Exhibit 10.27.6
CONSTRUCTION SERVICES CONTRACT
This Construction Services Contract (this "Contract") is made and
entered into as of the 29th day of August, 1997, by and between NRG
Energy, Inc. ("NRG") and NRG (Xxxxxx) Xxxxx, LLC ("Client"). Client
accepts performance of the work outlined under "Scope of NRG's
Services" in accordance with the attached General Terms and Conditions,
Construction Management Services Contract.
ARTICLE 1 - SCOPE OF NRG'S SERVICES
A. NRG shall furnish the construction management services set forth
on Attachment 1 (the "Work") to Client.
B. NRG's work shall be performed in connection with the construction
of a 118 MW natural gas fired electrical steam generating facility at
Millenium Petrochemical's Morris, Illinois plant ("Project").
ARTICLE 2 - NRG'S COMPENSATION
Client shall pay NRG for the Work as set forth on Attachment 2.
ARTICLE 3 - ACCEPTANCE
Client and NRG agree to accept the Scope of NRG's Services and NRG's
Compensation set forth above in accordance with the attached General
Terms and Conditions, Construction Management Services Contract.
Acceptance of this offer by ordering the start of the Work or otherwise
is limited to acceptance of the terms and conditions of this Contract.
Notwithstanding any additional terms that may be embodied in Client's
purchase order or acknowledgment issued in response to this offer, the
Work is performed only on the condition that Client assents to the
terms and conditions set forth herein and objection is made to any
varying or additional terms or conditions contained in Client's
purchase order or acknowledgment.
NRG (XXXXXX) XXXXX, LLC NRG ENERGY, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
By: /s/ Xxxxxx X. Will
Printed Name: Xxxxx X. Xxxxxxxxxxx Printed Name: Xxxxxx
X. Will
Title: Management Committee Title: Vice President
Operations
Representative
and Engineering
Date: 29 August, 1997 Date: August 29, 1997
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GENERAL TERMS AND CONDITIONS
CONSTRUCTION MANAGEMENT SERVICES CONTRACT
INTRODUCTION: These general terms and conditions apply to the Work to
be performed by NRG as set forth on the face of this Contract and
generally apply to the services of one or more engineers or technicians
performing engineering and/or consulting services in or for the
Project.
SCOPE OF SERVICES: The scope of services to be performed under this
Contract shall be as set forth on the face of this Contract. Client
may add to or delete services from the scope of Work and the provisions
of this Contract shall apply to such changes. In the event of any such
change or any delay, change, or occurrence beyond the reasonable
control of NRG, NRG shall be entitled to an equitable adjustment of
compensation and schedule.
COMPENSATION, PAYMENT, AND AUDIT: Compensation for the Work shall be
as set forth on the face of this Contract. NRG shall invoice Client
monthly for the Work performed and Client shall pay such invoice in
full within ten (10) days after its receipt. For a period of one (1)
year following completion of the Work, Client, its auditor, or other
authorized representatives shall be afforded access at reasonable times
to NRG's accounting records relating to the Work in order to audit all
charges for the Work (except fixed xxxx-ups, fixed fees, lump sum
amounts, and NRG's standard rates).
CHARGES FOR THE WORK: Client shall reimburse NRG for all costs,
charges, expenses, taxes, fees, and losses not compensated by
insurance, which are incurred by NRG in the performance of the Work.
These shall include, but not be limited to:
1. Charges for time of all personnel employed by NRG in the
performance of the Work, plus a fixed xxxx-up of one hundred percent
(100%) of the time charges to cover Federal and State payroll taxes and
insurance, company benefit programs, overhead, and profit. This fixed
xxxx-up shall be subject to appropriate adjustment for any changes in
payroll taxes or insurance, or changes in company benefit programs.
2. Transportation, traveling, hotel, and living expenses, including
use of employees' personal cars at NRG's current standard rates. All
reasonable moving, relocation, travel, and living expenses incurred in
connection with assignment of NRG's permanent personnel to a location
other than NRG's permanent offices and from such location at the
conclusion of assignment.
3. Miscellaneous expenses, including but not limited to telegrams,
telex, telefacsimile, telephone services, postage, and similar
miscellaneous items incurred in connection with the Work (all at NRG's
current standard rates).
4. Reproduction costs of all drawings, manuals, specifications, and
other documents required for the Work; and costs for the use of
computer, all at NRG's current standard
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rates or at actual cost to NRG if prepared by others.
5. Cost of any permits, fees, licenses, or royalties required for the
Work. Costs of any sales, use, or similar taxes or fees imposed by a
Federal, State, Municipal, or other government or agency thereof.
6. Fees, costs, damages, or disbursements incurred in connection with
any labor, patent, or commercial litigation or any third party claim,
suit, or cause of action, arising out of or in connection with the
performance of the Contract by NRG (except disputes between NRG and
Client), or claims, suits or causes of action pursued on behalf of
Client by NRG.
7. Premiums and brokerage fees on all bonds and insurance policies
which may be required by Client in addition to those listed herein, and
any loss under the deductible features of any insurance policies,
whether furnished by NRG or Client.
Notwithstanding the foregoing, or any estimates contained in Attachment
2, NRG agrees that its total compensation for Work, including the
Administrative Fee of $200,000, shall not exceed $1.2 million.
PROSECUTION OF THE WORK; FORCE MAJEURE: NRG shall substantially
complete the Work in accordance with the Project Schedule mutually
agreed upon between Client and NRG. Any completion dates specified are
tentative only and NRG shall have no liability to Client for late
completion. If the prosecution of the Work is delayed or affected by
any of the following force majeure occurrences: acts or failures to
act by Client, or any separate contractors, engineers, vendors, or
consultants employed by Client, or any other party not in privity of
contract with NRG; acts of God or the elements; acts or failures to act
by government or any agency thereof; changes, inaccuracies,
incompleteness, or differences in site conditions or any data or
information supplied to NRG; changes in laws or regulations; delays in
permitting; delays in receipt of engineering data or vendor drawings;
fire; unusually severe weather, natural disasters, or unavoidable
casualties; riot; civil disorders; labor shortages or disputes;
strikes, picketing, or arbitration proceedings; delays in
transportation, material, or equipment deliveries; material, equipment,
or fuel shortages; or any other causes beyond NRG's reasonable control,
the Project Schedule shall be extended for the period of time
attributable to such delay and all fixed elements of pricing, if any,
shall be equitably adjusted.
LIABILITY INSURANCE: During performance of this Contract, NRG shall
keep in force Worker's Compensation Insurance/Employer's Liability
Insurance for its employees with limits required by law; Comprehensive
or Commercial General Liability Insurance, with a $1,000,000 combined
occurrence and combined aggregate bodily injury and property damage
limit, and Automobile Liability Insurance, with a combined single limit
of $1,000,000.
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WAIVER OF SUBROGATION: Client waives all rights and any subrogation
rights such as it or its insurers may have against NRG, its vendors and
subcontractors and their employees, agents, officers, directors, and
any of their affiliated or associated companies, for any losses or
damages, including without limitation loss of use and all consequential
damages thereof, to its existing plant or other property, including
without limitation property to be incorporated into the Project,
resulting from any and all risks and losses, however and whenever
arising, including without limitation those arising from risks of fire,
or other extended coverage or similar perils, business interruption,
transit damages or losses, vandalism and malicious mischief, or other
risks covered under a broad form All Risks Difference In Conditions
insurance policy. In the event that the constructor of the facilities
or Project is to carry insurance on the Project, Client agrees to
include a provision in its contract with the constructor requiring the
constructor to supply NRG with a written waiver of its rights of
recovery and its insurance carrier's right of subrogation as provided
above.
INDEMNITY: NRG agrees to indemnify and save Client harmless from any
loss, cost or expense claimed by third parties for property damage and
bodily injury including death, to the extent caused by the negligence
or willful misconduct of NRG, its agents, employees or NRG's affiliates
in connection with NRG's work hereunder. Client agrees to indemnify
and save NRG harmless from any loss, cost or expense claimed by third
parties for property damage and bodily injury, including death, to the
extent caused by the negligence or willful misconduct of Client, its
agents or employees in connection with NRG's work hereunder. If the
negligence or willful misconduct of both NRG and Client (or a person
identified above for whom each is liable) is the cause of such damage
or injury, the loss, cost or expense shall be shared between NRG and
Client in proportion to their relative degrees of negligence or willful
misconduct and the right of indemnity shall apply for such proportion.
LIMITED WARRANTY:
1. NRG warrants that the services performed under this Contract will
be in accordance with accepted professional standards and practices
existing as of the date that such services are performed. The sole and
exclusive remedy for breach of this warranty shall for NRG to re-
perform the item of defective Work, written notice of which is promptly
given by Client to NRG within a period of one (1) year from the date
that the defective work is performed under this Contract. All costs of
any re-performance shall be reimbursed by Client to NRG, but NRG shall
receive no additional profit thereon.
2. NRG shall not be responsible for the construction means, methods,
techniques, sequences, or procedures, or safety precautions (including
without limitation and by way of example, any duty imposed by any
occupational safety and health legislation), and programs incident
thereto; or for the acts or omissions of Client or any constructor of
the Project or any of the constructor's agents, employees, or
subcontractors; or for the acts or omissions of material or equipment
manufacturers or suppliers; or for the acts or omissions of any
engineer on the Project.
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3. THERE ARE NO WARRANTIES OTHER THAN THE ABOVE, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR PARTICULAR PURPOSE, APPLICALE TO NRG'S SERVICES OR THE
WORK UNDER OR OTHERWISE ARISING OUT OF THIS CONTRACT.
LIMITATION OF LIABILITY: Whether due to delay, breach of contract or
warranty, tort (including without limitation negligence), or any other
cause, neither NRG nor its vendors or subcontractors shall be liable
for any special, indirect, punitive, or consequential damages of any
nature, including without limitation loss of actual or anticipated
profits, revenues, or product, loss by reason of shutdown,
nonoperation, or increased expense of manufacturing or operation, or
any costs, labor, or materials required for reconstruction or repairs.
NRG's liability under or arising out of this Contract shall in no event
exceed the Administrative Fee of $200,000.
COMPLIANCE WITH LAWS:
1. NRG shall comply with all laws and regulations existing as of the
date of this Contract applicable to NRG in the performance of its
obligations under this Contract, including without limitation
applicable Federal, State, and local wage and hour laws and
regulations, and all other laws and regulations pertaining to employer-
employee relations.
2. NRG shall not have any responsibility or obligation in obtaining
approvals of governmental bodies or boards, but shall assist Client in
obtaining necessary permits or approvals. As it is recognized that
laws and regulations, including but not limited to those governing the
emissions of gases, odor, liquids, solids, and sounds, are or may be
changing from time to time, any modification of or addition to the
Project which may be required after the effective date of this Contract
in order to cause the Project to comply with any applicable law or
regulation pertaining to the control or emission of gases, odor,
liquids, solids, or sounds shall be considered a change in the Work and
the applicable adjustment therefor shall be accomplished.
GOVERNING LAW: The terms of this Contract shall be construed and
interpreted under, and all respective rights and duties of the parties
shall be governed by, the laws of the State of Minnesota.
TERM; TERMINATION: This Agreement shall continue in force through the
commercial operations and final acceptance of the Project.
Notwithstanding the foregoing, this Agreement may be terminated in the
event of a material breach if the breaching party fails to cure such
breach within thirty (30) days of receipt of written notice thereof
from the other party. Upon termination, NRG will promptly turn over to
Client all specifications, requisitions, construction instructions, and
all other documents, whether in final form or not, which were prepared
by NRG while performing the Work pursuant to this Contract. Client
shall thereafter assume all obligations, commitments, or other
liabilities that NRG shall have
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theretofore incurred or made in connection with its performance of the
Work and for which NRG has not been paid and released.
RELATIONSHIPS TO OTHERS: This Contract shall be binding upon and inure
to the benefit of the respective successors, executors, administrators,
and assigns of Client and NRG. NRG may subcontract a portion of this
Contract or the Work to an affiliated or associated company of NRG. If
NRG makes any such subcontract, all liability protections, releases,
and disclaimers for the benefit of NRG under this Contract shall also
be for the benefit of said affiliated or associated company. Client
acknowledges and agrees that the obligations and liabilities of NRG, as
well as the limitation thereon, all as set forth in this Contract,
shall be applicable to NRG's associated or affiliated companies to the
same extent as if such associated or affiliated companies were a
signatory party to the Contract. Client further acknowledges and
agrees that such liabilities and obligations of, and remedies against,
NRG and its said associated or affiliated companies are sole and
exclusive, are in lieu of all other rights and remedies, whether in
contract, tort (including without limitation negligence), law or
equity, and in no event shall exceed, in the aggregate, NRG's liability
and obligations to and remedies of Client under or related to this
Contract.
SCOPE OF THE CONTRACT: All negotiations, proposals, and agreements
prior to the date of this Contract are merged herein and superseded
hereby, there being no agreements, warranties, liabilities (negligence
or otherwise), or understandings other than those written or specified
in this Contract. This Contract constitutes the entire agreement
between the parties. No obligation or covenant of good faith or fair
dealing shall be implied or interpreted as conferring upon either party
any right, duty, obligation, or benefit other than expressly set forth
in this Contract, notwithstanding the fact that certain of the terms
and conditions of this Contract may give either party discretion in the
manner of performance under this Contract. No changes, modifications,
or amendments to this Contract shall be valid unless agreed to by the
parties in writing and signed by their authorized officers. Client and
NRG represent that this Contract constitutes a bargained-for allocation
of the full risks of loss and damages related to the Contract and that
each party has relied on such provisions as being an effective and
enforceable expression of, and limitation on, the rights and duties of
the parties. Titles and headings used in this Contract are for ease of
reference only and shall not be considered in interpreting this
Contract. This Contract shall not be construed as granting any rights
to any third party based on the theory of third party beneficiary or
otherwise.
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