Exhibit 10.20.2
AGREEMENT
BETWEEN
O'BRIEN ENERGY SYSTEMS, INC.
AND
E. I. DU PONT DE NEMOURS AND COMPANY
AMENDMENT 1 TO TEAM PURCHASE CONTRACT
O'Brien Energy Systems, Inc. ("O'Brien") and E. I. du Pont
de Nemours and Company ("Du Pont") entered a steam purchase
contract dated December 8, 1986, pursuant to which O'Brien will
supply steam from its Cogeneration Facility to Du Pont's Xxxxxx,
New Jersey plant. The Parties now desire to amend that Contract.
Therefore, in consideration of the mutual covenants contained
herein, the sufficiency of which is acknowledged by both parties,
Du Pont and O'Brien hereby agree that the Steam Purchase Contract
of December 8, 1986, is amended as follows:
1. Article 2, Section A is revised to read as follows:
O'Brien agrees to construct the Facility with a
capacity adequate to deliver at least 120,000 pounds per
hour of steam to Du Pont on a continuous uninterrupted
basis. To insure this capacity, O'Brien will build two heat
recovery boilers (including supplemental firing capability)
associated with the gas turbines and a backup boiler, each
of which will be capable of producing at least 120,000
pounds per hour. The Facility will be capable of using
natural gas or fuel oil. Space will be provided in the
facility design to accommodate all equipment necessary to
bur #6, 0.3% sulfur fuel oil in the backup boiler. The
backup boiler shall be capable of burning oil whose sulfur
content is low enough to satisfy air quality permit
requirements, and O'Brien shall provide a storage tank
capable of holding at least a fourteen day inventory of the
fuel oil. If air quality emission requirements applicable
to the Facility are changed to allow the use of #6, 0.3%
sulfur fuel oil, O'Brien will obtain a permit to use such
fuel. O'Brien will obtain approval for the installation of
such equipment from the New Jersey Department of
Environmental Protection (NJDEP), and when obtained, O'Brien
will provide and install the equipment and modifications
required to burn #6 oil. As part of the construction
process, O'Brien will dismantle and remove, at its cost, Du
Pont buildings numbered 145, 826, 1939, and such
foundations, supports, underground lines and any other items
which the parties agree are required to be removed in order
to build the Facility. The Facility will be located on land
leased to O'Brien consisting of approximately four (4) acres
pursuant to the terms and description set out in the Ground
Lease for the nominal rent of $10.00 per annum for a term
expiring 120 days after the expiration of this Agreement.
The Facility Site is described more fully in the Ground
Lease.
2. Article 2, Section C is amended to read as follows:
O'Brien will obtain all permits and variances necessary for
the lawful construction and operation of the Facility and
will apply to the Federal Energy Regulatory Commission
("FERC") for a certificate stating that the Facility is a
qualifying Facility under the Public Utilities Regulatory
Policies Act of 1978, as amended ("PURPA"). If O'Brien is
unable to obtain all necessary permits or the Facility has
not been certified as a Qualifying Facility by NERC by June
1, 1988, either party may, by written notice to the other
party, terminate this Agreement without liability to the
other.
3. A new Section is added to Article 2, and shall be designated
Section F. It shall read as follows:
a) SAFETY AND HEALTH: O'Brien acknowledges that
safety, health and security are priority concerns of Du Pont
and agrees that as a condition for Du Pont's allowing
O'Brien employees, contractors, employees or subcontractors
of such contractors or anyone else providing services for
O'Brien or its contractors to come upon Du Pont's premises
at any time, O'Brien shall comply with and contractually
obligate its contractors and others acting on its behalf to
comply with (1) all federal, state and local occupational
safety and health laws and regulations and (2) such other
special safety provisions as may be provided by Du Pont in
writing to O'Brien from time to time, including those set
forth in Du Pont's Safety Information and Instructions for
Contractors, the most recent copy of which has been
furnished to O'Brien.
b) O'Brien shall designate one person to be
responsible for carrying out its obligations under this
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Section. O'Brien shall promptly report to Du Pont cases of
death, occupational disease and OSHA-recordable injury
caused by work on the job. O'Brien shall also arrange for
first-aid treatment of job-incurred injuries in accordance
with requirements of its insurer. O'Brien shall defend,
indemnify and hold Du Pont harmless with respect to any
claim or lawsuit as provided in Article 16 of this
Agreement.
c) If Du Pont notifies O'Brien of any noncompliance
with the provisions of this Section and the action to be
taken, O'Brien shall make all reasonable efforts to correct
or have corrected the existing conditions immediately, if
directed by Du Pont to do so, or, if not so directed, no
later than forty-eight (48) hours after receipt of such
notice. If O'Brien fails to do so, Du Pont may forthwith
refuse entry on Du Pont premises to O'Brien, its employees,
contractors or anyone else acting on behalf of O'Brien or
its contractors until such time as such noncompliance has
been remedied.
d) Although O'Brien must arrange for first-aid
treatment of its employees, its contractors or anyone else
acting on behalf of O'Brien or its contractors while on Du
Pont's premises, Du Pont may provide first-aid to such
persons, in consideration for which O'Brien, its successors
and assigns assume full and complete responsibility and
liability for all injuries and damagaes to any of its
employees arising out of or allegedly attributable to such
first-aid treatment. O'Brien, further, shall indemnify and
save harmless Du Pont, its employees, contractors,
successors, and assigns from any and all actions, rights of
action, suits, debts, claims, damages, expenses and demands
with respect to or any account of any injury to or the death
of any employee of O'Brien or its Contractors attributable
to or in connection with the performance by Du Pont of such
first-aid treatment, whether or not such injury or death is
caused by or alleged to have been caused by the negligence
of Du Pont. Nothing contained herein shall be construed as
imposing any duty upon Du Pont to provide first-aid
treatment to O'Brien's employees or those of its Contractors
or of anyone else acting on behalf of O'Brien or its
contractors while on Du Pont's premises.
e) O'Brien shall advise its employees, contractors or
anyone acting on behalf of O'Brien or its contractors that
(I) it is the policy of the Du Pont Company to prohibit use,
possession, sale, and distribution of alcohol, drugs, or
other controlled substances on
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Du Pont's premises, and to prohibit the presence of an
individual with such substances in the body for nonmedical
reasons in the workplace; (ii) entry onto Du Pont property
constitutes consent to an inspection of O'Brien's employees'
or its contractors' employees' person, vehicle, and
personal effects when entering, while on, or upon leaving Du
Pont property; and 9iii) any employee of O'Brien or its
contractors who is found in violation of the policy or who
refuses to permit inspection may be removed and barred from
Du Pont property at the direction of Du Pont.
f) HAZARDS: As there may be hazards involved in
providing the services which O'Brien and its contractors'
and their employees undertake on Du Pont's premises, O'Brien
shall perform and shall cause its contractors or anyone else
providing services for O'Brien or its contractors to perform
all services in a careful, workmanlike manner and, in the
event that the services to be provided involve processing,
handling, transporting, or disposing hazardous materials or
products, shall take all precautions necessary to avoid an
unhealthy or unsafe work environment, injuries to persons,
or damage to property or the environment. O'Brien shall
submit and shall cause its contractor to submit Material
Safety Data Sheets complying with the Federal Hazard
Communication Standard and obtain Du Pont's approval before
introducing any hazardous materials onto Du Pont's property.
Such materials shall be properly labeled and strictly
controlled by Contractor as to use and disposal. Storage
and use of and personal protection for handling such
materials must comply with the instructions in the Material
Safety Data Sheets.
g) EMPLOYEES: While on Du Pont's property, O'Brien's
employees, its Contractors and their employees and anyone
else providing services for O'Brien or its contractors (I)
shall confine themselves to areas designated by Du Pont and
(ii) will be subject to Du Pont's badge and pass
requirements in effect at the site of the work.
4. The sentence in Article 4 (A) beginning "O'Brien represents
that ." is modified to read as follows:
O'Brien represents that the Initial Delivery Date shall be
on or before April 30, 1990, provided that the Initial
Delivery Date shall be extended by the occurrence and
continuation of an event of Force Majeure as defined in
Article 7 below.
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5. As amended, the Steam Purchase Contract of December 8, 1986,
remains in full force and effect.
O'Brien Energy Systems, Inc.
By /s/ Xxxxxxx X. Xxxxxx
E. I. du Pont de Nemours and Company
By /s/ X.X. Xxxxxx
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