Exhibit 10.2
*PORTIONS OF THIS ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES FIXED PRICE
CONTRACT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
WHICH HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES
FIXED PRICE CONTRACT
BETWEEN
DELTA-T CORPORATION
AND
NEDAK Ethanol LLC
August 9, 2006
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INDEX
SECTION PAGE NUMBER
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1. DEFINITIONS
2. DELTA-T'S SCOPE OF WORK
3. INFORMATION, GOODS AND SERVICES TO BE PROVIDED BY OWNER
4. INTERFACE AND SITE CONDITIONS
5. SCHEDULE
6. CHANGES
7. FINAL ACCEPTANCE
8. PAYMENT
9. RIGHT OF OWNER AND DELTA-T TO SUSPEND WORK OR TERMINATE
10. SAFETY AND SECURITY
11. PROJECT EXECUTION
12. WARRANTY
13. TRANSFER OF TITLE AND RISK OF LOSS
14. INSURANCE
15. INDEMNITIES
16. LIMITATIONS OF LIABILITY
17. CONFIDENTIALITY
18. DISPUTE RESOLUTION
19. FORCE MAJEURE
20. GENERAL PROVISIONS
21. RIGHT TO TERMINATE/LIMITED OBLIGATION TO PROCEED PRIOR TO FINANCIAL CLOSING
List of Exhibits
A. Scope of Work
B. Commercial Terms
C. Performance Test Protocol
D. Performance Guarantees
E. Mechanical Completion, Comissioning, Startup
F. Project Schedule
G. Insurance
H. Non-Disclosure Agreement
I. List of Competitors
J. Work Prior to Financial Closing
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Engineering, Procurement and Construction Services
FIXED PRICE CONTRACT
GENERAL CONDITIONS
THIS CONTRACT, IS made effective the 9th day of August, 2006 by and between
NEDAK Ethanol LLC a limited liability company organized and acting under and
pursuant to the laws of Nebraska and having its main place of business at 00000
Xxxxxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter called the
"Owner") and Delta-T Corporation, a corporation organized and acting under and
pursuant to the laws of the Commonwealth of Virginia and having its main place
of business at 000 Xxxxxxxxx Xxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000, (hereinafter
called "Delta-T"). Owner and Delta-T may sometimes be referred to herein
individually as a "Party" or jointly as the "Parties."
W I T N E S S E T H:
WHEREAS, Delta-T is engaged in the performance of engineering, procurement
and construction services; and, WHEREAS, Owner desires Delta-T to furnish and
perform certain engineering, procurement and construction services in the
design, development, construction, commissioning, and start-up of a 44 MGY
ethanol production facility in Nebraska. NOW, THEREFORE, in consideration of the
premises and the mutual covenants and conditions herein contained, it is agreed
as follows:
1. Defined Terms and Order of Precedence
1.1 Defined Terms: The following words, when capitalized, shall have the
meanings set forth below:
1.1.1 Commissioning: "Commissioning" means checking and preparation of
the Plant for operation, functional control loop checking, interlock
testing, system purging and utility system startups to confirm that
the Plant is ready for Startup, as described in Exhibit E.
1.1.2 Confidential Information: "Confidential Information" means all
of the following information delivered by Delta-T to Owner under this
Contract: (a) all of the provisions of this Contract and its Exhibits,
especially but not limited to the provisions concerning
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pricing and guarantees, financial information, vendor lists, price
lists, cost data, and other business and commercially sensitive
information, and (b) all technical information, including without
limitation, drawings, designs, methodology, processes, models,
inventions, specifications, plant or equipment test and operating
data, improvements, processes, and other technical information of any
kind, whether or not patented or patentable and whether embodied in a
drawing or in equipment or any other physical thing. Notwithstanding
the foregoing, Confidential Information does not include information
which the Owner can demonstrate by documentary evidence: (a) was in
its possession prior to receipt from Delta-T; (b) appears in issued
patents or printed publications in integrated form or is in general
use in the trade without violation by Owner of this Agreement, or
violation by any other party of an obligation not to disclose it; or
(c) is disclosed to Owner by a third party who is under no obligation
not to disclose it.
1.1.3 Contract: "Contract" means these General Conditions, the
attached Exhibits A through I, and all additions or modifications
thereto made in accordance with Section 20.2 below.
1.1.4 Contract Sum: "Contract Sum" means the sum set forth in Section
8.1 below, or such greater or lesser amount as may be determined in
accordance with Section 6 below.
1.1.5 Delta-T's Project Manager: "Delta-T's Project Manager" means the
individual designated from time to time by Delta-T in writing as
having the responsibilities described at Section 11.1 below.
1.1.6 Date of Commencement: "Date of Commencement" means the date of
commencement of this Contract, which shall be the later of the date
that it has been executed by both Parties, or the date that Delta-T
has received the payment due at the Date of Commencement according to
the payment schedule set forth in Exhibit B.
1.1.7 Day: "Day" means calendar day.
1.1.8 Delta-T Technology: "Delta-T Technology" means all Confidential
Information included in the information, designs and information
embodied in all drawings, software
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or other documents delivered by Delta-T to Owner under this Contract,
or embodied in the Plant or, Equipment.
1.1.9 Equipment: "Equipment" means the equipment described at Exhibit
A.
1.1.10 Final Completion: "Final Completion" means that (i) Delta-T has
completed its obligations under the Performance Test protocol
described at Exhibit C and any right to cure that it may choose to
exercise under Exhibit D, or that completion of such obligations has
been waived by Owner in writing or by passage of time as provided at
Section 7.5 below, (ii) all of the items on the Punch List signed by
both Owner and Delta-T have been corrected and (iii) all lien waivers,
or affidavits, required under Section 8.5 have been delivered and (iv)
all drawings and other documents identified on Exhibit A as documents
to be delivered by Delta-T to Owner have been delivered.
1.1.11 General Conditions: "General Conditions" means all portions of
this Contract other than the attached Exhibits.
1.1.12 Mechanical Completion: "Mechanical Completion" means that the
Plant has satisfied all of the conditions to Mechanical Completion set
forth at Exhibit E.
1.1.13 Owner's Representative: "Owner's Representative" means the
individual designated from time to time by Owner in writing as having
the responsibilities described at Section 11.2 below.
1.1.14 Performance Test: "Performance Test" means the test defined in
Exhibits C and D.
1.1.15 Plant: "Plant" means the ethanol plant to be constructed for
Owner under this Contract.
1.1.16 Punch List: "Punch List" means a list of all portions of the
Work, if any, which are incomplete or do not conform to the Contract.
1.1.17 Schedule: "Schedule" means the schedule set forth in Exhibit F,
as amended from time to time by mutual agreement of the Parties in
accordance with this Contract.
1.1.18 Intentionally Left Blank.
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1.1.19 Site Manager: "Site Manager" means the individual designated
from time to time in writing by Delta-T under Section 11.1 below.
1.1.20 Startup: "Startup" means the commencement of operation of the
Plant for the purposes of either commencing the Performance Test or
for commercial purposes, as described in Exhibit E.
1.1.21 Work: "Work" means the obligations of Delta-T to be performed
under this contract prior to Final Completion.
1.2 Order of Precedence: In the event of any conflict between these General
Conditions and the Exhibits hereto, these General Conditions shall be
controlling.
2. Delta-T's Scope of Work
2.1 Description of Work: Delta-T shall, in addition to its obligations
under these General Conditions, provide the Equipment and services
described at Exhibit A, all in accordance with these General Conditions and
the specifications set out in Exhibit A.
2.2 Permits: Delta-T shall, at its expense, secure all permits identified
as permits to be procured by it in Exhibit A. All other permits required by
applicable law or regulation, including without limitation, permits related
to environmental protection, to operation of the plant at which the
Equipment is installed, or activities of Owner or any of its contractors,
if any, other than Delta-T, shall be secured by Owner at Owner's expense.
2.3 Performance and Payment Bonds: Delta-T shall require its construction
subcontractor to furnish bonds covering the construction of the Plant in
accordance with the contract between Delta-T and its construction
subcontractor and payment of all obligations arising under such contract in
the full amount of such contract but in any event not less than
$30,000,000. The bonds shall be written by a Surety satisfactory to the
Owner ("Surety") and shall name NEDAK Ethanol LLC and NEDAK's construction
lender , as obligees, as well as any other entity reasonably required by
Owner. The bonds shall be written on a form acceptable to Owner and Owner's
construction lender. Delta-T shall also require payment and performance
bonds or irrevocable letters of credit for all equipment suppliers
providing
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equipment costing in excess of $250,000.00. Any other bonds required by
Owner's or Owner's construction lender shall be provided at the Owner's
expense.
2.4 Drawings: Delta-T shall, upon completion of the Work, deliver to Owner
a complete set of appropriately stamped or sealed ready for construction
plans, specifications or drawings ("Ready for Construction Design
Drawings") required to perform the Work, as set forth under the applicable
rules and regulations related to the practice of professional engineering.
Delta-T shall have no responsibility to provide Owner with any other plans,
specifications or drawings for work performed by Owner or its contractors
or subcontractors. In the event that Delta-T is required, pursuant to
Exhibit A, to provide Owner or any of Owner's contractors or subcontractors
with electronic copies of plans, specifications or drawings ("Electronic
Drawings"), during execution of the Work, Delta-T expressly disclaims any
and all liability associated with any changes made to such Electronic
Drawings. Owner acknowledges and agrees that should a dispute arise with
respect to the accuracy of the Electronic Drawings and the Ready for
Construction Design Drawings to be submitted under this Section 2.3, the
Ready for Construction Design Drawings shall be considered prima facie
evidence in any dispute resolution proceedings as set forth in Section 18
below.
2.5 License of Certain Documents and Drawings: Delta-T shall retain
ownership of the copyright in, and any and all inventions and trade secrets
embodied in, the documents and drawings delivered to Owner under this
Contract and in all of the Delta-T Technology, and Owner's rights therein
shall be governed by Section 17.2 below.
2.6 Or Equal: Whenever in any of the Contract documents, any Section,
materials, or equipment is defined by describing a proprietary product or
by using the name of a manufacturer or vendor, the term, "or equal" if not
inserted, will be implied. The specific Section, material or equipment
mentioned will be understood as indicating the type, function, minimum
standard of design, efficiency, and quality desired and will not be
construed in such a manner as to exclude manufacturer's products of
comparable quality, design, and efficiency. Where a product is mentioned by
the name of a manufacturer or vendor in the Contract, Delta-T will identify
to Owner the names of any products to be used in lieu of the ones named in
the documents prior to awarding a purchase order. Owner shall have the
right to reject any substituted product upon ten (10) business days written
notice to Delta-T,
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unless such product is critical to the successful completion of the Work,
or is the only product available that is suitable for the purpose for which
it is intended.
3. Information, Goods and Services to Be Provided by Owner
3.1 Specific Goods and Services: Owner shall provide the following prior to
commencement of any Work by Delta-T: (a) a Plant site suitable for
construction of the Plant, complete with adequate space for office and
storage needs of Delta-T during construction, (b) suitable access of the
Plant site, (c) utilities to the Plant boundary as necessary for Delta-T's
performance of the Work, (d) all permits and licenses necessary for
construction and operation of the Plant other than those to be provided by
Delta-T as listed on Exhibit A, and (e) evidence reasonably satisfactory to
Delta-T that it has secured financing sufficient to permit Owner to pay all
its financial obligations in connection with building of the Plant,
including payment of all amounts due to Delta-T. Owner shall provide the
following prior to commencement of the Performance Test: (i) personnel
required to be trained by Delta-T, at the time(s) needed to meet the
training plan described at Exhibit A and (ii) supplies and utilities
required to perform Owner's obligations under Exhibits C and D.
3.2 Other Goods and Services: Owner shall also furnish to Delta-T, at
Owner's expense, all documents, drawings, specifications, information and
services showing all existing structures, foundations and undergrounds in
or adjacent to the Plant site that may be relevant to performance of the
Work, if any; coordinates, bench marks and base lines for the land area and
locations where all associated items of equipment, if any, are to be
installed; the existence and location of subsurface obstructions and
conditions; soil data and subsurface information for Delta-T's use for
foundation design relevant to the Work; adequate arrangement drawings,
utility requirements and process connections of all those existing items of
machinery and equipment of existing facilities, if any, with which the Work
must interconnect or accommodate, sufficient for Delta-T's performance of
the Work; and the specific emission, effluent and environmental criteria
and requirements for the Work; and all other documents, drawings,
specifications, information and services, if any, identified as within the
Owner's Scope of Services in Exhibit A. Delta-T shall be entitled to rely
upon such data and design criteria in the performance of the Work. Owner
shall provide all such items within the times prescribed in the Schedule,
or if no time is prescribed, within the time reasonably required to allow
Delta-T to perform its obligations under this contract. If no
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time is prescribed for Owner to provide such items, Delta-T shall provide
reasonable written notice to Owner setting forth the date such item(s) are
required. Furthermore, Delta-T shall have the right to receive from Owner
reasonable written assurance, and evidence reasonably acceptable to
Delta-T, that Owner is not aware of any physical, financial or legal
matters that would prevent Owner from fulfilling its obligations hereunder
or impede performance of the Parties obligations under this Contract in
accordance with the Schedule. If Delta-T becomes aware of any error in a
document, drawing, specification or other information supplied by Owner it
will promptly notify Owner of the same. Delta-T shall, however, have no
liability of any kind with respect to any error of which it is not actually
aware. In addition, Owner shall be fully responsible for providing all
goods and services, if any, that become necessary as a result of the
discovery of hazardous materials (unless such material were brought onto
the Site by Delta-T or its subcontractors) or materials with archeological
significance.
4. Interface and Site Conditions
4.1 Site Conditions: Delta-T has visited the Work site and had an
opportunity to become familiar with the condition of the site as it applies
to performance of the Work. If conditions are encountered at the site which
were not readily observable by visual inspection of the site on February
21, 2006 or a review of the available subsurface information, or (2) are
unknown physical conditions of an unusual nature, which differ materially
from those ordinarily found to exist and generally recognized as inherent
in construction activities of the character provided for in this Contract,
or (3) differ from conditions shown in any drawing, document or other
information, if any, that Owner is required to deliver to Delta-T under
Section 3 above, then notice by the observing Party shall be given to the
other Party promptly before such conditions are further disturbed and in no
event later than 21 days after first observance of the conditions. If any
such condition causes any increase or decrease in Delta-T's cost of, or
time required for, performance of any part of the Work, or any increase or
decrease in any other obligation of Delta-T, Owner shall within 21 days of
issuance or receipt of notice, as the case may be, under this Section 4.1,
issue a change order in accordance with Section 6 below.
4.2 Cooperation with Others: Delta-T will cooperate with Owner's other
contractors, if any, to facilitate coordination of the Work with the work
of others, but any changes to the Work or
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the Schedule required to do so shall be treated as a change under Section 6
below. Notwithstanding the foregoing, Delta-T shall not be required to
check the quality or quantity of work performed by Owner or Owner's
contractors or subcontractors, provided, however, Delta-T shall confirm
that any predecessor work shall be sufficient for Delta-T's Work. Delta-T
shall not have control over or responsibility for the construction,
methods, techniques, sequences or procedures, or for safety precautions and
programs used by Owner or Owner's contractors or subcontractors in
connection with the Work and shall have no liability thereon.
5. Schedule
5.1 Schedule: Delta-T shall use its best reasonable efforts to perform the
Work in accordance with the Schedule, but it does not guarantee that the
Work will be completed according to such Schedule. In case of any delay
other than a delay caused by Delta-T, its employees, subcontractor's or
vendors for reasons other than force majeure (which shall be treated in
accordance with Section 19 below), the Schedule for completion of the Work,
or any part of it, shall be extended by a number of days equal to the
actual number of days of such delay, plus the number of days reasonably
required for demobilization and remobilization. Delta-T shall use all
reasonable efforts to comply with Owner's wishes with respect to changes in
Schedule, but any adjustment requested by Owner to the Schedule shall be
deemed a change and Delta-T shall have no obligation to slow down or
accelerate its performance of the Work except in accordance with Section 6
below.
5.2 Compensation to Delta-T for Delay: In the event of any delay caused by
Owner, its employees, subcontractor's or vendors for reasons other than
force majeure exceeds, individually or in the aggregate, fourteen (14)
days, Delta-T shall be entitled to compensation for its unavoidable direct
costs resulting from such delay, including in particular, but without
limitation, the costs, if any, of extended site overhead and those itemized
at Exhibit B.
6. Changes
6.1 Issuance of Change Orders by Owner: Owner may by its written order
require changes in the Work within the general scope of the Contract
consisting of additions,
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deletions or other revisions which do not result in any material change in
the Work, provided that the Contract Sum and payment schedule are adjusted
to reflect the change in Delta-T's direct costs resulting from such
changes, plus a reasonable amount for profit, and that the time allowed for
completion, warranty obligations, and any other obligations of Delta-T
affected by the changes are adjusted to cover the consequences to Delta-T
resulting from such change. Furthermore, Owner shall issue a change order
providing for all such adjustments when required to do so under Section 4.1
above. The amount to be paid to Delta-T, the effect on Schedule, if any,
and any other adjustments to the Contract will be made by mutual agreement.
If the change, in Delta-T's judgment, would have a detrimental impact on
performance of the Plant, or if the amount of the cost of the change order
in dispute exceeds 1% of the Contract Sum, then Delta-T shall have no
obligation to proceed with any change until such agreement is reached.
Furthermore, Delta-T shall in no case be required to agree to any change
requiring the handling of PCBs, asbestos or any other hazardous material.
In all other cases, if Owner and Delta-T are unable to reach agreement
within fifteen (15) days of the date of Delta-T's notice to Owner provided
in accordance with Section 6.2 below, then Delta-T shall proceed with the
change and the matter shall be resolved as provided at Section 18 below.
6.2 Notice of Instruction Constituting a Change; Notice of Impact of Change
Order: If Delta-T receives instructions from Owner, which in Delta-T's
opinion constitute a change in the Work, Delta-T shall so advise Owner
within five (5) business days of receipt of such instruction. If Delta-T
receives a change order under Section 6.1 above or becomes aware of a
constructive change order of the type described at Section 6.3 below, or
gives Owner a notice that an instruction of Owner constitutes a change,
then Delta-T shall within ten (10) business days thereafter submit to Owner
a statement of the impact of such change on Contract Sum, payment schedule,
Schedule, warranties, and any other provisions of the Contract affected
thereby. Delta-T shall not delay prosecution of the Work not affected by
the change.
6.3 Constructive Change Orders: Any of the following shall be deemed
constructive change orders: (a) a modification of applicable law, ordinance
or regulation resulting in any increase in taxes or insurance premiums, or
any other cost, payable by Delta-T or in any government regulated costs
that was not or should not have been reasonably anticipated by Delta-T, (b)
any increase in Delta-T's costs due to force majeure, but only to the
extent (i) such costs are not compensated by insurance, and (ii) the actual
delay caused by the force
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majeure event is more than five (5) days, and (iii) such costs include the
direct costs of the force majeure event plus fifty percent of any extended
general condition costs, or (c) unknown or differing site conditions of the
type described at Section 4.1 above.
7. Commissioning, Startup, Training of Owner's Personnel, and Final Acceptance
7.1 Mechanical Completion and Commissioning: Delta-T shall give Owner at
least five calendar days notice when Delta-T believes that the Work has
reached Mechanical Completion. Owner and Delta-T shall, within seven
calendar days jointly inspect the Work and prepare a proposed Punch List.
Such Punch List shall clearly designate which items, if any, need to be
completed in order to reach Mechanical Completion. Delta-T shall within
three (3) calendar days of receipt of the jointly prepared Punch List xxxx
the list to show Delta-T's disagreement, if any, with any of the items
listed by Owner, and return a copy of the list so marked and signed by
Delta-T to Owner. In the event that Parties do not agree on the items that
should be included on the Punch List within three (3) calendar days
thereafter, then either Party may submit the matter to disputes resolution
under Section 18 below. Owner and Delta-T shall commence Commissioning upon
achievement of Mechanical Completion of the Plant.
7.2 Performance Test: Owner and Delta-T shall Startup the Plant and begin
the Performance Test as soon as the conditions to Startup described in
Exhibit C have been completed. If for any reason the Performance Test is
not completed on the first attempt, then Owner shall allow Delta-T
reasonable access to the Plant to do all things required to be done to
achieve Final Completion for a period of at least six (6) months after
Startup, as provided at Exhibit D.
7.3 Training of Owner's Personnel: Delta-T shall provide the training
described in Exhibit A. Except as provided otherwise in Exhibit A, Owner
shall provide appropriate personnel, and Delta-T shall provide such
training, at times mutually agreed by them, commencing prior to
Commissioning in sufficient time to prepare Owner's employees to perform
Commissioning and Startup and to perform their obligations with respect to
the Performance Test.
7.4 Use of Plant Prior to Final Acceptance: Owner may use the Plant for
commercial purposes on or after the achievement of Mechanical Completion.
If Owner elects to use any
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portion of the Work for commercial purposes prior to Final Completion,
however, then it shall allow Delta-T free access to the Plant to do all
things required to be done to achieve Final Completion, including without
limitation, shut downs of the Plant, as reasonably necessary including,
without limitation, preparation for and execution of one or more
Performance Tests.
7.5 Failure to Reach Final Completion for Reasons Beyond Delta-T's Control:
Subject to the provisions of Section 19 below, if for any reason Owner
fails to permit Delta-T access to the Plant after the date of Mechanical
Completion in order to permit Delta-T to do all things necessary to achieve
Final Completion, or Delta-T is prevented from achieving Final Completion
for reasons beyond Delta-T's control and such failure to permit access or
prevention of performance continues for an aggregate of sixty (60) days,
then Final Completion shall be deemed to occur on the sixtieth day (in the
aggregate) that such access is denied or performance prevented for purposes
of payment only in accordance with Section 8 below. Delta-T shall complete
the Performance Testing in accordance with Exhibit C.
8. Payment
8.1 Contract Sum: Owner will pay Delta-T for the full and satisfactory
completion of the Work the Contract Sum of $61,800,000.00, or such other
sum as may be determined in accordance with Section 6. In addition to the
sum of $61,800,000.00, Owner will pay Delta-T the sum of $10,600,000.00 for
the cost of the dryer, field-fab tanks, shop-fab tanks, bulk piping and
electrical wiring *. * OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
The Contract Sum does not include any sales or other tax. If Delta-T is,
now or in the future, required to collect from Owner or pay any federal,
state, local or other tax with respect to all or any part of the Work, then
that amount shall be paid by Owner at Delta-T's request, in addition to the
Contract sum. The Contract Sum listed in this paragraph 8.1 is contingent
on the Owner making the first payment to Delta-T in the amount of
$8,000,000.00 (equipment deposits) on or before August 9, 2006. In the
event that the Owner fails to make this
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payment, a constructive change order shall be issued to cover any increase
in equipment costs.
8.2 Payment Terms: Owner shall make payment in accordance with Exhibit B
and this Section 8. Delta-T shall submit Applications for Payment in the
form set forth at Exhibit B. Owner shall, through Owner's Representative,
sign the Certificate for Payment set forth on the Application for Payment
for the full payment applied for, unless it believes that all or any part
of such amount is not then due. If Owner believes all or part of the amount
requested in the Application for Payment is not then due, Owner shall amend
the Certificate for Payment contained therein by indicating the amount, if
any, that it believes to be due, and shall sign the certificate as amended
and deliver the certificate, together with written notice of Owner's
reasons for certifying less than the whole amount of applied for. Owner or
Owner's construction lender shall wire transfer, in immediately available
funds, all amounts for which it has issued certificates, within the time
set forth in Exhibit B, and if no time is indicated thereon, within thirty
(30) days of the date of its receipt of the Application for Payment, to a
bank account to be selected by Delta-T, at its sole discretion. Owner's
payment shall constitute a Certificate for Payment if the Certificate for
Payment form is not executed by Owner. If Owner does not certify payment in
the amount of the Application, and Delta-T and Owner cannot agree on a
revised amount within fifteen (15) days of the date of the Certificate for
Payment for less than the full amount, then either Party may request a
demand for arbitration in accordance with Section 18. In any case, when the
reasons stated by Owner for withholding payment of any amount for which an
application has been made are removed, in whole or in part, Owner shall
immediately issue a Certificate for Payment for the amount withheld and
make payment, via wire transfer as described in this Section 8.2, of the
amount so certified. .
8.3 Late Payment: Owner shall pay the lesser of 1.0% per month or the
highest amount permitted by law on all sums more than 10 calendar days past
due.
8.4 Mechanic's Lien Waivers and Indemnity: Delta-T shall pay promptly for
all valid amounts due for all materials, labor and equipment used in or in
connection with the performance of this Contract, including those of its
subcontractor's and vendors, when bills or claims become due, and shall
indemnify and hold harmless Owner from and against all claims of its
subcontractors and vendors for amounts due arising from Delta-T's failure
to
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make any such payments, provided that Owner gives Delta-T prompt notice of
such claim and cooperates with Delta-T in defense of such claim.
8.5 Mechanic's Liens: Delta-T shall keep the real property upon which the
Plant is to be located free and clear of laborer's, materialmen's and
mechanic's liens arising out of the performance of the Work for which Owner
has made payment. Owner shall promptly notify Delta-T in writing of any
lien so arising of which it has notice or knowledge. Delta-T shall obtain
and timely provide to Owner a partial release of lien with respect to any
partial or progress payment made to relevant subcontractors and shall also
obtain and timely provide a complete release of lien and general release
with respect to any subcontract for which full and final payment is made.
In each case, the release of lien may be for an amount less amounts that
will be paid from the payment for which such release of lien is requested.
Delta-T shall promptly pay each subcontractor upon receipt of payment from
Owner of the amount invoiced that is due to such subcontractor.
8.6 Final Payment: Delta-T shall invoice Owner for the final amount due to
it in accordance with Exhibit B.
8.7 Construction Lender. Delta-T understands that Owner is obtaining
construction financing and that the financial institution providing such
construction financing may have certain requirements and procedures for
making progress and other payments to Delta-T. Delta-T agrees to cooperate
with any and all reasonable requirements and procedures imposed by Owner's
construction lender.
8.8 Withholding Payments. Owner shall be entitled to deduct from any
amounts due or owing by Owner to Contractor any amounts as may be
reasonably necessary to protect owner from losses due to:
(a) Work that is damaged, defective or not in conformance with this
Agreement and has not been remedied by Contractor after having written
notice from Owner of such damage, defect or nonconformity and Contractor
having not corrected such damage, defect or nonconformity within thirty
(30) calendar days of receiving such notice; or
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(b) Failure of Contractor to pay Subcontractors, or for labor, materials or
Equipment unless a Payment Default has occurred and is continuing and then
only to the extent such Work was part of the Invoice which forms the basis
of the Default Payment; or
(c) claims filed by third parties relating to or arising out of the Work
against the Owner or its Construction Lender and damage to the Owner or
another person or entity caused by Delta-T, its subcontractor, or material
suppliers that arise out of the Work, provided such claim or damage has not
been resolved by Delta-T after having written notice from Owner of such
claim or damage and Delta-T not having corrected or resolved such claim or
damage within thirty (30) days of receiving such notice.
9. Rights of Owner and Delta-T to Suspend Work or Terminate
9.1 Owner's Right to Terminate For Cause: Owner may terminate this Contract if:
a. a petition in bankruptcy is filed by Delta-T, and such filing
materially impacts Delta-T's ability to perform its obligations under
this Contract, or such a petition is filed against Delta-T and it is
not dismissed within 45 days, or
b. Delta-T commits a material breach of a material obligation under
this Contract, or fails to make reasonable progress toward completion
of the Work, and fails to cure such breach or failure within the longer
of 45 days of its receipt of written notice of such breach or such
longer time as is reasonably required to cure such breach.
Upon such termination Owner may take possession of the Work completed by
Delta-T or delivered to the Plant site and all materials and Equipment at
the site acquired for incorporation into the Work and owned by Owner or
Delta-T, take assignment of all purchase orders and subcontracts related to
the Work and complete the Work by whatever reasonable method Owner may deem
expedient. Owner shall permit Delta-T access to the Plant site after such
termination as reasonably required by Delta-T to remove any equipment,
trailers, supplies, goods and materials maintained by Delta-T in connection
with the Work but not intended to be incorporated into the Plant, or owned
or used by any of its subcontractors under subcontracts not to be assigned
to Owner. In the event of termination for any of the reasons set forth
above, Delta-T will be liable to Owner for any reasonable costs incurred by
Owner to complete the Work in excess of the Contract Sum remaining
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unpaid to Delta-T, up to a maximum of 10% of the Contract Sum. In case of
such termination, the license granted under Section 17.2 below with respect
to the Delta-T Technology delivered prior to the date of termination shall
become effective, no further payments will be made to Delta-T after
termination until the Work is completed and upon completion of the Work,
Owner shall pay Delta-T the balance due under this Contract, less the
amounts required to be paid by Owner to third parties to complete the Work,
and if the unpaid balance of the Contract Sum is less than the cost of
finishing the Work, Delta-T shall then pay such excess, up to a maximum of
the amount set forth in the preceding sentence.
9.2 Delta-T's Right to Stop Work: If Owner does not pay Delta-T amounts
that Owner has certified for payment within five (5) Days after the date
such payment is due, then Delta-T may, upon ten (10) Days written notice to
Owner, stop the Work until payment of the amount owing has been received.;
provided, however, Delta-T may not stop the Work if there is a good faith
dispute regarding the amount of payment due Delta-T. If Delta-T suspends
the Work under this Section 9.2, then the time allowed for completion of
any of the Work shall be extended as provided at Section 5.1 above.
9.3 Delta-T's Right to Terminate: Delta-T may terminate the Contract on
seven (7) Days written notice if the Work is stopped, without fault on the
part of the Delta-T or, any of its vendors or subcontractors, for more than
twenty-one Days, for any of the following reasons:
a. a petition in bankruptcy is filed by Owner, and such filing
materially impacts Owner's ability to perform its obligations under
this Contract, or such a petition is filed against Owner and it is not
dismissed within forty-five (45) Days.
b. Owner has not made payment within sixty (60) Days of the date due;
or
c. Owner commits any other material breach of a material obligation
under this Contract, and fails to cure such breach within the longer of
45 Days of its receipt of written notice of such breach or such longer
time as is reasonably required to cure such breach.
Delta-T may terminate the Contract on seven (7) Days written notice if the
Work is stopped, without fault on the part of the Delta-T or, any of its
vendors or subcontractors, for more than ninety (90) Days because of the
issuance of any order of a court or other public authority having
jurisdiction over the Site or project.
Upon such termination Owner shall pay Delta-T (a) all amounts then due to
it under this
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Contract as of the date of termination, including all amounts completed but
not yet invoiced, and including the portions, if any, of such amounts that
would have been held as retainage in accordance with Exhibit B, (b) all
unavoidable costs payable to subcontractors at any tier and all other
vendors related to the work, including reasonable fees for cancellation,
and (c) a termination fee calculated as set forth in Exhibit B. For this
purpose, the amounts then due to Delta-T shall be deemed to be all amounts
billed in accordance with Exhibit B up to the date of termination, plus the
value of all goods delivered and services performed under this Contract and
not billed as of the date of termination. In the event that the Parties
cannot agree on the total amount due within thirty (30) Days of the date of
Delta-T's demand for payment hereunder, either Party may initiate
arbitration under Section 18.2 below.
10. Safety and Security
10.1 Premises: Delta-T will keep the premises clean and free from rubbish
caused by performance of the Work and will insure that its subcontractors
do likewise. At completion of the Work, Delta-T shall leave the premises
clean of all debris resulting from performance of the Work. Owner shall
provide dumpsters for disposal or recycling of materials and Delta-T shall
be responsible to insure that the proper material is placed in the
appropriate dumpster. Owner shall receive the proceeds of the sale or
recycling of any salvage items or scrap from the project.
10.2 Security: During construction and installation of the Work, Delta-T
will use reasonable means to protect the Work and all Equipment and
materials to be used in connection with the Work and located on the Work
site safe from injury or defacement, within the defined battery limits, and
all equipment owned or leased by Delta-T or any of its subcontractors, and
all other equipment and goods of any kind located at the Plant site for the
purpose of performing the Work.
10.3 Safety: Delta-T will insure all its labor and other authorized
personnel comply with all appropriate safety and security regulations,
procedures or standards. Delta-T shall furnish and maintain all necessary
safety equipment and training for its employees and shall maintain a safe
work site at all times. All Work shall be performed in accordance with
Delta-T and its primary subcontractor's safety plan.
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10.4 Compliance with OSHA and Similar Laws and Regulations: Owner shall at
all times be solely responsible for compliance with the Occupational Safety
and Health Act ("OSHA"), and any similar state laws or regulations, with
respect to its own employees. In particular, but without limitation, Owner
shall be responsible for claims made by any of its employees, by reason of
any personal injury or death which results from a violation of any such law
or regulation. Delta-T shall be solely responsible for compliance with
OSHA, and any similar state laws or regulations, with respect to its own
employees and will require the same of its subcontractors. In particular,
but without limitation, Delta-T shall be responsible for claims made by any
of its employees, whether against Owner or Delta-T by reason of any
personal injury or death which results from a violation of any such law or
regulation. The Schedule shall be extended as necessary to allow for cure
of any unsafe condition, which results in a suspension of the Work, which
is caused by anyone other than Delta-T, its agents, employees or
sub-subcontractors.
11. Project Execution
11.1 Delta-T Representatives: Delta-T will keep a Project Manager
("Delta-T's Project Manager") assigned to the Work at all times during its
progress, and shall keep a Site Manager on the Work site on a daily basis
during the construction phase of the Work. Delta-T's Project Manager shall
represent Delta-T, and written communications given to Delta-T's Project
Manager or Delta-T's Site Manager shall be as binding as if given to
Delta-T itself. All communications to Delta-T's Project Manager or Site
Manager by Owner shall be confirmed in writing upon request by Delta-T.
11.2 Owner Representative: Owner will have at all times during the progress
of the Work, a competent representative ("Owner's Representative") assigned
to the Work. Owner's Representative shall represent Owner, and written
communications given to Owner's Representative shall be as binding as if
given to Owner itself. Owner shall have its Owner's Representative on site,
or available within 24 hours, at all times during the progress of the Work.
11.3 Project Reviews and Approvals:
11.3.1 Reviews: Delta-T will, as appropriate, and additionally upon
Owner's request, issue a project progress schedule to Owner. Delta-T
shall provide Owner each week a
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two-week look ahead schedule. Delta-T shall participate in weekly
meetings to review the progress of the Work at the Work site at
Owner's request as set forth in Exhibit A. . Owner may review and
comment on any plan, drawing or specification, that Delta-T delivers
to Owner. No review or comment made by Owner shall result in Owner's
being deemed to have assumed any responsibility for any of the Work.
Delta-T shall attempt to incorporate Owner's comments where it can do
so without increasing Delta-T's cost, the time required for
performance, or any of its other obligations, but Delta-T shall have
no obligation to suspend work to allow time for review and comment
except as provided in the Schedule, or to incorporate any of Owner's
comments except as required in order to comply with Delta-T`s
obligations under the Contract, or as agreed under Section 6 above.
11.3.2 Approval Process: If Exhibit A or the Schedule provides for
approval by Owner of any portion of the Work or any document, then
Owner shall be deemed to have given its approval unless it delivers
written notice of its disapproval, and the specific reasons for its
disapproval within the time allowed according to the Exhibit or
Xxxxxxxx.Xx the event that the reason for disapproval by the reviewing
Party results from failure of the other Party ("submitting Party") to
fulfill any of its obligations under this Contract, then the
submitting Party shall correct the work or document requiring
correction and resubmit it for review. The reviewing Party shall have
five (5) business days, or one-half the time allowed according to the
applicable Exhibit or Schedule if such time is prescribed, for the
initial review to approve or disapprove the resubmitted work or
document, and it shall be deemed to have given its approval unless it
delivers written notice of its disapproval, and the specific reasons
for its disapproval, within that time. The review and resubmittal
process shall continue in like manner until the submitted Work is
approved. In the event that any disapproval results from a cause other
than failure of the submitting Party to fulfill any of its obligations
under this Contract, the Schedule shall automatically be extended as
provided at Section 5.1 above.
11.4 Subcontractors and Vendors:
11.4.1 Notice of Subcontractor Selection: Delta-T shall, as soon as
practicable after award of the Contract, furnish in writing to Owner
the names of persons or entities (including those who are to furnish
materials or equipment fabricated to a special design)
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proposed for major portions of the Work. Owner acknowledges that
Delta-T, particularly on large or fast-track projects, may not make
final selection of some subcontractor or vendors until later in the
project, and that Delta-T has the right to select subcontractors and
vendors as long as the selection would not result in failure to
satisfy the requirements of this Contract. The subcontracting of any
portion of the Work, as described in Exhibit A, shall not relieve
Delta-T of responsibility for performance of the Work as provided
therein. Notwithstanding the foregoing, Delta-T shall have the right
to subcontract such portions of the Work as it shall determine to be
necessary to others which, in turn, shall have the right to
subcontract such portions of the Work assigned to them, if any, as
they shall deem necessary.
12. Warranty
12.1 Equipment Warranties: Delta-T shall, for the protection of Owner,
assign to Owner all warranties and guarantees supplied by all vendors and
subcontractors from who it procured goods or services incorporated into the
Project. In addition, Delta-T warrants to Owner that the Equipment will be
free from mechanical defects, structural defects and defects in material
and workmanship until twelve (12) months from completion of the Performance
Test,. OWNER'S SOLE AND EXCLUSIVE REMEDY IN CASE OF BREACH OF THIS WARRANTY
SHALL BE REPAIR OR REPLACEMENT AS PROVIDED IN THIS SECTION 12.1. If any
defect covered by the above warranties is discovered within the warranty
period, Delta-T shall, subject to the provisions set forth below, repair or
replace the defective material or Equipment. The decision to repair or
replace shall be made by Owner. If Owner and Delta-T do not agree on
whether repair or replacement is the most appropriate remedy, and if the
remedy recommended by Delta-T would not impair the performance of the Work
or otherwise materially diminish the value of the Work, then Delta-T shall
not be required to perform the remedy elected by Owner unless Owner pays
Delta-T the excess cost of performing such remedy over and above the cost
of performing the remedy recommended by Delta-T. Delta-T shall in no case
have any liability, under this warranty or otherwise, for any defect or
deterioration which results from failure of Owner to provide any feedstock,
utilities, or other supplies, services or conditions specified in Exhibit
C, force majeure, improper operation or maintenance including damage caused
by freezing, foreign substance or impurity introduced into the equipment,
or any other matter not within Delta-T's control.
12.2 Desiccant Material: Delta-T warrants that the molecular sieve
desiccant will not
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deteriorate due to mechanical abrasion to such an extent as to reduce the
dehydration capacity of the molecular sieve below the level specified in
the Performance Guarantee set forth at Exhibit D for a period of five years
from twelve (12) months from the completion of the Performance Test.
OWNER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY SHALL BE REPLACEMENT
OF THE DESICCANT MATERIAL AS PROVIDED IN THIS SECTION 12.2. Replacement
shall be made at no cost to Owner in the event of a claim under this
warranty within one year after Final Acceptance. With respect to any claim
made thereafter, the desiccant replacement cost to Owner shall be pro
rated, on a daily basis, on the basis of the number of days remaining in
the last four (4) years of the warranty period. As an example, Owner would
pay 50% of the cost of replacement desiccant if the original desiccant had
to be replaced exactly three (3) years from the commencement of the
warranty period (100% x 730th day/ 1460 total Days).
12.3 Professional Services: Delta-T warrants, for a period ending one year
after Final Acceptance, or the last date on which Delta-T performed work
under this Contract if this Contract is terminated for any reason prior to
Final Acceptance, that the services provided by it hereunder will be
provided with reasonable skill and care of the type normally exercised by
other design professionals under similar circumstances. Delta-T shall not
have any obligation or liability for failures or defects due to ordinary
wear and tear, corrosion or erosion, or as a result of improper operation,
improper maintenance or operating conditions more severe than, or different
from, those contemplated in the original design of the Work.
12.4 Labor: Delta-T warrants to Owner that the labor performed and
materials supplied will be free from defects in workmanship and will be of
good quality until twelve (12) months from completion of the Performance
Test. OWNER'S SOLE AND EXLCUSIVE REMEDY IN CASE OF BREACH OF THIS WARRANTY
SHALL BE REPAIR OR REPLACEMENT AS PROVIDED IN THIS SECTION 12.4. If any
defect covered by the above warranties is discovered within the warranty
period, Delta-T shall, subject to the provisions set forth below, repair or
replace the defective workmanship. The decision to repair or replace shall
be made by Owner. If Owner and Delta-T do not agree on whether repair or
replacement is the most appropriate remedy, and if the remedy recommended
by Delta-T would not impair the performance of the Work or otherwise
materially diminish the value of the Work, then Delta-T shall not be
required to perform the remedy elected by Owner unless Owner pays Delta-T
the excess cost of performing such remedy over and above the cost of
performing the remedy recommended by Delta-T. Delta-T shall in no case have
any liability, under this
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warranty or otherwise, for any defect or deterioration which results from
failure of Owner to provide any feedstock, utilities, or other supplies,
services or conditions specified in Exhibit C, force majeure, improper
operation or maintenance including damage caused by freezing, foreign
substance or impurity introduced into the equipment, or any other matter
not within Delta-T's control
12.5 Process Warranty: Delta-T warrants that the Plant will perform as set
forth in Exhibit D during the Performance Test. Delta-T shall not have any
obligation or liability for failures or defects due to ordinary wear and
tear, corrosion or erosion, or as a result of improper operation, improper
maintenance or operating conditions more severe than, or different from,
those contemplated in the original design of the Work. OWNER'S SOLE AND
EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS PAYMENT BY DELTA-T OF
LIQUIDATED DAMAGES AS SET FORTH AT EXHIBIT D.
12.6 No Other Warranties: Delta-T's sole warranties to Owner under this
Contract are the warranties set forth in this Section 12 and in Exhibit D.
OWNER HEREBY ACKNOWLEDGES AND AGREES THAT DELTA-T MAKES NO OTHER WARRANTY
UNDER OR BY VIRTUE OF THIS CONTRACT, WHETHER EXPRESS OR IMPLIED, AND
WHETHER RELATED TO GOODS OR SERVICES, AND THAT DELTA-T MAKES NO WARRANTY OF
ANY KIND TO ANYONE OTHER THAN TO OWNER.
12.7 Notice of Warranty Claim: Owner shall notify Delta-T of any defect
covered by the warranty set forth in Section 12.5 and Exhibit D as provided
at Exhibit D, and shall notify Delta-T in writing of any defect covered by
any other warranty within thirty (30) Days after discovering such defect,
and in no case later than thirty (30) Days after expiration of the
applicable warranty period.
12.8 Performance in Excess of Guarantees: Performance of the Plant in
excess of the performance guarantees shall in no way be construed to void
the warranties set forth herein.
13. Transfer of title and Risk of Loss
Title to, and risk of loss of, the Equipment or any part thereof and all
materials and components used, or to be used in the Plant, shall pass to Owner
upon delivery to the Work site. This provision, however, shall in no case be
deemed to alter any of the rights or obligations of any
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party under any insurance policy provided under Exhibit G, or any waiver of
subrogation set forth in Section 14 below.
14. Insurance
14.1 Required Insurance: Each Party shall carry the insurance coverage
described in Exhibit G as insurance to be carried by it.
14.2 Adjustment of Loss: Any loss insured under property or builders risk
insurance required under this Section 14 shall be adjusted by the insurance
carrier with the insured as fiduciary for the other party or parties whose
interests are insured thereunder as their interests may appear, and the
insured shall pay the proceeds due to them promptly. The insured shall bear
the costs of the deductible, if any, under such policy.
14.3 Waiver of Subrogation: Owner and Delta-T intend that all builder's
risk policies purchased, or required to be purchased, in accordance with
Exhibit G will protect Owner, Delta-T and all subcontractors at any tier,
and will provide primary coverage for all losses and damages caused by the
perils or causes of loss covered thereby. Owner and Delta-T waive all
rights against each other and their respective subcontractors, officers,
directors, agents and employees of the other arising out of or resulting
from any of the perils or causes of loss covered by such policies and any
other property insurance during the period prior to Final Completion and
payment of all amounts due to Delta-T under this Contact. None of the above
waivers shall extend to the rights that any Party making such waiver may
have to the proceeds of insurance held by Owner as trustee or otherwise
payable under any policy so issued. In addition, Owner waives all rights
against Delta-T, its subcontractors at any tier and the officers, directors
and employees and agents of any of them for business interruption and any
other consequential damages caused by, arising out of or resulting from any
such insured perils or causes of loss or any other peril or cause of loss
whether or not insured. All policies required under the Contract shall be
endorsed to include such waivers of subrogation, or confirmation of such
waivers shall appear on the certificates of insurance required to be
delivered under Section 14.4 below. Owner and the Delta-T shall require
from each of their contractors and subcontractors who do work on the
Project similar waivers, each in favor of the other parties enumerated in
this Section.
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14.4 Certificates of Insurance: Before commencing the Work, Delta-T and
Owner shall each furnish the other with certificates evidencing the
coverage required under Exhibit G from the insurance company or companies
carrying the aforesaid coverage. These certificates will provide that the
policies may not be amended or terminated unless at least thirty (30) days
prior written notice is given to Owner and Delta-T. Failure of either Party
to demand any such certificate prior to commencement of the Work shall not,
however, be deemed to relieve any Party of its obligation to carry such
insurance.
15. Indemnity
15.1 Indemnity by Delta-T for Personal Injury and Property Damage: Delta-T
shall indemnify and hold harmless Owner and its agents and employees from
and against all claims made by a third party for any, damages, losses and
expenses, including, but not limited to attorney's fees, arising out of or
resulting from Delta-T's performance of the Work, provided that any such
damage, loss or expense: (1) is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property
(other than the Plant, Equipment or the Work itself) and (2) is caused in
whole or in part by any negligent act or omission of Delta-T, its
subcontractors, or anyone for whose acts Delta-T is liable. In the event
that any such damage, loss or expense was caused in part by Owner or by any
other person or entity, however, then Delta-T shall be obliged to pay only
the portion of the damage, loss or expense, including reasonable attorney's
fees as is attributable to its relative share of the negligence or omission
which caused such damage, loss or expense.
15.2 Indemnity by Delta-T for Intellectual Property: Notwithstanding
anything to the contrary herein, Delta-T hereby warrants that the Plant,
and the use thereof in an application described in the process description
set forth at Exhibit A, as delivered by Delta-T under this Contract, when
operated in accordance with Delta-T's operating instructions, will not
infringe any United States patent, copyright, any trade secret, or any
other intellectual property right held by others. Delta-T further agrees,
upon receipt of notification from Owner of a lawsuit or claim against Owner
for such an infringement, to promptly defend such claim with competent
counsel of its own choosing. Delta-T further agrees, to indemnify Owner
against any royalties, damages, orders, and court costs, awarded by a
final, non-appealable judgment resulting from a finding of an infringement
covered by this indemnity, or the settlement of a claim indemnifiable
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under this Section 15.2.
15.3 Conditions to Indemnity: The indemnities set forth in Sections 15.1
and 15.2 above all shall not apply to any design, process or product of a
particular manufacturer or manufacturers, which is specified by Owner.
These indemnities are valid only if (a) Owner gives notice of any claim or
lawsuit for which it claims indemnity within time sufficient for Delta-T to
contest such claim, (b) Owner cooperates fully and promptly with Delta-T in
the defense thereof at Owner's expense for all items related to such
defense for time of witnesses who are employees of Owner, costs related to
travel, production of documents, fees for any counsel it elects to assist
it in addition to counsel appointed by Delta-T for defense of the claim,
and (c) Delta-T has full authority in defense of such lawsuit or claim and
to settle such claim, provided that, it pays to Owner the cost, if any, of
any change in operations resulting from such settlement. In no case shall
Delta-T be liable under Sections 15.1 or 15.2 for any amount, including
costs and attorney's fees, in excess of the limit set forth at Section 16
below.
15.4 Indemnity by Owner: Owner shall indemnify and hold harmless Delta-T
and its agents and employees from and against all damages, losses and
expenses, including but not limited to attorney's fees, and arising or
resulting from a claim, order, requirement or charge made or brought by a
third party or by the federal, state or local government, or any
department, agency or subdivision thereof, based, in whole or in part, on:
(a) defects in title; (b) Owner's negligence; (c) hazardous materials,
unless such materials were brought on the Site by Delta-T or its
subcontractors; (d) the existence of any substance located on or under the
Work site, unless such substance was brought on the Site by Delta-T or its
subcontractors; (e) a condition of the Work site subject to any law or
regulation related to protection of the environment; or (f) any other
matters for which Owner shall have responsibility pursuant to this
Contract. This indemnification is valid only if (a) Delta-T gives notice of
any claim or lawsuit for which it claims indemnity within time sufficient
for Owner to contest such claim, (b) Delta-T cooperates fully and promptly
with Owner in the defense thereof at its expense for all items related to
such defense for time of witnesses who are employees of Delta-T, costs
related to travel, production of documents, fees for any counsel it elects
to assist it in addition to counsel appointed by Owner for defense of the
claim, and (c) Owner has full authority in defense of such lawsuit or claim
and to settle such claim, provided that such settlement requires payment of
monetary damages only and that Owner can, and does, pay the full cost of
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any such settlement.
16. Limitation of Liability
In no case shall Delta-T or Owner have any liability to the other under or
arising from any performance, delay in performance, or breach of this Contract
for any indirect, incidental, reliance, punitive, exemplary, or consequential
damages (including, without limitation, lost profits, increase in costs of goods
or services resulting from delay, cost of capital or losses due to business
interruption) whether based on contract, tort or other legal theory, whether or
not Delta-T had knowledge of the damages that might result, except as expressly
provided otherwise under these General Conditions and except in case of breach
of Section 17 below, to which this limitation shall not apply. Subject to the
limitations set forth in this paragraph, nothing shall preclude Delta-T or Owner
from recovering direct damages. Furthermore, Delta-T's maximum cumulative
liability for any and all direct damages under this Contract, including without
limitation liquidated damages payable Exhibit D, shall be as follows:
1. 100% of the Contract Sum as set forth in paragraph 8.1 beginning at
commencement of the Project. (For purposes of paragraph 16 only, the computation
of the Contract Sum shall not include any Change Orders as provided for in this
Agreement.) The 100% of Contract Sum maximum liability shall be reduced in
amounts equal to the payments made by Owner to Delta-T under this Agreement.
Once the Owner has paid Delta-T 50% of the Contract Sum, Delta-T's maximum
liability shall remain fixed at 50% of the Contract Sum until such time as the
Plant reaches Mechanical Completion.
2. Once the Plant reaches Mechanical Completion, Delta-T's maximum
cumulative liability shall be reduced to Thirteen Million Dollars
($13,000,000.00), inclusive of the Retainage provided for under this Agreement.
Delta-T's maximum liability shall remain fixed at $13,000,000.00 until such time
as the Plant reaches 90% of the Performance Guaranty values set forth in this
Agreement.
3. Upon reaching 90% of the Performance Guaranty amounts, Delta-T's
maximum cumulative liability shall be reduced to the amount of the Retainage
which shall be released pursuant to Exhibit B.
The limitations set forth in this Section shall not apply to limit or
restrict available insurance nor shall it effect warranty or indemnification
obligations hereunder.
17. Confidentiality
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17.1 Confidential Information: Owner shall not use any Confidential
Information for any purpose other than the purposes permitted under this
Contract and shall not use any Delta-T Technology except as permitted under
Section 17.2. Furthermore, Owner shall not disclose any Delta-T Technology
or other Confidential Information to, or permit the visual inspection of
the Equipment, Plant or Work embodying any Confidential Information by, any
person or entity other than its employees who need to have access to such
data in order to operate the Plant, any consulting engineers retained by
Owner, or representatives of the construction lender unless (a) such access
is required by local, state or federal regulatory authorities, or (b) it is
necessary to do so in order to maintain or repair the Plant or to
facilitate interface of connection of the Equipment to other equipment or
facilities of Owner, and Owner has complied with the first right of refusal
requirements of Section 17.3 below; and (c) Owner first obtains a signed
confidentiality agreement from such person in the form attached hereto as
Exhibit H and provided a copy of the same to Delta-T. In addition to the
foregoing, Delta-T shall have the right to reasonably object to Owner's
request to disclose Confidential Information to third parties. Furthermore,
Owner shall not disclose any Confidential Information to any of its
employees other than those who have been made aware of and agreed to comply
with the non-disclosure provisions of this Section 17.1. Owner shall not
disclose any Confidential Information pursuant to court order or other
legal process unless it is advised by its legal counsel that it is legally
required to do so; it has promptly given Delta-T notice of such order or
process so that Delta-T can seek to obtain a secrecy order; and, it uses
all other reasonable means to ensure the confidential treatment of such
information. In particular, but without limitation, in no event will Owner
knowingly allow an entity that is a competitor of Delta-T to tour the
Plant, or to provide maintenance or other services that would expose it to
Delta-T Technology, as long as there is a reasonably feasible alternative
to complete the maintenance through Delta-T or a non-competitor of Delta-T.
A "competitor" for this purpose shall mean entities listed on Exhibit I,
and such other entities as Delta-T may advise Owner from time to time in
writing. Owner shall maintain a log of each individual (other than its
employees and contractors) who has access to the Delta-T Technology, and
the date and purpose for such access. Owner shall provide a copy of such
log to Delta-T upon request.
17.2 License of Delta-T Technology: Owner acknowledges that Delta-T is and
shall remain the sole owner of the Delta-T Technology, and of the
copyrights in all the drawings, manuals and other documents provided by
Delta-T under this Agreement. Delta-T grants to
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Owner, subject to the conditions of this Agreement, a non-exclusive,
paid-up, non-transferable right to use in perpetuity the Delta-T
TECHNOLOGY, without right to grant such rights to others, solely for the
purposes of:
a. Use and operation of the Plant.
b. Maintenance, repair, and optimization or enhancement of the Plant.
Optimization and enhancement, for this purpose, shall include
de-bottlenecking, but shall not include expanding the physical dimensions
of the distillation columns and molsieve vessels specified in the design,
or adding to the original number of distillation columns and molsieve
vessels delivered by Delta-T under this Contract. Delta-T agrees that if
Owner wishes to expand or add distillation columns or molsieve vessels in
order to increase the production capacity of the Plant, Delta-T shall
negotiate in good faith with Owner to agree to a grant of rights, and
corresponding technology fee, to allow for such expansion or addition. The
right granted under this Section 17.2 shall become effective only upon
payment in full of the entire amount due to Delta-T under Section 8 above,
and Owner shall have no right to use any such Delta-T Technology, for any
purpose other than Plant Startup and conducting the Performance Test until
the payment of all such amounts is made per the terms of this Contract.
17.3 First Right of Refusal: Owner shall not disclose any Delta-T
Technology for the purpose of maintenance or repair of the Plant to anyone
other than its employees or other entities who need to have access for
those purposes unless (a) Owner first obtains a fully executed
Non-Disclosure Agreement in a form identical to Exhibit H from each such
person or entity who may be exposed in any way to Delta-T's Technology and
(b) Owner provides Delta-T with a copy of such fully executed
Non-Disclosure Agreement.
18. Dispute Resolution
18.1 Executive Conference or Mediation: In the event of any controversy or
claim arising out of or related to this Contract, or the interpretation,
termination or breach hereof, other than default in payment due under
Section 8 above which shall be subject to the provisions of this Section at
Delta-T's option, the Parties shall, upon the written request of either of
them, attempt to resolve the matter by agreement of the representatives of
the Parties. Such representatives shall be at least one management level
above the individuals who
--------------------------------------------------------------------------------
Page 29
have had direct responsibility for performance of the Contract, or the
highest level of management of any Party whose highest level of management
has had direct responsibility for such performance. Such representatives
shall meet in person or by telephone or teleconference at least once, and
shall attempt to resolve any matter raised by either of them by the written
notice requesting such resolution for a period of at least thirty (30)
Days. In the event that the Parties are unable to resolve the dispute by
agreement of such representatives within such thirty (30) Day period, then
at the written request of either Party, the Parties shall submit the matter
to mediation under the then current rules of mediation and conciliation of
the American Arbitration Association. The Parties shall attempt to resolve
any matter submitted to mediation under this Section 18.1 within thirty
(30) Days after the date of delivery of the written request for mediation.
18.2 Arbitration: Any controversy or claim arising out of or related to
this Contract, or the interpretation, termination or breach hereof, which
cannot be resolved by mutual agreement of the parties or by mediation
within the time periods provided at Section 18.1 above shall be submitted
to binding arbitration in accordance with the applicable rules of the
American Arbitration Association. The place of arbitration shall be
Nebraska. Neither Party shall submit any such matter to arbitration unless
the parties have been unable to resolve it by mediation for a period of at
least thirty (30) days after the date of request for mediation. Any party
who files a notice of demand for arbitration must assert in the demand all
claims then known to that party against the other. Judgment upon any award
rendered by an arbitrator or arbitrators under this Contract may be entered
upon it in accordance with applicable law in any court having jurisdiction
thereof, but either party hereto shall have the right to contest such award
on the grounds that it is contrary to applicable law.
18.3 Injunctive Relief: Notwithstanding the foregoing, Delta-T may seek
injunctive relief from any court of competent jurisdiction at any time in
case of a breach of Section 17 above.
18.4 Attorney's Fees and Costs: All costs, expenses and attorney's fees
resulting from the litigation or arbitration of any claim under this
Contract shall be paid by the losing party to the prevailing party,
considering the totality of the circumstances, including any offers of
settlement.
19. Force Majeure
--------------------------------------------------------------------------------
Page 30
19.1 No delay in, or failure of, performance by either Party under this
Contract will constitute default hereunder or give rise to any claim for damages
if and to the extent caused by an occurrence beyond the control of the party
affected, to include but not limited to, acts of governmental authority, acts of
God, strikes or other concerted acts of workmen, fire, flood, abnormal weather,
explosions, riots, war, rebellion or sabotage.
19.2 Adjustments to all scheduled dates shall be made as a result of a
delay caused by a Force Majeure Event and shall be equal to the actual number of
days of delay incurred by Delta-T or its subcontractors.
20. General Provisions
20.1 Assignment: Neither Delta-T nor Owner shall assign or transfer its
duties or obligations hereunder without the prior written consent of the
other, which consent shall not be unreasonable withheld. This Contract
shall be binding upon and shall inure to the benefit of the Parties and the
successors and permitted assigns of Owner and Delta-T.
20.2 Entire Contract; Waiver; Amendment: These General Conditions and the
attached Exhibits constitute the full and complete contract between the
parties hereto with respect to the subject matter hereof. There are no
statements, agreements, understandings, representations or trade customs of
any kind, express or implied, concerning the subject matter which are not
merged herein or superseded hereby. A waiver of any of the terms of this
Contract shall not bind either party unless signed by one of its duly
authorized representatives. Waiver by either Party of any default by the
other party hereunder shall not be deemed a waiver by such Party of any
default by the other which may occur thereafter. This Contract may only be
modified or amended by an agreement in writing executed by both Parties
hereto.
20.3 Governing Law: The validity, performance, construction and effect of
this Contract shall be governed by the laws of the state in which the work
is performed.
20.4 Notices: ALL notices provided for herein will be considered as
properly given if in writing and delivered personally or, by fax or sent
properly addressed, postage pre-paid:
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Page 31
If to Delta-T, to: 000 Xxxxxxxxx Xxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000 XXX
Attn: Xxxxxx Xxxxx, VP & CFO
If to Owner, to: Xxxxxx Xxxxxxxxx
President-General Manager
00000 Xxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxx 00000
Notices shall be deemed effective upon actual receipt, or in the case of
posting in the U. S. mail, on the fourth Day after mailing.
20.5 Survival: Sections 16, 17.1, 18, 19, and 20 shall survive termination
of this Contract.
20.6 Third Parties: The Parties agree that this Contract is not intended by
either Party to give any benefits, rights, privileges, actions or remedies
to any person, partnership, firm or corporation (other than a Party or its
permitted assignee) as a third party beneficiary under any theory of law.
20.7 Equal Bargain and Representation: The Parties have participated
jointly in the negotiations and drafting of this Contract. In the event
that an ambiguity or question of intent or interpretation arises, this
Contract shall be construed as if drafted jointly by the Parties hereto,
and no presumption or burden of proof shall arise favoring or disfavoring
any Party by virtue of the authorship of any of the provisions of this
Agreement. Each of the Parties acknowledges that it has been represented by
legal counsel of its own choice throughout all negotiations, preparation,
review and execution of this Contract, and that each Party has executed
this Contract voluntarily and with the consent and on the advice of any
such legal counsel. In entering into this Contract, each Party has
undertaken such factual inquiry as it has deemed necessary and has relied
solely on that inquiry and not on statements or representations of the
other Party.
21. Proceeding before Financial Closing
21.1 The Owner has the option to request that Delta-T initiate engineering
tasks prior to financial closing. If this option is elected, until such
time as Owner notifies DELTA-T that Owner has secured financing sufficient
to permit Owner to pay all its financial
--------------------------------------------------------------------------------
Page 32
obligations in connection with building of the Plant upon terms acceptable
to Owner, (the "Financing"), DELTA-T shall only perform (i) the tasks
described on Exhibit J and (ii) such other portions of the Work as Owner
may from time to time specifically request and as DELTA-T may agree in a
writing signed by it to perform. DELTA-T shall have the right to receive
from Owner reasonable assurance of Owner's ability to pay for Work that
Owner asks it to perform prior to performing any such Work until such time
as DELTA-T shall have received written notice from the Owner, and evidence
reasonable acceptable to DELTA-T, that the Financing has been secured. If
this option is elected, Owner shall provide DELTA-T a topographical and
legal survey of the Plant site, and the amount due to DELTA-T under Exhibit
B-3, prior to commencement of Work under this Section 21. DELTA-T's
commencement of Work under this Section 21 shall in no case be deemed a
waiver of Owner's obligation to provide the items that it is required to
provide under Section 3 above prior to performing Work other than the Work
described on Exhibit J.
21.2 If DELTA-T does not receive notice that Financing has been secured on
or before September 15, 2006, then DELTA-T may terminate this Agreement at
any time thereafter without penalty or expense of any kind upon at least 30
days' written notice of its intent to terminate. In such case, the
termination shall become effective at the end of the notice period unless
DELTA-T receives notice of Owner's receipt of Financing prior to the
effective date of termination. Upon termination under this Section, Owner's
rights in the DELTA-T technology under Section 17.2 above shall immediately
cease, and Owner shall return all documents and other materials containing
any such technology to DELTA-T and certify to DELTA-T in writing that it
has done so. Upon such termination, neither Party shall have any
obligations to the other under this Agreement (except for such obligations
as survive under Section 20 above), except that Owner shall be obligated to
pay DELTA-T for all Work performed by DELTA-T prior to date of such
termination.
WITNESS WHEREOF, the parties hereto have executed this Contract to be effective
on the 9th day of August, 2006.
DELTA -T CORPORATION NEDAK ETHANOL, LLC
--------------------------------------------------------------------------------
Page 33
BY: /s/ Xxxxx Xxxxxxxx BY: /s/ Xxxxxxx Xxxxx
------------------ -----------------
XXXXX XXXXXXXX, VP OF OPERATIONS XXXXXXX XXXXX, CHAIRMAN
BY: /s/ Xxxxx Xxxxx
XXXXX XXXXX
CHAIRMAN OF ENERGY AND
DESIGN COMMITTEE
BY: /s/ Xxxxxx Xxxxxxxxx
XXXXXX XXXXXXXXX, PRESIDENT
--------------------------------------------------------------------------------
Page 34
EXHIBIT A
SCOPE OF WORK
A.1 DELTA-T'S SCOPE OF SERVICES
A.2 DELTA-T TECHNICAL SPECIFICATIONS
A.3 OWNER'S SCOPE OF SERVICES
--------------------------------------------------------------------------------
Page 35
A.1 DELTA-T SCOPE OF SERVICES
*THE PORTIONS OF THIS EXHIBIT A.1 MARKED WITH AN ASTERISK HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION.
1. PROJECT SCOPE DIVISION OVERVIEW & BASE CONTRACT QUANTITIES
----------------------------------------------------------------- ----------------- -------------- -------------------
Engineering & Support Services Unit Qty/Size Provided By
----------------------------------------------------------------- ----------------- -------------- -------------------
Process design, know how and technology license Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Preliminary design Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Technical data for environmental permits Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Detailed Engineering Design Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Site general arrangement design Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Site Engineering (ie. foundations, grading, lagoon) Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Structural Design (ie. steel equip. supports, bldgs.) Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Prepare and file for environmental permits Lump Sum - OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Prepare/file all required federal/state/local permits Lump Sum - OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Construction/Equipment Supply/Performance and Payment Bonds - - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
----------------------------------------------------------------- ----------------- -------------- -------------------
Site Services
----------------------------------------------------------------- ----------------- -------------- -------------------
Provide soils testing and geotechnical evaluation Lump Sum - OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Provide topographic and legal surveys Lump Sum - OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Provide cleared, ready to build, site Lump Sum - OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Site grading and earthwork Lump Sum - OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Concrete Work including foundations/slabs Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
(2) On-site xxxxx for process and potable water Depth in ft Max 200 ft ea OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Septic tank and/or sanitary sewer system Lump Sum - OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Roadways at plant site:
----------------------------------------------------------------- ----------------- -------------- -------------------
Total Length Max linear ft 2000 DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Roadbed Preparation Max linear ft 2000 DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Roadbed Maintenance during construction Max linear ft 2000 DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Concrete Overlay Max linear ft DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Rail spur:
----------------------------------------------------------------- ----------------- -------------- -------------------
Rail Spur Est linear ft OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Rail Scale EACH OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Main rail switch(es) EACH OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Spur Switch(es) EACH OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Rail Cars stacked at each loading point Lump Sum OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Other Services:
----------------------------------------------------------------- ----------------- -------------- -------------------
Truck Scale EACH 1 DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
CO2 Plant (Owner's option) PKG None -
----------------------------------------------------------------- ----------------- -------------- -------------------
O2 reduction equipment (Owner's option) -
----------------------------------------------------------------- ----------------- -------------- -------------------
LPG Storage & Equipment PKG 1 OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
----------------------------------------------------------------- ----------------- -------------- -------------------
Equipment
----------------------------------------------------------------- ----------------- -------------- -------------------
----------------------------------------------------------------- ----------------- -------------- -------------------
All required process equipment not specified Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Process equipment installation and consumables Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Utility equipment & systems
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
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Page 36
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
----------------------------------------------------------------- ----------------- -------------- -------------------
Utility equipment installation (except as noted) Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Piping materials (incl fittings, flanges, etc.) Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Piping installation labor and supplies Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Electrical & instrumentation materials and supplies Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Electrical & instrumentation installation Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Control System hardware and panels Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Control system software and programming Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Main fire loop w/ water storage, pump house, pump Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
Fire sprinkler systems per applicable codes Lump Sum - DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
----------------------------------------------------------------- ----------------- -------------- -------------------
----------------------------------------------------------------- ----------------- -------------- -------------------
Buildings
----------------------------------------------------------------- ----------------- -------------- -------------------
Administration Sq. ft 2000 OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
Maintenance Sq. ft 3000 OWNER
----------------------------------------------------------------- ----------------- -------------- -------------------
All other buildings as needed per process design Sq. ft Varies DELTA-T
----------------------------------------------------------------- ----------------- -------------- -------------------
----------------------------------------------------------------- ----------------- -------------- -------------------
Storage Capacity (at nominal design operating rate)
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
*
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
---------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
*
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------- ----------------- -------------- -------------------
* * * *
----------------------------------------------------------------------------------------------------------------------
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------- ----------------- -------------- -------------------
General Capabilities
----------------------------------------------------------------- ----------------- -------------- -------------------
Feedstock handling data:
----------------------------------------------------------------- ----------------- -------------- -------------------
* * -
----------------------------------------------------------------- ----------------- -------------- -------------------
* * -
----------------------------------------------------------------- ----------------- -------------- -------------------
* * -
----------------------------------------------------------------- ----------------- -------------- -------------------
* * -
----------------------------------------------------------------------------------------------------------------------
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
----------------------------------------------------------------------------------------------------------------------
Quantities and size information is subjective. They will be finalized, along
with plant options and cost, during negotiations.
--------------------------------------------------------------------------------
Page 37
2. DELTA-T DETAILED PROJECT SCOPE DEFINITION
ENGINEERING AND PROCUREMENT
Delta-T to be responsible for process design, procurement and detail
construction engineering for the Plant, consisting of:
o Process design based on proprietary Delta-T technology
o Material and energy balances
o Piping & Instrumentation Diagrams (P&IDs)
o Plant and equipment arrangements drawings
o Detailed design and engineering of custom fabricated components
o Piping and equipment installation specifications
o Piping layout drawings, as necessary, to facilitate piping
installation
o Equipment and component procurement specifications
o Architectural drawings and specifications for:
o Main Process Building control room, break room, laboratory,
bathrooms,
and MCC room
o Plumbing and HVAC design drawings and specifications
o Electrical design to include:
o Power distribution diagrams
o MCC room equipment location plans
o Lighting plans
o Power and lighting plans for office, lab, and control
room areas
o Grounding and lightning protection plans
o Electrical equipment procurement specifications
o Instrumentation and controls design, to include:
o Instrumentation procurement specifications
o Instrumentation wiring diagrams
o Control system hardware and software configuration
and programming
with control narrative
o Control, shutdown and interlock system philosophy
and logic with description of the functioning systems
for normal and emergency
shutdowns, for normal control, for startup, etc.
o Delta-T will review construction and shop drawings submitted
by Owner's other engineers, contractors or vendors, if any.
o One HAZOP Review, and one Owner required review for insurance
or safety issues. Section 6 of the General Conditions will
establish if a change order is required.
o Licensed design professionals will provide stamped drawings
for the Work where designated by government codes.
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Page 38
o Convert engineering into specifications for all equipment,
materials and services provided per this scope.
o Procurement, delivery, unloading, and storage of all equipment
and materials that are within Delta-T's scope.
o Preparation of initial equipment records including drawings,
installation manuals and recommended spare parts lists for all
major equipment. Delta-T will assemble Maintenance Manuals for
all Equipment it procures under this Agreement. These Manuals
will normally consist of vendor information and drawings, but
special instructions may be included where the vendor
information is insufficient.
o Preparation of an Operations Manual for all process areas. Six
(6) sets of Operations Manuals (2 Manuals during construction,
3 Manuals after Startup and 1 Manual for Delta-T) will be
provided which will include:
o Description of the entire PLANT PROCESS and each system
operation
o Detailed operating description of each process unit
o Initial start-up procedures
o Normal operation
o Startup & shutdown under normal operating conditions
o Startup & shutdown under emergency conditions
o Cleaning & preventive maintenance guidelines
o Safety & Health guidelines
o Basic troubleshooting guides
o Delta-T will prepare an electronic model of the Plant, for
which it has design responsibility, including equipment
arrangements and piping design, if provided to Delta-T, and
check for interference. Drawings from the model will be
provided in both an electronic format and hard copy (4
prints).
o Record drawings to include the following:
o P&IDs
o Equipment General Arrangement Drawings
o Foundation and Building Drawings
o Site Arrangement Drawings
o Utilities, plumbing, and HVAC drawings
o Final Property Survey
o Electrical One Lines
o Cable Schedule
o Lighting Layout & Schedule
o Electrical Panel Drawings
o Manufacturers' Shop Drawings
o Software Configurations
o Delta-T will provide all drawings and documentation to
OWNER in electronic format. In addition, Delta-T will work
with OWNER to establish electronic communication
practices, including FTP site on Delta-T's website and
videoconferencing.
--------------------------------------------------------------------------------
Page 39
o Delta-T will provide telephone consultation at no charge to
OWNER's questions, concerns or problems with regard to the
operation and maintenance of the plant for a period of one (1)
year following Startup. In the event that OWNER requests Delta-T
personnel to travel to the Plant, OWNER agrees to pay a
consulting fee at mutually agreeable rates and to reimburse
Delta-T for its reasonable travel expenses.
GENERAL CONDITIONS
Delta-T to be responsible for the general conditions activities, pertaining
to the Plant, consisting of:
o All necessary construction permits, licenses and certifications for
work within Delta-T's scope.
o Coordination of inspections with local authorities for work within
Delta-T's scope.
o Insurance as defined in the General Conditions.
o All tools, equipment rental, freight, and temporary utilities
(including water and power) to support the construction activities.
o Toilet facilities, trash disposal and clean up, etc. required to
complete work in Delta-T's scope.
o Temporary lighting for interior and exterior of buildings, site, and
temporary parking lots and driveways during the construction period.
o Delta-T's office trailer with phone/fax.
o Site safety materials and procedures.
o Security as required for Delta-T's material and equipment. Delta-T
will be permitted to use, without restriction, any available storage
space in buildings during the construction period.
o Operator training during commissioning and startup period for up to
fourteen (14) calendar days by two (2) Delta-T people The exact
schedule for such training will be coordinated with the Owner, but
typically this would include a "classroom" oriented approach for a
week during the later stages of construction and "hands-on" training
during start-up activities. If additional training support is
required, the per diem rates in Exhibit B will apply.
o Commissioning and start-up support for up to * calendar days by up to
four (4) Delta-T people. If additional support is required, the per
diem rates in Exhibit B will apply. * OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
o Weather protection (temporary tents, early construction of portions of
the building, etc.) so that work can continue to the best degree
feasible (fabricating spool pieces, cutting metal or pipe, etc.)
during bad weather. o Warranty for equipment within Delta-T's scope of
work in accordance with the General Conditions.
o Sales tax is excluded from Delta-T's Scope. Most projects are exempt
from sales tax. Owner will provide Delta-T the information and
paperwork necessary
--------------------------------------------------------------------------------
Page 40
to utilize the tax-exempt purchasing status. If for any reason sales
tax or other taxes are required, the resultant additional cost will be
paid by the Owner.
o All freight charges, insurance and other fees required to deliver and
unload all components in Delta-T's scope to the site.
o Unloading and storing of all project components or materials within
Delta-T's scope, including all necessary labor and equipment to
receive, off load and store the items.
o Project and administrative staff supporting the Work of the project.
o All onsite as well as home office project management including the
clerical staff on site and scheduling/ project controls personnel.
Includes Delta-T participation in Owner requested Progress Reviews in
accordance with General Conditions Section 11.3.
o Includes all cost associated with travel to the project or Owner's
office during the entire duration of the project. (Estimated at 25
trips for one person.)
o This includes all general liability and other insurance that may be
required for the project in accordance with Exhibit G. Builders risk
insurance to be provided by the Owner.
o License to Owner to use Delta-T's process design for the production of
ethanol for this project.
SITE WORK
Delta-T's Plant site work consisting of the following:
o Site roads and parking area. Roads will be gravel construction with
asphalt provided at plant entrance points and parking areas only.
o All storm drainage ditches, culverts, piping and structures for
adequate site drainage and run-off control in compliance with
applicable codes.
o All temporary roads needed to provide adequate access to the buildings
and equipment area, and maintenance of such roads during the
construction period.
o Provide and install sump pits and sump pumps as required to meet
contract design.
o Any site work required to install utilities or equipment packages
which Delta-T is responsible for.
UTILITIES
Delta-T is responsible for the following Plant Utilities:
o Provide and install a natural gas fired boiler of a * type, minimum
85% thermal efficiency, with rated capacity in accordance with *,
constructed in accordance with *. Package will include *.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
--------------------------------------------------------------------------------
Page 41
o Provide and install a cooling tower package with rated capacity in
accordance with * for local environmental conditions.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
o *
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
o Provide and install a compressed air system that will consist of *.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
o A fire protection system will be provided to bring the Work in
compliance with the Contract specifications and applicable codes. The
system may include a fire water storage lagoon (first used as a storm
water runoff containment pond) with firewater pumping system and
piping to critical areas. Hydrants will be installed for protection of
the buildings and the ethanol storage and loadout area. Buildings will
be equipped with sprinkler systems where required by applicable codes.
o Except as specifically noted herein, Delta-T will provide all
electrical equipment, switchgear, distribution panels, motor starters,
wiring and connections, trays, conduit, fittings, local panels,
fixtures, supplies and labor to implement the final electrical design
generated by Delta-T for both the process equipment and buildings.
Delta-T will also provide external site lighting for the access road,
parking area, and any external work areas.
BUILDINGS, STRUCTURES AND RELATED WORK
Delta-T will provide the buildings listed below for the Plant. They will be
conventional, pre-engineered metal buildings and will comply with the
Contract specifications and governing building code requirements. Exact
configurations will depend upon final engineering and plant layout.
Main Process Building - A metal building to house process equipment
with a general purpose electrical classification, sized to adequately
accommodate the final layout design for the equipment. It will come
complete with all partitions, walls, MCC room, control room, lab,
restrooms, employee breakroom, and other interior buildout items and
features required to implement the final design. Insulation will be
provided in the roof and walls. Building services to include:
o Male and female employee bathroom fixtures and plumbing including
showers o Fixtures and plumbing for laboratory
o HVAC in offices, control room, lab, bathrooms, and break room
areas
o Ventilation in accordance with design codes for process areas
o Climate controlled MCC room
--------------------------------------------------------------------------------
Page 42
o Electrical receptacles per NEC requirements
DD&E Equipment Enclosure - A metal building sized to adequately
accommodate the final layout design for selected DD&2E process
equipment. Insulation will be provided in the roof and walls. Building
services to include:
* Ventilation in accordance with design codes for process area
* Electrical receptacles per NEC requirements DDGS Storage &
Loadout Building - A metal building to house the DDGS storage and
handling system, sized to adequately accommodate the final layout
design for this equipment. This building will provide flat
storage of DDGS, complete with all handling pits, conveyors, load
out hoppers, and other structures and components required to
implement the final design. Insulation will be provided in the
roof and walls.
Utility Building - A metal building to house the boiler, chiller, air
compressor and support equipment, sized to adequately accommodate the
final layout design for this equipment. Insulation will be provided in
the roof only. Building services to include:
o Building ventilation only (no heating or air conditioning)
o Adequate convenience receptacles
General - Delta-T will provide all building related concrete including
footings, foundations, walls, and floor slabs as required to complete
the Work. Delta-T will also provide all interior and exterior equipment
foundations, pads and support structures. Where appropriate, building
sumps and trench drains will be provided to conveniently drain process
areas during wash downs or process spills. Delta-T will provide access
to equipment in accordance with sound engineering and safety practices,
including catwalks, platforms and stairs in the Main Process Building
for access to the major tanks and equipment.
A complete HVAC system is provided for the Administration building.
Building ventilation only is provided in the Main Process, DD&E, DDGS
storage, Dryer, Maintenance and Utility Buildings. Unit heaters are
provided for the DD&2E, Main Process, Utility and Maintenance buildings.
Unit heaters in the process areas are designed to maintain temperatures
above 40(0)F in the event of a winter shutdown.
The DDGS Building, or an adjacent area, will include a three-walled,
concrete enclosure for bypass storage of wet, spent grain with
dimensions and location to be determined in the final process design
phase of the project.
Delta-T will provide the initial stocking of permanent safety equipment
for the plant including fire extinguisher stations, safety showers, and
eyewash stations so the plant is in compliance with the Uniform Fire
Code and governing building codes.
Delta-T will furnish and install its standard lab equipment package to
provide the Owner with the proper tools to continually monitor process
performance and help diagnose any process problems that occur. This lab
package provided by Delta-T will contain, as a minimum, one each of the
following items:
o *
o *
o *
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Page 43
o *
o *
o *
o *
o *
o *
o *
o *
o *
* * OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
GENERAL EQUIPMENT AND PIPING SYSTEMS
Delta-T will provide all equipment, components and piping as required for the
Work for the Plant to meet the Contract specifications excluding any items
specifically defined herein as being the Owner's responsibility. Delta-T's
responsibilities include, but are not limited to, the following:
o Installation of all equipment in final position, complete,
anchored, connected and in operable condition, except items
specifically defined herein as the Owner's responsibility.
o Erect large field-fabricated tanks on-site.
o Provide all piping systems in accordance with the final design
and Contract specifications. o Provide piping system
identification in accordance with Contract specifications. o
Prime and paint or insulate all carbon steel materials.
o Provide supplementary steel supports and brackets for equipment.
o Commission and test all tanks and mechanical systems and
connections in accordance with the Contract specifications.
o Provide all manual and automated valves.
o Provide all pipe racks, pipe supports, hangers, anchors, and
fasteners.
o Provide all Plant process piping including buried piping.
o Provide required piping insulation and heat tracing. o Provide
adequate freeze protection for exposed lines. o Provide bulk
tanks for chemicals storage.
INSTRUMENTS AND CONTROLS
Delta-T will provide the following for the Plant:
o All instruments and controls to adequately monitor, measure and
control the process per the final design and Contract
specifications, except for items
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specifically defined herein as the Owner's responsibility.
Delta-T's scope includes, but is not limited to, the following:
o All instrument wiring as required to provide a complete and
functioning system.
o A complete Process Control System with hardware and software to
handle all regulatory, discrete and sequential control
applications. The control system modules and hardware will be
suitably packaged for an industrial environment.
o * operator interface units located *, with which plant operations
can be monitored and controlled.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH
HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
o *
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH
HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
3. BASIS OF DESIGN
The following establishes the design basis for a dry-mill ethanol plant capable
of producing fuel-grade ethanol using corn as the feedstock. The rates and other
data provided in this section represent a range of expected performance values
not guarantees. The only guarantees are provided in Exhibit D.
The plant will operate 350 days per year with corn feedstock. The design
capacity of the plant will be 44 MGPY of undenatured alcohol.. The by-product,
Distillers Dried Grain with Solubles (DDGS), will be produced to meet US Feed
Grade requirements.
The following utilities are required to support plant operation. The figures are
based on anticipated normal production for the first year of operation. Electric
power includes loads for process motors including drying, milling and utility
motors such as cooling tower fans and pumps and air compressors. Natural gas and
electricity shall be supplied by the Owner, as follows:
UTILITY CONDITION NORMAL CONSUMPTION
Natural gas (MMBTU/hr) 60 psig To be determined
Electrical Power (KW) 4160 V, 3 phase, 60 HZ To be determined
The following site conditions are part of the Basis of Design: (Data to be
supplied later.)
Plant Location
Minimum temperature for mechanical (MDMT) design
Maximum temperature for mechanical, civil & structural design
Design dry bulb temperature
Design wet bulb
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Site elevation
Snow load (If appropriate)
Frost line below grade (If appropriate)
Prevailing wind direction
Design wind pressure
Seismic data (If appropriate)
Unless specifically noted to the contrary, Delta-T's Basis of Design will
conform with, and test in accordance with, the applicable sections and parts of
the codes and standards set forth below, including the most recent revisions and
supplements at the time of the execution of the Contract.
Applicable Standards Federal, State, Local, OSHA, Air quality (or
appropriate government codes)
Building Codes UBC
Cable Marking ICEA (Insulated Cable Engineers Association)
Concrete ACI (American Concrete Institute)
Corrosion XXXX (National Association of Corrosion Engineers)
Electrical/Instrumentation NEMA (National Electrical Manufacturers Association)
NEC (National Electrical Code)
ISA (Instrument Society of America)
Electrical Components UL (Underwriters Laboratories)
Flanges ANSI standard
Fire Protection NFPA
Heat Exchanger TEMA (Tubular Exchanger Manufacturers Association)
Nuts, Bolts, Fittings & Line Components ASTM (American Society of Testing Materials)
SAE (Society of Automotive Engineers)
Painting SSPC (Steel Structure Painting Council)
Personnel Safety OSHA (Occupational Safety and Health Association)
Piping, pumps ANSI (American National Standards Institute)
Structural Steel AISC (American Institute of Steel Construction)
Tanks API (American Petroleum Institute)
Valves and Fittings MSS (Manufacturers Standardization Society)
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Vessels (Where required) ASME (American Society of Mechanical Engineers)
Welding AWS (American Welding Society)
A.2 DELTA-T'S TECHNICAL SPECIFICATIONS
*THE PORTIONS OF THIS EXHIBIT A.2 MARKED WITH AN ASTERISK HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION.
The Plant will be constructed in accordance with the following specifications.
--------------------------------------------------- ------------------------------------------------
Technical Specifications Specification Number
--------------------------------------------------- ------------------------------------------------
Piping *
--------------------------------------------------- ------------------------------------------------
DDGS Handling, Storage & Loadout *
--------------------------------------------------- ------------------------------------------------
DDGS Dryer *
--------------------------------------------------- ------------------------------------------------
Grain Handling and Milling System *
--------------------------------------------------- ------------------------------------------------
Shell and Tube Heat Exchangers *
--------------------------------------------------- ------------------------------------------------
Plate and Frame Heat Exchanger *
--------------------------------------------------- ------------------------------------------------
Centrifugal Chillers *
--------------------------------------------------- ------------------------------------------------
Package Boiler *
--------------------------------------------------- ------------------------------------------------
Regenerative Thermal Oxidizer *
--------------------------------------------------- ------------------------------------------------
Induced Draft Cooling Tower *
--------------------------------------------------- ------------------------------------------------
Centrifugal Pumps *
--------------------------------------------------- ------------------------------------------------
Metering Pumps *
--------------------------------------------------- ------------------------------------------------
Air Compressor *
--------------------------------------------------- ------------------------------------------------
Air Compressor Package *
--------------------------------------------------- ------------------------------------------------
Agitators *
--------------------------------------------------- ------------------------------------------------
Low Voltage Electric Motors *
--------------------------------------------------- ------------------------------------------------
Medium Voltage Electric Motors *
--------------------------------------------------- ------------------------------------------------
Decanter Centrifuges *
--------------------------------------------------- ------------------------------------------------
Field Fabricated Tanks *
--------------------------------------------------- ------------------------------------------------
Shop Fabricated Tanks *
--------------------------------------------------- ------------------------------------------------
HDPE Shop Fabricated Tanks *
--------------------------------------------------- ------------------------------------------------
Columns & Pressure Vessels *
--------------------------------------------------- ------------------------------------------------
Column Internals *
--------------------------------------------------- ------------------------------------------------
Column Internals Installation *
--------------------------------------------------- ------------------------------------------------
Instrumentation *
--------------------------------------------------- ------------------------------------------------
Control Valves *
--------------------------------------------------- ------------------------------------------------
Manual Valves *
--------------------------------------------------- ------------------------------------------------
Equipment Installation *
--------------------------------------------------- ------------------------------------------------
Electrical / Instrument Installation *
--------------------------------------------------- ------------------------------------------------
Fire Protection *
--------------------------------------------------- ------------------------------------------------
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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A.3 Owner's Scope of Services
Owner must provide the following:
1) Preparation and filing of all environmental permits.
2) Preparation of, filing for, and cost for obtaining all required national,
state and local permits including plant operation requirements and
construction permits for Owners scope.
3) Soils testing, geotechnical evaluation, topographic and legal surveys.
4) Cleared flat site within 0.5 ft of final grade suitable for Delta-T
construction w/o hidden conditions or unusual expense required to make site
buildable. Any sub-surface drainage and tiling, if required, will be
provided by the Owner as part of the site preparation responsibilities.
5) Plant operation and maintenance personnel and equipment from date of
mechanical completion.
6) Supply of all utility services and streams to the ethanol plant including
power, water, steam, condensate return, and other necessary services and
costs for plant startup, commissioning, operation, and performance tests.
7) Copies of all permit applications and approvals that provide technical or
commercial requirements to be considered in the design or construction of
the Plant.
8) Appropriate space and equipment to conduct training.
9) Plant site work consisting of the following: all general site work
including grading, excavation, retention ponds, fill dirt, fill gravel,
compacting, trenching, landscaping and erosion control.
10) .
11) Approval of the following documents:
o Plant layout
o Process Flow Diagram
12) Response to Requests for Approval of documents or vendors/subcontractors
within ten (10) business days of date request is received.
13) Permanent Plant security systems including fences and access control.
14) Office furniture and office equipment for Administration Building, Control
Room and Maintenance Building.
15) Plant operating equipment including, but not limited to, front-end loaders,
rail cars, forklifts, trucks, and shop equipment (welders, power tools,
etc).
16) All operational requirements, such as feedstock, chemicals, spare parts,
power, gas, needed to produce ethanol.
17) Plant utilities, such as water, sewer, gas, electricity, at one location on
the Plant boundary.
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18) Rail spur including track and switches.
19) Sales taxes.
20) Owner is responsible for any other site work outside the scope or
responsibility of the Delta-T, and for hidden or unforeseen site
conditions, that are required to complete the obligations of the Contract.
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EXHIBIT B
COMMERCIAL TERMS
B.1 PRICE
B.2 PAYMENT TERMS
B.3 SCHEDULE OF PAYMENTS
B.4 FORM OF INVOICE
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B.1 PRICE
*THE PORTIONS OF THIS EXHIBIT B.1 MARKED WITH AN ASTERISK HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION.
The Contract Price is set forth in Section 8 of the Contract above.
Per Diem Rates:
If on-site services, beyond those described in Exhibit A, are required
from DELTA-T, the following per diem rates will apply:
Services of one (1) person$ */day
Meals and Miscellaneous $ */day
Travel Expenses at cost
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Contractor shall perform the work for the Contract Price in accordance with the
terms of this Agreement. The Contract Price is not subject to Change except as
specifically provided in Section 6 or this Section B.1. The Contract Price shall
be fixed provided that the Contact is executed and Owner makes the first payment
to Delta-T on or before August 7, 2006. If the Contract is not executed or if
the first payment is made after August 7, 2006, the Contract Price shall be
subject to an adjustment as a Change Order as set forth in Section 6.3.
B.2. PAYMENT TERMS
The Contract Sum shall be paid as follows:
(a) Payment Schedule. The Contract Price shall be paid to Contractor in
accordance with progress, as described in clause (b) below.
(b) Monthly Invoices. On or before the Notice to Proceed Effective Date,
and thereafter on or before the tenth (10th) of each month during the
performance of the Work, Contractor shall furnish to Owner a detailed invoice in
the form of Exhibit B.4 ("Invoice") for the period ending on the last day of the
month preceding such month, setting forth the portion of the Contract Price
allocable to earned progress against activities actually completed by Contractor
during such period or month, as the case may be, and such supporting
documentation and additional data as Owner or Owner's construction lender may
reasonably require to substantiate Contractor's right to payment under this
Section B.2 and Section 8 of the Contract. Before submitting its first monthly
progress invoice, Contractor shall submit a detailed Schedule of Values to Owner
and Owner's construction lender, for their review and approval.
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Each monthly invoice shall be accompanied by partial releases from the
Contractor, its major subcontractors, and material and equipment suppliers, in a
form acceptable to the Owner and Owner's construction lender.
In connection with each Invoice, Contractor shall provide to Owner, Lender's
independent engineer and such other persons as Owner may designate a certificate
to the effect that:
(i) The quality of all Work described in the Invoice is in accordance
with the terms of this Agreement;
(ii) Contractor is entitled to payment of the amount invoiced;
(iii) Contractor has paid all Subcontractors for work previously and
properly Invoiced and paid by Owner in accordance with Law, the
applicable Subcontract, and this Agreement, and the Work,
materials and Equipment (or any portion thereof) described in the
Invoice and all previous Invoices are free and clear of all
Contractor Liens (other than any Contractor Liens for work not
previously invoiced that will be extinguished upon receipt of
payment by Contractor in respect of such Invoice); and
(iv) Each of the representations and warranties made by Contractor in
this Agreement was true and correct when made and remains true
and correct on the date of such Invoice.
A condition to payment shall be the countersignature of the Lender's independent
engineer on such certificate, provided, that the certificate shall be deemed
countersigned by the Lender's independent engineer if the Lender's independent
engineer has (i) had fifteen days to review the certificate and the progress of
the Work and (ii) not raised objections to the information contained in such
certificate. Contractor shall also supply such other information as reasonably
required by Owner.
(c) Monthly Payments. Within fifteen (15) Calendar Days following the date
Owner receives each Invoice under Section B.2 (b), subject to Section B.2 (d);
Owner shall pay to Contractor an amount equal to the undisputed amount specified
in such Invoice, less Retainage pursuant to Section B.2(d); provided, that the
sum total of all amounts payable by Owner under
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each such Invoice, together withal prior and concurrent payments to Contractor
made hereunder shall not exceed, as of any given payment date, the applicable
cumulative monthly payment limitation set forth in the Maximum Drawdown Schedule
Exhibit B.3.
(d) Retainage. A *% retainage will be held on all payments made by the
Owner to Delta-T until such time as Owner has paid Delta-T *% of the Contract
Sum. Once the Owner has paid Delta-T *% of the Contract Sum, a *% retainage will
be held on all payments until successful completion of the Performance Test or
until payment of liquidated damages set forth under Exhibit D. This Contract Sum
Retainage (as distinguished from the Final Payment) is held in part by Owner as
security for Delta-T's process guarantees. The entire Retainage, less an amount
reasonably estimated to be *% of the cost of completing any remaining work plus
any other withholdings allowed by this Agreement, shall be paid to Delta-T
within fifteen (15) calendar days of successful completion of the Performance
test or within fifteen (15) calendar days of Delta-T's payment of liquidated
damages set forth under Exhibit D, whichever occurs first. * OMITTED PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
(e) Final Payment. Final payment shall not become due until Contractor has
submitted to Owner the following: (1) final application for payment, (2)
releases of liens and claims in a form acceptable to Owner from Contractor and
its major subcontractors, (3) all guarantees and warranties applicable to
Contractor's Work, (4) all applicable maintenance and operating manuals, (5)
"as-built" or "as-constructed" drawings, (6) final Payment Affidavit, (7)
verification of completion of all punch list items, and (8) a listing of all
unsettled claims. Final payment shall be paid to Delta-T within thirty (30) days
from the date of Final Completion. In the event that Delta-T has completed the
Performance Test and is prevented, through no fault of its own, from completing
the Punch List, Owner will pay Delta-T the Final Payment less an amount
reasonably estimated to be *% of the cost of completing any remaining items on
the Punch List plus other withholdings allowed by this Agreement.
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
B.2.1 Payments Not Waiver or Acceptance of Work. No payment made by Owner
under this Agreement shall constitute a waiver of any claim or right Owner may
have at that time or thereafter, including claims regarding unsettled Liens,
warranty rights and indemnification
--------------------------------------------------------------------------------
Page 54
obligations of Contractor. Nor payment made by Owner under this Agreement shall
be considered or deemed to represent that Owner has inspected the Work or
checked the quality or quantity of the Work or that Owner knows or has
ascertained how or for what purpose Contractor has used sums previously paid,
and shall not be deemed or construed as an approval or acceptance of any Work or
as a waiver of any claim or right Owner may have hereunder. All payments shall
be subject to correction or adjustment in subsequent progress reviews and
payments.
B.2.2 Payments withheld/Offset Rights. Owner, without waiver or limitation
of any rights or remedies of Owner, shall be entitled from time to time to
deduct from any amounts due or owing by Owner to Contractor any and all amounts
owed by Contractor to Owner as may be reasonably necessary, to protect Owner
from losses, including, but not limited to, losses due to:
(i) Work that is damaged, defective or not in conformance with this
Agreement and has not been remedied pursuant to Section 8 the
warranty provisions of Section 12 or the failure of Contractor to
perform Work in accordance with the provisions of this Agreement;
(ii) Third party suits, stop notices or Liens for which contractor is
responsible under this Agreement, whether directly or pursuant to
any indemnification obligation hereunder, made on or filed
against any Owner Indemnities or with respect to the Work, the
Site or the Facility, or any portion thereof, and not cleared by
Contractor by payment, letter of credit, deposit or otherwise to
the reasonable satisfaction of Owner within ten (10) days after
filing or receipt by Owner, whichever is earlier;
(iii) loss or damage to Owner, any Subcontractor or Owner Indemnities
to the extent such loss or damage results from Contractor's
failure to obtain or maintain the insurance required by the
provisions of Section 14 or from any action or inaction by
Contractor or any Subcontractor which excuses any insurer from
liability for any loss or claim otherwise covered by insurance;
or
(iv) failure of contractor to pay Subcontractors, or for labor,
materials or Equipment unless a Payment Default has occurred and
is continuing and then only to the
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Page 55
extent such Work was part of the Invoice which forms the basis of
the Payment Default.
B.2.3 Payment of Subcontractors. Contractor shall promptly pay, in
accordance with Law and the terms and conditions set forth in the respective
Subcontract, each Subcontractor the amount to which said Subcontractor is
entitled unless a Payment Default has occurred and is continuing and then only
to the extent such Work was part of the Invoice which forms the basis of the
Payment Default. Contractor shall, by an appropriate agreement with each
Subcontractor, require each Subcontractor to make timely payments to its
laborers, suppliers and subcontractors in a similar manner.
B.2.4 Payment Assurance. As payment assurance to Contractor of its
monthly Invoices, on or prior to the Notice to Proceed Effective Date, the Owner
shall provide Contractor with reasonable assurance of Owner's ability to pay the
Contract Price in accordance with the terms of this Agreement. Such reasonable
assurance shall be in the form of a standby letter of credit issued by an
Approved Bank in a form acceptable to Contractor but in an amount no more than
eighteen million Dollars.
In the event that Delta-T exercises a right to terminate under Section 9.3 of
the General Conditions, the Owner shall pay in addition to sums due under
Section 9.3 of the General Conditions, a fee determined as follows:
Termination On or Before: Termination Fee as
a Percentage of the
Total Contract Sum
The end of the 90 days after
the Date of Commencement: *%
The end of the 150 days after
the Date of Commencement: *%
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The end of the 210 days after
the Date of Commencement: *%
* OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
In the event that there is a delay in the schedule for performance of the Work
caused by Owner or any of its contractors, subcontractors at any tier or
vendors, then the number of days from the Date of Commencement shall be
determined by deducting from the actual number of Days that passed from the Date
of Commencement the cumulative number of Days of each of such delay.
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B.3 Schedule of Payments; Maximum Draw Down Schedule
Preliminary
Cash Flow Schedule
Month # Payments Cumulative
1 $ 8,000,000 $ 8,000,000
2 $ 6,165,068 $ 14,165,068
3 $ 6,609,903 $ 20,774,971
4 $ 10,105,298 $ 30,880,269
5 $ 6,223,552 $ 37,103,821
6 $ 6,445,043 $ 43,548,864
7 $ 6,461,536 $ 50,010,400
8 $ 5,228,368 $ 55,238,768
9 $ 3,490,394 $ 58,729,162
10 $ 2,557,090 $ 61,286,252
11 $ 2,854,174 $ 64,140,426
12 $ 2,759,250 $ 66,899,677
13 $ 2,270,323 $ 69,170,000
14 $ 1,000,000 $ 70,170,000
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EXHIBIT C
PERFORMANCE TEST PROTOCOLS
*THIS ENTIRE EXHIBIT C, CONSISTING OF 6 PAGES, HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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EXHIBIT D
PERFORMANCE GUARANTEES
*THIS ENTIRE EXHIBIT D, CONSISTING OF 5 PAGES, HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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EXHIBIT E
MECHANICAL COMPLETION, COMMISSIONING, STARTUP
*THIS ENTIRE EXHIBIT E, CONSISTING OF 3 PAGES, HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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EXHIBIT F
PROJECT SCHEDULE
1. PROJECT SCHEDULE
The Project Schedule is based on a August 7, 2006 Full Notice To Proceed. The
overall project duration is 17 months from the Date of Commencement. Mechanical
Completion for the Ethanol process is scheduled for thirteen (13) months from
the Date of Commencement with the Acceptance Test and project completion
scheduled for fifteen (15) months from the Date of Commencement. Ring dryer
mechanical completion is scheduled for fifteen (15) months with the acceptance
test scheduled for seventeen (17) months from the Date of Commencement.
Delta-T shall use its best reasonable efforts to perform the Work on the Project
in accordance with the Project Schedule.
The attached bar chart provides a Summary Project Schedule. A fully detailed
Project Schedule will be delivered to the Client for review within 2 weeks of
the Full Notice to Proceed.
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EXHIBIT G
INSURANCE
Delta-T and Subcontractors' Insurance. Delta-T shall at all times during the
period in which this Agreement is in force and effect provide and maintain
insurance and shall require all its subcontractors to provide and maintain
insurance of the type and in limits as set forth below, within the exception of
the excess liability insurance, which shall be maintained by Delta-T. Such
insurance shall be in form and issuing companies acceptable to Owner. All
insurance policies must be written by insurance carriers authorized to do
business in Nebraska. The insurance carriers must maintain an AM Best rating of
"A-" and "VIII" or better.
The insurance may be provided in policy or policies, primary and excess,
including the so-called umbrella or catastrophe form which may include the
coverage, or layer thereof, of the insurance required by Owner. The limits of
liability shall be as stated below, unless, prior to commencement of any Work or
Services, written approval is granted by Owner for variance from those limits.
1. Automobile Liability. Automobile Liability Insurance covering all
owned, non-owned and hired automobiles. Such insurance shall
provide coverage not less than that of the Comprehensive
Automobile Liability policy in limits not less than the amount
listed below. Contractual Liability, if not provided in the
policy form, is to be provided by endorsement.
$1,000,000 Combined Single Limit each occurrence for Bodily
Injury and Property Damage.
2. Workers Compensation. Workers Compensation for all operations
with statutory limits of the Workers Compensation Laws of the
State of Nebraska with Coverage B - Employers Liability Limits of
not less than: $1,000,000 each accident for Bodily Injury;
$1,000,000 Policy Limit for Bodily Injury by disease; and
$1,000,000 each employee for Bodily Injury by disease.
3. Commercial General Liability Insurance. Commercial General
Liability insurance for premises and operations of Delta-T and
its subcontractors (including products liability for any product
manufactured, assembled or otherwise worked upon away from the
Project site) in a form providing coverage not less than that of
the Standard 1993 Insurance Service Office Commercial General
Liability insurance policy (Occurrence Form) or equivalent for
operations of the party required to furnish same, including
hazards of independent contractors, products and completed
operations for claims arising out of the Work or Services in
policy or policies of insurance such that the total available
limits combined shall not be less than:
$2,000,000 per occurrence, $2,000,000 annual general aggregate
limit and $2,000,000 annual products and completed operations
aggregate. General aggregate shall be on a per project basis.
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Product and completed operations coverage shall be for a period
of three years after completion of the work.
4. Excess Liability. Excess Liability (Umbrella) insurance will be
provided with limits of $3,000,000.
5. Professional Liability Insurance. Professional Liability (Errors
and Omission Insurance) covering liability arising out of
Delta-T's performance of design services with limits of
$5,000,000 per occurrence and aggregate.
Delta-T and Subcontractors Obligations. All requirements imposed in
this Exhibit, with the exception of any allowable differences in policy
limits, and required of the Delta-T shall likewise be imposed upon,
assumed and performed by each of Delta-T's subcontractors.
Endorsements. Each insurance policy required of Delta-T and its
subcontractors in this shall be endorsed:
1. To name as Additional Insureds the following: the Owner and their
officers, owners, and employees, and all other interests as may
be reasonably required by Owner as Additional Insureds. The
coverage afforded the Additional Insureds under these policies
shall be primary insurance to the extent the claim arises from
the actions or negligence of Delta-T or its subcontractors. In
such cases, if the Additional Insured has other insurance, which
is applicable to the loss, such other insurance shall be on an
excess and non-contributory basis.
2. That in the event of any claims being made by reason of bodily
injury, personal injury, or property damage sustained by any
agent, servant or employee of one insured for which another
insured is or may be liable, then the policy shall cover such
insured against whom a claim is made in the same manner as if a
separate policy had been issued to each insured. (Severability of
Interest/Cross Liability)
Notices, Costs, Losses. All policies of insurance that either Delta-T
or its subcontractors are required under the terms of this Agreement to
secure and maintain shall be endorsed to provide that the insurance
company shall provide written notice to Owner at least thirty (30) days
prior to the effective date of any cancellation of such policies or
material reduction in the coverage afforded by such policies.
Prior to the date on which Delta-T or its subcontractors commence
performance or operation at the Project site, Delta-T shall cause to be
furnished to Owner certificates of insurance evidencing all insurance
as required by this Agreement. As and when Owner may direct, copies of
the actual insurance policies or renewals or replacements thereof shall
be submitted to Owner. All copies of policies, if any, and certificates
of insurance submitted to Owner shall be in form and content acceptable
to Owner
Subrogation and Waiver. Delta-T and its subcontractors shall require
that all policies of insurance that are in any way related to the Work
or Services or the Project, including those that are secured and
maintained by consultants and subcontractors to include clauses
providing that each underwriter shall waive all of its rights of
recovery under subrogation or otherwise, against Owner and Owners
Representative.
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Miscellaneous. Nothing contained herein shall relieve Delta-T or its
subcontractors of their respective obligations to exercise due care in
the performance of their duties in connection with the Work or
Services or to complete the Work or Services in strict compliance with
the Agreement.
Any type of insurance or increase of limits not described above which
Delta-T or its subcontractors requires for its own protection or on
account of statute shall be its own responsibility and at its own
expense.
Builder's Risk and Indemnity Builder's Risk and Boiler and Machinery Coverage:
Owner shall purchase and maintain property insurance (including boiler and
machinery coverage) and all risk builder's risk insurance upon the Work in an
amount not less than the value of the Work. The insurance shall include the
interests of Owner, the Delta-T, and all subcontractor's and sub-subcontractors
and shall include coverage for direct physical damage resulting from all perils,
including (without limitation) fire, flood, and earth quake coverage, to (a) the
installed work, (b) materials and equipment which are stored at the site but
have not yet been included in the Work, (c) all materials and equipment in
transit or stored off site for which payment has been made or is due from Owner,
and (d) soft costs equal to ten percent (10%) of the amount due under this
Agreement, (e) business interruptions expenses resulting from delayed opening
with a limit not to be less than one-hundred percent (100%) of the loss of
future profits and continuing expenses for twenty-four (24) months following a
covered loss. Owner's sole remedy in case of any loss or damage of the type
covered by the insurance required by this Section shall be recovery under that
policy.
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EXHIBIT H
NON-DISCLOSURE AGREEMENT
This Agreement is entered into this ___ day of _______, 200_ by and
between ___________________, a __________ organized under the laws of
_______________________ ("Owner"), and ___________________________________ a
corporation organized under the laws of _________________("Recipient"), each of
which may be referred to herein individually as a "Party" and collectively as
"Parties."
WHEREAS, Owner owns and operates an ethanol plant which is based on technology
that is confidential to Delta-T Corporation, a Virginia corporation ("Delta-T"),
or Owner is in the process of planning and building such an ethanol plant, and
Owner has, or plans to, enter into an agreement for license of such technology
from Delta-T and it has agreed not to disclose such technology to any third
party except under an agreement containing the terms set forth in this
Agreement, and
WHEREAS, Recipient is in the business of supplying goods and/or services useful
in the construction or maintenance of ethanol plants, and
WHEREAS, in order to supply, and/or bid on the supply of, goods or services
Recipient will need to receive confidential information of Delta-T,
IN CONSIDERATION of the mutual terms and conditions of this Agreement, and other
good and valuable consideration receipt of which is hereby acknowledged, Owner
and Recipient agree as follows:
1. Confidential Information:
1.1 Definition of Confidential Information: "Confidential Information"
shall mean (a) all information about the business of Delta-T, including
without limitation, plans, customers or customer lists, operating costs,
prices it has offered or obtained for its products or technology, and (b)
all forms and types of financial, business, scientific, technical,
economic, or engineering information, including patterns, plans,
compilations, program devices, formulas, designs, prototypes, methods,
techniques, processes, procedures, programs or codes, whether tangible or
intangible and whether or how stored, compiled or memorialized physically,
electronically, graphically, photographically, or in writing , which is
disclosed to Recipient by Owner or by Delta-T, whether disclosed orally,
visually or in written or other tangible form.
1.2 Exclusions: "Confidential Information" shall not, however, include
information, which Recipient can demonstrate by documentary evidence:
a. was in its possession prior to receipt by Recipient under this
Agreement;
b. appears in issued patents or printed publications in integrated
form or is in general use in the trade without violation by
Recipient of this Agreement, or violation by any other party of an
obligation not to disclose it; or
c. is disclosed to Recipient by someone by a party other than Delta-T
or Delta-T's Customer who is under no obligation not to disclose
it.
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2. No Use or Disclosure:
2.1 General Restrictions: Recipient shall not, without Delta-T's express
written permission (a) make copies of any Confidential Information or (b)
divulge, disclose or communicate any Confidential Information to anyone
other than its employees who need to have access to such information in
order to fulfill the purpose set forth above and who have been advised of
the terms of this Agreement and agreed to comply with it, or (c) use any
Confidential Information for any purpose other than the purposes set forth
above. Recipient shall take all reasonable steps to protect the
Confidential Information from improper use or disclosure, and shall in no
case use less care to protect Confidential Information than it uses to
protect its own proprietary or confidential information.
2.2 Disclosures Required by Court Order: If Recipient is required to
disclose any Confidential Information by applicable law, regulation or
legal process, Recipient shall provide Owner and Delta-T notice of such
request or requirement and copies of all documents relevant to the request
or requirement. Recipient shall give such notice promptly, and in
sufficient time to allow Delta-T to seek a protective order or other
remedy. Recipient shall not disclose any Confidential Information due to a
requirement of law, regulation or legal process unless: (a) it has first
given the notice required by this Section 2.2 and Delta-T has either given
Recipient written permission to disclose it, or Delta-T has failed to
respond to Recipient's notice at least 24 hours prior to the time that
Recipient is required to make such disclosure, (b) it is advised by written
opinion of its counsel that it is legally required to disclose such
information, and (c) it has used its best efforts to obtain all reasonable
assurances from the party or parties to whom the information is to be
disclosed that the information will not be used or disclosed for any
purpose other than the purpose for which the applicable law, regulation or
legal process requires its disclosure.
2.3 Delta-T Is Third Party Beneficiary: Recipient agrees that Delta-T is a
third party beneficiary of this Agreement and that Delta-T may enforce this
Agreement against Recipient in Delta-T's own name, with or without the
participation of Owner as a party.
3. Designation of Person with Administrative Responsibility: Recipient shall
designate one of its employees to be responsible for administration of
Recipient's compliance with its obligations under this Agreement and shall
advise Owner in writing of such employee's name, title and personal address
within four business days of any change of such designation. Until further
notice, the individual so designated is:
Name: _____________________________________________
Title: ____________________________________________
4. Term and Termination: The term of this Agreement shall commence on the date
first written above and shall continue until terminated by notice in writing by
either Party to the other, but Recipient's obligations under Section 2 of this
Agreement shall survive with respect to all Confidential Information disclosed
hereunder until such time, if ever, that such information falls into one or more
of the exclusions set forth at Section 1.2 above. Within thirty (30) days of
termination of this Agreement Recipient shall, without request by Owner, deliver
to Owner all of the Confidential Information that it received under this
Agreement in tangible form, and all copies thereof, shall destroy all documents,
whether in electronic or any other form, and other tangible items containing any
of such Confidential Information and shall, upon request, certify to Owner and
Delta-T in writing that it has done so.
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5. No License or Other Rights: Nothing in this Agreement shall constitute or
otherwise be construed as granting to Recipient any interest or license in any
Confidential Information, or creating any obligation on the part of any of the
parties hereto to enter into any further agreement or business arrangement.
6. Remedies for Breach: Recipient agrees that any breach by it of this Agreement
shall cause Delta-T irreparable harm. Accordingly, and in addition to any other
remedies that Delta-T may have at law or in equity, Delta-T shall be entitled to
obtain injunctive relief against Recipient to prevent any continuing breach, and
without posting or filing any bond or other security. All costs, expenses and
attorney's fees resulting from the litigation or arbitration of any claim under
this Agreement shall be paid by the losing party to the prevailing party.
Recipient further agrees that the rights of Owner and Delta-T under this
Agreement are in addition to any and all other rights that either of them may
have as a matter of law.
7. This Section intentionally left blank.
8. Export Control: Recipient hereby assures Delta-T that it does not intend to,
and that it will not, transmit, directly or indirectly, any Confidential
Information, any product produced directly by the use of such information, or
any product produced by a plant constructed using such information, to any
country other than the United States without Delta-T's prior written consent.
9. General Provisions:
9.1 Assignment: This Agreement may not be assigned by Recipient to any
other party.
9.2 Choice of Law: This Agreement shall be governed by and construed under
the laws of the Commonwealth of Virginia, United States of America.
9.3 Notices: Any notice required or permitted to be given under this
Agreement shall be given in writing and shall be addressed:
If to Delta-T, to: Delta-T Corporation
000 Xxxxxxxxx Xxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000 XXX
Attn: Vice President, Operations
If to Recipient, to: _____________________________
_____________________________
_____________________________
Attn:________________________
9.4 Survival of Terms: Recipient's obligations under Section 2 of this
Agreement shall survive as provided in Section 4, and the Parties
obligations under Section 6 and 7 of this Agreement shall survive
termination of this Agreement.
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9.5 Severability: If for any reason a court of competent jurisdiction or an
award in arbitration finds any provision of this Agreement to
unenforceable, the Parties agree that they shall amend this Agreement to
allow for enforcement to the maximum extent enforceable and the remainder
of this Agreement shall continue in full force and effect.
9.6 Language: The language of this Agreement shall be English, and all
communications and notices required to permitted to be made hereunder, and
any dispute resolution proceeding related to a dispute resolved under
Section 7 above, shall be conducted in English.
9.7 Headings and Captions: The headings and captions in this Agreement are
for convenience only and are not to be considered in construing this
Agreement. All references to any article, section or paragraph numbers
shall be deemed to be references to an article, section or paragraph of
this Agreement unless otherwise expressly stated.
9.8 Complete Agreement: This Agreement and sets forth the entire Agreement
between the Parties with respect to the subject matter hereof and
supersedes any prior Agreement related to thereto. No addition or amendment
may be made to this Agreement except by a writing signed by both Parties.
9.9 No Waiver: Failure by any Party to enforce any provision of this
Agreement with respect to any breach thereof, shall not be deemed a waiver
of any right to enforce any other breach of this Agreement.
In Witness Whereof, the Parties have executed this Agreement by their authorized
representatives.
Owner: _______________________________
By: ___________________________________
Title: ________________________________
Recipient: ____________________________
By: ___________________________________
Title: ________________________________
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EXHIBIT I
LIST OF COMPETITORS
The following list includes all parent, subsidiary and affiliated companies.
COMPETITORS
0X Xxxxxxxxxx Xxxxxx-Xxxxxxx
Xxxx Xxxxxx, Xxxxxxxx Charmes, France
Abengoa BioEnergy Xxxxxx International, Inc.
Sevilla, Spain Cincinnati, Ohio
Agrol Biotechnologies Ltd. Lurgi PSI Inc.
Guildford, Surrey Canada Memphis, TN
Ambitech Engineering Corporation Xxxxxxx & Company
Downers Grove, Illinois Aurora, Colorado
AMG Engineering Praj Industries
Cincinnati, Ohio Pune, India
Bio-Process Innovation Process Plus, LLC
West Lafayette, Indiana Cincinnati, Ohio
Bio-Renewable Group Xxxxxxx Xxxxxx Associates International
Omaha, Nebraska Cincinnati, Ohio
Broin & Associates, Inc. Ro-Tech Incorporated
Aberdeen, South Dakota Louisville, Kentucky
Xxxxx & XxXxxxxxx SNC-Lavalin Group
Kansas City, Missouri Toronto, Canada
Chematur Engineering & Xxxxxxxxx Engineering Southeastern Energy Development, Inc.
Atlanta, Georgia Brooklyn, NY
(Alliance with Pure Vision Technology)
Dick Engineering Inc. Technip
Xxxxxxx, Xxxxxxx, Xxxxxx Cedex, France
MECS, Inc. Vogelbusch USA, Inc.
St. Louis, Missouri Houston, TX
(and its parent Vogelbusch-Austria)
Xxxxx, Inc. Wave Zeal Ltd.
Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxxx XXXXXX
Xxxxxx Group Inc.
Seattle, WA
ICM, Inc. Washington Group International
Colwich, KS Boise, Idaho
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Any individual, group or
company that performs, on the
date of the License or during
its term engineering or
design services in the design
of alcohol process
technology.
5.22.06
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EXHIBIT J
PRE-FINANCING WORK
If the option of preceding with Section 21 of the General Conditions is selected
during the period before Financing is finalized, DELTA-T will prepare the
following documents:
o Process design based on proprietary DELTA-T Technology*
o Material and energy balances*
o Piping and Instrumentation Diagrams (P&IDs)*
o Plant and equipment of custom fabricated components
o Piping and equipment installation specifications
o Piping layout drawings, as necessary, to facilitate piping installation
o Equipment and component procurement specifications and requisitions
o Civil and structural design drawings and specifications for:
o Site grading, landscaping, erosion control, drainage and utilities*
o Roads and parking area*
o Buildings*
o Building footings and foundations
o Equipment foundations
o Site layout*
o Electrical design to include:
o Power distribution diagrams*
* Initial documents to be prepared.
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Exhibit J APPLICATION AND CERTIFICATE FOR PAYMENT
------------------------------------------------------------------------------------------------------------------------------------
To: APPLICATION NO:
--------------------------------------------------------- -----------------------
From: PERIOD TO:
--------------------------------------------------------- -----------------------
Project: CONTRACT DATE:
--------------------------------------------------------- -----------------------
------------------------------------------------------------------------------------------------------------------------------------
APPLICATION FOR PAYMENT Application is made for payment as shown below, per the contract Documents:
-----------------------------------------------------------------------------------
CHANGE ORDER SUMMARY Original Contract Sum
----------------------------------------------------------------------------------- Net Change by Change orders
------------------------------ Services Outside Base Scope
Change Orders totals approved ADDITIONS DEDUCTIONS Reimbursable Expenses
In previous months by owner Contract Sum to Date
----------------------------------------------------------------------------------- Total Completed to Date
------------------------------ Retainage
Approved This Month --------------
------------------------------ Total Earned Less Retainage
Number Date Less Previous Certificates for Payment
---
` CURRENT PAYMENT DUE
===
---------------------------------- -----------------------------
------------------------------ ---
TOTALS
-----------------------------------------------------------------------------------
-----------------------------------------------------
NET CHANGE BY CHANGE ORDERS Balance to Finish, Plus
-----------------------------------------------------------------------------------
The undersigned Contractor certifies that to the best of the Contractor's
knowledge ,information and belief, the work covered by this Application for
payment has been completed in accordance with the Contract Documents, that all
amounts have been paid by the Contractor for work for which previous
Certificates for Payment were issued and payments received from the Owner, that
Contractor has paid all wages for its employees in full and in a timely manner
and has reported and paid all applicable government taxes and fees thereon, and
that current payment shown herein is now due.
CONTRACTOR: SIGNATURE:
------------------------------------------------------ -----------------------
NAME & TITLE: DATE:
------------------------------------------------------ -----------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE OF PAYMENT AMOUNT
AMOUNT CERTIFIED:
-----------------------
In accordance with the Contract Documents, based on (Attach explanation if amount certified differs from
the amount applied for.)
on-site observations and other data comprising the above
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application, the Owner (or authorized Owner's Representative) OWNER:
-----------------------
certifies that to the best of his knowledge, information and belief
the Work has progressed as indicated, the quality of the Work is NAME & TITLE:
-----------------------
in accordance with the Contract Documents, and the Contractor
is entitled to payment of the AMOUNT CERTIFIED. SIGNATURE:
-----------------------
DATE:
-----------------------
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