AMENDMENT TO EPC AGREEMENT (W. H. Sammis Plant AQC Systems)

THIS EXHIBIT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. THE CONFIDENTIAL INFORMATION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. IN PLACE OF SUCH OMITTED CONFIDENTIAL INFORMATION, "******" HAS BEEN INSERTED.

AMENDMENT TO EPC AGREEMENT

(X. X. Xxxxxx Plant AQC Systems)

THIS AMENDMENT (“Amendment”) is entered into as of September __, 2007, by and between FirstEnergy Generation Corp. (“FirstEnergy”), and Xxxxxxx Power Corporation (“Contractor”).  FirstEnergy and Contractor are sometimes referred to herein individually as a “Party” or collectively as the “Parties.”

R E C I T A L S:

A.       FirstEnergy and Contractor entered into General Terms and Conditions for Engineering, Procurement, and Construction of Air Quality Control (AQC) Systems, dated August 26, 2005 (the “EPC Agreement”), by which FirstEnergy has retained Contractor to engineer, procure, and construct air quality control systems for the reduction of sulfur dioxide emissions at FirstEnergy’s X. X. Xxxxxx Plant.

B.      During the Development Phase of each Subproject, the Parties have mutually determined the Target Construction Cost, Work Scope, Guaranteed Final Completion Date, Project Schedule, and certain other issues with respect to such Subproject.  FirstEnergy has issued to Contractor a Notice to Proceed with full construction of the Subprojects, effective on the same date as this Amendment.

C.      In connection with the determinations made during the Development Phase and issuance of the Notice to Proceed, the Parties desire to amend the terms of the EPC Agreement as described below.  The EPC Agreement, as amended hereby, is referred to herein as the “Agreement.”

FOR GOOD AND VALUABLE CONSIDERATION, and intending to be legally bound, the Parties agree to amend the EPC Agreement as follows:

1.     Priority of Interpretation.  Section 1.3 of the EPC Agreement shall be deleted in its entirety, and the following inserted in its place:

 1.3           Priority.  The documents making up this Agreement are intended to be complementary and mutually explanatory of one another.  For the purposes of interpretation, the priority of the documents shall be in accordance with the following sequence:

  (A)           Purchase Order #45161617;

  (B)           these General Terms and Conditions;

  (C)           the Scope Book

  (D)           FirstEnergy’s Requirements;

  (E)           the Drawings and Specifications;

  (F)           any other documents forming a part of this Agreement.

As to any FirstEnergy’s Requirements issued after the date of this Amendment, the Parties acknowledge and agree (i) any such items shall only be issued by the individuals identified in the Parties’ Notice of Direction on Designated Representatives and Official Communications (TCM-GAM-00240, or any future amendment thereof) and further (ii) such items may qualify as an Owner-directed Change, to be evaluated for a Change Order in accordance with Section 8.1.

The latest dated amendment or Change Order shall take precedence over that part of the foregoing documents that it supersedes.  Either Party, upon becoming aware of any such conflict or variance, shall promptly notify the other Party in writing.

2. Subsurface Conditions.  The following shall be added as a new Section 8.2(A)(7) of the EPC Agreement:

  (7)           discovery at the Site of unknown: (A) subsurface natural conditions of an unusual nature, differing materially from those ordinarily encountered or generally recognized as inherent in work similar to the Project and from those subsurface natural conditions established by First Energy Reliable Information or the geotechnical survey reports included or referenced in the Scope Book; or (B) subsurface man-made conditions differing from those man-made conditions established by First Energy Information or the subsurface man-made conditions reports included or referenced in the Scope Book, provided Contractor has used Good Practices in investigating the Site; which materially affects Contractor’s direct cost to perform the Work under this Agreement or delays the time of performance of such Work.

3. Force Majeure.  The following shall be added as a new Section 9.1(C) of the EPC Agreement:

  9.1(C)     Force Majeure Granted under NSR Consent Decree for Labor Unavailability.  Notwithstanding the foregoing, if FirstEnergy is granted, by stipulation of the parties to the NSR Consent Decree or by final unappealable judgment of a court pursuant to the dispute resolution procedures of the NSR Consent Decree, an extension of deadlines for performance of FirstEnergy’s compliance requirements under the NSR Consent Decree, as a result of a force majeure event arising out of unavailability of labor, then Contractor shall be entitled to seek a similar extension of the Project Schedule (including the Guaranteed Final Completion Date) as a result of such labor unavailability circumstances as a Force Majeure Event under this Agreement.

                  If FirstEnergy elects to seek a claim for force majeure relief under the NSR Consent Decree, then Contractor agrees to provide reasonable assistance in presenting such claim.  FirstEnergy retains sole discretion over whether and how to seek force majeure relief under the NSR Consent Decree.

4. FE Vendors/Subcontractors.  The supply contracts described on Appendix A hereto  (entitled “FE Vendors”) will be contracted directly by FirstEnergy as FE Vendors.    If additional required supply scope is identified after the date hereof, FirstEnergy and Contractor will determine whether such suppliers will be FE Vendors or Subcontractors on a case-by-case basis in a manner consistent with the EPC Agreement and shall update Appendix A.

5. Automatic Assignment of Certain Subcontracts; Chimney Subcontract Default.

                          (A)           In addition to FirstEnergy’s right to request assignment of any Subcontract under Section 2.3(C) of the EPC Agreement, FirstEnergy hereby grants to Contractor the right to request assignment to FirstEnergy or its designee of the Subcontracts listed below (including all payment obligations) in the event of any termination or cancellation of the EPC Agreement.  FirstEnergy hereby prospectively accepts, and shall cause its designee(s) to accept, all such assignments.

25186-000-HC1-CP00-00001   (Piling)

25186-000-HC1-DB51-00001  (Chimney)

25186-000-POA-SS01-00001   (Structural Steel)

25186-000-POA-MD00-00001 (Duct - Dynasteel)

25186-000-POB-MD00-00001 (Duct - PSP)

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                         (B)          To the extent that the Subcontractor defaults under Subcontract 25186-000-HC1-DB51-00001 (Chimney) (the “Chimney Subcontract”), FirstEnergy agrees that all amounts expended or incurred by Contractor (including any un-recovered backcharges or other un-recovered costs) in excess of the amount allocated to the Chimney Subcontract in the TCC , to address such Subcontractor default that would have been recoverable by Contractor under or pursuant to a payment and performance bond had such a bond been secured for the Chimney Subcontract, shall be the subject of a Change Order between the Parties that will increase the Target Construction Cost by the amounts so expended; provided Contractor shall pursue recovery of such amounts as may be recoverable from the associated Subcontractor; and further provided, the Change Order described above shall be only in the amount that is not recoverable from the Subcontractor or amounts recovered by First Energy that are not applied to reduce the Final Construction Cost.  FirstEnergy shall be subrogated to the rights of Contractor under the Chimney Subcontract to recover from the Subcontractor the amount of such excess cost.

6. Delineation of Subprojects.  The Project will be made up of three Subprojects:

                          (A)           Subproject #1 is comprised of Scrubber C (which serves the gas flow from Generating Units 1-4), including the ID booster fans serving Scrubber C.

                         (B)           Subproject #2 is comprised of either Scrubber A or Scrubber B, whichever is the first to achieve Final Completion (which serves an amount of gas flow equivalent to ½ of the gas flow from Generating Units 5, 6, and 7), excluding the ID booster fans serving Scrubber A and Scrubber B (provided however, notwithstanding the foregoing definition, sufficient ID fan capacity must be available to support Performance Testing of Subproject #2).

                         (C)          Subproject #3 is comprised of either Scrubber A or Scrubber B, whichever is the last to achieve Final Completion (which serves an amount of gas flow equivalent to ½ of the gas flow from Generating Units 5, 6, and 7), including the ID booster fans serving Scrubbers A and B, and all common facilities and equipment not included within Scrubbers A, B, and C.

For purposes of this Section, a “Scrubber” shall include the WFGD absorber tower, ID booster fans (except as noted above in the case of Subproject #2), ductwork, and other equipment and systems dedicated to that absorber tower.  A schematic of each Subproject is attached hereto as Appendix B.

7. Guaranteed Final Completion Date.  The Guaranteed Final Completion Date for Subproject #1 shall be September 1, 2010.  The Guaranteed Final Completion Date for Subproject #2 shall be October 31, 2010.  The Guaranteed Final Completion Date for Subproject #3 shall be November 15, 2010.

8. Target Construction Cost; Final Construction Cost; Fee.

                           (A)         The sixth paragraph of Exhibit 5.1 of the EPC Agreement shall be deleted in its entirety, and the following inserted in its place:

The "Target Construction Cost" of the Subprojects will include the Professional Construction Labor (and associated G&A and Engineering Technology Charge), Purchased Equipment and Materials, Fabricated Items, Freight, Craft Labor, Consumables, Major Equipment & Tool Rental, Temporary Facilities, Subcontractors, premiums for bonds and insurances as provided in the EPC Agreement, and taxes on Contractor’s construction equipment and Consumables.  The “Target Construction Cost” excludes Professional Engineering and Graphics labor and Other Professional labor (with the associated Engineering Technology Charge and G&A), travel and living expenses, Engineering Subcontracts, additional insurances or bonds other than those provided in the EPC Agreement, all FE Vendor costs (other than B&W costs) and all other taxes.  The Target Construction Cost shall be exclusive of any Fee.  The “Final Construction Cost” of the Subprojects shall be the aggregate amount of costs associated with the Target Construction Cost that, with respect to each Subproject, is actually incurred prior to Final Completion of that Subproject.

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CONFIDENTIAL TREATMENT REQUESTED

                          (B)          The aggregate Target Construction Cost for Subprojects #1, #2, and #3 is provided in Appendix C-1.

                          (C)          The Target Construction Cost, the Final Construction Cost and the ultimate value of the earned Target Construction Cost Fee shall be administered and determined on an aggregate basis among all three Subprojects.  Therefore, any adjustments of the Target Construction Cost Fee as described in Exhibits 5.1 through 5.1-3 to the EPC Agreement shall be determined and made on an aggregate basis for Subprojects #1, #2, and #3, by comparing the aggregate Final Construction Cost for all three Subprojects to the aggregate Target Construction Cost for all three Subprojects.  All other Fees (the Engineering/Graphics & Other Professional & Specialists Labor Cost Fee and the Professional Construction (Field Non Manual Labor Fee)) shall also be administered and determined on an aggregate basis among all three Subprojects as described above.

                          (D)        For purposes of the liability cap described in Section 18.4 of the EPC Agreement, (i) the earned Fee associated with Subproject #1 shall be equal to [******%] of the  actual final value of the total earned Fees on the Project;  (ii) the earned Fee associated Subproject #2 shall be equal to [******%] of the actual final value of the total earned Fees on the Project; and (iii) the earned Fee associated with Subproject #3 shall be equal to [******%] of the actual final value of the total earned Fees on the Project.  The parties acknowledge and agree that the actual final value of the earned Fees associated with  the Project will be determined through a jointly conducted reconciliation of all applicable adjustments to the aggregate Fees that will be completed as promptly as practicable, and in no case later than ninety (90) Days, after all Subprojects have achieved Final Completion.  Upon completion of the foregoing reconciliation, the actual final value of the total earned Fees shall be allocated among Subprojects #1, #2, and #3 in accordance with the percentages provided in the first sentence hereof.  To the extent that the foregoing reconciliation results in any amount previously paid by Contractor on any Subproject being an overpayment in light of the value of the total earned Fee applicable to such Subproject, FirstEnergy shall reimburse to Contractor any such overpaid amounts as part of the next billing cycle.  Similarly, to the extent that the foregoing reconciliation results in any amount previously paid by Contractor on any Subproject being an underpayment in light of the value of the total earned Fee applicable to such Subproject, Contractor shall pay to FirstEnergy any such underpaid amounts as part of the next billing cycle.  A work sheet attached hereto as Appendix C-2 provides illustrative examples of how the earned Fee will be determined and apportioned in accordance with the process described above.

  9. Performance Tests.  Testing for Performance Guarantees shall be performed independently for Subprojects #1, #2, and #3.  Testing for the Reliability Standard shall be performed independently for Subprojects #1 and #3 and there shall be no Reliability Standard required to be tested or demonstrated with respect to Subproject #2.  The common systems will be tested in conjunction with the Reliability Test performed on Subproject #3, and must not cause the output of any Xxxxxx Generating Unit to be restricted during the duration of the test.

               10. Schedule Liquidated Damages;  Final Document Delivery.  Exhibit 6.5 of the EPC Agreement shall be deleted in its entirety and replaced with the new form of Exhibit 6.5 attached hereto as Appendix D.

11. TCC Deadband.  Exhibit 5.1-3 of the EPC Agreement shall be deleted in its entirety and replaced with the new form of Exhibit 5.1-3 attached hereto as Appendix E.  The [******%] deadband below the Target Construction Cost shall be eliminated.

12. Additional Incentive.  FirstEnergy will pay to Contractor an “Additional Incentive Fee” in the amount of [$******] for each [$******] by which the final Overall Project Cost is below a fixed target amount of [$******] (the “Additional Incentive Target”).  The Additional Incentive Target is not subject to adjustment up or down for any reason whatsoever.  The “Overall Project Cost” is intended to be the total of all costs actually incurred by FirstEnergy in connection with the Project, and shall be equal to the total aggregate amount of the Final Construction Cost, plus the amount payable to Contractor for Engineering & Graphics Labor, Other Professional Labor, the Engineering Technology Charge associated with Engineering & Graphics Labor and Other Professional Labor, Engineering Subcontracts, Travel & Living Expenses, and G&A (each of the foregoing as described in Exhibit 5.1 of the EPC Agreement), plus all amounts payable to FE Vendors identified in Appendix A.

In addition, if Contractor loses its entitlement to earn any portion of the Target Construction Cost Fee due to an overrun of the Target Construction Cost, then the amount of the Additional Deadband Adjustment will be subtracted from the Final Construction Cost for purposes of determining adjustment of the Target Construction Cost Fee, as described in Exhibit 5.1-3.  The “Additional Deadband Adjustment” shall be the amount equal to the difference of: (a) [$******] minus (b) the Overall Project Cost less the Final Construction Cost.

4

CONFIDENTIAL TREATMENT REQUESTED

The actual final total value of the Overall Project Cost, the Additional Incentive Fee, and the Additional Deadband Adjustment shall be calculated as part of the reconciliation provided in Section 8(D) of this Amendment.  The Additional Incentive Fee shall be payable with the immediately following billing cycle.

13.          Schedules.  The Project Schedule and Critical Path Schedule referenced in Section 6.4 of the EPC Agreement, as recognized by the Parties as of the date of this Amendment,  is attached hereto as Appendix F.

14.         Additional Contract Clarifications.  For the avoidance of doubt, the Parties acknowledge that:

(A) Contractor is not liable for Performance Liquidated Damages or Schedule Liquidated Damages attributable to performance deficiencies or delays to the extent caused by a Subcontractor   (but is liable for Liquidated Damages to the extent such are assessable due to any Professional Services, and construction labor services provided as part of the Work except where such is provided by a Subcontractor supplying Materials or equipment).

(B) The cost of products and services supplied by Subcontractors are included in the Target Construction Cost, and the [******]% Target Construction Cost Fee applies to these items.  The cost of products and services supplied by Xxxxxxx & Xxxxxx as OEM under the Agreement for Flue Gas Desulfurization Systems dated August 25, 2006 (the “FGD Agreement”), are included in the Target Construction Cost (provided, if any change orders  to the FGD Agreement adjust the costs thereunder, such price adjustments shall be made (up or down) to the Target Construction Cost and the Parties shall memorialize a revision to the Target Construction Cost and the related [******%] Target Construction Cost Fee, which applies to this item).  The cost of products and services supplied by FE Vendors (other than costs paid to Xxxxxxx & Xxxxxx under the FGD Agreement) are not included in the Target Construction Cost, and the [******%] Target Construction Cost Fee does not apply to these items.  Notwithstanding the foregoing, costs paid to Xxxxxxx & Xxxxxx for the SO₃ control system are not included in the Target Construction Cost, and the [******%] Target Construction Cost Fee does not apply to this item.

(C)      FirstEnergy, Contractor, the FE Vendors, and the Subcontractors shall each have separate and independent obligations to achieve the key milestones assigned to any such Persons in accordance with the schedule and by the dates provided in the Project Schedule and the Critical Path Schedule for achievement thereof.  In addition, the Parties acknowledge and agree that the failure of B&W to achieve the milestones assigned to B&W described in Appendix G by the date set forth therein shall be considered a delay within the meaning of Section 9.2 of the EPC Agreement.

(D) For purposes of clarity, the Parties confirm that, as provided in Exhibit 5.1-3 and notwithstanding the description of the Professional Cost Fee on page 7 of Exhibit 5.1 of the EPC Agreement, Contractor’s [******%] Target Construction Cost Fee shall be the sole component of Contractor’s Fee that will be adjusted for variance from the Target Construction Cost.

(E) In allocating float as described in Section 6.4(A)(3) of the EPC Agreement, in the event that float associated with an activity is used and such usage delays the critical path of the Critical Path Schedule and materially affects Contractor’s ability to meet the Critical Path Schedule, the Parties will review in good faith the impacts resulting from such usage of float to ensure that each Party is treated fairly in consideration of the issue(s) that caused float to be used and in consideration of any efforts taken to mitigate the impacts.

15.        Work Scope; Scope Book.  Attachment A of the EPC Agreement shall be deleted in its entirety and replaced with the new form of Attachment A attached hereto as Appendix H.  The Scope Book referenced in Section 1 hereof is Document Number 25186-000-G80-GGG-00001-002, which document shall be updated as provided in Appendix I hereto.

16.         Design Coal.  Exhibit 7.2-1 of the EPC Agreement shall be deleted in its entirety; and the Parties agree that the Design Fuel range for purposes of the Performance Guarantees shall be as provided in the Design Fuel Specifications set forth in the Scope Book.

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17.           Miscellaneous.

(A) Definitions;  Agreement in Full Force and Effect.  Capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to such terms in the EPC Agreement.  Except as otherwise expressly modified hereby, the EPC Agreement remains in full force and effect, and the Parties hereby restate each and every term, condition, and agreement of the Parties as contained in the EPC Agreement as if fully written out herein.  The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any party under the EPC Agreement, except as specifically set forth herein.

(B) Governing Law.  This Amendment shall be governed by and construed in accordance with the laws of the State of Ohio.

(C) Interpretation. The section and other headings in this Amendment are inserted solely as a matter of convenience and for reference, and shall be given no effect in the construction or interpretation of this Amendment.  Upon the effectiveness of this Amendment, each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” “hereby” or words of like import shall mean and be a reference to the Agreement as amended hereby, and each reference to the Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Agreement shall mean and be a reference to the Agreement as amended hereby.  When used herein, the words “include” and “including” shall be construed as “include, without limitation” and “including, without limitation.”  This Amendment has been freely negotiated by all Parties and in the event there is any controversy, dispute, or claim involving the meaning, interpretation, validity, or enforceability of this Amendment or any of its terms or conditions, there shall be no inference, presumption, or conclusion drawn against a Party by virtue of such Party having drafted this Amendment or any portion hereof.

(D) Execution and Counterparts.  This Amendment may be executed in multiple counterparts, which taken together shall constitute an original without the necessity of all parties signing the same page or the same documents, and may be executed by signatures to electronically or telephonically transmitted counterparts in lieu of original printed or photocopied documents.  Signatures transmitted by facsimile shall be considered original signatures.

IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first written above.

FirstEnergy Generation Corp.

By:

Xxxxxxx X. Xxxxx, Executive Vice

President and Chief Operating Officer

Xxxxxxx Power Corporation

By:

Xxxxxx X. Xxxxxx, Xx.

Principal Vice President

6

      

        Amendment to EPC Agreement      

        Appendix A      

    

Appendix A

EQUIPMENT AND MATERIALS PROVIDED BY FE VENDORS

Description

CIVIL / STRUCTURAL / ARCHITECTURAL

CIVIL / STRUCTURAL

Inspection of Deck over Route 7

MACHINERY

ROTATING EQUIPMENT

Booster Fans / ID Fans

ID Fan Centrifugal - Mods to Existing Fans (Rotor Replacement)

General Purpose Pumps (Water)

Fire Pumps / Jockey Pumps/ Water Pumps

Sump Pumps

WATER TREATMENT/PACKAGED SYSTEMS

Raw/Service Water Filtration System

Wastewater Treatment

MATERIAL HANDLING

Limestone and Gypsum Handling System

POWER GENERATION

SO3 Control System

Wet Scrubber FGD System

      

        Amendment to EPC Agreement      

        Appendix A      

    

ELECTRICAL

ELECTRICAL EQUIPMENT

Motor Control Centers < 1 kV  ANSI  and AC Distribution Panel

Elect  Equip  Module / Powerhouse - Building Only

Unit Substation < 1 kV - ANSI / Loadcenter 480 kV (Incl Trans.)

13.8 kV Switchgear - ANSI (Includes MCCs> 1 kV)

4160 V Switchgear - ANSI (Includes MCCs> 1 kV)

Cranking Transformer

Transformers, Power (Oil Filled, MV/MV)

Dry Type Transformer for double ended MCCs (DEMCCs)

Inverter, UPS Panel & Regulating Transformer, Batteries & Battery Chargers

and DC Switchboard

ELECTRICAL SWITCHYARD

High Voltage  Breakers  (Swyd - AIS)

HV Swyd Disconnect Switches (AIS)

HV Surge Arrestors

CONTROL SYSTEMS

CEMS

DCS

SPECIALTY CONTRACTS

Scaffold, Furnish & Install / Furnish Only

      

        Amendment to EPC Agreement      

        Appendix B      

    

Appendix B

[See Attached Appendix B]

      

        Amendment to EPC Agreement      

        Appendix C      

    

Appendix C-1

[See Attached Appendix C-1]

CONFIDENTIAL TREATMENT REQUESTED

Xxxxxx Project, Job No. 25186-810, Rev. 7
Wet FGD Xxxxx 0-0
XXXXXXXX X - 0 (xx. 1)
Description	Material Cost	Labor Cost	S/C Cost	Total Cost		Total Hours
…………………………………………………………………	…………………	…………………	…………………	…………………		………………………
FGD System	[$******]	[$******]	[$******]	[$******]		[******]
FGD Ductwork	[$******]	[$******]	[$******]	[$******]		[******]
Material Handling	[$******]	[$******]	[$******]	[$******]		[******]
Water Treatment & Tanks	[$******]	[$******]	[$******]	[$******]		[******]
Chimney	[$******]	[$******]	[$******]	[$******]		[******]
Rotating Equipment	[$******]	[$******]	[$******]	[$******]		[******]
Other Mechanical Equipment	[$******]	[$******]	[$******]	[$******]		[******]
Electrical Equipment	[$******]	[$******]	[$******]	[$******]		[******]
T-Lines & Switchyard	[$******]	[$******]	[$******]	[$******]		[******]
Site Work	[$******]	[$******]	[$******]	[$******]		[******]
Concrete Related	[$******]	[$******]	[$******]	[$******]		[******]
Steel Work & Other Structural	[$******]	[$******]	[$******]	[$******]		[******]
Architectural	[$******]	[$******]	[$******]	[$******]		[******]
Piping Bulks	[$******]	[$******]	[$******]	[$******]		[******]
Painting & Insulation	[$******]	[$******]	[$******]	[$******]		[******]
Electrical Bulks	[$******]	[$******]	[$******]	[$******]		[******]
Instrumentation	[$******]	[$******]	[$******]	[$******]		[******]
Demolition only	[$******]	[$******]	[$******]	[$******]		[******]
Demolition and Relocation	[$******]	[$******]	[$******]	[$******]		[******]
Milestone Incentives (Craft/SCs/FE Personnel)	[$******]	[$******]	[$******]	[$******]		[******]
Tie-ins (Units 1-7)	[$******]	[$******]	[$******]	[$******]		[******]
Traffic & Logistics	[$******]	[$******]	[$******]	[$******]		[******]
To-Go Escalation - Direct Costs	[$******]	[$******]	[$******]	[$******]		[******]
Unidentified Trends	[$******]	[$******]	[$******]	[$******]		[******]
…………………………………………………………………	…………………	…………………	…………………	…………………		………………………
Total Direct Costs	[$******]	[$****[$******]	[$**[$******]	[$******]		[******]
Temp Facilities	[$******]	[$******]	[$******]	[$******]		[******]
Misc Services	[$******]	[$******]	[$******]	[$******]		[******]
Equipment, Tools & Supplies	[$******]	[$******]	[$******]	[$******]		[******]
Small Tools	[$******]	[$******]	[$******]	[$******]		[******]
Consumables	[$******]	[$******]	[$******]	[$******]		[******]
Startup Manual Personnel	[$******]	[$******]	[$******]	[$******]		[******]
To-Go Escalation - Field Indirects	[$******]	[$******]	[$******]	[$******]		[******]
…………………………………………………………………	…………………	…………………	…………………	…………………		………………………
Total Field Indirect Costs	[$******]	[$*[$******]	[$******]	[$******]		[******]
FNM - Construction	[$******]	[$******]	[$******]	[$******]		[******]
SU NM	[$******]	[$******]	[$******]	[$******]		[******]
To-Go Escalation - Field Services	[$******]	[$******]	[$******]	[$******]		[******]
Other Billable Costs - Travel, Relo, Computers, SCs, etc	[$******]	[$******]	[$******]	[$******]		[******]
…………………………………………………………………	…………………	…………………	…………………	………………………		……………………………
Total Field Services	[$******]	[$******]	[$******]	[$******]		[******]
TOTAL CONSTRUCTED COST	[$******]	[$*[$******]	[$******]	[$*[$******]
Securities - Bond for Highway 7 Repairs due to Barge offloading				[$******]
Project Insurance: Builders Risk - By FE; Marine Cargo & Liability @ [$******]				[$******]
Warranty Engr				[$******]
Other Becthel Costs: Bldg Inspections @ $******] , Sales Tax for Construction Equip @ [$******]				[$******]
To-Go Escalation - Other				[$******]
…………………………………………………………………	…………………	…………………	…………………	………………………
TOTAL OTHER COST				[$******]
Contingency	[******]%	of Total Cost		[$******]
…………………………………………………………………	…………………	…………………	…………………	…………………
TOTAL COST WITH CONTINGENCY				[$[$******]
G&A rate - Prof. Construction Labor	[******]%	of FNM/SUNM Labor Cost		[$******]
Fee - Prof. Construction Labor	[******]%	of FNM/SUNM Labor Cost		[$******]
Fee - Target Construction Costs	[******]%	of Construction Costs		[$******]
…………………………………………………………………	…………………	…………………	…………………	…………………
TARGET CONSTRUCTION COST				[$[$******]

Appendix C-1 pg. 1

CONFIDENTIAL TREATMENT REQUESTED

 

Xxxxxx Project, Job No. 25186-810, Rev. 7
COST AND FEES NOT INCLUDED IN TCC
APPENDIX C - 1 (pg. 2)
Description	Material Cost	Labor Cost	S/C Cost	Total Cost		Total Hours
……………………………………………………………………	…………………	…………………	…………………	……………………		…………………
Engineering	[$******]	[$******]	[$******]	[$******]		[******]
Other Home Office	[$******]	[$******]	[$******]	[$******]		[******]
Nexant/GSG	[$******]	[$******]	[$******]	[$******]		[******]
To-Go Escalation - HO Services	[$******]	[$******]	[$******]	[$******]		[******]
Other Billable Costs - Travel, Relo, SCs, etc	[$******]	[$******]	[$******]	[$******]		[******]
……………………………………………………………………	…………………	…………………	…………………	……………………		…………………
Contingency	[******]%	of Total Cost		[$******]
G&A rate - Engr/Other Prof. Labor	[******]%	of Engr/OHO Labor Cost		[$******]
……………………………………………………………………	…………………	…………………	…………………	……………………
TOTAL ENGR/OTHER PROFESSIONAL LABOR				[$[$******]
Wet FGD Units 1-7
OTHER NON TCC COMPONENTS
Description	Material Cost	Labor Cost	S/C Cost	Total cost
……………………………………………………………………	…………………	…………………	…………………	……………………
Securities - Bond for Highway 7 Repairs due to Barge offloading				[$******]
Project Insurance: Builders Risk - By FE; Marine Cargo & Liability @ [$******]				[$******]
FE Vendor Materials including Escalation				[$******]
……………………………………………………………………	…………………	…………………	…………………	……………………
TOTAL  - NON TCC COMPONENTS				[$******]
SUB-TOTAL - OVERALL PROJECT COST				[$******]
Wet FGD Units 1-7
FEE COMPONENTS
Fee - Engr/Other Prof. Labor				[$******]
Fee - Prof. Construction Labor				[$******]
Fee - Target Construction Costs				[$******]
……………………………………………………………………	…………………	…………………	…………………	……………………
TOTAL FEES				[$*[$******]
TOTAL PROJECT PRICE				[$*[$******]

Appendix C-1 pg. 2

      

        Amendment to EPC Agreement      

        Appendix C      

    

Appendix C-2

[See Attached Appendix C-2]

CONFIDENTIAL TREATMENT REQUESTED

Xxxxxx Project
Subproject Fee Estimated Allocation at time of Notice to Proceed
FEE Status
Units 1-4			Base	Alloc. of 1-7	Total
Initial Value of TCC Fee			[$******]	[$******]	[$******]
Initial Value of HO Fee (Allocated per 12/06 est.)			[$******]	[$******]	[$******]
Initial Value of FNM Fee			[$******]	[$******]	[$******]
Initial Value of Subproject 1 Fees			[$******]	[$******]	[$******]		[******]%
Xxxxx 0-0			Xxxx	Xxxxx. of 1-7	Total
Initial Value of TCC Fee			[$******]	[$******]	[$******]
Initial Value of HO Fee (Allocated per 12/06 est.)			[$******]	[$******]	[$******]
Initial Value of FNM Fee			[$******]	[$******]	[$******]
Initial Value of Subproject 2 Fees			[$******]	[$******]	[$******]		[******]%
Units 5-7				Alloc. of 1-7	Total
Initial Value of TCC Fee			[$******]	[$******]	[$******]
Initial Value of HO Fee (Allocated per 12/06 est.)			[$******]	[$******]	[$******]
Initial Value of FNM Fee			[$******]	[$******]	[$******]
Initial Value of Subproject 3 Fees			[$******]	[$******]	[$******]		[******]%
Units 1-7 Common
Direct and Distribs (Exc. FE Vendor)			[$******]
HO FEE			[$******]
FNM FEE			[$******]
Initial Value of Common Systems Fees (To be Allocated to Subprojects 1 and 3 only as shown above)			[$******]
Initial aggregate value of Fees					[$******]

CONFIDENTIAL TREATMENT REQUESTED

Scenario #1
Basis of this example is TCC overrun of [$******] on an assumed
TCC value of [$******]. No schedule slippage.  ( Assumes no subtraction of Additional Deadband Adjustment from the Final Construction Cost ) *
A	TCC Value	[$******]
B	TCC Overrun	[$******]
C	% of Overrun (B / A)	[******]%
D	Adjustment per table Exhibit 5.1-3 Fee Table	[******]%
E	Unadjusted Total TCC Fee (Direct and Distribs)	[******]%
F	% reduction of TCC Fee (D / E)	[******]%
G	Fee at Risk for Cost Overrun ([******]% TCC Fee)	[$******]
H	TCC Fee adjustment (F * G)	[$******]
I	Aggregate Earned TCC Fee	[$******]
	Reallocation of Earned Fee (fee at risk)
	Subproject 1
	Earned TCC Fee (I * [******]%)	[$******]
	Earned HO Fee	[$******]
	Earned FNM Fee	[$******]
	Earned Fee (fee at risk) for Subproject 1	[$******]
	Subproject 2
	Earned TCC Fee (I * [******]%)	[$******]
	Earned HO Fee	[$******]
	Earned FNM Fee	[$******]
	Earned Fee (fee at risk) for Subproject 2	[$******]
	Subproject 3
	Earned TCC Fee (I * [******]%)	[$******]
	Earned HO Fee	[$******]
	Earned FNM Fee	[$******]
	Earned Fee (fee at risk) for Subproject 3	[$******]
	Final Aggregate Earned Fee	[$******]

 * Non-TCC underruns can be used to offset TCC Overruns as provided in Secion 12 of the Amendment.

CONFIDENTIAL TREATMENT REQUESTED

 

Scenario #2
Basis is TCC overrun of [$******] on a TCC value of [$******] with a 3 day slip on
Subproject 1, HO underrun in hours, and HO scorecard adjustment of [$******]. (Assumes no subtraction of additional Deadband Adjustment from the Final Construction Cost.)  *
A	TCC Value	[$******]
B	TCC Overrun	[$******]
C	% of Overrun (B / A)	[******]%
D	Adjustment per table	[******]%
E	Unadjusted Total TCC Fee	[******]%
F	% reduction of TCC Fee (D / E)	[******]%
	HO FEE adjustment
	Base HO Fee (Base is [$******]k - [$******]k for reduced hours expended=[$******] adjusted Fee )	[$******]
	Scorecard calc increase of [$******] in HO Fee	[$******]
	Final HO Fee	[$******]
	FC occurs 3 days later than Subproject 1 GFCD date of 9/1/2010	[******]
	Identified LD rate	[$******]
	Total Earned Fee deducted from Subproject 1	[$******]
	Final Earned Fee values by subproject
	Subproject 1:
	Unadjusted Earned Fee	[$******]
	Adjustment for TCC overrun	[$******]
	HO Earned Fee Adjustment for Scorecard ([******]% of $******])	[$******]
	HO Earned Fee Adjustment for Reduced Manhours ([******]% of $******])	[$******]
	Liquidated Damages	[$******]
	Subproject 1 (Earned Fee adjusted for TCC Overrun, Schedule LD above and [******]% of HO Fee adjustment)	[$******]
	Subproject 2 (Earned Fee adjusted [******]% of HO Fee adjustment)	[$******]
	Subproject 3 (Earned Fee adjusted [******]% of HO Fee adjustment)	[$******]
	Final Aggregate Earned Fee	[$******]

 * Non-TCC underruns can be used to offset TCC Overruns as provided in Secion 12 of the Amendment.

      

        Amendment to EPC Agreement      

        Appendix D – Amended Exhibit 6.5      

    

CONFIDENTIAL TREATMENT REQUESTED

Appendix D

Amended Exhibit 6.5

SCHEDULE LIQUIDATED DAMAGES

Subproject #1:

With respect to Subproject #1 (defined in Section 6 of the Amendment), for each day after such Subproject’s Guaranteed Final Completion Date, but prior to December 31, 2010 (the “NSR Consent Decree Date”), that Final Completion is delayed for such Subproject, but only for that portion of such delay caused by the Contractor, the Contractor shall pay FirstEnergy as Liquidated Damages [$******] for each day of delay. For each day after the NSR Consent Decree Date that the Final Completion of Subproject #1 is delayed, but only for that portion of such delay caused by the Contractor, the Contractor shall pay FirstEnergy as Liquidated Damages, calculated on a daily basis, an amount equal to the greater of:  (a) [$******] for each day of delay, or (b) [$******] for each megawatt hour by which any affected Generating Unit(s) in the subject Subproject operates below its full NDC (defined in Exhibit 7.2) as a result of the event(s) or condition(s) causing, or efforts undertaken to cure, the failure to achieve Final Completion, but not to exceed [$******] per day of delay for such Subproject.

Notwithstanding the foregoing, from the time that all elements of Final Completion have been met other than achievement of the Reliability Standard, Contractor shall pay FirstEnergy as Liquidated Damages for delay in achieving the Reliability Standard after the Guaranteed Final Completion Date for Subproject #1 an amount equal to [$******] for each megawatt hour by which any affected Generating Unit(s) in the subject Subproject operates below its full NDC (defined in Exhibit 7.2) as a result of the event(s) or condition(s) causing, or efforts undertaken to cure, the failure to achieve the Reliability Standard, but only for that portion of such megawatt hour reduction caused by the Contractor, such amount not to exceed [$******] per day for such Subproject prior to the NSR Consent Decree Date and [$******] per day for such Subproject after the NSR Consent Decree Date.

For the avoidance of doubt, and without limiting other reasons therefor, for purposes of the two preceding paragraphs, a Generating Unit shall be considered to be operating below its full NDC if the terms of the NSR Consent Decree regarding emission reduction and control requirements or other Applicable Law prohibit operation of the Generating Unit at its full NDC.

Subproject #2:

With respect to Subproject #2 (defined in Section 6 of the Amendment), for each day after such Subproject’s Guaranteed Final Completion Date, but prior to the NSR Consent Decree Date, that Final Completion is delayed, but only for that portion of such delay caused by the Contractor, the Contractor shall pay FirstEnergy as Liquidated Damages [$******] for each day of delay.  For each day after the NSR Consent Decree Date that the Final Completion of Subproject #2 is delayed, but only for that portion of such delay caused by the Contractor, the Contractor shall pay FirstEnergy as Liquidated Damages, calculated on a daily basis, an amount equal to the greater of:  (a) [$******] for each day of delay, or (b) [$******] for each megawatt hour by which any affected Generating Unit(s) in the subject Subproject operates below its full NDC (defined in Exhibit 7.2) as a result of the event(s) or condition(s) causing, or efforts undertaken to cure, the failure to achieve Final Completion, but not to exceed [$******] per day of delay for such Subproject.

For the avoidance of doubt, and without limiting other reasons therefor, for purposes of the preceding paragraph, a Generating Unit shall be considered to be operating below its full NDC if the terms of the NSR Consent Decree regarding emission reduction and control requirements or other Applicable Law prohibit operation of the Generating Unit at its full NDC.

      

        Amendment to EPC Agreement      

        Appendix D – Amended Exhibit 6.5      

    

CONFIDENTIAL TREATMENT REQUESTED

Subproject #3:

With respect to Subproject #3 (defined in Section 6 of the Amendment), for each day after such Subproject’s Guaranteed Final Completion Date, but prior to the Adjusted NSR Consent Decree Date, that Final Completion is delayed for such Subproject, but only for that portion of such delay caused by the Contractor, the Contractor shall pay FirstEnergy as Liquidated Damages [$******] for each day of delay. For each day after the Adjusted NSR Consent Decree Date that the Final Completion of Subproject #3 is delayed, but only for that portion of such delay caused by the Contractor, the Contractor shall pay FirstEnergy as Liquidated Damages, calculated on a daily basis, an amount equal to the greater of:  (a) [$******] for each day of delay, or (b) [$******] for each megawatt hour by which any affected Generating Unit(s) in the subject Subproject operates below its full NDC (defined in Exhibit 7.2) as a result of the event(s) or condition(s) causing, or efforts undertaken to cure, the failure to achieve Final Completion, but not to exceed [$******] per day of delay for such Subproject.

Notwithstanding the foregoing, from the time that all elements of Final Completion have been met other than achievement of the Reliability Standard, Contractor shall pay FirstEnergy as Liquidated Damages for delay in achieving the Reliability Standard after the Guaranteed Final Completion Date for Subproject #3 an amount equal to [$******] for each megawatt hour by which any affected Generating Unit(s) in the subject Subproject operate below their full NDC (defined in Exhibit 7.2) as a result of the event(s) or condition(s) causing, or efforts undertaken to cure, the failure to achieve the Reliability Standard, but only for that portion of such megawatt hour reduction caused by the Contractor; such amount not to exceed [$******] per day for such Subproject prior to the Adjusted NSR Consent Decree Date and [$******] per day for such Subproject after the Adjusted NSR Consent Decree Date.

For purposes of this Section, the “Adjusted NSR Consent Decree Date” shall be the earlier of (A) the date that is forty-five (45) days after the Guaranteed Final Completion Date for Subproject #3 (as adjusted for any Change Order issued in response to any of the occurrences described in Sections 8.1 or 8.2 of the EPC Agreement); and (B) February 15, 2011.

For the avoidance of doubt, and without limiting other reasons therefor, for purposes of the first two paragraphs under “Subproject 3”, a Generating Unit shall be considered to be operating below its full NDC if the terms of the NSR Consent Decree regarding emission reduction and control requirements or other Applicable Law prohibit operation of the Generating Unit at its full NDC.

All Subprojects:

In addition, with respect to any AQC Unit, for each Outage Day (defined in Exhibit 7.2) beyond 16 days the Contractor uses during the Corrective Action Period (defined in Exhibit 7.2), the Contractor shall pay FirstEnergy as liquidated damages, but only for that portion of such Outage Days caused by the Contractor, [$******] for each megawatt of NDC on the affected Generating Unit for each Outage Day (e.g. for the 300 XX Xxxxxx Unit 5, the rate would be [$******] for each additional Outage Day).

In addition, with respect to each Subproject, in the event that Final Document Delivery has not been achieved by the date that Final Completion is achieved (or in the case of the documentation described below, within 90 days after Final Completion), Contractor shall pay FirstEnergy as Liquidated Damages [$******] per day until Final Document Delivery occurs.

·   As built and final record turnover of Bechtel or Subcontractor documents defined in Section 2.9 and Appendix D of the Scope Book, which were issued, or had change documents issued against them, within 120 days prior to the date Final Completion is or was achieved.

·   Documents including certain discrete data (e.g., emissions and fuel analyses) that must be verified, if required, through the use of third-party laboratories.  (With respect to such circumstances, data measured at the Facility using installed systems and other testing apparatus brought to the Facility will be used to determine the test results for Final Completion.  All reasonable efforts would then be made to submit the final report within 60 calendar days after Final Completion).

·   Final Lien Releases of Purchase Orders and Subcontracts as required.

      

        Amendment to EPC Agreement      

        Appendix E – Amended Exhibit 5.1-3      

    

CONFIDENTIAL TREATMENT REQUESTED

Appendix E

Amended Exhibit 5.1-3

FEE TABLE

The Fee associated with the Target Construction Cost will be adjusted according to the table below:

Final Construction Cost		FE Vendor Arrangement Free Adjustment
(% of Target Construction Cost)		(% of Target Construction Cost)
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
¦                  [******%]		[******%]
¦                  [******%]		[******%]
Deadband          [******%]		[******%]
¦                  [******%]		[******%]
¦                  [******%]		[******%]
¦                  [******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]
[******%]		[******%]

The maximum [******] adjustment is equal to the original Target Construction Cost Fee.

Values on the table shall be interpolated for actual costs between those shown on the table.

      

        Amendment to EPC Agreement       

        Appendix F      

    

Appendix F

Project Schedule; Critical Path Schedule

[See attached electronic media containing Project Schedule and Critical Path Schedule — data date of August 27, 2007;  backup date of September 4, 2007]

The attached disclosure respresents a comprehensive summary and compilation of all the material terms of Appendix F.

      

        Amendment to EPC Agreement      

        Appendix G      

    

Appendix G

FE Vendor Critical Milestones

Company	Event	Schedule Date
The Xxxxxxx & Xxxxxx Company	Set first absorber ring on its final foundation	April 11, 2008
	Late Finish, final absorber shell complete	March 30, 2009
	Pre-Mechanical Completion #1	February 1, 2009
	Pre-Mechanical Completion #2	July 21, 2009
	B&W Guaranteed Performance Final Completion (#1)	April 23, 2010
	B&W Guaranteed Performance Final Completion (#2)	August 26, 2010

      

        Amendment to EPC Agreement      

        Appendix H – Amended Attachment A      

    

Appendix H

Amended Attachment A

1.0       PLANT/UNIT DESCRIPTIONS

1.1   The 2,220 XX Xxxxxx Plant is located in Stratton, OH and is made up of 7 generating units that draw cooling water from the Ohio River.

1.1.1   Units 1-4 are 180 MW single reheat, sub-critical drum units placed in service in the years 1959 though 1962 respectively.  The Xxxxxx Xxxxxxx P.C. boilers generate 1,250,000 lbs./hr. of 2450 psig, 1050°F main steam (1000°F reheat).

1.1.2   Xxxx 0 is a 300 MW sub-critical, once-through unit placed in service in 1967.  The Xxxxxxx and Xxxxxx coal fired, single reheat boiler generates 2,355,000 lbs./hr. of 2625 psig, 1005°F main steam (1005°F reheat).

1.1.3   Units 6 and 7 are 600 MW super-critical, once-through units placed in service in 1969 and 1971 respectively.  The Xxxxxxx and Xxxxxx coal fired, single reheat boilers generate 4,628,000 lbs./hr. of 3785 psig, 1005°F main steam and 3,900,000 lbs/hr. of 654 psig, 1005°F reheat steam.  Both Units will be up-rated to 650 MW within a year of the FGD system startups.

1.2   AE-Constructor Work Scope

1.2.1   During the Development Phase, the Parties will work to develop a detailed Project work scope that will include, but not necessarily be limited to, the following:

·     Project Management

·       Prepare Project Execution Plan document

·       Support technology application decisions

·       Support FGD OEM selection

·       Establish Project performance parameters

·       Complete site evaluations and layouts

·       Constructability reviews

·       Complete Project design basis

·       Prepare estimating documents

·       Prepare cost estimate

·       Support permitting process

·       Support reagent supply discussions

·       Detailed engineering

·       Procurement

·       Construction

·       Checkout, Startup & Commissioning

·       Training

·       Documentation

·       Performance testing

·       Security

      

        Amendment to EPC Agreement      

        Appendix H – Amended Attachment A      

    

2.0       EXECUTION OF THE WORKSCOPE

The AE-Constructor will be expected to execute the Project (engineering, design, fabrication, procurement, construction, startup and commissioning) in an open, collaborative and safe manner resulting in the most competitive overall cost (construction and future O&M) and optimal performance of the air quality control systems.  This objective will be accomplished by meeting the following goals:

·   Mutually developing Project designs to minimize construction costs and future O&M costs while ensuring the highest overall operational reliability.

·   Each stakeholder being responsive to the needs of the other parties to insure actions and decisions are made in a manner consistent with all Project goals.

·   The AE-Constructor will be expected to develop, evaluate and report Project information as close to real time as practical, insuring actions necessary to address safety, design, cost and scheduling issues are implemented promptly upon recognition.

2.1   Project Management

2.1.1   The AE-Constructor will be responsible for all Project Management related to the Project including management of all Subcontractors, FE Vendors and the OEM.

2.2   Prepare Project Execution Plan

2.2.1   The AE-Constructor will work with the FirstEnergy Project team to develop an overall Project Execution Plan.  The plan will establish a Project Team and organization chart as well as project controls including:

2.2.1.1   Owner releases - FirstEnergy will be integrally involved in all areas and Phases of the Project and therefore will require a review process be established that gives adequate time for that review without unduly affecting the Project schedule.

2.2.1.2   Status reporting requirements - FirstEnergy will require access to Project progress information including schedule, budget, significant issues and work completed on a continuous basis through a web based electronic platform.  FirstEnergy requires the Contractor establish a system that allows as close to real time updates as possible.

2.2.1.3   Invoicing - Invoicing and payment will be by electronic means (including submittal of timesheets).

2.2.1.4   Payment procedures - payment will be made based on FirstEnergy verification of AE-Constructor expenses and supporting documentation.

2.2.1.5   Changes to scope - FirstEnergy will require access to estimates, including schedule impacts, and scope change descriptions as part of an approval process for changes to scope for both the AE-Constructor & it's Subcontractors as well as the OEM.

2.2.1.6   Design review - FirstEnergy will perform a detailed, ongoing design review during all Phases of the Project.  The AE-Constructor should be prepared to support FirstEnergy technical and support staff in the AE-Constructor's offices during the design portion of each Subproject.  Such review will include Subcontractor design efforts, where applicable.

2.2.1.7   Design practices - the AE-Constructor will be required to submit the Engineering Procedures Manual and Project specific criteria documents for FE review.  In addition, Contractor shall provide, as requested by FirstEnergy, access to their design practices on Contractor’s premises.  Final drawings must be provided per the requirements listed in this specification.

      

        Amendment to EPC Agreement      

        Appendix H – Amended Attachment A      

    

2.2.1.8   Communications - FirstEnergy prefers the implementation of a centralized, web based document control system.  The system will provide real-time access to the Project Team (AE-Constructor, OEM and FirstEnergy) to key Project documents.

2.2.1.9   Document control - FirstEnergy utilizes FileNet P8 3.0 as a document storage system.  The AE-Constructor will be required to maintain a complete set of all permits, design documents, O&M manuals, drawings, bid documents, correspondence and reports as part of the official Project file.  Once the Project is complete, the documents are to be provided to FirstEnergy in native format if electronic.  If they are non-CAD drawings they shall be provided as .tif images and if they are scanned documents, they shall be provided as .pdf documents format.

2.2.1.10   Procurement and Subcontracting procedures - FirstEnergy will require a competitive process which may include electronic reverse auctions, for selecting Subcontractors, equipment suppliers, tools, rentals and service suppliers to obtain the lowest life cycle cost for the Project.  The procedure must include FirstEnergy review and release steps.  The Procurement and Subcontracting procedures should allow for exceptions when bidders are limited.

2.2.1.11   Safety programs - The AE-Constructor is expected to utilize "world class" site/Project specific safety programs, practices and procedures and enforce them across the site. While zero (0) safety incidents is the goal for this Project, the Safety Program should result in an OSHA recordable IR rate <3.0 for non-manual and field labor.  The program should address site housekeeping as a method of improving safety.  FirstEnergy will review and release the AE-Constructor's safety program which must be consistent with Exhibit 3.5 (E)–1, Contractor Safety Guide, Air Quality Compliance.

In addition, the AE-Constructor must administer and enforce a Drug and Alcohol Testing Program consistent with the attached FirstEnergy Generation Corp. Substance Abuse Testing Program (See Exhibit 3.4 (D)) and meet the requirements of Exhibits 3.8 (E)-1, 3.8 (E)-2, 3.8 (E)-3 & 3.5 (E)-2 dealing with Asbestos, Inorganic Arsenic, Lead and OSHA Compliance.

2.2.1.12   Quality assurance - FirstEnergy expects the Project to be completed with a high degree of quality.  The AE-Constructor will have FirstEnergy reviewed and approved quality assurance programs in place for both field and shop work.  In addition, the AE-Constructor will be expected to monitor and track the quality of major equipment as it is fabricated in the various Vendors' shops.  FirstEnergy is to be notified of all significant inspections and may participate, as FirstEnergy deems necessary.  In any case, all quality program reports will be provided to FirstEnergy.

2.2.1.13   Scheduling - Scheduling is to be done in an electronic format (Primavera) and is to be made available to FirstEnergy electronically in native format.  FirstEnergy requires all schedules, including those provided by Subcontractors, be in Primavera.  In any case, the Primavera integrated master schedule shall be kept by the AE-Constructor and will include all activities required to complete the Project regardless of the responsible party (AE-Constructor, FirstEnergy, OEM, Subcontractor, equipment supplier, etc.) or the form in which the individual schedules are provided.

      

        Amendment to EPC Agreement      

        Appendix H – Amended Attachment A      

    

2.2.1.14   Estimating - All estimates will be completed using accepted estimating practices common to the industry.  The basis for all labor rates, equipment prices, indices, adjustments, contingencies, labor-hour quantities, ratios etc. will be provided and stated clearly in the estimate.  FirstEnergy will be provided access to the method of calculation and the Project specific data used in the creation of any such estimates.  FirstEnergy will review and release all estimates.

2.3   Complete site evaluations and layouts

2.3.1   The AE-Constructor will be required to review the Xxxxxx site for interferences, construction issues and existing undergrounds.  From that review, the AE-Constructor will work with FirstEnergy to develop layout options, taking into account the potential configurations and the timing for their application.  The various options will then be evaluated jointly by the AE-Constructor and FirstEnergy.

2.4   Complete Project design basis

2.4.1   The AE-Constructor will work with the FirstEnergy Project team and Xxxxxx Plant operations personnel to develop a Project design basis.

2.4.2   The AE-Constructor will perform optimization studies, as directed by FirstEnergy.

2.5   Prepare estimating documents

2.5.1   The estimating documents will include site layouts, design basis documents, mass & energy balances, process flow diagrams, piping and instrumentation diagrams, Vendor quotes for major equipment, material estimates, detailed local labor surveys and Subcontractor estimates.

2.5.2   The level and detail of estimating documents that will be prepared in advance will be based upon FirstEnergy’s desired estimate accuracy for a given Subproject.

2.6   Prepare cost estimate

2.6.1   The Project estimate will be a collaborative effort between FirstEnergy, the AE-Constructor and the OEM and will be prepared in an "open book" manner.  All of the estimating documents will be available to each of the parties for review and for their use in preparing their own portion of the estimate as well as to come to their own conclusions as to the accuracy of the overall estimate.

2.6.2   FirstEnergy reserves the right to retain the services of a mutually acceptable third party to review the estimates.  All of the materials provided to FirstEnergy will be provided to the third party.

2.6.3   It is FirstEnergy’s expectation that there will be “continuous improvement” in the design/engineering and construction of the series of AQC Systems to be installed.  This “continuous improvement” should be reflected in all aspects of the Subprojects including pricing, schedule, final quality and safety.

      

        Amendment to EPC Agreement      

        Appendix H – Amended Attachment A      

    

2.7   Support Permitting Process

2.7.1   The AE-Constructor will establish a Permit list.  This list will include all permits required to construct and operate the proposed facilities, the responsible party, permitting duration, applicable permitting agency as well as what activities are dependent on the permit.

2.7.2   The AE-Constructor is to include all the necessary permitting activities in the project schedule.

2.7.3   The AE-Constructor will be responsible for obtaining all of the construction permits.

2.7.4   The AE-Constructor will work with FirstEnergy to develop an environmental permitting strategy and will be responsible for managing the environmental permitting process, the creation and submission of all permit applications and providing responses to information requests from the agencies as required.  The permits will be obtained in the name of FirstEnergy and FirstEnergy will be the official interface for the project with the permitting agencies.

2.8   Support reagent supply discussions

2.8.1   The AE-Constructor will be required to provide input and be present at times for reagent supply discussions that pertain to the quality, quantity, form and delivery of reagent.

2.8.2   The AE-Constructor will provide input on the effect of various reagents on the process performance and its cost effectiveness as well as its impact on design and operating parameters.

2.9   Detailed engineering

2.9.1   The AE-Constructor will prepare working drawings and specifications setting forth in detail the requirements for the construction of the Project.  The design and engineering documents shall include all drawings, specifications schedules, diagrams and plans and such content and detail as is necessary to obtain required permits and governmental approvals and to properly complete the construction of the Project.  The working drawings and specifications shall include information customarily necessary for the use of such documents by those in the building trades. Design drawings in the following categories are typically provided for Owner review:

·   Site Grading/Roadway Drawings

·   Logic Diagrams, Instrument Control Diagrams, Panel Layout Drawings

·   Single Line Diagrams, Control Schematic Diagrams

·   Piping and Instrument Diagrams, System Descriptions, Piping Class Sheets

·   General Arrangement Drawings

·   Major Equipment Specifications, Design Criteria Documents

A specific list of the design and engineering documents to be reviewed and released by FirstEnergy will be created during the Project Development Phase.

2.9.2   The Design and engineering documents must meet the requirements of applicable laws including Professional Certifications (e.g. Engineer stamps, etc.) as required.

      

        Amendment to EPC Agreement      

        Appendix H – Amended Attachment A      

    

2.10  Procurement

2.10.1   FirstEnergy reserves the right to purchase equipment and materials for the Project directly.

2.10.2   The AE-Constructor will be responsible for issuing purchase orders for all equipment and material in the AE-Constructor's scope of procurement.  The AE-Constructor will be responsible for material control and handling of all equipment and materials purchased including any directly purchased by FirstEnergy.  FirstEnergy will have direct input on the review and final selection of Vendors and equipment suppliers and on the type and quality of the equipment to be purchased for this Project.

2.10.3   FirstEnergy and the AE-Constructor will mutually agree upon the best method of contracting for labor services. Subject to section 2.3(A) of the Agreement, FirstEnergy will approve all Subcontractors and will be involved in the final bid evaluations.  The AE-Constructor will develop the bidders list with FirstEnergy's approval, solicit bids, and present final bid evaluations to FirstEnergy for final review.  FirstEnergy and the AE-Constructor will mutually agree to the final selection of the bidders.

2.11  Construction

2.11.1   FirstEnergy will provide oversight of the construction work performed at the applicable site.

2.11.2   FirstEnergy site construction personnel will have the option to attend AE-Constructor site meetings, that must be held daily, relating to Project planning and/or progress.

2.11.3   AE-Constructor will hold weekly status update meetings with FirstEnergy site construction personnel to review Project safety statistics, schedule, cost, productivity, and any other relevant Project topics.  AE-Constructor to provide Xxxxx charts, cost and productivity reports, “S” curves, etc. as needed to clearly communicate current Project status and trends.

2.11.4   AE-Constructor will be required to utilize the National Maintenance Agreement.  Discussions on specific Labor Requirements for this work are in progress.  FirstEnergy's current standard Labor Requirements are listed in Exhibit 3.4 (E), Labor Requirements.

2.11.5   The AE-Constructor will be required to supply all temporary facilities, construction tools and equipment for each of the Subprojects.

2.11.6   With the exception of pre-existing Hazardous Substances addressed in Article 3, Paragraph 3.8 of the Terms and Conditions, the AE-Constructor will be responsible for all demolition required for this Project.  The AE-Constructor will identify the facilities to be demolished, engineer the demolition, schedule the demolition taking into account operating plant requirements and develop any safety procedures that may be required.

2.12  Checkout, Start-Up, Commissioning

2.12.1   AE-Constructor shall have responsibility for checkout, start-up, and commissioning of all systems within their work scope.  Site specific procedures shall be developed by the AE-Constructor and submitted to FirstEnergy for review and approval.

      

        Amendment to EPC Agreement      

        Appendix H – Amended Attachment A      

    

2.12.2   FirstEnergy shall assign a Start-up Coordinator to interface with AE-Constructor and FirstEnergy plant personnel relating to the start-up process.  At FirstEnergy’s option, FirstEnergy personnel may be integrated into the Start-up and Commissioning Team (participation to be under the management of and in support of AE-Constructor personnel).

2.13  Training

2.13.1   The AE-Constructor will be required to provide training for FirstEnergy operations and maintenance personnel for all portions of the new AQC Systems.  The training program will be developed in conjunction with FirstEnergy operations and maintenance personnel in accordance with FirstEnergy standard practices and will include training material development, classroom training development and execution along with hands on training in the field.

2.13.1.1   Training programs and materials for plant non-operational support personnel will also be required.

2.13.1.2   The AE-Constructor will be responsible for working with FirstEnergy operations personnel to create Operating Procedures for each of the two Subprojects.  The AE-Constructor will take the lead in the development of the Operating Procedures.

2.14  Documentation

2.14.1   All Project related documentation including; reports, correspondence, drawings, specifications, purchasing documents, O&M manuals, calculations, permits, etc. will be controlled by the AE-Constructor throughout the Project.  At Project completion, all documentation controlled by the AE-Constructor will be provided to FirstEnergy in electronic format as follows:

2.14.1.1   All documents are to be provided in native format.  In the case of drawings, native format is .dwg.  Scanned non-drawing documents are to be provided in .pdf while scanned drawings (for which the .dwg format is unavailable) shall be provided in .tif format.

2.14.1.2   Two separate formatted excel spreadsheets will be provided by FirstEnergy that the AE-Constructor will use to create an index of all drawings (.dwg and .tif) and a separate index of all other documents.  Those indexes will allow FirstEnergy to electronically populate its internal document management system.

2.14.1.3   FirstEnergy drawings that interface with the existing facilities will be provided to the AE-Constructor when required.  The AE-Constructor will modify non-CAD drawings (provided as .tif files by FirstEnergy) with Autodesk CAD Overlay software to create hybrid revisions.

2.14.1.4   The AE-Constructor will be responsible for providing final "as-built" drawings for the Project including assuring that all drawings provided by subcontractors, in the field or shop, and all equipment drawings are as-built.  The specific as-built drawing requirements will be established during the Project Development Phase.

      

        Amendment to EPC Agreement      

        Appendix H – Amended Attachment A      

    

2.15  Performance testing

2.15.1   The AE-Constructor will be responsible for coordinating all AQC system performance test scheduling, procedure development and testing including tests to be provided by the OEM.

2.15.1.1   Performance testing, although coordinated by the AE-Constructor will be performed by an independent, third party as selected by FirstEnergy.

2.15.1.2   FirstEnergy will review all test procedures, witness all tests and review and release all test reports.

3.0       SCHEDULE

3.1   The AE-Constructor will support overall Project scheduling including various design/construction options for each of the Subprojects as required to determine the optimum Project schedule.

4.0       GENERAL REQUIREMENTS

4.1   Professional Standards & Sufficient Personnel

4.1.1   The AE-Constructor will be responsible to provide adequate and qualified resources in all disciplines required to define the tasks, gather all facts relating to the tasks and coordinate all permitting, engineering, procurement, construction, commissioning, startup and testing of each of the Subprojects.

4.1.2   The AE-Constructor shall, at all times, keep sufficient personnel employed and dedicated to the Project so that the services to be performed by the AE-Constructor herein are completed on schedule and in an efficient, safe, economical and professional manner.

4.1.3   The AE-Constructor will provide adequate opportunity for FirstEnergy to examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by the AE-Constructor and submit written responses, as required within a reasonable time so as not to delay the services of the AE-Constructor.

4.1.4   The AE-Constructor will keep FirstEnergy's Project Team apprised of all work efforts, including third party meetings, status meetings, hiring of Subcontractors, etc.

      

        Amendment to EPC Agreement      

        Appendix I      

    

Appendix I

Within sixty (60) days after the issuance of the Notice to Proceed, the Scope Book will be updated to (i) reflect scope modifications associated with the relocation of the Secondary Dewatering Equipment from The Hollow Rock Disposal Facility to the Xxxxxx Site (Alternate 43a) as described in Bechtel Letter to FirstEnergy 25186-000-TCM-GAM-00231, dated Maxxx 0, 0000,  (xx) xo replace the intellectual property legend included in Part I (Scope of Services) and Part II (Technical Scope Description) of the Scope Book, and in Appendix W (Procurement Sourcing Strategies) of Part III of the Scope Book, and in the Material Assignment Schedule contained in Appendix J (pages MAS J-1 through J-8) of Part III of the Scope Book, with the following:

“This document contains information that is proprietary and confidential to First Energy Generation Corp (“First Energy”) and/or Xxxxxxx Power Corporation (“Bechtel”).  Bechtel and FirstEnergy, respectively own and retain,  all intellectual property rights (including copyrights) in respective portions of this document, with such respective ownership rights to be determined as provided in Article 11 of the General Terms and Conditions for Engineering, Procurement, and Construction of Air Quality Control (AQC) Systems, dated August 26, 2005 (the “EPC Agreement”).”

and (iii) to remove from all Drawings contained within Part III (Appendix A –Z) of the Scope Book each intellectual property legend indicating that materials are confidential and proprietary to Bechtel and insert in its place an intellectual property legend, in the format used elsewhere in Part III on similar Drawings, indicating that such Drawings are confidential and proprietary to FirstEnergy, and (iv) except as otherwise provided above, to remove from Part III (Appendix A –Z) of the Scope Book each intellectual property legend indicating that materials are confidential and proprietary to Bechtel.