipment Alignment Data | ||
• | Instrument Calibration Sheets | ||
• | System/Equipment Flushing and/or Cleaning Guidelines | ||
• | Equipment Maintenance Records | ||
• | As-built Drawings (as required) | ||
• | Vendor Manuals | ||
• | Field Equipment/System Testing Data |
3.8. | Owner is responsible for the performance and completion of Commissioning and Start-Up. |
4.1. | Owner will review the Contractor’s definition of each turnover system/sub-system by use of marked up plot plans, system schematic drawings (P&IDs), mechanical flow diagrams, electrical one line diagrams and similar documents. | ||
4.2. | Contractor shall prepare a checklist of all line numbers and tag items to demonstrate Contractor understands systems/subsystems to be turned over. The checklist shall be submitted for review by Owner in accordance with the System turnover schedules. | ||
4.3. | In general, Mechanical Completion shall be achieved when the System has reached the point where construction and construction testing has been completed and the system is capable of being commissioned, even though Punch List items are remaining to be completed. | ||
4.4. | It is a requisite to the Mechanical Completion of a System that the associated equipment, piping, instrumentation and electrical systems are installed and that the equipment and instrumentation requiring adjustments and tests are completed, including any assistance needed by vendor representatives. For electrical systems, construction related tests, relay settings, and checkouts must be completed prior to energizing by Owner. | ||
4.5. | Mechanical Completion by System will be achieved when the following activities, at a minimum, have been accepted as complete: |
4.5.1. | Preparations have been made to meet the system safety requirements. | ||
4.5.2. | Cold alignment has been completed for the compressors, pumps, machinery and the drivers. The lubrication systems, couplings and guards have been assembled and installed. Rotating equipment has been cold aligned and the final pipe spools and screens have been installed. | ||
4.5.3. | The vessels have been opened, internals installed, cleaned, inspected and closed after inspection. | ||
4.5.4. | The piping has been cleaned, tested, test blinds removed and spring supports, anchors and guides checked for removal of all shipping and erection stops and for correctness of cold settings. | ||
4.5.5. | Where specified piping has been blown dry and properly laid up following hydro testing. |
4.5.6. | The components of the system instrument loops have been inspected, and continuity tested. | ||
4.5.7. | The electrical system has been installed and tested per project specifications, motor rotation has been checked by rotation meter or other testing method, and power system protective devices have been set. | ||
4.5.8. | The painting and insulation that would interfere with commissioning and start-up or for safety reasons has been completed. | ||
4.5.9. | The temporary construction facilities that would interfere with Owner Commissioning and Start-up or for safety reasons have been removed. | ||
4.5.10. | The fire protection systems and equipment have been installed, and tested. | ||
4.5.11. | The nuclear sources for instrument loops and point detection devices have been safely installed, tested and declared safe/ready for service. | ||
4.5.12. | The gas detectors have been installed, and tested. | ||
4.5.13. | Vessels, equipment and lines are color-coded and their identification stamped or tagged per specifications. | ||
4.5.14. | DCS (Distributed Control System), PLC (Programmable Logic Controller) and computer systems are installed and tested per specifications. Contractor will perform point to point IO test. |
4.6. | When Contractor believes that the Work is sufficiently completed that Mechanical Completion of a System has been achieved then it will submit the Turnover Notice. | ||
4.7. | In addition, the Mechanical Completion Documentation Files for that System shall be submitted to Owner. | ||
4.8. | Within ten (10) business days after receipt of a Turnover Notice, Owner will either accept or reject the Turnover Notice as set forth in Section 12.1. Should Owner reject the Turnover Notice they shall so state in writing, with reason, adding any additional deficiencies to the list. Should Owner determine the Punch List prepared by Contractor or additional deficiencies found during the inspection to be too many in number or unacceptable in content, the Turnover Notice will be rejected. Should the Contractor’s Turnover Notice be rejected by Owner, Contractor shall either complete or correct the work, and resubmit the Turnover Notice to Owner with a revised Punch List or dispute such decision in accordance with the dispute resolution provisions of the Contract. | ||
4.9. | Owner, Having agreed to Mechanical Completion of the System, defined by each Turnover Notice, may require that Contractor perform remaining Punch List items only following issuance of work permits to be issued by Owner. At this time, Contractor and Owner will work closely during the final stages of the project to |
permit an orderly and timely completion of the entire work and the completion of the Commissioning and Startup by Owner. |
[Project Name]
[Fluor Contract No.]
[Client Contract No, if needed]
[Recipient’s Title]
[Recipient’s Company Name]
[Recipient’s Address]
[Recipient’s City, State, Zip]
Project Manager
By: | ||||
Name: | ||||
Title: | ||||
STATE OF
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COUNTY OF
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ATTEST: | FLUOR ENTERPRISES, INC. |
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BY: | |||||
TITLE: | |||||
Secretary or Assistant Secretary | |||||
DATE: | |||||