EX-10.21 9 dex1021.htm MASTER SERVICES AGREEMENT Master Services Agreement

Exhibit 10.21

 

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* CERTAIN INFORMATION, MARKED BY BRACKETS AND AN ASTERISK, IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

 

 

MASTER SERVICE AGREEMENT

Between

BRIGHTSOURCE CONSTRUCTION MANAGEMENT, INC.

And

CHEVRON TECHNOLOGY VENTURES, A DIVISION of CHEVRON U.S.A. INC.

Dated as of December 17, 2008

CHEVRON SOLAR-TO-STEAM DEMONSTRATION PLANT

 

 

 


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MASTER SERVICES AGREEMENT

This Master Services Agreement (including all Exhibits and Schedules attached hereto, this “Agreement”) is entered into as of December 17, 2008 (the “Effective Date”) by and between Chevron Technology Ventures, a division of Chevron U.S.A. Inc., a Pennsylvania corporation, with an office address at 3901 Briarpark Drive, Houston, Texas 77042, (the “Company”) and BrightSource Construction Management, Inc. (“Provider”), a California corporation, with an office address at 1999 Harrison Street, Suite 2150, Oakland, California 94612, and for the limited purposes of agreeing to Sections 8, 11 and 36 hereof, BrightSource Industries (Israel) Ltd. (“BSII”), and for the limited purposes of agreeing to Sections 7(b), 11, 14, 17(b), 34 and 36 hereof and guaranteeing all of Provider’s and BSII’s obligations hereunder, BrightSource Energy, Inc., (“BSE,” together with its subsidiaries, including Provider and BSII, “BrightSource”). The Company and Provider are individually referred to herein as a “Party” and collectively or jointly as the “Parties”.

W I T N E S S E T H:

WHEREAS, the Company would like to have Provider provide to it certain technical, developmental, engineering, procurement, construction and consulting services for the design and construction of a Solar-to-Steam Demonstration Plant at the Company’s oil production facility in Coalinga, California (the “Demo Plant” or “Project”); and

WHEREAS, Provider is willing to provide such services to the Company as more fully set forth below.

NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the Parties hereto agree as follows.

 

1. Work.

 

  (a)

Scope of Work. Provider agrees to perform design, technical, developmental, engineering, procurement, installation, construction, consulting and other services required for the Project (collectively, the “Services”). Without limiting the foregoing, the Services include all labor necessary to perform such Services, including the services set forth in Exhibit A. The Services; all deliverables related thereto (the “Deliverables”); and all materials, fabrications, assemblies, equipment, supplies, spare parts and components incorporated or to be incorporated into the Project or furnished pursuant to this Agreement (collectively, the “Products”) as set forth in Exhibit A are collectively referred to herein as the “Work.” Provider shall perform the Work under the terms of this Agreement. For the avoidance of

 

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doubt, the Work does not include the obligations or performance of Provider or BrightSource under Sections 13 or 14.

 

  (b) Warranties.

 

  (i) Provider represents and warrants that it fully understands the Work to be performed as well as the Company’s purposes and objectives relative to the Work to the extent described in this Agreement and will perform the Services in a professional, timely and diligent manner in accordance with the Requirements and consistent with that employed by a reasonably prudent provider of similar services servicing its own business and as otherwise required by this Agreement. Provider further represents and warrants that its personnel shall be qualified and skilled in the Services they provide. Further, Provider represents and warrants that it has knowledge and expertise in the field of solar technology and related technologies as required by the Work. Provider shall ensure that its personnel and subcontractors who provide Services under this Agreement will possess sufficient educational qualifications and experience to provide such Services in a professional, timely and diligent manner. If the Company becomes dissatisfied with any such personnel or subcontractor, Provider shall cooperate to remedy the problem as soon as possible and, if reasonably requested by the Company, remove from the Project any individual who is the subject of dissatisfaction and replace that individual with other personnel reasonably approved by the Company.

 

  (ii) In the event Provider fails to perform or complete all or any portion of the Services in accordance with subsection (b)(i) above, subject to Sections 1(j) and 15, Provider shall re-perform the non-conforming Services at Provider’s sole cost and expense so that such Services comply in all material respects with the requirements of this Agreement.

 

  (iii) Provider represents and warrants to the Company that:

 

  (A) All Products are new, unused, of the grade(s) specified (if any), of a suitable quality for their intended use, and further meet the Requirements.

 

  (B) All Products will be free from defects in design, materials, and workmanship.

 

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  (C) The Work will not infringe or violate the intellectual property rights or interest of any third party.

 

  (D) The Project will be designed, engineered, installed, constructed, interconnected, tested, commissioned, and completed in accordance with the Requirements.

 

  (E) [Deleted]

 

  (F) Title to all Products and Deliverables is vested in the Company, free of any liens or other adverse claims, upon payment thereof pursuant to the terms of this Agreement (the foregoing warranties in Sections 1(b)(iii)(A) – (F) being hereinafter collectively referred to as the “Warranty”).

 

  (G) The Warranty shall not include loss, damage or failure to the extent caused by (i) normal wear and tear; or (ii) operation and maintenance in a manner that is inconsistent with (x) manufacturers’ recommendations, (y) Prudent Industry Practices, or (z) the Project and/or equipment designs and specifications.

 

  (iv) To the extent that third party warranties on materials or equipment incorporated into the Work exceed the Provider warranty period, Provider assigns such warranties to the Company at the expiration of the Provider warranty period.

 

  (v) If, at any time prior to the expiration of the applicable warranty period, the Company discovers any breach of the Warranty other than the Warranty in Section 1(b)(iii)(C), subject to Section 15, Provider shall, at Provider’s sole cost and expense, promptly correct such breach in a manner and at such times that to the extent reasonably practicable minimizes any interruption of the Company’s or Provider’s operation of the Project, whether by repair, retrofit, replacement or otherwise (which corrective action shall include any necessary removal, disassembly, re-design, reinstallation, reassembly, reconstruction or retesting and commissioning of any part or portion of the Work) so that the Work complies with the Warranty. Any remedial action performed by Provider shall be covered by the Warranty until expiration of the warranty period applicable to such portion of the Work.

 

  (vi)

Where remedial action is required by Provider under subsections (b)(ii) or (b)(v) above, Provider shall promptly

 

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commence corrective action after notice thereof, and shall complete such action within a reasonable period of time. If Provider fails to promptly commence the corrective action or fails to diligently continue such corrective action until completion, the Company has the right to remedy the defect by itself or by engaging another contractor, and Provider is responsible for all reasonable costs, subject to Section 15, incurred by the Company in connection with such corrective action.

 

  (vii) Provider shall conduct annual inspection procedures to confirm that the Work meets the Warranties in subsection (b)(iii) above (other than the Warranties in Sections 1(b)(iii)(C) and 1(b)(iii)(F)) until the expiration of the applicable warranty period with respect to such Work set forth in Section 1(j). The first annual inspection shall be conducted one calendar year after successful completion of the Startup Test (as defined in Exhibit F) and thereafter on each anniversary thereof until the expiration of the applicable warranty period.

 

  (viii) If, at any time prior to the expiration of the applicable warranty period, the Company discovers any breach of the Warranty in Section 1(b)(iii)(C), subject to Section 15, Provider shall, at Provider’s option, (i) procure for the Company the right to use the Work that does not comply with Section 1(b)(iii)(C); or (ii) replace or modify the Work that does not comply with Section 1(b)(iii)(C) so that it does comply with Section 1(b)(iii)(C).

 

  (c) Subcontractors and Vendors.

 

  (i) Provider agrees that all subcontractors (any subcontractors of Provider being referred to herein as “Subcontractors”) shall possess suitable training (including all Company training requirements set forth in this Agreement), experience and expertise with respect to the portion of the Work it is to provide. Provider shall be responsible and liable for the actions and inactions of its Subcontractors as if the Subcontractors were Provider itself.

 

  (ii)

Prior to executing any Subcontracts or Major Equipment supplier purchase agreements for the Project, Provider shall provide Company with a list of its intended Subcontractors and Major Equipment suppliers for the Work. Provider shall submit to Company prequalification packages (including the forms in Exhibit E-1, Appendix B), license and insurance

 

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information for all Subcontractors. Prior to commencement of the applicable portion of the Work, Provider shall provide Company with a list of its intended lower-tiered subcontractors. Within five (5) working days of receipt of the applicable list, Company shall have the right to reasonably object to any Subcontractors, lower-tiered subcontractors or suppliers listed by Provider, and the parties will thereafter meet and confer with respect to any Company objection. Subcontractors and lower-tiered subcontractors must meet minimum safety requirements and safety record index threshold required by Company to be prequalified. So long as (1) Provider has met and conferred with Company, (2) the Subcontractor or the lower-tiered subcontractor in question meets minimum safety requirements and the safety record index threshold required by Company, and (3) Company cannot reasonably demonstrate a material issue of reliability with the Subcontractor, lower-tiered subcontractor or supplier objected to, Provider may hire such Subcontractor, lower-tiered subcontractor or supplier despite Company’s reasonable objection. Notwithstanding the forgoing, Company may require that Provider use another proposed subcontractor, lower-tiered subcontractor or supplier so long as Company agrees (pursuant to a Change Order) to compensate Provider for any change in the subcontract or purchase order cost. If the rejected low-cost subcontractor or supplier submits an invoice and demands payment for the cost of preparing and clarifying its proposal, the Parties will in good faith consider whether or not such cost will be included in the Change Order.

 

  (iii)

In the event of a termination of this Agreement due to a breach by Provider, Provider shall if requested by the Company promptly assign to the Company all of its rights and obligations under all subcontracts and Major Equipment vendor supply contracts entered into by Provider with respect to the Work and the Company may, to the extent permitted by Applicable Law, enforce directly against any such Subcontractor or vendor all rights of Provider under such contracts. Upon such assignment, Company shall receive all benefits under such subcontract or vendor contract and shall assume all obligations thereunder without recourse to Provider, except to the extent of any payment obligations thereunder that should have been satisfied from payments of the Contract Price to date, or any breach of such subcontract or vendor contract by Provider prior to the date of the assignment. All subcontracts and Major Equipment vendor supply contracts entered into by Provider

 

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shall contain a provision whereby the Subcontractor or vendor agrees and consents to such assignment by Provider to the Company, subject to the Company assuming all obligations of Provider under said contract.

 

  (iv) Provider shall include a provision in its contracts with Subcontractors that the Subcontractor in question abide by and observe all Applicable Laws, rules and regulations, all applicable safety and security regulations, including minimum Company safety requirements set forth in Exhibits E and E-1, and all applicable terms and conditions of this Agreement. Each Subcontractor shall supply contractual warranties with respect to workmanship and materials for period of one (1) year from the time the Work performed by such Subcontractor is completed and indemnification to protect and indemnify Provider that reflect the nature, extent, and location of such Subcontractor’s activities and typical industry provisions, but without derogation of Provider’s warranty and indemnification obligations herein. Provider shall require all Subcontractors to comply with the provisions of this subsection (iv) and all other provisions hereunder specifically requiring such compliance by insertion of the applicable requirements hereof and thereof in a written agreement between Provider and Subcontractors.

 

  (v) In the event of non-payment of sums due third parties from Provider for any portion of the Work, the Company reserves the right to pay such third parties directly, but only in strict accordance with the subcontract with such third party and not in advance of any amounts due thereunder, and deduct the amount so paid from the total amount due to Provider pursuant to Exhibit B, provided, however that the aforesaid shall not limit Provider’s discretion in subcontracting all or part of the Project to third parties.

 

  (d)

Representative of Each Party. Each Party shall have a designated employee be its representative under this Agreement. The representative for each Party shall be the individual designated to receive notice for such Party under Section 22 hereof. Provider shall not change its representative during the course of the Work hereunder unless agreed to in writing by the Company, which agreement shall not be unreasonably denied or delayed. Company shall not change its representative during the course of the Work hereunder except upon written notice to Provider, such change to be effective upon receipt of such notice. Each designated representative of a Party shall have complete authority to act for such party with respect to this Agreement except to the extent such

 

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authority is expressly and specifically limited by a written notice to the other Party. Each Party’s authorized representative shall be the only person to whom the other Party shall issue instructions, orders or directions, except in an emergency.

 

  (e) Independent Contractor. Provider shall perform the Work as an independent contractor, retaining complete control over its personnel and operations, and conforming to all applicable labor laws, regulations and orders with respect to its employees. Neither Provider nor its employees shall be the Company’s employees or agents, or have any authority to represent or bind the Company. During the performance of the Work, Provider shall consult frequently with the Company’s designated representative in order to ensure that the specific Work is being performed in accordance with the terms of this Agreement.

 

  (f) Progress Reports. Provider shall furnish the Company’s designated representative reports as to the progress made on the Work as set forth in Exhibit H.

 

  (g) Compliance with Employment Laws. Provider shall pay when due to all personnel used by it for the Work all salaries, wages, fringe benefits, other forms of compensation, and reimbursement payable as a result of or in connection with performance of the Work and shall withhold and pay over to the appropriate authorities in a timely manner all Federal, State and local personal income and other payroll taxes (including contributions or taxes assessed against employees) payable with respect to such compensation. Provider shall in a timely manner make all reports concerning such personnel required by governmental authorities. The Company, from time to time, may require Provider to furnish evidence satisfactory to the Company that Provider has complied with the provisions of this subsection (g). The Company, in the event it is so required by law, may withhold from Provider’s compensation and pay to Federal or State tax authorities any tax levied or assessed on account of Provider’s Work hereunder, subject to Company’s obligation to pay certain taxes with respect to the Work as set forth in Section 10. Provider shall indemnify and hold harmless the Company, or any of its Affiliates, and the agents and employees of any of them, from and against any and all loss, damage or liability to any of them (including, without limitation, taxes, penalties and interest) resulting from Provider’s failure to comply with the provisions of this subsection (g). For the avoidance of doubt, the foregoing claims constitute Third Party Claims not subject to the limitations on liability set forth in Section 15.

 

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  (h) Termination of Work. The Company may only terminate the Work as set forth in Section 23.

 

  (i) Change Orders.

 

  (i) Change Orders Generally. Changes and/or modifications to the Work and/or Milestone Schedule (as set forth in Exhibit A-5, the “Milestone Schedule”) shall be authorized by a written Change Order signed by both Company and Provider (a “Change Order”). The Change Order shall state the change and/or modification to the Work and/or the Milestone Schedule and any related additional compensation to be paid or extension of time. Except pursuant to a Change Order executed by the Company, Provider shall not commence any Work or make any changes to the Milestone Schedule for which it will contend that extra compensation or extension of time is or will be due. In addition, if Company requests a proposal from Provider for a change to the Work or the Milestone Schedule and Company subsequently elects to not proceed with such change, Company agrees that a Change Order shall be issued to reimburse Provider for any costs reasonably incurred for estimating services, design and/or preparation of the proposal requested by the Company. Exhibit H contains additional protocols applicable to Change Orders.

 

  (ii) Change Orders Requiring Additional Compensation. Provider shall be entitled to additional compensation for the following reasons to the extent that such reasons actually increase the cost of performing the Work: (1) Company requested changes and/or modifications to the Work or the Milestone Schedule; (2) Company caused delays not otherwise permissible or compensated for hereunder; (3) discovery of any non-geological subsurface or other Site conditions different from those described in Exhibit A, (4) discovery of any pre-existing, undisclosed Hazardous Substance condition at, in, under, or upon the Site, and (5) to the extent provided under subsection (iv) below.

 

  (iii)

Change Orders Requiring Additional Time / Excusable Delays. Provider shall be entitled to a reasonable extension of time to the Milestone Schedule and a Change Order therefor for the following reasons (each, an “Excusable Delay”) to the extent that such reasons actually increase the time required to complete the Work (it being understood that Provider shall not be obligated to undertake extra-ordinary efforts to maintain the Milestone Schedule due to such

 

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reasons): (1) events of Force Majeure; (2) material changed conditions that justify a delay or extension of time pursuant to Section 1(i)(iv) below; and (3) Company caused delays. The Milestone Schedule will not be extended due to normal seasonal weather variations. Prior to the extension of any dates contained in the Milestone Schedule due to Excusable Delay, Provider will use reasonable efforts to make up such delays, including authorizing overtime payments (provided that Company has issued a Change Order authorizing and agreeing to pay for any such overtime payments).

 

  (iv) Material Changed Conditions. Provider will provide written notice to Company of any material changed condition as soon as reasonably possible, but in any event within ten (10) calendar days of Provider’s first discovery of such material changed condition. In the event that Provider’s notice concerns unanticipated subsurface conditions, including non-geological soil conditions or Hazardous Substances, Provider will not disturb the condition until said notice has been given to Company, and Company has had a reasonable opportunity to investigate the condition. If there is a disagreement between Company and Provider as to whether a Change Order should be issued because of the material changed condition or delay caused by its existence or Company’s investigation thereof, those disputes shall be resolved in accordance with the provisions of Section 21 of this Agreement. Pending the resolution of any dispute between Provider and Company concerning a material changed condition or any requested increase in compensation or extension of time, Provider will continue the Work and Company shall continue to make payments to Provider in accordance with the terms of this Agreement; provided, however, that Provider shall not be required to remediate, dispose of, or otherwise be responsible for any pre-existing Hazardous Substance condition at, in, under, or upon the Site. Notwithstanding the foregoing, Provider shall not be required to implement a Change Order if Provider reasonably demonstrates that implementation of such Change Order will (A) adversely impact the design, performance, safety, operability, or operation and maintenance costs of the Project or (B) increase the liabilities or warranty obligations of Provider hereunder.

 

  (v)

Minor Changes to Scope of Work. Provider shall have authority to make minor changes that do not result in additional compensation or change the Milestone Schedule and are consistent with the intent of the final Contract

 

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Documents and the Requirements, without prior notice to Company. Provider will either promptly inform Company, in writing, of any minor changes made during the implementation of the Project, or make available to Company at the site a set of as-built drawings that will be kept current to show those minor changes.

 

  (j) Applicable Warranty Periods. The representations and warranties set forth in this Section 1 terminate as follows:

 

  (i) The representations and warranties set forth in Section 1(b)(i) terminate and expire [*] after successful completion of the Startup Test (as defined in Exhibit F).

 

  (ii) The representations and warranties set forth in Section 1(b)(iii) (other than in Section 1(b)(iii)(F)) terminate and expire (A) with respect to the Solar Field Equipment (as defined in Exhibit J) [*] after successful completion of the Startup Test and (B) with respect to the Balance of Plant (as defined in Exhibit J), [*] after successful completion of the Startup Test.

 

  (iii) The representations and warranties set forth in Section 1(b)(iii)(F) terminate and expire [*] after successful completion of the Startup Test.

 

  (iv) For the avoidance of doubt, any representations and warranties set forth in Section 1(b) concerning the performance of the Project as it relates to the quantity and properties of steam produced or producible at the Project terminate and expire (1) upon termination hereof under Section 23(g) or (2) upon successful completion of the Annual Production Test (as defined in Exhibit F) or, subject to Section 15, payment of the liquidated damages with respect to the Annual Production Test as set forth in Exhibit F.

 

  (k) NO IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND PROVIDER DISCLAIMS AND COMPANY WAIVES ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

* Confidential Treatment Requested

 

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  (l) Provider’s Obligations.

 

  (i) General Obligations. Provider represents and warrants that it has satisfied itself as to the conditions under which the improvements are to be constructed, including, but not limited to, climatic conditions, available labor supply and costs, local and other governmental requirements (to the extent Provider’s responsibilities pursuant to Exhibit A), available equipment supply and costs, as well as all other items which, in Provider’s judgment, could in any manner affect the timely performance or cost of the Work. Provider shall furnish and provide all supervision, labor, transportation, equipment, materials, resources, and other services necessary to complete the Work for the Project. Provider shall hold, and shall ensure that all Subcontractors doing any portion of the Work hold, all applicable licenses required to perform the Work covered by the Agreement, and shall keep all such licenses current and valid during the performance of the Work. Provider shall provide proof of valid licenses if requested by Company.

 

  (ii) Project Control and Supervision. Provider shall manage and direct the Work in all particulars, including its own activities and those of its Subcontractors, and coordinate all portions of the Work with the activities and responsibilities of Company to complete the Project in accordance with the Contract Documents. Provider shall be solely responsible for its means, methods, techniques, sequences, and procedures employed for the construction. Provider shall supervise, coordinate, and direct Provider’s own forces and those of its Subcontractors, regularly monitor as appropriate to achieve adequate performance, and provide inspection to assure quality workmanship for the Work. Provider shall enforce discipline and good order at the Project Site.

 

  (iii) Physical Construction. Provider shall furnish and pay for all supervision, labor, materials, fabrications, assemblies, construction equipment and machinery, tools, water (other than for dust control), water trucks, drinking water and sanitation facilities, transportation, and all other facilities and services that are necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work, excluding only those items specifically identified to be provided by Company.

 

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  (iv) Capturing Operating Data. Provider shall capture all ongoing operating data from the Demo Plant from the completion of the Startup Test until satisfactory completion of the Annual Production Test, and shall make such information and data available to Company promptly upon request. Such operating data shall not be erased or deleted.

 

  (m) Design Preparation by Provider. Provider’s Work shall include the preparation of plans and specifications in accordance with the Requirements. Provider shall comply with each of the following requirements:

 

  (i) Provider shall employ a qualified engineer licensed to practice professional engineering in the state and/or locality where the Project is located, or if permitted by State law, may subcontract such engineering services to a properly licensed engineer. Provider’s plans and specifications shall be prepared under the direct supervision of a licensed professional engineer and, if required by Applicable Law, said engineer shall stamp the design upon completion of the plans and specifications.

 

  (ii) Provider shall be solely responsible for the adequacy, safety, suitability, and completeness of its design. Provider is responsible for taking all field dimensions and noting all field conditions which may impact engineering and design. Provider’s plans and specifications are subject to the written approval of Company in accordance with the procedures set forth in Exhibit A-2; without such, work shall not proceed. Such approval shall be limited to a determination of whether such plans and specifications conform to the Requirements. Company shall have fourteen (14) days to review and approve the plans and specifications.

 

  (iii) Provider shall supply copies of the design to Company for review and approval as outlined in Exhibit A-2 Engineering Scope of Work to the Agreement. Provider shall perform interactive reviews of the design with Company, based on previously agreed upon process in Exhibit A-2, to facilitate Company input, feedback, and approval of the Project and component design. Such approval shall be limited to a determination of whether such design conforms to the Requirements. Company shall have fourteen (14) days to review and approve the design. Provider shall also meet with representatives of Company to discuss the design as appropriate between such interactive reviews.

 

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  (iv) With consultation and feedback from Company, Provider shall submit the final design, plans and specifications to the appropriate governmental agencies having jurisdiction over the Project if and to the extent such submission is required by Applicable Law. Provider shall work with said agencies to secure the Permits for which Provider is responsible for securing pursuant to Section 20(f). Company will use its knowledge and expertise to assist Provider in identifying the required permits.

 

  (n) Contract Time and Schedule.

 

  (i)

Progress and Completion. The time period set forth in the Milestone Schedule to achieve Mechanical Completion may be extended only for causes and events expressly authorized under the Agreement, including Section 1(i)(iii). Provider shall not commence any portion of the construction work at the Site prior to the issuance of a written notice to proceed by Company for such portion of the Work (“Notice to Proceed”). A Notice to Proceed shall be issued within ten (10) business days of Company’s approval of the issued-for-construction engineering package for such portion of the Work. In the event that Company fails to issue a Notice to Proceed within such time period, such Notice to Proceed shall be deemed issued on the tenth (10th) business day. Provider shall thereafter prosecute the Work continuously, expeditiously, and diligently at such a rate to maintain sufficient progress in accordance with the Milestone Schedule to achieve Mechanical Completion within the Contract Time, unless an extension of time is justified under the Agreement. Should it appear at any time that Provider is in danger of failing to meet any of the milestone dates contained in the Milestone Schedule, Provider shall cause its employees and its Subcontractors to increase personnel or perform overtime work as is necessary to return to the original Milestone Schedule. Provider shall not be compensated or reimbursed for any additional costs resulting from such overtime work, and no adjustment shall be made to the Contract Time, unless an extension of time would have been justified under the Agreement and Provider had supplied Company with notice of its intent to accelerate prior to providing such overtime work.

 

  (ii)

Procurement Process for Major Equipment. Purchase agreements for the Major Equipment identified on Exhibit A-6 hereto may be issued by Provider upon execution of this Agreement. For any remaining Major Equipment, the

 

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process for issuing the purchase agreements shall be as set forth in Section 1(c)(ii). Company shall have seven (7) days to review and approve all shop drawings for the Major Equipment.

 

2. Compensation.

 

  (a) Subject to the terms and conditions of this Agreement, the Company shall pay Provider, as full compensation for the performance of the Work and its obligations hereunder, a fixed, lump sum amount equal to [*] plus any amount payable pursuant to any written Change Order, less a credit of [*], the aggregate amount of all payments made by the Company under that certain Letter of Authorization, dated December 11, 2007 (“LOA”) between the Company and Provider through the date hereof (it being understood that as of such date, as set forth in Section 27, the LOA shall terminate and be superseded by this Agreement). Company shall be under no obligation to compensate Provider any additional amounts beyond the Contract Price unless there is a written Change Order that provides for additional compensation. The Contract Price shall be payable in installments as milestone payments as set forth in Exhibit B, but such milestone payments shall not be determinative between Provider and Company as to the compensation owed hereunder for the portion of the Work identified in such milestone or completed through the date such milestone is achieved.

 

  (b) After each milestone identified in Exhibit B is reached or an amount shall otherwise be due or shall be due under a Change Order, Provider shall submit an invoice (“Invoice”) for the amount due it hereunder, referencing this Agreement, together with such detail as shall be reasonably required to establish Provider’s right to payment (such as field verification that the applicable milestone has been reached, packing slips, shipping documentation, etc), all of which shall be sent to the following address:

Chevron Technology Ventures,

a division of Chevron U.S.A. Inc.

Attention: Sergio Hoyos

Address:   3901 Briarpark Drive

                  Houston, Texas 77042

The amount due hereunder will be paid by wire transfer within thirty (30) days of receipt of Invoice, except for the first milestone payment which shall be paid within ten (10) business days of the

 

* Confidential Treatment Requested

 

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execution of this Agreement, as follows:

 

Routing Transit Number    [*]
Bank Name    Wells Fargo Bank, N.A.
Bank Address    420 Montgomery, San Francisco, CA 94104
Beneficiary    Brightsource Energy, Inc.
Beneficiary Account#    [*]

With written notice of such payment sent to:

BrightSource Construction Management, Inc.

Attn: Jack Jenkins-Stark, CFO

1999 Harrison Street, Suite 2150

Oakland, CA 94612

If Company disputes an Invoice, payment of the portion of the Invoice disputed may be withheld until resolution of the dispute. Without waiver of its right to payment of the disputed amount, Provider may submit a new Invoice for the undisputed amount. If Provider either amends the Invoice so as to resolve the dispute or provides the required documentation, or submits an Invoice for the undisputed amount, the thirty (30) day time period for payment of any such disputed portion of the Invoice shall commence from the date of Company’s receipt of the amended Invoice or of the additional required documentation. Any overpayments to Provider shall, unless otherwise corrected or adjusted, be repaid to Company.

 

  (c) Company may decline to pay Provider, in whole or in part, to such extent as may be necessary in Company’ good faith opinion to protect Company from loss because of:

 

  (i) third party claims or perfected liens filed; or

 

  (ii) failure of Provider to make payments properly to its Subcontractors.

 

  (d)

Waivers and Releases. As a prerequisite for the final payment to Provider, Provider shall provide, in the forms attached as Exhibit I, lien waivers as therein specified executed by Provider and by every Subcontractor, lower-tiered subcontractor and material supplier to Provider, a Subcontractor or a lower-tiered subcontractor furnishing labor or material for the Work who has filed a Preliminary Notice (also known as a pre-lien notice). Provider shall verify with Company that Company has received copies of all pre-lien notices

 

* Confidential Treatment Requested

 

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that Provider receives. Company shall file a Notice of Completion following satisfactory completion of the Acceptance Test.

 

  (e) Provider agrees to provide, at the request of Company, evidence of payment of amounts due to its Subcontractors and vendors.

 

  (f) No payment to Provider will be authorized until Company receives a complete and accurate submittal package from Provider in accordance with this Section 2. No payment to Provider, other than the first milestone payment upon the execution hereof, will be authorized until Company has received a current Certificate of Insurance. Provider shall not be allowed to commence construction at the Site until Company has received the current Certificate of Insurance.

 

  (g) Company’s inspection, its final payment, its acceptance of the Work, and Company’s possession of the Project shall not operate as a waiver of any Warranty provisions herein. Provider’s acceptance of final payment shall constitute a waiver of all claims of Provider except those previously made in writing and expressly identified as unsettled at the time of submission of Provider’s final Invoice.

 

  (h) Any amount owed to Company or Provider hereunder and not paid when due shall accrue daily interest at the rate of two percent (2%) over the Prime Rate from the date due hereunder until paid; provided, however, that the first milestone payment due Provider shall not accrue interest until thirty (30) days past the date due hereunder. Any amount owing hereunder that remains unpaid for sixty (60) days past the due date shall accrue daily interest at the rate of four percent (4%) over the Prime Rate from the sixty-first day until paid.

 

3. Records.

 

  (a)

Records. Provider shall maintain complete and accurate records in connection with the Work and all transactions related thereto and shall retain all such records for at least twenty-four months after the end of the calendar year in which the Project is completed. The Company may from time to time and at any time until twenty-four months after the end of the calendar year in which the Project is completed make an audit of all records of Provider in connection with all costs, if any, related to the Work which are reimbursable under this Agreement. Notwithstanding the above, if any records are or may be required to resolve any claim or dispute actually known by Provider to have arisen in relation to this Agreement, the period of retention shall continue until final disposition of such claim

 

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or dispute. Any amount by which the total payment by the Company to Provider exceeds the amount due Provider shall be returned to the Company within thirty (30) calendar days after the date of any final determination thereof. Items of compensation not determined on a reimbursement of cost basis, such as fixed percentages, fixed fees or milestone payments, or fixed lump sums shall not be subject to record keeping requirements under this subsection (a).

 

  (b) Gifts. No director, employee or agent of Provider or of any Subcontractor or vendor of Provider shall give or receive any commission, fee, rebate, or gift or entertainment of significant cost or value in connection with the Work, or enter into any business arrangement with any director, employee or agent of the Company or any Affiliate, other than as a representative of the Company or its Affiliate, without the Company’s prior written agreement. Neither Provider nor its directors, employees, agents, subsidiaries and Affiliated entities or their directors, employees or agents shall make any payment or give anything of value to any official of any government or public international organization (including any officer or employee of any government department, agency or instrumentality) to influence his or its decision or to gain any other advantage for the Company or Provider in connection with the services performed hereunder. Provider shall promptly notify the Company of any violation of this subsection (b) and any consideration received as a result of such violation shall be paid over or credited to the Company. Any representatives authorized by the Company may audit any and all applicable records of Provider for the sole purpose of determining whether there has been compliance with this subsection (b).

 

  (c) Subcontractor and Vendor Agreements. Provider shall require all Subcontractors and vendors, in all agreements in connection with the Work, to agree to the inclusion therein of the provisions of Section 3(b) (other than the last two sentences thereof).

 

  (d) Open Book and Make Right Reporting. Following successful completion of the Startup Test, Provider shall provide to Company a final and accurate account of the total Project costs (including a breakdown of indirect cost categories identified on Exhibit B-1), broken down by subcontractor and equipment (with a lump sum for the Heliostats). Such cost data shall be updated as applicable following completion of the Acceptance Test. Provider shall submit Make Right and Warranty Remedy Expense Reports in accordance with the requirements of Exhibit H.

 

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4. Intellectual Property; Indemnification.

 

  (a) No Infringement. Software, technology, and other materials, products and information used by Provider in connection with the Work (the “Provider Proprietary Properties”) do not and will not infringe upon or violate the intellectual property rights of any third party.

 

  (b)

General Indemnity by Provider. Provider shall defend, indemnify and hold harmless the Company and any Affiliate of Company, and the members, partners, managers, directors, officers, agents, consultants, contractors, representatives and employees of any of them (the “Company Indemnitees”), from and against any and all loss, damage, injury, liability, and claims thereof for injury to or death of any person (including an employee of Provider or an Company Indemnitee) or for loss of or damage to property (including but not limited to tangible personal property), resulting from or in connection with Provider’s performance of the Work under this Agreement, including, but not limited to, (i) Provider’s negligent or willful acts, (ii) Provider’s use of motor vehicles or other equipment provided by the Company or others, (iii) any release of a Hazardous Substance by Provider or any enforcement or compliance proceeding commenced by or in the name of any Governmental Authority having jurisdiction over the Provider because of an alleged, threatened or actual violation of any Applicable Law by Provider; and (iv) any action reasonably necessary to abate, remediate or prevent a violation or threatened violation of any Applicable Law by Provider. Such indemnity shall apply whether or not an Company Indemnitee was or is claimed to be passively, concurrently, or actively negligent, and regardless of whether liability without fault is imposed or sought to be imposed on one or more of the Company Indemnitees. The indemnity shall not apply to the extent that such indemnification is void or otherwise unenforceable under Applicable Law and shall not apply to the extent such loss, damage, injury, liability or claim is the result of the negligence or willful misconduct of any Company Indemnitee. Neither Provider nor the Company shall settle or compromise any litigation for which indemnification is provided without the consent of the other Party if such settlement or compromise obligates the other to make any payment or part with any property or assume any obligation or grant any license or other rights or be subject to any injunction by reason of such settlement or compromise. The Company’s right to indemnification by Provider under the foregoing shall be independent of the Company’s rights under the insurance provided under Section 5. The Company is authorized to withhold from any amount payable to Provider all amounts for which the Company may become liable to third parties due to Provider’s

 

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negligent or willful acts in performing or failing to perform its obligations under this Agreement. In the event that any claim is made by a third party, which is disputed by Provider, or any indebtedness exists which may be the basis for a lien claim (other than mechanics or vendor lien claims in the ordinary course of performance of the Work), the Company may withhold from any payment due to Provider an amount sufficient to cover such claim. If the Company withholds any amount due as permitted by the preceding two sentences, upon resolution of the potential liability or dispute, the Company shall promptly pay to Provider any amount withheld in excess of the liability of Provider with respect thereto with interest from the date such excess was withheld. The Company’s failure to exercise this right to withhold shall not affect Provider’s obligation to protect the Company as provided herein.

 

  (c) Infringement Indemnity. Provider shall defend, indemnify and hold harmless the Company Indemnitees from and against any and all loss, damage, injury, liability and claims thereof for any actual or alleged patent, copyright or trademark infringement, or trade secret misappropriation, or proprietary rights violations by Provider, its employees, representatives or agents, or resulting directly or indirectly from Provider’s performance of the Work, including without limitation provision of material or designs by Provider or use of tools and other equipment by or for Provider in any connection therewith, and shall reimburse the Company fully for any royalties, damages, expenses, losses or other payments that the Company shall be obliged to pay in connection therewith. The Company shall have the right to be present and represented by counsel, at its own expense, at all times during litigation and/or other discussions relating to any such claims of patent, copyright or trademark infringement, trade secret misappropriation or proprietary rights violations. Neither Provider nor the Company shall settle or compromise any such litigation without the consent of the other if such settlement or compromise obligates the other to make any payment or part with any property or assume any obligation or grant any license or other rights or be subject to any injunction by reason of such settlement or compromise. The Company’s right to indemnification by Provider under the foregoing shall be independent of the Company’s rights under the insurance provided under Section 5. If any Provider Proprietary Properties infringe upon or violate the intellectual property rights of any third party, Provider shall have the right after notice to the Company to substitute non-infringing items so long as the substituted items provide the same functionality and efficacy as the infringing items in all material respects and such substitution does not result in any modification of any warranty, indemnity, or other obligations of Provider hereunder.

 

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  (d) Additional Indemnification. Provider shall at all times during the performance of the Work (i) comply in all material respects with all Applicable Laws, statutes and ordinances and all applicable rules, regulations and orders of any Governmental Authority having jurisdiction over the Provider with respect to the Work; and (ii) subject to Section 20(f), obtain all licenses, permits, certificates, approvals, bonds and notices required in connection with its performance under this Agreement. Provider shall defend, indemnify and hold harmless Company Indemnitees against all damages, claims (including Tax claims), fines, or penalties of whatever nature (including any fees and expenses incurred in defense thereof) as a result of Provider’s failure to comply with this subsection (d).

 

  (e)

General Indemnity by Company. Company shall defend, indemnify and hold harmless Provider and any Affiliate of Provider, and the members, partners, managers, directors, officers, agents, consultants, contractors, representatives and employees of any of them (the “Provider Indemnitees”), from and against any and all loss, damage, injury, liability, and claims thereof for injury to or death of any person (including an employee of Company or a Provider Indemnitee) or for loss of or damage to property (including but not limited to tangible personal property), resulting from or in connection with Company’s obligations under this Agreement, including, but not limited to, (i) Company’s negligent or willful acts, (ii) Company’s use of motor vehicles or other equipment provided by Company or others, (iii) any release of a Hazardous Substance by Company, prior to or after the date hereof, or any enforcement or compliance proceeding commenced by or in the name of any Governmental Authority having jurisdiction over Company because of an alleged, threatened or actual violation of any Applicable Law by Company, (iv) any action reasonably necessary to abate, remediate or prevent a violation or threatened violation of any Applicable Law by Company, and (v) any pre-existing Hazardous Substance condition at, in, under, or upon the Site, whether or not caused by Company. Such indemnity shall apply whether or not a Provider Indemnitee was or is claimed to be passively, concurrently, or actively negligent, and regardless of whether liability without fault is imposed or sought to be imposed on one or more of the Provider Indemnitees. The indemnity shall not apply to the extent that such indemnification is void or otherwise unenforceable under Applicable Law and shall not apply to the extent such loss, damage, injury, liability or claim is the result of the negligence or willful misconduct of any Provider Indemnitee. Neither Provider nor Company shall settle or compromise any litigation for which indemnification is provided without the consent of the other Party if such settlement or compromise obligates the

 

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other to make any payment or part with any property or assume any obligation or grant any license or other rights or be subject to any injunction by reason of such settlement or compromise.

 

  (f) Procedures. All claims for indemnification under this Agreement shall be asserted and resolved as follows:

 

  (i) A Party claiming indemnification under this Agreement (an “Indemnified Party”) shall with reasonable promptness (A) notify the Party from whom indemnification is sought (the “Indemnifying Party”) of any third-Party claim or claims (“Third Party Claim”) for which indemnification is sought and (B) transmit to the Indemnifying Party a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), an estimate of the amount of damages attributable to the Third Party Claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis of the Indemnified Party’s request for indemnification under this Agreement; provided, however, that no delay on the part of the Indemnified Party in providing the Claim Notice shall relieve the Indemnifying Party from its obligations hereunder unless (and then only to the extent) the Indemnifying Party is damaged by such delay.

Within thirty (30) days after receipt of any Claim Notice (the “Election Period”), the Indemnifying Party shall notify the Indemnified Party (X) whether the Indemnifying Party disputes its potential liability to the Indemnified Party with respect to such Third Party Claim and (Y) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend against such Third Party Claim, whether or not it disputes its potential liability to the Indemnified Party with respect to such Third Party Claim.

 

  (ii)

If the Indemnifying Party notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, with counsel reasonably satisfactory to the Indemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party in accordance with this subsection (ii), unless and until the Indemnifying Party notifies the Indemnified Party that it chooses to cease such defense. The Indemnifying Party

 

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shall have full control of such defense and proceedings, including any compromise or settlement thereof, subject to the restrictions contained herein. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not materially prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest. Except as otherwise provided herein, the Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this subsection (ii) and shall bear its own costs and expenses with respect to such participation, provided that if the parties to any suit or proceeding shall include the Indemnifying Party as well as the Indemnified Party and the Indemnified Party shall have been advised by counsel that one or more legal defenses may be available to it that may not be available to the Indemnifying Party, then the Indemnifying Party shall be obligated to bear the reasonable fees and expenses of counsel of the Indemnified Party, which shall be selected by the Indemnified Party in its complete and sole discretion. Notwithstanding the foregoing, the Indemnified Party may, at any time and in its sole discretion, release the Indemnifying Party from its obligations hereunder with respect to a Third Party Claim and thereafter assume control of the defense or settlement thereof at its sole cost and expense.

 

  (iii)

If the Indemnifying Party fails to notify the Indemnified Party within the Election Period that the Indemnifying Party elects to defend the Indemnified Party pursuant to subsection (ii) above, or if the Indemnifying Party provides notice pursuant to subsection (ii) above that it will cease the defense of the Indemnified Party or elects to defend the Indemnified Party but fails diligently and promptly to prosecute or settle the Third Party Claim, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be

 

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promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings with respect to the liability of the Indemnified Party but not the Indemnifying Party.

 

  (iv) Notwithstanding the foregoing, if the Indemnifying Party has delivered a written notice to the Indemnified Party to the effect that the Indemnifying Party disputes its potential liability to the Indemnified Party hereunder and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to subsection (ii) or (iii) above or of the Indemnified Party’s participation therein at the Indemnifying Party’s request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses of such litigation.

 

  (v) The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to subsection (iii) above, and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.

 

  (vi) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim, the Indemnified Party shall transmit to the Indemnifying Party a written notice (the “Indemnity Notice”) describing in reasonable detail the nature of the claim, a reasonable estimate of the amount of damages attributable to such claim to the extent feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis of the Indemnified Party’s request for indemnification under this Agreement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such claim, the claim specified by the Indemnified Party in the Indemnity Notice shall be deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party has timely disputed such claim, as provided above, such dispute shall be resolved pursuant to Section 21.

 

5. Insurance.

 

  (a)

It is understood and agreed by the Parties that neither the minimum policy limits of insurance required in connection with the Work

 

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under this Section 5 nor the actual amounts of insurance maintained under any insurance program in any way limit or reduce Provider’s liability and indemnity obligations under this Agreement.

 

  (b) Provider shall maintain or cause to be maintained the following insurance and all such other insurance as required by the applicable law:

 

  (i) Worker’s Compensation and Employer’s Liability Insurance as prescribed by applicable laws of the country in which the Work will be performed and the states and/or countries of residence of expatriate employees, including coverage under the Longshoremen’s and Harbor Worker’s Act, the Jones Act, Death on the High Seas Act and the Outer Continental Shelf Lands Act, if applicable.

 

  (ii) Comprehensive or Commercial General Liability (Bodily Injury and Property Damage) Insurance, including the following supplemental or monoline coverages: Contractual Liability to cover the liabilities assumed in this Agreement, Products and Completed Operations, coverage for explosion and collapse (limit of [*]), Sudden and Accidental Pollution (limit of [*]) and a cross-liability endorsement or severability of interest clause. The policy territory coverage shall include the area in which the Work is to be performed. The policy limits must be not be less than [*] U.S. Dollars (US [*]) combined single limit per occurrence.

 

  (iii) Automobile Bodily Injury and Property Damage Liability Insurance extending to all vehicles provided by Contractor in the performance of the Work. The policy limits for such insurance must be higher of the amount required by applicable law and [*] U.S. Dollars (US[*]) or its currency equivalent combined single limit per occurrence.

 

  (c) Policy Endorsements.

 

  (i) Provider shall, or shall cause the insurers to, provide Company with thirty (30) days’ written notice (ten (10) days for nonpayment of premium therefor) prior to the cancellation or making of a material change of the insurance required by subsection (b) above.

 

  (ii) The insurance specified in subsection (b)(i) above shall contain waivers of subrogation rights in favor of the Company Indemnitees.

 

* Confidential Treatment Requested

 

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  (iii) The insurance specified in subsections (b)(ii) and (b)(iii) above shall:

 

  (A) name the Company as an additional insured to the extent of the liabilities assumed by Provider under this Agreement. The coverage provided to the Company as additional insured must expressly include liability imposed or sought to be imposed upon the Company to the extent that Provider has assumed such liabilities under the Agreement;

 

  (B) provide that the insurance is primary coverage with respect to all insureds, including additional insureds, and shall not be considered contributory insurance with any insurance policies of any insureds, including additional insureds ; and

 

  (C) provide a cross-liability or severability of interest clause that has the effect of ensuring that each insured (including additional insureds) is covered as a separate insured.

 

  (d) Builders Risk Insurance. Provider shall also maintain in full force and effect Builders Risk Insurance which shall include coverage for damage to the Work during the construction, testing and commissioning phases and continue until the successful completion of the Startup Test. The policy shall cover all risks (excluding earthquake and flood at the discretion of Provider) of physical loss or damage in an amount not less than the full replacement cost value of the equipment at final completion with terms and conditions as broad as available in the insurance marketplace. The policy shall contain a waiver of subrogation in favor of the Company and all Company contractors and subcontractors. The policy shall be primary coverage for damage to the Work and shall not be considered contributory with any insurance policies maintained by the Company or any of the Company’s contractors or subcontractors. The Builders Risk Insurance policy proceeds shall be used first, to the extent necessary, for Provider to fulfill its obligations hereunder for the repair and replacement of lost or damaged portions of the Work. For the avoidance of doubt, nothing contained in this Section 5(d) diminishes Provider’s obligation to complete the Project in accordance with and subject to the terms of this Agreement.

 

  (e)

Evidence of Insurance. Before commencing the Work, Provider shall provide Company with certificates or other documentary evidence satisfactory to Company of the insurance and

 

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endorsements set forth in subsections (b), (c) and (d) above. Acceptance of any such certificate by Company shall not constitute a waiver, release or modification of any of the insurance coverages and endorsements required under this Section 5. Upon request of Company, Provider shall provide copies of insurance policies required pursuant to this Agreement.

 

  (f) Deductibles or Self-Insured Retentions. Provider is solely responsible for payment of all deductibles or self-insured retentions that are applicable to any claims made against the Company covered by insurance policies required to be maintained or caused to be maintained by Provider under this Section 5. The level of these deductibles or retentions must be reasonable and compatible with that expected of a prudent contractor in similar circumstances.

 

  (g) Waiver of Subrogation for Physical Damage Insurance. Provider shall obtain a written waiver of subrogation in favor of the Company from insurers who provide physical damage insurance with respect to any property used in the performance of the Work to the extent Provider has assumed liability for its property under this Agreement.

 

  (h) Insurance Required from Subcontractors. Without in any way limiting Provider’s liability pursuant to Section 5, Provider shall cause its Subcontractors, subject to appropriate adjustments given the nature, location, and extent of the activities of said Subcontractors, to obtain the insurance coverage and endorsements set forth in subsections (b)(i) and (iii) and (c)(i) and (ii) above, but with the Company named as an additional insured thereon.

 

  (i)

Repair or Replacement by Company. Upon successful completion of the Startup Test, risk of loss shall transfer to Company as set forth in Section 6. Thereafter, Company shall be responsible for physical damage or loss to the Work (subject to any rights of Company to indemnification pursuant to Section 4 hereof). From and after such time until completion of the Annual Production Test or termination hereof under Section 23(g), if any such physical damage or loss occurs, Company shall repair or replace such damage or loss to the condition prior to such damage or loss at its expense in order for Provider to be able to fulfill its obligations under Exhibit F to pass the Acceptance Test and Annual Production Test; provided, however, that Company at its election may waive the requirement for Provider to pass the Acceptance Test and Annual Production Test, as the case may be, and upon payment to Provider of the full amount of any unpaid Contract Price, plus any amount payable pursuant to any written Change

 

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Orders, the obligation to repair and replace hereunder shall terminate. If any repair or replacement is necessary due to such physical damage or loss, Provider shall assist in such activities as requested by Company, including selling Heliostats and components thereof to the Company at the prices set forth in Exhibit B-1. Such activities shall be documented as a Change Order hereunder and shall be the basis for an adjustment as necessary for the completion date of the Acceptance Test or Annual Performance Test, as the case may be.

 

6. No Liens; Transfer of Title. Provider shall promptly pay its Subcontractors and suppliers the amounts to which they are entitled. Provider shall not include in its contracts with Subcontractors and suppliers provisions that allow Provider to withhold payments to its Subcontractors and suppliers until Provider receives payment from Company. Provider shall promptly discharge or bond or otherwise secure against all perfected liens, claims, security interests, encumbrances and attachments which are filed against the Company or its interests in connection with the Project and Provider shall indemnify and save the Company and the Company Indemnitees harmless from and against any and all loss, damage, injury, liability and claims thereof resulting from such liens, encumbrances and attachments and any mechanics liens or stop notices. Care, custody, control, risk of loss, and legal title to the Project shall transfer to Company upon successful completion of the Startup Test.

 

7. Confidentiality.

 

  (a)

Confidential Information. During the performance of the Work hereunder, it will be necessary for each Party to make its or its Affiliates’ confidential technical, business or other information (“Confidential Information”) available to the other Party. Each Party agrees to use all such Confidential Information provided by the other Party solely for the performance of this Agreement, including the design, construction, operation and maintenance of the Project, and to hold all such Confidential Information in confidence and not to copy or disclose any such Information to any third party without the prior written consent of the other Party. The Company hereby consents to limited disclosure of its Confidential Information to Subcontractors, vendors, consultants, accountants and attorneys, and other agents, advisors and representatives of Provider to the extent necessary for such parties to perform their work in connection with the Work so long as such parties agree to the provisions of this subsection concerning Confidential Information as required by Section 8(b). Provider hereby consents to limited disclosure of its Confidential Information to subcontractors, consultants, accountants and attorneys, and other agents, advisors and representatives of the Company to the extent necessary for

 

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such parties to perform their work in connection with the Project so long as such parties are bound to the Company by confidentiality obligations as required by Section 8(c). Provider and Company each are responsible for the breach of this Section 7 by any of its own subcontractors, vendors, consultants, accountants and attorneys, and other agents, advisors and representatives. All Confidential Information shall be promptly returned to the disclosing Party or, at such Party’s option, destroyed, upon any expiration or termination of this Agreement, except that the Company may retain copies of the Confidential Information of Provider to the extent necessary in connection with the ownership, operation, maintenance, repair, and replacement of the Project and Provider may retain copies of the Confidential Information of the Company to the extent necessary to fulfill its obligations hereunder and to document the performance of the Work.

 

  (b) Public Statements. Each Party and BSE, shall not (i) use the names or marks of the other Party and its Affiliates in any advertisements, marketing materials, product endorsements, press releases or any other publications, documentations or announcements, including announcements about this Agreement or the activities contemplated hereunder, or (ii) photograph or video tape at the Company’s premises or at the Project, in each case without such other Party’s prior written approval (except that this limitation shall not apply to the Company with respect the Company’s premises excluding the Project and except that this limitation shall not apply to either Party with respect to the Project so long as such photographs or video tapes are themselves considered Confidential Information and subject to the terms of subsection (a)). Provider and BSE shall not publish or publicly release any information, announcement or press release about the Project without Company’s prior written consent. Company may publish or release any information, announcement or press release about the Project without using the names or marks of Provider or BSE in its sole discretion.

 

  (c)

Except as expressly permitted herein, neither Party shall disclose to any third party any Confidential Information about the Project, including the Work and the terms and conditions of this Agreement, without the prior written consent of the other Party. The term “Confidential Information” with respect to a Party shall not include, and obligations of confidentiality herein shall not apply to, information that: (i) the other Party had in its possession at the time of disclosure to such Party hereunder; (ii) the other Party obtains from a third party who is not under an obligation of confidentiality to the disclosing Party with respect to such Confidential Information; (iii) is or becomes part of the public domain through no act or

 

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omission of other Party in violation hereof; or (iv) is independently developed by the other Party. If a Party is required by law, regulation, including rule of stock exchange, or a court or entity with competent jurisdiction to disclose Confidential Information of the other Party, such Party shall, prior to any disclosure, promptly notify the other Party in writing of such required disclosure, including the terms and circumstances thereof. An appropriate protective order may be sought by the other Party and such Party shall cooperate with the other Party in seeking such protective order. In the absence of such an order or upon the receipt of a waiver by the other Party with respect to compliance with the provisions hereof for purposes of the required disclosure, a Party shall disclose only that portion of Confidential Information that it is advised by its counsel is legally required, it shall give the other Party written notice of what will be disclosed as far in advance as possible, and it shall take all reasonable and lawful actions to obtain confidential treatment for such disclosure.

 

8. Intellectual Property.

 

  (a) The Parties agree that:

 

  (i) All inventions, improvements and discoveries, including all computer software, works, material and data whether or not protectable by patent, trade secret or copyright (collectively “IP”) created prior to December 11, 2007, as well as any IP conceived outside the Work at any time after December 11, 2007 (“Background IP”) shall be owned by the Party whose employees, consultants and Affiliates invented or created such IP; provided, that in the case of Provider, such Background IP will be owned by BSII.

 

  (ii) Except as provided in subsections (i), (iii), (iv) and (v) of this Section 8 (a), all IP that Provider embodies and/or uses in its design for the Demo Plant including IP that either Party and its respective Affiliates, employees, and consultants develop in the course of performing the Work that is an improvement to or derivative of BSII’s Background IP (collectively “Provider IP”) shall be the sole and exclusive property of BSII.

 

  (iii)

All IP created in connection with the Work by either Party and its respective Affiliates, employees, and consultants that is embodied in the Heat Exchanger System for the Demo Plant (collectively, “Joint IP”) shall be assigned jointly to BSII and to the Company. Both BSII and the Company shall have all rights as joint owners under the laws of any country

 

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in which the Joint IP is exploited or patented. Each Party will promptly disclose to the other such Joint IP and will cooperate fully in acquiring any patent protection; BSII shall also cooperate to the extent applicable. In the event either BSII or the Company want to obtain patent protection in a country and the other does not want to join in paying for patent protection in such country, BSII or the Company, as the case may be, has the option to obtain a patent in that country, but the patent in that country will still be jointly owned.

 

  (iv) Without derogating from Provider’s and BSII’s general IP rights hereunder in respect to Background IP, Provider IP, patents and Joint IP, and subject to the Company’s payment to Provider of all payments due to Provider hereunder, all data, designs, documentation, plans, and specifications created by either Party specifically for the Demo Plant (collectively, “Documentation”) shall be the sole and exclusive property of the Company; provided however that the Company agrees not to use any such Provider created Documentation except for use in the construction, operation, maintenance, repair and replacement (which shall include repair and replacement of equipment, materials, components and parts) of the Demo Plant, or an expansion of the Demo Plant by less than 15% capacity, without Provider’s prior permission, which shall not be unreasonably withheld, it being understood that Provider shall have no obligation to authorize such use for the construction of a greater than fifteen percent (15%) capacity expanded Solar-to-Steam Facility unless Provider is unable or unwilling to assist Company in such an expansion on reasonable and mutually agreeable terms; and further provided that Provider and its Affiliates may use such Provider created Documentation in connection with their business, but without disclosure of any Confidential Information of the Company. Notwithstanding the foregoing provision 8(a)(iv), Company shall not interconnect with, modify or add to the existing Project control system or software without Provider’s prior written consent unless Company is entitled to access the escrowed source code pursuant to Section 11.

 

  (v)

In the event the Demo Plant does not operate to the specifications set forth in Exhibit A-1 upon completion, and Provider is either unable or unwilling to modify the Demo Plant to meet said specifications, then any IP that the Company (or its subcontractors or consultants) develops to

 

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modify the Demo Plant to meet said specifications shall be the sole and exclusive property of the Company.

 

  (vi) All Provider IP, Background IP, Joint IP and Documentation shall constitute “Confidential Information” pursuant to this Agreement.

 

  (b) Provider Employees and Subcontractors. Provider represents and warrants that each of its employees or Subcontractors who are involved in performance of the Work and/or who have access to Confidential Information of the Company shall be obligated to Provider in a manner consistent with Provider’s obligations under Section 7 and under this Section 8.

 

  (c) Company Employees and Subcontractors. Company represents and warrants that each of its employees or subcontractors who are involved in Provider’s performance of the Work and/or who have access to Confidential Information of Provider shall be obligated to the Company in a manner consistent with Company’s obligations under Section 7 and under this Section 8.

 

  (d) Review of Deliverables. The Company shall have the right to review, as set forth in Exhibit H, the progress of any Deliverables.

 

9. Assignments. Provider acknowledges that Company is relying upon the unique expertise and capability of Provider. Except as set forth specifically below in this Section 9, none of this Agreement, the Work or money due Provider hereunder shall be assigned or transferred in whole or in part by Provider, voluntarily or by operation of law, except with the prior written consent of the Company, and any attempt to do so without such written consent shall be void. Provider must demonstrate that any proposed assignee has both the financial capacity and the technical ability to perform the obligations required under this Agreement at a level deemed appropriate by Company. This provision shall not limit Provider’s right to subcontract all or any portion of the Work so long as Provider remains fully responsible for the Work hereunder. The Company and Provider shall have the right to assign this Agreement and any Work hereunder to any Affiliate or third party who acquires all or substantially all of the assets or equity of such Party, whether by sale, merger, consolidation or otherwise in such Party’s sole discretion. For the avoidance of doubt, any such permitted assignee shall be bound by all of the terms of this Agreement, including Sections 14(b) and 17(b), and such assignee and any of its Affiliates shall be further bound by Sections 14(b) and 17(b) as if they were a third party thereunder. This Agreement shall inure to the benefit of and be binding upon the Parties and their permitted assigns and successors. Any consent requested pursuant to this Section shall not be unreasonably withheld.

 

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10. Taxes.

 

  (a) Income and Other Similar Taxes. Provider shall pay all taxes imposed upon or measured by net income on any revenue derived from this Agreement. Additionally, Provider shall pay employment taxes, business licenses, permits and any other taxes based on similar requirements.

 

  (b) Sales and Other Similar Taxes. For purpose of this Agreement, sales and other similar taxes includes, but is not limited to, sales, use, gross receipts, occupational privilege, excises and value added taxes (collectively, “Tax” or “Taxes”). Company shall pay all Taxes imposed on tangible personal property transferred to the Company hereunder (whether payable by Provider or any Subcontractor or vendor to Provider) in compliance with the applicable tax statutes. The Parties to this Agreement agree to cooperate to minimize the application of Taxes that Company will pay directly or indirectly to any tax authority or reimburse to Provider as part of specified incurred expenses. Cooperation includes, but is not limited to bundling and unbundling of services and goods as part of any invoice or statement by Provider to produce the lowest net Tax cost to Company in accordance with Applicable Law. Provider hereby agrees, on behalf of itself and its Subcontractors, to modify its invoicing and reimbursement procedures, processes and presentation to accomplish this result, including separating out software development from software maintenance and to separate any tangible personal property from any service on any invoice. Provider shall also separately invoice for the reproduction costs and delivery of any hardcopy manuals to the Company for use by its employees. Company shall, except as provided in subsections (c), (d) and (e) below, pay or reimburse Provider for any present or future Taxes, excluding such Taxes on any property to which Provider retains title, relating to the Work, and any third party software, equipment or services specifically acquired by Provider with the express written consent of the Company to meet its obligations under this Agreement to which the Company retains title. The Company shall not, under any circumstances, be responsible to pay or reimburse Provider for any assessment of interest and penalties for any Taxes covered by this subsection (b) unless due to the Company’s failure to timely pay any such Taxes when due.

 

  (c) Requests for Payment. The Parties agree to reasonably and cooperatively address the treatment and consequences of mandatory withholding of taxes from any Company payment, or payment by any Affiliate, to Provider at such time withholding of taxes is required, commences or is recognized.

 

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  (d) Cooperation to Minimize Taxes. Provider and the Company mutually agree to cooperatively work to minimize any and all Taxes described in subsection (b) for which Provider will request payment or reimbursement as well as those Tax obligations the Company may incur in connection with this Agreement. This cooperation includes, but is not limited to, location of staff, method of delivery and installation of Provider and third party canned or custom software and user manuals, location of computer hardware and characterization of work product and intellectual property, invoicing structure and appearance or any other reasonable and lawful act.

 

  (e) Tax Protest Rights. Provider hereby expressly permits the Company to protest and appeal through administrative or legal processes any assessment of Tax for which Provider may seek reimbursement from the Company. Provider agrees that, if legally required or strategically advantageous to do so at the discretion of the Company, Provider will, at the Company’s expense, using either the Company’s own employees or the Company’s selected external advisors or counsel, protest either through administrative or legal process any such assessment. Provider further agrees to notify the Company as soon as practical by the most expeditious means, but in no event less than the period of time necessary to prepare and file a protest, of any assessment for Taxes for which Provider will seek payment or reimbursement. In the event Provider, at its sole discretion, does not want to protest or challenge the assessment of any Tax for which it could otherwise seek payment or reimbursement from the Company, it may pay the assessment and reimburse the Company for all increased costs associated with said assessment.

 

  (f) Document Retention. Provider and the Company agree to produce and retain such records as are necessary to document the payment of any Tax covered by this Agreement and agree to cooperate and retain such records for a period equal to the longest statute of limitations of the taxing jurisdiction for which Taxes have been collected, including any periods held open by a waiver of the statute of limitations.

 

  (g) Survival of Tax Provision. Notwithstanding any other provision of this Agreement, the obligations under this Section 10 shall survive the term of the Agreement by a period not longer than the longest statute of limitations, including any waivers therefore, barring an assessment or collection action by the applicable taxing authority.

 

  (h)

Tax Withholding. In the event that Company or any of Company’s Affiliates are required by any taxing authority to withhold tax from any payment to Provider, Company shall make such withholding

 

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from payments and provide the Provider a receipt from the taxing authority for the withheld taxes. Company will timely provide notice to Provider of any withholding tax withheld from any payment.

 

11. License. BrightSource represents that BSII does and will own and have the right to license the Background IP owned by BSII and Provider IP. BSII hereby grants to the Company and its Affiliates an irrevocable, perpetual, transferable, assignable, non-exclusive, royalty free license, with right to modify and have modified, copy, and use, the Background IP owned by BSII and Provider IP solely in connection with and only to the extent necessary for the operation, maintenance, repair, improvement, replacement (which shall include repair and replacement of equipment, materials, components and parts), restoration and expansion (expansion only in connection with the Company’s exercise of its rights under Section 8(a)(iii) hereof) of the Project (such portion, the “Project IP”, and said license, the “License”), which License includes the right to use the Project IP for training Company’s employees and subcontractors in connection therewith. BSII agrees to place source code necessary to utilize the Project IP for the purposes of the License in escrow pursuant to a mutually satisfactory escrow agreement, (which source code, if accessed, shall be included within and subject to all of the limitations of the License). Access to such escrowed materials shall be governed by the terms of said escrow agreement, which shall provide for access (1) in the event of the institution by or against Provider of insolvency, receivership, or bankruptcy proceedings (which proceedings shall not be dismissed within sixty (60) days), (2) upon any assignment for the benefit of Provider’s creditors, (3) upon Provider’s dissolution or ceasing to do business, (4) upon termination of this Agreement by the Company for cause in accordance with Section 23(b) (but only if Company intends to and does in fact complete the Project as provided under Section 23(i)(ii)(A) hereof), or (5) upon termination of this Agreement for failure to pass the Acceptance Test in accordance with Section 23(g) hereof (but only if Company intends to and does in fact complete the Project as provided under Section 23(i)(iii) hereof).

 

12. Acceptance and Performance Tests. Acceptance and performance tests with respect to the Demo Plant shall be as set forth in Exhibit F.

 

13.

O&M Agreement. Provider or its Affiliate shall provide operating and maintenance services for the Demo Plant as set forth in Exhibit A-4, the Operating and Maintenance Agreement (“O&M Agreement”). Provider acknowledges and agrees that no act or omission (including negligence and willful misconduct) of Provider or its Affiliate in performing the services pursuant to the O&M Agreement shall in any way impair any rights or claims of Company under any Warranty provided hereunder. In the event that the O&M Agreement is terminated by Company for cause prior to the successful completion of the Acceptance Test, Provider agrees to perform

 

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the operating and maintenance services under the same terms contained in the O&M Agreement. In the event that the O&M Agreement is terminated by Company for cause following successful completion of the Acceptance Test, Company may perform the operating and maintenance services (or hire a third party to perform on its behalf). So long as Company performs such services to the standards required by the O&M Agreement, the Warranties provided hereunder shall remain in effect for the periods set forth herein.

 

14. Commercial-Scale Facility.

 

  (a) For purposes of this Agreement, “Solar-To-Steam Facility” shall mean any plant or device that converts solar energy into thermal energy, including but not limited to steam or preheated water but excluding electricity and steam to produce electricity; “Enhanced Oil Recovery” shall mean any method or process employed to improve the extraction or recovery of crude oil or natural gas; and “Commercial-Scale Facility” shall mean any Solar-To-Steam Facility for Enhanced Oil Recovery larger than the Demo Plant (approximately [*] pounds of steam per year at the Design Criteria set forth in Exhibit A-1). Provider and BSE agree that for each of them and their respective Affiliates, if an agreement therefor is reached between Provider or any of its Affiliates and Company or any of its Affiliates (Company, collectively with its Affiliates, “Chevron”), Provider or its Affiliates, as the case may be, will (i) deliver to Chevron all major equipment and materials for the first Commercial-Scale Facility developed and constructed by Provider or its Affiliates, as the case may be, for Chevron (the “First Commercial-Scale Facility”) as soon as practicable, but in no event later than twenty (20) months after execution of such agreement and (ii) promptly commence providing any services desired by Chevron in connection with the First Commercial-Scale Facility after execution of an agreement between the Parties for such services as provided therein; in each case so long as the applicable agreement is executed within five (5) years after successful completion of the Acceptance Test (in accordance with Exhibit F), or if such Test is not passed, within six (6) years after the Demo Plant has passed the Startup Test. If Provider or its Affiliates, as the case may be, does not meet the prescribed timeframes, Provider or its Affiliates, as the case may be, shall discount the total cost of the First Commercial-Scale Facility in accordance with Exhibit C; provided, however that in the case of any delays in the delivery of items or equipment that are part of the Balance of Plant (as defined in Exhibit J) caused by events and circumstances outside of the direct control of Provider or its Affiliates, as the case may be, the parties shall negotiate a reasonable adjustment to the delay discount set forth in said Exhibit C.

 

* Confidential Treatment Requested

 

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  (b) Provider and BSE agree that, for each Commercial-Scale Facility developed and constructed by Provider or any of its Affiliates for itself, any of its Affiliates, or for a third party, Provider will pay to the Company an amount equal to [*] for such Commercial-Scale Facility (the “Royalty”), provided that (i) such facility is intended for an Enhanced Oil Recovery application, (ii) the order for such Facility is placed by such third party and received by Provider on or before December 31, 2018, (iii) the aggregate amounts of Royalty paid to the Company shall not exceed [*] if Chevron does not order a Commercial-Scale Facility from Provider or any of its Affiliates, (iv) the aggregate amounts of Royalty paid to the Company shall not exceed [*] if Chevron does order a Commercial-Scale Facility from Provider or its Affiliates, and (v) if Chevron has not ordered a Commercial-Scale Facility from Provider or its Affiliates prior to the time the aggregate amounts of Royalty exceed [*] for any and all third party sales made by Provider or its Affiliates, then such Royalty amounts in excess of [*] will be accrued and become payable to Chevron only if and when it orders a Commercial-Scale Facility on or before December 31, 2018.

 

  (c) Notwithstanding the foregoing, the obligations in Sections 14(a) and (b) above shall not apply to any Commercial-Scale Facility developed and constructed by an Affiliate of BSE if (i) such Affiliate is both an entity and a shareholder of BSE and (ii) such Commercial-Scale Facility does not utilize any Background IP owned by BSII, Provider IP, Joint IP, or derivations thereof; Documentation; or Confidential Information of the Company or its Affiliates.

 

15. Liability. Each Party shall be solely responsible and liable for all losses, damages and other liabilities arising out of the actions or omissions of such Party or its employees, Affiliates, agents, representatives, contractors, vendors and Subcontractors in connection with this Agreement. Except for Third Party Claims and breaches of confidentiality, in no event will either Party be liable to the other for any special, indirect or consequential damages. Notwithstanding the foregoing, the liability of Provider herein shall be limited as follows:

 

  (a) Limitations on Warranty Remedies and Make Right Obligations. Upon satisfactory completion of the Startup Test (as set forth in Exhibit F), the liability and obligation of Provider thereafter pursuant to Sections 1(b)(ii), 1(b)(v), 1(b)(vi) and 1(b)(viii) to remedy any failure referred therein, and the obligation of Provider to make repairs, alterations, and additions so the Project passes the Acceptance Test (as set forth in Exhibit F) shall be limited by the aggregate liability of Provider set forth below.

 

* Confidential Treatment Requested

 

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  (b) Limitations on Buy Down for Failure to Satisfy the Acceptance Test. The obligation of Provider to forfeit a portion of the Contract Price if the Project fails to satisfy the Acceptance Test as set forth in Section 23(g) shall be limited to an aggregate amount equal to [*] of the Contract Price.

 

  (c) Limitations on Make Right for Failure to Satisfy the Annual Production Guarantee. The obligation of Provider to make repairs, alterations, and additions so the Project satisfies the Annual Production Guarantee (as set forth in Exhibit F) shall be limited by the aggregate liability of Provider set forth below.

 

  (d) Limitations on Buy Down for Failure to Satisfy the Annual Production Guarantee. The obligation of Provider to refund a portion of the Contract Price if the Project fails to satisfy the Annual Production Guarantee shall be limited to the Liquidated Damages calculated in accordance with Exhibit F.

 

  (e)

Aggregate Limitations. The aggregate and collective liability of Provider described in subsections (a) through (d) above and Section 4 (but excluding Third Party Claims and breaches of confidentiality from this aggregate sublimit) shall not exceed an aggregate amount equal to [*] of the Contract Price (including the buy down for failure to satisfy the Acceptance Test) prior to satisfaction of the Acceptance Test, and [*] of the Contract Price (including Liquidated Damages and inclusive of all such amounts expended prior to satisfaction of the Acceptance Test) following satisfaction of the Acceptance Test. In the event that Provider’s aggregate expenditures pursuant to this Section 15 reach [*] of the Contract Price, Provider shall give Company written notice of same. If such event occurs prior to satisfaction of the Acceptance Test, Company shall promptly notify Provider whether or not it wants Provider to continue to make expenditures in its attempt to satisfy the Acceptance Test. If Company does not want Provider to continue, Provider may nevertheless continue, but any expenditures after such notification by Company shall not count toward the [*] aggregate limit set forth in this Section 15(e). For the avoidance of doubt, and by way of example, if the Company does not want Provider to continue pursuant to the preceding sentence, and (1) if the Acceptance Test is never satisfied, this Agreement shall terminate under Section 23(g), Company shall make the Milestone Payment No. 7, and Milestone Payment No. 8 shall not be made, pursuant to Section 23(h) or (2) if the Acceptance Test is satisfied, Company shall make both Milestone Payment Nos. 7 and 8, the Annual Performance Test shall be conducted pursuant to Exhibit F, no Liquidated Damages shall be

 

* Confidential Treatment Requested

 

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payable in any event, and Provider shall not have any further obligations under this Agreement with respect to matters limited by the aggregate limitations set forth in this Section 15(e).

 

  (f) Exclusive Remedy. The remedies set forth in Sections 1(b)(ii), 1(b)(v), 1(b)(vi), and 1(b)(viii) and Exhibit F, subject to the limitations set forth in this Section 15, shall constitute Company’s sole and exclusive remedies for liabilities of Provider arising from representations and warranties herein and failure to pass the Acceptance Test and to satisfy the Annual Production Guarantee.

 

16. Amendments; Waivers. This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the Parties and BSE. The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the Party entitled to enforce such term, but such waiver shall be effective only if it is in a writing signed by the Party entitled to enforce such term and against which such waiver is to be asserted. Any such waiver shall not be deemed to constitute a waiver of any other breach of the same or any other provision hereof. The right of either Party to require strict performance shall not be affected by any prior waiver or course of dealing.

 

17. Non-exclusivity/Exclusivity.

 

  (a) The Company shall not be prohibited from entering into similar contracts with other contractors.

 

  (b)

As an inducement to the Company’s execution of this Agreement and except as may otherwise be agreed in writing by Provider and the Company from time to time, each of Provider and BSE agrees that for each of them and their respective Affiliates, for a period of five (5) years after successful completion of the Acceptance Test, or if such Test is not passed, for a period of six (6) years after the Demo Plant has passed the Startup Test (the “Exclusivity Period”), neither it nor its Affiliates shall provide any technology, services or materials in connection with any Solar-To-Steam Facility intended for an Enhanced Oil Recovery application in [*] as such areas are specifically defined in the map attached as Exhibit D hereto, provided that the Exclusivity Period shall automatically terminate if Chevron has not executed an agreement with Provider or any of its Affiliates for the First Commercial-Scale Facility within thirty (36) months after successful completion of the Acceptance Test. As an inducement to Provider and BSE’s agreement to the Exclusivity Period under this Section, the Company hereby agrees that the Exclusivity Period will automatically terminate if (i) Provider or its

 

* Confidential Treatment Requested

 

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Affiliates submit a bid for a Commercial-Scale Facility for Chevron and Chevron orders such a facility from any entity other than Provider or its Affiliates on terms substantially the same as or more favorable to such entity than those contained in Provider’s or its Affiliates’ bid for such facility or (ii) Chevron does not invite Provider or its Affiliates to bid for a Commercial-Scale Facility.

 

  (c) Notwithstanding the foregoing, the exclusivity provisions in Section 17(b) shall not apply to the provision of technology, services or materials by an Affiliate of BSE if (i) such Affiliate is both an entity and a shareholder of BSE and (ii) so long as such technology, services or materials do not utilize any Background IP owned by BSII, Provider IP, Joint IP, or derivatives thereof; Documentation; or Confidential Information of the Company or its Affiliates.

 

18. Governing Law. This Agreement, and its performance and enforcement, shall be governed by the local law of the State of California, without regard to any conflicts of law principles that may require the application of the laws of any other jurisdiction.

 

19. Attorneys’ Fees. Each Party shall promptly pay to the other Party all costs and reasonable attorneys’ fees in any legal proceeding or arbitration in which the such Party or its Affiliate prevails brought against the other Party based on a breach of this Agreement; provided, however, in any arbitration commenced pursuant to Section 21(b), attorney’s fees shall be awarded in the discretion of the arbitrator.

 

20. Compliance with Laws.

 

  (a) Generally. Provider shall comply with all Applicable Laws as they may be modified from time to time, to the extent such modifications are applicable to the Work. Provider acknowledges that Company is an unincorporated division of Chevron U.S.A. Inc., a United States company, and further acknowledges that performance by Provider under this Agreement may be subject to regulations on international trade and U.S. export control laws and regulations and, in particular, the restrictions pertaining to the export and re-export to non-United States destinations. All of Company’s obligations in connection with this Agreement are subject to Applicable Laws, including, export and import controls and U.S. anti-boycott laws. Neither Company nor Provider shall be obliged to perform any obligations hereunder if and to the extent that such performance in connection therewith would be in conflict with Applicable Laws.

 

      

Import/Export. Provider is responsible for importing all property, supplies, materials or technology (hereinafter “Export/Import Items”) that it requires to perform its obligations under this Agreement,

 

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including exporting any Export/Import Item from its country of origin, manufacture or supply and, if required by law, for exporting any Export/Import Item when no longer needed to perform the Services. Provider is responsible for securing any necessary permits, licenses, authorizations and clearances for the export and import of any Export/Import Item. If any such license or other authorization is issued which, by its terms, restricts the further distribution of the Import/Export Item, Provider must provide Company with a full and complete copy of said license or authorization. Provider is responsible for paying any necessary customs or import duties or taxes, and all other proper and lawful charges related to port or customs clearances or charges on the import or export of goods, including, but not limited to, pilotage, agent fees, broker fees, handling charges and port dues. Provider represents that in the event that it imports or exports any Export/Import Item to comply with the terms of this Agreement, Provider’s price or fee for any Products or Services provided to Company under this Agreement shall not be increased as a result of any import or export by Provider. All temporary import and export bonds shall be administered by and provided at the sole cost of Provider.

 

  (b) Conflict of Interest. Neither Party shall give any director, employee or representative of the other Party any commission, fee, rebate, gift or entertainment of significant cost or value in connection with this Agreement, or enter into any other business arrangement with any director, employee or representative of the other, without prior written notification to the other Party.

 

  (c) Antibribery. Neither Party nor its employees, agents, subsidiaries or Affiliates, or their employees or agents, shall make any payment or give anything of value to any official of any government or public international organization (including any officer or employee of any government department, agency or instrumentality) to influence his or its decision, or to gain any other advantage for Company or Provider in connection with this Agreement.

 

  (d)

Data Privacy. Without limiting the generality of the foregoing, Provider shall comply with all reasonable written requests of the Company with respect to protecting personal data of the Company’s employees, customers and suppliers that Provider receives in connection with its performance of this Agreement, including but not limited to, following the Company’s instructions in connection with processing such personal data, implementing adequate security measures to protect such personal data commensurate with such measures Provider has in place to protect personal data of its own employees, customers and suppliers, not disclosing such personal data to any third party without the

 

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Company’s written permission, and complying with all applicable data privacy laws.

 

  (e) Workplace Policies. When visiting any Company sites or facilities, Provider shall, and shall cause its employees, Affiliates, agents, representatives, Subcontractors and vendors to, comply and act in accordance with Exhibit E-1 and H and all Company policies and procedures furnished to Provider prior to any such visit.

 

  (f) Permits. The Company shall be responsible for and obtain all the environmental permits required by any Environmental Law for the installation of the Project, including biological, archeological and other applicable permits. Provider shall be responsible for all licenses and building permits required for its performance of the Work.

 

  (g) Federal Compliance. To the extent applicable to this Agreement, the following clauses contained in the Code of Federal Regulations are incorporated herein by reference: 48 C.F.R. §52.203-6 (Subcontractor Sales to Government); 48 C.F.R. §52.203-7 (Anti-Kickback Procedures); 48 C.F.R. §§52.219-8 (Utilization of Small Business Concerns); 48 C.F.R. §52.219-9 (Small Business Subcontracting Plan); 48 C.F.R. §§22.804-1 and 52.222-26 and 41 C.F.R. §60-1.4 (Equal Opportunity); 48 C.F.R. §52.222-21 (Prohibition of Segregated Facilities); 48 C.F.R. §§52.222-35 and 52.222-37 and 41 C.F.R. § 60-250.4 (Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans); 48 C.F.R. §52.222-36 and 41 C.F.R. § 60-741.5 (Workers With Disabilities); 48 C.F.R. §52.223-3 (Hazardous Material Identification and Material Safety Data); 48 C.F.R. §52.223-14 (Toxic Chemical Release Reporting); 48 C.F.R. §52.225-13 (Restrictions on Certain Foreign Purchases); and 48 C.F.R. §§52.227-1 and 52.227-2 (Patent Authorization & Patent and Copyright Infringement). Provider covenants that none of its employees, or employees of its subcontractors, who provide Work to Company pursuant to this Agreement are unauthorized aliens as defined in the Immigration Reform and Control Act of 1986. Provider shall insert the substance of the foregoing provisions of this Section into all non-exempt subcontracts or purchase orders as required. “Non-exempt” subcontracts are covered “subcontracts” under Executive Order No. 11246 (30 Fed. Reg. 12319), as amended by Executive Order No. 11375 (32 Fed. Reg. 14303) and Executive Order No. 12086 (43 Fed. Reg. 46501); Section 502 of the Rehabilitation Act of 1973 (29 U.S.C. § 793); Section 402 of the Vietnam Era Veteran’s Readjustment Assistance Act of 1973, as amended (38 U.S.C. § 4212), and the regulations implementing these laws.

 

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  (h) Notification. Each Party shall immediately notify the other Party of any material violation of this Section 20 by such Party and in the case of a violation of Section 20(c), shall immediately reimburse the other Party an amount equal to the amount of the payment or the value of the gift to such an official which gives rise to such violation. Each Party shall hold the other Party harmless for all losses and expenses arising out of violations of this Section 20.

 

  (i) Provider shall not be responsible for any pre-existing Hazardous Substance condition at, in, under, or upon the Site. If any pre-existing Hazardous Substance is found at the Site, the removal and disposal thereof in compliance with all Applicable Laws shall be the responsibility of and at the cost of Company, and any reasonable additional cost or delay related thereto incurred by Provider shall be for the account of Company. Provider shall be responsible for complying with all Applicable Laws with respect to the removal and proper disposal of all Hazardous Substances brought onto or generated by Provider or by any of its subcontractors in the course of performing the Services.

 

  (j) Universal Provisions. Company represents to Provider that Section 20(g) is a standard provision, and that it, or a substantially similar provision, is required by its corporate policies to be placed in every negotiated contract that it enters into in which United States Federal laws may apply, and Company acknowledges and agrees that by its mere presence no implication is intended and no inference shall be drawn that the laws and regulations thereby incorporated by reference are applicable to the performance by Provider of its obligations hereunder.

 

21. Dispute Resolution.

 

  (a) Informal Resolution. The Parties shall attempt within forty five (45) days after the date (the “Issue Date”) an issue is presented to it in good faith to resolve any dispute, controversy or claim related to this Agreement, with the exception of a Tax dispute, but including any dispute over the breach, interpretation, or validity, but not the termination, of this Agreement.

 

  (b)

Arbitration. If the Company and Provider are unsuccessful in their good faith attempt to resolve the dispute, the dispute shall be submitted to, and settled by, binding arbitration in San Francisco, California. The Parties shall, within twenty (20) days after the formal conclusion of the mediation but not later than one hundred twenty (120) days after the Issue Date, select a mutually agreed upon single arbitrator and may utilize any format and rules for the binding arbitration upon which they may mutually agree. If the

 

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Parties are unable to so agree, the dispute shall be submitted to a single arbitrator in San Francisco, California chosen by the Parties from a list of retired judges and justices at JAMS, San Francisco, California. Should the Parties be unable to agree on a choice of arbitrator within thirty (30) days from the date of the aforesaid submission to arbitration, the contract arbitration administrator of JAMS in San Francisco, California shall furnish to each party a list of three names and each side shall strike one name, thereby nominating the remaining person as the arbitrator. If more than one name remains, the contract arbitration administrator of JAMS will choose an arbitrator from the list of remaining names. In no event is the arbitrator authorized or empowered to award punitive or consequential damages or damages in excess of actual direct damages. The arbitration award shall be in writing and shall specify the factual and legal basis for the award. Judgment upon any award rendered by the arbitrator may be entered in any court with jurisdiction. The arbitrator shall determine the allocation of the costs and expenses of arbitration based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party. For example, if the Company submits a claim for $1,000 and if the Provider contests only $500 of such amount, and if the arbitrator resolves the dispute by awarding the Company $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300 divided by 500) to the Provider and 40% (i.e., 200 divided by 500) to the Company.

 

  (c) Injunctive Relief. Notwithstanding any of the foregoing, either Party may request injunctive relief and/or equitable relief from the arbitrators or the court in order to protect the rights or property of such Party pending the resolution of the dispute as provided hereunder.

 

  (d)

Injunctive Relief Upon Breach of Confidentiality. In the event of a breach or threatened breach of the confidentiality provisions of Section 7 hereof by a Party, the other Party will suffer irreparable damages and its remedy at law will be inadequate. Therefore, if the disclosing Party threatens to breach or actually breaches such confidentiality provisions, the other Party shall be entitled, in addition to all other remedies available to it at law or in equity, to the following: (a) equitable relief, including specific performance and injunctive relief to enforce any confidentiality provision hereof and to restrain such disclosing Party from using or disclosing, in whole or in part, directly or indirectly, any Confidential Information, without having to prove that actual damages or monetary damages would not be an adequate remedy, and without having to post a bond and (b) recovery for damages, losses, and expenses of any

 

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nature (including, but not limited to, attorneys’ fees and other litigation expenses) arising out of, resulting from, or otherwise relating to such breach or threatened breach.

 

  (e) Continue to Perform and Pay During Dispute. Except as specifically set forth in Section 2(c), during the pendency of any Dispute, the Provider shall continue to perform under the terms of this Agreement and the Company shall continue to pay Provider for the Work under the terms of this Agreement without offset or withheld amounts except that the Company may withhold any specific disputed amounts the right to receipt of which under the terms of this Agreement are the subject matter of the Dispute.

 

22. Notices. Wherever under this Agreement one Party is required or permitted to give notice to the other Party, such notice shall be in writing and shall be delivered personally, sent by facsimile transmission, sent by electronic transmission (email), sent by nationally recognized express courier or sent by certified mail (return receipt requested). Any such notice shall be deemed given when actually received and shall be addressed as follows:

 

To the Company:

 

Chevron Technology Ventures, a division of Chevron

U.S.A. Inc.

Attn: Sergio Hoyos

3901 Briarpark Drive

Houston, Texas 77042

Fax No. 713 954 6368

Email: shoyos@chevron.com

With a copy to:

 

Chevron Technology Ventures, a division of Chevron

U.S.A. Inc.

Attn: Legal Department, Contract Administrator

3901 Briarpark Drive

Houston, Texas 77042

Fax No. 713 954 6368

To Provider:

 

BrightSource Construction Management, Inc.

Attn: Arieh Amit

1999 Harrison Street, Suite 2150

Oakland, CA 94612

Fax No. 510-550-8165

Email: aamit@luz2.com

With a copy to:

 

BrightSource Construction Management, Inc.

Attn: Daniel T. Judge, General Counsel

1999 Harrison Street, Suite 2150

 

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Oakland, CA 94612

Fax No. 510-550-8165

Email: djudge@brightsourceenergy.com

Either Party may change its address for notices upon giving written notice of the change to the other Party in the manner provided above.

 

23. Termination.

 

  (a) Termination Generally. Company or Provider may terminate this Agreement as set forth below. The right to terminate this Agreement is in addition to all available remedies at law or in equity or under this Agreement.

 

  (b) Termination by Company For Cause. Upon the occurrence of any Company Release Event (as defined below), the Company may terminate this Agreement immediately by providing Provider with written notice. A “Company Release Event” shall be deemed to have occurred if one or more of the following events or conditions shall have occurred and Provider has failed to cure such event or condition within thirty (30) days after receiving written notice from the Company thereof: (i) Provider is in breach of this Agreement and has failed to cure such breach within such thirty (30) day cure period, unless a longer period is permissible pursuant to this Agreement, or unless such breach cannot be remedied by the payment of money and cannot with diligence be remedied within such 30-day period and Provider has promptly commenced and continues to prosecute with diligence appropriate remedial action; (ii) Provider becomes insolvent, or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes a general assignment for the benefit of creditors; (iii) Insolvency, receivership, reorganization, or bankruptcy proceedings are commenced by or against Provider, and in the case of any such proceeding instituted against Provider (but not instituted or otherwise acquiesced to by Provider) such proceeding remains in effect and unstayed for a period of sixty (60) days; (iv) Provider makes an assignment or transfer of this Agreement or any interest herein in a manner prohibited by Section 9; (v) any material representation made by Provider herein proves to have been false or intentionally misleading in any material respect when made; or (vi) Provider has abandoned or refused to perform its obligations hereunder.

 

  (c)

Payment Upon Termination for Cause. In the event of termination by Company for cause, the Company shall pay Provider a pro rata portion of the compensation for the Work set forth herein consistent with Provider’s progress on the Project up to the date of termination

 

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(based upon a percent complete approach applied to the line items listed on Exhibit B-1 and the value thereof set forth in Exhibit B-1, reduced in each case by [*] plus any additional compensation pursuant to any written Change Orders; provided however that in no event shall Company’s payment hereunder exceed the Contract Price plus any additional compensation pursuant to any written Change Orders. Nothing in this subsection shall diminish the Company’s right to claim damages as set forth herein for breach if the termination is for cause.

 

  (d) Termination by Company for Convenience. The Company may terminate this Agreement without cause upon thirty (30) days prior written notice to Provider.

 

  (e) Payment Upon Termination for Convenience. In the event of termination by Company for convenience, the Company shall pay Provider a pro rata portion of the compensation for the Work set forth herein consistent with Provider’s progress on the Project up to the date of termination (based upon a percent complete approach applied to the line items listed on Exhibit B-1 and the value thereof set forth in Exhibit B-1 plus any additional amount pursuant to any written Change Orders (it being understood that the result could be a payment in excess of the Contract Price), plus any actual costs directly attributable to, and reasonably incurred in terminating, the Work, including cancellation charges owed to third parties, de-mobilization costs, and the difference between purchase cost and salvage value on materials and equipment that have been received or for which the orders therefor cannot be cancelled, unless the Company chooses to purchase such materials and equipment, in which case such items shall be paid for as described above for work in progress. Notwithstanding the foregoing Section 23(e), in the event that Company’s termination for convenience (1) is due to catastrophic damage to Company’s oil production facility in Coalinga, CA prior to successful completion of the Startup Test, the percent complete approach shall be applied to the line items listed on Exhibit B-1 and the value thereof set forth in Exhibit B-1, reduced in each case by [*] plus any additional amount pursuant to any written Change Orders, or (2) occurs following successful completion of the Startup Test, Company shall pay Provider the full amount of any unpaid Contract Price, plus any amount payable pursuant to any written Change Orders, in lieu of the amounts otherwise due under the preceding sentence.

 

  (f)

Refund of Overpayment. In the event that this Agreement is terminated by Company for cause or convenience and after the

 

* Confidential Treatment Requested

 

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determination of the amount owed to Provider under subsection (c) or (e), as the case may be, Provider has been paid more than what is owed to it under such subsection, Provider shall refund to Company the amount of such overpayment for the Work in progress.

 

  (g) Termination for Failure to Satisfy Acceptance Test. This Agreement shall terminate immediately in the event that the Project fails to satisfy the Acceptance Test within the allowable time period (as set forth in Exhibit F). For the avoidance of doubt, a failure of the Project to satisfy the Acceptance Test shall not be considered a breach of the Agreement.

 

  (h) Payment Upon Termination for Failure to Satisfy Acceptance Test. In the event of termination for failure to satisfy the Acceptance Test, Company shall pay Provider the outstanding balance of the Contract Price due and owing plus any additional compensation pursuant to any written Change Orders, less the final milestone payment of [*].

 

  (i) Effect of Termination.

 

  (i) In the event this Agreement is terminated by Company for any reason pursuant to the terms hereof, or pursuant to Section 23(g) above, Provider shall, subject to Company’s obligation to pay therefor as described in subsections (c), (e) or (h) immediately above, immediately deliver all applicable portions of the Work, including all Documentation, to the Company and do all things necessary to ensure the efficient, proper close-out of the terminated Work. In the event that a refund is owed Company pursuant to subsection (f) immediately above, Provider shall pay Company the amount owing within thirty (30) days of the determination of the amount to be refunded, which determination shall not be more than sixty (60) days after notice of termination.

 

  (ii)

In the event this Agreement is terminated by Company for cause: (A) Company shall have the right to have the terminated Work completed; (B) upon such termination, Provider shall be entitled to receive payments of the Contract Price for work in progress as set forth in subsection (c) above; (C) Provider shall be liable to Company for all reasonable costs and expenses in excess of the Contract Price incurred by Company (taking into account amounts paid to Provider hereunder) in completing the Work or having the Work completed; (D) Company may in its sole discretion engage third parties to finish the Work or

 

* Confidential Treatment Requested

 

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dismantle the Project by whatever method or means as Company may reasonably deem expeditious.

 

  (iii) In the event this Agreement is terminated pursuant to Section 23(g) above, Company shall have the right to have the terminated Work completed at its own expense and may in its sole discretion engage third parties to finish the Work.

 

  (j) Termination by Provider. Upon the occurrence of any Provider Release Event (as defined below), Provider may terminate this Agreement immediately by providing Company with written notice. A “Provider Release Event” shall be deemed to have occurred if one or more of the following events or conditions shall have occurred and Company has failed to cure such event or condition within thirty (30) days after receiving written notice from the Provider thereof: (i) Company is in breach of this Agreement and has failed to cure such breach within such thirty (30) day period, unless a longer period is permissible pursuant to this Agreement, or unless such breach cannot be remedied by the payment of money and cannot with diligence be remedied within such 30-day period and Company has promptly commenced and continues to prosecute with diligence appropriate remedial action; (ii) Company becomes insolvent, or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes a general assignment for the benefit of creditors; or (iii) Insolvency, receivership, reorganization, or bankruptcy proceedings are commenced by or against Company, and in the case of any such proceeding instituted against Company (but not instituted or otherwise acquiesced to by Company) such proceeding remains in effect and unstayed for a period of sixty (60) days.

 

  (k) Payment Upon Termination by Provider. In the event of termination by Provider, the Company shall pay Provider as described in subsection (e) above for termination by Company for convenience. Nothing in this subsection shall diminish the Provider’s right to claim damages as set forth herein for breach.

 

  (l)

Survival of Obligations. Termination or expiration of this Contract (i) shall not relieve either Party of its obligations with respect to Confidential Information disclosed by the other Party; (ii) shall not relieve either Party of any obligations hereunder which expressly or by implication survive termination hereof; (iii) except as otherwise provided in any provision of this Agreement expressly limiting the liability of either Party (which provisions shall survive the termination of this Contract); shall not relieve either Company or Provider of any obligations or liabilities for losses incurred by the other Party (or an Indemnified Party) arising out of or caused by

 

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acts or omissions of Company or Provider, as the case may be, prior to the effectiveness of such termination or arising out of such termination; (iv) if the termination is by Company for cause, shall not relieve Provider of its obligations relating to performance and completion of the Work, warranty obligations or other obligations assumed by Provider prior to the date of termination under this Agreement; and (v) for the avoidance of doubt, if the termination is by Company for convenience, the obligations of Provider and BSE in Exhibit F and in Sections 1(b), 13, 14, and 17(b) shall terminate; if the termination is by Company for cause or for failure to pass the Acceptance Test as set forth in Section 23(g), the obligations of Provider under Sections 13 and 14(a) shall terminate and the obligations of Provider and BSE in Sections 14(b) and 17 shall continue for the periods set forth in those Sections with the applicable time periods commencing upon termination. This Section 23 shall survive the termination or expiration of this Agreement.

 

24. Suspension of Work.

 

  (a) Suspension. The Company may, at any time and for any reason, suspend the Work to be performed by Provider, in whole or in part, by serving written notice to Provider (the “Suspension Notice”). Provider agrees to cease the Work to be performed as detailed in the Suspension Notice not later than 24 hours after its receipt of the Suspension Notice or at such later time as specified therein, subject to any additional time and effort necessary to secure and protect the Site and the materials and equipment thereon and to take delivery of items of materials and equipment previously scheduled to be delivered at the Site during the period of suspension. When the Company desires Provider to resume the Work, it shall so inform Provider by written notice. Provider shall resume the Work within 24 hours or as soon thereafter as reasonably possible. Notwithstanding the foregoing, the Company may also suspend the Work in whole or in part pursuant to and in accordance with Section 17.1 of Exhibit E - Health, Safety and Environmental Guidelines and Drug, Alcohol, and Search Policy or Item K and Appendix A of Exhibit E-1. Any Work so suspended shall be governed by and managed in accordance with such Section, the Project Safety Management Plan in Exhibit E-1, and/or the detailed Site Safety Plan to be developed after execution of this Agreement by the Parties.

 

  (b)

Adjustments. In the event of suspension hereunder, the Parties shall mutually agree to the period by which the Milestone Schedule shall be adjusted. Provider shall promptly advise the Company in writing of any costs involved and the Company shall promptly

 

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reimburse Provider for the actual, reasonable, unavoidable and verifiable costs of suspending the Work and of demobilizing and mobilizing personnel and equipment. Notwithstanding the foregoing, if the Work is suspended pursuant to a stop work notice provided pursuant to Exhibit E or E-1, any delay and additional costs shall be for the account of Provider, unless both (i) the stop work notice was provided by the Company or an Affiliate, employee, agent, advisor or representative of the Company and (ii) the work environment was in objective fact (which fact may be established after the stop work notice is given) not imminently hazardous to persons, property, or the environment, in which case any such delay or cost shall be for the account of the Company.

 

25. Force Majeure. Neither Party shall be considered to be in default in the performance of any obligation under this Agreement when a failure of performance shall be due to an event of Force Majeure. For the purposes of this Agreement, “Force Majeure” shall mean any cause beyond the control of the affected Party which has an adverse effect on that Party’s ability to perform its obligations and which by the exercise of due diligence such Party could not reasonably have been expected to avoid. Neither Party shall be relieved of its obligation to perform if such failure is due to causes arising out of its own negligence or fault or the negligence or fault of its agents, employees, suppliers or subcontractors, or due to removable or remediable causes which it fails to remove or remedy within a reasonable amount of time. If any event of Force Majeure occurs or is anticipated, the affected Party shall promptly notify the other Party of such event, and the cause and estimated duration of any delay due to such event. The Party whose ability to perform hereunder is affected by Force Majeure shall exercise due diligence to shorten, avoid and mitigate the effects of any such delay by promptly taking appropriate corrective action and shall keep the other Party advised as to the affected Party’s efforts and its estimate of the continuance of the delay. In no event shall either Party be entitled to any damages, or to any adjustment to the compensation payable hereunder, because of any delay due to Force Majeure. Events of Force Majeure may include (to the extent meeting the requirements of this Section 25): orders of government agencies; war, riots, terrorism and civil insurrection; and fires, floods, earthquakes, severe weather events outside of the range of weather conditions reasonably to be expected at the Site at the time such weather event occurs, and loss of public utilities beyond the control of either Party. Force Majeure shall not include (1) a Party’s financial inability to perform under this Agreement, (2) failure or nonperformance by a Subcontractor, unless the Party claiming Force Majeure can point to an identifiable event of Force Majeure that caused such failure or nonperformance, and (3) other events that are foreseeable and would in the normal course of prudent construction practices by experienced firms familiar with the locality of the Site be protected against in order to prevent or avoid such event.

 

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26. Definitions. All defined terms shall have the meanings ascribed to them herein, including Exhibit J Definitions.

 

27. Entire Agreement. Except as set forth in the last sentence of this Section, this Agreement, including its Exhibits, supersedes all prior and contemporaneous agreements and understandings between the Parties, both oral and written, with respect to its subject matter and constitutes the complete agreement and understanding between the Parties, unless modified in writing and signed by both Parties. The Company and Provider entered into the LOA concerning the Project pursuant to which Provider provided and the Company paid for certain engineering services as set forth therein. Upon the execution hereof, the LOA shall be deemed terminated and superseded, and all services provided thereunder and payments therefor shall be deemed provided pursuant to this Agreement. This Agreement does not supersede the Confidentiality Agreement entered into by the Parties dated August 16, 2006, as amended by an Amendment No. 1 (One) executed in September, 2007, which Confidentiality Agreement continues in full force and effect; provided, however, that the terms of this Agreement shall govern all disclosures of Confidential Information with respect to the Project, whether made prior to or after the execution hereof.

 

28. Exhibits. The following Exhibits, including any exhibits or documents referenced therein, are incorporated herein for all purposes.

 

Exhibit A

   Scope of Work

Exhibit B

   Schedule of Milestone Payments

Exhibit C

   Discount Schedule

Exhibit D

   Areas of Exclusivity

Exhibit E

   Health, Environmental and Safety Guidelines

Exhibit F

   Acceptance and Performance Tests

Exhibit G

   IP Escrow Agreement

Exhibit H

   Procedures Manual

Exhibit I

   Forms of Lien Waivers

Exhibit J

   Definitions

 

29.

Construction. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. As used herein, unless otherwise provided to the contrary, (a) all references to days, months or quarters

 

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shall be deemed references to calendar days, months or quarters, and (b) any reference to a “Section” or “Exhibit” shall be deemed to refer to a section of or an exhibit to this Agreement. Unless the context otherwise requires, as used in this Agreement, all terms used in the singular shall be deemed to refer to the plural as well, and vice versa. The words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” References in this Agreement to “$” shall be deemed a reference to United States dollars unless otherwise specified.

 

30. Contract Documents / Discrepancies. The Parties intend to provide for all items necessary for the proper execution and completion of the Work. Without limiting the duty of Provider and Company to fully review the Contract Documents, in the event of a conflict or discrepancy among the various Contract Documents, the documents shall be given precedence in the following order (in descending order of precedence, with each document at the same subsection level with equal precedence):

 

  (i) This Agreement, and any amendments thereto, excluding all Exhibits;

 

  (ii) Exhibits A-1, A-4, A-5, B, B-1, C, D, F, F-1, G, H, and J;

 

  (iii) Exhibits A-2, A-3, E, and E-1;

 

  (iv) All remaining Exhibits to the Agreement;

 

  (v) Specifications; and

 

  (vi) Drawings - (large-scale Drawings over small-scale).

If either Party discovers any errors, discrepancies, ambiguities, or omissions at any time in the Contract Documents, such Party shall notify the other Party in writing promptly, and in any event before beginning the Work involved.

 

31. Severability. If any term, condition or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms, conditions and provisions hereof or the whole of this Agreement, but such term, condition or provision will be deemed modified to the extent necessary to render such term, condition or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the Parties’ intent and agreements set forth herein.

 

32.

Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement binding on the Parties,

 

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notwithstanding that both Parties are not signatories to the same counterpart.

 

33. Contractor’s Notice. Provider is licensed as a Contractor under the laws of the State of California, License No. 915607. Contractors are required by law to be licensed and regulated by the Contractor’s State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within 10 years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 2600, Sacramento, CA 95826.

 

34. BSE Parent Guaranty. BSE hereby guarantees to the Company the prompt performance of all of the obligations of Provider and BSII under this Agreement. In the event of a breach by Provider or BSII of their respective obligations hereunder and its or their failure to cure such breach in accordance herewith, BSE hereby agrees to assume and perform all of the obligations of Provider or BSII, as the case may be, hereunder as a principal, subject to all of the rights and defenses of Provider or BSII, as the case may be, hereunder (save and except for any defense associated with the insolvency, receivership, reorganization or bankruptcy of Provider or BSII, as the case may be, and any proceeding related thereto) and the performance by Company of its obligations hereunder. The Company may proceed directly against BSE to enforce its rights under such guaranty without proceeding against or joining Provider or BSII, as the case may be. BSE has all requisite power and authority to enter into such guaranty and to perform its obligations in connection therewith.

 

35. Chevron Technology Ventures Status. Chevron Technology Ventures (“CTV”) is an unincorporated division of Chevron U.S.A. Inc., a Pennsylvania corporation. CTV is authorized and empowered pursuant to the Amended and Restated Articles of Incorporation and Bylaws of Chevron U.S.A. Inc. and resolutions duly adopted by the Board of Directors of Chevron U.S.A. Inc., acting through any officer of CTV, to execute for and on behalf of Chevron U.S.A. Inc. papers requiring execution in the name of Chevron U.S.A. Inc. in connection with this Agreement. By execution of this Agreement as set forth below, CTV is doing so pursuant to its authority to execute agreements on behalf of Chevron U.S.A. Inc. with the purpose and effect that this Agreement is a direct agreement by and between Chevron U.S.A. Inc. and Provider and this Agreement is enforceable directly against Chevron U.S.A. Inc. in accordance with its terms, including Sections 21 and 22 hereof. Except for this Section 35, each reference herein to the Company includes Chevron U.S.A. Inc. as part of that reference.

 

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36. BSII Status. BSII, an Israeli corporation, is a wholly-owned subsidiary of BSE. Provider is also a wholly-owned subsidiary of BSE. BSII is a signatory to this Agreement for the limited purpose of agreeing to Sections 8 and 11 hereof because it owns and will own all of the rights to Background IP, Provider IP, patents and Joint IP owned or that will be owned by BrightSource. Notwithstanding that BSII is such a signatory, and for the avoidance of doubt, Provider, BSE, BSII, and Company each acknowledge and agree that the License and the rights and obligations of BSII and the Company related thereto are governed by the generally applicable provisions of the Agreement, including Sections 16, 18, 19, 21, 22, 29, and 30, and Provider has complete authority with respect to the interpretation, modification, waiver, and enforcement of the License and such BSII rights and obligations. Provider may proceed directly against Company to enforce BSII’s rights under this Agreement without joining BSII. Company may proceed directly against either BSII or Provider to enforce Company’s rights against BSII under this Agreement without joining Provider or BSII, respectively.

[Signature page follows.]

 

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written:

 

Chevron Technology Ventures,

a division of Chevron U.S.A. Inc.

  BrightSource Construction
Management, Inc.
By:  

/s/ Dana Flanders

    By:  

/s/ Israel Kroizer

  Name:   Dana Flanders       Name:   Israel Kroizer
  Title:   President       Title:   President

By signing below, BrightSource Energy, Inc. agrees to with Sections 7(b), 11, 14, 17(b), 34 and 36 hereof.

 

BrightSource Energy, Inc.
By:   /s/ John Woolard
Name:   John Woolard
Title:   President

By signing below, BrightSource Industries (Israel) Ltd. agrees to Sections 8, 11 and 36 hereof.

 

BrightSource Industries (Israel) Ltd.
By:   /s/ Israel Kroizer
Name:   Israel Kroizer
Title:   President

 

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LIST OF EXHIBITS

 

Exhibit A

  Scope of Work

Exhibit A-1

  Design Criteria

Exhibit A-2

  Engineering Scope of Work

Exhibit A-3

  Procurement and Construction Scope of Work

Exhibit A-4

  O&M Agreement

Exhibit A-5

  Milestone Schedule

Exhibit A-6

  Major Equipment - Purchase Agreement Release List

Exhibit B

  Schedule of Milestone Payments

Exhibit B-1

  Schedule of Values

Exhibit C

  Discount Schedule

Exhibit D

  Areas of Exclusivity

Exhibit E

  Independent Contractor Health, Environmental and Safety Guidelines

Exhibit E-1

  Project Safety Management Plan

Exhibit F

  Acceptance and Performance Tests

Exhibit F-1

  Performance Model User Manual

Exhibit F-2

  Performance Model

Exhibit G

  IP Escrow Agreement

Exhibit H

  Procedures Manual

Exhibit I

  Forms of Lien Waivers

Exhibit J

  Definitions

 

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EXHIBIT A

SCOPE OF WORK

A-1. Design Criteria

A-2. Engineering Scope of Work

A-3. Procurement and Construction Scope of Work

A-4. O&M Agreement

A-5. Milestone Schedule

A-6. Major Equipment – Purchase Agreement Release List

 

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EXHIBIT A-1

DESIGN CRITERIA

The Design Criteria is defined as:

 

[*]

   [*]      [*]   

[*]

     

[*]

     

[*]

   [*]      [*]   

[*]

   [*]      [*]   

 

[*]

     

[*]

   [*]      [*]   

[*]

   [*]      [*]   

[*]

   [*]      [*]   

[*]

   [*]      [*]   
     

[*]

   [*]      [*]   
     

[*]

 

* Confidential Treatment Requested

 

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EXHIBIT A-2

ENGINEERING SCOPE OF WORK

Attached.

 


EXHIBIT A-2

ENGINEERING SCOPE OF WORK

Attached hereto is the Engineering Scope of Work applicable, as amended as set forth below, to the Scope of Work under the Master Services Agreement dated as of December 17, 2008 by and between Chevron Technology Ventures, a division of Chevron U.S.A. Inc. and BrightSource Construction Management, Inc.

The attached document is hereby amended as set forth below for all purposes under said Agreement. Each such amendment is hereby made because the topic is covered elsewhere in the Contract Documents or is otherwise inapplicable to the Scope of Work.

 

Page(s) Number

  

Section(s) Number

  

Action

13    D    Delete
13    E    Delete


LOGO

Chevron Solar-to-Steam Demo Project

Engineering Scope of Work & Payment Schedule

December 10, 2007

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007
LOGO   

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       1   of   13   Rev   5


Table of Contents

 

A.    Scope of Engineering Services      3   
   Project Description      3   
   Planning and Layout Activities      3   
   Design Activities      4   
   Project Management Activities      6   
B.    Design Review Agenda      7   
C.    Deliverables      11   
D.    Design & Engineering Schedule      13   
E.    Payment Schedule      13   

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       2   of   13   Rev   5


  A. Scope of Engineering Services

 

   

Project Description

Provide all of the design and detailed engineering necessary for Chevron’s Solar-to-Steam Demonstration Plant (for description see APPENDIX I: “Coalinga Solar Demo Plant: Technical description and Design specification”). This project is being developed by Chevron to evaluate the technical, operational, and economic feasibility of using solar energy to produce steam to complement the enhanced oil recovery (EOR) operations of Chevron’s San Joaquin Valley Business Unit.

 

   

Planning and Layout Activities

 

  1. Prepare health, environment, and safety (HES) process for the project.

 

  2. Prepare “design for safety” procedures.

 

  3. Examine the project site existing conditions and coordinate with Chevron site studies as required for the design works, including surveying, topography, geotechnical studies, hydrology, rainfall data, and any other required studies.

 

  4. Execute the required studies, including conducting site topography survey, geotechnical investigation, distance to nearby Earthquake fault, and items identified from above.

 

  5. Obtain requirements from local authorities pertaining to the planning and layout requirements imposed by them, e.g. set back, parking space.

 

  6. Obtain and study Chevron’s actual installation and together with feedback of the above prepare a Basic Project Layout Plan.

 

  7. Prepare a Tie-In plan for connection to existing Chevron installations (feed water, steam, power, raw water, etc.).

 

  8. Develop Tower and Building Sketch Plan for the buildings (control room and MCC) required for the Project.

 

  9. Inquire and confirm detailed submission procedure and requirements by the relevant authorities for the statutory approval prior to commencement of work, upon project completion and before commencement of operation.

 

  10. Prepare all documents required to submit building permit applications, including all required Federal Aviation Administration permits or notices.

 

  11. Work with Chevron in order to prepare the design criteria and parameters based on Chevron specifications.

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007
LOGO   

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       3   of   13   Rev   5


   

Design Activities

 

  1. General (Scope Defining Documentation)

 

  a. Process Flow Diagram (PFD) showing nominal design rates and maximum instantaneous rates, fluid properties, process parameters for all flow streams, and equipment ratings. Material/energy balance (Process detail design).

 

  b. Utility demands (water, electricity, etc.)

 

  c. Site Plan

 

  i. Layout of entire site, including operation and maintenance facilities

 

  ii. Equipment location plan

 

  d. Process & Instrumentation Diagrams

 

  e. One-line diagrams

 

  f. Control System Architecture

 

  2. BSE health, environment, and safety (HES) plans, including safety in design, Process Hazard Analysis / Hazop, Job-Safety Analysis, Lightning protection plan, and Fire protection plan.

 

  3. Prepare Design Drawings for civil works including site preparation (clearing and grubbing, minimal cut and fill, compaction), storm drainage, roads, pavement, drainage, sewers and water supply and distribution, gate and fencing, finish grading and ground surface treatments.

 

  4. Piping and piping support design up to connections to all delivery/tie-in points.

 

  5. Prepare Specifications and Design Drawings for the architectural design of the Control Room and Maintenance buildings for the project.

 

  6. Prepare structural design drawings for Solar Tower.

 

  7. Perform structural analysis for solar tower under operating and severe load conditions, specifically combined with wind load and earthquake load and demonstrate their conforming to performance criteria.

 

  8. Foundations plan and details for Solar Tower, buildings, facilities, equipment pads, Heliostats, pumps, steam generator, and all other equipment, piping support, and components that require foundations.

 

  9. Provide all vendor specifications, design drawings, and technical evaluations including heliostat fabrication plan and site location.

 

  10. Prepare Civil Structural Specifications or Design Criteria, including at a minimum the following:

 

  a. Civil Structural Design Criteria

 

  b. Performance criteria for Solar Tower and Heliostat Structures

 

  c. Specification for Pre-engineered Metal Building (if applicable upon evaluation)

 

  d. Specification for Cast-in Place Concrete and Reinforcing Steel

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       4   of   13   Rev   5


  e. Specification for Structural Steel Material and Fabrication

 

  11. Electrical & Control

 

  a. Electrical design, including power feeder from Chevron connection, transformation as required, Motor Control Center (MCC), motors’ power supply cables, power supply cables to PDUs, grounding, equipment lightning protection, and lighting

 

  b. Instrumentation and control (l&C) design, including control wiring, local instrumentation, control room, software design

 

  12. Process detailed design, including:

 

  a. Specification Index

 

  b. Design Basis

 

  c. Civil-Structural

 

  d. Equipment – List, specifications, and datasheets

 

  e. Piping – List and specifications

 

  f. Welding – Procedures and qualifications

 

  g. Valves – List and specifications

 

  h. Components – List and specifications

 

  i. Motors – List and specifications

 

  j. Electrical

 

  k. Instruments – List, specifications, and datasheets

 

  I. Finish – Painting and protective coatings

 

  m. Packaged Systems

 

  n. Operation System Description, including process control and logic

 

  o. System Check-out Procedure

 

  13. Procurement, Fabrication & Construction

 

  a. Bills of quantities

 

  b. Procurement plan (including shipping, tracking, receiving)

 

  c. QA/QC Plans for procurement, fabrication, and construction

 

  d. Equipment Bid Packages

 

  e. Contractor Bid Packages

 

  f. Site Logistic Plan, including site Project Management (PM) / Construction Management (CM) offices, contractors’ area, welfare area, lay-down areas, sanitary utilities, material staging areas

 

  g. Commissioning and Start-up Plan

 

  h. Detailed Safety Plan

 

  i. Constructability validation

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       5   of   13   Rev   5


  14. Operations and Maintenance outline, including estimated costs, water and utilities usage requirements, staffing requirements, training program plans, manuals and all plant documentation, and spare part requirements.

 

   

Project Management Activities

 

  1. Project execution procedures/implementation plans:

 

  a. HES management plan

 

  b. Document Control plan

 

  c. Communication plan

 

  d. Project schedule and plan based on Critical Path Method (CPM)

 

  e. Permits plan

 

  f. Construction Sequencing plan

 

  g. Logistics plan

 

  h. Commissioning and Start-up plan

 

  i. Close-out plan

 

  j. Turnover Plan

 

  k. Procurement plan

 

  l. Quality Management plan

 

  m. Training plan

 

  2. Scope verification, tracking and control

 

  3. Change order tracking and control

 

  4. Cost tracking and control

 

  5. Meeting management

 

  6. Documentation Control

 

  7. Design quality control

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       6   of   13   Rev   5


  B. Design Review Agenda

 

   

First Project Design Phase – Basic Design (30%):

 

  1. Project execution plans, for comments

 

  2. Design specifications of the following major system components

 

  a. Steam generator/heat exchanger

 

  b. Solar receiver

 

  c. Feedwater pumps and tank(s)

 

  d. Heliostats

 

  e. Control system architecture

 

  f. Reverse osmosis system

 

  g. Condenser

 

  h. Cooling tower

 

  i. Emergency generator

 

  j. Compressed air system

 

  3. Utilities capacity summary including plan for back-up power generation

 

  4. P&ID’s showing all equipment quantities, in-line instrumentation, mechanical indicating devices, line size and type designations, including P&ID legend drawing

 

  5. Electrical one-line diagrams

 

  6. First revision of each system Master Design Specs (MDS) and Construction Specifications for the project. Does not include data sheets or other appendices.

 

  7. Equipment type and size have been selected.

 

  8. Solar Tower conceptual design (general arrangement diagram)

 

  9. Master Site Plot Plan

 

  10. Major structural members have been determined. Concrete and steel systems have been selected.

 

  11. Code analysis to determine basis of design and to identify alternate materials and methods.

 

  12. Define long lead Items for purchasing.

 

  13. Control systems architecture and block diagrams

 

  14. Preliminary Issue of Civil Structural Specifications and Criteria including:

 

  a. Civil Structural Design Criteria

 

  b. Civil Specifications

 

  c. Performance criteria for Solar Tower and Heliostat Structures

 

  d. Specification for Pre-engineered Metal Building (if applicable upon evaluation)

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       7   of   13   Rev   5


  e. Specification for Cast-in Place Concrete and Reinforcing Steel

 

  f. Specification for Structural Steel Material and Fabrication

 

  15. BSE health, environment, and safety plans, including safety in design, Process Hazard Analysis/Hazop, Job Safety Analysis, Lightning protection plan, and Fire protection plan

 

  16. Preliminary Operations and Maintenance outline, including estimated costs, water and utilities usage requirements, staffing requirements, training program plan, and preliminary spare part requirements (submitted two weeks after 30% review)

 

   

Second Project Design Phase – Detailed Design (60%)

 

  1. Updated project execution plans for approval

 

  2. All documents included in previous review, including all 30% review comments

 

  3. Updated design specifications of the following major system components

 

  a. Steam generator/heat exchanger

 

  b. Solar receiver

 

  c. Feedwater pumps and tank(s)

 

  d. Heliostats

 

  e. Control system architecture

 

  f. Reverse osmosis system

 

  g. Condenser

 

  h. Cooling tower

 

  i. Emergency generator

 

  j. Compressed air system

 

  4. P&ID’s showing instrumentation with numbering and interface to DCS, for comments

 

  5. Miscellaneous components and Construction Specifications

 

  6. Vendors’ proposals for equipment and components, including technical bid evaluation

 

  7. Detailed civil, structural, architectural (including control room), piping, and facilities design drawings and calculations (process, structural, etc.), for comments

 

  8. Preliminary instrument wiring and loop diagrams

 

  9. Preliminary instrument installation details

 

  10. Preliminary PLC and Lighting Control Panel (LCP) cabinet layouts

 

  11. Preliminary PLC I/O rack wiring and wiring termination diagrams

 

  12. PLC communication plan/routing drawings

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       8   of   13   Rev   5


  13. Preliminary Motor Control Center (MCC)/UPS layouts and interconnection diagrams

 

  14. Preliminary Motor Control Schematics

 

  15. Cable and conduit/cable tray routing

 

  16. Equipment lightning protection & grounding plan

 

  17. Solar Tower design drawings for comment

 

  a. General arrangement drawings

 

  b. Civil-Structural Foundation Plan

 

  c. Structural engineering drawing and specifications

 

  18. Piping plan drawings

 

  a. Piping layout

 

  b. Bill of quantities

 

  c. Piping support plan and calculations

 

  d. Piping stress analysis

 

  19. Control System

 

  a. Equipment control descriptions/Sequences of operation, for comments

 

  b. Control philosophy and narrative

 

  c. PLC code and System Integration programming requirements

 

  d. Human-Machine Interface (HMI) and Data Historian requirements

 

  20. Bills of quantities (Mechanical/Pipe/Valves/Fittings/Eiectrical)

 

  21. Construction work packages, for comments

 

  22. Updated BSE health, environment, and safety plans, including safety in design, Process Hazard Analysis / Hazop, Job-Safety Analysis, Lightning protection plan, and Fire protection plan

 

  23. Operations and Maintenance outline, including estimated costs, water and utilities usage requirements, staffing requirements, training program plan, and spare part requirements

 

   

Deliver FEED documentation to Chevron after Second Phase Design Review

 

   

Third Project Design Phase (90%):

Note: at this stage the construction drawings may still include “hold” areas for final decisions

 

  1. All documents included in previous review, including all 60% review comments

 

  2. Updated project execution plans for approval

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
   Ph: +972 (0)77-202-5000      
   Fax: +972 (0)2 571-1059   

Sheet

       9   of   13   Rev   5


  3. Complete detailed design drawings for last comments and approval

 

  4. Code analysis and application for alternate materials and methods are complete.

 

  5. Coordinated interdisciplinary review

 

  6. Final Data Sheets and equipment outline drawings

 

  7. Detailed design drawings and specifications, for approval

 

  8. Up-dated Bills of Quantities (Mechanical/Pipe/Valves/Fittings/Electrical)

 

  9. Final Construction Scope Of Work

 

  10. Design for Tie-In to existing Chevron utilities, for approval

 

  11. Final health, environment, and safety plans

 

  12. All civil/structural design to be performed (or checked) and stamped by a Registered Professional Engineer in the State of California

 

  13. Cable and conduit termination schedule

 

  14. Lighting panel schedule

 

  15. Instrument Data sheets

 

  16. Control System algorithms

 

   

Completion of Engineering with Design hand-over to Construction Manager

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
  

Ph: +972 (0)77-202-5000

     
   Fax: +972 (0)2 571-1059   

Sheet

       10   of   13  

Rev

  5


  C. Deliverables

 

Level of completeness, design Review Meeting   

Applicable

(Y,N)

30%

    

Applicable

(Y,N)

60%

    

Applicable

(Y,N)

FEED

    

Applicable

(Y,N)

90%

    

Applicable

(Y,N)

IFC

 

PROJECT MANAGEMENT

                                            

Project execution plans

     Y         Y                              

Health, environment, and safety plans

     Y         Y         Y         Y         Y   

Operations, maintenance, and training plans

     Y         Y         Y         Y         Y   

Cost and schedule plans

     Y         Y         Y         Y         Y   

PROCESS

                                            

Process description

     Y         Y         Y         Y         Y   

Update of Process Flow Diagrams (PFDs)

     Y         Y         Y         Y         Y   

Process and Instrumentation Diagrams (P&IDs) (main equipment, main lines, instrumentation, major control loops, etc.)

     Y         Y         Y         Y         Y   

Sequence of Operations.

     N         N         Y         Y         Y   

Equipment layout (site plan)

     Y         Y         Y         Y         Y   

Equipment list

     Y         Y         Y         Y         Y   

Lines list

     N         Y         Y         Y         Y   

Instrumentation list

     N         Y         Y         Y         Y   

Motors list

     N         Y         Y         Y         Y   

Special Items list

     N         Y         Y         Y         Y   

Process equipment specifications and data sheets

     N         Y         Y         Y         Y   

BOQ – Execution Specification

     N         Y         N         Y         Y   

PIPING & MECHANICAL

                                            

Equipment proposals

     N         Y         Y         —           —     

Equipment detail design

     N         N         N         Y         Y   

Piping layout, levels and cross section of all utilities

     N         Y         N         Y         Y   

Piping supports details for all equipment and piping

     N         N         N         Y         Y   

Piping detail design including stress analysis.

     N         Y         N         Y         Y   

BOQ – Execution Specifications

     N         N                  Y         Y   

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
  

Ph: +972 (0)77-202-5000

     
   Fax: +972 (0)2 571-1059   

Sheet

       11   of   13  

Rev

  5


Deliverables, Continued

 

CIVIL / STRUCTURAL

                                            

Solar Tower Civil/ Structural Design

     Y         Y         Y         Y         Y   

Foundations plans and details as defined in Design Activities

     N         Y         N         Y         Y   

Structural and miscellaneous steel construction detailed drawings for all plant buildings and facilities

     N         Y         N         Y         Y   

Civil Structural Design Criteria and all Specifications as defined in Design Activities

     Y         Y         Y         Y         Y   

Architectural design drawings for all plant buildings and facilities as applicable

     N         Y         Y         Y         Y   

Solar Tower and Heliostat Structure functional performance criteria and structural analysis report

     N         N         N         Y         N   

Details civil site developments, road, payment, drainage, sewers, water supply, gate and fencing, final surface treatment design drawings

     N         Y         Y         Y         Y   

BOQ – Execution Specification

     N         N         N         Y         Y   

ELECTRICAL

                                            

1-Line diagram

     Y         Y         Y         Y         Y   

Equipment Power Supply

     N         Y         N         Y         Y   

Cabinets layout design in electrical room and open area

     N         Y         N         Y         Y   

Design of UPS/Emergency systems

     N         Y         N         Y         Y   

Design of lighting power and grounding.

     N         Y         N         Y         Y   

Issue of Specifications and B.O.Q

     N         Y         N         Y         Y   

Cables schedule

     N         N         N         Y         Y   

Motors schedule

     N         N         N         Y         Y   

Equipment list

     N         Y         Y         Y         Y   

BOQ – Execution Specification

     N         N         N         Y         Y   

I&C

                                            

Control System Architecture

     Y         Y         Y         Y         Y   

Instruments schedule

     N         Y         N         Y         Y   

Cables schedule

     N         Y         N         Y         Y   

Analog and digital I/O schedule and allocation

     N         Y         N         Y         Y   

Instruments design specifications and data sheets

     N         Y         N         Y         Y   

J.B, Cabinets and control systems construction drawings

     N         Y         N         Y         Y   

Wiring diagrams

     N         Y         N         Y         Y   

Control loops drawings

     N         Y         N         Y         Y   

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
  

Ph: +972 (0)77-202-5000

     
   Fax: +972 (0)2 571-1059   

Sheet

       12   of   13  

Rev

  5


Equipment room and control room layout

   N        Y        Y        Y        Y    

Field instruments location drawings

   N    N    N    Y    Y

Junction boxes and cable routes location drawings

   N    Y    N    Y    Y

Hook up drawings for instruments assemble

   N    Y    N    Y    Y

BOQ and Execution Specification

   N    N    N    Y    Y

 

  D. Design & Engineering Schedule

 

LOA    December 14, 2007
30% Design    Week 12
60% Design    Week 17
FEED Submittal    Week 19
Chevron ToGo Dec.    Week 21
Issue Equipment POs    Week 25 (week 13 for solar boiler)
Vendor Equip. Design    Week 34
90% Design    Week 39
Issue IFC Package    Week 49

 

  E. Payment Schedule

Total cost for Engineering SOW and Project Management of Engineering [*] to be paid as follows:

 

   

[*] - upon execution of Letter of Authorization (LOA)

 

   

[*] - upon 30% design review approval by CTV

 

   

[*] - upon 60% design review approval by CTV

 

   

[*] - upon 90% design review approval by CTV

 

   

[*] - upon IFC package delivery approval by CTV

 

 

This document contains information that is confidential and proprietary to LUZ II Ltd. Any reproduction, disclosure or other use thereof is prohibited except as otherwise agreed to in writing by LUZ II Ltd.

Title:     Proposed Engineering Scope of Work & Schedules – December 10, 2007

LOGO

  

Kiryat Mada 11 - Amot Bldg #6

P.O. Box 45220 Har Hotzvim

   Project    08 Chevron Solar-to-Steam Demo Plant
        
   Jerusalem 91450 Israel    File Name    Engineering Scope of Work and Schedules
  

Ph: +972 (0)77-202-5000

     
   Fax: +972 (0)2 571-1059   

Sheet

       13   of   13  

Rev

  5

 

* Confidential Treatment Requested


Confidential   Execution Copy

 

EXHIBIT A-3

PROCUREMENT AND CONSTRUCTION SCOPE OF WORK

Attached.

 


12/13/2008

 

LOGO   

Document List - at FEED Project Progress

 

Chevron - S2S Project

   LOGO

 

BY: R.K   APP: A.A   Rev: 8   Date: December 12, 2008        Doc No. 08-GE-G-L-004  

 

Doc. No

 

Rev

 

Sheets

 

Document Title

 

Doc Date

1. PM Docs        
080402 FAA   N/A     Cranston FAA Cert. Rev B   2/Apr/08
08-GE-G-L-001   1   5   Appendix A1 - QAQC Critical Components Matrix   7/Aug/08
08-GE-G-L-002   1   1   Appendix N - Chevron Project Procurement Log   14/Jul/08
08-GE-G-L-003   0   290   Chevron 60% Comments agreed for MSA (two files)   12/Dec/08
08-GE-G-P-002   2   18   Project Execution Plan (PEP)   8/Aug/08
08-GE-G-P-003   2   44   Appendix A -Procurement Procedures   29/Jul/08
08-GE-G-P-004   5   20   Appendix B - Document Control & Buzzsaw Procedures   16/Jul/08
08-GE-G-P-006   2   23   Appendix C - Change Order Procedures   29/Jul/08
08-GE-G-P-007   1   33   Appendx D - Project Closeout Procedures   29/Jul/08
08-GE-G-P-008   1   3   Appendix E - Project WBS Structure   13/Jul/08
08-GE-G-P-009   N/A   N/A   Appendix F - BSCM / LUZ II Corporate Safety Policy   MSA
08-GE-G-P-010   N/A   N/A   Appendix G - Health & Safety Work Practices   MSA
08-GE-G-P-011   N/A   N/A   Appendix H - Site Specific Project Safety Manual   MSA
08-GE-G-P-012   2   19   Appendix I - QA/QC Plan   31/Jul/08
08-GE-G-P-013   1   7   Appendix J - Project Control Procedures   29/Jul/08
08-GE-G-P-014   1   8   Appendix K - MRB Procedures   29/Jul/08
08-GE-G-P-015   B   6   Appendix L - Operation Test Plan   29/Jul/08
08-GE-G-P-016   A   11   Appendix M - Project Risk Analysis Procedures   29/Jul/08
08-GE-G-P-020   A   4   Appendix Q Risk Register RevA   14/Jul/08
08-GE-G-P-022   B   1   Procurement Plan   28/Oct/08
08-GE-G-S-101   C   12   Safety in Design Specification   7/Aug/08
08-GE-G-L-003-1   0   202   Chevron’s final agreed comments (1-200)   9/Dec/08
08-GE-G-L-003-2   0   27   Chevron’s final agreed comments (201-245)   9/Dec/08
08-GE-I-P-001   C   12   Appendix P I&C QA\QC Plan   31/Jul/08
Biological report   C     Biological resource evaluation   10/Dec/07
Chevron FAA 2-20-08       Determination of no Hazzard to air Navigation  
Fresno county letter July 07       Zoning determination section 857 A.2  
Permit reconnaissance        
SID SU 5106   7-Feb-08   250   Safety in design  

 

1


12/13/2008

 

LOGO   

Document List - at FEED Project Progress

 

Chevron - S2S Project

   LOGO

 

BY: R.K   APP: A.A   Rev: 8   Date: December 12, 2008        Doc No. 08-GE-G-L-004  

 

 

Doc. No

 

Rev

 

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SWP WU 5159   7-Sep-07   50   Safe work practice std.  
2. Process Docs        
08-BP-F-D-004   3   1   Utilities / Water Balance Process Flow Diagram   8/Aug/08
08-BP-F-D-020   4   2   Process Water & Steam Process Flow Diagram   4/Aug/08
08-BP-F-D-030   4   2   Service Water & Steam Process Flow Diagram   4/Aug/08
08-BP-F-D-300   E   1   Piping and instrumentation Legend   11/Jul/08
08-BP-F-D-302   G   1   Process Wtr/Steam P & ID   4/Aug/08
08-BP-F-D-303   G   1   Service Wtr/Steam P & ID   4/Aug/08
08-BP-F-D-304   G   1   Utilities P& ID   4/Aug/08
08-BP-F-D-305   G   1   Utilities P& ID Air   4/Aug/08
08-BP-F-S-001   F   12   System Operating Description   22/Jul/08
08-GE-F-S-001   J   21   Project Design Basis   6/Aug/08
08-GE-F-S-009   A   Later   Performance Model   Later
08-GE-F-S-010   B   216   Appendix C - Performance Model Results   27/Jul/08
08-GE-F-S-011   C   31   Appendix A - Performance Model Overview   28/Jul/08
08-GE-F-S-012   B   7   Appendix B - Analysis of Parasitics   5/Aug/08
08-GE-M-L-301   C   4   Lines list   31/Jul/08
08-GE-M-L-303   A   1   Specialty Items List   31/Jul/08
08-GE-M-L-304   T   4   Process Equipment List   25/Sep/08
08-GE-M-L-307   A   1   Tie-In List   31/Jul/08
08-GE-M-S-302   B   1   Service index list   5/Aug/08
08-PB-M-S-006   C   12   Appendix A - Sequence of Operations (preliminary)   5/Aug/08
08-PB-M-S-007   C   6   Appendix B - Overnight Heat Loss Analysis and anticipated Mitigations   4/Aug/08
08-UT-G-S-301   B   1   Utilities Capacity Summary   7/Jul/08
3. Mechanical Docs        
08-BP-G-S-00l   E   1   HX Proposal Scope Review Sheet   7/Aug/08
08-BP-G-S-002   G   6   Centrifugal Pumps Scope review sheet   24/Sep/08
08-BP-G-S-002-1   A   3   Pump Quotation Recommendations   6/Aug/08
08-BP-G-S-005   L   1   Water Treatment System Proposals Scope review sheet   4/Aug/08

 

 

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08-BP-G-S-317-2   A   1   Elevators quotations summary   8/Aug/08
08-BP-L-D-310   A   1   Piping Sections   31/Jul/08
08-BP-M-L-301   0   1   Equipment Installation BOQ   18/Aug/08
08-BP-M-S-301   E   16   Water Tanks Specification   4/Aug/08
08-BP-M-S-303   3   27   Compressed Air Spec   5/Aug/08
08-BP-M-S-304   H   10   Water Treatment System Specifications   8/Aug/08
08-BP-M-S-305   A   10   Elevator Spec   14/Jul/08
08-BP-M-S-306   A   15   Chilled Water Spec System   31/Jul/08
08-BP-M-S-307   B   32   Packaged Air Conditioning Units   4/Aug/08
08-BP-M-S-310   E   8   P-601 Pump Calculations   30/Jul/08
08-BP-M-S-311   G   6   P-602 Pump Calculations   30/Jul/08
08-BP-M-S-314   A   14   Maintenance Boiler RFQ   7/Jul/08
08-BP-M-S-317   B   1   Elevator Bid Analysis   8/Aug/08
08-BP-M-S-320   A   1   Pump Data Sheet P-804   5/Aug/08
08-BP-M-S-321   A   1   Pump Data Sheet P-806   16/Jun/08
08-BP-M-S-322   A   1   P-804 Pump Calculations   5/Aug/08
08-BP-M-S-323   A   1   P-806 Pump Calculations   5/Aug/08
08-BP-M-S-324   A   11   Positive Displacement Pump Specs   5/Aug/08
08-BP-M-S-325   B   24   Nitrogen System Spec   5/Aug/08
08-BP-M-S-390   B   2   Condensate Vessel Data Sheet V-604   4/Aug/08
08-BP-M-S-391   B   2   Boiler Feedwater Tank Data Sheet V-801   4/Aug/08
08-BP-M-S-392   B   2   Waste Water Tank Data Sheet T-803   4/Aug/08
08-BP-M-S-393   E   4   P-601 Data Sheet   16/Jul/08
08-BP-M-S-394   G   4   P-602 Data Sheet   16/Jul/08
08-BP-M-S-395   C   1   P-802 Data Sheet   15Ju0n8
08-BP-M-S-396   B   2   Mirror Wash Wtr Tank Data Sheet T-802   4/Aug/08
08-BP-M-S-398   D   1   P-805 Data Sheet   12/Jun/08
08-BP-M-S-399   B   1   Potable Water Storage Tank Data Sheet T-804   4/Aug/08
08-GE-F-L-301   B   15   Mechanical & Process Design Criteria (list of Standards & regulatory codes being followed)   24/Jul/08

 

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08-GE-M-S-002   C   3   Fire Protection Plan   7/Aug/08
08-GE-M-S-301   A   10   Mech Scope of Work   31/Jul/08
08-GE-M-S-308   G   1   Piping and valves Bill of Materials   1/Aug/08
08-GE-M-S-311   B   13   Capital Cost Estimate   14/Aug/08
08-GE-M-S-312-1   A   1   Piping and valves insulation Bill of Materials   1/Aug/08
08-GE-M-S-312-2   A   1   Equipment and steel insulation Bill of Materials   1/Aug/08
08-PB-M-S-001   2   12   Centrifugal Pumps Specifications   6/Aug/08
08-PB-M-S-002   D   12   Air cooled heal exchanger   6/Aug/08
08-PB-M-S-004   4   13   Heat Exchanger Specifications   31/Jul/08
08-PB-M-S-305   7   1   E-601 Data Sheet (Steam Generator)   21/Jul/08
08-PB-M-S-306   7   1   E-602 Data Sheet (Pre-Heater)   21/Jul/08
08-SF-M-S-006   1   29   Heliostat Specification   7/Aug/08
08-TR-F-S-001   3   28   Solar Boiler Specifications   7/Aug/08
08-TR-L-D-003   1   1   SB General Arrangement   2/Jul/08
08-TR-P-D-301   B   1   Piping Plans 0ft   31/Jul/08
08-TR-P-D-302   B   1   Piping Plans 20ft   31/Jul/08
08-TR-P-D-303   B   1   Piping Plans 40ft   31/Jul/08
08-TR-P-D-304   B   1   Piping Plans 90ft   31/Jul/08
08-TR-P-D-305   B   1   Piping Plans 130ft   31/Jul/08
08-TR-P-D-306   B   1   Piping Plans 190ft   31/Jul/08
08-TR-P-D-307   B   1   Piping Plans 230ft   31/Jul/08
08-TR-P-D-309   A   1   MCC Building Duct HVAC plan   31/Jul/08
08-TR-P-D-310-1   A   15   Piping Stress Analysis   25/Jul/08
08-TR-P-D-310-2   A   17   Piping Stress Analysis   25/Jul/08
08-TR-P-D-351   A   1   Pipe Support Plan El 0’-0”   31/Jul/08
08-TR-P-D-352   A   1   Pipe Support Plan El 20’-0”   31/Jul/08
08-TR-P-D-353   A   1   Pipe Support Plan El 40’-0”   31/Jul/08
08-TR-P-D-355   A   1   Pipe Support Plan El 130’-0”   31/Jul/08
08-TR-P-D-356   A   1   Pipe Support Plan El 190’-0”   31/Jul/08

 

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08-TR-P-D-357   A   1   Pipe Support Plan   31/Jul/08
08-TR-P-D-361   A   4   Piping Support Standard Details   18/Jul/08
08-TR-P-D-362   A   2   Piping Standard Details   18/Jul/08
08-TR-P-S-001   D   7   Appendix A - Solar Boiler Panel Coating   27/Jul/08
1 CL 11   7-Nov-08     Piping specification  
1 CS 11   7-Sep-08     Piping specification  
1 CS 12   7-Nov-08     Piping specification  
1 NM 11   7-Nov-08     Piping specification  
9 CS 13   7-Nov-08     Piping specification  
9 CS 14   8-Mar-08     Piping specification  
9 SA 91   7-Nov-08     Piping specification  
CVX 101   Year 2005     Asme WPS sample  
CVX 401   Year 2005     Asme WPS sample  
FIG 3-1       Orrifice plate & flanges data sheet  
GA 199880-2   Year 1988     Std detail of bars at pipelines Tee conn  
Inih 1000   7-Oct-08     PIP Inih 1000 hot insulation installation  
Insh 1000   7-Aug-08     PIP Insh 1000 hot service insulation materials & piping.  
N/A   4   12   Appendix A - Vendor Proposals   19/Jun/08
PIDD Index   3-Jun-08     Piping item description classification index  
PIDDF Foreward   1-Mar-08     Piping item description database  
Piping component selection   3-Nov-08     200 component selection- valves, strainers, orrifice, etc.,  
PNSC 0001   1-Oct-00     PIP PNSC 0001 ASME B31.1 Metalic piping fab. and exam.  
PNSC 0011   4-Feb-08     PIP PNSC 0011 Instal Of ASME B31.3 Metalic piping.  
PNSC 0021   1-Oct-00     PIP PNSC 0021 Leak testing of piping systems  
PNSM 0110   4-Feb-08     PIP PNSM 0021 Procurement of valves  
PPL DG 4737   5-Apr-08     PIP DG 4737 Data sheet GUIDE for induction bending  
PPL DS 4737       PIP DG 4737 Data sheet for induction bending  
PPL EG 1564-D   YEAR 1990     PIP PPL EG 1564-D Radiographic inspection  
PPL EE 1632   YEAR 1988     PIP PPL EG 1050 Cement lined pipe  

 

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PPL EG 1800 H   YEAR 1999     PIP PPL EG 1800-H onshore pipeline construction  
PPL SU 5023   1-Sep-02     Materials and fabrication of liquid transportation pipelines  
PPL SV 1050   4-Jul-08     PIP PPL welded line pipe: electric welded & submerged welded pipe  
PPL SV 1051 A   4-Jul-08     PIP PPL SEAMLESS line pipe  
PPLDG 1050   6-Apr-08     PIP PPL DG 1050 Data sheet guide for welded pipe line  
PPLDG 1051   3-Sep-08     PIP PPL DG 1051 Data sheet guide for seamless pipe line  
PPLDS 1632       PIP PPL DS 1632 Data sheet for cement lined pipe line  
QWP R 01       QW 482 WPS R 01  
QWP R 10       QW 482 WPS R 10  
REI E 686   YEAR 1996   203   Recommended practices for machinery installation  
swpfront   1-Jun-00     Qualified welders procedures  
UTL DU 5084   1-Jun-06     Sewers drains & paving arrangements  
UTL DU 6000   1-Dec-05     Steam traps  
WPS 001       QW 482 WPS PS-1  
4. C.E./S.E. Docs:        
012 08004   1-May-07   1   Geotechnical report   5/Aug/08
08-GE-C-D-300   C   1   Site Development Title Sheet   31/Oct/08
08-GE-C-D-301   C   1   Site Development General Notes & Abbreviations   31/Oct/08
08-GE-C-D-302   E   1/Jan/00   Area Development Site Plan   31/Oct/08
08-GE-C-D-303   A   1/Jan/00   Area Development Existing condition Site Plan   31/Oct/08
08-GE-C-D-304   D   1   Area Development initial SWPPP & Demo Plan   31/Oct/08
08-GE-C-D-306   B   1   Final SWPP   31/Oct/08
08-GE-C-D-307-1thru3   A   3   SWPP Dets   5/Aug/08
08-GE-C-D-308   C   1   Grading & Drainage Overall Plan   31/Oct/08
08-GE-C-D-308-01thru03   C   3   Area Development Grading & Drainage Plan sheets 1-3   31/Oct/08
08-GE-C-D-310-01thru02   A   2   Site layout plan sh 3&2   31/Oct/08
08-GE-C-D-311-01thru03   B   3   Area Development Construction Details   31/Oct/08
08-GE-C-D-311-04   A   1   Area Development Construction Details   31/Oct/08
08-GE-C-1-301   D   2   Site development BOQ   26/Nov/08

 

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08-GE-C-S-303   D   7   Site Development SOW   26/Nov/08
08-BP-A-D-301   C   1   Main Bldg Plan   25/Jul/08
08-BP-A-D-302   C   1   Main Bldg Elev   25/Jul/08
08-BP-A-D-303   B   1   MCC Bldg Plan   25/Jul/08
08-BP-A-D-304   A   1   MCC Bldg Elev   17/Jul/08
08-BP-A-D-305   A   1   MCC/UPS/TRAFO Bldg Elevations (sheet 2)   25/Jul/08
08-BP-L-D-300-1   5   1   Equipment Layout Grade   31/Jul/08
O8-BP-L-D-300-2   2   1   Equipment Layout on Tower   31/Jul/08
08-BP-L-D-305-1   6   1   Equip Layout WE Elevs   31/Ju|/08
08-BP-L-D-305-2   6   1   Equip Layout SN Elevs   31/Jul/08
08-GE-C-S-301   E   11   Civil/Structural Engineering Design Criteria (show all calculations)   24/Jul/08
08-GE-C-S-302   A   5   Pre-Engineered Building Scope of Work   25/Jul/08
08-GE-C-S-305   C   1   Conc BOQ   26/Nov/08
08-GE-S-S-305   A   7   Struct SOW   6/Aug/08
08-GE-S-S-306   B   1   Structural Works BOQ   6/Aug/08
08-GE-S-S-307   0   141   Tower Analysis   4/Aug/08
08-GE-S-S-303   0   127   Steam Generator Platform Calculations   5/Aug/08
08-SF-C-S-001, 001-1   5   11   Appendix A - Flux Map on upper part of structural tower   6/Aug/08
08-TR-S-D-301-01   A   1   Structural Tower Plan 782 ft   4/Aug/08
08-TR-S-D-301-02   A   1   Structural Tower Plan 802 ft   4/Aug/08
08-TR-S-D-301-03   A   1   Structural Tower Plan 822 ft   4/Aug/08
08-TR-S-D-301-04   A   1   Structural Tower Plan 842 ft   4/Aug/08
08-TR-S-D-302-01   B   1   Structural Tower Plan862Ft10-5in ft   4/Aug/08
08-TR-S-D-302-02   A   1   Structural Tower Plan882Ft10-5in ft   4/Aug/08
08-TR-S-D-302-03   A   1   Structural Tower Plan902Ft10-5in ft   4/Aug/08
08-TR-S-D-302-04   A   1   Structural Tower Plan922Ft10-5in ft   4/Aug/08
08-TR-S-D-303   B   1   Structural Tower Plan 775 ft   5/Aug/08
08-TR-S-D-304   B   1   Structural Tower Plan 840 ft   5/Aug/08
08-TR-S-D-306   B   1   Structural Tower Plan 980 ft   5/Aug/08

 

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08-TR-S-D-307   B   1   Structural Tower Plan 1020 & 1022 ft   5/Aug/08
08-TR-S-D-308   A   1   Platform Elevation 1   5/Aug/08
08-TR-S-D-309   A   1   Platform Elevation 2   5/Aug/08
08-TR-S-D-311   C   1   Structural Tower North Elev   1/Aug/08
08-TR-S-D-312   C   1   Structural Tower South Elev   5/Aug/08
08-TR-S-D-313   C   1   Structural Tower East Elev   1/Aug/08
08-TR-S-D-314   C   1   Structural Tower West Elev   5/Aug/08
08-TR-S-D-315   B   1   Structural Tower Target Elev & Details   5/Aug/08
08-TR-S-D-317-01   B   1   55 Stair Schematic & Details   5/Aug/08
08-TR-S-D-317-02   A   1   55 Stair Schematic & Details   5/Aug/08
08-TR-S-D-317-03   A   l   55 Stair Schematic & Details   5/Aug/08
08-TR-S-D-317-04   A   1   55 Stair Schematic & Details   5/Aug/08
08-TR-S-D-319-01   B   1   55 Standard Details   5/Aug/08
08-TR-S-D-319-02   B   1   55 Standard Details   5/Aug/08
08-TR-S-D-319-03   B   1   55 Standard Details   5/Aug/08
08-TR-S-D-319-04   A   1   55 Standard Details   17/Jul/08
08-TR-S-D-319-05   B   1   55 Standard Details   5/Aug/08
08-TR-S-D-319-06   B   1   55 Standard Details   5/Aug/08
08-TR-S-D-320-01thru05   B   5   Structural Steel Sections & Details   5/Aug/08
08-TR-S-D-355-01   B   1   Concrete Standard Details sh1   5/Aug/08
08-TR-S-D-355-02   B   1   Concrete Standard Details sh2   5/Aug/08
08-TR-S-D-355-03   B   1   Concrete Sects and Details   5/Aug/08
ARS 13120   1-Jun-07   1   PIP ARS3120 pre engineered metal buildings spec   5/Aug/08
CIV SU 398     1   PIP CIV SU 398 Fabrication of struc. Steel, exemption to PIPI STS 05120   5/Aug/08
CIV-SU-4747-A   l-Dec-05   12   CONSTRUCTION OF UNDERGROUND DRAINAGE SYSTEMS  
CIV-SU-581-C   1-Jun-05   2   SITE PREPARATION, EXCAVATION, AND BACKFILL AN EXCEPTION TO PIP CVSO2100  
CIV-SU-850-1   1-Mar-04   7   PLAIN AND REINFORCED CONCRETE EXCEPTION TO PIP STS03001  
COM-SU-4743-D   l-Dec-05   15   EXTERNAL COATINGS  
CVS 02100   1-Apr-07   1   PIP CVS 02100 site prep, excavation & backfill spec   5/Aug/08

 

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CVS 02830   1-May-03   1   PIP CVS 02830 fab and instal of chain link fence and gate   5/Aug/08
ELC-EF-652 (4-90)   1-Apr-90   1   CONDUIT STUB-UP ARRANGEMENT  
RULE 8021   19-Aug-04   6   CONSTRUCTION, DEMOLITION, EXCAVATION, EXTRACTION, AND OTHER EARTHMOVING ACTIVITIES  
STC 01015   1-Sep-07   1   PIP STC 01015 structural design criteria   5/Aug/08
STC 03001   1-May-07   1   PIP STC 03001 plane and reinforced concrete spec   5/Aug/08
STS 03600   1-Jun-02   1   PIP STS 03600 Non shrink cementitous grout spec   5/Aug/08
STS 05120   1-Jan-02   1   PIP STS 05120 Fabrication of structural and misc steel spec   5/Aug/08
STS 05130   1-Feb-02   1   PIP STS STS 05130 Erection of structural & misc steel spec.   5/Aug/08
5. Electrical Docs        
08-BP-E-D-200   D   1   Solar Field Electrical Cable Layout   20/Jul/08
08-BP-E-D-201-1   G   1   One-Line Line Diagram   4/Dec/08
08-BP-E-D-201- 2   E   1   One-Line Line Diagram   21/Nov/08
08-BP-E-D-202   B   1   Electrical Building Layout   25/Jul/08
08-BP-E-D-203       Lightning Protection Plan  
08-BP-E-D-205   A   1   PDU Plan1 N SLD   27/Jul/08
08-BP-E-D-207   A   1   PDU Plan2   27/Jul/08
08-BP-E-D-210   C   1   PDU2 SLD (E&W)   20/Nov/08
08-BP-E-D-211   D   1   PDU 1 & 2 Pnl View   8/Dec/08
08-BP-E-D-212   C   1   PDU1 SLD (N)   20/Nov/08
08-BP-E-D-214   D   1   Typ Load Ctr 2 EW SLD   20/Nov/08
08-BP-E-D-215   C   1   Typ load Ctr Pnl View   20/Nov/08
08-BP-E-D-216   D   1   Typ Load Ctrl N SLD   20/Nov/08
08-SF-E-D-003   B   1   Typical Cables Installation Detail   7/Dec/08
08-BP-E-D-300   G   1   Cable Install & Layout Principal Design   3/Dec/08
08-BP-E-D-301   A   1   Power Plan (J-Boxes & Cable Routes) (SF & BOP)   7/Aug/08
03-BP-E-D-304-1   A   1   Lighting Plan   7/Aug/08
08-BP-E-D-304-2   A   1   Lighting Fixture Sch Panl Brd   1/Aug/08
08-BP-E-D-304-3   A   1   Electrical Lighting Standard Details   1/Aug/08
08-BP-E-D-305-1   A   1   Grounding   l/Aug/08

 

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08-BP-E-D-305-2   A   1   Electrical Ground Legend Gen Notes and Dels   1/Aug/08
08-BP-E-D-312   A   1   Maint Bldg Control Rm Plan   1/Aug/08
08-BP-E-L-305   1   1   Electrical Potential Vendor List   22/May/08
08-BP-E-S-204   C   15   PDU Specification   27/Nov/08
08-BP-E-S-205   A   30   SF Electrical & Communication Specifications & SOW   23/Nov/08
08-GE-E-S-301   B   6   Electrical Design Criteria (List of Standards & regulatory codes being followed)   7/Aug/08
08-PB-E-D-300   A   1   Electrical Symbols, Legends and Gen Notes   31/Aug/08
08-PB-E-D-307   A   1   MCC Rm Grounding Plan   1/Aug/08
08-PB-E-D-308   A   1   MCC Rm Lighting Plan   1/Aug/08
08-SF-E-L-201   A   5   PDU & LC BOM   24/Nov/08
08-PB-E-D-309   A   1   MCC Rm Power Plan   l/Aug/08
08-PB-E-S-206-1   C   10   Electrical BOQ   5/Dec/08
08-PB-E-S-206-2   A   10   Electrical SOW   6/Aug/08
841-2001   1-Mar-01     IEEE std 841-2001 std pter_ & chemical severe duty TEFC motors up to 370 kw  
ELS AP 03   1-Jun-02     PIP ELS AP 03 design and fabrication of UPS  
ELS MC 13   1-Oct-07     PIP ELS MC 13 Low voltage MCC  
ELS SG 11   1-Jun-05     PIP ELS SG 11 Electrical power center spec  
ES WP REV 4   1-Jan-05     Chevron electrical safe work practices  
6.1 & C Docs        
08-BP-I-D-001   D   1   Communications Installation Plan   7/Dec/08
08-BP-I-L-001   D   5   Analog & Digital I/O Schedule & Allocation   7/Aug/08
08-BP-I-L-303-1   C   56   Cables Schedule   31/Oct/08
08-BP-I-L-303-2   C   4   Cables Codes   31/0ct/08
08-BP-I-S-301   B   6   I & C Design Criteria (List of Standards & regulatory codes being followed)   24/Jul/08
08-SF-1-D-001   0   1   SF Interconnection Cable Installation Details   19/Nov/08
08-SF-I-D-002   0   1   SF Interconnection Cable Details   19/Nov/08
08-GE-I-D-001   3   1   Control System Architecture drawing   20/Nov/08
08-GE-I-D-002   3   1   Solar Field Network Drawing   20/Nov/08
08-GE-I-D-004-01/2   B   2   Discrete a Analog I & C Control Loop Drawings   6/Aug/08

 

 

10


12/13/2008

 

LOGO   

Document List - at FEED Project Progress

 

Chevron - S2S Project

   LOGO

 

BY: R.K   APP: A.A   Rev: 8   Date: December 12, 2008        Doc No. 08-GE-G-L-004  

 

 

Doc. No

 

Rev

 

Sheets

 

Document Title

 

Doc Date

08-GE-I-L-301   3   3   I & C Potential Vendor List   2/Jul/08
08-GE-I-L-302   D   13   Appendix B - Instrument List   7/Aug/08
08-GE-I-S-001   1   14   Control System Philosophy & Narrative   13/Jul/08
08-GE-I-S-004   B   11   PLC Code & System Integration Programming Requirements   31/Jul/08
08-GE-I-S-005   B   83   HMI Specs   29/Jul/08
Chevron       Appendix A - Safety Instrumented System  
08-PB-I-S-003   A   14   Instrument Data Sheets   28/Jul/08
08-SF-I-S-005   4   9   Solar Field Cable & Connectors Specs   7/Jul/08
08-SF-1-S-009   2   17   Heliostat Controller Data Tags   21/Jul/08
08-SF-I-S-012   8   29   Load Center Panels and DC System Specification   27/Nov/08
PCCF L001       PIP PCCF 1001 Flow meters design criteria  
PCCV 001       PIP PCCV 001 selection of control valves  
PCSCV 001       PIP PCSCV 001 SPEC of control valves  
PCSCV 001 D       control valves spec sheet  
  A   1   PLC Configuration   28/Ju|/08

 

11


LOGO

For More information, Please Contact

 

Sergio Hoyos

   Stein J. Storstell, PE

Project Manager

   Facility Engineer

Chevron Technology Ventures, LLC

   Chevron Energy Technology Company

3901 Briarpark

   1846 China Grade Loop, Room A-178

Houston, TX 77042

   Bakersfield, CA 93308

Ph: (718) 954-6380; Fax: (713) 954-6016

   Ph: (661) 392-2534; Fax: (661) 392-2202

shoyos@chevron.com

   [Illegible]

Version History

 

v1.0 Original version released, 30% Design Review, includes response prepared by BSE (at later date)

   10-Mar-08

v1.1 Review of re-submitted 30% Design Review content

   17-Jun-08

v1.2 Review of 100% Design Review content

   20-Oct-08

Comment Interim Close-out

   12/12/08

Disclaimer

 

The Information and methods marked within [Illegible] spreadsheet are presented for:

capture and transmitted of design review comments and applicable response from design contractor(s).

The Information and methods presented herein are believed to be accurate and reliable, and are intended to be used by technically skilled persons at their own discretion.

References

 

  1 Submitted specifications, drawings, and other documentation, as noted in Table of Contents, ahead ‘TOC’

Spreadsheet Development Notes

 

  1 Reorganize content to better accommodate the need to add/insert additional documents within the existing list. Modify the sheet names accordingly.

 

  2 Provide for better version control of the comments to focus on recent comments and highlight worksheet labs In accordance with comment version [Illegible]

 

  3 Prepare a ‘Print Summary’ sheet which consolidates all comments (all versions) into a single sheet format for printing and tracking control. This sheet is not for editing content or providing responses, strictly for summarizing into a single sheet for printing/hard-copy output. Use individual sheets per document for providing response content.

 

  4   

 

  5   

 

  6   

 

  7   

 

  8   

 

  9   

Application Notes

 

 

  1 The values in column B on the ‘TOC’ sheet must be arranged in according order for the VLOOKUPO function to work properly.

 

  2 Use ‘Table of Contents’ addln to update the hyperlinks in ‘TOC’ whenever new documents are added to the list.

 

  3 Whenever new documents are added to the TOC list, and sew sheet is added; use the hidden columns to update the Sheet Names, and associated VBA code to automatically resort/rename sheats to new names. This is required to ensure VLOOKUPO function works properly. This function requires an ‘Ascending Sort’ list of Sheet Names to work properly.

 

  4   

 

  5   

 

  6   

 

  7   

 

CVX Signature Approval:     BSE Signature Approval:

/s/ [Illegible]

   

/s/ [Illegible]

12/12/2008     12/12/2008


Confidential   Execution Copy

 

EXHIBIT A-4

O&M AGREEMENT

Attached hereto is the Operations and Maintenance Agreement between BrightSource Construction Management, Inc., as Operator, and Chevron Technology Ventures, a division of Chevron U.S.A. Inc., as Owner. It is the intent of the Parties that BrightSource Construction Management, Inc. will assign the O&M Agreement pursuant to the terms thereof to an Affiliate, BrightSource Operating Services, LLC, which will be formed as a Delaware limited liability company prior to the Commencement Date of the O&M Agreement, and that BrightSource Operating Services, LLC will be the Operator thereunder during the term thereof.

 


 

 

OPERATING AND MAINTENANCE AGREEMENT

Between

BRIGHTSOURCE CONSTRUCTION MANAGEMENT, INC.

and

CHEVRON TECHNOLOGY VENTURES, A DIVISION of CHEVRON U.S.A. INC.

Dated as of December 17, 2008

CHEVRON SOLAR-TO-STEAM DEMONSTRATION PLANT

 

 

 


     Page  

ARTICLE 1.

 

DEFINITIONS

     1   
 

1.1

   Defined Terms      1   
 

1.2

   General Terms      5   

ARTICLE 2.

 

EXHIBITS

     5   
 

2.1

   Exhibits      5   
 

2.2

   Conflicting Provisions      5   

ARTICLE 3.

 

OPERATOR’S SERVICES

     6   
 

3.1

   Appointment      6   
 

3.2

   Services      6   
 

3.3

   Emergencies      9   
 

3.4

   Subcontracts      9   
 

3.5

   Authority to Contract      9   
 

3.6

   Operator Licenses      10   

ARTICLE 4.

 

STANDARD OF SERVICES

     10   
 

4.1

   Standard of Operation      10   
 

4.2

   Optimization of Services      10   
 

4.3

   Liens      10   
 

4.4

   Warranties and Guarantees      11   

ARTICLE 5.

 

PERSONNEL

     11   
 

5.1

   Lead Operator      11   
 

5.2

   Plant Personnel      11   
 

5.3

   Employee Compensation      11   
 

5.4

   Labor Relations      11   
 

5.5

   Fire Prevention      12   
 

5.6

   Drugs and Alcohol      12   

ARTICLE 6.

 

INSPECTION AND COOPERATION

     12   

ARTICLE 7.

 

CHANGE ORDERS

     12   
 

7.1

   Change Orders      12   
 

7.2

   Agreement      13   
 

7.3

   Other Provisions Unaffected      13   

ARTICLE 8.

 

BUDGETS

     13   
 

8.1

   Budgets      13   
 

8.2

   No Approved Budget      13   
 

8.3

   Budget Meetings      14   

ARTICLE 9.

 

COMPENSATION

     14   

ARTICLE 10.

 

PAYMENT

     15   
 

10.1

   Invoices      15   

 

-i-


     Page  
 

10.2

   Payment      16   
 

10.3

   Notice of Payment Disputes      16   
 

10.4

   Late Payments      16   
 

10.5

   Adjustments      16   
 

10.6

   Accounting and Audit Rights      17   

ARTICLE 11.

 

RESPONSIBILITIES OF OWNER

     17   
 

11.1

   Notice of Commencement Date      17   
 

11.2

   Easements      17   
 

11.3

   Facilities      17   
 

11.4

   Intentionally Deleted      15   
 

11.5

   Approval      17   
 

11.6

   Tools and Manuals      18   
 

11.7

   Information      18   
 

11.8

   Taxes      18   
 

11.9

   Insurance      18   
 

11.10

   Owner’s Representative      18   
 

11.11

   Project Documents      18   
 

11.12

   Site Access, Control and Security      19   

ARTICLE 12.

 

INDEPENDENT CONTRACTOR

     19   

ARTICLE 13.

 

TERM AND TERMINATION

     19   
 

13.1

   Term      19   
 

13.2

   Termination for Material Breach      19   
 

13.3

   Termination in the Event the MSA is Terminated      20   
 

13.4

   Termination for Insolvency      20   
 

13.5

   Termination Payment      20   
 

13.6

   Effect of Termination      21   

ARTICLE 14.

 

ASSIGNMENT

     21   

ARTICLE 15.

 

INDEMNIFICATION

     21