WIND TURBINE SUPPLY AGREEMENT Reference: SW/DW/02 REVISION: 1.3
Reference:
SW/DW/02
REVISION:
1.3
Table
of Contents
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1.
Recitals
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4
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|
2.
Definitions
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4
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|
3.
Duties and Obligations of Contractor
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11
|
|
4.
Duties and Obligations of Owner
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14
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|
5.
Schedule
|
17
|
|
6.
Mechanical, commissioning, facility substantial and final
completion
|
18
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|
7.
Excusable events
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22
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8.
Change Orders
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24
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9.
Hazardous Substances
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24
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10.
Limitation of Liability
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25
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11. Contract
Price and Payment
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25
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|
12.
Representations and warranties of the Parties
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27
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13.
Mutual indemnity and indemnification for infringement
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28
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14.
Insurance
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28
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15.
Default, cure, remedies
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28
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16.
Additional termination rights
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30
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17.
Confidentiality and intellectual property
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31
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18.
Governing law
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32
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|
19.
General provisions
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33
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Exhibit
A: WTG and SCADA Specifications
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34
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Exhibit
B: Project Site
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34
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Exhibit
C: Milestone Schedule
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34
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|
Exhibit
D: Contractor’s Account for Progress Payments
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34
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Exhibit
F: Insurance Coverage
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34
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Exhibit
G: Commissioning Test and Inspection Procedures
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34
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Exhibit
H: Deleted
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34
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Exhibit
I: Unloading, Crane and Access Road Requirements
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34
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|
Exhibit
J: Notice to Proceed
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34
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Exhibit
K: Mechanical Completion Checklist
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34
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Exhibit
L: Form of Certificate of Mechanical Completion
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34
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Exhibit
M: Form of Certification of Commissioning
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34
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Exhibit
N: Form of Certificate of Facility Substantial Completion
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34
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Exhibit
O: Form of Certificate of Final Completion
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34
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Exhibit
P: Owners’ Scope of Supply
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34
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Exhibit
Q: Site Environmental Conditions
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34
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Exhibit
R: Parent Company Guarantee
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34
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Exhibit
S: Power Curve
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34
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Exhibit
T: Availability Guarantee
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34
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Exhibit
U: Parent Company Operating Guarantee
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34
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Exhibit
V: Warranty
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34
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Page
2 of
34
This
wind
turbine generator (“WTG”) supply and installation agreement with all exhibits
(the “Agreement”) is made and entered into as of 12th
June,
2007
By
and
between
XxXxxx
Inc.
0000
XxXxx Xxxxxx
Xxxxxx,
XX 00000
(hereinafter
“Contractor”)
and
Enerserve
Limited
Registered
number: E.35196
XX
Xxx
000
Xxxxxxxxxxx
Xxxxxx
Xxxxxxxxxxxxxx
Xxxxx
& Xxxxxx Xxxxxxx
(hereinafter
“Owner”)
(Each
a
“Party” and collectively the “Parties”)
Page
3 of
34
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1.
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Recitals
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1.1.
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Whereas:
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1.1.1.
|
Owner
desires to purchase 5 (five) D8 wind turbines, controllers, and all
other
equipment identified in the WTG and Supervisory Control and Data
Acquisition (“SCADA”) Specifications (collectively, the “Wind Turbines”),
and all associated equipment and materials as are specifically described
in Exhibit
A: WTG and SCADA Specifications
(“Turbine Equipment”); which Turbine Equipment shall be used in a wind
power farm being developed by the Owner on behalf on its client in
Punta
Colorada, Chile (the “Project”);
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|
1.1.2.
|
Contractor
desires to manufacture, deliver to dock, supervise the installation
and
commission the Turbine Equipment for the Project; the parties agree
that
the Contractor will not deliver towers. Towers, Foundations, and
Balance
of Plant will be supplied by the
Owner.
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|
1.1.3.
|
Contractor
and Owner wish to enter into this Agreement, pursuant to which Owner
agrees to engage Contractor to engineer, deliver to dock, supervise
the
installation and commission the Turbine Equipment, all as more
particularly described in this
Agreement;
|
Now,
therefore,
Contractor and Owner, intending to be legally bound, hereby agree as
follows:
|
Definitions
|
|
2.1.
|
In
this Agreement capitalized terms shall have the meaning specified
below:
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|
“Agreement”
|
has
the meaning given in the Preamble of this Agreement.
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|
|
“Balance
of Plant”
|
has
the meaning given in Section 4.1
of
this Agreement.
|
|
|
“Blades”
|
means
three (3) separate rotor blades.
|
|
|
“Business
Day”
|
means
any day other than a Saturday or Sunday or a day on which commercial
banks
are closed in the country of the Project Site.
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|
|
“Certificate
of Commissioning”
|
has
the meaning given in Section 6.2.1.3
of
this Agreement.
|
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|
“Certificate
of Facility Substantial Completion”
|
has
the meaning given in Section 6.3.3
of
this Agreement.
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Page
4 of
34
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“Certificate
of Final Completion”
|
has
the meaning given in Section 6.4.3
of
this Agreement.
|
|
|
“Certificate
of Mechanical Completion”
|
has
the meaning given in Section 6.1.4
of
this Agreement.
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|
“Change
in Law”
|
means
and refer to the enactment, adoption, promulgation, amendment,
modification, repeal or change in interpretation after the date of
this
Agreement of any law, statute, act, ordinance, regulation, code,
rule,
order, decree, permit etc.
|
|
|
“Change
Order”
|
has
the meaning given in Section 8.1
of
this Agreement.
|
|
|
“Client”
|
Compañía
Xxxxxxx Chile Generación Ltda.
Xxxx.
Xxxxxxx Xxxx 000, 0xx Xxxxx
Xxxxxxxx,
Xxxxx
|
|
|
“Client’s
Supervisor”
|
Means
the representative of the Contractor at the Project
Site.
|
|
|
“Commencement
Date”
|
has
the meaning given in Section 5.1
of
this Agreement.
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|
“Commission(ing)”
|
means
the start-up and commissioning of a Wind Turbine in accordance with
the
Commissioning Test and Inspection Procedures.
|
|
|
“Commissioning
Test and Inspection Procedures”
|
means
those procedures set forth in Exhibit
G: Commissioning Test and Inspection Procedures.
|
|
|
“Contract
Price”
|
has
the meaning given in Section 11.1
of
this Agreement.
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|
|
“Contractor”
|
includes
the named Contractor identified in the Preamble to this Agreement
and its
successors and permitted assigns.
|
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|
“Contractor’s
Supervisor”
|
means
the representative of the Contractor at the Project
Site.
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|
|
“Contractor’s
Manager”
|
has
the meaning given in Section 3.4
of
this Agreement.
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Page
5 of
34
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“Delivery
Deadline”
|
has
the meaning given in Section 5.2
of
this Agreement.
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|
“Delayed
Delivery Costs”
|
has
the meaning given in Section 5.2.1
of
this Agreement.
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|
|
“Excusable
Event”
|
has
the meaning given in Section 7.1
of
this Agreement.
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|
“Facility
Substantial Completion”
|
shall
be deemed to have occurred when Commissioning of the Wind Turbine
has been
completed and the Wind Turbine is capable of generating continuous
electrical energy.
|
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|
“Facility
Substantial Completion Date”
|
means
the date upon which Facility Substantial Completions is deemed to
have
been achieved under this Agreement.
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|
“Final
Completion”
|
shall
be deemed to have occurred when (i) Facility Substantial Completion
has
occurred, (ii) all items on the Punch List have been completed, (iii)
all
of Contractor’s tools, equipment and debris have been removed from the
Project Site.
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|
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“Final
Completion Date”
|
means
the date upon which Final Completion is deemed to have been achieved
under
this Agreement.
|
|
|
“Force
Majeure”
|
means
occurrences and events that are beyond the reasonable control of
a party
hereto, including, but not limited to, acts of God, acts of the public
enemy, explosions, natural disasters, vandalism, acts or omissions
of any
court, legislative, judicial or executive body, or other governmental
authority (such as a taking by condemnation or power of eminent domain),
any expropriation or confiscation of facilities, compliance with
any order
of any governmental authority, changes of law, blockades, acts of
war,
civil commotions, riots insurrection, rebellion or sabotage, fires,
floods, earthquakes, excessive wind speeds (which means in excess
of 25
meters/second following the Mechanical Completion Date), lack of
sufficient wind, riots, strikes, lockouts and other labor disturbances
which are national in scope, casualties, lightning or unusual inclement
weather (including, but not limited to, rain or snow which falls
earlier
in the year, or in greater amounts, or for longer periods than has
historically been experienced in the area of the Project Site). Force
Majeure shall not include a party’s financial inability to perform under
this Agreement, or any loss of equipment or materials while being
transported (while at sea or otherwise) unless due to a Force Majeure
occurrence or event.
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Page
6 of
34
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“Hazardous
Substance”
|
means
(A) any substance which is listed, defined, designated or classified
under
any environmental law as a (i) hazardous material, substance, constituent
or waste, (ii) toxic material, substance, constituent or waste, (iii)
radioactive material, substance, constituent or waste, (iv) dangerous
material, substance, constituent or waste, (v) pollutant, (vi)
contaminant, or (vii) special waste; (B) any material, substance,
constituent or waste regulated under any environmental laws; or (C)
petroleum, petroleum products, radioactive matters, polychlorinated
biphenyl, pesticides, asbestos, or asbestos-containing
materials.
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“Hub”
|
means
the component at which the rotor blades are attached to the main
shaft of
the Wind Turbine
|
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|
“Intellectual
Property Rights”
|
shall
mean and refer to all patents, copyrights, trademarks, service marks,
trade secrets and all similar and related intellectual property rights
protected under any statutes, laws, codes, rules or
regulations.
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|
“Interconnection
Facilities”
|
means
all the land rights, materials, equipment and facilities to be installed
by the Owner for the purpose of interconnecting the Turbine Equipment
to
the Project’s substation so as to permit the delivery of electrical energy
generated by the Turbine Equipment to the interconnection point within
the
Project’s substation, which shall include, but shall not be limited to,
electrical interconnection, switching, metering, relaying, communication
and safety equipment.
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Page
7 of
34
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“Licensed
Materials”
|
has
the meaning given in Section 17.1
of
this Agreement.
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“Manuals”
|
means
the XxXxxx Inc. Maintenance Manual, XxXxxx Inc. Operation Manual
and
XxXxxx Inc. Installation Manual.
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“Mechanical
Completion”
|
shall
be deemed to have occurred to the Wind Turbine when (i) the Wind
Turbine
has been assembled, installed and erected in substantial compliance
with
the WTG Specifications and the Mechanical Completion Checklist and
(ii)
the Wind Turbine is ready to commence Commissioning.
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“Mechanical
Completion Checklist”
|
means
the checklist for determining Mechanical Completion of a Wind Turbine
as
set forth in Exhibit
K: Mechanical Completion Checklist
of
this Agreement.
|
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|
“Mechanical
Completion Date”
|
means
the date upon which a Wind Turbine is Mechanically
Complete.
|
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“Milestone
Payment”
|
has
the meaning given in Section 11.2
of
this Agreement.
|
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“Milestones”
|
means
those milestones related to the Work to be performed hereunder by
Contractor, as identified on the Milestone Schedule.
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|
“Milestone
Schedule”
|
shall
mean that schedule of milestones set forth in Exhibit
C: Milestone Schedule
of
this Agreement.
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“Nacelle”
|
Shall
mean a Wind Turbine Nacelle.
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|
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“Notice
to Proceed”
|
has
the meaning given in Section 5.1
of
this Agreement.
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Page
8 of
34
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“Owner”
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includes
the named Owner identified in the Preamble to this Agreement and
its
successors and permitted assigns.
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“Owner’s
Appointed Representative”
|
means
the person(s) or organization appointed from time to time by the
Owner to
represent the Owner. The Owner shall advise the Contractor in writing
of
the scope, authority and terms of reference of its appointed
representatives and their intended role under the terms of this contract.
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“Owner’s
Manager”
|
has
the meaning given in Section 4.12
of
this Agreement.
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|
“Owners’
Scope of Supply”
|
means
the work, services and items identified on Exhibit
P: Owners’ Scope of Supply.
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|
“Project”
|
has
the meaning given in Section 1.1.1
of
this Agreement.
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|
“Project
Site”
|
means
the site described in Exhibit
B: Project Site
of
this Agreement.
|
|
|
“Project
Site Operator”
|
the
named Operator of the project site and its successors and permitted
assigns.
Compañía
Xxxxxxx Chile Generación Ltda.
Xxxx.
Xxxxxxx Xxxx 000, 0xx Xxxxx
Xxxxxxxx,
Xxxxx
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“Prudent
Wind Industry Practices”
|
means
the implementation and exercise of those practices, methods and standards
in accordance with the degree of judgment and skill that is ordinarily
possessed and exercised by (and generally accepted as being appropriate
for) organizations who are performing services for electric wind
industry
projects which are of similar scope, nature and complexity as the
project
described in this Agreement.
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“Punch
List”
|
shall
mean and refer to a comprehensive list initially prepared upon Mechanical
Completion and then updated upon Facility Substantial Completion
of the
Wind Turbine identifying those insubstantial details of construction
and
mechanical adjustment which require repair, completion, correction
or
re-execution.
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Page
9 of
34
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“Scheduled
Facility Substantial Completion Date”
|
means
the date identified in the Milestone Schedule for completion of Facility
Substantial Completion; which date may be adjusted pursuant to
the terms and provisions
of
this Agreement.
|
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|
“Scheduled
Final Completion Date”
|
means
the date which is ninety (90) days after the Facility Substantial
Completion Date; which date may be adjusted pursuant to the terms
and
provisions of this Agreement.
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“Tower”
|
has
the meaning given in Section 1.1.1
of
this Agreement.
|
|
|
“Turbine
Equipment”
|
has
the meaning given in Section 1.1.1
of
this Agreement.
|
|
|
“Unloading,
Crane and Access Road Requirements”
|
Means
those specifications given for unloading, crane and access road
requirements given in Exhibit
I: Unloading, Crane and Access Road Requirements.
|
|
|
“Warranty
Period”
|
has
the meaning given in Section 4.13
of
this Agreement.
|
|
|
“Wind
Turbine”
|
has
the meaning given in the Section 1.1.1
of
this Agreement.
|
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|
“Work”
|
has
the meaning given in Section 3.1
of
this Agreement.
|
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|
“WTG
Specifications”
|
means
those specifications for the Wind Turbine set forth in Exhibit
A: WTG and SCADA Specifications
of
this Agreement.
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Page
10
of 34
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3.
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Duties and Obligations of Contractor |
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3.1.
|
The
Contractor hereby covenants and agrees that it shall manufacture
and
deliver the Turbine Equipment: blades FOB Hamburg (Germany) Dock
or
location to be specified; and, nacelle and hub FOB TECO Dock, Round
Rock,
Texas. The Owner shall transport, deliver, unload at the site and
install
the Turbine Equipment (with supervision of the installation and
commissioning by Contractor pursuant to the terms and provisions
of this
Agreement) and carry out any other work and services reasonably necessary
to supply and install the Turbine Equipment in accordance with this
Agreement (collectively, the “Work”). Except as otherwise specifically
provided in this Agreement, the Contractor’s scope of Work shall terminate
at the top (yaw bearings) of the Wind Turbine Tower and at the circuit
breaker/controller in the Wind Turbine Tower.
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|
3.2.
|
For
a period of twenty (20) years following the Facility Substantial
Completion Date, Contractor agrees to sell to Owner such spare parts
as
Owner may require for the Turbine Equipment at commercially reasonable
and
market-competitive pricing, terms and conditions (including reasonable
delivery times); provided that such spare parts requested by Owner
are
still being manufactured as of the date such spare parts are ordered
by
Owner. To cover the eventuality that the Contractor or its subcontractors
cease to trade the Contractor will, at Owners expense, place in an
escrow
account manufacturing details of key wind turbine components relating
to
this sale. The Owner will be provided with a copy of the safekeeping
instructions which will lay out details governing access to the
information that is stored in this account.
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|
3.3.
|
Title
to the Turbine Equipment shall transfer to the Owner upon Owner’s payment
of the entire Contract Price to Contractor. Regardless
of the passage of title, upon the delivery of each component or part
of
the Turbine Equipment: blades FOB to Hamburg (Germany) Dock or location
to
be specified; and, nacelle and hub FOB to TECO Dock, Round Rock,
Texas,
care, custody and control of, and risk of loss or damage to, such
component or part shall thereupon transfer to the
Owner.
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|
3.4.
|
Contractor
shall appoint a single representative to act as its manager and as
the
coordinator of the Agreement on Contractor’s behalf (the “Contractor’s
Manager”). The Contractor’s Manager shall act as the liaison for the
Contractor’s communications with Owner and shall be responsible for
providing all reports due under the Agreement to the Owner. The
Contractor’s Manager shall coordinate all activities of Contractor,
including but not limited to, reporting activities, communication
activities, and insurance procurement and
administration.
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Page
11
of 34
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3.5.
|
Contractor
shall deliver the Turbine Equipment to the port of Hamburg (Germany)
or
TECO Dock, Round Rock, Texas as appropriate, by the corresponding
Delivery
Deadline (as identified in the Milestone Schedule). All other Milestones
referenced in the Milestone Schedule which are applicable to the
Contractor are included therein solely for information purposes and
any
failure of the Contractor to achieve any such Milestone(s) by any
specific
date(s) shall not be a breach or default under this
Agreement.
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|
3.6.
|
The
Contractor guarantees the following performance parameters for the
Wind
Turbines: the actual computed energy yield derived from measurements
made
in accordance with IEC 61400-12 at the generator terminals will be
no less
than 95% of the theoretical energy yield derived from the warranted
power
curve (attached in Exhibit
S power curve).
The target generating availability of each Wind Turbine will be no
less
than 95% in each calendar year, following a ramp up period of 6 months,
subject to the terms and conditions within the availability guarantee
(attached in Exhibit
T Availability Guarantee).
The design lifespan of each Wind Turbine will be 20 years under normal
conditions as prescribed under IEC Class
III.
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|
3.7.
|
The
contractor, based of the environmental data for the site provided
by the
owner through May 30, 2007, has determined that the WTG to be supplied
is
expected to be suitable and safe to fully operate in the Site
environmental Conditions as specified in Exhibit
Q Site Environmental Conditions.
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|
3.8.
|
The
Contractor will provide the Owner with a full set of manufacturing
drawings for the tubular steel Tower, which represent a tower that
has
been certified by a German certification agency for a design life
of at
least 20 years under standard (IEC, GL or DIbt) design conditions,
that
are equal to or exceed the Site environmental Conditions as specified
in
Exhibit
Q Site Environmental Conditions.
The Owner will review the design and provide the Contractor with
written
approval within 4 weeks of receipt of the drawings. In the event
that the
design proves inadequate for the specific seismic requirements for
the
site, the Owner will sponsor an appropriate party, after consultation
with
the Contractor, to incorporate the necessary modifications into the
drawings. Such modifications, if required, will be subject to the
change
order procedure specified in this contract. Any changes to warranty
as a
result of change order will be detailed in the change
order.
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Page
12
of 34
|
3.9.
|
The
Contractor will, at Owner’s expense, support the Owner in the development
of a design for the earthing system for the WTG, after the Owner
has
supplied all necessary site specific information. Contractor will
specify
the required information. Should this information not be received
within
30 days of receipt by Owner of the specification, then a standard
lightning protection system will be presented to the
Owner.
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|
3.10.
|
The
Contractor will provide the Owner with such engineering assistance
and
necessary data as is reasonably required by the Owner to obtain the
Chilean authorities permitting approvals and for the Owner or its
subcontractors to develop the transportation and erection methodologies.
This will be limited to the provision of the following documentation.
Any
additional support or documentation development will be at Owners
expense.
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|
Item
|
Target
delivery date
|
|
|
Earthing
design and specification as described in section 3.9
|
TBC
|
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|
A
standard foundation design that meets or exceeds the site conditions,
excluding seismic considerations
|
TBC
|
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|
Tower
design, excluding seismic considerations as described in section
3.8.
|
TBC
|
|
|
Supporting
calculations and load cases for foundation and tower to enable seismic
analysis and Chilean design approval to commence, should this be
required.
|
TBC
|
|
|
Lighting
protection specification
|
TBC
|
|
|
WTG
weights and lifting data
|
TBC
|
|
|
WTG
installation manual
|
TBC
|
|
|
WTG
operating manual
|
TBC
|
|
|
WYG
maintenance manual
|
TBC
|
|
|
Specification
of site information requirements for earthing design
|
TBC
|
|
|
Specification
of soil investigation requirements
|
TBC
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Page
13
of 34
|
4.
|
Duties and Obligations of Owner |
|
4.1.
|
The
Owner shall, at its sole cost and expense, cause the Balance of Plant
to
be completed, and shall do so in accordance with the Milestone Schedule.
“Balance of Plant” means all items and services necessary to complete the
Project. The Balance of Plant includes, but is not limited to, civil
design and construction work; site facilities; grading, excavation
and
other preparation of the Project Site; design, engineering, procurement,
installation and construction of roads, meteorological stations,
foundations (including those for transformers, met masts and Wind
Turbines, but excluding the design of a standard WTG foundation),
Interconnection Facilities, switchgear and transformer, substation,
grid
interconnection, electrical works, control works, cable and pipe
ducting,
and interface hardware apart from the SCADA equipment delivered by
the
Contractor, maintenance buildings and fiber-optic cabling between
Wind
Turbine, substation and other points of surveillance; supply, design
and
construction of those facilities included in (and compliance with)
the
Exhibit
I: Unloading, Crane and Access Road Requirements;
supply and installation of met mast if such is deemed necessary by
the
Owner; transportation from the port of Hamburg or TECO Dock, Round
Rock,
Texas as applicable to the Project Site; unloading of all Turbine
Equipment at the Project Site, erection and installation of all Turbine
Equipment in accordance with instructions given by the Contractor’s
Supervisor and with the Manuals, achieving Mechanical Completion
as to the
Wind Turbine, connecting the Project to the transmission grid, energizing
the Project; and all other items and services necessary to complete
the
Project (excluding the Work) in accordance with Prudent Wind Industry
Practices. The
Owner shall furthermore supply the tower of the wind
turbine.
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|
4.2.
|
Owner
acknowledges that, concurrent with the duration of this Agreement,
Owner
(and/or its contractor(s)) will be supplying, constructing, installing,
commissioning and testing the Balance of Plant. In connection therewith,
Owner shall (and shall cause its contractors) to cooperate with Contractor
to the extent reasonably required to achieve the performance of both
the
Balance of Plant and permit the Contractor to commission the Turbine
Equipment as contemplated under this
Agreement.
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Page
14
of 34
|
4.3.
|
The
Owner represents and warrants that it will thoroughly review the
Foundation Load Data as provided by the Contractor, and covenants
that it
shall install and construct the Project foundation such that this
satisfies the performance and related specifications identified in
such
Foundation Load Data. Owner acknowledges responsibility for any problems
arising out of any changes to soil bearing properties that arise
out of
the construction phase and will take all good faith steps to ensure
that
the geotechnical assessment of the soil is not invalidated by disruption
caused during foundation
construction.
|
|
4.4.
|
Owner
shall secure and pay for all permits, licenses and governmental approvals,
certifications and inspections necessary for the execution and completion
of the Work
and the Contractor shall cooperate with the Owner in the Owner’s efforts
to obtain such items.
|
|
4.5.
|
Owner
shall comply with, and otherwise provide all service and items required
by, Exhibit
I: Unloading, Crane and Access Road Requirements
|
|
4.6.
|
Upon
delivery of any Turbine Equipment FOB to the port of Hamburg (Germany)
and
the TECO Dock, Round Rock, Texas, the Owner shall take responsibility
for
all the Turbine Equipment and exercise its best efforts to cause
such
Turbine Equipment to be transported to the site as soon as possible.
In
the event that the Owner fails to take responsibility of the Turbine
Equipment within two Business Days after delivery of the same to
either
port, Contractor may (at Contractor’s option) arrange to keep such
equipment stored in a safe and secured storage facility. All costs
and
expenses associated with Owner’s failure to timely take responsibility of
the Turbine Equipment (including, without limitation, all unloading,
storage, demurrage and insurance costs) shall be borne solely by
Owner,
and Owner shall reimburse Contractor for all such costs and expenses
within thirty (30) days of Owner’s receipt of an invoice for the same from
Contractor.
In
the event that the Turbine Equipment arrives more than two Business
Days
in advance of the agreed delivery date to one of the specified ports,
the
Owner may take responsibility of the Turbine Equipment, but is under
no
obligation to do so until the agreed milestone delivery date and
all costs
and expenses associated with the early arrival shall be borne by
Contractor.
|
|
4.7.
|
The
Owner shall install and erect all of the Turbine Equipment and shall
do so
in accordance with the Manuals
and the instructions given by Contractor’s Supervisor and Prudent Wind
Industry Practice.
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Page
15
of 34
|
4.8.
|
The
Owner expressly acknowledges and agrees (i) that the presence of
the
Contractor’s Supervisor during the installation and the provision of the
Manuals to Owner shall not relieve Owner of its responsibility to
properly
and timely erect, install and Mechanically Complete the Turbine Equipment,
and (ii) that, despite the presence of the Contractor’s Supervisor and the
provision of such Manuals, (iii) Contractor shall not be deemed to
have
provided any guaranty, warranty or covenant that the Turbine Equipment
will be erected, installed or Mechanically Completed properly or
timely,
and (iv) Contractor shall not be responsible for any errors, omissions,
defects, deficiencies or delays in reference to the erection, installation
or Mechanical Completion of the Turbine Equipment, unless if the
error,
omission, defect, deficiency or delay is attributable to an act or
instruction from the Contractor’s Supervisor or the provided
Manuals.
|
|
4.9.
|
In
the event that the Wind Turbine achieves Mechanical Completion and
grid
energizing of the Project is not available for more than twenty-four
(24)
consecutive hours thereafter, the Owner shall (promptly after the
expiration of such twenty-four (24) hour period) retain and secure
such
personnel, equipment and generators as are necessary to spin the
Wind
Turbine to prevent fretting, corrosion and other deterioration (which
spinning the Owner shall also commence promptly after the expiration
of
any such twenty-four (24) hour
period).
|
|
4.10.
|
In
the event the Contractor
is
unable
to deliver any Turbine Equipment to the port of Hamburg (Germany)
or TECO
Dock, Round Rock, Texas as a result of any act or omission by Owner,
its
contractors or others from whom Owner may be responsible for
all costs and expenses incurred in connection with storing such Turbine
Equipment at other locations until delivery to the port of Hamburg
(Germany) or TECO Dock, Round Rock, Texas is possible, including,
without
limitation, all rental charges and all transportation and
loading/unloading fees.
|
|
4.11.
|
Owner
hereby grants to Contractor, its Subcontractors, and to such other
persons
or entities as Contractor may designate, full right of access to
the
Project Site during performance of the Work hereunder, subject to
permissions and procedures of the Project Site Operator.
If
full right of access, regardless of the reason hereof is not granted
to
Contractor, then the turbine is considered taken over by Owner and
the
Contractor will be relieved from all responsibilities under this
Agreement
and any outstanding payment shall be due and payable at the time
full
right of access is not granted.
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Page
16
of 34
|
4.12.
|
Owner
shall appoint a representative to act as its manager and as the
coordinator of the Agreement on Owner’s behalf (the “Owner’s Manager”).
The Owner’s Manager shall be the Owner’s authorized representative, and
who shall receive and initiate all communications from and with the
Contractor and be authorized to render binding decisions related
to the
Project.
|
|
4.13.
|
Provided
that the Owner maintains and services the Wind Turbine in accordance
with
the Manuals, Prudent Wind Industry Practice and the instructions
of the
Contractor, the Contractor warrants for a period of two (2) years
(the
Warranty Period) following the Facility Substantial Completion that
the
Turbine Equipment will be free from defects and deficiencies, as
described
in Exhibit V: Warranty. If at any time prior to the expiry of the
Warranty
Period, Owner discovers any failure or breach of a non consumable
item and
notifies the Contractor in writing of such failure, Contractor at
its
cost, shall within a reasonable period of time, deliver and install
replacement parts at Project Site.
The Contractor may at its sole discretion decide to change parts
that the
Contractor deems can be done by persons other than authorized service
persons from Contractor.
|
|
5.
|
Schedule
|
|
5.1.
|
The
Contractor shall commence the performance of its obligations under
this
Agreement upon its receipt of a written notice to proceed from the
Owner
in the form attached to this Agreement as Exhibit
J: Notice to Proceed
(the “Notice to Proceed”); it being acknowledged and agreed by Owner that
it shall deliver the Notice of Proceed to Contractor within a period
of
fifteen (15) business days from the date of this agreement. The date
of
receipt by Contractor of the Notice to Proceed shall be deemed the
“Commencement Date”.
|
|
5.2.
|
The
Contractor shall deliver the Wind Turbines: blades to the port of
Hamburg
(Germany), nacelle and hub to the TECO Dock, Round Rock, Texas by
the
“Delivery Deadline” corresponding to the Milestone
Schedule.
|
|
5.2.1.
|
If
the Contractor fails to deliver the Wind Turbine to the port of Hamburg
(Germany)/TECO Dock, Round Rock, Texas by the corresponding Deadline
Delivery Date, then the Owner shall be entitled to recover from the
Contractor any reasonable additional project construction costs (the
“Delayed Delivery Costs”) caused by such delay, and not as a penalty. The
Owner agrees that no costs associated with consequential production
loss
of the Wind Turbine will be recovered from the Contractor. The Delayed
Delivery Costs so claimed shall constitute Owner’s sole and exclusive
remedy should the Contractor fail to deliver the Wind Turbine to
the port
of Hamburg (Germany)/TECO Dock, Round Rock, Texas by the Corresponding
Delivery Deadline.
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Page
17
of 34
|
5.2.2.
|
The
Contractor’s aggregate liability for any and all Delayed Delivery Costs as
set forth in Section 5.2.1
shall be limited to a maximum of five
percent (5%) of the Contract
Price.
|
|
5.3.
|
As
otherwise indicated in this Agreement, the Owner shall be responsible
for
erecting and installing the Turbine Equipment and achieving Mechanical
Completion with respect to the Wind Turbine. The Owner
shall exercise reasonable efforts to achieve Mechanical Completion
of the
Wind Turbine by the corresponding dates
provided in the Milestone Schedule.
However, failure by the Owner
to
achieve Mechanical Completion of the Wind Turbine on or before any
specific date shall not be a breach or default under this
Agreement.
|
|
5.4.
|
As
soon as commercially practicable after the Owner achieves Mechanical
Completion as to the Wind Turbine, the Contractor shall take care
of
Commissioning of the Wind Turbine.
|
|
5.5.
|
The
Contractor shall exercise reasonable efforts to
achieve Facility Substantial Completion by the Scheduled
Facility Substantial Completion Date. However, failure by the Contractor
to achieve
Facility Substantial Completion by the Scheduled
Facility Substantial Completion Date shall not be a breach or default
under this Agreement.
|
|
5.6.
|
The
Contractor shall exercise reasonable efforts to achieve Final Completion
by the Scheduled Final Completion Date. However, failure by the Contractor
to achieve Final Completion by the Scheduled Final Completion Date
shall
not be a breach or default under this
Agreement.
|
|
6.
|
Mechanical,
commissioning, facility substantial and final
completion
|
|
6.1.
|
Mechanical
Completion
|
|
6.1.1.
|
When
the Owner has erected and installed any of the Wind Turbine according
to
the instructions in the installation manuals and as instructed by
the
Contractor’s supervisor, completed the procedures as to this Wind Turbine
which is outlined in the Mechanical Completion Checklist and believes
that
it has achieved Mechanical Completion as to that Wind Turbine, the
Owner
shall so notify the Client’s Supervisor. Immediately thereafter, the
Client’s Supervisor shall conduct those investigations and inspections as
he deems necessary or appropriate to determine if Mechanical Completion
of
the Wind Turbine has in fact been achieved.
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Page
18
of 34
|
6.1.2.
|
Within
one (1) Business Days after the receipt of the Client notice by the
Contractor’s Supervisor, the Client’s Supervisor shall either (i) notify
the Owner that Mechanical Completion of the Wind Turbine has been
achieved, or (ii) notify the Owner that Mechanical Completion of
the Wind
Turbine has not been achieved and stating the reasons therefore.
Should
the Client fail to respond to the Owner’s notice within one (1) Business
Day period, the corresponding Wind Turbine shall be deemed Mechanically
Complete.
|
|
6.1.3.
|
In
the event the Client’s Supervisor provides timely notice that Mechanical
Completion of the Wind Turbine has not been achieved, the Owner shall
immediately correct and/or remedy the defects, deficiencies and other
conditions which so prevent Mechanical Completion of the Wind Turbine.
Upon completion of such corrective and/or remedial actions, the Owner
shall resubmit its notice stating that it believes Mechanical Completion
of the Wind Turbine has been achieved and the foregoing procedures
shall
be repeated until Mechanical Completion of the Wind Turbine has in
fact
been achieved.
|
|
6.1.4.
|
Once
the Wind Turbine is deemed to have achieved Mechanical Completion,
the
Contractor and the Owner shall execute a “Certificate of Mechanical
Completion” (in the form attached hereto as Exhibit
L Form of Certification of Mechanical Completion)
establishing and identifying the Mechanical Completion Date of the
Wind
Turbine, which date shall be the date the Owner sent the notice to
Client
indicating achievement of Mechanical Completion.
|
|
6.2.
|
Commissioning
|
|
6.2.1.
|
After
the Mechanical Completion of the Wind Turbine, the Contractor shall
commence the initial operation of such Wind Turbine (i.e., the
Commissioning of the Wind Turbine) and shall continue with such operation
until the Facility Substantial Completion Date. All costs incurred
for the
Commissioning of a Wind Turbine shall be borne by
Contractor.
|
Page
19
of 34
|
6.2.1.1.
|
When
the Contractor has completed the procedures as to the Wind Turbine
outlined in the Commissioning Test and Inspection Procedures and
believes
that it has achieved Commissioning to said Wind Turbine, the Contractor’s
Supervisor shall so notify the Owner. Immediately thereafter, the
Owner
(or the Owner’s Appointed Representative) shall conduct those
investigations and inspections as it deems necessary or appropriate
to
determine if Commissioning of the Wind Turbine has in fact been achieved.
Within one Business Day after the receipt of the Contractor’s notice by
the Owner, the Owner (or the Owner’s Appointed Representative) shall
either (i) notify the Contractor’s Supervisor that Commissioning of the
Wind Turbine has been achieved, or (ii) notify the Contractor’s Supervisor
that Commissioning of the Wind Turbine has not been achieved and
stating
the reasons therefore. Should the Owner (or the Owner’s Appointed
Representative) fail to respond to the Contractor’s notice within such One
Business Day period, the corresponding Wind Turbine shall be deemed
Commissioned.
|
|
6.2.1.2.
|
In
the event the Owner (or the Owner’s Appointed Representative) provides
timely notice that Commissioning of the Wind Turbine has not been
achieved, the Contractor shall immediately correct and/or remedy
the
defects, deficiencies and other conditions which so prevent Commissioning
of the Wind Turbine. Upon completion of such corrective and/or remedial
actions, the Contractor shall resubmit its notice stating that it
believes
Commissioning of the Wind Turbine has been achieved and the foregoing
procedures shall be repeated until Commissioning of the Wind Turbine
has
in fact been achieved.
|
|
6.2.1.3.
|
Once
the Wind Turbine is deemed Commissioned, the Contractor and the Owner
shall thereafter execute a “Certificate of Commissioning” (in the form
attached hereto as Exhibit
M: Form of Certification of Commissioning)
establishing and identifying the Commissioning date of the Wind Turbine,
which date shall be the date the Contractor sent the notice to Owner
indicating achievement of Commissioning.
|
|
6.3.
|
Facility
Substantial Completion
|
Page
20
of 34
|
6.3.1.
|
When
the Contractor believes that it has achieved its responsibilities
with
respect to Facility Substantial Completion, the Contractor’s Supervisor
shall so notify the Owner. Immediately thereafter, the Owner (or
the
Owner’s Appointed Representative) shall conduct those investigations and
inspections as it deems necessary or appropriate to determine if
the
Contractors responsibilities with respect to Facility Substantial
Completion has in fact been achieved. Within one Business Day after
the
receipt of the Contractor’s Supervisors notice by the Owner, the Owner (or
the Owner’s Appointed Representative) shall either (i) notify the
Contractor that Facility Substantial Completion has been achieved,
or (ii)
notify the Contractor that its responsibilities with respect to Facility
Substantial Completion has not been achieved and stating the reasons
therefore. Should the Owner (or the Owner’s Appointed Representative) fail
to respond to the Contractor’s notice within one Business Day period,
Facility Substantial Completion shall be deemed to have been achieved.
|
|
6.3.2.
|
In
the event the Owner (or the Owner’s Appointed Representative) provides
timely notice that Facility Substantial Completion has not been achieved,
the Contractor shall immediately initiate steps to correct and/or
remedy
the defects, deficiencies and other conditions which so prevent Facility
Substantial Completion associated with the turbines and their
commissioning. The foregoing procedures shall be repeated until the
date
Facility Substantial Completion has in fact been
achieved.
|
|
6.3.3.
|
Once
Facility Substantial Completion is deemed to have been achieved,
the
Contractor and the Owner shall execute a “Certificate of Facility
Substantial Completion” (in the form attached hereto as Exhibit
N: Form of Certificate of Facility Substantial Completion
establishing and identifying the Facility Substantial Completion
Date,
which date shall be the date the Contractor sent the notice to Owner
indicating achievement of Facility Substantial Completion.
|
|
6.3.4.
|
From
the Facility Substantial Completion Date and throughout the lifetime
of
the Wind Turbine, the Contractor is granted the right to monitor
the Wind
Turbine in order for the Contractor to obtain operating data for
reference
purposes. All or any raw data so gathered shall be made available
to the
Owner if requested.
|
|
6.4.
|
Final
Completion
|
Page
21
of 34
|
6.4.1.
|
When
the Contractor believes that it has achieved Final Completion with
respect
to its responsibilities, the Contractor’s Supervisor shall so notify the
Owner. Immediately thereafter, the Owner (or the Owner’s Appointed
Representative) shall conduct those investigations and inspections
as it
deems necessary or appropriate to determine if Final Completion with
respect to the Contractor’s responsibilities has in fact been achieved.
Within one Business Day after the receipt of the Contractor’s notice by
the Owner, the Owner shall either (i) notify the Contractor that
Final
Completion has been achieved, or (ii) notify the Contractor that
Final
Completion has not been achieved and stating the reasons therefore.
Should
the Owner fail to respond to the Contractor’s notice within such one
Business Day period, Final Completion shall be deemed to have been
achieved.
|
|
6.4.2.
|
In
the event the Owner (or the Owner’s Appointed Representative) provides
timely notice that Final Completion has not been achieved, the Contractor
shall, at its sole cost and expense, immediately take steps to correct
and/or remedy the defects, deficiencies and other conditions which
so
prevent Final Completion associated with the turbines and their
commissioning. Upon completion of such corrective and/or remedial
actions,
the Contractor’s Supervisor shall resubmit its notice stating that it
believes Final Completion has been achieved and the foregoing procedures
shall be repeated until Final Completion has in fact been
achieved.
|
|
6.4.3.
|
Once
Final Completion is deemed to have been achieved, the Contractor
and the
Owner shall thereafter execute a “Certificate of Final Completion” (in the
form attached hereto as Exhibit
O: Form of Certificate of Final Completion)
establishing and identifying the Final Completion Date, which date
shall
be the date the Contractor sent the notice to Owner indicating achievement
of Final Completion.
|
|
7.
|
Excusable
events
|
|
7.1.
|
Contractor
shall be entitled to an equitable adjustment in the Contract Price
and the
Milestone Schedule (including, without limitation, the Delivery Deadline)
upon the occurrence of an Excusable Event. For purposes of this Agreement,
an “Excusable Event” shall mean and refer
to:
|
|
7.1.1.
|
Delays
or interference with the Work resulting from the acts or omissions
of
Owner, its contractors, subcontractors, employees or other parties
for
whom the Owner may be liable (including, without limitation, any
contractors or subcontractors performing the Balance of
Plant);
|
|
7.1.2.
|
The
occurrence of a Force Majeure
event;
|
Page
22
of 34
|
7.1.3.
|
The
discovery of concealed or unknown physical conditions at the Project
Site;
|
|
7.1.4.
|
The
discovery of any Hazardous Substances at the Project Site for which
the
Contractor is not responsible as provided in this
Agreement;
|
|
7.1.5.
|
A
Change in Law;
|
|
7.1.6.
|
The
failure of the Owner to acquire any of the permits or other items
which
the Owner is required to obtain pursuant to Section 4.4,
including, without limitation, the failure to acquire such permits
in a
timely fashion so that Contractor may perform the
Work;
|
|
7.1.7.
|
The
suspension of the Work in whole or in part by the Owner pursuant
to the
terms of this Agreement;
|
|
7.1.8.
|
Stoppages
in the Work which occur pursuant to the terms and provisions of Section
15.4;
|
|
7.1.9.
|
Failure
of the Owner to:
|
|
7.1.9.1.
|
Complete
any portion of the Balance of Plant by the corresponding deadline
provided
in the Milestone Schedule;
|
|
7.1.9.2.
|
Supply
the tower of the wind turbine;
|
|
7.1.9.3.
|
Supply
of the foundation;
|
|
7.1.9.4.
|
Comply
with Exhibit
I: Unloading, Crane and Access Road Requirements.
|
|
7.1.9.5.
|
To
install the Interconnection Facilities and to energize the Project
by the
dates set forth in the Milestone Schedule as a result of any acts
or
omissions by Owner, its contractors or others for whom Owner may
be
responsible.
|
|
7.1.9.6.
|
To
properly and timely complete any portion of the Balance of Plant,
including without limitation, the failure to erect, install and
Mechanically Complete the Turbine Equipment in accordance with the
Manuals
and the instructions given by Contactor’s Supervisor or
|
|
7.1.9.7.
|
Deliver
the Notice to Proceed to the Contractor within a period of fifteen
(15)
business days from the date of this
agreement.
|
Page
23
of 34
|
7.2.
|
Once
the Parties have mutually agreed as to the adjustment in the Contract
Price and/or the Milestone Schedule, if any, due to the occurrence
of an
Excusable Event, they shall enter into a Change Order reflecting
their
agreement as to the same.
|
|
8.
|
Change
Orders
|
|
8.1.
|
A
“Change Order” is a written instrument signed by the Owner and Contractor,
stating their mutual agreement upon all of the following: (i) a change
in
the Work; (ii) the amount of the adjustment in the Contract Price,
if any
(iii) the adjustment to warranties given, if any; and (iv) the extent
of
the adjustment in the Milestone Schedule, if
any.
|
|
8.2.
|
Notwithstanding
anything to the contrary contained in this Agreement, the Contractor
shall
not be obligated to proceed with any change in the Work requested
by Owner
unless and until a Change Order is executed by the Parties in relation
to
such change. Further, the Contractor shall not be required to implement
a
requested change in the Work by Owner if Contractor reasonably believes
the implementation of such change could impair its ability to achieve
any
of the performance guarantees, warranties or covenants set forth
in this
Agreement.
|
|
9.
|
Hazardous
Substances
|
|
9.1.
|
Owner
shall bear all costs and expenses and shall be solely liable for
any
response, removal, investigation, cleanup, or other remedial action
required by applicable environmental laws related to any Hazardous
Substance introduced to the Project Site by any party other than
the
Contractor or its Subcontractors.
|
|
9.2.
|
To
the fullest extent permitted by law, Owner shall
indemnify, defend and hold harmless the Contractor, and its parent
company, officers, directors, employees, agents, affiliates, and
representatives, from and against any and all claims, demands, suits,
liabilities, fines, injuries (personal or bodily), property damage,
causes
of action, losses, costs, expenses, damages or penalties, including,
without limitation, court costs and reasonable attorneys’ fees, arising
out of, or resulting from, or occasioned by or in connection with
any
Hazardous Substance, existing at, in, on or under the Project Site,
unless
the same is introduced to the Project Site by any party other than
the
Contractor or its Subcontractors.
|
Page
24
of 34
|
10.
|
Limitation
of Liability
|
|
10.1.
|
Notwithstanding
anything to the contrary contained in this Agreement, in no event
shall
Contractor, its parent company, affiliates, contractors, subcontractors,
consultants, vendors, Contractors and agents be liable, alone or
in the
aggregate, to Owner for any damages, claims, demands, suits, causes
of
action, losses, costs, expenses and/or liabilities related in any
manner
to this Agreement in excess of an amount equal to fifteen percent
(15%) of
the Contract Price, regardless of whether such liability arises out
of
breach of contract, guarantee or warranty, tort, product liability,
indemnity, contribution, strict liability or any other legal theory;
provided, however, the preceding limitation of liability shall not
apply
to, and no credit shall be issued against such liability for, Contractor’s
indemnity obligations set forth in Sections 13.1
solely as they relate to claims by third parties for bodily injury
or
property damage.
|
|
10.2.
|
Notwithstanding
anything to the contrary contained in this Agreement, Owner and Contractor
waive all claims against each other (and against each other’s parent
company, affiliates, contractors, subcontractors, consultants, vendors,
Contractors and agents) for any consequential, incidental, indirect,
special, exemplary or punitive damages (including, but not limited
to,
loss of actual or anticipated profits, revenues or product; loss
by reason
of shutdown or non-operation; increased expense of operation, borrowing
or
financing; loss of use or productivity; or increased cost of capital),
and
regardless of whether any such claim arises out of breach of contract
or
guarantee, tort, product liability, indemnity, contribution, strict
liability or any other legal theory. Any consequential, incidental,
indirect, special, and exemplary or punitive damages incurred by
the
Contractor or Owner in relation to a third party shall, for all purposes
of this Agreement, be deemed consequential, incidental, indirect,
special,
and exemplary or punitive damages in relation to any claim brought
by the
Contractor or Owner against the other party to this Agreement. Any
liquidated damages payable by Contractor under this Agreement shall
not be
deemed consequential damages for purposes of this
Agreement.
|
|
11.
|
Contract
Price and Payment
|
|
11.1.
|
The
Owner shall pay the Contractor for the due, proper and complete
performance of the Work as required hereunder, the “Contract Price” of
[***] subject
to additions and deductions by Change Order as provided in this Agreement.
The Contract Price shall be paid to the Contractor in US$.
|
|
11.2.
|
Upon
completion of the following Milestones, the corresponding portion
of the
Contract Price shall be due and payable to Contractor (each, a “Milestone
Payment”):
|
[***] This
material has been omitted pursuant to a request for confidential treatment
and
filed separately with the Securities and Exchange Commission.
Page
25
of 34
|
Milestone
|
Milestone
Payment
|
|
|
Signing
of this Agreement
|
[***]
|
|
|
Issue
of Notice to Proceed
|
[***]
|
|
|
Delivery
of Turbine Equipment FOB Hamburg / FOB TECO
|
[***]
|
|
|
the
date upon which Facility
Substantial Completion
is
achieved
|
[***]
|
|
|
the
date upon which Final
Completion
is
achieved
|
[***]
|
|
11.2.1.
|
The
contractor is to provide all Wind Turbine components as one consignment
for import into Chile except the tower which is supplied by the Owner.
In
the event that components are shipped or delivered as multiple
consignments of more than two, the Owner will be entitled to recover
any
additional costs associated with accepting the multiple consignments
from
the Contractor.
|
|
11.2.2.
|
The
Delivery deadline date for consignments to the port of Hamburg and
TECO
Dock, Round Rock, Texas will be April 30th,
2008.
|
|
11.2.3.
|
Within
fifteen (15) business days after receipt of each application for
Payment,
the Owner shall pay directly to the account of Contractor, as identified
in Exhibit
D: Contractor’s Account for Progress Payments,
the amount properly due with respect to each such application. The
Notice
to Proceed will be issued by the Owner to the Contractor within a
period
of fifteen (15) business days from the date of this
agreement.
|
[***] This
material has been omitted pursuant to a request for confidential treatment
and
filed separately with the Securities and Exchange Commission.
Page
26
of 34
|
11.2.4.
|
Contractor
will provide Owner with a Parent Company Guarantee in the form attached
to
this agreement as Exhibit
R Parent Company Guarantee
to
cover any advance payments prior to delivery FOB Hamburg / FOB TECO
which
shall expire on such delivery. Contractor
will then replace the Parent Company Guarantee as attached in Exhibit
R
with a Parent Company Operating Guarantee (as attached in Exhibit
U
Contractor’s Parent Company Operating Guarantee) for the sole benefit of
Owner to a value of USD 500,000 to remain in effect until expiry
of the
Turbine Manufacturer’s warranty.
|
|
11.2.5.
|
Not
more than five (5) business days from the date the Turbine Equipment
leaves the factory for the Port of Hamburg/ TECO Dock, Round Rock,
Texas,
Contractor will provide Owner with proof of loading onto
transport.
|
|
11.2.6.
|
Should
the Owner fail to pay any undisputed amount to Contractor when the
same is
due, Contractor may, without prejudice to any other rights or remedies
it
may have under this Agreement, stop its performance of the Work,
subject
to giving the Owner 14 days notice in writing of the intention to
suspend
the works, until payment of the amount owing has been received by
Contractor. In the event that such action is subsequently found to
be a
result of default by the Contractor, the Owner shall be entitled
to
recover any reasonable costs incurred as a result of the Contractor’s
decision to suspend the works.
|
|
12.
|
Representations
and warranties of the Parties
|
The
Parties hereby represent and warrant as follows:
|
12.1.
|
The
Contractor is a corporation duly organized, validly existing and
in good
standing under the laws of the State of Nevada,
USA.
|
|
12.2.
|
The
execution, delivery and performance of this Agreement by the Parties
have
been duly authorized by all necessary corporate action on the part
of the
Parties and do not and will not require the consent of any trustee
or
holder of any indebtedness or other obligation of the Parties or
any other
party to any other agreement with the
Parties.
|
|
12.3.
|
This
Agreement has been duly executed and delivered by the Parties. This
Agreement constitutes the legal, valid, binding and enforceable obligation
of the Parties, except to the extent that its enforceability may
be
limited by bankruptcy, insolvency, reorganization, moratorium or
other
similar laws affecting the rights of creditors generally or by principles
of equity.
|
Page
27
of 34
|
12.4.
|
No
governmental authorization, approval, order, license, permit, franchise
or
consent, and no registration, declaration or filing with any governmental
authority is required on the part of Parties in connection with the
execution, delivery and performance of this Agreement, except those
which
have already been obtained or which Parties anticipates will be timely
obtained in the ordinary course of performance of this
Agreement.
|
|
13.
|
Mutual
indemnity and indemnification for
infringement
|
|
13.1.
|
Owner,
as one party, and Contractor, as the other party, agree to defend,
indemnify and hold each other, and each other’s lenders, parent company,
affiliates, officers, directors, agents and employees, harmless from
and
against any claims, losses, damages or liabilities (including, but
not
limited to, reasonable attorneys’ fees and court costs, but excluding
consequential damages) on account of any claim by a third party for
bodily
injury or property damage against the indemnified party caused by
the
negligent act or omission, or willful misconduct, of the indemnifying
party or the indemnifying party’s employees, contractors, subcontractors
or agents, in connection with the performance of their respective
obligations under this Agreement.
|
|
14.
|
Insurance
|
|
14.1.
|
The
Owner and the Contractor shall each procure and maintain the insurance
coverage identified in Exhibit
F: Insurance Coverage,
and shall do so in accordance with the terms and conditions of such
Exhibit.
|
|
15.
|
Default,
cure,
remedies
|
Contractor
Default
|
15.1.
|
The
occurrence of any one or more of the following matters constitutes
a
default by the Contractor under this Agreement:
|
|
15.1.1.
|
Contractor
becomes insolvent, or generally does not pay its debts as they become
due,
or admits in writing its inability to pay its
debts;
|
|
15.1.2.
|
Contractor
makes a general assignment for the benefit of creditors;
|
|
15.1.3.
|
Insolvency,
receivership, reorganization, or bankruptcy proceedings are commenced
by
or against Contractor;
|
|
15.1.4.
|
Contractor
assigns or transfers the Agreement or any right or interest herein,
except
as expressly permitted herein (as in Section 19.2 of this Agreement);
|
Page
28
of 34
|
15.1.5.
|
Any
material representation or warranty made by Contractor herein was
false or
intentionally misleading when made;
or
|
|
15.1.6.
|
Contractor
fails to perform any material term or provision of this Agreement,
and
such failure continues for thirty (30) days following receipt of
written
notice from Owner to cure such failure; provided, however, if such
failure
cannot with due diligence be remedied by Contractor within such thirty
(30) day period, and the Contractor shall have diligently prosecuted
the
remedying of such failure within such thirty (30) days, such period
shall
be extended by such additional time period as may be reasonably required
by Contractor to cure such failure;
or
|
|
15.2.
|
In
the event Contractor is in default pursuant to Section 15.1,
Owner shall have the following rights and remedies, in addition to
those
rights and remedies that may be available to Owner at law or in equity,
and Contractor shall have the following
obligations:
|
|
15.2.1.
|
Owner,
without prejudice to any of its other rights or remedies, may terminate
this Agreement forthwith by delivery of a written notice of termination
to
Contractor;
|
|
15.2.2.
|
Upon
termination of this Agreement following a default by Contractor,
Contractor shall withdraw from the Project Site, shall assign to
Owner
Contractor’s subcontracts, and shall remove any debris or waste materials
generated by Contractor in the performance of the Work hereunder;
and.
|
|
15.2.3.
|
Owner
shall thereupon have the right to have the Work hereunder
completed.
|
|
15.3.
|
Upon
the occurrence of a Contractor Default, the Owner may, without prejudice
to any other right or remedy the Owner may have under this Agreement
or at
law and/or in equity, terminate the Agreement and/or the Contractor’s
right to perform the Work.
|
Owner
Default
|
15.4.
|
The
occurrence of any one or more of the following matters constitutes
a
default by the Owner under this
Agreement:
|
|
15.4.1.
|
Owner
becomes insolvent, or generally does not pay its debts as they become
due,
or admits in writing its inability to pay its
debts;
|
|
15.4.2.
|
Owner
makes a general assignment for the benefit of creditors;
|
Page
29
of 34
|
15.4.3.
|
Insolvency,
receivership, reorganization or bankruptcy proceedings are commenced
by or
against Owner;
|
|
15.4.4.
|
Owner
assigns or transfers this Agreement or any right or interest therein,
except as otherwise expressly permitted hereunder;
|
|
15.4.5.
|
Any
material representation or warranty made by the Owner herein was
false or
intentionally misleading when made;
|
|
15.4.6.
|
Owner
fails to make any payment to Contractor when due pursuant to the
terms of
this Agreement, and such failure continues for thirty (30) days following
receipt of written notice from Contractor to cure such failure;
or
|
|
15.4.7.
|
Owner
fails to perform any material term or provision of this Agreement
(excluding its payment obligations as addressed in the preceding
subsection 15.4.6)
and such failure continues for thirty (30) following receipt of written
notice from Contractor to cure such failure; provided, however, if
such
failure cannot with due diligence be remedied by Owner within such
thirty
(30) day period, and the Owner shall have diligently prosecuted the
remedying of such failure within such thirty (30) days, such period
shall
be extended by such additional time period as may be reasonably required
by Owner to cure such failure;
|
|
15.5.
|
In
the event that Owner is in default pursuant to Section 15.4,
Contractor may, without prejudice to any other rights or remedies
it may
have under this Agreement or at law or in equity, elect to terminate
this
Agreement by giving written notice of termination to Owner. In addition
thereto, Contractor shall have all other rights and remedies to which
it
is entitled under this Agreement and/or at law or in equity.
|
|
16.
|
Additional
termination rights
|
|
16.1.
|
If
the Work, or a material portion thereof, is suspended by the Owner
for
more than twelve (12) consecutive months pursuant to the terms of
Section
16.2
or
is delayed or interrupted for more than twelve (12) consecutive months
by
reason of a Force Majeure event, the Contractor may, in either such
case,
terminate this Agreement by providing written notice thereof to Owner.
In
the event this Agreement is so terminated, the Contractor shall be
entitled to payment from Owner for all Work performed by Contractor
to the
date of termination and reimbursement for all demobilization costs
incurred by Contractor and for all cancellation charges payable by
Contractor to its Subcontractors.
|
Page
30
of 34
|
16.2.
|
The
Owner may, without cause, order the Contractor to suspend the Work
in
whole or in part for such period of time as the Owner may determine.
Any
such suspension shall commence on the fifth (5) day after Contractor’s
receipt of written notice thereof from Owner. The Contractor shall
resume
any suspended Work within ten (10) days of Owner’s written notice
directing the same. In the event the Work is so suspended, the Contractor
shall be entitled to payment from Owner for all Work performed by
Contractor to the date of suspension and reimbursement for all costs
incurred by Contractor and for all cancellation or suspension charges
payable by Contractor to its Subcontractors.
|
|
17.
|
Confidentiality
and intellectual property
|
|
17.1.
|
The
WTG Specifications and any other drawings, specifications, designs,
plans,
other documents and software prepared by or on behalf of the Contractor
and/or Subcontractors in connection with the Turbine Equipment or
the Work
(collectively, the “Licensed Materials”), and all Intellectual Property
Rights, if any, relating to the Licensed Materials or the contents
of or
concepts embodied in the Licensed Materials, are and shall remain
the
exclusive property of the Contractor or the Subcontractors, as the
case
may be. Subject to the Owner’s payment of the entire Contract Price, the
Contractor hereby grants and will cause to be granted and delivered
to the
Owner from Subcontractors, whichever is appropriate, a paid-up,
non-exclusive, world-wide license for the Owner to use, reproduce
and have
reproduced such Licensed Materials for use as set forth in this Agreement
subject to the restrictions set forth below:
|
|
17.1.1.
|
All
Intellectual Property Rights in or relating to any of the Licensed
Materials shall remain the property of the Contractor or the appropriate
Subcontractor, whether or not the Turbine Equipment is installed;
and
|
|
17.1.2.
|
The
Owner shall not, without the prior written consent of the Contractor,
use
such Licensed Materials, in whole or in part, in relation to any
project
other than the Project. The Owner may only use such Licensed Materials
for
the operation, maintenance and repair of the Turbine Equipment after
Final
Completion.
|
|
17.1.3.
|
The
Owner shall not modify, change or alter the Licensed
Materials.
|
|
17.1.4.
|
The
Owner shall indemnify, defend and hold harmless the Contractor and
its
Subcontractors for any costs, expenses or liabilities incurred by
the
Contractor or its Subcontractors by reason of any misuse or incorrect
use
by the Owner of the Licensed
Materials.
|
Page
31
of 34
|
17.2.
|
The
Owner and the Contractor each agree to keep confidential the terms
and
provisions of this Agreement and the Licensed Material, upon receipt
from
the other party, any documentation or information which is supplied
in
written form or orally (collectively the “Confidential Information”). The
Parties will grant access to such documentation and information only
to
their respective employees and authorized operators, subcontractors
and
agents whose access is necessary to fulfill the terms of this Agreement,
who shall be bound by the terms and provisions of this
Section.
|
|
17.3.
|
The
Contractor shall keep confidential all details of the Project and
any of
the Parties involved. Publication in any form of information relating
to
the Project or its Parties will be subject to Owner’s written approval.
|
|
17.4.
|
The
Owner may use Confidential Information of the Contractor for the
repair,
operation and maintenance of the Turbine Equipment, provided that
the
Owner makes any third party with which such confidential information
is
shared subject to a written confidentiality provision with terms
identical
to those set forth herein. Each Party shall be liable for the disclosure
of Confidential Information by any of its respective employees,
contractors, subcontractors, representatives or agents. In addition,
the
Parties shall have no obligation with respect to any such documentation
or
information which (i) is or becomes publicly known through no act
of the
receiving Party, (ii) is approved for release by written authorization
of
the disclosing Party, (iii) is required to be disclosed by the receiving
Party pursuant to a legal process (provided that the receiving party
uses
commercially reasonably efforts to avoid disclosure of such Confidential
Information and prior to furnishing such Confidential Information,
the
receiving party notifies the disclosing party and gives the disclosing
party the opportunity to object to the disclosure and/or seek a protective
order or (iv) has been rightfully furnished to the receiving Party
without
any restriction on use or disclosure and not in violation of the
rights of
the other Party. Nothing in this Agreement shall bar the right of
either
Party to seek and obtain from any court injunctive relief against
conduct
or threatened conduct which violates this
Section.
|
|
18.
|
Governing
law
|
|
18.1.
|
This
Agreement shall be governed by, and shall be construed in accordance
with
the laws of the State of California,
USA.
|
|
18.2.
|
Any
dispute in connection with this Agreement shall be finally settled
by
arbitration in accordance with the rules of the American Arbitration
Association. The arbitration procedure shall take place in Los Angeles,
California and shall be carried out in the English
Language.
|
Page
32
of 34
|
19.
|
General
provisions
|
|
19.1.
|
No
delay or omission by the Parties hereto in exercising any right or
remedy
provided for herein shall constitute a waiver of such right or remedy
nor
shall it be construed as a bar to or waiver of any such right or
remedy on
any future occasion.
|
|
19.2.
|
Neither
Contractor nor Owner may assign, convey or transfer this Agreement,
in
whole or in part, except upon the prior written consent of the other
party
hereto, which consent shall not be unreasonably
withheld.
|
|
19.3.
|
Notwithstanding
anything to the contrary contained in this Agreement, Owner covenants
and
agrees that, after the Final Completion Date, Owner will not assert
against Contractor any claims or causes of action of any nature whatsoever
(whether stated in contract, tort or other legal theory) arising
out of
this Agreement and/or the performance of the Work by Contractor
hereunder.
|
|
19.4.
|
This
Agreement may be modified or amended only by an instrument in writing
signed by the Parties hereto.
|
|
19.5.
|
In
the event any provision of this Agreement is found to be invalid
or
unenforceable, the Parties agree that this shall affect neither the
validity of this Agreement nor the remaining provisions herein, and
the
provision in question shall be deemed to be replaced with a valid
and
enforceable provision most closely reflecting the intent and purpose
of
the original provision.
|
|
19.6.
|
This
Agreement replaces all previous agreements or statements, both oral
and
written, relating to the subject matter
hereof.
|
|
19.7.
|
Any
document, manual, certificate or notice required or authorized to
be given
hereunder for the operation of the
Project shall be provided in the English
language.
|
|
19.8.
|
This
Agreement may be executed by the Parties in one or more counterparts,
all
of which taken together, shall constitute one and the same
instrument.
|
| XxXxxx Inc. |
Enerserve
Limited
|
|||
|
|
|
|||
| By: | /s/ Xxxxxx Xxxxxxxx | By: | /s/ Xxx Xxxxx | |
|
Name:
Xxxxxx Xxxxxxxx
|
Name: Xxx Xxxxx |
|||
|
Title:
President
|
Title:
Managing Director
|
|||
Page
33
of 34
Exhibit
A: WTG and SCADA Specifications
Exhibit
B: Project Site
Exhibit
C: Milestone Schedule
Exhibit
D: Contractor’s Account for Progress Payments
Exhibit
F: Insurance Coverage
Exhibit
G: Commissioning Test and Inspection Procedures
Exhibit
H: Deleted
Exhibit
I: Unloading, Crane and Access Road Requirements
Exhibit
J: Notice to Proceed
Exhibit
K: Mechanical Completion Checklist
Exhibit
L: Form of Certificate of Mechanical Completion
Exhibit
M: Form of Certification of Commissioning
Exhibit
N: Form of Certificate of Facility Substantial Completion
Exhibit
O: Form of Certificate of Final Completion
Exhibit
P: Owners’ Scope of Supply
Exhibit
Q: Site Environmental Conditions
Exhibit
R: Parent Company Guarantee
Exhibit
S: Power Curve
Exhibit
T: Availability Guarantee
Exhibit
U: Parent Company Operating Guarantee
Exhibit
V: Warranty
Page
34
of 34
 |
Exhibit
A - Wind Turbine Generator and SCADA Specification
0000 XxXxx Xxxxxx, Xxxxxx, Xxxxxxxxxx, 00000, XXX
| |
Technical
Specification
XxXxxx
D8
2000kW
Wind Turbine
Page
2
of 2
| |
|
1
|
Design
of the wind
turbine
|
The
XxXxxx D8 is a three-blade upwind turbine with pitch control and horizontal
axis. The turbine has a rated power of 2000 kW and can be supplied with
different hub heights to suit the particular site conditions and planning
requirements.
The
outstanding features of the XxXxxx D8 are effective utilisation of the available
wind, quiet operation, good grid compatibility, longevity and attractive design.
The turbine operates with variable rotor speed and is thus capable of producing
electric power efficiently at low wind speeds, and utilising the energy of
gusts
without overloading the grid or turbine components. The combination of a
double-fed asynchronous generator with a state of the art IGBT converter
isolates grid voltage and frequency from the generator speed thus enabling
connection of the turbine to most power supply networks.
Table
1. General
technical data
|
Unit
|
Value
|
||||
|
Type
|
Variable
speed horizontal axis wind turbine with 3-blade rotor, double-fed
asynchronous generator and pitch control
|
||||
|
Rated
power
|
kW
|
2000
|
|||
|
Rotor
diameter
|
m
|
80
|
|||
|
Hub
height
|
m
|
60/80
|
100
|
||
|
Wind
zone DIBT
|
III
|
II
|
|||
|
Wind
class XX
|
XX
|
III
|
|||
|
Power
control
|
via
common pitch control
|
||||
|
Cut-in
wind speed
|
m/s
|
3
|
|||
|
Nominal
wind speed
|
m/s
|
13.5
|
|||
|
Shutdown
wind speed
|
m/s
|
25
|
|||
|
Survival
wind speed
|
m/s
|
57.4
|
49.8
|
||
|
Rated
speed rotor
|
1/min
|
18.0
|
|||
|
Speed
range rotor
|
1/min
|
11.1
- 20.7
|
|||
|
Speed
control
|
via
common pitch control
|
||||
|
Speed
limitation
|
Common
pitch control and single blade pitch control
|
||||
|
Main
braking system
|
2
separate safety systems consisting of common pitch control and
single
blade pitch control
|
||||
|
Service
brake
|
Disc
brake
|
||||
|
Lightning
protection
|
Lightning
arrestor built into the rotor
blades
|
||||
|
Note:
|
Our
range of products is subject to a programme of continuous development;
the
equipment supplied may vary in detail from this
specification.
|
Page
3
of 3
| |
Main
Nacelle Components
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
|
9
|
10
|
11
|
12
|
13
|
14
|
15
|
16
|
|
1
|
Rotor
Locking Device
|
9
|
Yaw
Drive
|
|
2
|
Main
Bearing
|
10
|
Yaw
Bearing
|
|
3
|
Rotor
Shaft
|
11
|
Base
Frame (front part)
|
|
4
|
Gearbox
|
12
|
Base
Frame (rear part)
|
|
5
|
Coupling
and Brake
|
13
|
Nacelle
Entrance
|
|
6
|
Generator
with Heat Exchanger
|
14
|
Hydraulic
Unit
|
|
7
|
Nacelle
wind measuring mast
|
15
|
Control
Cabinet
|
|
8
|
Nacelle
Housing
|
16
|
Heat
Exchanger Gearbox
|
Page
4
of 4
| |
|
2
|
Main
shaft
|
The
main
shaft of the XxXxxx D8 is forged of high-grade heat-treated steel and supported
at the shaft end by a robust spherical roller bearing that absorbs all rotor
forces. Connection to the gearbox is by a clamp ring. Within the gearbox,
the
main shaft is mounted in a cylindrical roller bearing.
The
main
shaft is hollow inside. The pressure and return piping for the pitch cylinders
in the rotor hub as well as the electrical connections to the pitch angle
limit
switches are installed through the middle of the main shaft.
| 3 |
Rotor
|
The
rotor
consists of a highly tensile cast iron hub to which are fixed three rotor
blades
pivoted about their longitudinal axis. The equipment for the hydraulic pitch
control system is accommodated inside the rotor hub.
The
aerodynamically and acoustically optimised rotor blades are manufactured
of
carbon and glass fibre reinforced plastics and have an integrated lightning
protection of laminated aluminium section. They are bolted to the rotor hub.
The
hub is protected against environmental influences by a GRP spinner. Both
spinner
and hub are painted Light Grey (RAL 7035). The blades are painted Traffic
White
(RAL 9016).
Table
2. Technical
data - rotor
|
|
Unit
|
Value
|
|||
|
Rotor
diameter
|
m
|
80
|
|||
|
Number
of rotor blades
|
piece
|
3
|
|||
|
Swept
area
|
m2
|
5027
|
|||
|
Length
of blades
|
m
|
39,1
|
|||
|
Hub
material
|
Ductile
cast iron
|
||||
|
Blade
material
|
CFP
/ GFP
|
||||
|
Weight
per blade
|
t
|
6.65
|
|||
|
Weight
of the complete hub without blades
|
t
|
20.7
|
| 4 |
Pitch
system
|
The
task
of the pitch control system is to match the rotor blade position to match
the
available wind. Thus, aerodynamically flow conditions are always optimised
on
the rotor blades; a prerequisite for quiet and effective operation minimising
wind turbine structural loadings. At and above nominal rated wind speed,
the
power output is limited to rated power. At high wind speeds, the pitch system
acts as the aerodynamic main brake.
Two
hydraulic systems that are independent of each other control the adjustment
of
the blades. The first system is for common pitch control. It consists of
three
hydraulic cylinders arranged in the hub, which move the rotor blades together
via a linking mechanism. Hydraulic accumulators accommodated in the nacelle
give
a back-up operational capability of the braking system in the unlikely event
of
failure of the hydraulic unit.
The
second system is for single pitch control. To accomplish this, each rotor
blade
uses its own adjusting cylinder (safety cylinder) that moves the rotor blade
independently of the other pitch cylinders. Each of these safety cylinders
is
backed up by its own hydraulic accumulator so that in the event of failure
of
the main hydraulic system the blade can always be moved into the feathered
position.
Page
5
of 5
| |
Table
3. Technical
data - pitch system
|
Unit
|
Value
|
|||
|
Arrangement
|
in
the centre of the rotor hub
|
|||
|
Drive
|
hydraulic
|
|||
|
Function
|
Single
pitch control and central pitch control
|
|||
|
Maximum
pitch control speed single
pitch control
|
°/s
|
|||
|
Maximum
pitch angle single pitch control
|
°
|
46
|
||
|
Maximum
pitch control speed common
pitch control
|
°/s
|
|||
|
Maximum
pitch angle common pitch control
|
°
|
45
|
||
|
Maximum
pitch control speed in total
|
°/s
|
|||
|
Maximum
pitch angle in total
|
°
|
91
|
| 5 |
Gearbox
|
The
D8
wind turbine is equipped with a three-step high performance gearbox. The
first
step is a planetary gear; the two other steps are spur gears. Using this
combination ensures, compact construction and high efficiency. The helical
gearing minimises the noise level. The noise is reduced further by using
rubber
mountings to isolate the structure-borne noise of the gearbox from the
mainframe.
In
order
to maintain the temperature of the gear oil within an optimum range, it is
cooled during operation. The gear oil is also passed through a full-flow
filter
to ISO/DIS 4406 15/12 in order to minimise wear.
The
gear
oil is preheated ready for start-up in cold weather by an immersion heater
rated
at 1.5 kW.
Table
4. Technical
data - gearbox
|
Unit
|
Value
|
|||
|
Construction
|
Three-step
planetary gear with helical gearing
|
|||
|
Reduction
ratio
|
1:94.4
|
|||
|
Nominal
mechanical power
|
kW
|
2,160
|
||
|
Rated
input torque
|
kNm
|
1,120
|
||
|
Rated
output torque
|
Nm
|
11,800
|
||
|
Max.
braking torque
|
Nm
|
16,940
|
||
|
Lubrication
|
Force-feed
and oil bath lubrication
|
|||
|
Amount
of oil
|
l
|
approx.
420
|
||
|
Weight
|
t
|
19.0
|
| 6 |
Generator
|
The
XxXxxx D8 is equipped with a double-fed asynchronous generator coupled with
a
frequency converter using IGBT technology. This enables the wind turbine
to
operate with variable speeds within a wide slip range. Power fluctuations,
such
as those caused by gusts, are almost completely avoided and the mechanical
components are exposed to less stress.
The
generator is enclosed and cooled by an air/air heat exchanger. Slip rings
and
brush holders are accommodated in a separate enclosure.
Page
6
of 6
| |
Table
5. Technical
data - generator
|
Unit
|
Value
|
|||
|
Rated
power
|
kW
|
2000
|
||
|
Construction
|
Double-fed
4-pole asynchronous generator
|
|||
|
Cooling
|
Air/Air
Heat exchanger
|
|||
|
Rated
voltage
|
V
|
690
|
||
|
Rated
current In
|
A
|
1675
|
||
|
Frequency
|
Hz
|
00
/ 00
|
||
|
Xxxxxxxxxxx
xxxxx
|
0/xxx
|
0000
|
||
|
Xxxx
range
|
%
|
±
30
|
||
|
Speed
range
|
1/min
|
500
- 1950
|
||
|
Operating
mode
|
S1
|
|||
|
Protection
class generator
|
IP
54
|
|||
|
Protection
class rotor sliprings
|
IP
23
|
|||
|
Weight
|
t
|
8
|
| 7 |
Converter
|
The
air-cooled IGBT converter operates in a four-quadrant mode. Output voltage
and
frequency of the generator/converter system are regulated by controlling
the
exciting current and frequency of the rotor winding. This is achieved by
a
microprocessor controlled power electronic controller, which triggers the
IGBT
elements using a pulse width modulation technique so that an almost pure
sinusoidal voltage is produced at the output.
Table
6. Technical
data - converter
|
Unit
|
Value
|
||||
|
Construction
|
IGBT
converter
|
||||
|
Type
of modulation
|
Pulse
width modulation
|
||||
|
Operating
mode
|
Four-quadrant
operation
|
||||
|
Kimax
=
Imax
/
Ing
|
1.1
|
||||
|
Flicker
coefficient
|
approx.
<10
|
||||
|
Harmonic
distortion factor
|
%
|
approx.
1
|
| 8 |
Grid
connection
|
The
generator output at 690V is stepped up for grid connection by an output
transformer. The output transformer provides the connection to the required
collector network.
The
transformer is of the hermetically sealed, liquid immersed type constructed
to
IEC 60076. The coolant comprises a synthetic oil that is non-toxic and
biodegradable, having a low flammability characteristic.
Connection
of the system to the grid is made after synchronisation through a power switch
that also includes protective functions in the event of overload or
short-circuit.
A
three-phase mains monitoring relay is used to monitor voltage and frequency
deviations. Power surge and undervoltage, over-frequency and under-frequency,
brief interruptions, current asymmetry and phase relationships are monitored.
In
the event of deviations, the wind turbine will be automatically disconnected
from the grid and reconnected as required to meet the local requirements.
| 9 |
Braking
system
|
The
pitch
control system acts as the speed control method and also as the main aerodynamic
brake of the XxXxxx D8. By turning the rotor blades out of the wind, the
turbine
will be slowed down as part of the shutdown procedure as necessary in case
of
failure. Two pitch systems that are independent of each other are
used.
Page
7
of 7
| |
The
first
braking system is the common pitch control. This system adjusts the three
rotor
blades simultaneously via a linking mechanism. It is backed up by accumulators
located in the nacelle so that in case of failure of the main hydraulic pumps
the wind turbine can be brought to a safe condition.
The
second braking system is by single blade pitch control. It consists of three
hydraulic cylinders that each move one blade. The three cylinders operate
independently of each other so that also in case of failure of one cylinder
the
remaining ones can still operate. Each cylinder is protected by its own
accumulator so that the wind turbine can be slowed down if the hydraulic
system
of the wind turbine should fail.
A
hydraulically actuated disc brake mounted on the high-speed shaft between
gearbox and generator acts as a service brake. It can be used at wind speeds
up
to 15 m/s (10 min mean value) in order to support the braking effect of the
hydraulic braking systems. The disc brake is also used to lock the rotor
during
inspection and service operations.
| 10 |
Hydraulic
system
|
A
hydraulic unit supplies oil at high pressure to the pitch control systems,
the
yaw brakes and the service brake.
The
hydraulic system comprises the oil tank, pumps, distribution unit, hydraulic
piping, valves, filters, cylinders and accumulators. The supply lines of
the
pitch cylinder are led through the hollow main shaft with a rotating union
for
the transition of the hydraulic pipelines from the fixed to the rotating
part of
the shaft.
In
order
to maintain the high degree of purity of the hydraulic oil, a pressure filter
is
provided in the supply piping to the pitch systems. Additionally, the oil
circuits are flushed periodically and before each start, so that fresh filtered
oil is pumped from the tank into the oil circuits of the pitch control system.
The
pumps
used are two gear wheel pumps driven by electric motors, one pump each supplying
one of the pitch systems. The power supply for the pumps is not shutdown
under
fault conditions i.e. they will not be switched off following an emergency
stop
of the wind turbine so that the hydraulic system remains operational.
The
hydraulic system is equipped with several accumulators that are independent
of
each other in order to bring the wind turbine into a safe condition in case
of
power failure. Accumulators in the nacelle supply the common pitch control,
the
yaw brakes and the service brake. Three further accumulators are accommodated
inside the rotor hub to protect the single blade pitch control system.
The
valves are controlled electrically by the operation monitoring system. The
oil
pressure in the hydraulic system is continuously measured and monitored by
the
control system.
Two
pumps
with a maximum output of 98 l/min provide a maximum pressure of 165 bar;
the
hydraulic system contains 300 l in total. The combination of the main filter
system and a bypass filter system for the hydraulic oil exceeds the requirements
of ISO 4406 class 17/15/12.
| 11 |
Nacelle
|
The
nacelle consists of the mainframe and the panelling. The main components
of the
system are mounted onto the mainframe. These are the drive train, with bearing,
the shaft and the gearbox, the generator, cooling system, hydraulic system,
yaw
drives, brakes and the control electronic cabinets. The mainframe of the
XxXxxx
D8 is a combination of light ductile cast iron and a welded steel structure.
This ensures high stiffness and light weight. Elastomeric damping elements
separate the main system components from the mainframe and act as
structure-borne sound isolators.
Page
8
of 8
| |
Access
panels in the nacelle roof can be opened for access to the rotor hub and
the
meteorological measurement sensors for servicing.
The
nacelle was designed by Porsche Design in Germany. The nacelle housing is
painted Light Grey, RAL 7035, the nacelle cover Silver Grey, RAL
7001.
| 11.1 |
Nacelle
Entrance
|
The
top
platform of the tower is located directly underneath the nacelle. From this
platform it is possible to access the nacelle via a short ladder without
using
safety belts.
| 11.2 |
Nacelle
crane
|
A
chain
hoist is fitted inside the roof in the rear area of the nacelle. Loads handled
by this hoist can be raised from or lowered to ground level through a trap
door
in the nacelle base.
Table
7. Technical
data - mainframe
|
Unit
|
Value
|
|||
|
Construction
|
Welded
box construction/ductile cast iron
|
|||
|
Material
|
Steel
|
|||
|
Weight
|
t
|
8.9
|
Table
8. Technical
data - nacelle panelling
|
Unit
|
Value
|
|||
|
Material
|
GFP
|
|||
|
Weight
|
t
|
2.3
|
| 12 |
Yaw System
|
Two
wind
vanes on the nacelle roof measure the wind direction and transmit the measured
values to the control system. As soon as the position of the nacelle deviates
from the actual wind direction by a certain amount depending on the wind
speed,
the yaw drives will be activated. There are four electrically operated gear
motors, meshed with a fixed sprocket wheel on the top of the tower, that
adjust
the nacelle to follow the actual wind direction.
Shaft
brakes are integrated in the yaw drives. These act permanently when the yaw
drives are not in use and are only released when the yaw drives are energised.
In addition, hydraulic brakes are fitted independent of the yaw motor brakes.
Two
sensors in the tower top record the number of revolutions of the nacelle
in one
direction. Once the nacelle has performed more than 2 revolutions in one
direction, the turbine will be shut down, the nacelle turned back and the
turbine restarted. This prevents excessive twisting of the power and control
cables.
Table
9. Technical
data - yaw system
|
Unit
|
Value
|
|||
|
Yaw
bearing
|
Ball
bearing (four-point bearing)
|
|||
|
Weight
|
t
|
1.5
|
||
|
Yaw
drives
|
4
electrical gear motors
|
|||
|
Adjusting
speed
|
°/s
|
0.5
|
||
|
Number
of brakes
|
10
|
Page
9
of 9
| |
| 13 |
Tower
|
The
towers of the D8 series consist of several steel sections that are connected
together by bolted flanges. A climbing system is installed enabling safe
climbing of the ladders inside the tower. The electrical and control cables
are
installed from the nacelle to ground level inside the tower.
Externally,
a three-coat anti-corrosion protection painting system to DIN EN ISO 12944
is
used. Inside the tower, a two-coat system is used. The colour of the coating
is
Light Grey (RAL 7035).
| 14 |
Electric
installation
|
Lighting
systems, power sockets, and if required, aircraft warning light(s), are
installed in the D8 wind turbine. Electrical distribution for tower auxiliaries
is located in the tower base control panel.
Electrical
distribution for auxiliaries within the nacelle is included in the nacelle
control panel.
| 15 |
Foundation
|
The
XxXxxx D8 uses foundations which are designed to suit the local ground
conditions.
| 16 |
Control
|
The
wind
turbine is equipped with an operation and monitoring computer that carries
out
all monitoring, control and regulation tasks. This computer is an industrial
PC
using a conventional MS Windows® operating system.
Ethernet
connections using optical fibre cables are mainly used for data transmission
in
the wind turbine and within the wind farm. The wind turbine is always maintained
in an optimum operating state, the system components and the operating
parameters being continuously monitored.
Some
basic functions, such as start, shutdown and yaw can also be carried out
locally
by an operator or via remote data transmission. Access to the control functions
is protected by means of a security system. Different access levels are
protected by passwords.
Two
Displays to monitor the turbine are installed, one in the nacelle and one
in the
bottom of the tower.
The
protection class of the Control Cabinet is IP 54.
| 17 |
SCADA
System
|
The
SCADA
system is performed with the eOS Framework. It consists of a set of applications
for user dependent turbine data access and visualisation. The framework consists
of the usage of standard data transfer and communication technologies (TCP/IP,
XML, Web Services).
The
eOS
Framework supports the application of virtual private networks (VPNs) or
SSL for
remote access control via internet and user authentication /
authorisation.
eOS
View
is the framework’s core component for user are turbine data visualisation,
instant alarming (email independent, TCP/IP based direct messaging) and turbine
fault data analysis.
Additional
framework components for message forwarding and message assignment build
up the
internet based instant alarming network and provide also standardized interfaces
for turbine historian data supply.
The
control system itself is based on modern I/O terminals.
| 17.1 |
Reporting
|
SCADA
supported standard interface (e.g. like MS Excel) which provides of Real-time
and Analytical Data.
Page
10
of 10
| |
Permanent
and event driven turbine data recording of:
| · |
Currents,
Voltages, Power
|
| · |
Temperatures
(Locations, Components)
|
| · |
Pressures
(Control/Safety Loop)
|
| · |
Meteorological
Values (Temperatures, Wind, Air Pressure)
|
| · |
Oszillation
(Tower, XY, Torsion)
|
| · |
Div
Digital Events
|
| 17.2 |
SCADA
Features
|
| 1. |
Internet
based communication
|
| 2. |
Mulitlingual
(English, German)
|
| 3. |
User
dependent turbine access
|
| 4. |
Simultaneous
multi-user access
|
| 5. |
Alarming
|
| 6. |
Error
Analysis (approx. 50 analogue channels in different sample resolutions
(e.g. 10ms, 200ms, 1s) and approx. 200 digital channels)
|
| 7. |
Data
visualisation via component oriented hierarchical menu structure,
user
dependent view
|
| 8. |
Turbine
data analysis (e.g. Production, Consumption, Reactive Power, Turbine
Operation Mode, Performance Curve, 10-Minutes-Mean-Values for more
than 45
channels, Statuscode history, Availability calculation)
|
| 9. |
Turbine
parameter history incl. old/new values and detected user name
|
 |
Page
11
of 11
| |
|
18
|
Lightning
protection
|
Lightning
protection of the XxXxxx D8 is by a discharge system. If lightning should
strike
a rotor blade, the lightning arrestors integrated in the blades will lead
the
energy via a combination of sliding contacts and air gaps via the spinner
directly onto the nacelle and by a similar arrangement on to the earthed
steel
tower and to the ground.
| 19 |
Dimensions
and
weights
|
Table
10. Dimensions
and weights
|
Unit
|
Value
|
|||
|
Hub
height
|
m
|
80
|
||
|
Tower
height
|
m
|
76
|
||
|
Tower
base diameter
|
m
|
4.2
|
||
|
Tower
top diameter
|
m
|
3.0
|
||
|
Tower
weight
|
t
|
155.21
|
||
|
Weight
of complete rotor
|
t
|
35.75
|
||
|
Weight
of complete nacelle
|
t
|
98.95
|
|
Note:
|
Our
range of products is subject to a programme of continuous development;
the
equipment supplied may vary in detail from this
specification.
|
Page
12
of 12
|
PUNTA
COLORADA PROJECT - CHILE
|
 |
|
DRAFT
|
EXHIBIT
B - PROJECT SITE
|
1
|
PROJECT
LOCATION
|
The
‘Punta Colorada’ site is situated approximately 80 Km north of Xxxxxxxx by road
in an area known as Los Choros. The Pan American Highway and a 110 KV power
line
runs across the north of the site.
The
area
that is being considered for wind development is at the end of a winding valley
that runs from the coast in the west and opens up into a relatively flat area.
The sides of the valley that leads to Punta Colorada rise between 500 and 600m
from the valley floor on both sides. To the east of the Punta Colorada site
are
the foot hills of the Andes.
The
north
of the site is a dry riverbed which runs from East to West and to the West
a
river which runs South to North. These old river beds join at the North West
of
the area being considered. The site is 27 km from the coast line and the
elevation across the site varies between 350 and 450 m above sea
level.
The
Village of Punta Colorada is to the North East of the site and has a population
of approximately 300 persons. The valley which leads into Punta Colorada from
the West supports trees and smaller vegetation. Access to the site is good
with
almost all of the area available for inspection by vehicle.
Page
1of 2
|
PUNTA
COLORADA PROJECT - CHILE
|
|
|
DRAFT
|
|
2
|
TURBINE
ARRAY
|
The
turbine array layout for the 5 turbines is as follows:
Coordinates
(in PSAD56):
|
Easting
|
Northing
|
|||
|
Turbine
1
|
301336
|
6750259
|
||
|
Turbine
2
|
300674
|
6750038
|
||
|
Turbine
3
|
301962
|
6750199
|
||
|
302095
|
6749804
|
|||
|
Turbine
5
|
301404
|
6749684
|
Page
2 of 2
|
PUNTA
COLORADA PROJECT - CHILE
|
|
EXHIBIT
C - MILESTONE SCHEDULE
|
Milestone
|
Responsible
|
|
Completion
Date
|
||||
|
Notice
To Proceed
|
Owner
|
18/06/07
|
|||||
|
Delivery
FOB Turbine Equipment
|
Contractor
|
31/04/08
|
|||||
Page
1 of
1
Exhibit
D - Contractor Account for Progress Payments:
|
EU
North America/XxXxxx, Inc.
|
|
|
0000
XxXxx Xxxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
Bank
routing #
|
000000000
|
|
Account
#
|
3510126331
|
|
Bank
Name:
|
California
Bank & Trust
|
|
00000
Xxx Xxxxxx Xxx., Xxxxx 000
|
|
|
Xxxxxx,
XX 00000
|
|
PUNTA
COLORADA PROJECT - CHILE
|
|
EXHIBIT
F - INSURANCE REQUIREMENTS
The
Parties have agreed on the following insurances:
The
Contractor undertakes to insure:
Insurance
of transport of goods
Covers
wind turbines and components.
Limits
of
sum insured per conveyance: US$3,000,000 any on vessel/ferry/truck/sending
by
post/shipment by air or during intermediate stays for the transport to
Ports.
Extraordinary
storage at the port of charge.
Sum:
Replacement value
General
Third Party Liability Insurance including Property Liability (commercial general
liability insurance)
The
insured is contractor and/or subsidiaries
Coverage
sum: US$5,000,000 for each occurrence of bodily injury and/or property damage
and an annual aggregate of liability of not less than US$5,000,000 for bodily
injury and/or property damage, and an annual aggregate of liability of not
less
than US$10,000,000 for Completed Operations and Products Liability per insurance
year for bodily injury and/or damage to property.
Employer’s
Liability / Xxxxxxx’x Compensation
Contractor
will take out an insurance covering all of his employees in relation to the
project
The
insurance will be in accordance with local law with coverage stipulated by
the
local authorities.
The
Owner
undertakes to insure:
Insurance
of transport of goods
Covers
transport of all other goods supplied by other suppliers than the
Contractor
Sum:
Replacement value
Page
1 of 1
|
PUNTA
COLORADA PROJECT - CHILE
|
|
Employer’s
Liability / Xxxxxxx’x Compensation
Owner
will take out an insurance covering all of his employees in relation to the
project
The
insurance will be in accordance with local law with coverage stipulated by
the
local authorities.
Contractors
All Risk (CAR) insurance
Insured
party is Contractor together with all contractors and sub-contractors involved
with the erection.
The
policy provides cover from the start of the work on site and until the earlier
of (i) Facility Substantial Completion Date, or (ii) transfer of risk of loss
or
damage to the Owner, however not beyond 18 months from the date of commencement
of installation, followed by an extended maintenance period of 24
month.
All
risk
sum of US$50,000,000 for material damages.
Areas
with an earthquake risk on Munich Re. Zone 4 or higher can not be covered by
insurance for natural hazards.
Deductible
of US$25,000.
General
requirements
Each
party shall upon request from the other party provide each other before shipment
with evidence that the insurance coverage required under this exhibit is in
full
force and effect. In the event that any such policies of insurance are renewed
or terminated during any time prior to the expiration of the relevant time
period, the party whose policies have expired shall promptly provide the other
part with evidence that such coverage has been renewed or replaced with
insurance that complies with the provisions of this exhibit. Such evidence
of
insurance shall be in the form of a standard Certificate of Insurance and shall
contain sufficient information to allow the party that is in receipt of such
certificate to determine whether such insurance is in compliance with the
provisions of this exhibit.
Page
2 of 2
|
PUNTA
COLORADA PROJECT - CHILE
|
|
EXHIBIT
J - NOTICE TO PROCEED
Reference
is made to that certain Supply and Installation Agreement reference SW/DW/02
dated as of [date],
2007 by
and between Owner and Contractor (the “Agreement”). Capitalized terms used, but
not defined, herein shall have the meanings set forth in the
Agreement.
This
Notice to Proceed is hereby delivered to Contractor pursuant to the Agreement,
and the Commencement Date shall be deemed the date Contractor receives this
Notice to Proceed.
|
OWNER
|
CONTRACTOR
|
| By: | By: |
| Name: _________________________ | Name: _________________________ |
| Title: _________________________ | Title: _________________________ |
| Date Issued: _________________________ | Date Received: _________________________ |
|
Signature: _________________________
|
Signature: _________________________
|
Page
1 of
1
|
PUNTA
COLORADA PROJECT - CHILE
|
|
EXHIBIT
L - CERTIFICATE OF MECHANICAL COMPLETION
Reference
is made to that certain Supply and Installation Agreement reference SW/DW/02
dated as of [date],
2007 by
and between Owner and Contractor (the “Agreement”). Capitalized terms used, but
not defined, herein shall have the meanings set forth in the
Agreement.
The
undersigned, Contractor, does hereby certify and represent as follows to Owner
with respect to WTG No. ____ of 5 Wind Turbines:
1. Such
Wind
Turbine has been assembled, installed and erected such that it satisfies the
criteria in the Mechanical Completion Checklist; and
2. The
Wind
Turbine is ready to commence Commissioning activities.
Executed
and delivered to Owner
__________, 200___.
|
CONTRACTOR
|
ACCEPTED
BY OWNER
|
||
| By: | By: | ||
| Name: | Name: | ||
|
|
|
||
| Title: | Title: | ||
|
|
|
||
| Signature: | Signature: | ||
|
|
|
Page
1 of
1
|
PUNTA
COLORADA PROJECT - CHILE
|
|
EXHIBIT
M - CERTIFICATE OF COMMISSIONING
Reference
is made to that certain Supply and Installation Agreement reference SW/DW/02
dated as of [date],
2007 by
and between Owner and Contractor (the “Agreement”). Capitalized terms used, but
not defined, herein shall have the meanings set forth in the
Agreement.
The
undersigned, Contractor, does hereby certify and represent as follows to Owner
with respect to WTG No. _____ of 5 Wind Turbines:
|
1.
|
The
Wind Turbine has achieved Mechanical Completion;
and
|
|
2.
|
The
start-up and commissioning activities set forth in the Commissioning
Test
and Inspection Procedures with respect to such Wind Turbine have
been
successfully conducted.
|
Executed
and delivered to Owner _________,
200____.
|
CONTRACTOR
|
ACCEPTED
BY OWNER
|
|||
|
|
||||
| By: |
|
By: |
|
|
| Name: |
|
Name: |
|
|
| Title: |
|
Title: |
|
|
| Signature: |
|
Signature: |
|
|
Page
1 of
1
|
PUNTA
COLORADA PROJECT - CHILE
|
|
EXHIBIT
N - CERTIFICATE OF FACILITY SUBSTANTIAL COMPLETION
Reference
is made to that certain Supply and Installation Agreement reference SW/DW/02
dated as of [date],
2007 by
and between Owner and Contractor (the “Agreement”). Capitalized terms used, but
not defined, herein shall have the meanings set forth in the
Agreement.
The
undersigned, Contractor, does hereby certify and represent as follows to Owner
with respect to WTG No. _____ of 5 Wind Turbines:
|
1.
|
All
of the Wind Turbines have achieved Mechanical Completion;
and
|
|
2.
|
commissioning
of the Wind Turbine has been completed, stating that the Wind Turbine
is
capable of generating continuous electrical
energy.
|
Executed
and delivered to Owner _______,
200___.
|
CONTRACTOR
|
ACCEPTED
BY OWNER
|
|
|
By:
Name:
Title:
Signature:
|
By:
Name:
Title:
Signature:
|
Page
1 of
1
|
PUNTA
COLORADA PROJECT - CHILE
|
|
EXHIBIT
O - CERTIFICATE OF FINAL COMPLETION
|
Punta
Colorada Project - Chile
|
|
|
Owner:
|
Seawind
Services Limited
|
|
Contractor:
|
XxXxxx
Inc.
|
|
[date]
|
|
|
Test
Completion Date:
|
[date]
|
The
Contractor and the Owner hereby agree that the Project described above meets
the
Final Completion criteria specified in the Supply and Installation Agreement
between the Parties.
From
the
above test completion date onwards the Project stands at the Owner’s risk and
insurance.
Minor
items, if any, which do no adversely affect the operation of the Project in
its
basic intended function, are listed in the separate attachment hereto. The
Contractor agrees to correct such items without any unnecessary
delay.
|
OWNER
|
CONTRACTOR
|
|
By:
|
By:
|
|
Name: _________________________
|
Name: _________________________
|
|
Title: _________________________
|
Title: _________________________
|
|
Date
Issued: _________________________
|
Date
Received: ____________________
|
|
Signature: _________________________
|
Signature: _________________________
|
Page
1 of
1
|
PUNTA
COLORADA PROJECT - CHILE
|
|
Separate
Attachment to Certificate of Final Completion
Minor
items:
|
No.
|
Subject
|
|
Page
2 of 2
|
PUNTA
COLORADA PROJECT - CHILE
|
|
EXHIBIT
P - OWNER’S SCOPE OF SUPPLY
DELIVERIES
AND WORKS TO BE SUPPLIED AND EXCECUTED BY THE OWNER
The
following is a summary of Owner’s work under the Contract:
| 1) |
Crane
hard standing and lay down areas;
|
| 2) |
Seismic
analysis of tower and foundation;
|
| 3) |
Soil
investigation and reporting;
|
| 4) |
Transport
of the tower foundation parts from factory to the site and
unloading;
|
| 5) |
Supply
of the tower and transport of the tower from factory to the site
and
unloading;
|
| 6) |
Transport
of the WTGs components from the ports of exit to the Project
Site;
|
| 7) |
Foundation
for the Wind Turbine Generators and its
transformers;
|
| 8) |
Supply
and installation of one permanent meteorological station (if needed)
including foundation (if any);
|
| 9) |
Service
building and maintenance facilities (if required);
|
| 10) |
Fencing
of substation areas, general site security fences and relocation
and
reinstatement of rural fences (if
required);
|
| 11) |
Cable
trenches;
|
| 12) |
Installation
of the Wind Turbine Generators; (under the supervision of the
Contractor).
|
| 13) |
Upgrading,
maintenance during construction and reinstatement after construction
of
off-site public roads, as and if required, which are used as access
roads
for all construction traffic;
|
| 14) |
Establishment
of necessary temporary and permanent access roads to the Wind Turbine
Generators, maintenance facilities and if required parking
spaces;
|
| 15) |
Re-establishment
of the Site after the construction and implementation of the Wind
Turbine
Generators is completed;
|
Page
1 of
1
|
PUNTA
COLORADA PROJECT - CHILE
|
|
| 16) |
Temporary
office and welfare accommodation, workplace health and safety facilities,
telephone services and electricity supply for the Contractor’s use during
the performance of the work under the
Contract;
|
| 17) |
Installation
of switchgear, cabling, protection and signalling equipment for MV
electrical collection system of the Wind turbine Generators, including
all
equipment necessary to make a connection to the connection point;
(under
the supervision of the Contractor).
|
| 18) |
Provision
of SCADA cabling and connection points external to the WTGs and connection
to the WTGs control system; (under the supervision of the
Contractor).
|
| 19) |
Coordination
and commissioning associated with linking the Wind Turbine Generators
to
the Grid; (under the supervision of the
Contractor).
|
Page
2 of
2
|
XxXxxx
Turbine Suitability Review Information Requirements
List
|
|||
|
Request
form version
|
1.1
|
5-May-07
|
|
|
Notes:
|
|||
|
Due
to the critical importance of wind data, XxXxxx recommend that
a
consulting meteorologist is used to reduce site data and complete
this
information request.
|
|||
|
XxXxxx
reserve the right to seek more information and to update this request
form
at any time.
|
|||
|
Please
provide as much of the highlighted information as possible so that
the
suitability of the XxXxxx turbines can be properly evaluated for
this
particular site.
|
|||
|
The
examples provided should be emulated to the greatest extent possible
but
equivalent data is acceptable if that is all that is
available.
|
|||
|
XxXxxx
can only evaluate turbine suitability based on the information
provided
and as such the quality and completeness of the data is very
important.
|
|||
|
Please
provide the following in addition to filling out each of the
worsheets:
|
Topo
map showing turbines and details of surrounding area – including any
neighboring wind turbines (within 20 D), tall trees, large buildings
etc
|
|
Please
complete Temperature versus Windspeed "joint frequency distribution"
worksheet if extreme temperatures are exected to be less than -10°C or
greater than +35°C
|
|||
|
the
following files have been attached:
|
|||
|
5
turbines visual: shows the approximate location of the units and
the
surrounding terrain. The only feature is the overhead electric
line (show
on the drawings)
|
|||
|
complete
area overview - 25m gridlines
|
|||
|
site
detail - 25m gridlines
|
|||
|
turbine
layout with detailed topo: the location of the turbines on a topo
map with
gridlines at 0.25m intervals.
|
|||
|
Exhibit
B: project site description
|
|||
|
view
of turbine area
|
|||
|
Completed
by:
|
Xxxxxx
X'xxxx
|
||
|
Xxxx
0, xxxxxxxxx Xxxxx,
Xxxxxxx
Xxxxx, Xxxxx Xxxxx
Xxxxxxxx,
0
0XX
XX
|
|||
|
tel
00000 000 000
|
|||
|
x.xxxxx@xxxxxxx.xx.xxx
|
|||
|
Date
of completion
|
24-May-07
|
||
|
|
|||
|
Project
Name
|
Punta
Colorada
|
||
|
Project
Developer
|
Seawind
|
||
|
Project
Owner
|
Seawind
|
||
|
|
|||
|
Approximate
geographical location
|
29d22'6''S
71d2'52''W (WGS 84)
|
||
|
Project
Life (years)
|
20
|
||
|
Number
of turbines
|
5
|
||
|
Hub
height (m)
|
80
|
||
|
Expected
annual average wind speed range at height
|
5.9
to 6.8 m/s at 80 m
|
||
|
Any
special production constraints / grid connection
requirements
|
The
turbines will connect to a common busbar of 11kV with a heavy fuel
oil
generating plant of 17MW and must be able to operate in parallel
without
affecting the HFO plant.
|
||
|
Any
special environmental concerns (e.g. likelihood of exposure to
salt spray
or other corrosive environment, relative humidity, dust conditions,
hail,
icing, or any seasonal accessibility limits /
constraints.)
|
No
known issues.
|
Please
provide background information regarding the source of the data used to complete
this information request
(Add
to
the form as appropriate)
|
Meteorological
mast (designation/name)
|
PC1
|
|||
|
Measurement
heights
|
10,
30 and 50m
|
|||
|
Averaging
rate
|
10
min
|
|||
|
Location
of met mast
|
300897
E, 6750033 N
|
|||
|
Coordinate
system used
|
PSAD56
|
|||
|
Period
of collection
|
26/09/07
- ongoing
|
|||
|
Data
recovery (%)
|
99.6
|
|||
|
Any
adjustements made
|
none
|
|||
|
Other
comments
|
||||
|
Meteorological
mast (designation/name)
|
PC2
|
|||
|
Measurement
heights
|
10,
30 and 50m
|
|||
|
Averaging
rate
|
10
min
|
|||
|
Location
of met mast
|
302644
E, 6750133 N
|
|||
|
Coordinate
system used
|
PSAD56
|
|||
|
Period
of collection
|
6/04/07
- ongoing
|
|||
|
Data
recovery (%)
|
100
|
|||
|
Any
adjustements made
|
none
|
|||
|
Other
comments
|
|
Coordinate
system used:
|
PSAD56
|
|
Turbine
ID
|
Easting
(m)
|
Northing
(m)
|
|
Met
Tower ID
|
Easting
(m)
|
Northing
(m)
|
Sensor
1 Level (m)
|
Sensor
2 Level
(m)
|
Sensor
3 Level
(m)
|
||||||||
|
T1
|
301336
|
6750259
|
PC1
|
300897
|
6750033
|
10
|
30
|
50
|
|||||||||
|
T2
|
300674
|
6750038
|
PC2
|
302644
|
6750133
|
10
|
30
|
50
|
|||||||||
|
T3
|
301962
|
6750199
|
|||||||||||||||
|
T4
|
302095
|
6749804
|
|||||||||||||||
|
T5
|
301404
|
6749684
|
|
Height
at which extreme conditions have been estimated
|
hub
ht
|
||
|
Estimated
annual average wind speed at most energetic turbine (m/s)
|
6.6
|
||
|
Most
energetic turbine
|
T3
|
||
|
Estimated
50 year return wind speed - 10 minute average (m/s)
|
TBC
|
||
|
Estimated
50 year return wind speed - 3 second average (m/s)
|
TBC
|
||
|
Basis
of estimate
|
the
maximum wind speed will be determined from the Chilean design
standards
|
||
|
|
|||
|
Annual
Average Air Density (kg/m3):
|
1.187
|
||
|
Annual
average power law vertical wind shear exponent
|
0.0426
|
||
|
Minimum
power law vertical wind shear exponent measured
|
|
||
|
Maximum
power law vertical wind shear exponent measured
|
|
||
|
HIghest
site recorded 3 sec gust (m/s)
|
22
|
||
|
Highest
site recorded temperature (°C)
|
32
|
||
|
Lowest
site recorded temperature (°C)
|
3.5
|
||
|
Period
of site records (years)
|
0.75
|
||
|
Ideally
provide a tabulation of number of hours at a particular wind
shear versus
wind speed
|
|||
|
Wind
speed
|
|
power
law exponent
|
|
3.50
|
|
0.0585
|
|
4.50
|
|
0.0521
|
|
5.50
|
|
0.0501
|
|
6.50
|
|
0.0494
|
|
7.50
|
|
0.0508
|
|
8.50
|
|
0.0522
|
|
9.50
|
|
0.0484
|
|
10.50
|
|
0.0472
|
|
11.50
|
|
0.0483
|
|
12.50
|
|
0.0489
|
|
13.50
|
|
0.0520
|
Please
provide a representative wind rose for the site or multiple wind roses
representing clearly identified groups of turbines
Windroses
divided up into 10 degree sectors, as below, are ideal but 22 or 30 degree
direction sectors are acceptable.
SEE
SEPARATELY PROVIDED OBSERVED WIND CLIMATE REPORT
Wind
Speed (m/s)
|
Direction
|
0
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
12
|
13
|
14
|
15
|
16
|
17
|
18
|
19
|
20
|
21
|
22
|
23
|
24
|
25+
|
Total
|
|
0
|
0.0
|
||||||||||||||||||||||||||
|
10
|
0
|
||||||||||||||||||||||||||
|
20
|
0
|
||||||||||||||||||||||||||
|
30
|
0
|
||||||||||||||||||||||||||
|
40
|
0
|
||||||||||||||||||||||||||
|
50
|
0
|
||||||||||||||||||||||||||
|
60
|
0
|
||||||||||||||||||||||||||
|
70
|
0
|
||||||||||||||||||||||||||
|
80
|
0
|
||||||||||||||||||||||||||
|
90
|
0
|
||||||||||||||||||||||||||
|
100
|
0
|
||||||||||||||||||||||||||
|
110
|
0
|
||||||||||||||||||||||||||
|
120
|
0
|
||||||||||||||||||||||||||
|
130
|
0
|
||||||||||||||||||||||||||
|
140
|
0
|
||||||||||||||||||||||||||
|
150
|
0
|
||||||||||||||||||||||||||
|
160
|
0
|
||||||||||||||||||||||||||
|
170
|
0
|
||||||||||||||||||||||||||
|
180
|
0
|
||||||||||||||||||||||||||
|
190
|
0
|
||||||||||||||||||||||||||
|
200
|
0
|
||||||||||||||||||||||||||
|
210
|
0
|
||||||||||||||||||||||||||
|
220
|
0
|
||||||||||||||||||||||||||
|
230
|
0
|
||||||||||||||||||||||||||
|
240
|
0
|
||||||||||||||||||||||||||
|
250
|
0
|
||||||||||||||||||||||||||
|
260
|
0
|
||||||||||||||||||||||||||
|
270
|
0
|
||||||||||||||||||||||||||
|
280
|
0
|
||||||||||||||||||||||||||
|
290
|
0
|
||||||||||||||||||||||||||
|
300
|
0
|
||||||||||||||||||||||||||
|
310
|
0
|
||||||||||||||||||||||||||
|
320
|
0
|
||||||||||||||||||||||||||
|
330
|
0
|
||||||||||||||||||||||||||
|
340
|
0
|
||||||||||||||||||||||||||
|
350
|
0
|
||||||||||||||||||||||||||
|
Total
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
|
Averaging
time
|
10
min
|
||||
|
Correction
factor used to ajust to hub height
|
0.85
|
||||
|
Speed
(m/s)
|
Number
of samples
|
Mean
turbulence (TI)
|
Std
Dev
|
Mean
TI + 1 Std Dev
|
TI
Maximum
|
|||||
|
0
|
2714
|
13.5
|
0.1
|
0.2
|
0.7
|
|||||
|
1
|
4441
|
49.0
|
0.4
|
0.9
|
1.0
|
|||||
|
2
|
2950
|
24.5
|
0.5
|
0.7
|
1.0
|
|||||
|
3
|
2202
|
17.3
|
0.5
|
0.7
|
0.8
|
|||||
|
4
|
2221
|
14.0
|
0.6
|
0.7
|
0.7
|
|||||
|
5
|
2172
|
12.3
|
0.6
|
0.7
|
0.5
|
|||||
|
6
|
1938
|
11.7
|
0.7
|
0.8
|
0.7
|
|||||
|
7
|
1860
|
10.9
|
0.8
|
0.9
|
0.4
|
|||||
|
8
|
1861
|
10.3
|
0.8
|
0.9
|
0.3
|
|||||
|
9
|
2473
|
10.3
|
0.9
|
1.0
|
0.3
|
|||||
|
10
|
3481
|
10.3
|
1.0
|
1.1
|
0.2
|
|||||
|
11
|
3249
|
9.8
|
1.1
|
1.2
|
0.2
|
|||||
|
12
|
1788
|
9.2
|
1.1
|
1.2
|
0.2
|
|||||
|
13
|
526
|
8.6
|
1.1
|
1.2
|
0.2
|
|||||
|
14
|
67
|
7.8
|
1.1
|
1.1
|
0.1
|
|||||
|
15
|
10
|
9.7
|
1.5
|
1.6
|
0.1
|
|||||
|
16
|
|
|
|
|
|
|||||
|
17
|
|
|
|
|
|
|||||
|
18
|
|
|
|
|
|
|||||
|
19
|
|
|
|
|
|
|||||
|
20
|
|
|
|
|
|
|||||
|
21
|
|
|
|
|
|
|||||
|
22
|
|
|
|
|
|
|||||
|
23
|
|
|
|
|
|
|||||
|
24
|
|
|
|
|
|
|||||
|
25
|
|
|
|
|
|
Inert
number of hours spent at particular wind speed for each of the temperature
ranges
|
Wind
Speed (m/s)
|
|
less
than -40°C
|
|
-35.1
to -40
|
|
-30.1
to -35
|
|
-25.1
to -30
|
|
-20.1
to -25
|
|
-10.1
to -20
|
|
0
to -10
|
|
0.1
to 10
|
|
10.1
to 20
|
|
20.1
to 30
|
|
30.1
to 40
|
|
>40
°C
|
|
Total
per w/s bin
|
|
0
|
0
|
|||||||||||||||||||||||||
|
1
|
0
|
|||||||||||||||||||||||||
|
2
|
0
|
|||||||||||||||||||||||||
|
3
|
0
|
|||||||||||||||||||||||||
|
4
|
0
|
|||||||||||||||||||||||||
|
5
|
0
|
|||||||||||||||||||||||||
|
6
|
0
|
|||||||||||||||||||||||||
|
7
|
0
|
|||||||||||||||||||||||||
|
8
|
0
|
|||||||||||||||||||||||||
|
9
|
0
|
|||||||||||||||||||||||||
|
10
|
0
|
|||||||||||||||||||||||||
|
11
|
0
|
|||||||||||||||||||||||||
|
12
|
0
|
|||||||||||||||||||||||||
|
13
|
0
|
|||||||||||||||||||||||||
|
14
|
0
|
|||||||||||||||||||||||||
|
15
|
0
|
|||||||||||||||||||||||||
|
16
|
0
|
|||||||||||||||||||||||||
|
17
|
0
|
|||||||||||||||||||||||||
|
18
|
0
|
|||||||||||||||||||||||||
|
19
|
0
|
|||||||||||||||||||||||||
|
20
|
0
|
|||||||||||||||||||||||||
|
21
|
0
|
|||||||||||||||||||||||||
|
22
|
0
|
|||||||||||||||||||||||||
|
23
|
0
|
|||||||||||||||||||||||||
|
24
|
0
|
|||||||||||||||||||||||||
|
25
|
0
|
|||||||||||||||||||||||||
|
>25
|
0
|
|||||||||||||||||||||||||
|
Total
(hrs)
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
|||||||||||||
|
Percent
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
#DIV/0!
|
EXHIBIT
R:
PARENT
COMPANY GUARANTEE FOR ADVANCE PAYMENTS
PARENT
COMPANY GUARANTEE
THIS
PARENT COMPANY GUARANTEE (“Guarantee”)
is given as of this June 15, 2007, by Composite Technology Corporation
Incorporated, whose registered office is at 0000 XxXxx Xxxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx, (the “GUARANTOR”); in favor of Compañía Xxxxxxx
Chile Generación Ltda., whose office is at Xxxx. Xxxxxxx Xxxx 000, 0xx Xxxxx,
Xxxxxxxx, Xxxxx, (the “CUSTOMER”, which term shall include its successors and
assignees).
WHEREAS,
Seawind
Services Ltd. (“SEAWIND”) and XxXxxx Inc. (“XXXXXX”) are parties to that certain
agreement dated June 15, 2007 (the “XXXXXX Agreement”) wherein XXXXXX is to
supply wind turbines and perform certain services (the “XXXXXX Services”) in
accordance with the terms and conditions of the XXXXXX Agreement.
WHEREAS,
SEAWIND
and CUSTOMER are parties to that certain Agreement
for the
Supply
of
Five
Wind Turbines at
Punta
Colorada, Chile
(the
“SEAWIND Agreement”) wherein SEAWIND is to supply wind turbines and perform
certain services (the “SEAWIND Services”) in accordance with the terms and
conditions of the SEAWIND Agreement.
WHEREAS,
as
a
condition precedent to CUSTOMER entering into the SEAWIND Agreement, CUSTOMER
is
requiring that GUARANTOR enter into this Guarantee for the benefit of
CUSTOMER.
WHEREAS,
GUARANTOR is the parent company of XXXXXX and will derive a substantial benefit
from the transactions contemplated by the XXXXXX Agreement and the SEAWIND
Agreement.
NOW,
THEREFORE,
in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
GUARANTOR hereby covenants and agrees with CUSTOMER as follows:
1. GUARANTOR
hereby absolutely irrevocably and unconditionally guarantees to CUSTOMER the
prompt and full repayment of the advanced payments made by CUSTOMER if (i)
SEAWIND fails to deliver the wind turbines to CUSTOMER in accordance with
paragraph 5.2 of the SEAWIND Agreement, and (ii) CUSTOMER has given GUARANTOR
not less than thirty (30) days to remedy such failure. GUARANTOR shall pay
all
amounts due hereunder to CUSTOMER within thirty (30) days after demand
therefor.
2. Notwithstanding
anything herein to the contrary, GUARANTOR’s obligations hereunder shall not
exceed US$4,712,500. Except as provided herein, GUARANTOR
shall not be liable for additional
losses,
damages, expenses, liabilities, claims, costs or proceedings which the CUSTOMER
may suffer or incur by reason of the said failure or breach.
3. GUARANTOR
shall be, and continue to be, liable under this Guarantee even if the XXXXXX
Agreement or the SEAWIND Agreement (collectively, the “Supply Agreements”) is or
becomes for any reason not binding on, or unenforceable against, XXXXXX or
SEAWIND, as applicable, for any reason whatsoever. Except as provided in
paragraph 2 above, no amendment or modification to the Supply Agreements or
the
obligations thereunder, no extension of time, forbearance or forgiveness, nor
any act, matter or thing whatsoever (except an express release by the CUSTOMER)
shall in any way release or reduce any liability of GUARANTOR hereunder.
References to the Supply Agreements in this Guarantee shall include all
amendments, modifications, variations and additions, whether made before or
after the date hereof.
4. This
Guarantee shall expire upon delivery of the wind turbines to CUSTOMER in
accordance with paragraph 5.2 of the SEAWIND Agreement (the
“Term”).
5. This
Guarantee shall remain in full force and effect for the Term of this Guarantee,
notwithstanding the following:
(a) the
insolvency or liquidation of the GUARANTOR, XXXXXX, SEAWIND or any other
person;
(b) any
disclaimer of (i) the Supply Agreements by a liquidator of XXXXXX or SEAWIND,
as
applicable, or any provision thereof, (ii) the negotiations that occurred prior
to entering into the Supply Agreements, or (iii) the performance of the Supply
Agreements, making it ineffective or unenforceable.
6. Until
the
expiration of the Term, in no event shall GUARANTOR by virtue of any performance
or payment made by it or otherwise:
(a) be
subrogated to any rights, security or moneys held or received or receivable
by
CUSTOMER; or
(b) be
entitled to exercise any right of contribution from any co-surety in respect
of
such performance and liabilities under any other guarantee, security or
agreement; or
(c) exercise
any right of set-off or counterclaim against XXXXXX or SEAWIND, as applicable,
or any such co-surety; or
(d) receive,
claim or have the benefit of any payment, distribution, security or indemnity
from XXXXXX or SEAWIND, as applicable, or any such co-surety; or
(e) unless
so
directed by CUSTOMER (whereupon the collected funds shall be delivered to
CUSTOMER as directed by CUSTOMER), claim to be a creditor of XXXXXX or SEAWIND,
as applicable, or any such co-surety in competition with CUSTOMER.
7. No
delay
or omission of CUSTOMER in exercising any right, power or privilege hereunder
shall impair such right, power or privilege or be construed as a waiver of
such
right, power or privilege nor shall any single or partial exercise of any such
right, power or privilege preclude any further exercise thereof or the exercise
of any other right, power or privilege. GUARANTOR waives, as a condition
precedent to the performance of its obligations hereunder, (a) notice of
acceptance hereof, (b) any and all presentment, demand, protest or notice of
any
kind, including notice of any alterations, modifications, amendments, waivers,
or extension of time made by XXXXXX, SEAWIND and CUSTOMER.
8. A
waiver
given or consent granted by CUSTOMER under this Guarantee shall be effective
only if given in writing and then only in the instance and for the purpose
for
which it is given.
9. All
notices shall be in writing and shall be sent by either personal delivery,
a
reputable overnight courier which keeps receipts of delivery (such as UPS or
Federal Express), or by first class post, postage prepaid, certified or
registered mail, return receipt requested. Any such notice shall be effective
upon delivery, if delivered by personal delivery or overnight courier, and
seventy-two (72) hours after dispatch, if sent by first class post in accordance
with the above. Notices to the respective parties shall be sent to the following
addresses unless written notice of a change of address has been previously
given
pursuant hereto:
| Customer: | Guarantor: |
| Compañía Xxxxxxx Chile Generación Ltda. | Composite Technology Corporation Incorporated |
| Xxxx. Xxxxxxx Xxxx 000, 0xx Xxxxx | 0000 XxXxx Xxxxxx |
|
Xxxxxxxx,
Xxxxx
|
Xxxxxx,
Xxxxxxxxxx
00000
Xxxxxx
Xxxxxx
|
10. Nothing
in this Guarantee, express or implied, is intended to confer any rights upon
any
person or entity other than the parties and their successors and assigns. No
other party may enforce any term or provision of this Guarantee.
11. If
CUSTOMER is required to pursue any remedy against GUARANTOR hereunder, CUSTOMER
shall be entitled to recover from GUARANTOR, the reasonable attorneys’ fees and
expenses of CUSTOMER incurred in connection therewith.
12. This
Guarantee shall be governed by and construed in accordance with the laws of
the
State of Florida, without giving effect to conflicts of law principles.
GUARANTOR hereby expressly and irrevocably agrees CUSTOMER may bring any action
or claim to enforce the provisions of this Guarantee in the state and federal
courts located within the State of Florida, and the GUARANTOR irrevocably
consents to personal jurisdiction in the State of Florida for the purposes
of
any such action or claim.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, GUARANTOR has duly executed and delivered this Guarantee and
CUSTOMER has executed its acceptance of this Guarantee effective on the date
written above.
| Composite Technology Corporation Incorporated | ||
| By: | __________________________ | |
| Name: | __________________________ | |
| Title: | __________________________ | |
Compañía
Barrick Chile Generación Ltda.
By:
______________________________
Name:
____________________________
Title:
_____________________________
By:
______________________________
Name:
____________________________
Title:
_____________________________
Exhibit
T
Availability
Guarantee
The
following defines Availability for purposes of the Turbine Supply Agreement
between XxXxxx, Inc. and Enerserve Ltd. to which this Exhibit T is attached
(the
“Agreement”), the benefits of which shall be assignable in full to the Ultimate
equipment Purchaser, Barrick Generacion Limitada.
The
formula for the calculation of Availability for a single Wind Turbine during
any
applicable time period is as follows:
 |
x
100,
where:
|
| A |
Availability.
Availability of the Turbine in percent
(%).
|
| P |
Accounting
Period.
Every hour of the applicable time period, as described in Section
10.6 of
the Agreement.
|
| T |
Total
Down Time.
Total of the Turbine down time as defined
below
|
| N |
Non-Supplier
Liable Down Time.
Total of the Turbine down time which Supplier cannot be held liable
for as
defined below
|
Definition
of T (Total Down Time)
T
is
defined as the total of all down times (i.e., Turbine is not producing power
for
whatever reason) during the Accounting Period P with the exclusion of the
following modes which are part of normal operation of a Turbine:
| · |
Automatic
Turbine system check
|
| · |
Voltage
build up during starting sequence
|
| · |
Hydraulic
warming up period
|
| · |
Unwinding
of power cables
|
Definition
of N (Non Supplier liable Down Time)
N
is
defined as the total of any Down Time for the following reasons and
circumstances:
| · |
Grid
failure or interruptions outside the applicable network/grid
parameters
|
| · |
Failure
of the Turbine to be dispatched into the grid, either by the grid
operator, the power purchaser, any governmental agency or other authority
|
| · |
Any
grid shut-down
|
| · |
Failure
of a continuous interconnection to the
grid
|
| · |
Any
failure of the operator to perform in accordance with the Wind Turbine
Specifications, Prudent Wind Industry Practices and the
Agreement
|
| · |
Any
failure to meet the warranty exclusions set forth in Section 10.9
of the
Agreement.
|
| · |
Maintenance
work (max. 48 h / year)
|
| · |
Wind
speed is outside the specified operational limits of the
Turbine
|
| · |
Wind
Turbine shut-down for any reason not attributable to Seller’s failure to
comply with the Warranty
|
| · |
Failures
due to problems with telecommunications unless relating to the portion
of
the SCADA supplied by Seller
|
| · |
Time
taken for a crane to be bought to project site to change a
component
|
| · |
Time
taken for a component not stock at project site to be shipped to
site
|
| · |
Time
taken taken
for qualified technician to arrive at project site to undertake
warranty
work
|
| · |
Other
delays that could stop contractor performing his duties under this
agreement
|
| · |
Force
Majeure
|
“Availability”
shall be calculated as the arithmetical average during the applicable period
of
“A” for all Wind Turbines.
Rights
and Remedies
In
the
event that generating availability determined in accordance with this guarantee
is not achieved as required by clause 3.5 of the Supply agreement, the Supplier
shall be liable to the Ultimate Equipment Purchaser for the payment of
liquidated damages to be payable at the rate of USD 1000 per 24 hours period
per
turbine, or pro rata thereof.
EXHIBIT
U:
PARENT
COMPANY OPERATING GUARANTEE
PARENT
COMPANY GUARANTEE
THIS
PARENT COMPANY GUARANTEE (“Guarantee”)
is given as of this June 15, 2007, by Composite Technology Corporation
Incorporated, whose registered office is at 0000 XxXxx Xxxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx, (the “GUARANTOR”); in favor of Compañía Xxxxxxx
Chile Generación Ltda., whose office is at Xxxx. Xxxxxxx Xxxx 000, 0xx Xxxxx,
Xxxxxxxx, Xxxxx, (the “CUSTOMER”, which term shall include its successors and
assignees).
WHEREAS,
Seawind
Services Ltd. (“SEAWIND”) and XxXxxx Inc. (“XXXXXX”) are parties to that certain
agreement dated June 15, 2007 (the “XXXXXX Agreement”) wherein XXXXXX is to
supply wind turbines and perform certain services (the “XXXXXX Services”) in
accordance with the terms and conditions of the XXXXXX Agreement.
WHEREAS,
SEAWIND
and CUSTOMER are parties to that certain Agreement
for the
Supply
of
Five
Wind Turbines at
Punta
Colorada, Chile
(the
“SEAWIND Agreement”) wherein SEAWIND is to supply wind turbines and perform
certain services (the “SEAWIND Services”) in accordance with the terms and
conditions of the SEAWIND Agreement.
WHEREAS,
as
a
condition precedent to CUSTOMER entering into the SEAWIND Agreement, CUSTOMER
is
requiring that GUARANTOR enter into this Guarantee for the benefit of
CUSTOMER.
WHEREAS,
GUARANTOR is the parent company of XXXXXX and will derive a substantial benefit
from the transactions contemplated by the XXXXXX Agreement and the SEAWIND
Agreement.
NOW,
THEREFORE,
in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
GUARANTOR hereby covenants and agrees with CUSTOMER as follows:
1. GUARANTOR
hereby absolutely irrevocably and unconditionally guarantees to CUSTOMER the
prompt and full repayment of the reasonable costs and expenses incurred by
CUSTOMER if SEAWIND fails to (i) timely and completely perform the required
warranty services described in Exhibit T: Warranty of the SEAWIND Agreement,
or
(ii) pay the liquidated damages that may be owing because the generating
availability is not achieved as described in Exhibit K: Availability Guarantee
of the SEAWIND Agreement. GUARANTOR shall pay all amounts due hereunder to
CUSTOMER within sixty (60) days after demand therefor.
2. Notwithstanding
anything herein to the contrary, GUARANTOR’s obligations hereunder shall not
exceed US$500,000. Except as provided herein, GUARANTOR
shall not be liable for additional
losses,
damages, expenses, liabilities, claims, costs or proceedings which the CUSTOMER
may suffer or incur by reason of the said failure or breach.
3. GUARANTOR
shall be, and continue to be, liable under this Guarantee even if the XXXXXX
Agreement or the SEAWIND Agreement (collectively, the “Supply Agreements”) is or
becomes for any reason not binding on, or unenforceable against, XXXXXX or
SEAWIND, as applicable, for any reason whatsoever. Except as provided in
paragraph 2 above, no amendment or modification to the Supply Agreements or
the
obligations thereunder, no extension of time, forbearance or forgiveness, nor
any act, matter or thing whatsoever (except an express release by the CUSTOMER)
shall in any way release or reduce any liability of GUARANTOR hereunder.
References to the Supply Agreements in this Guarantee shall include all
amendments, modifications, variations and additions, whether made before or
after the date hereof.
4. This
Guarantee shall expire at the end of the warranty period described in described
in Exhibit T: Warranty of the SEAWIND Agreement (the “Term”).
5. This
Guarantee shall remain in full force and effect for the Term of this Guarantee,
notwithstanding the following:
(a) the
insolvency or liquidation of the GUARANTOR, XXXXXX, SEAWIND or any other
person;
(b) any
disclaimer of (i) the Supply Agreements by a liquidator of XXXXXX or SEAWIND,
as
applicable, or any provision thereof, (ii) the negotiations that occurred prior
to entering into the Supply Agreements, or (iii) the performance of the Supply
Agreements, making it ineffective or unenforceable.
6. Until
the
expiration of the Term, in no event shall GUARANTOR by virtue of any performance
or payment made by it or otherwise:
(a) be
subrogated to any rights, security or moneys held or received or receivable
by
CUSTOMER; or
(b) be
entitled to exercise any right of contribution from any co-surety in respect
of
such performance and liabilities under any other guarantee, security or
agreement; or
(c) exercise
any right of set-off or counterclaim against XXXXXX or SEAWIND, as applicable,
or any such co-surety; or
(d) receive,
claim or have the benefit of any payment, distribution, security or indemnity
from XXXXXX or SEAWIND, as applicable, or any such co-surety; or
(e) unless
so
directed by CUSTOMER (whereupon the collected funds shall be delivered to
CUSTOMER as directed by CUSTOMER), claim to be a creditor of XXXXXX or SEAWIND,
as applicable, or any such co-surety in competition with CUSTOMER.
7. No
delay
or omission of CUSTOMER in exercising any right, power or privilege hereunder
shall impair such right, power or privilege or be construed as a waiver of
such
right, power or privilege nor shall any single or partial exercise of any such
right, power or privilege preclude any further exercise thereof or the exercise
of any other right, power or privilege. GUARANTOR waives, as a condition
precedent to the performance of its obligations hereunder, (a) notice of
acceptance hereof, (b) any and all presentment, demand, protest or notice of
any
kind, including notice of any alterations, modifications, amendments, waivers,
or extension of time made by XXXXXX, SEAWIND and CUSTOMER.
8. A
waiver
given or consent granted by CUSTOMER under this Guarantee shall be effective
only if given in writing and then only in the instance and for the purpose
for
which it is given.
9. All
notices shall be in writing and shall be sent by either personal delivery,
a
reputable overnight courier which keeps receipts of delivery (such as UPS or
Federal Express), or by first class post, postage prepaid, certified or
registered mail, return receipt requested. Any such notice shall be effective
upon delivery, if delivered by personal delivery or overnight courier, and
seventy-two (72) hours after dispatch, if sent by first class post in accordance
with the above. Notices to the respective parties shall be sent to the following
addresses unless written notice of a change of address has been previously
given
pursuant hereto:
|
Customer:
Compañía
Xxxxxxx Chile Generación Ltda.
Xxxx.
Xxxxxxx Xxxx 000, 0xx Xxxxx
Xxxxxxxx,
Xxxxx
|
Guarantor:
Composite
Technology Corporation Incorporated
0000
XxXxx Xxxxxx
Xxxxxx,
Xxxxxxxxxx
00000
Xxxxxx
Xxxxxx
|
10. Nothing
in this Guarantee, express or implied, is intended to confer any rights upon
any
person or entity other than the parties and their successors and assigns. No
other party may enforce any term or provision of this Guarantee.
11. If
CUSTOMER is required to pursue any remedy against GUARANTOR hereunder, CUSTOMER
shall be entitled to recover from GUARANTOR, the reasonable attorneys’ fees and
expenses of CUSTOMER incurred in connection therewith.
12. This
Guarantee shall be governed by and construed in accordance with the laws of
the
State of Florida, without giving effect to conflicts of law principles.
GUARANTOR hereby expressly and irrevocably agrees CUSTOMER may bring any action
or claim to enforce the provisions of this Guarantee in the state and federal
courts located within the State of Florida, and the GUARANTOR irrevocably
consents to personal jurisdiction in the State of Florida for the purposes
of
any such action or claim.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, GUARANTOR has duly executed and delivered this Guarantee and
CUSTOMER has executed its acceptance of this Guarantee effective on the date
written above.
Composite
Technology Corporation Incorporated
By:
______________________________
Accepted:
Compañía
Xxxxxxx Chile Generación Ltda.
By:
______________________________
Name:
____________________________
Title:
_____________________________
By:
______________________________
Name:
____________________________
Title:
_____________________________
Exhibit
V: WARRANTY
6.1 Warranty.
Supplier
warrants that the Turbine Equipment shall be (i) made of new materials in
compliance with the terms of this Agreement, Prudent Industry Practices and
the
Technical Specifications, (ii) free of all material defects in design,
engineering, materials, manufacture, assembly and workmanship, and in compliance
with the Technical Specifications under the climatic and normal operating
conditions described in the Technical Specifications, and (iii) free of liens
and encumbrances except as otherwise permitted in this Agreement (the
“Equipment
Warranty”).
Any
portion of the Turbine Equipment or other services required of Supplier under
this Agreement which fail to meet this standard shall be deemed “Defective
Work”.
Further, Supplier warrants that Commissioning work shall be performed in a
good
and workmanlike manner and in accordance with the requirements of this
Agreement
6.2 Warranty
Period.
The
Equipment Warranty shall continue for a period (the “Warranty
Period”)
that
commences on the Final Acceptance Date and ends on the date that is the second
(2nd) anniversary of the Final Acceptance Date.
Owner
must execute a Maintenance and Service Agreement with Supplier for a term that
coincides with the Warranty Period. The warranty coverage provided under this
Section 6 shall immediately cease if at any time the Maintenance and Services
Agreement between Supplier and Owner expires or terminates.
6.3 Correction
of Deficiencies.
6.3.1 Supplier
shall, after discovery of any Defective Work, at its sole cost and expense
(including the cost of labor and equipment), use all commercially reasonable
efforts to correct the Defective Work and repair or replace any defective part
or equipment with materials of new and good quality (the “Warranty
Service”).
If
Supplier fails to complete the correction of any defect of which it has been
notified or which it has discovered, including the repair or replacement of
defective parts or equipment, within a reasonable period of time, which shall
not in any case be less than 8 weeks, Owner may notify Supplier in writing
that
it intends to initiate required repairs one week after the date of notice.
If
Supplier fails to promptly initiate the required Warranty Service after such
notice, Owner may proceed to have the necessary repairs made and Supplier shall
be responsible for the reasonable costs and expenses incurred by Owner for
such
repairs. Any part or equipment that is repaired or replaced under the Equipment
Warranty and all associated labor shall be covered by the Equipment Warranty
for
a term equal to the greater of one (1) year or the remaining Warranty
Period.
6.4 Conformance
of Warranty Service to Specifications.
Supplier
warrants in favor of Owner that all Warranty Service, including all repaired
or
replace parts or equipment, shall meet and conform to the requirements of the
Technical Specifications, Prudent Industry Practices and this Agreement.
6.5 Warranty
Service at Supplier's Cost; Survival.
Supplier
shall perform all Warranty Service at its own cost and expense. Supplier's
obligation to correct, repair, replace or re-perform Defective Work pursuant
to
this Section 6 shall survive the termination or expiration of this Agreement,
so
long as the Defective Work was identified to Supplier in accordance with the
provisions of this Section 6 and within the Warranty Period.
6.6 Availability
Warranty.
During
the Warranty Period, Supplier warrants that the Turbines, when installed in
accordance with the Installation Manual, will, on average, be capable of
collectively operating at a level of no less than ninety (90) percent
availability for the six-month period after the Final Acceptance Date and no
less than ninety-five (95) percent availability for the six month period
thereafter, and each of the subsequent years of the Warranty Period
(“Guaranteed
Average Availability”).
Availability shall be measured in accordance with Exhibit
K.
To the
extent the Turbines fail to be capable of collectively operating at the required
minimum level during any applicable period, Supplier agrees and acknowledges
that Owner will suffer damages in the form of lost revenues and income and
agrees to pay Owner damages in amounts calculated in the manner set forth in
Exhibit
K..
The
parties agree that the Availability Liquidated Damages are a reasonable
approximation of the losses and damages likely to be suffered by Owner and
are
not intended to be punitive or excessive, and shall be payable notwithstanding
any provision of this Agreement otherwise limiting consequential damages.
Supplier’s aggregate liability for liquidated damages under this Section 6.6
shall not exceed an amount equal to ten percent (10%) of the Contract Price
actually paid by Owner to Supplier.
6.7 Noise
Warranty.
6.7.1 Supplier
warrants that the noise created by each Turbine, measured at the nacelle, shall
not at any time exceed a sound power level of 106 dB(A) at a wind speed of
10
meters per second. In addition, the Turbine Equipment shall emit no pure tones
(all such requirements the “Noise
Warranty”).
6.7.2 The
first
test of noise levels at any one or more Turbines shall be conducted by a
qualified expert at Owner’s expense. Testing protocols shall be as set forth in
IEC 61400-11. Ed. 12-2002, amended and revised.
6.7.3 If
testing reveals that any Turbine fails to meet the Noise Warranty established
in
Section 6.7.1, Supplier shall undertake, at its expense, to make such
improvements to the applicable Turbine(s) as are necessary to cause each such
Turbine to meet the warranted noise level. Supplier shall make its improvements
as soon as practicable. Supplier shall be responsible for the subsequent noise
testing of any such Turbines until compliance is attained with the Noise
Warranty, and all related expenses.
6.8 Power
Curve Guarantee.
Supplier
hereby guarantees (the “Power
Curve Guarantee”),
based
on the performance of a Power Curve Test and at the time thereof, that the
Turbine Measured Energy Yield of the Turbines collectively will be not less
than
ninety-five percent (95%) of the Turbine Guaranteed Energy Yield. Supplier
warrants that the power curve for the Turbines is set forth in Exhibit
S.
6.8.1 Performance
of Power Curve Test.
Owner
may retain a third party, qualified engineer acceptable to Supplier to perform
the Power Curve Test in accordance with IEC 00000-00-0 on one (1) Turbine
designated by Supplier and Owner. Owner shall pay all costs of any such Power
Curve Test if the Turbine passes the test, and Supplier shall pay the costs
of
any such Power Curve Test if the Turbine fails the test. The Power Curve Test
shall be performed under normal operating conditions in accordance with the
Power Curve Test Procedures. If Owner elects to conduct the Power Curve Test,
it
shall begin no earlier than Final Acceptance of the all Turbine Equipment,
and
shall be concluded no later than twelve (12) months after the Final Acceptance
Date. Owner will give Supplier at least twenty eight (28) days prior written
notice of its intent to perform any Power Curve Test. No later than fourteen
(14) days following the administration of the initial Power Curve Test, Owner
shall notify Supplier in writing whether the Turbines have met or failed the
Power Curve Test. Supplier shall have the right to be present at each Power
Curve Test. If not nominated Turbine passes the Power Curve Test, all Turbines
shall be deemed to have satisfied the Power Curve Guarantee.
6.8.2 Failure
to Perform the Power Curve Test.
If Owner
does not complete the Power Curve Test on the Turbines on or before the end
of
the period specified in Section 6.8.1, the Turbines shall be deemed to have
satisfied the Power Curve Test and Owner will not be entitled to any damages
as
a result of any failure of the Turbines to meet the Power Curve Guarantee.
6.8.3 Procedures
on Power Curve Test Failure.
If the
Turbines fail the initial Power Curve Test, then for up to ninety (90) days
after Owner notifies Supplier of such failure, Supplier shall have the right
to
cause repairs or replacements to be made to the Turbine Equipment designed
to
cause the Turbines to pass the Power Curve Test, at Supplier’s expense. Supplier
may request in writing at any time during such ninety (90) day period that
Owner
cause an additional Power Curve Test to be conducted as soon as practicable
following the expiration of such ninety (90) day period. If the Turbines fail
any such second Power Curve Test, then for up to ninety (90) days after Owner
notifies Supplier of such failure, Supplier shall have the right to cause
repairs or replacements to be made to the Turbine Equipment designed to cause
the Turbines to pass the Power Curve Test, at Supplier’s expense. Any such
repairs or replacements elected to be made by Supplier shall be made as soon
as
is practicable. Upon completion of such repairs and replacements, Supplier
may
(within 90 days of the failure of the second Power Curve Test) request Owner
to
conduct a third Power Curve Test. Each Power Curve Test shall be conducted
in
accordance with the requirements of this section and IEC 00000-00-0 , and shall
be conducted by the same engineer as conducted the first Power Curve Test.
Not
later than twenty-one (21) days following the completion of the third Power
Curve Test, Owner shall notify Supplier in writing whether the Turbines have
passed or failed to pass the Power Curve Test. If Supplier fails to request
a
second or third Power Curve Test within the applicable ninety (90) day period,
then no later than ten (10) Business Days following the expiration of the
applicable ninety (90) day period, Supplier shall pay to Owner the Power Curve
Liquidated Damages in accordance with the provisions of Section 6.8.4 based
on
the results of the immediately preceding Power Curve Test. If a second or third
Power Curve Test is conducted at Supplier’s request, and the Turbines fail the
second Power Curve Test (and Supplier does not timely exercise its right for
a
third Power Curve Test) or the Turbines fail the third Power Curve Test, then
Supplier shall pay to Owner, no later than thirty (30) Business Days following
receipt of notice of such failure, the Power Curve Liquidated Damages due to
Owner in accordance with the provisions of Section 6.8.4 based on the results
of
the second or third, as applicable, Power Curve Test. If the nominated Turbine
passes the second or third Power Curve Test, Supplier shall perform the same
repair to all other Turbines having the same defect, but no further testing
of
the Turbines shall be required.
6.8.4 Damages
for Failure to Achieve Power Curve Guarantees.
If the
Turbine Measured Energy Yield (as defined in Exhibit
S)
for the
Turbines with respect to the applicable Power Curve Test is less than 95% of
the
Turbine Guaranteed Energy Yield (as defined in Exhibit
S),
Supplier shall pay Owner, subject to the limitation set forth below and as
liquidated damages, US$___________ for each percent, pro-rated for each fraction
of a percent (to one one-thousandth of a percent), that the Turbine Measured
Energy Yield is less than 95% of the Turbine Guaranteed Energy Yield (the
“Power
Curve Liquidated Damages”).
The
Power Curve Liquidated Damages shall be based on the applicable Power Curve
Test
referenced in Section 6.8.3. This Section 6.8.4 represents Owner’s sole and
exclusive remedy for Supplier’s failure to achieve the Power Curve Guarantee.
Supplier’s aggregate liability hereunder for Power Curve Liquidated Damages
shall not exceed an amount equal to ten percent (10%) of the Contract Price
actually paid by Owner to Supplier..
6.9 Limitations.
The
duties, liabilities and obligations of Supplier under Sections 6.1 through
6.8
apply only to failures relating to the applicable warranties and do not extend
to any correction, repair or replacement caused or necessitated by: (a) the
failure of the Turbine Equipment to be constructed and installed by Owner at
the
Project Site in accordance with the Technical Specifications and Installation
Manual; (b) the failure of the Necessary Infrastructure to be installed or
constructed in accordance with Prudent Industry Practices; (c) the failure
by
Owner to operate and maintain the Turbine Equipment in accordance with the
Installation Manual and the Service Manual; and/or (d) any changes in the
Permits and/or Applicable Laws that occur or take effect after the Effective
Date. In connection with satisfaction of the Equipment Warranty or Availability
Warranty, Supplier shall be given an opportunity to make such diagnostic tests
and perform such remedial services as Supplier deems appropriate in connection
with the satisfaction of any warranty claim made by Owner hereunder; provided
that any such tests and services shall not permit Supplier to delay or avoid
its
correction obligations under Section 6.3, and the results of any such tests
shall be shared with Owner.
6.10
WARRANTY DISCLAIMER.
OWNER
ACKNOWLEDGES AND AGREES THAT SUPPLIER’S WARRANTIES SET FORTH IN THIS AGREEMENT
ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, FOR TITLE, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHERWISE. ON THAT BASIS,
THERE ARE NO OTHER WARRANTIES, AGREEMENTS, ORAL OR WRITTEN, OR UNDERSTANDINGS
WHICH EXTEND BEYOND THOSE SET FORTH IN THIS AGREEMENT WITH RESPECT TO THE
MATERIALS, EQUIPMENT AND SERVICES PROVIDED BY SUPPLIER.
