ex10-2_newmech.htm


     

    
 

     

    
      
         

        
          
          

        

        
           


          
             

             

             

            
              	
                      

                    	
                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

             

          

        

      

    

    
      

      

    

    


    


     

    


     

     

    


     

     

    


     

     

    


     

    
      	
              Contract

              with

              NewMech
      Companies, Inc.

              dated

              July
      27, 2009

            


    

     

    


     

    


    
      
        
          
            Contract
_7/27/09                          1 of 63                        Contractor Initials
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                                                                    Company Rep Initials
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

            


             

          

        

      

    

    
      

      

    

     

    Table
of Contents

     

    

      
        	
                1

              	
                Definitions

              	
                3

              	 
      	
                34

              	
                Warranty
      of Title

              	
                16

              
	
                2

              	
                General

              	
                6

              	 
      	
                35

              	
                Warranty
      against Infringement of Patents,

                    
       Copyrights, Trademarks, and Trade Secrets

              	
                16

              
	
                3

              	
                Representations
      by Contractor

              	
                6

              	 
      	 
      
	
                4

              	
                Scope
      of Work

              	
                6

              	 
      	
                36

              	
                Intellectual
      Property

              	
                16

              
	
                5

              	
                Price
      & Payment

              	
                7

              	 
      	
                37

              	
                Changes

              	
                16

              
	
                6

              	
                Schedule

              	
                7

              	 
      	
                38

              	
                Final
      Completion and Acceptance

              	
                17

              
	
                7

              	
                Independent
      Contractor

              	
                7

              	 
      	
                39

              	
                Suspension
      of the Work

              	
                18

              
	
                8

              	
                Supervision
      and Labor

              	
                7

              	 
      	
                40

              	
                Termination
      for Convenience

              	
                18

              
	
                9

              	
                Subcontractors
      and Suppliers

              	
                8

              	 
      	
                41

              	
                Termination
      for Default

              	
                18

              
	
                10

              	
                Labor
      Relations

              	
                8

              	 
      	
                42

              	
                Insurance

              	
                19

              
	
                11

              	
                Environmental,
      Health & Safety

              	
                8

              	 
      	
                43

              	
                Indemnity

              	
                19

              
	
                12

              	
                Hazardous
      Materials

              	
                9

              	 
      	
                44

              	
                Waiver
      of Consequential Damages

              	
                19

              
	
                13

              	
                Cleanup

              	
                9

              	 
      	
                45

              	
                Limitation
      of Liability

              	
                19

              
	
                14

              	
                Stop
      Work Orders

              	
                9

              	 
      	
                46

              	
                Force
      Majeure

              	
                20

              
	
                15

              	
                Permits
      & Licenses

              	
                9

              	 
      	
                47

              	
                Avoidance
      of Liens

              	
                20

              
	
                16

              	
                Submittals

              	
                9

              	 
      	
                48

              	
                Proprietary
      Information

              	
                20

              
	
                17

              	
                Issued
      for Construction Documents

              	
                10

              	 
      	
                49

              	
                Gratuities

              	
                21

              
	
                18

              	
                Ownership
      and Use of Contractor Deliverables

              	
                10

              	 
      	
                50

              	
                Assignment

              	
                21

              
	
                19

              	
                Substitutions

              	
                10

              	 
      	
                51

              	
                Notices

              	
                21

              
	
                20

              	
                Discrepancies

              	
                11

              	 
      	
                52

              	
                Severability

              	
                21

              
	
                21

              	
                Quality
      Control/Quality Assurance Program

              	
                11

              	 
      	
                53

              	
                Modifications
      and Amendments

              	
                21

              
	
                22

              	
                Materials
      Management Procedure

              	
                11

              	 
      	
                54

              	
                Remedies

              	
                21

              
	
                232323

              	
                Control
      of Materials and Equipment Furnished by Company

              	
                11

              	 
      	
                55

              	
                Publicity

              	
                22

              
	 
      	
                56

              	
                Site
      Records & Audit

              	
                22

              
	
                24

              	
                Project
      Controls Requirements

              	
                12

              	 
      	
                57

              	
                Interpretation

              	
                22

              
	
                25

              	
                Construction
      Works

              	
                13

              	 
      	
                58

              	
                English
      Language

              	
                22

              
	
                26

              	
                Expediting,
      Inspection, and Testing

              	
                13

              	 
      	
                59

              	
                Non-Waiver

              	
                22

              
	
                27

              	
                Contractor's
      Shipments

              	
                14

              	 
      	
                60

              	
                Survival

              	
                22

              
	
                28

              	
                Country
      of Origin

              	
                14

              	 
      	
                61

              	
                Laws
      and Regulations

              	
                22

              
	
                29

              	
                Spare
      Parts

              	
                14

              	 
      	
                62

              	
                Disputes,
      Forum and Applicable Law

              	
                22

              
	
                30

              	
                Title
      & Risk of Loss

              	
                15

              	 
      	
                63

              	
                Notice
      of Affirmative Action

              	
                23

              
	
                31

              	
                Protection
      of the Work

              	
                15

              	 
      	
                64

              	
                Warranty
      Period

              	
                23

              
	
                32

              	
                Possession
      Prior to Final Completion

              	
                15

              	 
      	
                65

              	
                Contract
      Performance Security

              	
                23

              
	
                33

              	
                Warranty
      of the Work

              	
                15

              	 
      	
                66

              	
                Disclosure

              	
                23

              


      

    

     

    


     

    


    
      
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

          

        

      

    

    
      

      

    

    Contract

     

    This
contract is made effective
this ______ day of July, 2009, by and between NorthWestern Corporation, a
Delaware Corporation, d/b/a NorthWestern Energy (“Company”), with offices at 40
E. Broadway, Butte, Montana, 59701 and NewMech Companies, Inc., (“Contractor”),
a Minnesota corporation with its principal place of business at 1633 Eustis
Street, St. Paul, Minnesota, 55108, hereinafter each a “Party” and collectively,
the “Parties.”

    
       

      
        

        

      

    

    
      	
              1   Definitions

               

              When
      used with initial capitals, the following definitions shall apply to this
      Contract. (Not all of the defined terms are necessarily used in this
      Contract). Additional definitions may be set forth in the body of the
      Contract.

               

              Accepted as
      Certified when applied by Company to Contractor's Deliverables,
      means that if the comments noted by Company are incorporated by Contractor
      into its Deliverables, such Deliverables as revised appear to interface
      properly with Company-furnished components of the Project and, except as
      noted in Company’s comments, Company has not identified any other
      statement or feature that appears to deviate from the requirements of the
      Contract.

               

              Accepted, when applied by
      Company to Contractor's Deliverables, means that such Deliverables appear
      to interface properly with Company-furnished components of the Project and
      Company has not identified any statement or feature that appears to
      deviate from the requirements of the Contract.

               

              Actual
      Cost means
      Contractor’s indirect and direct costs excluding overhead and profit, as
      it relates to GMP definition.

               

              Affiliated
      Companies means entities that either control or are controlled by
      Company by means of a majority ownership interest.

               

              Authorized
      Representative means the person designated, in writing pursuant to
      this Agreement, by either Party to send and receive any Notices and / or
      Directives that may be required and to bind the Party he or she represents
      with regard to all matters related to this Contract.

               

              Certified Payroll means
      a payroll ledger with a statement that it is a true and correct
      representation of the actual payroll paid for a particular period of time
      signed, under penalties of perjury, by an officer of Contractor
      (president, CFO, treasurer, or controller) and notarized, listing
      vertically the names of personnel and their classification (e.g.,
      apprentice 3rd period, journeyman, foreman, etc.) and horizontally the
      days of the period, and under each day the hours worked for each shift on
      straight time, time-and one-half, and double time, with a total to the
      right listing the period's hours worked for 

            	 
      	
              each
      category which shall be multiplied by the rate for each category to
      calculate the gross and net total paid to the worker, with an additional
      set of columns for all payroll taxes and withholdings (FICA/FUTA/SUTA and
      Federal, State and Local Withholding Taxes), and insurances (Workers
      Compensation/General Liability).

               

              Change Order Request
      shall have the meaning set forth in Section 37.

               

              Change shall have the
      meaning set forth in Section 37.

               

              Claim shall have the
      meaning set forth in Section 37.

               

              Commercial Operation
      Date means the date of the Project when it has commenced generating
      electricity for sale, excluding the generation of electricity generated
      during testing and commissioning of the Project prior to Commercial
      Operation.

               

              Company Directive or
      Directive means formal written instructions i.e. formal letter from
      Company to Contractor directing Contractor to proceed in the manner
      described therein.  E-mail will be used only as a courier to
      transport formal correspondence.

               

              Company means the entity
      identified as such in the Contract and includes Company’s Affiliated
      Companies and the officers, directors, agents, employees, successors, and
      assigns of each and where appropriate Authorized Representative to act on
      behalf of the Company.

               

              Competent Person means a
      person with the skill, knowledge, experience, training, and authority to
      carry out his assigned responsibilities safely and in accordance with
      industry practice.

               

              Construction Schedule
      means the detailed critical path network schedule for the Work that is
      developed by Contractor using the Project Schedule identified by
      Company.

               

              Construction Works means
      all construction equipment including tools, consumables, utilities,
      supplies, temporary work, scaffolding, form lumber, templates, buildings,
      facilities, electronic gear, computers, software, and similar items which
      are used in the execution, performance, maintenance, completion, or
      management of the Work by Contractor, but which are not intended to become
      a permanent part of the Project. 


            


    

     

    


     

    
      
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

          

        

      

    

    
      

      

    

     

    
      	
              Unless
      specifically stated otherwise in this Agreement, all Construction Works
      are to be provided by the Contractor.

               

              Contract
      means this agreement and any schedules and exhibits attached hereto
      or specifically referenced herein, including, without limitation, any
      RFCPs, FWOs, CORs or Change Orders as such terms are defined in Section
      37.

               

              Contract
      Schedule means the schedule described in Section 6.

               

              Contract
      Time means the total amount of calendar time allowed in the
      Contract Schedule for performance of the Contractor’s Work.

               

              Contractor
      Means the Party identified as such in this Contract. Unless the context
      clearly requires otherwise, the term shall include all those employed by
      or in privity with Contractor at any tier including all Subcontractors and
      Suppliers.

               

              Corrective
      Work shall have the meaning set forth in Section 33.

               

              Craft
      Labor means trade workers. By way of example, Craft Labor includes
      laborers, carpenters, operators, pipe fitters, boilermakers, electricians,
      and sheet metal workers. Refer to Attachment B – Price & Payment,
      Section 3 for definition of supervision

               

              Days
      mean calendar days unless specifically stated otherwise.

               

              Dead-Band means an
      established plus or minus range whereby profit is fixed for the cumulative
      value of Change Orders provided the cumulative Change Order Value remains
      within the range. Cumulative value of Change Orders that fall outside the
      range will be applicable to profit adjustments as defined in Attachment B
      – Price and Payment, section

               

              Deliverables
      or Drawings mean all of the documentation including cut sheets, reports,
      drawings, certificates, schedules, plans, invoices, and other submittals
      that Contractor is required to furnish pursuant to this
      Contract.

               

              Effective
      Date means the date set forth in the Contract as the date on which
      the Contract is effective.

               

              Engineer
      means the person or entity designated as such in Attachment
A.

               

              Engineered
      Materials and Equipment means Materials and Equipment that will be
      designed and fabricated by Contractor as part of its Work.

               

              Field
      Non-Manual Labor (“FNM”) all workers other than Craft
      Labor.

               

              Field Work
      Order shall have the meaning set forth in Section 37.

               

              Final Acceptance means
      Company’s written acknowledgment that Contractor has achieved Final
      Completion as provided herein.

            	 
      	
              Final
      Completion means that all obligations of Contractor under this
      Contract have been completed except for obligations which Company has
      waived or excused in writing and except for obligations of Contractor that
      survive termination of this Contract such as warranty and
      indemnity.

               

              Force
      Majeure means an event beyond the reasonable control and without
      the fault or negligence of the Party claiming Force Majeure, including
      acts of God, acts of the government (including failure or delay by the
      government in issuing, or cancellation or non-renewal of, any applicable
      permit, in each case without just cause), fire, flood, pandemics,
      earthquake, explosion, riot or civil insurrection, war, sabotage, nuclear
      accident, pandemic, acts of terrorism, and any industry or trade wide
      strike or any other strike not specifically directed at Company,
      Contractor, a Subcontractor, or Supplier.

               

              Goods,
      Materials and Equipment mean all materials, commodities, supplies,
      apparatus, equipment, and machinery that Contractor, unless other wise
      stated, is obligated to provide and which will become a permanent part of
      the Project when it is completed. The provisions of the Uniform Commercial
      Code as adopted and set forth in the Montana Code Annotated, shall apply
      to Goods unless otherwise specified in writing agreed to by the
      Parties.

               

              Guaranteed
      Maximum Price (GMP) The term “GMP” means the Guaranteed Maximum
      Price (excluding approved Change Orders) that shall be established by
      executing this Contract and, is the total maximum amount that the
      Contractor may be compensated under the GMP scope of work. The GMP shall
      include Contractor overhead and profit. The GMP will not be adjusted for
      the value of approved Change Orders. Approved Change Orders shall be
      managed outside the GMP structured price. Refer to Attachment B – Price
      & Payment section 9. Contractor shall be solely liable and responsible
      for and pay any and all costs in excess of the Guaranteed Maximum Price
      without entitlement to reimbursement from the Company.

               

              GMP
      Contract Cost means Actual Costs plus overhead and
      profit.

               

              Hazardous
      Materials means any chemical substance, mixture or contaminant,
      pesticide, source material, regulated nuclear material, residual
      radioactive material, harmful physical agents, air pollutants, or
      hazardous waste or by-product material that is regulated or defined by
      Law. Includes the purchase, possession, transportation, use, and/or
      disposal of such material.

               

              Industry Practice means,
      with respect to each of engineering, design, construction, operation, and
      maintenance of the Work, the practices, methods, procedures, equipment,
      and tools which comply with all applicable Laws and are used by a
      significant portion of other similar businesses and industries in the
      United States.

            


       

       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              Labor
      means all Field Non-Manual Labor and Craft Labor.

               

              Laws
      mean all laws, statutes, regulations, ordinances, executive orders, codes,
      and similar pronouncements published by any governmental
      authority.

               

              Lender means the
      financial institution providing all or a portion of the Project financing
      and includes Lender’s subsidiaries, affiliates, agents, representatives,
      successors or assigns, officers, directors, agents, and
      employees.

               

              Lien
      means any claim, lien, mortgage, encumbrance, pledge, charge, lease,
      easement, servitude, right of others, or security interest of any
      kind.

               

              Limited
      Notice to Proceed (“LNTP”) means a Notice specifying the date
      Contractor is authorized by Company to start the Work to the limited
      extent specified in the LNTP.

               

              Losses
      mean any claims, demands, suits, proceedings, fines, penalties,
      liabilities, judgments, awards, damages, interests, costs, or other such
      expenses including reasonable attorney fees and court costs, but do not
      include any indirect, special, incidental, consequential, or exemplary
      damages.

               

              Mechanical
      Completion means the stage in the progress of the Work when all
      Materials and Equipment which Contractor is responsible to install: (a)
      have been completely installed, connected mechanically and electrically,
      aligned, balanced, lubricated, charged with proper lubricants, chemicals,
      and/or gases; and (b) are otherwise mechanically and electrically sound in
      all respects; and (c) have successfully completed all pre-operational
      tests; and (d) are capable of being operated within manufacturers’
      recommended limits in compliance with all Laws and without hazard or
      danger to any property and without danger of injury to persons or
      property.

               

              Notice
      means a written document prepared and delivered by one Party to another
      Party.

               

              Notice to
      Proceed (“NTP”) means a Notice specifying the date Contractor is
      authorized by Company to start the Work.

               

              Notify
      means to provide Notice.

               

              Person
      means any individual, corporation, partnership, limited liability company,
      joint venture, association, joint-stock company, trust, non-incorporated
      organization, or government or any agency or political subdivision
      thereof.

               

              Professional Services
      mean the performance of engineering, design, consulting, testing, or other
      technical services performed by persons specially licensed, certified, or
      otherwise acknowledged to have specialized training, experience, and
      skills in the art. Professional Services require the exercise of skilled
      judgment and expertise in addressing and completing the
    Work.

            	 
      	
              Project
      means the total effort being undertaken by the Company, of which the Work
      performed under this Contract may be the whole or may be a part, and which
      may include work by other Contractors to Company or by Company or by
      Company’s own forces including Persons under separate contracts with
      Company.

               

              Project
      Safety Plans shall have the meaning set forth in Section
      11.

               

              Project Schedule means
      the overall integrated schedule for the Project developed by Company with
      input from others, including Contractor.

               

              Project
      Site means the land and other places on, under, in, or through
      which the Work is to be installed, executed or carried out, and any other
      lands or places provided for the purposes of the Project, together with
      such other places as may be specifically designated in this Contract as
      forming part of the Project Site. Where the Work is but a part of the
      Project, Contractor may be granted access for ingress, egress to the
      particular part of the Project Site where the Work is to be performed, but
      not necessarily to the entire Project Site.

               

              Revise and
      Resubmit, when applied by Company to Contractor's Deliverables,
      means that the Deliverables are unsatisfactory, as determined by the
      Company in its sole discretion, because they do not interface properly
      with Company-furnished components of the Project or do not comply with the
      requirements of the Contract.

               

              Services
      mean those efforts expended, that do not produce a tangible input
      to the direct construction and installation of the plant
      facility.

               

              Site
      Manager means Contractor’s senior representative on the Project
      Site.

               

              Specifications
      mean the documents identified as such or referred to in this Contract and
      which sets forth the technical requirements for the Work and for the
      performance of related Services.

               

              Stop Work
      Order means a Company Directive ordering Contractor to cease all
      Work to the extent described in the order.

               

              Subcontractor
      means any person, at any tier, who has a contract with Contractor or with
      any other Lower Tier Subcontractor to perform a portion of the Work at the
      Project Site.

               

              Substantial
      Completion means the stage in the progress of the Work
      when:

              (a)
      Mechanical Completion has been achieved; and

              (b)
      operational testing, whether by Contractor, Company, or both, has been
      successfully completed; and

              (c) performance guarantees, if any, have been demonstrated;
      and

               

            


      
         

        
          
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

          

        

        
          

          

        

         

      

      	
              (d)
      the Work is ready for uninterrupted operation; and

              (e)
      the Work or designated portion thereof is sufficiently complete in
      accordance with this Contract so that Company can occupy the Work and
      utilize it for its intended use; and

              (f)
      remaining items are set forth in the punch list mutually agreed by
      Contractor and Company, inclusive of anticipated completion dates for
      items on the punch list, which the Parties shall endeavor to agree upon
      promptly and in good faith.

              Integrated
      plant operation will not occur until all 3 units are
      available.  Tie-ins and unit outages will be performed as
      necessary during the construction effort to complete the
      plant.

               

              Supplier
      means any Person providing or supplying any Goods, Construction Works, or
      Materials and Equipment to Contractor or to its
      Subcontractors.

               

              Technical
      Document List (“TDL”) means the documents, Drawings and
      Specifications compiled in a list as required.

               

              Total
      Contract Cost means cumulative value of GMP Contract Cost, approved
      Change Orders, plus half of shared savings.

               

              Warranty
      Period shall have the meaning set forth in Section 64.

               

              Work
      means all the resources including Goods, Labor, Construction Works,
      Materials and Equipment, Services, supervision, and management required by
      this Contract, whether provided by Contractor or provided to Contractor by
      Company, its Authorized Representative or others in order to fulfill
      Contractor’s obligations under this Contract. Work also includes all
      duties, responsibilities, and other obligations undertaken by Contractor
      under this Contract, whether expressed or implied.

               

              2   General

               

              This
      Contract constitutes the complete integrated agreement between the Company
      and Contractor regarding the Work, and it supersedes all prior agreements
      or undertakings.  Any exceptions or additional terms, whether
      written or oral, including those terms in the Contractor’s bid or proposal
      not expressly incorporated herein, are rejected.  No course of
      prior dealing or performance between Company and Contractor or industry
      usage shall be construed or interpreted to modify any term, condition,
      requirement, or instruction set forth in the Contract.

            	 
      	
              3   Representations
      by Contractor

               

              3.1   Contractor represents that it has thoroughly examined the
      Contract; has studied all information provided or otherwise made available
      by Company; has familiarized itself with all applicable state and Federal,
      and local laws; and is experienced, qualified, and licensed (to the extent
      required by applicable Laws) to perform the Work.

               

              3.2   Contractor
      also represents that it has visited the Project Site and that the GMP
      includes consideration of all the general and local conditions that might
      impact the Work including climatic conditions, existing surface
      conditions, existing structures, availability of qualified labor,
      availability of utilities, access to the Project Site, transportation
      facilities, disposal, storage, handling of Materials and Equipment, and
      any necessary Construction Works.

               

              3.3   Contractor agrees and acknowledges that any surface or
      subsurface reports, topographic maps, geotechnical reports, information
      regarding the physical condition or character of the Project Site,
      existing structures at the Project Site, or material equipment or
      materials at the Project Site, or other information made available to
      Contractor by Company or its Authorized Representative are solely for
      Contractor’s convenience and not represented or warranted to be
      accurate.  Contractor acknowledges that Company and its
      Authorized Representative assume no responsibility or liability for
      conclusions or interpretations made by Contractor based on any information
      Company or its Authorized Representative has made available to
      Contractor.  Contractor further acknowledges that Company and
      its Authorized Representative assume no responsibility or liability for
      any understandings reached or representations made by third parties,
      including Company, or its employees or agents, and its Authorized
      Representative concerning conditions that may affect the
      Work.  Any failure by Contractor to take the actions described
      in this Section 3 shall not relieve Contractor from its responsibility for
      properly estimating the difficulty and cost of successfully performing the
      Work.

               

              4   Scope
      of Work

               

              The
      Contractor’s detailed scope of work is set forth in Attachment A -
      Scope.  Unless otherwise stated in the Contract, Contractor
      shall provide all resources including Goods, Labor, Construction Works,
      Materials and Equipment, Services, supervision, and management, necessary
      to fulfill Contractor’s obligations under this
  Contract.

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              5   Price
      & Payment

               

              The
      GMP and payment terms are set forth in Attachment B - Price & Payment.
      Attachment B – Price and Payment also contains the schedule of liquidated
      damages that may be imposed by Company for Contractor delay. The GMP
      includes the cost of all resources necessary to complete the Work in
      accordance with the requirements of the Contract. Contractor acknowledges
      and agrees that the Total Contract Cost will be paid to Contractor in
      trust first for the benefit of Contractor’s employees, Subcontractors, and
      Suppliers.

               

              6   Schedule

               

              6.1   The
      Contract Schedule for the performance of Contractor’s Work is set forth in
      Attachment A.  Contractor shall begin its Work upon receipt of a
      LNTP or an NTP.  However, Contractor shall not begin any
      physical Work on the Project Site until it receives a fully executed
      “Release to Work” (Exhibit 3) from Company. Contractor agrees and
      acknowledges that time is of the essence in the performance of this
      Contract. Provided that the Company is not in breach of this Contract,
      Contractor shall take whatever measures are necessary to complete its Work
      according to the Contract Schedule.  Contractor agrees and
      acknowledges that at times, the Project Site may have very limited areas
      available for lay down of materials, staging of materials, fabrication
      facilities, or pre-assembly operations.  In addition, several
      contractors will be working on the Project Site at the same time, and
      Contractor will have to coordinate its activities with those of Company,
      its Authorized Representative and other Subcontractors.  At
      times, this will require Contractor to focus on activities other than
      those most critical to the Contract Schedule.

               

              6.2   If
      Contractor cannot timely complete the Work on the Project as a result of
      third parties, other than those third parties under Contractors control
      and supervision as defined in the general terms and conditions of this
      Contract, interfering with Contractor’s Work, then Contractor shall be
      entitled to an equitable adjustment to the Contract Schedule.

               

              6.3   Contractor
      shall Notify Company and its Authorized Representative of any potential
      delay to the Work, including delays caused by third parties, other than
      those third parties under Contractor’s control and supervision as defined
      in the general terms and conditions of this Contract, within five (5) days
      after the event giving rise to the potential delay becomes known to
      Contractor. The Notice shall describe the cause of the potential delay and
      the plan Contractor proposes to avoid,

               

            	 
      	
              mitigate,
      or recover from the delay. Such recovery plan shall be subject to
      Company’s or its Authorized Representative’s review and approval. If
      Contractor fails to take steps that Company or its Authorized
      Representative determine are necessary to avoid or recover from the delay,
      Company or its Authorized Representative may direct Contractor to
      accelerate its Work by providing additional resources to recover and
      maintain the Contract Schedule.  Unless the delay is caused by
      the Company, third parties other than those third parties under
      Contractor’s control and supervision as defined in the general terms and
      conditions of this Contract, or Force Majeure, all costs incurred by
      Contractor to accelerate its Work shall be the responsibility of the
      Contractor.  In addition to its right to direct Contractor to
      accelerate its Work, Company or its Authorized Representative may exercise
      any other remedy specified herein or otherwise available under applicable
      Laws or in equity. Company or the Company’s Authorized Representative’s
      approval of Contractor’s proposed action to recover the delay or Company's
      or its Authorized Representative’s Directive to accelerate the Work shall
      not constitute a waiver of any right or remedy available to Company under
      this Contract, at law, or equity.  Further any directive to
      accelerate work shall not constitute a waiver of any of the provisions of
      this Contract.

               

              7   Independent
      Contractor

               

              7.1   Contractor
      is and shall operate as an independent contractor in the performance of
      the Work and not as an agent or employee of Company. Nothing contained in
      this Contract is intended nor shall be construed as creating any
      contractual relationship between any Persons other than Company and
      Contractor. Contractor shall obtain any and all state and/or local
      licenses, certificates, or permits required to obtain and maintain
      independent contractor status that may be required by the State of
      Montana.

               

              7.2   At
      all times, Contractor shall be solely responsible for the means, methods,
      sequences, and procedures for performing its Work.

               

              7.3   Subject
      to the limits in Section 8, Contractor has sole authority, control and
      responsibility to employ, discharge, supervise and otherwise manage its
      employees.

               

              8   Supervision
      and Labor

               

              Contractor
      shall provide an adequate number of Competent Persons to perform the Work.
      Prior to the start of the Work, Contractor shall submit the resume of
      a

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              Competent
      Person to act as Contractor’s supervisor.  Once approved by
      Company, said supervisor shall be present on the Project Site whenever
      Contractor is performing Work. Contractor’s supervisor shall have complete
      authority to act on behalf of Contractor in all matters pertaining to
      execution of the Work. Contractor shall not remove or replace its
      supervisor or any other of its supervisory staff assigned to the Work
      without the prior written consent of Company.

               

              9   Subcontractors
      and Suppliers

               

              Contractor
      shall not subcontract performance of any portion of the Work to any
      Subcontractor or Supplier that does not meet the prequalification criteria
      applicable to such Subcontractor or Supplier as set forth in Attachment G.
      If there is an issue with Subcontractor or Supplier prequalification,
      Contractor may address the matter with Company. Upon request, Contractor
      shall furnish Company and its Authorized Representative a copy of any
      subcontract or purchase order for Company’s or its Authorized
      Representative’s information. Contractor shall also furnish to Company and
      its Authorized Representative such information pertaining to the proposed
      Subcontractor or Supplier as Company or its Authorized Representative may
      reasonably request including financial statements, safety data, and
      references.  Contractor shall not subcontract any portion of the
      Work to any Person that has a direct contractual relationship with
      Company. Failure of Contractor to comply with this Section 9 may, at the
      sole discretion of Company, be deemed to be a material breach of this
      Contract.  Notwithstanding anything to the contrary in this
      Section 9, Contractor shall remain liable to Company for any and all
      Losses incurred by Company caused by or related to any act of any
      Subcontractor or Supplier.

               

              10   Labor
      Relations

               

              10.1   Contractor shall strictly comply with all the Project Job Rules
      (Attachment D) and any procedures established by Contractor for employee
      conduct at the Project Site.  Company reserves the right to
      revise any such rule, and Contractor shall fully comply with such rules as
      revised.

               

              10.2   Contractor
      shall use its best efforts to minimize the risk of labor-related delays
      including, if applicable, using its best efforts to negotiate a Project
      agreement that includes a no-strike provision.  Contractor shall
      promptly take any and all steps that may be available to resolve
      violations of collective bargaining agreements and jurisdictional disputes
      including the filing of appropriate processes with any court or
      administrative agency having jurisdiction to settle, enjoin, or award
      damages resulting from violations of collective bargaining agreements or
      jurisdictional disputes.

               

            	 
      	
              10.3   Contractor
      shall promptly Notify Company and its Authorized Representative of any
      actual, anticipated, or threatened labor dispute that might affect the
      performance of the Work of Contractor or any of its Subcontractors or
      Suppliers.

               

              10.4   Contractor
      acknowledges that Materials and Equipment to be furnished by Company, if
      any, may be provided by non-union shops, and Contractor expressly agrees
      that any labor disputes resulting from this circumstance shall not
      constitute an event for which Contractor may seek relief under Force
      Majeure or any other provision of this Contract.

               

              11   Environmental,
      Health & Safety

               

              11.1   Contractor
      acknowledges and agrees that its paramount obligation under this Contract
      is to perform its Work in a safe manner. To that end, Contractor shall, at
      a minimum, perform its Work in accordance with all applicable State,
      Federal and Local Laws and regulations.  Further, Contractor
      hereby represents and warrants that it has a comprehensive safety, health,
      and environmental program and corresponding policies to insure human as
      well as environmental health and safety.

               

              11.2   Contractor
      agrees to develop, in advance of project commencement, a written,
      comprehensive, site-specific project safety plan covering all aspects of
      the Work required to complete the project.  This plan will be
      available at the main office of the construction site and available for
      review at all times Contractor employees are at Work on the
      project.  A copy of this plan will be submitted to the Company
      prior to the commencement of work.

               

              11.3   As
      part of the site specific project safety plan, the Contractor will develop
      and implement an effective training and inspection program to ensure all
      Contractor employees understand and follow all Contractor required safety
      rules and requirements.  Details of the training and inspection
      program shall be included in the site specific project safety
      plan.

               

              11.4   Prior
      to mobilizing at the Project Site, Contractor shall designate a Competent
      Person who shall have the overall responsibility for implementing the
      requirements of the Project Safety Plans. The Competent Person shall (a)
      be present on the Project Site whenever Contractor is performing Work, (b)
      be able to identify hazards associated with the Work, and (c) have
      complete authority to stop the Work if he / she deems it
      necessary.  The designation of this Competent Person will be
      identified in the site specific project safety plan described in
      Attachment E.

               

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              11.5   The
      Contractor will develop an effective program to preclude and prevent the
      potential for any Contractor or Subcontractor employees to be using or
      under the influence of any alcohol or controlled substance (drugs) while
      on the project site.

               

              11.6   Notwithstanding
      any of the requirements of this section, including the submission of the
      site specific project safety plan or any safety related actions by the
      Company, the Contractor retains sole responsibility for the safe execution
      of the Work and the overall safety of both Contractor and any
      Subcontractor employees.  All the requirements of this section
      shall apply equally to any Subcontractors hired by the
      Contractor.

               

              12   Hazardous
      Materials

               

              12.1   Contractor
      shall be solely responsible for all Hazardous Materials on the Project
      Site including reporting, accounting, licensing, care, transportation,
      storage, use, treatment, and disposal introduced by Contractor. This
      excludes pre-existing hazardous material. In carrying out its obligations
      under this Section 12, Contractor shall comply with the site specific
      project safety plan and all applicable Laws.

               

              12.2   A
      Hazardous Material is any substance or material identified now or in the
      future as hazardous under any federal, state or local law or regulations,
      or any other substance or material that may be considered hazardous or
      otherwise subject to statutory or regulatory requirement governing
      handling, disposal or clean-up. The Contractor shall not be obligated to
      commence or continue work until any pre-existing Hazardous Material
      discovered at the Worksite has been removed, rendered or determined to be
      harmless by the Contractor as certified by an independent testing
      laboratory and approved by the appropriated government
agency.

               

              12.3   If
      after the commencement of the Work, pre-existing Hazardous Material is
      discovered at the Worksite, the Contractor shall be entitled to
      immediately stop Work in the affected area. The Contractor shall report
      the condition to the Company, and, if required, the government agency with
      jurisdiction.

               

              12.4   The
      Contractor shall not be required to perform any Work relating to or in the
      area of pre-existing Hazardous Material without written mutual
      agreement.

               

              12.5   Contractor
      must obtain Company approval prior to offsite disposal of existing
      soil.

               

            	 
      	
              13   Cleanup

               

              Contractor
      acknowledges and agrees that cleanliness is an important factor in
      creating a safe work environment.  Contractor shall at all times
      keep work areas in a neat, clean, and orderly condition and shall promptly
      and properly dispose of all debris and rubbish resulting from Contractor’s
      operations.  If Contractor fails to maintain its work areas in a
      manner satisfactory to Company or its Authorized Representative or fails
      to immediately clean up after receipt of Notice from Company or its
      Authorized Representative to do so, Company or its Authorized
      Representative shall have the right, without further notice to Contractor,
      to clean up Contractor’s work areas and backcharge the cost to
      Contractor.

               

              14   Stop
      Work Orders

               

              Contractor
      is responsible for conducting the Work, however, Contractor shall at all
      times abide by the reasonable instructions of Company’s Site Manager and
      its Authorized Representative and any Company Directives.  If
      Contractor fails to comply with any such instructions, Directives, or the
      requirements of this Contract, Company or its Authorized Representative
      shall have the authority (a) to stop any portion of the Work affected by
      such failure until such failure is remedied or (b) to terminate this
      Contract for default in accordance with Section 41.  In the
      event that Company or its Authorized Representative is forced to issue a
      Stop Work Order, Contractor shall be liable for all resulting cost and
      Contract Schedule impacts.

               

              15   Permits & Licenses

               

              Contractor
      shall promptly apply for and procure, without additional compensation, all
      certificates, licenses, permits, and similar permissions required by
      applicable Laws necessary to perform except for such permits as may be
      specifically set forth as Company’s responsibility elsewhere within this
      Contract.

               

              16   Submittals

               

              16.1   Contractor
      shall submit to Company or its Authorized Representative all Deliverables
      required by the Contract. The submission of any such Deliverables shall be
      certification by Contractor that the information set forth therein is
      accurate in all material respects and conforms to the Contract
      requirements and all applicable Laws.

               

              16.2   Unless
      the Contract indicates that any such Deliverable is to be for Company' or
      its Authorized Representative’s information only, Company or its
      Authorized Representative, upon receipt of Contractor's Deliverables,
      shall review and return same to Contractor, marked as "Accepted,"
      "Accepted as Certified," or "Revise and Resubmit".

               

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              The
      timing of Contractor's Deliverables and Company’s review shall be in
      accordance with the Contract Schedule. If the Schedule does not show a
      time for submission or approval, the submissions shall be made so as not
      to delay the Work, and Company or its Authorized Representative shall have
      a reasonable period to review the Deliverables.  Contractor
      shall be entitled to an equitable adjustment to the Contract Schedule if
      the Company, in reviewing the Deliverables, directly causes a material
      delay in the construction progress.

               

              16.3   Upon
      receipt of a Deliverable marked "Accepted," Contractor may proceed with
      the Work to the extent of and in accordance with the Accepted
      Deliverable.

               

              16.4   Upon
      receipt of a Deliverable marked "Accepted as Certified" and if Contractor
      concurs with Company's or its Authorized Representative’s comments,
      Contractor shall incorporate the comments and may proceed with the Work to
      the extent of and in accordance with the Accepted as Certified
      Deliverable. Within fourteen (14) Days, Contractor shall submit a revised
      Deliverable in which Company's or its Authorized Representative’s comments
      have been incorporated.  If Contractor determines that it cannot
      incorporate Company's or its Authorized Representative’s comments without
      prejudice to Contractor's warranty or other obligations under this
      Contract, Contractor shall so advise Company and its Authorized
      Representative in writing within seven (7) days of its receipt of
      Company's or its Authorized Representative’s comments, stating the reasons
      therefore. In this case, Contractor may proceed with the Work to the
      extent of and in accordance with the Accepted as Certified Deliverable
      only after resolution of Company’s or its Authorized Representative’s
      comments and Contractor’s objections.

               

              16.5   Upon
      receipt of a Deliverable marked "Revise and Resubmit," Contractor shall
      immediately take all necessary action to revise its Deliverable in
      accordance with Company's or its Authorized Representative’s comments and
      to resubmit the document to Company and its Authorized
      Representative.  In no event shall Contractor proceed with the
      affected Work until its revised Deliverable has been returned to
      Contractor marked as "Accepted" or "Accepted as Certified" by
      Company.

               

              16.6   Use
      of the term “Accepted” or “Accepted as Certified” shall not excuse or
      otherwise discharge Contractor from its responsibility to
      supply

               

               

            	 
      	
              Materials
      and Equipment that interface with Company-furnished components and comply
      with the requirements of this Contract, including the Specifications and
      Drawings as provided in the Contract and the documentation incorporated
      thereto.  Provided the review does not directly cause a material
      delay to the Contract Schedule, review and comment by Company or its
      Authorized Representative of Contractor’s Deliverable shall not relieve
      Contractor of its obligation to maintain the Contract Schedule and to
      complete the Work in accordance with this Contract, and any such review
      and comment by Company or its Authorized Representative shall not
      constitute a waiver of Company’s rights under this Contract with respect
      to nonconforming Work.

               

              17   Issued
      for Construction Documents

               

              17.1   Contractor
      shall perform the Work using only Drawings and Specifications marked by
      Contractor as "Issued for Construction" or equivalent
      designation.

               

              17.2   Contractor
      shall maintain at the Project Site, a complete and current set of "Issued
      for Construction" Drawings and Specifications.

               

              18   Ownership
      and Use of Contractor Deliverables

               

              18.1   All
      Deliverables prepared or developed by Contractor and submitted to Company
      in the performance of the Work shall be the property of Company, and such
      Deliverables may be used by Company without restriction in the design,
      construction, operation, maintenance, and use of the Project.

               

              18.2   To
      the extent that the Deliverables contain any intellectual property
      belonging to Contractor, Company shall have a royalty-free perpetual
      license, at no additional charge, providing the Company the right to use
      such property in the design, construction, operation, maintenance, and use
      of the Project.

               

              18.3   Company
      and its Authorized Representative shall have the right to reproduce all
      Deliverables received from Contractor that are related to the Project
      notwithstanding any notice to the contrary appearing on the
      document.  If requested by Company or its Authorized
      Representative, Contractor shall provide a certificate to that
      effect.

               

              19   Substitutions

               

              Contractor
      may propose substitutions for the specified Goods or Materials and
      Equipment.  Contractor’s proposal shall constitute a warranty by
      Contractor that the proposed substitution is equal or superior to the item
      for

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              which
      it is being substituted
      and is fit for its intended purpose.  Company's or its
      Authorized Representative’s decision on the use of any such substitution
      shall be final.  If the substitution is accepted, the Company
      will issue a Change Order to that effect in accordance with Section
      37.  Company’s or its Authorized Representative’s approval shall
      not excuse any of Contractor’s obligations including its warranty
      obligations.  Contractor shall be solely liable for the cost and
      schedule impacts of using any substitution.

               

              20   Discrepancies

               

              Whenever,
      in Contractor's opinion, the Contract documents or any portion of the Work
      are defective, deficient, or at variance with each other or with any Laws
      applicable to the Work, Contractor shall immediately discontinue
      performance on the portion of the Work affected thereby and Notify Company
      and its Authorized Representative of such opinion.  Thereafter,
      Contractor shall not proceed with the portion of the Work so affected
      until it has received a Directive specifying what action, if any, is to be
      taken.  If Contractor proceeds with any affected portion of the
      Work prior to receiving such Directive, such Work shall be at Contractor’s
      risk.

               

              21   Quality
      Control/Quality Assurance Program

               

              21.1   Contractor
      shall submit for review a Project-Specific Quality Control
      Program.  Contractor shall assign a Competent Person at the
      Project Site to implement and supervise Contractor’s Quality Control
      Program.

               

              21.2   For
      Work that includes the installation, placement, storage, or preventative
      maintenance of Materials and Equipment, Contractor shall use Contractor’s
      appropriate procedures, systems, and forms to generate and track quality
      and inspection documentation, turnover punch lists, and preventive
      maintenance.

               

              21.3   Contractor
      shall, without additional compensation, make or cause to be made all
      inspections and tests required by this Contract.  If the results
      or methods of performance of such inspections or tests fail to conform to
      the requirements of the Contract, Company or its Authorized Representative
      may, at its sole discretion, require Contractor to perform additional
      inspections and tests, all costs of which shall be to the account of
      Contractor.  Contractor shall furnish Company and its Authorized
      Representative with satisfactory documentation of the results of all
      inspections and tests. Company and its Authorized Representative shall be
      given not less than seven (7) days Notice of any inspections or tests to
      be made by Contractor or by its Subcontractors or Suppliers so that
      Company or its Authorized Representative

               

               

            	 
      	
              may,
      at its option, witness any such inspections or tests.

               

              21.4   Unless
      specifically permitted by the Specifications, Contractor shall employ a
      qualified and approved independent testing agency, acceptable to Company
      and its Authorized Representative, to perform all required
      testing.

               

              22   Materials
      Management Procedure

               

              22.1   If
      required by the Scope of Work (Attachment A), Contractor shall, prior to
      the start of the Work, prepare and submit for approval a Project-Specific
      Materials Management Procedure (“MMP”). Contractor shall assign a
      Competent Person at the Project Site to implement and supervise
      Contractor’s Materials Management Procedure.

               

              22.2   The
      MMP shall be a comprehensive computer-based system capable of tracking
      Contractor-supplied Materials and Equipment from requisition through order
      placement, delivery to the Project Site or other storage areas, receipt
      into inventory, and issuance from inventory for incorporation into the
      Work.

               

              22.3   In
      addition, the MMP shall be used to track all Materials and Equipment
      furnished to Contractor by Company, its Authorized Representative, or
      third parties.  These Materials and Equipment shall be tracked
      either from purchase order information furnished by Company or other third
      parties or from the actual receipt and turn-over of Materials and
      Equipment to Contractor.

               

              23   Control
      of Materials and Equipment Furnished by Company

               

              23.1   Materials
      and Equipment furnished by Company to Contractor for Contractor’s
      installation, erection, or incorporation into the Work shall be offloaded
      and received by Contractor in the presence of Company’s or its Authorized
      Representative’s site representative or his designated
      representative.  Quantities of such Materials and Equipment
      shall be checked jointly by Contractor and Company or its Authorized
      Representative.  Contractor’s receiving and acceptance of such
      Materials and Equipment shall be recorded in writing and evidenced by
      Contractor’s signing of forms satisfactory to Company or its Authorized
      Representative.

               

              23.2   If the nature of the shipping packaging allows, Contractor
      shall inspect and carefully note any visible shortage of or damage to the
      Materials and Equipment furnished by Company prior to the unloading of
      same from the carrier.  Where such inspection and inventory is
      not possible prior to

               

            


      
         

        
          
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

          

        

        
          

          

        

         

      

      	
              unloading,
      Contractor shall inspect and inventory such Materials and Equipment as
      soon after unloading as practicable, but in any event, prior to moving
      such Materials and Equipment to storage.  Such inspection and
      inventory may require the opening and resealing of crates or cartons in
      order to ascertain the existence of any visible damage or of shortages in
      the quantities indicated in the shipping documents.  Contractor
      shall Notify Company or its Authorized Representative promptly of any
      shortages or damage revealed by its inspection.

              23.3   Provided
      that the Company and Contractor were available for a timely inspection
      under 23.2, any shortage of or damage to such Materials and Equipment that
      is found after the time required for inspection under Section 23.2, and
      that would have been revealed in a proper inspection pursuant to Section
      23.2, shall be deemed to have been caused by Contractor, and Contractor
      shall assume full responsibility for any shortages in, loss of, or damage
      to such Materials and Equipment and for any delay in completion of the
      Work caused thereby.

               

              23.4   Contractor
      shall Notify Company or its Authorized Representative of any additional
      requirements for Materials and Equipment being supplied by
      Company.  Such Notice shall be made as soon as the need for the
      additional requirement is discovered, but, in any event, in sufficient
      time for Company or its Authorized Representative to address the
      requirement.  In the event of a misfit of the Materials and
      Equipment furnished by Company, Contractor shall immediately Notify
      Company or its Authorized Representative of such
      misfit.  Contractor shall take all reasonable steps to avoid
      standby time due to lack of such Materials and Equipment or misfits and
      shall continue to perform other portions of the Work pending resolution of
      such situations by Company and its Authorized Representative.

               

              23.5   Contractor
      shall Notify Company or its Authorized Representative of any Materials and
      Equipment supplied to Contractor that are surplus and shall cooperate with
      Company and/or its Authorized Representative in the disposition of such
      surplus as directed by Company or its Authorized
      Representative.

               

              24   Project
      Controls Requirements

               

              24.1   Contractor
      shall provide Company and its Authorized Representative with appropriate
      reports and updates in sufficient detail to enable Company and its
      Authorized Representative to measure

               

            	 
      	
              Contractor’s
      progress against the current short term work plan on a weekly
      basis.  In addition, Contractor
      shall schedule and conduct Contractor
      shall schedule and conduct weekly progress meetings and weekly
      coordination meetings unless a need for more frequent meetings are needed
      or requested by the Contractor, the Company or the Company’s Authorized
      Representative.

               

              24.2   Detailed
      Contract Schedule

               

              a. Within
      thirty (30) calendar days of the effective date of this Contract,
      Contractor shall submit, for Company or its Authorized Representative’s
      review and approval, a detailed Contract schedule in CPM format using the
      latest software (currently Primavera 6.0).  Company or its
      Authorized Representative shall set the Project activity codes dictionary
      structure, calendars, activity ID and Project ID numbering system etc. in
      consultation with the Contractor.  The Company’s or Authorized
      Representative’s Project planner will also arrange a Project calendar to
      set the data dates for schedule updates, in order to facilitate easy
      electronic integration of the overall Project Schedule. This Contract
      Schedule shall include ample allowance for normal delays and difficulties
      that may be encountered in the work of this nature including weather,
      holidays, coordination and normal job site congestion.  At a
      minimum, the detailed Contract Schedule must support the dates given in
      the Project Schedule and show a logical and orderly array of resource
      loaded activities (materials, equipment and man hours) required to achieve
      completion of the work.  Individual activity durations shall not
      be longer than twenty (20) work days.  In case the submitted
      Contract Schedule is found deficient by the Company or its Authorized
      Representative, the Contractor shall correct the deficiencies and resubmit
      the schedule within five (5) working days for Company or its Authorized
      Representative’s approval.  The approved Contract Schedule will
      become the baseline against which schedule performance is
      measured.  Forecasted deviation of the completion date from this
      baseline by greater than one week will require a recovery plan addressing
      the causes of the deviation. The baseline will not be revised except by
      Change Order.

               

              b. In
      conjunction with the development of the detailed Contract Schedule,
      Contractor shall produce production and quantity installation schedules
      for each major discipline, commodity, and craft activity.  These
      schedules shall reflect in tabular and graphical form the Deliverables to
      be produced or quantities to be installed each period.  These
      schedules shall be updated by Contractor on a weekly basis throughout
      execution of the Work.

               

              24.3   Four
      Week Schedule (Three Week Look-Ahead)

               

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              During
      the execution of the Work, Contractor shall submit to Company or its
      Authorized Representative a weekly short term schedule showing the
      previous week's Work and a three week look-ahead schedule including
      engineering, procurement, and construction activities as appropriate (the
      "Four Week Schedule").  As a minimum, the Four Week Schedule
      shall include all activities, Contract Schedule milestones, and payment
      milestones identified on the detailed Contract Schedule for the four week
      period.  The Four Week Schedule must identify all activities by
      area, and must include manpower loading for each activity.

               

              24.4   Daily
      Report

               

              Beginning
      with the first day of activity on the Project Site and continuing until
      completion of the Work, Contractor shall submit a “Daily Report” in form
      and substance acceptable to Company ‘s Authorized Representative. At a
      minimum, the Daily Report shall list any safety incidents, manpower by
      craft, equipment, FWOs, and a brief description of Contractor’s
      activities. The report for the previous day shall be submitted to the
      Company and its Authorized Representative by 9:00 a.m. of each working
      day.  Daily reporting may be suspended at the discretion of the
      Company in the event work is slowed or stopped.

               

              24.5   Weekly
      Status Report

               

              Beginning
      with the start of activity on the Project Site and continuing until
      completion of the Work, Contractor shall submit a “Weekly Status Report”
      in form and substance acceptable to Company’s Authorized
      Representative.  At a minimum, the Weekly Status Report shall
      include safety statistics, completed work activities, schedule updates,
      manpower utilization, FWOs, and CORs.  The report for the
      previous week shall be submitted to Company’s Authorized Representative by
      9:00 a.m. of each Monday.

               

              24.6   Monthly
      Report

               

               

              a. Following
      the Effective Date of the Contract, Contractor shall submit a “Monthly
      Report” in form and substance acceptable to Company or its Authorized
      Representative.  At a minimum, the Monthly Report shall include
      the following:

               

              24.6.1.1 A
      brief description of work activities accomplished during the reporting
      period for all phases of the Work.

              24.6.1.2 Milestones
      Achieved.

              24.6.1.3 FWOs
      and CORs.

              24.6.1.4 Status
      of Documents and Drawings for Approval.

              24.6.1.5 Quality
      Assurance/Quality Control Activities.

              24.6.1.6 The
      updated detailed Contract Schedule including a detailed recovery plan for
      any schedule milestones that have slipped from the baseline Contract
      Schedule. The updated

               

            	 
      	
              detailed
      Contract Schedule and Monthly Report shall be submitted as separate
      documents.

               

              24.6.1.7 A
      narrative description of all problems affecting progress of the Work,
      proposed remedies to such problems, and other needs of
      Contractor.

               

               

              b.  The
      Monthly Report shall be submitted to Company or its Authorized
      Representative on the fifth day of each month.

               

              24.7   All
      reports required by this Section 24 shall be delivered to Company or its
      Authorized Representative in hard copy and native electronic format
      including any reports generated with Primavera 6.0.  The Company
      or its Authorized Representative will provide an example of weekly and
      monthly reports expected from the Contractor to insure proper management
      and success of this project.  Provision of these reports by the
      Contractor will be in accordance with the Project calendar.

               

              24.8   For
      Progress Measurement, the Contractor shall adhere to Company or its
      Authorized Representative’s standard rules of credit milestones, in
      accordance with Company or Authorized Representative approved progress
      measurement system.  Man-hour budgets will be reasonably spread
      over discrete elements of identifiable and quantifiable work to provide
      the budget basis for progress measurement.  Budget hours will be
      earned as quantities are installed.  Quantity surveillance will
      be performed by the Contractor and verified by the Company or Authorized
      Representative to confirm installed quantities and or earned
      man-hours.  Construction Progress measurement will be updated
      weekly.

               

              25   Construction
      Works

               

              Construction
      Works shall be in first-class operating condition, safe, and fit for the
      purposes for which they are used.  Such Construction Works shall
      be subject to inspection from time to time by Company, its Authorized
      Representative or by third parties as may be required by applicable
      Laws.  Any Construction Works that do not conform to the
      requirements of the Contract or applicable Laws shall be promptly removed
      by Contractor and replaced without additional cost to Company and without
      delaying the Contract Schedule.

               

              26   Expediting,
      Inspection, and Testing

               

              26.1    In
      addition to tests that may be specified elsewhere in this Contract,
      Company and its Authorized Representative shall have the right, but not
      the obligation, to inspect and test Contractor’s Work at any time,
      including any Work that may be performed at locations other than the
      Project Site,

               

               

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              to
      ensure compliance with the requirements of the Contract.  Any
      such inspection or lack of such inspection shall not excuse Contractor’s
      obligation to perform in accordance with the requirements of the
      Contract.  Contractor shall provide access and sufficient safe
      and proper facilities for such inspections and tests.

               

              26.2   If
      Contractor covers any portion of the Work prior to (i) an inspection or
      test required by this Contract, (ii) an inspection or test specified in
      the schedule of inspect and test activities, or (iii) an inspection or
      test previously requested by Company or its Authorized Representative, the
      cost of uncovering and restoring the Work to allow for such inspection or
      test shall be to Contractor’s account.

               

              26.3   If
      Industry Practices would require re-examination, then re-examination of
      any Work may be ordered by Company or Authorized
      Representative.  If, as a result of such re-examination, any
      part of the Work is determined by Company or Authorized Representative to
      be defective or to otherwise fail to conform to this Contract, Contractor
      shall not be reimbursed for uncovering the Work or for the repair or for
      the corrective work required to be performed or for any restoration
      costs.  If, as a result of such re-examination, the Work is
      found to conform to the Contract requirements, Company shall reimburse
      Contractor for the allowable direct documented cost incurred by Contractor
      to uncover and restore the re-examined portion of the Work and the
      Contractor shall be entitled to an equitable adjustment to the Contract
      for delay only in the event that re-examination shows conformity with the
      Contract.

               

              26.4   Rejection
      by Company or Authorized Representative of any non-conforming Work shall
      be final and binding.  Rejected Work shall be promptly repaired
      or replaced by Contractor so as to conform to this Contract and all costs
      thereof shall be to Contractor’s account.  If Contractor fails
      to promptly commence and diligently continue the repair or replacement of
      such rejected Work within five (5) days of receipt of written Notice from
      Company or Authorized Representative to do so, Company or its Authorized
      Representative may, at its option, cause the rejected Work to be repaired
      or replaced by others and all costs thereof shall be to Contractor’s
      account.  The refusal or failure to commence correction of the
      rejected Work upon Directive within five (5) days shall constitute a basis
      for Termination for Default of Contractor under Section 41 at the sole
      discretion of Company.  If Contractor commences correction as
      required under this section, Contractor reserves its

               

            	 
      	
              right
      to dispute the required correction for 30 days following the corrective
      action.

               

              27   Contractor's
      Shipments

               

              27.1   Contractor
      shall be responsible for shipping all Contractor-supplied Materials and
      Equipment and Construction Works to the Project Site including any
      required export licenses and customs clearance.  Contractor
      shall consign such shipments to itself at the shipping address for the
      Project, freight fully prepaid.  Contractor shall be responsible
      for making demurrage agreements and for settling any claims by carriers
      for such shipments.

               

              27.2   Contractor
      shall advise Company or its Authorized Representative, in writing, in
      advance of major shipments of Materials and Equipment or the delivery of
      major items of Construction Works and Contractor shall be responsible for
      all aspects  regarding
      the arrival, unloading, inspection, and release of the carriers'
      equipment.  Contractor shall coordinate as necessary with
      Company or it’s Authorized Representatives. Contractor shall promptly
      unload its shipments and release the carriers' equipment from the Project
      Site.

               

              28   Country
      of Origin

               

              Materials
      and Equipment shall have their origin in the country or countries as
      required by the Contract.  Unless otherwise indicated in the
      Contract, the country of origin shall be considered the country in which
      the Materials and Equipment become a commercially recognizable product
      that is substantially different in basic characteristics, purpose, or
      utility from its components and that results from fabricating,
      manufacturing, processing, or a substantial and major assembling of
      components.

               

              29   Spare
      Parts

               

              If
      the Work includes the furnishing of any Engineered Materials and Equipment
      and if Contractor intends to terminate or discontinue the production of
      spare parts related to such Materials and Equipment, Contractor shall give
      Company or its Authorized Representative Notice of its intention to do so
      in sufficient time to permit Company or its Authorized Representative to
      obtain their spare parts requirements from Contractor or from
      others.  Contractor shall provide to Company’s Authorized
      Representative, at no cost, the drawings, blueprints, and specifications
      for the fabrication, manufacture, and assembly of the spare parts if and
      as requested by Company or its Authorized Representative.  The
      obligations of this Section 29 shall survive any completion or termination
      of this Contract.

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              30   Title
      & Risk of Loss

               

              Title
      to all Materials and Equipment supplied by Contractor in the performance
      of its Work shall pass to Company on the earlier of (i) delivery to the
      Project Site or (ii) Contractor’s receipt of payment from
      Company.  Regardless of which Party has title, risk of loss
      shall remain with Contractor until Company assumes care, custody, and
      control or until Final Acceptance, whichever is earlier.

               

              31   Protection
      of the Work

               

              Regardless
      of who may hold title, Contractor shall be responsible for protection of
      the Work, including any Goods or Materials and Equipment furnished to
      Contractor by others, until Company assumes care, custody, and control or
      until Final Acceptance, whichever is earlier.  Until that time,
      Contractor shall take all necessary precautions to protect the Work from
      damage by the elements or by other construction activities.

               

              32   Possession
      Prior to Final Completion

               

              Company
      shall have the right to take possession of or use any completed or
      partially completed portion of the Work as Company may deem necessary for
      their operations.  If Company exercises the foregoing right,
      Company will provide written Notice to Contractor.  Such
      possession or use shall not constitute acceptance of Contractor's Work,
      but Contractor shall not be liable for damage or loss to the Work caused
      by Company, or third parties acting under the control of
      Company.

               

              33   Warranty
      of the Work

               

              33.1   Contractor
      warrants that (i) the Materials and Equipment furnished under the Contract
      will be of good quality and new unless otherwise required or permitted by
      the Contract, (ii) the Work will be free from defects not inherent in the
      quality required or permitted, (iii) the Work will be done in a
      professional and workmanlike manner in accordance with Industry Practice,
      and (iv) the Work will conform to the requirements of the
      Contract.

               

              33.2   The
      Warranty Period is set out in Section 65.  Nothing contained in
      Section 65 is intended nor shall be construed to limit any other
      obligations which the Contractor may have under the terms of the
      Contract.  The Warranty Period for correction of Work as
      described in Section 65 relates only to the specific obligation of the
      Contractor to correct the Work, and has no relationship to the time within
      which Company may seek to enforce Contractor’s other obligations under the
      Contract including Contractor’s liability for latent defects.

               

            	 
      	
              33.3   At
      any time prior to the end of the Warranty Period, Contractor shall
      replace, repeat, repair, retest, re-inspect, or otherwise correct any
      portion of the Work that fails to conform to the warranties in Section
      33.1.  Contractor shall perform any such Corrective Work at its
      sole expense.  In addition, Contractor shall be liable for the
      cost of correcting any Work of Company, or other contractors or
      Contractors that is destroyed or damaged by Contractor's Corrective Work
      or by removal of Contractor’s defective Work.

               

              33.4   In
      addition to the warranties in Section 33.1 above, and to the extent that
      Contractor is obligated to supply any Goods under this Contract,
      Contractor warrants that the Goods are new, of merchantable quality, and
      fit for their particular purpose.  If any Goods are found to be
      defective or otherwise not in conformance with the Contract, Company or
      its Authorized Representative shall have the right, upon giving notice and
      the basis for rejection, to either (a) reject any or all defective or
      nonconforming Goods or (b) accept and correct the
      Goods.  Contractor shall pay all costs and expenses arising from
      such rejection or correction.

               

              33.5   Contractor
      shall perform any required Corrective Work as soon as reasonably possible,
      but in any event, within five (5) Days after Contractor receives Notice
      from Company or its Authorized Representative that the Work is
      nonconforming.  If, despite Contractor’s reasonable efforts, the
      Corrective Work cannot be performed within said five (5) Day period,
      Contractor shall commence such Corrective Work immediately upon receipt of
      Notice from Company or its Authorized Representative and shall diligently
      and, without interruption, perform such Corrective Work until it is
      completed.  If Contractor contends that the Corrective Work
      directed by Company or its Authorized Representative is not covered by the
      warranty or is outside the Warranty Period, or that Contractor is not
      obligated to perform the Corrective Work for other reasons, Contractor
      shall nevertheless promptly proceed with the Corrective Work in accordance
      with the Company and or Authorized Representative’s Directive, submit a
      Notice of claim within seven (7) Days, and pursue its remedies under
      Section 62 hereof.

               

              33.6   If,
      during the Warranty Period, the performance of Corrective Work would
      disrupt the work of others or the commercial operation of the Project or
      any portion thereof, such Corrective Work shall be coordinated with
      Company or its Authorized Representative’s operating personnel in order to
      minimize such disruption.  In the event of such

               

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              disruption,
      Company or its Authorized Representative may require that Corrective Work
      be performed on an around-the-clock basis, including weekends and
      holidays.  All costs incidental to such Corrective Work,
      including, but not limited to, overtime premiums and shift differentials,
      shall be borne by Contractor.

               

              33.7   In
      the event: (i) Contractor fails to commence Corrective Work promptly
      within the five (5) Day period prescribed above; or (ii) Contractor
      commences Corrective Work within the five (5) Day period but, in Company’s
      or its Authorized Representative’s reasonable opinion, under Industry
      Practices fails to diligently, and without interruption, prosecute the
      Corrective Work; or (iii) Company  or its Authorized
      Representative reasonably determines that a case of emergency exists,
      where delay in commencing Corrective Work could result in serious loss or
      damage to persons or property; or (iv) Company or its Authorized
      Representative, in its sole reasonable discretion, determines that the
      requirements of its Project Schedule will be adversely affected if the
      Corrective Work is not performed prior to the expiration of the five (5)
      Day period; or (v) Company or its Authorized Representative reasonably
      determine that the Corrective Work must be performed prior to the
      expiration of the five (5) Day period in order to return the Work or the
      Project to commercial use, then the Corrective Work may be performed by
      Company or its Authorized Representative and all costs thereof shall be to
      Contractor's account, provided that Company or its Authorized
      Representative, as applicable, has given reasonable Notice thereof to
      Contractor and afforded Contractor the opportunity to perform Corrective
      Work within the time determined by Company or its Authorized
      Representative to be required.  Further, the refusal or failure
      of Contractor to commence Corrective Work within five (5) Days of Notice
      from Company or its Authorized Representative shall constitute a basis for
      Termination for Default under Section 41, at the sole discretion of the
      Company, regardless of the degree of completion of the Work by the
      Contractor.

               

              33.8   Company
      shall have the right to assign Contractor’s warranties to other third
      parties.

               

              33.9   Company
      shall operate and maintain the equipment in a manner consistent with all
      applicable manufacturer specifications.  Contractor shall not be
      obligated to warranty any claim by Company arising directly or indirectly
      from Company’s failure to meet its obligation to operate

               

            	 
      	
              and
      maintain the Equipment or care for materials in a manner consistent with
      applicable manufacturer specifications.

               

              34   Warranty
      of Title

               

              Contractor
      warrants that title to the Work, including the Materials and Equipment,
      shall be clear, marketable, and free of any defects, liens, charges, or
      encumbrances whatsoever.

               

              35   Warranty against Infringement of Patents, Copyrights,
      Trademarks, and Trade Secrets

               

              Contractor
      represents and warrants that no portion of the Work infringes any patent,
      copyright, trademark, or trade secret.  If the Work or any
      portion thereof is held to constitute an infringement of any patent,
      copyright or trademark or an unauthorized disclosure of any trade secret,
      Contractor shall, at its own expense, and, at Company’s option (i) procure
      for Company the perpetual right to use such Deliverables (ii) replace the
      Deliverables with implements that are not infringing or do not disclose
      any trade secret, or (iii) modify the Work so that it becomes
      non-infringing or does not disclose any trade secret.  Any such
      replacement of or modification to the Work shall meet the requirements of
      and shall be subject to the terms of this Contract.

               

              36   Intellectual
      Property

               

              Whenever
      Contractor is required to use any design, device, material, or process
      covered by letters, patent, trademark, or copyright, Contractor shall
      indemnify and save harmless Company from any and all claims for
      infringement by reason of the use of such protected design, device,
      material or process in connection with the Agreement and shall indemnify
      Company for any costs, expenses and damages which it may be obliged to pay
      by reason of such infringement at any time during the prosecution or after
      the completion of the Services; provided, however, that Contractor has no
      such liability for equipment, design, material or processes furnished by
      Company.

               

              37   Changes

               

              37.1   Company
      and its Authorized Representative shall have the right to direct
      Contractor to make changes in the Work that are within the general scope
      of the Work including additions, deletions, and revisions in the Goods,
      the Materials and Equipment, the Construction Works, or the Contract
      Schedule.  To the extent that any such change impacts
      Contractor’s cost of or time for performance, the Total Contract Cost and
      Contract Schedule shall be equitably adjusted to compensate for such
      impact.  Changes shall be accomplished using Request for
      Change

               

            


      
         

        
          
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

          

        

        
          

          

        

         

      

      	
              Proposals,
      Field Work Orders, Change Order Requests, Change Orders, or a combination
      thereof.

               

              37.2   Request
      for Change Proposal

               

              Request
      for Change Proposal (“RFCP”) is a Company Directive that advises
      Contractor about a potential change in the Work.  Unless
      otherwise stated in the RFCP or in some subsequent Company Directive,
      Contractor shall not implement the change until it receives a fully
      executed Change Order.

               

              37.3   Field
      Work Orders

               

              A
      Field Work Order (“FWO”) is a Company Directive that instructs Contractor
      to take some immediate action in connection with the Work.  FWOs
      are issued when the circumstances are such that there is not time to issue
      a RFCP or a Change Order.  Upon receipt of a FWO, Contractor
      shall immediately proceed in accordance with the terms of the
      FWO.  Any impact of an FWO on the Total Contract Cost or
      Schedule shall be adjusted by a formal Change Order.

               

              37.4   Change
      Order Requests

               

              Within
      seven (7) Days after the occurrence of any event that Contractor believes
      entitles Contractor to a Change Order, Contractor shall determine whether
      it will have any cost or Contract Schedule impact on Contractor’s
      Work.  If Contractor believes that it will have any such impact,
      Contractor shall prepare and submit a Change Order Request (“COR”) to
      Company.  When submitting a COR, Contractor shall
      include:

               

              a. a
      detailed narrative describing the factual basis of the request including
      references to the applicable Contract provisions,

               

              b. a
      detailed build-up of the price of the proposed change of the GMP scope, if
      any, including labor (hours and rates), Goods, Materials and Equipment,
      Subcontractors, Suppliers, Construction Works and  Services,
      (exclusive of markups for profit), together with supporting documentation
      such as time sheets and vendor invoices, and

               

              c. a
      detailed analysis showing the impact, if any, on the Contract
      Schedule.

               

              37.5   Change
      Orders

               

              a. A
      Change Order (“CO”) is a formal written instrument stating (i) the change
      in the Work, (ii) the adjustment, if any, in the Total Contract Cost, and
      (iii) the adjustment, if any, in the Contract Schedule.

               

              b. Upon
      receipt of a properly documented COR, the Parties shall negotiate in good
      faith to determine whether Contractor is entitled to a Change Order and,
      if so, the appropriate equitable adjustment, if any.  Change
      Orders are to be managed outside the GMP structure and priced
      individually.  Contingency under the GMP is not available to
      fund Change Orders, as defined in Attachment B –

               

            	 
      	
              Price
      and Payment, Section 3.3 – Contract Contingency. In determining the price
      of Changes to scope of the Work, the allowance for profit shall be
      determined on the basis of the cumulative net value of change and how it
      relates to the Dead-Band referenced in Attachment B – Price & Payment,
      Section 4 – Change Management. Contractor shall not be entitled to any
      damages; including loss of anticipated profits, based on a decrease in the
      Work.

               

              c. If
      the Parties are unable to agree on the disposition of a COR, including
      those necessitated by a FWO, Company will either (i) issue a Notice
      denying Contractor’s request or (ii) issue a unilateral Change Order
      setting forth Company’s final determination regarding the
      adjustments.  If Contractor disagrees with Company’s
      determination, it may pursue the matter under Section 62 (“Disputes”).
      Pending resolution of the dispute, Contractor shall continue to perform
      its Work, including the disputed Work, in accordance with the Contract and
      the Company’s Directives.

               

              37.6   Claims

               

              A
      Claim is a written demand by Contractor seeking an adjustment in the Total
      Contract Cost or Contract Schedule or some other relief under the terms of
      the Contract Documents for events other than a RFCP or
      FWO.  Contractor shall provide Notice to Company of any
      potential Claim within seven (7) Days after the event giving rise to the
      Claim.  Within fifteen (15) days thereafter, Contractor shall
      submit a COR for any claimed cost or Contract Schedule
      impacts.  The Claim will be processed in the same manner as set
      forth in Section 37.4.

               

              37.7   Waiver

               

              Contractor
      hereby expressly waives any right to an equitable adjustment in the Total
      Contract Cost or the Contract Schedule; (i) for any event that Contractor
      fails to pursue in accordance with this Section 37, (ii) for work done by
      Contractor without a Company Directive or Change Order, or (iii) for
      claims asserted after Contractor submits its final invoice.

               

              38   Final
      Completion and Acceptance

               

              38.1   Final Completion of the Work shall be deemed to have
      occurred when all of the following have been completed: (i) the Work,
      including any punch list items, has been fully completed in accordance
      with the requirements of the Contract; (ii) all inspections and tests have
      been successfully completed; (iii) all Deliverables including any required
      operation and maintenance manuals, special tools, and operating
      certificates have been submitted; (iv) all Contractor’s, supplies,
      rubbish, Construction Works, excess Materials and Equipment, and temporary
      facilities have been removed from the Project Site; (v) Contractor has
      restored any facility affected by Contractor to its original condition
      and

               

            


      
        
           

          
            
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                        Contract
      Number – 84670

                        Contract
      Title – EPC Balance of Plant

                        Contractor
      – NewMech Companies, Inc.

                        Project
      Name – Mill Creek Generating Station
(MCGS)

                      


              

               

               

            

          

          
            

            

          

           

        

      

      	
              and/or
      utility belonging to Company used or state of repair; and (vi) all
      Contractor’s Subcontractors and Suppliers have been paid in full as shown
      by properly executed lien releases.

               

              38.2   When
      Contractor believes that it has achieved Final Completion, it shall so
      Notify Company and its Authorized Representative.  If Company
      agrees, Company shall endorse Contractor’s Notice.  If Company
      does not agree, it shall Notify Contractor of its reasons for refusing to
      endorse the Notice.  Thereafter, Contractor shall work
      diligently to correct the deficiencies and resubmit its
      Notice.  This process may be repeated as many times as necessary
      to obtain Company’s endorsement.

               

              38.3   Company
      endorsement of Contractor’s Notice of Final Completion shall constitute
      Company’s Final Acceptance of the Work.  Such Final Acceptance
      shall not relieve Contractor of its continuing obligations under this
      Contract, including its warranty and indemnity obligations.

               

              39   Suspension
      of the Work

               

              39.1   Company
      shall have the unilateral right to suspend performance of the Work, in
      whole or in part, by giving Notice to Contractor specifying the extent to
      which the Work is suspended and the effective date of such
      suspension.  Contractor shall suspend performance of the Work to
      the extent that the Notice so specifies, but shall continue to perform any
      portion of the Work not suspended.  To the extent that any such
      suspension affects Contractor’s cost of or time for performance, the Total
      Contract Cost and Contract Schedule shall be equitably adjusted to
      compensate for such impact.

               

              39.2   All
      requests for adjustment in the time or cost for performance under this
      Section 39 shall be submitted to Company in accordance with the provisions
      of Section 37.

               

              40   Termination for Convenience

               

              40.1   Company
      shall have the unilateral right to terminate this Contract, in whole or in
      part, for its convenience, by giving Notice to Contractor specifying the
      extent to which the Contract is terminated and the effective date of such
      termination.  Contractor shall discontinue performance of the
      Work to the extent that the Notice so specifies, but shall continue to
      perform any portion of the Work not terminated.  To the extent
      that any such termination affects Contractor’s cost of or time for
      performance, the Total Contract Cost and Contract Schedule shall be
      equitably adjusted to reflect any such impact.

               

            	 
      	
              40.2   Contractor,
      if and to the extent requested to do so by Company, shall promptly assign
      to Company, in form and content satisfactory to Company, Contractor’s
      rights, title and interest to the Materials and Equipment and Construction
      Works purchased for or committed to the terminated Work (whether completed
      or in progress), and Work in progress and completed Work (whether at
      Project Site or at other locations), or shall otherwise dispose of same in
      accordance with the Company's Directives.

               

              40.3   Subject
      to Contractor’s compliance with the provisions of this Section 40 and
      other applicable sections of the Contract, Contractor shall recover from
      Company, as complete, full, and final settlement for such terminated Work,
      a sum equal to its actual direct cost for the terminated Work
      satisfactorily performed as of the effective date of termination, plus an
      allowance for reasonable overhead and profit on such direct cost of the
      Work performed, provided, however, that such a sum does not exceed a pro
      rata portion of the Total Contract Cost, commensurate with the ratio that
      the terminated Work performed by Contractor and accepted by Company as of
      the effective date of the termination bears to the entire Work specified
      under this Contract prior to termination.  Any payment to
      Contractor hereunder shall be less any amounts previously paid to
      Contractor.  In addition, Contractor shall recover from Company
      its reasonable and direct costs incurred to terminate its subcontracts,
      including lease and rental agreements, supply agreements, and other
      commitments.  In no event, however, shall the total payment to
      Contractor under this Section 40 exceed the Total Contract Cost prior to
      termination.  Contractor shall not be entitled to recover
      indirect, special, incidental, consequential or exemplary damages;
      including loss of profits or revenue on Work not performed.

               

              40.4   All
      requests for compensation under this Section 40 shall be submitted to
      Company in accordance with the provisions of Section 37.

               

              41   Termination
      for Default

               

              41.1   If
      Contractor (i) fails to supply adequate Competent Persons to perform the
      Work, (ii) fails to perform the Work in a safe professional and
      workmanlike manner; (iii) fails to abide by all applicable Laws, (iv)
      fails to make prompt payment to its Subcontractors and Suppliers, v) fails
      to abide by Company or Authorized Representative Directives, (vi) or is
      otherwise in breach of its obligations under this Contract and Contractor
      fails to correct any such condition within seven (7) Days
      after receipt of Notice from Company,

               

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              Company
      may without any further Notice or prejudice to any other right or remedy,
      terminate the contract for default.

               

              41.2   In
      the event of termination by Company under this Section 41, Contractor, if
      and to the extent requested to do so by Company, shall promptly assign to
      Company, in form and content satisfactory to Company, Contractor’s rights,
      title and interest to Materials and Equipment purchased for or committed
      to the terminated Work (whether completed or in progress) and Work in
      progress and completed Work (whether at the Project Site or at other
      locations) and to those subcontracts, lease and rental agreements, supply
      agreements, and other commitments so designated by
      Company.  Company, at its option and without waiving any other
      available remedy under this Contract or at Law or in equity, may take
      possession of the Work at the Project Site and of any or all of the
      Materials and Equipment (whether delivered to the Project Site or on order
      by Contractor) and finish the terminated Work by whatever method Company
      deems necessary; including, obtaining Materials and Equipment similar to
      those to be provided under this Contract, on terms and conditions that
      Company deems appropriate.

               

              41.3   In
      the event Company elects to terminate this Contract pursuant to this
      Section 41, Company shall have the right to use any of Contractor’s
      Intellectual Property and proprietary information that Company deems
      necessary to complete the Work.

               

              41.4   In
      the event of a termination for default, Contractor shall be liable to
      Company for all Losses incurred by Company arising from the default
      including all costs to complete the terminated Work.  Upon
      termination under this Section, Company may withhold any further payments
      to Contractor unless and until all of the Work, including the terminated
      Work, has been completed and Accepted by Company.  Company shall
      thereafter determine the Losses incurred by Company as a result of the
      termination.  If the Losses are less than the unpaid balance of
      the Total Contract Cost, Company shall pay the difference to
      Contractor.  If the Losses exceed the unpaid balance of the
      Total Contract Cost, Contractor shall promptly, after receipt of Company’s
      invoice, pay to Company the amount of such excess.  Contractor
      shall continue to be fully liable to Company for all other damages to
      Company.  If the Contract is terminated under this Section and
      it is later determined or adjudged that there is no default, such
      termination shall be considered to be a termination for
      convenience

               

            	 
      	
              and
      not a breach of contract, and the provisions of Section 40 (Termination
      for Convenience) shall apply.

               

              42   Insurance

               

              Contractor
      shall maintain the insurance coverage described in Attachment C (Insurance
      Requirements).

               

              43   Indemnity

               

              43.1   To
      the extent of its fault or negligence, Contractor agrees to indemnify,
      hold harmless, and defend Company, and Lenders (the “Indemnified Parties”)
      from and against any Losses arising:

               

              a. on
      account of injury, illness, or death of any persons including the
      employees of the Indemnified Parties, Contractor, its Subcontractors,
      Suppliers, and other third parties,

               

              b. injury
      to or destruction of tangible property,

               

              c. from
      failure of Contractor to comply with any Laws,

               

              d. from
      claims by any collective bargaining group or individual employee that
      Contractor has failed to pay wages, benefits, withholdings, dues, or
      assessments,

               

              e. from
      failure to pay Employees, Subcontractors or Suppliers, or

               

              43.2   The
      provisions of this Section shall survive Final Acceptance and the
      termination of this Contract.

               

              44   Waiver
      of Consequential Damages

               

              Except
      for (i) those damages specifically recoverable by Company or Contractor as
      set forth elsewhere in the Contract, (ii) specified liquidated damages, if
      any, or, (iii) those consequential damages resulting from the willful
      misconduct of Company or Contractor, neither Party shall be liable to the
      other, whether such liability arises out of contract, warranty, tort
      (including negligence), strict liability, or any other cause or form of
      action whatsoever, for consequential, special, indirect, punitive,
      exemplary, or incidental loss or damage.

               

              45   Limitation
      of Liability

               

              Contractor’s
      liability to Company shall not exceed the GMP. The foregoing limitation
      upon Contractor’s liability shall apply under any theory of recovery
      regardless of Loss, including contract, warranty, tort (including
      negligence whether actual, imputed, or presumed by operation of law),
      strict liability. However, such limitation shall not apply to Contractor’s
      indemnity or insurance obligations or to any claims
      arising directly or indirectly from Contractor’s willful misconduct or
      gross negligence.

            


      
         

        
          
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

          

        

        
          

          

        

         

      

      	
              46   Force
      Majeure

               

              46.1   Neither
      Party shall be responsible for or liable for or be deemed in breach of
      this Contract because of any delay, interference, disruption, or hindrance
      in the performance of their respective obligations hereunder, if and to
      the extent that any such impact in performance is due solely to a Force
      Majeure event.

               

              46.2   The
      following events shall not be considered Force Majeure events within the
      meaning of this Section:

               

              a. changes
      in market conditions that affect the demand for the services of Contractor
      or its Subcontractors or Suppliers;

               

              b. late
      delivery of Materials and Equipment caused by congestion at the facilities
      of Contractor or its Subcontractors or Suppliers or elsewhere, an oversold
      condition of the market, inefficiency, or similar occurrence or
      condition;

               

              c. late
      performance by Contractor or its Subcontractors or Suppliers caused by a
      shortage of labor or supervision, inefficiency in prosecuting their
      respective portions of the Work, or similar occurrence or
      condition;

               

              d. Contractor’s
      failure or the failure of its Subcontractors or Suppliers to secure and
      maintain permits, licenses, or other governmental approvals necessary for
      prosecution of the Work or their respective portions of the
      Work;

               

              e. normal
      weather conditions, including adverse weather conditions predictable
      through analysis of 100 year historical weather data, and;

               

              f. any
      negligent or intentional acts, errors, omissions or acts which are the
      fault of the affected Party.

               

              46.3   If
      Contractor experiences a delay, interference, disruption, or hindrance or
      other inability to perform that is due solely to a Force Majeure event
      described herein, the Contract Schedule shall be adjusted and the
      scheduled completion date shall be extended by a period of time equal to
      the amount of time reasonably determined by the Parties to be necessary
      for Contractor to recover from such impact in
      performance.  Contractor expressly agrees that adjustment of the
      Contract Schedule shall be Contractor’s sole and exclusive remedy and
      Company’s sole and exclusive liability in the event Contractor is delayed,
      interfered with, disrupted, or hindered in the performance of its Work by
      a Force Majeure event.

               

              46.4   The
      Party claiming a delay under this Section shall use its best efforts to
      remedy any inability to perform due to the occurrence of a Force Majeure
      event.  As and when such affected Party is able to resume
      performance of its obligations under this

               

            	 
      	
              Contract,
      such affected Party shall give the other Party Notice to that
      effect.

               

              46.5   If
      Contractor experiences a delay, interference, disruption, or hindrance or
      other inability to perform that is due to a Force Majeure event described
      herein, Contractor shall take all reasonable steps to reduce, mitigate,
      remove, or overcome the delay, interference, disruption or hindrance or
      its direct or indirect effects or impacts.  If Contractor fails
      to take such action as Company may, in its sole discretion and after seven
      (7) days written Notice to Contractor, and at Contractor’s expense,
      initiate measures to remove or relieve such delay, interference,
      disruption, or hindrance or its direct or indirect effects or impacts and
      thereafter require Contractor to resume full or partial performance of the
      Work, or may declare Contractor in default under this
      Contract.

               

              46.6   Failure
      of the affected Party to provide the Notice or to take the prescribed
      actions hereunder shall be deemed a waiver by the affected Party of its
      right to seek an extension of time for its performance.

               

              47   Avoidance
      of Liens

               

              47.1   Third
      party Liens - Contractor shall promptly pay for all things including
      Services, Labor, Construction Works, Materials and Equipment, and Goods
      used or furnished by Contractor in the performance of the Work and shall,
      at its sole expense, keep the Project free and clear of any
      liens.  If Contractor fails to release and discharge any such
      lien against the Project within seven (7) Days after receipt of Notice
      from Company to remove such lien, Company may, at its option, pay,
      discharge, or release the lien or otherwise deal with the lien
      claimant.  In the event that Company elects to pay any such lien
      claim, the amount of such payment shall be considered
      reasonable.  Contractor shall be liable to Company, as
      applicable, for any Losses incurred by Company in resolving lien claims
      including reasonable attorney fees and court costs.  Company
      shall be entitled to deduct such costs from payments otherwise due to
      Contractor.

               

              47.2   Liens
      by Contractor – Unless otherwise required by statute, the Parties agree
      that Company may discharge any lien filed by Contractor by posting a
      surety bond with a penal sum equal to 105% of the lien claim
      amount.

               

              48   Proprietary
      Information

               

              48.1   Unless
      required by applicable Laws, neither Party shall disclose to third
      parties, information obtained from the other Party in the performance of
      this Contract which has been designated by that Party

               

            


      
        
           

          
            
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                        Contract
      Number – 84670

                        Contract
      Title – EPC Balance of Plant

                        Contractor
      – NewMech Companies, Inc.

                        Project
      Name – Mill Creek Generating Station
(MCGS)

                      


              

               

               

            

          

          
            

            

          

           

        

      

      	
              as
      confidential or proprietary information (“Confidential or Proprietary
      Information”).

               

              48.2   This
      obligation shall not apply to any information (a) in the public domain,
      (b) already in the Party’s possession free of any confidentiality
      agreement and not obtained from the other Party, (c) provided to a Party
      from a third party free of any confidentiality obligation and not obtained
      from the other Party, or (d) independently developed. Nothing in this
      Section shall limit or preclude either Party from use of Confidential or
      Proprietary Information in its possession prior to the execution of this
      Contract in accordance with the terms of any agreements governing such
      use.

               

              48.3   Either
      Party shall have the right, without the other Party’s approval, to
      disclose Confidential or Proprietary Information to the limited extent
      required to comply with any request or order of a governmental agency or
      court.  If a Party intends to disclose Confidential or
      Proprietary Information to any governmental agency or court, that Party
      shall, to the extent it does not violate or fail to comply with any such
      request or order, advise the other Party prior to disclosure as defined in
      article 67. Each Party is responsible for taking any action it deems
      necessary, such as seeking a protective order from the appropriate
      authority, to protect its confidential and proprietary
      information.

               

              48.4   The
      Contract, and any other information issued to or made available to
      Contractor by or through Company in connection with the Work are
      Proprietary Information whether or not so marked by
      Company.  All such Proprietary Information furnished by Company
      to Contractor shall remain Company’s property.  Upon completion
      of the Work, Contractor shall, as requested by Company, either destroy or
      return such documents including any copies thereof except that Contractor
      may retain one copy for its records.

               

              49   Gratuities

               

              49.1   Contractor,
      its employees, agents, and representatives, shall not give or offer to
      give to an officer, official, or employee of Company, gifts,
      entertainment, payments, loans, or other gratuities to influence the award
      of this Contract or any other contract or to obtain favorable treatment
      under this Contract or any other contract or purchase order.

               

              49.2   Violation
      of this Section 49 may be deemed by Company to be a material breach of
      this Contract and any other contract between Contractor and Company, and
      may subject all contracts with Contractor to termination for default under
      the provisions of Section 41 (Termination For Default)

               

            	 
      	
              of
      this Contract, as well as any other remedies at law or in equity available
      to Company.

               

              50   Assignment

               

              Contractor
      shall not sell, assign, or transfer any of its rights or obligations under
      this Contract, in whole or in part, by operation of Law, or otherwise,
      without the prior written consent of the Company.  Any
      assignment of this Contract in violation of the foregoing shall be
      voidable at the option of the Company.  However, Company shall
      have the right to assign this Contract to Lenders, or Affiliated Companies
      including their respective successors or assigns each of whom shall have
      the right to make subsequent assignments.  Contractor shall
      include in any subcontracts, lease agreements, and purchase orders a
      provision giving to Contractor the right to assign any such subcontracts
      and purchase orders to the Company, its successors, and assigns and giving
      each the right to make subsequent assignments.

               

              51   Notices

               

              Any
      Notice required by this Contract shall be in writing, signed by an
      Authorized Representative of the Party issuing the Notice, and delivered
      to the Authorized Representative of the other Party at the address given
      on the signature page of the Contract.  A Notice shall be
      effective upon receipt or on the Notice's effective date, whichever is
      later.  Notice shall not be made by telephone, telegraph,
      facsimile, or electronic mail.

               

              52   Severability

               

              Any
      invalid or unenforceable provision of this Contract shall be deemed
      severed from the Contract, and the balance of the Contract shall be
      reformed in such a manner as to effect, to the maximum extent possible,
      the original intent of the Parties.

               

              53   Modifications
      and Amendments

               

              No
      modification, amendment, rescission, waiver, or other change of or to this
      Contract shall be of any force or effect unless such modification,
      amendment, rescission, waiver, or other change is set forth in a fully
      executed Change Order.

               

              54   Remedies

               

              Unless
      otherwise designated as “sole and exclusive,” all remedies allowed by the
      Contract may be exercised cumulatively and concurrently with each other
      provided there is no double recovery for the same
      damages.  Where remedies are not specified in this Contract,
      then the Parties shall be entitled to their remedies at law or in equity
      for such occurrence, subject, nevertheless, to the Contractor’s Limitation
      of Liability in Section 45.

               

            


      
        
          
             

            
              
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                          Contract
      Number – 84670

                          Contract
      Title – EPC Balance of Plant

                          Contractor
      – NewMech Companies, Inc.

                          Project
      Name – Mill Creek Generating Station
(MCGS)

                        


                

                 

                 

              

            

            
              

              

            

             

          

        

      

      	
              55   Publicity

               

              Contractor
      shall not issue news releases or publicize or issue advertising pertaining
      to the Work or to this Contract without first obtaining the written
      approval of Company.

               

              56   Site Records & Audit

               

              56.1   Contractor
      shall maintain, at the Project Site, one (1) record copy of this Contract,
      including all Drawings, Specifications, addenda, Change Orders, Field Work
      Orders, and other modifications in good order and currently marked to
      record changes and selections made during construction.  In
      addition, Contractor shall maintain, at the Project Site, one (1) record
      copy of approved shop drawings, product data, samples, and other
      Deliverables required of Contractor.  These record copies shall
      be available to Company at all times and shall be delivered to Company
      upon completion of the Work. Delivery of the record copies shall be a
      condition precedent to Final Acceptance.

               

              56.2   Company
      reserves the right to perform an audit of all Contractor’s and associated
      Subcontractors and Vendors documentation. Company shall be allowed to
      perform total of (3) audits, including one (1) audit that can be performed
      after Final Completion.  Audit locations and/or additional
      follow-up audits shall be determined based on audit
      conditions/findings.

               

              57   Interpretation

               

              57.1   Any
      reference to an article, section, paragraph, exhibit, appendix, or
      attachment refers to an article, section, paragraph, exhibit, appendix, or
      attachment of or to this Contract unless otherwise
      specified.  The table of contents and the headings and
      subheadings are inserted for convenience only and shall not be deemed a
      part of this Contract nor taken into consideration in the interpretation
      or construction of this Contract.

               

              57.2   As
      used in this Contract, the singular includes the plural, and the masculine
      includes the feminine.  The terms "hereof," "herein,"
      "hereunder," and comparable terms refer to the entire Contract with
      respect to which such terms are used and not to any particular article,
      section, or subdivision thereof.  The terms “includes” and
      “including” shall mean “including, but not limited to.”

               

              57.3   In
      the case of any conflict between or among the documents or provisions that
      make up Attachment A, including the Drawings and Specifications, the Scope
      of Work in Attachment A shall take precedence over the Drawings and
      Specifications

               

               

            	 
      	
              and
      the Drawings shall take precedence over the Specifications and, within
      Drawings text shall take precedence over graphics, and the specific shall
      take precedence over the general.

               

              57.4   If
      any provision of this Contract contemplates that Company and Contractor
      will negotiate any matter after the Effective Date, such provision shall
      be construed to include an obligation on the part of the Parties to
      negotiate in good faith in accordance with the intent of this
      Contract.

               

              58   English
      Language

               

              Contractor
      hereby represents that it has sufficient knowledge of the English language
      to fully understand this Contract.  All Deliverables provided by
      Contractor shall be in the English language.  Contractor shall
      bear all costs of translation and assumes all risk of such
      translation.

               

              59   Non-Waiver

               

              Any
      Party’s waiver of any breach or failure to enforce any of the terms,
      covenants, conditions, or provisions of this Contract at any time shall in
      no way affect, limit, modify, waive, or be deemed to affect, limit,
      modify, or waive that Party’s right thereafter to enforce or compel strict
      compliance with each term, covenant, condition, or provision of this
      Contract, any course of dealing or custom of the trade
      notwithstanding.

               

              60   Survival

               

              In
      order that the Parties may fully exercise their rights and perform their
      obligations hereunder arising from the performance of the Work, any
      provisions of this Contract that are required to ensure exercise of such
      rights or performance shall survive the expiration or termination of this
      Contract regardless of the cause for such termination and regardless of
      whether or not such termination applies to all or only part of this
      Contract.

               

              61   Laws
      and Regulations

               

              Contractor
      shall comply strictly with all Laws applicable to Contractor's
      Work.  Contractor shall not, under any circumstances, apply for
      any exception or variance from applicable Laws without Company's prior
      written approval.  This Contract shall be interpreted and
      applied in accordance with the laws of the State of Montana without regard
      to Montana’s choice or conflict of law rules or statutes.

               

              62   Disputes,
      Forum and Applicable Law

               

              62.1   This
      Agreement shall be governed in all respects by the laws of the State of
      Montana.

               

              a)
      When a Dispute has arisen and negotiations between the parties have
      reached an impasse, either party may give the other party written
      notice

            


       

      
        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              of
      the Dispute.  In the event such notice is given, the parties
      shall attempt to resolve the Dispute promptly by negotiations between
      representatives who have authority to settle the controversy and who are
      at a higher level of management than the persons with direct
      responsibility for the matter.  Within ten (10) days after
      delivery of the notice, the receiving party shall submit to the other a
      written response.  Thereafter, the representatives shall confer
      in person or by telephone promptly to attempt to resolve the dispute. All
      reasonable requests for information made by one party to the other will be
      honored.

              b)
      If the dispute has not been resolved by negotiation between the
      representatives within thirty (30) days of the notice, or if the parties
      have failed to confer within twenty (20) days after delivery of the
      notice, the parties shall endeavor to settle the dispute by non-binding
      mediation.  The mediation shall consist of both parties agreeing
      to one neutral mediator, providing the mediator with simultaneous,
      non-shared written position statements, and daylong mediation at the
      chosen mediator’s desired location.

              c)
      Should the mediation not lead to settlement of the dispute, then either
      party may proceed to a court of competent jurisdiction.

              d)
      All negotiations and proceedings pursuant to this process are confidential
      and shall be treated as compromise and settlement negotiations for
      purposes of applicable rules of evidence and any additional
      confidentiality protections provided by applicable law.

               

              62.2   Any
      action or proceeding seeking to enforce any provision of, or based on any
      right arising out of, this Agreement may be brought against either of the
      parties in the courts of the State of Montana, or, if it has or can
      acquire jurisdiction, in the United States District Court for the District
      of Montana and each of the parties consents to the jurisdiction of such
      courts (and of the appropriate appellate courts) in any such action or
      proceeding and waives any objection to venue laid therein. Process in any
      action or proceeding referred to in the preceding sentence may be served
      on either party anywhere in the world.

               

              63   Notice
      of Affirmative Action

               

              If
      the Work or any portion thereof is performed in the United States of
      America, then, for such Work or portion of the Work, Contractor shall
      comply with Executive Order 11246 (as amended), the Vocational
      Rehabilitation Act of 1973 (as amended), the Vietnam Era Veterans’
      Readjustment Assistance Act of 1974 (as amended), and

               

            	 
      	
              their
      implementing regulations codified at 41 C.F.R. 60-1.4(a), 41 C.F.R.
      60-741.4, and 41 C.F.R. 60-250.4, respectively, all of which are
      incorporated herein by reference and made part of this
      Contract.

               

              64   Warranty
      Period

               

              The
      Warranty Period for Contractor to correct its defective Work shall be
      twenty four (24) months from Final Acceptance unless otherwise stated
      herein.  Any Corrective Work done during the Warranty Period
      shall be warranted for an additional twenty-four (24) month
      period.

               

              65   Contract
      Performance Security

               

              65.1   Within
      seven (7) days after the Effective Date or prior to mobilization to the
      site, whichever is earlier, Contractor shall furnish an irrevocable Letter
      of Credit (LOC) in the amount of five million dollars ($5,000,000.00) as a
      guaranty on behalf of Contractor that the terms of this Contract shall be
      complied with in every particular.  The LOC shall (a) name
      Company or its designee as the beneficiary, (b) be issued by a bank with a
      major presence in the United States, and (c) be substantially in the form
      of Exhibit 5.  Company shall not be obligated to make any
      payments to Contractor for any purpose until the LOC is furnished to
      Company.

               

              65.2   The
      LOC shall remain in full force and effect until the end of the Warranty
      Period provided, however, that upon Final Acceptance of the last
      generating unit, Company will accept a substitute LOC for two million,
      five hundred thousand dollars ($2,500,000.00) plus the amount of any
      potential or unpaid liquidated damages as determined by
      Company.

               

              65.3   Upon
      discovery of an event that could result in a draw on LOC, Company will
      provide informal communication to the Contractor identifying the event in
      question to allow Contractor an opportunity for remedy.  If
      Contractor and Company fail to mutually resolve the event to Company
      satisfaction, Company will exercise its rights under Article
      65.4.

               

              65.4   Company
      is required to give Contractor 15 calendar days written Notice of it
      intent to draw upon and exercise its rights under the LOC.

               

              66   Disclosure

               

              Contractor
      acknowledges that Company is a regulated public utility. Further,
      Contractor acknowledges and accepts that Company may be compelled,
      obligated, ordered, or otherwise directed to produce this Contract,
      including all attachments, schedules, exhibits, and other documentation
      that may be required by federal or state

            


       

      
        
          Contract
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

      

      
        

        

      

       

      	
              regulators
      or other governmental authority.   Contractor expressly
      acknowledges the potential of such disclosures and the potential for the
      Agreement to become part of the

            	 
      	
              public
      record and expressly accepts the provisions of Section 48.1 of this
      Contract.

            


    

     

    


     

     

     

     

    
      
        Contract
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

      

    

    


    This
Contract consists of the documents listed below and initialed by
Contractor together with any other documents included by
reference.  The documents shall be read together in a way that gives
meaning, effect, and equal weight to all provisions.  In the event of
an irreconcilable conflict, discrepancy, error, or omission, the order of
precedence shall be in the descending order listed:

     

    
      	
              Contractor
      Initials

            	
              Document

            
	
              N/A

            	
              Change
      Orders, if any

            
	
              _____________

            	
              Contract
      Agreement

            
	
              _____________

            	
              Attachment
      A – Scope of Work

            
	
              _____________

            	
              Attachment
      B - Price & Payment

            
	
              _____________

            	
              Attachment
      C – Insurance Requirements

            
	
              _____________

            	
              Attachment
      D – Not Used

            
	
              Provided
      by Contractor

            	
              Attachment
      E – Safety Manual & Plan

            
	
              Provided
      by Contractor

            	
              Attachment
      F – QA/QC Manual

            
	
              Provided
      by Contractor

            	
              Attachment
      G – Prequalification Forms for Subcontractors

            
	
              _____________

            	
              Attachment
      H – Invoice Process Flow Chart

            
	
              _____________

            	
              Attachment
      I – Permits Provided by Company

            
	
              _____________

            	
              Attachment
      J – Dead Band Profit Adjustment Process for Change
  Orders

            
	
              _____________

            	
              Attachment
      K – GMP Examples

            
	
              _____________

            	
              Attachment
      L – Indemnity Agreement

            
	
              _____________

            	
              Exhibit
      1 – Partial Lien Release

            
	
              _____________

            	
              Exhibit
      2 – Final Lien Release

            
	
              _____________

            	
              Exhibit
      3 – Release to Work Form

            
	
              _____________

            	
              Exhibit
      4 – Requisition for Payment

            
	
              _____________

            	
              Exhibit
      5 – Form of Letter of Credit

            
	
              _____________

            	
              Exhibit
      6 – Change Order Request Form

            


    

     

    


     

     

    In
witness whereof, the Parties have caused this Contract to be executed
with the understanding and intent that it shall be effective as of the date
first set forth above.

     

    
       

      
        Contract
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

      

    

     

    
      	
              For
      Contractor:

            	
              For
      Company:

            
	
              By:_______________________________

            	
              By:_____________________________

            
	
              Title:
      _____________________________

            	
              Title:
      ___________________________

            
	
              Date:
      _____________________________

            	
              Date:
      ___________________________

            


    

     

     

    


     

     

    Representatives
of the Parties

     

    
      	
              For
      Contractor:

            	
              For
      Company:

            
	
              Name:

            	
              Name:

            
	
              Address
      1:

            	
              Address
      1:

            
	
              Address
      2:

            	
              Address
      2:

            
	
              Address
      3:

            	
              Address
      3:

            
	
              Tel:

            	
              Tel:

            
	
              Fax:

            	
              Fax:

            
	
              Email:

            	
              Email:

            
	
              Cell:

            	
              Cell:

            


    

     

    


     

     

    End
of Contract

     

     

    
      
        Contract
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

      

    

     

    Attachment
A – Scope of Work

     

    
      

      

    

    
      	
              1.  

            	
              Project
      Data

            


    

     

     

    
      	
              1.1.  

            	
              The
      Project name is Mill Creek Generating Station
  (MCGS).

            


    

     

     

    
      	
              1.2.  

            	
              The
      Project Site is located near Anaconda, in Deer Lodge County,
      Montana.

            


    

     

     

    
      	
              1.3.  

            	
              The
      Company is NorthWestern Energy.

            


    

     

     

    
      	
              1.4.  

            	
              The
      Company Engineer is Stone & Webster Inc. A Shaw Group
      Company.

            


    

     

     

    
      	
              1.5.  

            	
              The
      Authorized Representative is Stone & Webster Inc. A Shaw Group Company
      (Shaw).

            


    

     

     

    
      	
              2.  

            	
              Scope
      of Work

            


    

     

     

    
      	
              2.1.  

            	
              Unless
      explicitly provided other wise in Section 2.2 below, Contractor shall
      provide all resources including Goods, Labor, Materials and Equipment,
      Construction Works, and Services necessary to perform the following
      Work.

            


    

     

     

    
      	
              2.2.  

            	
              General
      Description and Project Scope (Contractor shall refer to Basis of Design
      Doc. No: 133860-DC-P-001-Rev 1, for complete scope of
    work).

            


    

     

    General
Description

     

    The new
Mill Creek Generating Station (MCGS), located near Anaconda, in Deer Lodge
County, Montana, will consist of three, nominally rated 50 MW Pratt &
Whitney FT8-3 Swift-Pac combustion turbine generators (CTG) operating in simple
cycle (150 MW total).  Each unit will have its own, dedicated
selective catalytic reduction (SCR) unit to reduce NOx and CO
emissions.

     

    The
project shall be complete, tested, commissioned and ready to operate by Date
identified in Attachment A – Scope of Work, Section 3.

     

    The
facility and power plant shall be laid out to accommodate a fourth CTG, heat
recovery steam generators, steam turbine generator and its associated cooling
equipment in the future.  All systems shall be designed to accommodate
the fourth CTG during this construction phase.

     

    Conditions of
Service

     

    Safety is
a critical component of successful plant design and construction and shall be a
primary focus.

     

    As a
facility for electric transmission regulation service, the equipment is expected
to be on-line continuously 24/7 with frequent and rapid load
changes.  Operations are characterized by 10 to 12 load swings
per day through the entire MW regulating range of the total operating
units.  Normally, this regulating service will be at or below the base
load rating.  It is anticipated that the units will have less than 20
cold starts per year.  The plant will be available for service at all
times of the year and will be used for continuous service.

     

    Reliable
continuous regulation service is the purpose of this plant.

     

    The basic
aspects of the plant are to provide:

     

    
      	
              ·  

            	
              130
      MW of regulation capability at all time 24/7 (on natural gas over all
      temperature ranges)

            


    

     

    
      	
              ·  

            	
              Load
      change (ramping rate) of +/- 30 MW/minute minimum (or
      better)

            


    

     

    
       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

        

      

       

    

    
      	
              ·  

            	
              Design
      plant utilities for future addition of a fourth gas turbine
      unit

            


    

     

    Regulation
capability and range shall be continuous within an operational basis wherein
emissions are controlled.

     

    Each
turbine unit shall be capable of operation firing natural gas and No. 2
diesel, and future biodiesel distillate liquid fuels.

     

    The
combustion turbine generator will be installed outdoors.

     

    Service
life of not less than 30 years is expected.

     

    Site Conditions and
Ratings

     

    Rated
conditions for the combustion turbine generator will be 81.5°F (dry bulb) with a
relative humidity of 21.6 percent.  Plant elevation is
5180 ft above mean sea level.

     

    Primary
fuel for the combustion turbine will be natural gas.  In the event
that gas is unavailable, liquid fuel will be utilized.  It is
anticipated that about 95 percent of combustion turbine operating time will
be with natural gas (winter usages of liquid fuels).

     

    The
design range of outdoor temperatures at the site is -16/-18 min to
81.5/56.3 max DB/MCWB°F (dry bulb/mean coincident wet bulb temperature each
being 2 percent exceedence values).  Average annual temperature
is 39.5/36.3°F DB/MCWB.  Extreme temperatures: 100°F high, -52°F
low.  Ambient air in the vicinity of the site can be expected to
contain fugitive dust.

     

    Site
design criteria for all systems shall be designed to -40°F.

     

    No gas
turbine inlet air heating or cooling is required at this site.

     

    Contractor Supplied
Items

     

    The
Contractor shall supply:

     

    
      	
              a)  

            	
              The
      complete design, engineering, procurement, installation, construction,
      start-up, turnover, and commissioning of the balance of plant to readiness
      for commercial operation, including incorporation of, installation of, and
      commissioning of all Company furnished equipment and
    material.

            


    

    
      	
              b)  

            	
              Installation
      of power wiring from individual combustion turbine/generator components to
      skid mounted junction boxes.

            


    

    
      	
              c)  

            	
              Continuous
      Emissions Monitoring System (CEMS)

            


    

    
      	
              d)  

            	
              CEMS
      power and sensors in exhaust stack.

            


    

    
      	
              e)  

            	
              CEMS
      enclosure HVAC and enclosure
foundation.

            


    

    
      	
              f)  

            	
              CEMS
      instrumentation, sensors and connection
wiring.

            


    

    
      	
              g)  

            	
              Natural
      gas forwarding system on the plant site from Company furnished connection
      point at site property line.

            


    

    
      	
              h)  

            	
              Liquid
      fuel oil truck unloading, storage and forwarding
  system.

            


    

    
      	
              i)  

            	
              19%
      Aqueous Ammonia Storage System, pumps, and distribution to SCR System,
      including provisions to connect the future 4th
  unit.

            


    

    
      	
              j)  

            	
              Plant
      switchyard, general grading.

            


    

    
      	
              k)  

            	
              All
      demineralized water production equipment, tanks, and building
      enclosure.

            


    

    
      	
              l)  

            	
              Raw
      water and demineralized water storage and forwarding
    systems.

            


    

    
      	
              m)  

            	
              Geotechnical
      Engineering, required select fill soils and all compaction services
      including testing.  Contractor can utilize existing geotechnical
      report.

            


    

     

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

          

        

         

      

    

    
      	
              n)  

            	
              Clearing,
      grubbing and rough grading of the entire site, including the switchyard
      area.  Grading shall be balanced cut and fill.  (Site
      has been cleared of contaminated
soils.)

            


    

    
      	
              o)  

            	
              Plant
      Control System (PCS) including main control
  console.

            


    

    
      	
              p)  

            	
              Balance
      of plant auxiliary service interfaces to the combustion turbines including
      fuel gas and fuel oil required to meet Pratt & Whitney requirements,
      including provision to connect the future 4th
  unit.

            


    

    
      	
              q)  

            	
              Balance
      of Plant infrastructure such as buildings, concrete foundations, access
      roads (paved and unpaved) and
fences.

            


    

    
      	
              r)  

            	
              Concrete
      foundations for buildings, enclosures, and equipment, including
      turbine/generator/SCR equipment.

            


    

    
      	
              s)  

            	
              Procurement
      and installation of all components and materials except as described in
      the “Company Furnished Items”
section.

            


    

    
      	
              t)  

            	
              Procurement
      and installation of all items necessary to install and operate all items
      listed in the “Company Furnished Items”
section.

            


    

    
      	
              u)  

            	
              Contractor
      shall connect to Company supplied raw water flanged connection on site to
      supply raw, service, fire and demineralized
  water.

            


    

    
      	
              v)  

            	
              Necessary
      infrastructure to supply power to new control room and balance of plant
      instrumentation and control systems when new generation units are not yet
      in operation.

            


    

    
      	
              w)  

            	
              Telephone
      infrastructure from telephone company connection near the site to the wall
      outlets in the Control Room and Office building.  (Internal
      phone extension network to be carried by existing Ethernet line back to
      NorthWestern Butte offices.)

            


    

    
      	
              x)  

            	
              Site
      drainage to Contractor-supplied storm drain infrastructure and retention
      eco-system infiltration basin.

            


    

    
      	
              y)  

            	
              Civil
      works, including surfacing of the final site.  The gas turbine
      island and diesel fuel pump areas shall be concrete covered with drain
      catch rim.  Other site areas disturbed by construction shall be
      surfaced with crushed rock (occupied areas) or planted in native
      grasses.

            


    

    
      	
              z)  

            	
              Site
      technical advisors (mechanical, electrical, and checkout/start up) during
      construction, startup, testing and
  commissioning.

            


    

    
      	
              aa)  

            	
              Performance
      testing and commissioning support and support to Pratt & Whitney staff
      during commissioning and testing.

            


    

    
      	
              bb)  

            	
              Training
      of the Operations and Maintenance (O&M) staff on the systems and
      equipment furnished by Contractor.

            


    

    
      	
              cc)  

            	
              Provide
      O&M manuals and as-built drawings for the systems and equipment
      furnished by the Contractor.

            


    

    
      	
              dd)  

            	
              Offsite
      property connection to municipal sewer line near Mill Creek
      Road.

            


    

     

    Engineering/Procurement

     

    Contractor
shall design, engineer, and procure all required equipment/systems, including
the following:

     

    
      	
              a)  

            	
              Site
      drainage, including storm water retention
  eco-system.

            


    

    
      	
              b)  

            	
              Concrete
      pad, pre-engineered building, piping, pumps and electrical for raw water
      demineralization equipment.

            


    

    
      	
              c)  

            	
              Single
      raw-water/fire-protection-water storage tank sufficient for 500,000
      gallons of active storage.  240,000 gallons shall be dedicated
      to fire protection.

            


    

    
      	
              d)  

            	
              Single
      demineralized water storage tank sufficient for 500,000 gallons of active
      storage.

            


    

    
      	
              e)  

            	
              Fire
      protection system as required to meet NFPA (2003) and local government
      requirements, including motor and diesel-driven main and jockey
      pumps.

            


    

    
      	
              f)  

            	
              Low-voltage
      (480 VAC and below) switchgear.

            


    

    
      	
              g)  

            	
              Design
      only of GSU foundations. Supply and construction of GSU foundations shall
      be by Company.

            


    

    
      	
              h)  

            	
              Connection
      to each GSU low side.

            


    

    
      	
              i)  

            	
              Central
      Plant Control Systems for systems not provided with the gas turbine
      package or by Company.

            


    

    
      	
              j)  

            	
              Uninterruptible
      Power Supply (UPS) system.

            


    

    
       

      
        
           

          
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

          

          
            

            

          

           

        

      

    

    
      	
              k)  

            	
              Auxiliary
      buildings, including the following:

            


    

     

    
      	
              ·  

            	
              Operations
      and Maintenance Building

            


    

    
      	
              ·  

            	
              Water
      Treatment Building

            


    

    
      	
              ·  

            	
              Fire
      Water Pump House

            


    

    
      	
              ·  

            	
              Diesel
      Fuel Pump House

            


    

    
      	
              ·  

            	
              Storage
      Building

            


    

    
      	
              ·  

            	
              Electrical
      Equipment Trailers

            


    

    
      	
              ·  

            	
              Liquid
      Fuel and Natural Gas Injection Skids (supplied by Pratt & Whitney)
      enclosures.

            


    

     

    
      	
              l)  

            	
              Security
      system for Control Building and Control Room area, electrical trailer/s,
      front electrical gate, complete with security cameras around yard critical
      areas and including Company identified provisions for NERC security
      requirements.

            


    

    
      	
              m)  

            	
              The
      following complete systems, including, as a minimum; piping, insulation,
      heat tracing valves, instrumentation, pumps, and electrical
      requirements:

            


    

     

    
      	
              ·  

            	
              Fuel
      gas interconnection

            


    

    
      	
              ·  

            	
              Raw
      water

            


    

    
      	
              ·  

            	
              Demineralized
      water

            


    

    
      	
              ·  

            	
              Sanitary
      sewage system, including on site lift
station

            


    

    
      	
              ·  

            	
              Storm
      water drainage

            


    

    
      	
              ·  

            	
              Waste
      water treatment through oil water
separators

            


    

    
      	
              ·  

            	
              Fire
      protection

            


    

    
      	
              ·  

            	
              19%
      aqueous ammonia

            


    

    
      	
              ·  

            	
              Liquid
      fuel

            


    

    
      	
              ·  

            	
              Compressed
      air

            


    

    
      	
              ·  

            	
              Design
      only of connecting potable water line to municipal
    connection

            


    

     

    
      	
              n)  

            	
              Plant
      Weather Station complete with the following
  sensors:

            


    

     

    
      	
              ·  

            	
              Ambient
      temperature

            


    

    
      	
              ·  

            	
              Ambient
      humidity

            


    

    
      	
              ·  

            	
              Barometric
      pressure

            


    

    
      	
              ·  

            	
              Wind
      speed

            


    

    
      	
              ·  

            	
              Wind
      direction

            


    

     

     

    Construction
Services

     

    Contractor
shall provide construction services for the above, including the
following:

     

    
      	
              a)  

            	
              Safety
      and loss control program.

            


    

    
      	
              b)  

            	
              Construction
      management.

            


    

    
      	
              c)  

            	
              Scheduling.

            


    

    
      	
              d)  

            	
              Construction
      labor and supervision.

            


    

    
      	
              e)  

            	
              Construction
      equipment, including cranes.

            


    

    
      	
              f)  

            	
              Quality
      assurance program.

            


    

    
      	
              g)  

            	
              Procurement
      and expediting.

            


    

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

          

        

         

      

    

    
      	
              h)  

            	
              Manufacturer's
      field service for balance of plant
equipment.

            


    

    
      	
              i)  

            	
              Equipment
      and materials receiving, handling and secure indoor storage, including
      protection and preventative
maintenance.

            


    

    
      	
              j)  

            	
              Pre-operational
      checkout, testing, and startup
support.

            


    

    
      	
              k)  

            	
              Construction
      closeout.

            


    

    
      	
              l)  

            	
              Fire
      protection (during construction).

            


    

    
      	
              m)  

            	
              Participation
      in coordination conferences and other meetings as the Company/Company
      Engineer may request.

            


    

    
      	
              n)  

            	
              Construction
      parking.

            


    

    
      	
              o)  

            	
              Construction
      power distribution for the entire site from the local
      utility.  The local power distribution company will be a
      separate division of NorthWestern.  The Contractor shall be
      responsible for all construction power
costs.

            


    

    
      	
              p)  

            	
              Telephone
      and data service from local
companies.

            


    

    
      	
              q)  

            	
              Construction
      water, fire protection water, and sanitary
  facilities.

            


    

    
      	
              r)  

            	
              Treatment
      and disposal of waste waters and runoff resulting from construction and
      startup activities.

            


    

    
      	
              s)  

            	
              Temporary
      installations, including three adequately furnished offices for the
      Company’s staff for the duration of the
  construction.

            


    

    
      	
              t)  

            	
              Appropriate
      transportation for the workers, if
required.

            


    

    
      	
              u)  

            	
              Laydown
      area preparation.

            


    

     

     

    Start-Up

     

    Contractor
shall be responsible for performing start-up and testing activities, with
Company and equipment vendor personnel, and providing all necessary consumables
(with the exception of raw water, aqueous ammonia, fuel oil and natural gas),
and start-up spare parts for systems and equipment within Contractor’s
scope.

     

    Training

     

    Contractor
shall provide up to two weeks of on-site training for Company’s personnel on
systems and equipment within Contractor’s scope.

     

     

    [END OF
SECTION 2.2]

     

     

    
      	
              2.3.  

            	
              The
      Work shall be performed in accordance with the following Technical Scope
      Documents, all of which are hereby incorporated by
    reference:

            


    

     

    
      	
              a)  

            	
              Attachment
      A.1 – Basis of Design (BOD), Doc. No: 133860-DC-P-001,
    Rev1.

            


    

     

    
      	
              b)  

            	
              BOD
      Attachments A through J, which
      include Drawings and SORVD.

            


    

     

    
      	
              2.4.  

            	
              Company
      shall furnish the following at no cost to
  Contractor:

            


    

     

    
      	
              a)  

            	
              Site
      work required for environmental remediation and compliance relating to
      existing soil contamination.

            


    

     

    
      	
              b)  

            	
              Fluids
      for initial fills of all fluids and lubricants related to the combustion
      turbines and main generator including #2 fuel oil and aqueous
      ammonia.  The Contractor shall perform actual fills per
      technical specifications.

            


    

     

    
      	
              c)  

            	
              The
      Pratt & Whitney, FT8-3 combustion turbine and generator units complete
      with all necessary peripheral equipment including but not limited
      to:

            


    

     

    
      	
              1.  

            	
              Driver
      Module assembly

            


    

    
      	
              2.  

            	
              Pratt
      & Whitney cold weather package

            


    

    
      	
              3.  

            	
              Combustion
      turbine inlet air filtration system

            


    

    
      	
              4.  

            	
              15kV
      circuit breaker

            


    

    
      	
              5.  

            	
              Lube
      oil supply

            


    

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

          

        

         

      

    

    
      	
              6.  

            	
              Air
      filtration

            


    

    
      	
              7.  

            	
              Natural
      gas and fuel oil filtration and metering
skids

            


    

    
      	
              8.  

            	
              Lubricating
      oil air cooled heat exchanger skids

            


    

    
      	
              9.  

            	
              Trouble
      shooting spare parts

            


    

    
      	
              10.  

            	
              Strategic
      spare parts

            


    

    
      	
              11.  

            	
              SCR
      exhaust handling components with 90-foot tall stack and FAA
      lighting.

            


    

    
      	
              12.  

            	
              19%
      aqueous ammonia injection skid at SCR’s (not including
      piping).

            


    

    
      	
              13.  

            	
              Special
      tools for installation, adjustment and
  maintenance.

            


    

    
      	
              14.  

            	
              Control
      wiring from individual combustion turbine/generator (CTG) components to
      skid mounted junction boxes.

            


    

    
      	
              15.  

            	
              CTG
      shipment to job site

            


    

    
      	
              16.  

            	
              CTG
      control house

            


    

    
      	
              17.  

            	
              All
      three SCR systems, to be erected in
field

            


    

    
      	
              18.  

            	
              Extended
      warranty for all equipment

            


    

    
      	
              19.  

            	
              Extended
      warranty for gas generators and power
turbines

            


    

    
      	
              20.  

            	
              Start-up
      training and assistance

            


    

     

    
      	
               
      

            	
              (Refer
      to Attachment C of the BOD, Scope of Supply list for more extensive detail
      on the above).

            


    

     

    
      	
              d)  

            	
              230kV
      transformers, and all work associated with 230kV voltage system, including
      transformer foundations. (Foundation design by
  Contractor).

            


    

     

    
      	
              e)  

            	
              The
      necessary modifications and connection to the existing Anaconda Mill Creek
      Substation to accommodate the output of the new power
    plant.

            


    

     

    
      	
              f)  

            	
              High-voltage
      tower relocation, if required.

            


    

     

    
      	
              g)  

            	
              Raw
      water tie-in consisting of a connection flange and valve at the existing
      Silver Lake Water Line.

            


    

     

    
      	
              h)  

            	
              Compressed
      natural gas from off-site connection to the inside the site property
      line.

            


    

     

    
      	
              i)  

            	
              Sewer
      waste water drain pipe (connection point) off-site near Mill Creek
      Road.

            


    

     

    
      	
              j)  

            	
              Construction
      electrical power (480 VAC, 60~, 3f)
      and meter.  Contractor shall propose maximum amperage
      requirements to Company.

            


    

     

    
      	
              2.5.  

            	
              The
      Contractor’s Work shall be bound by the following interface
      points:

            


    

     

    
      	
              a)  

            	
              As
      shown on Site Layout Drawing #133860-0-P-PP-002 Rev B of Attachment A of
      BOD.

            


    

     

    
      	
              3.  

            	
              Schedule

            


    

     

    
      	
              3.1.  

            	
              Contractor
      shall perform its Work according to the following
  schedule:

            


    

     

    
      	
              a)  

            	
              Limited
      Notice to Proceed on or
      about                                                                                  04/15/2009

            


    

     

    
      	
              b)  

            	
              Full
      Notice to Proceed on or
      about                                                                                         07/31/2009

            


    

     

    
      	
              c)  

            	
              Mobilization
      to Project Site on or
      about                                                                                08/04/2009

            


    

     

    
      	
              d)  

            	
              First
      Fire Unit 1 on or
      about                                                                                                     07/19/2010

            


    

     

    
      	
              e)  

            	
              First
      Fire Unit 2 on or
      about                                                                                                    
      08/12/2010

            


    

     

    
      	
              f)  

            	
              First
      Fire Unit 3 on or
      about                                                                                                    
      09/02/2010

            


    

     

    Liquidated
Damages are applicable to the Milestones listed below

    (see
Attachment B – Price & Payment, Section 11 – Liquidated
Damages):

     

    
      	
              g)  

            	
              Milestone
      A – Unit #1 Substantial
      Completion                                                                    09/25/2010

            


    

     

    
      	
              h)  

            	
              Milestone
      B – Unit #2 Substantial
      Completion                                                                     10/21/2010

            


    

     

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

          

        

         

      

    

    
      	
              i)  

            	
              Milestone
      C – Unit #3 Substantial
      Completion                                                                     11/10/2010

            


    

     

    
      	
              j)  

            	
              Milestone
      D – Final Completion of Contractor’s Work on or
      about                                  12/31/2010

            


    

     

    
      	
              4.  

            	
              Communications

            


    

     

    
      	
              4.1.  

            	
              All
      communications regarding the Work, including correspondence, shall be
      conducted in accordance with the requirements of Section 51–
      Notices.

            


    

     

    
      	
              4.2.  

            	
              Communications
      between Company and Contractor shall be addressed as
    follows:

            


    

     

    
      	
              a)  

            	
              If
      to Company:

            


    

     

    
      	
              a.  

            	
              Authorized
      Representative Office Address:

            


    

     

    Stone
& Webster, Inc. A Shaw Group Company.

    9201 E.
Dry Creek Road

    Centennial,
Co  80112

     

    Attn:           Irina
Aylyarova

    Subcontracts Administrator

    Tel:  303 – 741 –
7557

    Fax: 303 – 741 – 7556

     

    
      	
              b.  

            	
              Physical/Site
      Address:

            


    

     

    Mill
Creek Generating Station

    241 Unit
A Willow Glen Road

    Anaconda,
MT  59711

     

    Attn:           Gene
Scott (Company Authorized Representative)

    Site Representative

    Tel:  303 – 882 –
2991

    Fax: TBD

     

    
      	
              b)  

            	
              If
      to Contractor:

            


    

     

    NewMech
Companies, Inc.

    1633
Eustis Street

    St. Paul,
MN 55108 – 1219


     

    Attn:           Brian
Rodeghier

    Project Manager

    Tel:  651 – 642 –
5520

    Fax: 651 – 642 – 5559


     

    
      	
              4.3.  

            	
              All
      communications from Contractor shall reference the Contract number and
      shall be numbered sequentially, with the sequential identifier displayed
      prominently.  The correspondence sequential identifier shall be
      of the form NMC-NWE-#T, where XXX is a three letter designation for
      Contractor supplied by Company, # is the number designating which position
      the letter occupies in the sequence of correspondence sent by Contractor,
      and T representing the single letter identifier of the correspondence
      type.  When responding to Company correspondence the Company's
      correspondence sequential identifier shall be
  referenced.

            


    

     

     

    
      	
              4.4.  

            	
              Unless
      otherwise stated in this Contract or in the case of an emergency, all
      Company communications regarding Contractor’s Subcontractors and Suppliers
      or their agents or employees shall be made through
    Contractor.

            


    

     

     

    
      	
              5.  

            	
              Project
      Job Rules

            


    

     

    
      	
              5.1.  

            	
              Project
      Security Plan

            


    

     

    
      	
              a)  

            	
              Work
      areas at the Project Site will be assigned to Contractor by Company or its
      Authorized Representative.

            


    

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

          

        

         

      

    

    
      	
              5.2.  

            	
              Project
      Security Plan

            


    

     

    
      	
              a)  

            	
              Contractor
      shall provide a site specific security plan for review and approval prior
      to mobilization.

            


    

     

    
      	
              b)  

            	
              Entry
      into the Project Site will be through Contractor - controlled security
      gates and will require proper
identification.

            


    

     

    
      	
              c)  

            	
              Contractor
      shall be responsible for implementing all on-site security for the
      duration of the project.

            


    

     

    
      	
              5.3.  

            	
              Hours
      and Days of Work/Overtime

            


    

     

    
      	
              a)  

            	
              The
      Project Site shall be open for work by Contractor based on normal working
      hours of 7:00 A.M. – 5:30 P.M. Monday through Thursday, 7:00 A.M. – 3:30
      P.M. on Friday as determined by
Contractor.

            


    

     

    
      	
              b)  

            	
              Scheduled
      overtime work, shift work and other variations from normal working times
      proposed by Contractor must be approved in advance and in writing by
      Company.  All scheduled overtime shall be shown on the Four Week
      Schedules.  Not later than 1:00 p.m. the day the overtime is to
      be worked, Contractor shall notify Company of any incidental overtime that
      Contractor proposes to work.  Should Contractor be required to
      work overtime due to an emergency situation to protect life or property,
      Contractor shall so notify Company as soon as reasonably
      practicable.  All overtime work, whether scheduled or incidental
      or for emergencies, shall be to Contractor’s account.  All costs
      incurred by Company in connection with Contractor working different work
      hours may be to Contractor’s
account.

            


    

     

    
      	
              5.4.  

            	
              Company
      Facilities

            


    

     

    
      	
              a)  

            	
              Contractor
      shall not use Company's supplies or existing facilities except when
      approved in advance by Company or in case of an
  emergency.

            


    

     

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

          

        

      

    

    Attachment
B – Price & Payment

     

    
      

      

    

    
      	
              1.  

            	
              Guaranteed
      Maximum Price (GMP)

            


    

     

    
      	
              1.1.  

            	
              In
      return for the full and complete performance of its Work and all
      obligations associated therewith, Contractor shall be paid for all costs
      up to the GMP US $54,075,384.00, (Fifty four million, seventy five
      thousand, three hundred eighty four dollars) excluding Change Orders. All
      payments shall be made in US dollars. Reference Attachment B1 – Pricing
      Table for pricing associated with
GMP:

            


    

     

    
      	
              2.  

            	
              Reference
      Schedules/Attachments for Changes
      pursuant to Article 37.

            


    

     

    B2 – Cash
Flow Projection Sheet

     

    B3 –
Schedule One – All inclusive billable labor rates.

     

    B4 –
Schedule Two – Contractor Owned Equipment.

     

    B5 –
Contractor Equipment List

     

    
      	
              3.  

            	
              Definitions

            


    

     

    Definition
of Fixed Value line
items listed in the detailed B1 – Pricing Table is described
below.  Pricing shall be in accordance with these
definitions.

     

    
      	
              ·  

            	
              Overhead
      – means a price component that represents three percent (3%) of the GMP
      cost estimate and consists of corporate costs such as: corporate salaries,
      home office supplies, advertising, marketing, corporate travel,
      entertainment, legal, donations, dues, training, consulting, rent,
      telephone, postage, insurance, audits, utilities, recruiting and
      information technologies.

            


    

    
      	
              ·  

            	
              Profit
      – Fee paid to Contractor for execution of Work. The profit component
      equals seven percent (7%) of the GMP cost
  estimate.

            


    

    
      	
              ·  

            	
              Contract
      Contingency – See Section 3.3 – Contract Contingency below for
      definition.

            


    

     

    Definition
of Indirect line items
listed in the detailed B1 – Pricing Table is described below.  Pricing
shall be in accordance with these definitions.

     

    
      	
              ·  

            	
              Engineering
      and Design - Includes all cost associated with Engineering and
      design.

            


    

    
      	
              ·  

            	
              Cost
      of Insurance above Standard to meet requirements - Additional Cost
      required meeting the standard insurance requirements in Attachment
      C.

            


    

    
      	
              ·  

            	
              Security
      (Letter of Credit) - All costs associated with obtaining and maintaining
      the appropriate level of securities based on the requirements
      herein.

            


    

    
      	
              ·  

            	
              Sales
      & Use Tax – All costs associated with applicable Sales & Use
      taxes.  Contractor is responsible to review local and national
      tax regulations as it may pertain to the Mill Creek Generating Station and
      shall comply with applicable tax laws, rules and
    regulations).

            


    

    
      	
              ·  

            	
              Permits
      – All costs associated with obtaining any and all permits that may be
      applicable to this Contract based on Basis of Design
      document.  Permits by Company are identified in Attachment
      I.

            


    

    
      	
              ·  

            	
              Indirect
      Labor & Supervision - Includes all costs associated with indirect
      field labor and supervision. (Indirect Labor is defined as non-craftsmen:
      examples warehouseman, field engineering, and clerical administration. On
      site Supervision is defined as Classifications above General
      Foreman).  Note:  All equipment operators’ hours and
      cost are identified in the columns identified as “direct labor” &
      “subcontractors” in the B1 – Pricing
Table.

            


    

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

          

        

      

    

    
      	
              ·  

            	
              Indirect
      Consumables & Materials – All costs associated with procurement of
      indirect Consumables & Materials. (Indirect Consumables &
      Materials are defined as materials not a part of the permanent plant
      installation).

            


    

    
      	
              ·  

            	
              Mobilization
      – Cost for project site
mobilization.

            


    

    
      	
              ·  

            	
              Temporary
      Facilities - All costs associated with temporary facilities shall include,
      but not necessarily be limited to: temporary offices, temporary
      warehousing, temporary fencing, supply and installation of temporary
      utilities for facilities, office equipment, portable toilets, waste
      management, lay-down yard, etc.

            


    

     

    Definition
of Direct line items
listed in the detailed B1 – Pricing Table is described below.  Pricing
shall be in accordance with these definitions.

     

    
      	
              1.  

            	
              CTG
      Area – Will include but not limited to all material, labor, &
      equipment associated with the installation of foundations, buildings,
      HVAC, Oily Wastewater System, Air Pretreatment, Bus Duct, misc. steel
      & iron, piping, area electrical, area I & C, etc. This area will
      also have installation cost for several pieces of equipment
      supplied  by others, Combustion Turbine/Generator, SCR, Unit
      Step-Up Transformer, Generator Breaker, & the Diesel
      Generator.

            


    

    


    
      	
              2.  

            	
              Ammonia
      Area – Will include but not limited to all material, labor, &
      equipment associated with Ammonia System, foundations, tanks, buildings,
      misc. steel & iron, piping, area electrical, area I & C, HVAC,
      etc, to provide ammonia to the gas turbines, & unloading & storage
      of ammonia from tanker trucks.

            


    

    


    
      	
              3.  

            	
              Fuel
      Oil Area – Will include but not limited to all material, labor, &
      equipment associated with Fuel Oil System, foundations, buildings, misc.
      steel, tanks, misc. steel & iron, piping, area electrical, area I
      & C, HVAC, etc, to provide liquid fuel to the gas turbines, &
      unloading & storage of fuel oil
..

            


    

    


    
      	
              4.  

            	
              Fuel
      Gas Area – Will include but not limited to all material, labor, &
      equipment associated with Fuel Gas System, misc. steel, misc. steel &
      iron, piping, area electrical, area I & C, fuel gas heater, etc, to
      take the natural gas from the metering station to the buildings & gas
      turbines.

            


    

    


    
      	
              5.  

            	
              Site
      Development - Will include but not limited to all material, labor, &
      equipment associated with site preparation, geo-technical investigation,
      roads, landscaping, fencing, drainage, storm water collection, & fire
      detection, etc.

            


    

    


    
      	
              6.  

            	
              Utility
      Systems - Will include but not limited to all material, labor, &
      equipment associated with fire protection, instrument air system,
      etc.

            


    

    


    
      	
              7.  

            	
              Water
      Treatment Area - Will include but not limited to all material, labor,
      & equipment associated with Raw Water, Service Water, Sewer Water,
      & Water Treatment System, buildings, misc. steel, foundations, tanks,
      misc. steel & iron, piping, sewer lift station, area electrical, area
      I & C, HVAC, etc.

            


    

    


    
      	
              8.  

            	
              Plant
      Electrical - Will include but not limited to all material, labor &
      equipment associated with PDC building, HVAC, foundations, remainder of
      plant electrical and I & C, duct banks, MCC’s, UPS system, lighting,
      conduit, cable tray, power & control cables, communication system,
      etc, to support balance of plant electrical
  equipment.

            


    

    


    
      	
              9.  

            	
              Yard
      Electrical & Security - Will include but not limited to all material,
      labor & equipment associated with yard lighting, security &
      surveillance, heat trace and insulation, grounding, lightning protection,
      cathodic protection, etc.

            


    

    


    
      	
              10.  

            	
              Plant
      Controls - Will include but not limited to all material, labor &
      equipment associated with plant primary I & C, Control Room, PLC’s,
      primary control valves, tubing, instruments, etc. in all areas of the
      plant.

            


    

    
      
        
           

          
            	
                    11.  

                  	
                    Plant
      Control Room & Maintenance Building - Will include but not limited to
      all material, labor, & equipment associated with foundations,
      electrical, furnishings, finishes, buildings, misc. steel, HVAC,
      etc.

                  


          

           

        

        
          Contract_7/27/09                            36 of 63                      Contractor Initials
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                                                                  Company Rep Initials
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

        

      

    

     

    
      	
              12.  

            	
              Painting
      - Will include but not limited to all material, labor & equipment
      associated with plant wide
painting.

            


    

    


    
      	
              13.  

            	
              Performance
      testing/start-up/commissioning.

            


    

    


    ***         Freeze
protection of all components needed to provide uninterrupted service with
dependable high qualityequipment
is included all areas above as required by BOD.

     

    
      	
              3.1.  

            	
              The
      Guaranteed Maximum Price (GMP) value of this Contract is separated into
      three (3) parts as defined below.

            


    

     

    
      	
              a)  

            	
              Part
      One: “FIXED VALUE” –
      All costs of Contract Contingency, Overhead and
  Profit

            


    

     

    
      	
              b)  

            	
              Part
      Two: "INDIRECT PRICE" - All costs associated with the Indirect
      Work

            


    

     

    
      	
              c)  

            	
              Part
      Three: "DIRECT PRICE" – All costs associated with the Direct
      Work

            


    

     

    
      	
              3.2.  

            	
              Allocation of Cost Savings:
      The Parties acknowledge that the intent of the compensation method
      established by this Contract is to incentivize the Contractor to complete
      the Work at a cost below the GMP. As such, in the event that after the
      date of Final Completion, the GMP Contract Cost (excluding approved Change
      Orders) is less than the GMP, Contractor shall be paid half of the
      difference between the GMP Contract Cost and the GMP, and Company shall
      retain the other half.

            


    

     

    
      	
              3.3.  

            	
              Contract Contingency:
      The term “Contract Contingency” means the allocated amount of funds
      for exclusive Contractor use to cover costs associated with completing the
      GMP scope of work that exceeds the GMP estimated cost.  The
      Contract Contingency is included in the GMP, but is not available,
      and shall not be used to pay for scope of Work Changes (i.e., Changes not
      contemplated when the Parties established the GMP). Further, no part of
      the Contract Contingency is assigned to any specific portion of the Work.
      Rather, the Contract Contingency is a general fund available for the
      Contractor’s exclusive use throughout the Work. Contractor’s use of the
      Contract Contingency is subject to Contractor’s reasonable discretion and
      contemporaneous written notice to Company prior to allocation. Notice
      shall include a description and amount of the Cost of the Work to be paid
      from the Contract Contingency, the entities and/or individuals being paid,
      and the reasons for the allocation of the contingency funds. In addition
      Contractor shall provide a monthly accounting of the charges made against
      the Contract Contingency. Company shall retain 50% of the remaining
      Contract Contingency at the time Final Payment is made. Reference Section
      11.6 below for limitations regarding use of Contract Contingency funds
      relative to Liquidated Damages.

            


    

     

    
      	
              4.  

            	
              CHANGE
      MANAGEMENT

            


    

     

    
      	
              4.1.  

            	
              Dead
      Band for Change Order Profit Adjustment:  All approved Change
      Orders to the GMP scope of work that have cost impact shall be priced
      excluding profit. Profit adjustments for approved Change Orders shall be
      managed via the process outlined in Attachment J – Dead Band Profit
      Adjustment Process for Change
Orders.

            


    

     

    
      	
              4.2.  

            	
              Hourly Labor Rates for Changes
      Only:  The hourly rate pricing set forth in the Schedule
      One of the Attachment B shall remain firm for the duration of no less than
      a period of one year from the date of this agreement or per formal Union
      Wage Rate changes, whichever should occur first. All burdened rates
      included in this Agreement shall include all Contractor's out-of-pocket
      costs, such as:  bare labor rate, small tools, benefits and
      taxes.  Small tools are defined as tools with a replacement
      value of less than $1,500.00.  Excluded from burdened rates are:
      overhead, profit and contingency.  The Contractor can request
      equitable adjustment if established union rates increase by submitting
      updated rates for review and approval. Mark-up for overhead and profit
      shall not be applied to the premium portion of overtime
    costs.

            


    

     

    
      	
              4.3.  

            	
              Unit
      Rates for construction equipment

            


    

     

    
      	
              1.  

            	
              Full
      compensation to Contractor for Contractor-owned construction equipment
      shall be in accordance with the Unit Rates set forth in Pricing Schedule
      Two hereto.  When Contractor provides equipment not listed in
      Pricing Schedule Two, the Unit Rate shall be negotiated and agreed upon in
      writing by Company. In no event shall rental paid exceed the market value
      of the item of construction equipment. Market value is defined as
      ‘replacement value’.

            


    

     

    
      	
              2.  

            	
              The
      Unit Rates identify all Contractor-owned equipment that may be used by
      Contractor in performance of the Work which has a replacement cost greater
      than $1,500.00.

            


    

    
       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    
      	
              3.  

            	
              The
      Unit Rates listed are for fully maintained equipment.  All Unit
      Rates shall include all fuel, lubricants, support equipment, repair parts,
      service and maintenance labor, applicable taxes, insurance, depreciation,
      and mobilization to and from the Project Site, except when such
      mobilization is specifically required to perform the relevant
      Change.  For equipment specifically mobilized to the Project
      Site for performance of Changes, Contractor shall separately identify
      transportation costs (including loading, off-loading, assembly, and
      disassembly) when submitting proposals to Company for performing
      changes.  Transportation costs shall not be applicable to
      equipment already mobilized on the Project
Site.

            


    

     

    
      	
              4.  

            	
              Unit
      Rates for equipment exclude the services of an operator and overhead,
      profit and contingency.

            


    

     

    
      	
              5.  

            	
              Daily,
      weekly, and monthly Unit Rates are based upon [10 hours per day], [40
      hours per week], and [173 hours per month], respectively. Hourly charges
      for any day shall not exceed the daily rate, daily charges for any
      calendar week shall not exceed the weekly rate, and weekly charges for any
      calendar month shall not exceed the monthly
  rate.

            


    

     

    
      	
              6.  

            	
              The
      Unit Rates shall apply whether the equipment is utilized for operations
      during day, evening, night shifts or
overtime.

            


    

     

    
      	
              7.  

            	
              When
      the use of equipment is infrequent and, as determined by Company, need not
      continuously remain at the Project Site, payment shall be limited to
      actual hours of use.  Equipment not operating, but retained at
      the Project Site at Company’s direction shall be paid the standby rates
      specified herein.

            


    

     

    
      	
              8.  

            	
              No
      payment shall be made for equipment that is not operating because it is
      broken down, or undergoing maintenance, repair, or
    overhaul.

            


    

     

    
      	
              5.  

            	
              Invoicing
      & Payment Schedule

            


    

     

    
      	
              5.1.  

            	
              The
      Total Contract Cost shall be paid to Contractor in accordance with the
      payment schedule defined below:

            


    

     

     (EXAMPLE)

     

    
      	
              ITEM

            	
              DESCRIPTION

            
	
              MILESTONE
      PAYMENTS

            
	
              a.

            	
              Insurance
      Cost shall be paid upon receipt of approved certificate

            
	
              b.

            	
              Letter
      of Credit Cost shall be paid upon receipt of approved Letter of
      Credit

            
	
              c.

            	
              Mobilization
      paid upon actual percent complete of mobilization with initial payment per
      section 5.12 below.

            
	
              PROGRESS
      PAYMENTS

            
	
              a.

            	
              Engineering
      & Design shall be paid on approved progress
      basis.

            
	
              b.

            	
              Applicable
      Sales & Use Tax shall be paid with each applicable
      invoice.

            
	
              c.

            	
              Direct
      & Indirect Material shall be invoiced and paid as accepted at
      site.

            
	
              d.

            	
              Direct
      & Indirect Labor Works shall be paid based on approved progress
      complete.

            
	
              e.

            	
              Direct
      Construction Equipment Works shall be paid based on approved Direct Work
      progress complete.

            
	
              f.

            	
              OH&P
      shall be paid in percentage proportionate to the progress of approved
      Direct Work progress complete.

            


    

     

    
      	
              5.2.  

            	
              Contractor,
      when requested shall submit an advance draft version of each invoice to
      Company seven (7) calendar days prior to submission of the certified
      invoice for Company review and comment.  Contractor shall submit
      its certified invoice to Company every two weeks for all Work completed
      through the end of the billing
period.

            


    

    
       

      
        Contract
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    
      	
              5.3.  

            	
              Contractor
      shall prepare all invoices in a form satisfactory to
      Company.  Invoices shall address Work completed by Contractor
      during each billing period.  Each invoice shall indicate the
      time period during which the Work was
performed.

            


    

     

    
      	
              5.4.  

            	
              Contractor
      shall prepare Exhibit 4 “Requisition for Payment” and attach to each
      invoice.

            


    

     

    
      	
              5.5.  

            	
              Contractor's
      invoices may be on a milestone or progressive basis in accordance with the
      Contract shall include cost code requirements and be clearly marked with
      the Contract Number.  Change Orders that adjust the Total
      Contract Cost shall be invoiced as part of the regular monthly payment,
      but itemized separately.

            


    

     

    
      	
              5.6.  

            	
              Contractor
      shall sign each invoice certifying that all Work covered by the invoice is
      complete and that the invoice is correct, authentic, and the only one
      issued for the Work described
therein.

            


    

     

    
      	
              5.7.  

            	
              Contractor
      shall submit one (1) electronic copy of the invoice complete with all
      supporting documentation to Company's Authorized Representative at irina.aylyarova@shawgrp.com.  When
      electronic copy is accepted for payment by Authorized Representative and
      is forwarded to Company for further approval and payment, Contractor shall
      then send the original invoice to 9201 E. Dry Creek Road, Centennial, Co
      80112, marked "Attention: Irina Aylyarova", for record
      retention.  Authorized Representative shall notify Contractor of
      acceptance for processing of the invoice, thus to receive the original
      invoice.  See Attachment H – Invoice Process Flow Chart for
      additional invoicing information.

            


    

     

    
      	
              5.8.  

            	
              Each
      invoice shall include a notarized Partial Release of Lien and Waiver from
      Contractor in the form of Exhibit 1.  At its sole discretion,
      Company may also require Contractor to provide similar releases and
      waivers from Contractor’s Subcontractors who have provided labor,
      materials, equipment, or services as part of the Work being
      invoiced.  Company shall have the right to withhold any payments
      otherwise due and owing until such documentation is
    received.

            


    

     

    
      	
              5.9.  

            	
              Contractor
      shall separate their invoice cost in accordance with FERC accounts, per
      Company’s directive.

            


    

     

    
      	
              5.10.  

            	
              Each
      invoice shall include substantial supporting information relative to
      invoice amount, progress associated with said invoice and description of
      Work.  Such supporting information shall be provided in details
      relative to 3rd party prudency review, due diligence will be apparent to
      support the invoice in question.

            


    

     

    
      	
              5.11.  

            	
              Any
      invoice that fails to comply with the terms of this Contract, including
      the requirements of form and documentation, may be returned, (in whole or
      in part), to Contractor unapproved.  All costs associated with
      the resubmission of a proper invoice shall be to Contractor's
      account.  Company may withhold payment of invoices until
      Contractor furnishes all required documentation.  Company
      reserves the right to make provisional payment on any invoice in dispute
      pending audit and reconciliation of such
  invoice.

            


    

     

    
      	
              5.12.  

            	
              If
      required by the Laws of any governmental or taxing authority having
      jurisdiction, Company shall have the right to withhold amounts, at the
      withholding rate specified by such Laws, from payments due from Company to
      Contractor hereunder, and any amount so withheld shall be credited against
      any payment otherwise owing by Company to Contractor by virtue of the
      terms of this Contract.

            


    

     

    
      	
              5.13.  

            	
              Mobilization
      initial invoice may be submitted as soon as (4) business days after EPC
      Contract Award and will be paid net (10) calendar
  days.

            


    

     

    
      	
              5.14.  

            	
              Undisputed
      amounts shall be payable net thirty (30) calendar days after receipt by
      Company of an acceptable invoice.  Payment of Contractor's invoices
      shall not be construed to be an acceptance by Company of any portion of
      the Work.

            


    

     

    
      	
              5.15.  

            	
              The
      final invoice shall be payable after Final Completion and Final Acceptance
      of the Work.  Contractor’s final invoice shall contain a
      complete itemized listing of all invoices by number, date, gross amount,
      and the total amount of sums retained and due.  The final
      invoice shall also include Contractor’s notarized Final Release of Lien
      and Waiver in the form of Exhibit 2 (Final Release of Lien & Waiver of
      Claims), appended hereto and incorporated herein by
      reference.  Final payment shall be made within thirty (30)
      calendar days after submittal by Contractor of an approved final
      invoice.  Final payment shall not relieve Contractor of any
      obligation under this Contract
warranties.

            


    

     

     

    Company,
in its sole discretion, may withhold final payment until Contractor furnishes an
affidavit setting forth the extent to which final payment or settlement has been
made of all bills 

    
       

      
        Contract
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    and
claims of whatever kind or nature in any manner arising out of the Contract,
including full details as to any such bills and claims remaining unpaid or
unsettled.  Company shall have the right to retain from any payment
then due to the Contractor, so long as any of said bills or claims remain unpaid
or unsettled and outstanding, a sum sufficient (or if insufficient, then all of
any such payment due to the Contractor) in the opinion of the Company to provide
for the payment of the same, and the Company may pay any such bills or claims
pro tanto in full
satisfaction and discharge of any like amount due to the
Contractor.  Prior to final payment and as a condition thereto, the
Contractor shall furnish a release, in form and substance satisfactory to the
Company, of all claims of the Contractor against the Company arising under and
by virtue of the Contract..

     

    Contractor
shall be required to supply, operate and maintain an accurate, computerized
man-hour tracking system for all labor expended on site, such as; card
reader.  The physical location of tracking system shall be on
site.  This system must be capable of reporting daily, weekly and
monthly reports to support trending and invoicing.  Actual hours
expended must correspond with the man-hour tracking system.

     

    
      	
              6.  

            	
              Backcharges.

            


    

     

    A
backcharge is a cost incurred by Company in performing Work that is the
responsibility of Contractor.  The backcharge cost shall consist of
Company’s actual incurred cost plus a mark-up of ten percent (10%) for Company's
overhead and profit. Company may deduct backcharge costs from any amounts due
Contractor.  If amounts due Contractor are insufficient to pay the
backcharge cost, Contractor shall pay all such amounts to Company within ten
(10) days following receipt of Company’s invoice.

     

    
      	
              7.  

            	
              Taxes

            


    

     

    The GMP
includes all applicable Federal, State, and local taxes and duties. Contractor
hereby assigns to Company all rights to refunds of sales and use taxes paid in
connection with this Contract and agrees to co-operate with Company in the
processing of any refund claims.

     

    
      	
              8.  

            	
              Offset

            


    

     

    Company
shall be entitled to offset any amounts that Contractor owes to Company against
any monies due to Contractor under this Contract or any other contract between
Company and Contractor.

     

    
      	
              9.  

            	
              Interest

            


    

     

    Company
shall pay Contractor Four Percent (4%) simple annual interest on all undisputed
amounts not paid within thirty (30) days.  The failure to make timely
payment in accordance with this Contract shall not entitle Contractor to stop or
slow its Work.  Contractor’s sole and exclusive remedy for the failure
to make payment in accordance with this Contract is the recovery of interest
under this section of Attachment B.

     

    
      	
              10.  

            	
              Contractor
      Allowable Markups for changes

            


    

     

    This
section applies to work or rates not defined in the original Contract or when
adjustments to the GMP for Changes are made.  Pricing for changes will
be reimbursed at cost, excluding profit.  The process for profit
adjustment relative to Change Orders is further defined in Section 4. The
pricing method is at Company's sole option by one or a combination of the
following methods:

     

    
      	
              10.1.  

            	
              Negotiated
      Lump Sum. Company and Contractor may negotiate a mutually acceptable lump
      sum price for such Changes or portions
thereof.

            


    

     

    
      	
              10.2.  

            	
              Established
      Unit Prices. If the Contract contains unit prices for tangible quantities
      and if such unit prices are applicable, then such unit prices may be used
      to calculate the price for the
Change.

            


    

     

    
      	
              10.3.  

            	
              Negotiated
      Unit Prices. If the Contract does not contain established unit prices for
      tangible quantities for the Change, then the Parties may agree upon such
      unit prices to be used to calculate the price for the
    Change.

            


    

     

    
      	
              10.4.  

            	
              Reimbursable
      Basis. Changes may be priced on a reimbursable basis according to the
      following procedures: Allowance for overheads will be considered on a
      case-by-case basis for each separate change item.  Contractor
      shall document their basis to defend their overhead
  cost.

            


    

     

    
      	
              1.  

            	
              Hourly
      Labor Rates for direct and indirect
labor.

            


    

    
       

      
        Contract
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    
      	
              a)  

            	
              Full
      compensation to Contractor for labor shall be in accordance with the Labor
      Rates set forth in Pricing Schedule One hereto, or Notwithstanding the
      inclusion of such Unit Rates for labor and staff in Pricing Schedule One,
      Company, at its sole discretion, may elect to compensate Contractor for
      any or all labor furnished on a Reimbursable basis utilizing Certified
      Payroll.

            


    

     

    
      	
              b)  

            	
              Where
      a direct craft or indirect staff position does not exist in Pricing
      Schedule One, fixed dollar amounts for small tools and consumables and
      personal protective equipment for such new position shall be submitted to
      Company for review and approval.  The fixed dollar amounts for
      small tools and consumables and personal protective equipment shall not be
      subject to any further markup and
overhead.

            


    

     

    
      	
              c)  

            	
              Mark-up
      for overhead shall not be applied to the premium portion of overtime
      costs.  If appropriate, fixed dollar amounts may be included for
      per diem, small tools and Consumables and for Personal Protective
      Equipment.  Such fixed amounts shall be based on the rates in
      Pricing Schedule One.

            


    

     

    
      	
              d)  

            	
              On
      certain occasions, Company may agree to compensate Contractor by Change
      Order for working additional overtime to accomplish certain specified
      tasks.  Such agreement by Company shall only be valid if made in
      writing in advance of such authorized overtime being worked.  In
      each such instance, Company shall pay Contractor the differential amount
      for labor and supervision overtime worked, without mark-up for
      overhead.  The term “Differential Amount” as used herein is
      defined as the difference between the actual labor related costs of the
      authorized overtime and the average labor related costs in a normal
      project work week as specified in the Contract, the average labor related
      costs being a composite of straight-time and overtime worked in such
      normal project work week.

            


    

     

    
      	
              2.  

            	
              Materials
      and Equipment

            


    

     

    
      	
              a)  

            	
              Compensation
      for additional Materials and Equipment and additional indirect
      construction materials shall be at actual invoiced cost to Contractor,
      including transportation to site, as substantiated by invoices certified
      paid or by such documentation as may be required by
      Company.  Contractor shall provide proof of competitive pricing
      for all Materials and Equipment furnished under this
      Article.  There shall be no mark-up applied to
      taxes.

            


    

     

    
      	
              b)  

            	
              Company
      reserves the right to provide, at no cost to Contractor, Materials and
      Equipment, services, supplies, or incidentals required to perform any
      additional Work.

            


    

     

    
      	
              c)  

            	
              All
      refunds, trade discounts, rebates, and all monies obtained from the
      disposal of surplus items supplied hereunder shall accrue to
      Company.

            


    

     

    
      	
              3.  

            	
              Third
      Party construction equipment Rental

            


    

     

    
      	
              a)  

            	
              Rental
      rates for third-party construction equipment used by Contractor for
      performance of Changes shall be approved by Company prior to rental and
      will be reimbursed at actual cost to Contractor, including transportation
      to site, as substantiated by invoices certified paid or by such
      documentation as may be required by Company. Prior to any third-party
      rental, Contractor shall submit a stated value for the equipment being
      rented and demonstrate the rates to be favorable on a competitive
      basis.

            


    

     

    
      	
              4.  

            	
              Subcontracts

            


    

     

    
      	
              a)  

            	
              All
      Subcontracts and third-party services employed by Contractor for
      performance of Changes shall be approved by Company prior to use and will
      be reimbursed at actual cost to Contractor as substantiated by invoices
      certified paid or by such documentation as may be required by
      Company..

            


    

     

    
      	
              b)  

            	
              Contractor
      shall obtain competitive market pricing for Changes performed by
      Subcontractors.  For Changes performed by Subcontractors on an
      actual cost basis, an allowance may be included for the Subcontractor's
      overhead.  No mark-up for overhead shall be applied to the
      premium portion of Subcontractors’ overtime
  costs.

            


    

     

    
      	
              c)  

            	
              If
      Subcontractor/s pricing is obtained to become part of Contractors total
      price for an individual change to the Contract, the total cumulative
      markup, including all Subcontractors, shall not exceed
  10%

            


    

     

    
      	
              10.5.  

            	
              Supporting
      Documentation

            


    

    
       

      
        Contract
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    For Work
performed on a Reimbursable basis, Contractor shall submit, for approval by
Company, daily time sheets at the end of each day for labor and construction
equipment employed on all such Work performed that day.

     

    
      	
              10.6.  

            	
              Company
      shall have the right for a period of three years after Final Acceptance to
      audit all of Contractor’s records with regard to any
    Change.

            


    

     

    
      	
              11.  

            	
              Liquidated
      Damages

            


    

     

    
      	
              11.1.  

            	
              If
      Contractor fails to achieve the milestones set forth below by the
      specified date, Contractor shall pay to Company the applicable daily
      amount as liquidated damages for each calendar day by which the actual
      date of completion of said milestone exceeds the respective date, up to a
      maximum for all schedule related liquidated damages of  $5,000,000.00 – five
      million dollars.

            


    

     

    


     

    
      	
              Milestone

              Number

            	
               

              Description

            	
              Daily
      Liquidated Damages Amount

            
	
              Milestone
      A

            	
              Unit
      # 1 Substantial Completion – 9/25/10

            	
              see
      below

            
	
              Milestone
      B

            	
              Unit
      # 2 Substantial Completion – 10/21/10

            	
              see
      below

            
	
              Milestone
      C

            	
              Unit
      # 3 Substantial Completion – 11/10/10

            	
              see
      below

            
	
              Milestone
      D

            	
              Final
      Completion of Contractor’s Work – 12/31/10

            	
              $
      5,000.00

            


    

     

     

    Daily
Liquidated Damages per Unit for Milestones A, B & C shall be as
follows:

     

    
      	
              Days

            	
              Daily
      Liquidated Damages Amount

            
	
              1-10

            	
              $
      10,000.00

            
	
              11-20

            	
              $
      15,000.00

            
	
              21-30

            	
              $
      25,000.00

            
	
              31
      or more

            	
              $
      35,000.00

            


    

     

     

    
      	
              11.2.  

            	
              The
      Parties agree that these liquidated damages are a reasonable and fair
      estimate of the Losses Company would suffer for each calendar day by which
      Contractor is late in completing the applicable milestones.  The
      liquidated damages are agreed to be a reasonable estimate of actual
      damages, and not a penalty.

            


    

     

    
      	
              11.3.  

            	
              Contractor
      agrees that all sums payable by Contractor to Company as liquidated
      damages pursuant to this clause may be deducted by Company from any
      amounts due Contractor.  If amounts due Contractor are
      insufficient to pay the liquidated damages due hereunder, Contractor shall
      pay all such amounts to Company within ten (10) days following receipt of
      Company’s invoice.

            


    

     

    
      	
              11.4.  

            	
              It
      is further agreed that this clause shall not constitute a waiver of any
      right of Company to damages or of any other remedies of Company under this
      Contract or otherwise for Contractor's improper performance or default in
      performance of any other aspect of this
  Contract.

            


    

     

    
      	
              11.5.  

            	
              Preconditions
      to achievement of Substantial Completion are defined in Contract section 1
      –Definitions, under Substantial Completion.  Preconditions to
      achievement of Final Completion are defined in Contract section
      38.  To the extent that these preconditions are delayed through
      no fault of Contractor, the Substantial Completion dates and/or Final
      Completion date shall be equitably adjusted on a day-for-day basis, as
      mutually agreed between the
Parties.

            


    

    
       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    
      	
              11.6.  

            	
              Liquidated
      Damages shall not be included in the calculation of the GMP Contract Cost.
      If Liquidated Damages are imposed and there are realized savings within
      the GMP Contract Cost, Contractor shall not use Company’s portion of the
      savings to fund Liquidated Damages. Payment for Liquidated Damages shall
      be made and reconciled between Contractor and Company in advance of any
      distribution of savings within the GMP Contract
  Cost.

            


    

     

    
      	
              12.  

            	
              Performance
      Testing and Performance Guarantees

            


    

     

    
      	
              12.1.  

            	
              Contractor
      guarantees that the services, goods, equipment, and systems provided under
      the EPC scope meet the design and performance required by the Basis of
      Design and associated project documents and
  drawings.

            


    

     

    
      	
              12.2.  

            	
              Contractor
      shall conduct equipment/systems performance tests to demonstrate and prove
      required operation and capability.  The results shall be
      provided to Company.

            


    

     

    
      	
              12.3.  

            	
              Should
      required performance fail to be achieved during the performance tests due
      to the fault of Contractor, Contractor shall take measures to achieve all
      required performance and retest the equipment.  Contractor shall
      bear all of its costs thus incurred, except the costs of fuel and
      electricity which shall be borne by Company.  Contractor shall
      make-right the following items to achieve required
      performance.

            


    

     

    
      	
              1.  

            	
              Pressures
      and temperatures and flow rates of supply systems to combustion turbines
      to meet design criteria.

            


    

     

    
      	
              2.  

            	
              Water
      treatment quality to meet design
criteria.

            


    

     

    
      	
              3.  

            	
              Plant
      controls to have a 30-day sustained satisfactory operation after
      Substantial Completion of all units.  Plant controls
      satisfactory operation shall be completed prior to December 31,
      2010.

            


    

     

    
      	
              12.4.  

            	
              If
      Contractor fails to achieve required performance at Final Acceptance,
      Company will take measures to correct equipment/systems and obtain
      required performance.  All costs incurred by Company in these
      efforts shall be to the Contractor’s
account.

            


    

     

     

    end.

     

     

    
      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

    

     

    Attachment
C – Insurance Requirements

     

    
      

      

    

     

    
      	
              1.  

            	
              Insurance

            


    

     

    
      	
              1.1.  

            	
              Contractor
      shall obtain minimum insurance coverages as
  follows:

            


    

     

    
      	
              1.  

            	
              Workers'
      Compensation Insurance as required by statute in the specific State or
      site where the work is to be performed, including, to the extent
      applicable, coverage for U.S. Longshoremen’s and Harbor Workers
      Compensation Act and the Jones Act.

            


    

     

    
      	
              2.  

            	
              Employer's
      Liability Insurance with a limit of $1,000,000, including, without
      limitation, coverage for occupational diseases, to provide for the payment
      of benefits to its employees employed on or in connection with the Work
      covered by this Contract and/or to their dependents in accordance with
      applicable Law; including, without limitation, and to the extent
      applicable, the U.S. Longshoremen's and Harbor Workers' Compensation Act
      and the Jones Act.

            


    

     

    
      	
              3.  

            	
              Commercial
      General Liability Insurance on an occurrence form, including but not
      limited to Blanket Contractual Liability; Company's and Contractor's
      Protective Liability; Products and Completed Operations; coverage for work
      within 50 feet of a railroad (if applicable) and with minimum combined
      single limits for bodily injury, including death, and property damage of
      at least $1,000,000 per occurrence.

            


    

     

    
      	
              4.  

            	
              Automobile
      Liability Insurance, including coverage for owned, non-owned and hired
      vehicles, with minimum combined single limits of at least $1,000,000 per
      occurrence for bodily injury and death, and property
    damage.

            


    

     

    
      	
              5.  

            	
              Contractor’s
      Pollution Liability Insurance (if applicable), covering Contractor’s
      on-site operations, and transportation of hazardous materials, with a
      minimum combined single limit of $1,000,000.  This coverage can
      be used to meet the requirement for Sudden and Accidental Pollution
      coverage in the Commercial General Liability
  policy.

            


    

     

    
      	
              6.  

            	
              Excess/Umbrella
      Liability insurance following form of and as broad as that of, but no
      broader than, the underlying primary General Liability, Automobile
      Liability and Employer’s Liability coverages provided above with limits of
      $10,000,000 each occurrence and per project or location
      aggregate.

            


    

     

    
      	
              7.  

            	
              If
      Contractor provides Materials or Equipment that are shipped by ocean
      transit, Marine Cargo Insurance with the limit per occurrence equal to the
      greatest single shipment value and (a) written on a “warehouse to
      warehouse” basis including land, air, and marine transit and temporary
      storage in route, (b) insuring "all risks" of loss or damage on a
      replacement cost basis and including coverage for war, charges of general
      average sacrifice, or contribution, and salvage expenses, and (c)
      containing no express exclusion for inadequate
  packing.

            


    

     

    
      	
              8.  

            	
              If
      barges, boats or other vessels are used in performing Contractor’s work,
      Protection and Indemnity Insurance with limits of at least $5,000,000 per
      occurrence.  Any “as Company” limitation wording in the
      Insurance policy must be deleted.

            


    

     

    
      	
              9.  

            	
              If
      fixed wing, rotary wing or other aircraft are used in performing
      Contractor’s work, Aircraft Liability Insurance is
      required.  Use of fixed wing aircraft requires Aircraft
      Liability limits of at least $10,000,000 per occurrence.  Use of
      rotary wing (e.g. helicopters) and other aircraft requires Aircraft
      Liability limits of at least $15,000,000 per occurrence.  If
      aircraft are used in moving or placing equipment on the project site,
      limits of at least $100,000,000 per occurrence are
    required.

            


    

     

    
      	
              10.  

            	
              If
      Contractor provides design as part of their scope of work under this
      contract, Professional Liability Insurance is required with a minimum
      limit of $5,000,000.

            


    

     

    
      	
              11.  

            	
              Each
      and every insurance policy above shall include an insurer’s waiver of
      subrogation rights, where allowed by law, in favor of Company, each of its
      subsidiaries and affiliates, Company’s financing parties (if any) and each
      of their respective directors, officers, and employees, and such rights of
      subrogation shall be and are hereby
waived.

            


    

    
       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    
      	
              12.  

            	
              Each
      and every insurance policy, except for Worker’s Compensation, Contractor’s
      Pollution Liability and Professional Liability insurance policies, shall
      be endorsed to name Company as additional insureds, shall provide coverage
      that is primary as to any other valid and collectible insurance which may
      be available to Company, and shall include a Separation of
      Insureds/Severability of Interests clause providing cross-liability
      coverage.

            


    

     

    
      	
              13.  

            	
              All
      insurance described in this Attachment “C” shall be written by insurance
      companies rated “A-“ or better by A.M. Best
  Company.

            


    

     

    
      	
              14.  

            	
              Contractor
      shall notify Company of any Self Insured Retention (“SIR”) in excess of
      $1M.  Company reserves the right to require additional
      assurances and/or coverages from Contractor for any SIR in excess of $1M
      dollars.

            


    

     

    
      	
              15.  

            	
              Company
      may elect to purchase Builders Risk insurance to cover property damage
      risks to the project.  Any requirements with respect to Builders
      Risk Insurance coverage will be stated elsewhere in this
      Contract.

            


    

     

    
      	
              1.2.  

            	
              Such
      benefits and coverage as required herein, or in any other document to be
      considered a part hereof, shall not be deemed to limit Contractor's
      liability hereunder.  The Contractor shall likewise require its
      Subcontractors, if any, to provide for such benefits and carry and
      maintain such insurance enumerated herein, at no expense to the
      Company.

            


    

     

    
      	
              1.3.  

            	
              Before
      any of the employees of Contractor or its Subcontractors perform any Work
      under the Contract, Contractor shall furnish the Company with a
      certificate or certificates showing that the required coverages have been
      obtained.  Such certificates shall be issued on insurance
      industry standard ACORD Forms and shall stipulate that the insurance will
      not be canceled or materially changed without thirty (30) days prior
      written notice to the Company, and shall specify the effective dates for
      such benefits and insurance.  Certificates for renewal or new
      insurance acquired during the term of the Contract shall be provided prior
      to the expiration of existing
insurance.

            


    

     

    
      	
              1.4.  

            	
              Capitalized
      terms in this Attachment C, if not otherwise defined in this Contract
      shall have the accepted meaning used in the insurance
      industry.

            


    

     

     

    
      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

    

     

    Attachment
D – Work Rules

     

    
      

      

    

    


     

     

     NOT
USED

     

     

     

    
      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

    

     

    Attachment
E – Site Specific Safety Manual & Plan

     

    
      

      

    

     

     PROVIDED
BY CONTRACTOR.  PLEASE SEE ATTACHED.

     

     

    


     

     

    
      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

    

     

    Attachment
F – QA/QC Manual

     

    
      

      

    

     

     

     PROVIDED
BY CONTRACTOR.  PLEASE SEE ATTACHED.

     

     

     

    
      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

    

     

    Attachment
G – Prequalification Forms for Subcontractors

     

    
      

      

    

     

    Prequalification
Criteria for Concern/Rejection of Subcontractor(s)

     

     

    Safety
Criteria for the past 3 years:

     

    
      	
              ·  

            	
              TRIR
      – in excess of 3.6

            


    

     

    
      	
              ·  

            	
              Fatalities

            


    

     

    
      	
              ·  

            	
              EMR
      – in excess of 1.0 if Subcontractor has been in business for more than 3
      years.

            


    

     

     

    Financial
Criteria for the last 3 years:

     

    
      	
              ·  

            	
              Estimated
      Subcontract Value = no more than 25% of Bidder’s Annual
      Revenue.

            


    

     

    
      	
              ·  

            	
              Current
      Ratio – Current Assets divided by Current Liabilities should exceed
      1.25.  This indicates that at the time of the financial report
      the Bidder was solvent

            


    

     

     

    Note:
“Long” prequalification form addresses both, safety & financial criteria,
whereas “short form” only addresses safety.

     

     

     

     

    [Prequalification
Forms attached (long and short)]

     

     

     

    There are
two (2) types of pre-qualification forms for use: “long form” and the Lower Tier
“short form”.  Below are the “long form” pre-qualification criteria
that need to be followed when selecting a Vendor/Supplier/Subcontractor for the
MCGS Project.

     

    
      	
              1.  

            	
              Any
      Supplier that will exceed $1 million in value for
    materials.

            


    

    
      	
              2.  

            	
              Any
      Vendor/Subcontractor that will exceed $2 million in
  labor.

            


    

     

    Contractor
shall use the short “Lower Tier Pre-Qualification” form for ALL other labor
related Subcontractors that do not fall into criterion 2 above and submit the
completed forms to Company for review.

     

     

    
      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

    

    
      

    

     

    Attachment
H – Invoice Process Flow Chart

     

    
      

      

    

          

    

                      

     

    
       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    Attachment
I – Permits Provided by Company

     

     

    
      

      

    

    

      
        	 
      	
                Issuing
      Agency

              	
                Permit/Approval
      Name

              	
                Nature
      of Permit

              
	
                FEDERAL
      GOVERNMENT

              	 
      	 
      
	
                1

              	
                Federal
      Aviation Administration

              	
                Notice
      of Proposed Construction or Alteration

              	
                Tower
      location and height relative to air traffic corridors

              
	
                2

              	
                US
      Environmental Protection Agency

              	
                Acid
      Rain Permit

              	
                Permit
      to comply with Acid Rain Program monitoring, recordkeeping and reporting
      requirements.

              
	 
      	 
      	 
      	 
      
	
                STATE
      GOVERNMENT

              	 
      	 
      
	
                3

              	
                Montana
      Department of Environmental Quality

              	
                Air
      Quality Pre-Construction Permit

              	
                Permit
      for the construction, installation and operation of equipment or
      facilities that may directly or indirectly cause or contribute to air
      pollution.

              
	
                4

              	
                Montana
      Department of Environmental Quality

              	
                Air
      Quality Operating Permit

              	
                Title
      V Operating Permit

              
	
                5

              	
                Montana
      Department of Environmental Quality

              	
                General
      Discharge Permit for Stormwater Associated with Construction
      Activities

              	
                Permits
      industrial activities that would result in the discharge of stormwater to
      waters of the state.

              
	
                6

              	
                Montana
      Department of Environmental Quality

              	
                Underground
      Storage Tanks

              	
                Permits
      for installation and operation of underground storage
    tanks.

              
	
                7

              	
                Montana
      Department of Natural Resources and Conservation

              	
                Water
      Right Change of Use for Generation Plant water

              	
                Would
      allow use of existing water right from the Silver Lake
      pipeline.

              
	
                8

              	
                Montana
      Department of Transportation

              	
                Utility
      Crossing Permits

              	
                Grant
      state highway utility crossing permits for utilities and access roads that
      may encroach on state highway right-of-ways.

              
	 
      	 
      	 
      	 
      
	
                LOCAL
      GOVERNMENT

              	 
      	 
      
	
                9

              	
                County
      Weed Control Districts

              	
                Noxious
      Weed Management Program

              	
                Provides
      containment, suppression, and eradication of noxious
  weeds.

              
	
                10

              	
                County
      Floodplain Administrators

              	
                Floodplain
      Development Permit

              	
                Allows
      construction activities within a designated 100-year
      floodplain.

              
	
                11

              	
                Boards
      of County Commissioners

              	
                Easement
      grants and county road crossing permits

              	
                Consider
      issuance of right-of-way easements grants and road crossing permits for
      county property and roadways.

              
	
                12

              	
                Anaconda-Deer
      Lodge County

              	
                TIFID

              	
                Zoning
      requirements

              
	
                13

              	
                Anaconda-Deer
      Lodge County

              	
                Development
      Permit

              	
                Permit
      for all land development and building activity in the
    county.

              
	
                14

              	
                Anaconda-Deer
      Lodge County

              	
                Conditional
      Use Permit-Plant Site

              	
                Zoning
      permit approving use of the site for generation
purposes

              
	
                15

              	
                Anaconda-Deer
      Lodge County

              	
                Conditional
      Use Permit-Gas Compressor Site

              	
                Zoning
      permit approving use of the site for gas compressor
    purposes

              
	
                16

              	
                Anaconda-Deer
      Lodge County

              	
                Development
      Permit-Gas Compressor Site

              	
                Permit
      for all land development and building activity in the
    county.

              
	
                17

              	
                Butte-Silver
      Bow

              	
                Water
      Agreement

              	
                Water
      usage from Silver Lake waterline.

              
	
                18

              	
                Anaconda-Deer
      Lodge County

              	
                Sewer
      Agreement

              	
                Connection
      / use of sewer line.

              
	
                19

              	
                Anaconda-Deer
      Lodge County

              	
                Municipal
      Water Agreement

              	
                Connection
      to potable water line and use of potable water.

              
	 
      	 
      	 
      	 
      
	
                OTHER

              	 
      	 
      	 
      
	
                20

              	
                Butte,
      Anaconda & Pacific Railway

              	
                Railroad
      crossing permits

              	
                Utilities
      constructed within railroad right-of-ways (over, under &
      parallel).

              


      

    

    
       

       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

    

     

    Attachment
J – Dead Band Profit Adjustment Process for Change Orders

     

    
      

      

    

    
      
        	
                Definitions:

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                *
      Actual Cost = Indirects and Directs (excluding change
    orders)

              	 
      	 
      	 
      
	
                *
      Dead-Band =    +/-

              	
                 $     2,703,769

              	
                Value
      is determined based on 5% of Total GMP Price

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Example:

              	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                GMP

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                GMP
      Indirect and Direct Price

              	
                 $     44,659,440

              	 
      	 
      	 
      	 
      
	 
      	
                ~10%

              	
                Contingency

              	
                 $       4,500,000

              	 
      	 
      	 
      	 
      
	 
      	 
      	
                SubTotal
      GMP Cost

              	
                 $
      49,159,440.00

              	 
      	 
      	 
      	 
      
	 
      	
                3%

              	
                Overhead

              	 
      	
                 $       1,474,783

              	 
      	 
      	 
      	 
      
	 
      	
                7%

              	
                Profit

              	 
      	
                 $       3,441,161

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                Total
      GMP Price

              	
                 $     54,075,384

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                Profit
      is 'fixed' for the Project provided the total cumulative Change Order
      value remains

              
	 
      	
                within
      the Dead-Band  +/-

              	
                 $
      2,703,769

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Aggregate
      Change Orders result in a overall INCREASE.

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Senario
      1  - Aggregate Changes stay within the Dead-Band

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                Aggregate
      Change Order Value

              	
                 $          200,000

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                Results:  Contractor
      would be paid separately for C/O's.

              	 
      	 
      	 
      
	 
      	
                No
      Profit Adjustment

              	 
      	 
      	 
      	 
      	 
      
	 
      	
                Adjustments
      to Overhead Cost would be considered as referenced in Attachment B - Price
      & Payment, Section 10.4.

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Senario
      2  -  Aggregate Changes move outside the
      Dead-Band

              	
                Formula:

              	
                 $   3,000,000

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                 $  (2,703,769)

              	 
      
	 
      	
                Aggregate
      Change Order Value

              	
                 $       3,000,000

              	 
      	 
      	
                 $     296,231

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                7%

              	
                 
      % Profit Markup

              
	 
      	
                Results:  Contractor
      would be paid separately for C/O's.

              	 
      	
                 $       20,736

              	
                 
      $ Profit Markup

              
	 
      	
                Profit
      would be adjusted by formula.

              	 
      	 
      	 
      	 
      
	 
      	
                Adjustments
      to Overhead Cost would be considered as referenced in

              	
                 $   3,020,736

              	
                 
      Total Change Value

              
	 
      	
                Attachment
      B - Price & Payment, Section 10.4.

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Aggregate
      Change Orders result in a overall DECREASE.

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Senario
      3  -  Aggregate Changes stay within the
      Dead-Band

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                Aggregate
      Change Order Value

              	
                 $         (200,000)

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                Results:  Company
      would be owed separately for C/O's.

              	 
      	 
      	 
      
	 
      	
                No
      Profit Adjustment

              	 
      	 
      	 
      	 
      	 
      
	 
      	
                Adjustments
      to Overhead Cost would be considered as referenced in Attachment B - Price
      & Payment, Section 10.4.

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                Senario
      4  -  Aggregate Changes move outside the
      Dead-Band

              	
                Formula

              	
                 $  (3,000,000)

              	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                 $   2,703,769

              	 
      
	 
      	
                Aggregate
      Change Order Value

              	
                 $      (3,000,000)

              	 
      	 
      	
                 $    (296,231)

              	  
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
                7%

              	
                 
      % Profit Markup

              
	 
      	
                Results:  Company
      would be owed separately for C/O's.

              	 
      	
                 $      (20,736)

              	
                 
      $ Profit Markup

              
	 
      	
                Profit
      would be adjusted down by formula

              	 
      	 
      	 
      	 
      
	 
      	
                Adjustments
      to Overhead Cost would be considered as referenced in

              	
                 $  (3,020,736)

              	
                 
      Total Change Value

              
	 
      	
                Attachment
      B - Price & Payment, Section 10.4.

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

    

     

     

    
       

      
        Contract
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    Attachment
K – GMP Examples

     

    
      

      

    

     

    
      	
              From
      March 16, 2009 letter from NMC to Shaw

            	 
      	 
      
	 
      	 
      	
              Estimated
      cost

            	
              44,659,440

            	 
      
	 
      	 
      	
              Contingency

            	
              4,500,000

            	 
      
	 
      	 
      	
              Project
      Budget

            	
              49,159,440

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
              OH&P

            	
              4,915,944

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
              GMP

            	
              54,075,384

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
              Examples

            	 
      	 
      	 
      
	
              1.
      actual cost less than Project Budget

            	 
      	 
      
	 
      	
              Project
      Budget

            	 
      	
              49,159,440

            	 
      
	 
      	
              Project
      actual cost (less OH&P)

            	
              42,000,000

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              Difference

            	 
      	
              7,159,440

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              N.W.E
      "savings"

            	 
      	
              3,579,720

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              NMC
      receives

            	 
      	
              3,579,720

            	
               
      Split savings

            
	 
      	 
      	 
      	
              4,915,944

            	
               
      OH&P

            
	 
      	 
      	 
      	
              42,000,000

            	
               
      Project actual cost (less OH&P)

            
	 
      	 
      	 
      	
              50,495,664

            	 
      
	 
      	 
      	 
      	 
      	 
      
	
              2.
      actual cost greater than Project Budget

            	 
      	 
      
	 
      	
              Project
      Budget

            	 
      	
              49,159,440

            	 
      
	 
      	
              Project
      actual cost (less OH&P)

            	
              51,000,000

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              Difference

            	 
      	
              -1,840,560

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              N.W.E
      "savings"

            	 
      	
              0

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              NMC
      receives

            	 
      	
              54,075,384

            	
               
      GMP

            
	 
      	 
      	 
      	 
      	 
      
	
              3.
      actual cost equals Project Budget

            	 
      	 
      
	 
      	
              Project
      Budget

            	 
      	
              49,159,440

            	 
      
	 
      	
              Project
      actual cost (less OH&P)

            	
              49,159,440

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              Difference

            	 
      	
              0

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              N.W.E
      "savings"

            	 
      	
              0

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              NMC
      receives

            	 
      	
              0

            	
               
      Split savings

            
	 
      	 
      	 
      	
              4,915,944

            	
               
      OH&P

            
	 
      	 
      	 
      	
              49,159,440

            	
               
      Project actual cost (less OH&P)

            
	 
      	 
      	 
      	
              54,075,384

            	
               
      GMP

            
	 
      	 
      	 
      	 
      	 
      


    

    


     

     

    
      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    Attachment
L – Indemnity Agreement

     

    
      

      

    

     

    SERVICE
CONTRACTING & INDEMNITY AGREEMENT

     

    Contract No.
301263

    EPC Contract –
LNTP

     

    
      	
              66.1  

            	
              For
      Site Survey Work Indemnification

            


    

     

     

    THIS SERVICE CONTRACTING &
INDEMNITY AGREEMMENT (“Agreement”) is made and entered into as of
this______day of _____________, 2009, by and between NewMech Companies, Inc
(“New Mech”). and Northwestern Energy (“NWE”NWE").

     

    WHEREAS, NewMech Companies,
Inc. is negotiating with NWE to manage and build a project known as Mill Creek
Generating Station located outside Anaconda, Deer Lodge County,
Montana

     

    WHEREAS,
NewMech and NWE desire to expedite preliminary survey work to accommodate
NewMech’s design efforts during the LNTP phase of the Mill Creek Generation
Station project.

     

    WHEREAS,
NWE is willing to assist, and New Mech is willing to accept, assistance to
expedite the preliminary site work during the LNTP phase of the Mill Creek
Generating Station project by facilitating a contractual agreement with DJ&A
an third party site surveyor.  Specifically, NWE is entering into a
contract with DJ&A for the performance of professional services, including
but not limited to site work at the location of the proposed Mill Creek
Generation Station necessary to advance key design and engineering efforts, for
the mutual benefit of NWE and New Mech.

     

    WHEREAS,
NWE and NewMech are entering into this Service Contracting & Indemnity
Agreement to: (a) set forth the terms and obligations of each party with respect
to hiring DJ&A to perform certain preliminary site work for the proposed
Mill Creek Generating Station, and (b) hold each other harmless for any claims
arising, directly or indirectly, from the preliminary site work performed by
DJ&A for their mutual benefit.

     

    WHEREAS,
NWE and New Mech intend this Indemnity Agreement to be fully adopted and
incorporated into the EPC Contract to be entered into by the
Parties.

     

    IN CONSIDERATION of their
mutual promises herein, other valuable consideration the parties acknowledge and
accept, and conditioned on NewMech Companies, Inc. signing the final contract
and performing the work, NewMech Companies, Inc. and NWE agree as
follows:

     

     

    
      	
              I.  

            	
              SERVICE
      CONTRACTING

            


    

     

    
      	
              a.  

            	
              NWE
      shall undertake to enter into an appropriate contract with DJ&A to
      provide preliminary survey and site work during the LNTP phase of the the
      proposed Mill Creek Generation Station project (“DJ&A Agreement”)
      Further, the DJ&A Agreement shall provide for a limited term, the
      extent of the LNTP phase of the Mill Creek Generation Station Project, and
      shall immediately terminate upon the end of the LNTP phase.  New
      Mech expressly acknowledges and agrees that upon the termination of the
      LNTP, it shall be responsible for obtaining a site survey subcontractor
      and appropriate survey for the FNTP
phase.

            


    

    
       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    
      	
              b.  

            	
              NWE
      agrees to include the following terms, if acceptable to DJ& A, under
      the DJ & A Agreement for providing access to the Mill Creek job site
      and to facilitate payment to DJ&A for work undertaken and completed in
      the LNTP phase of the Mill Creek Project.  However, NMC shall be
      responsible for all costs associated with work performed by DJ&A
      during the LNTP phase and shall review and approve all DJ&A invoices
      prior to payment.  [NOTE: THE FIRST AND SECOND SENTENCE SEEM TO
      BE A BIT IN CONFLICT.  IS NEW MECH AGREEING TO REIMBURSE OR IS
      IT INTENDED TO BE A STRAIGHT PASS THROUGH ON COSTS?  I THINK WE
      CAN MAKE THAT A BIT CLEARER]Further, NMCE shall provide [TO WHOM GOES THE
      CREDIT LINE?] a credit line on their final LNTP invoice for the total
      value of the completed work under the DJ&A
  Agreement.

            


    

     

    
      	
              c.  

            	
              NMC
      agrees that it shall be responsible for directing the site survey
      activities of DJ&A at the Mill Creek job site to ensure the survey
      data is acceptable to NMC and facilitates the work of NMC within the
      schedule provided for in the EPC.

            


    

     

     

     

    II.           INDEMINIFCATION

     

     

    a.           NewMech Companies, Inc.
Indemnification

     

     

    To the
fullest extent permitted by law, NewMech Companies, Inc. shall indemnify and
defend Northwestern Energy (NWE) from and against all claims, damages, losses
and expenses, including but not limited to attorneys’ fees arising out of or
resulting from D J & A’s performance of professional services on the Mill
Creek Generating Station project under Contract number 301024 between NWE and
DJ&A provided that any such claim, damage, loss or expense is caused in
whole or in part by any negligent act or omission of DJ&A in the performance
of professional services under Contract number 301024 regardless of whether or
not it is caused in part by NWE. Such obligation shall not be construed to
negate, abridge or otherwise reduce any other right or obligation of indemnity
which would otherwise exist as to any party or person described in this
paragraph.

     

     

    b.           NWE
Indemnification

     

     

    To the
fullest extent permitted by law, Northwestern Energy (NWE) shall indemnify and
defend NewMech Companies, Inc. from and against all claims, damages, losses and
expenses, including but not limited to attorneys’ fees arising out of DJ&A’s
performance of the work under contract number 301024 between NWE and DJ&A
provided that any such claim, damage loss or expense is attributable to bodily
injury, sickness, disease or death, or to destruction of tangible property
including the loss of use resulting therefrom and is caused in whole or in part
by any negligent act or omission of DJ&A or NWE, regardless of whether or
not it is caused in part by NewMech Companies, Inc.  Such obligation
shall not be construed to negate, abridge or otherwise reduce any other right or
obligation of indemnity which would otherwise exist as to any party or person
described in this paragraph.

     

     

    IN
WITNESS WHEREOF, NewMech Companies, Inc. and Northwestern Energy have executed
this Service Contract & Indemnity Agreement as set forth below.

     

     

    NewMech
Companies,
Inc.                                             Northwestern
Energy

     

     

    By
_______________________                                     By
_____________________

     

     

    Its
_______________________                                      Its
_____________________

     

     

    
       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    Exhibit
1 – Partial Release of Lien & Waiver of Claims

     

    
      

      

    

    KNOW ALL MEN BY THESE
PRESENTS, that ____________________________ (“Contractor”), having its
principal offices at _________________________________________, and
____________________________ (“Company”) have heretofore entered into a certain
Contract, dated ____________ (the “Contract “) relating to the furnishing of
materials, labor, and/or equipment in support of a certain contract performed by
Company for Company’s Project located at ________________________.

     

    NOW THEREFORE, upon actual
receipt by Contractor of check from Company in the sum of $_____________,
______________________________________________________________________USD to
Contractor, which sum represents the full amount due Contractor as of
________________, ____ (“Release Date”) and except that retention in the amount
of $_______________,
_______________________________________________________________________USD still
being withheld by Company all under and pursuant to the Contract, and when such
check has been properly endorsed and has been paid by the bank upon which it is
drawn, this document shall become effective to release pro tanto any Mechanic’s
Lien, Stop Notice, or bond right that Contractor has on the Project as of the
Release Date, and Contractor does hereby:

     

    
      	
              1.  

            	
              Affirm
      under oath that all Persons furnishing Labor, Materials, Equipment,
      supplies, or services to Contractor with respect to the Contract have been
      paid in full as of the Release Date, including any and all applicable
      federal, state, and local sales, use, excise, or similar taxes or import
      duties, licenses, and royalties, except the following (NONE, unless noted,
      attach additional page, if necessary, and so
  note):

            


    

     

    Insert
note or state NONE

     

    
      	
              2.  

            	
              Remise,
      release, and waive any and all manner of Liens, whatsoever that
      Contractor, its successors, or assigns may have upon any portion of the
      lands of Company or the buildings thereon standing, or any personal or
      intangible property of Company, for Labor, Material, Equipment, or
      services furnished under the Contract as of the Release Date,
      and

            


    

     

    
      	
              3.  

            	
              Further
      remise, release, and forever discharge Company, their successors and
      assigns of and from any and all manner of claims, demands, and causes of
      action whatsoever against Company which Contractor, its successors or
      assigns may have for, upon, or by reason of any matter, cause or thing
      whatsoever arising under or out of the Contract, as of the Release Date
      unless otherwise noted below (attach additional page, if
      necessary):

            


    

     

    Insert note or state NONE

     

    
      	
              4.  

            	
              Agree
      to indemnify and hold harmless Company, its successors and assigns,
      against all Losses, cost, damage or expense (including but not limited to
      attorneys’ fees) by reason of any and all manner of Liens, claims or
      demands which anyone may have for Labor performed, or for Materials,
      Equipment or services furnished under the Contract as of the Release Date,
      except as specifically noted
hereon.

            


    

     

     

    IN WITNESS WHEREOF, Contractor
has duly caused these presents to be signed, witnessed or attested by its duly
authorized Owner, Partner or Officer (if a Corporation, its Corporate Seal to be
hereunto affixed) on the ___ day of ____________, 20__.

     

     

    _______________________________                                            Seal if
Corporation)           (Notary Public
Seal)

                     (Signature)

     

     

    By:____________________________

                     (Print
Name)

     

     

    Title:
_____________­_____________

     

     

    Witness:
(if Individual) _________________________

     

     

    Attest 1:
(if Corporation)
_______________________                Attest
2: (if Corporation) ________________________

     

    
       

      
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                  Contract
      Number – 84670

                  Contract
      Title – EPC Balance of Plant

                  Contractor
      – NewMech Companies, Inc.

                  Project
      Name – Mill Creek Generating Station
(MCGS)

                


        

         

         

      

      
        

      

       

    

    Exhibit
2 – Final Release of Lien & Waiver of Claims

     

    
      

      

    

    KNOW ALL MEN BY THESE
PRESENTS, that ____________________________ (“Contractor”), having its
principal offices at _________________________________________, and
________________ (“Company”) have heretofore entered into a certain Contract,
dated __________________ (the “Contract “) relating to the furnishing of
Materials, Labor, and/or Equipment for construction or services for
________________________________ in connection with a certain Contract performed
by Company for for Company’s Project located at
________________________.

     

    NOW THEREFORE, upon actual
receipt by Contractor of a check from Company in the sum of $_________,
_______________________________________________________________USD, which sum
shall represent full and final payment due to Contractor under and pursuant to
the Contract, and when the check has been properly endorsed and has been paid by
the bank upon which it is drawn (“Release Date”), this document shall become
effective and Contractor does hereby:

     

    
      	
              1.  

            	
              Affirm
      under oath that all Persons, firms, associations, corporations, or other
      entities furnishing Labor, Materials, Equipment, supplies, or services to
      Contractor with respect to the Contract, have been paid in full as of the
      Release Date, including any and all applicable federal, state, and local
      sales, use, excise, or similar taxes or import duties, licenses, and
      royalties, except the following (NONE, unless noted, attach additional
      page, if necessary, and so note):

            


    

     

    
      	
              2.  

            	
              Remise,
      release, waive, relinquish and forever quitclaim unto Company and unto its
      affiliates, successors, and assigns, any and all manner of Liens, claims,
      or demands whatsoever, which against Company, Contractor ever had, now
      has, or which it or its successors or assigns hereafter can, shall or may
      have, or upon any portion of the lands of Company or the buildings thereon
      standing, for Labor, Material, Equipment or services furnished under or
      out of the Contract, and

            


    

     

    
      	
              3.  

            	
              Further
      remise, release and forever discharge Company, its affiliates, successors,
      and assigns of and from any and all manner of Liens, claims, demands and
      causes of action whatsoever against Company which Contractor ever had, now
      has, or which its successors or assigns hereafter can, shall, or may have
      for, upon, or reason of any matter, cause or thing whatsoever arising
      under or out of the Contract, and

            


    

     

    
      	
              4.  

            	
              Agree
      to indemnify and hold harmless Company,its successors, or assigns, against
      all Losses, cost, damage, or expense (including but not limited to
      attorneys’ fees) by reason of any and all manner of Liens, claims,
      demands, or cause of action which anyone may have for Labor performed,
      Material, Equipment, or services furnished under or out of the
      Contract.

            


    

     

    IN WITNESS WHEREOF, Contractor
has duly caused these presents to be signed, witnessed, or attested by its duly
authorized Owner, Partner, or Officer (if a corporation, its Corporate Seal to
be hereunto affixed) on the _______ day of _____________, 2____.

    
 

     

     

    _______________________________                                             Seal if
Corporation)           (Notary Public
Seal)

                     (Signature)

     

     

    By:____________________________

                     (Print
Name)

     

     

    Title:
_____________­_____________

     

     

    Witness:
(if Individual) _________________________

     

     

    Attest 1:
(if Corporation)
_______________________                Attest
2: (if Corporation) ________________________

     

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

        

         

      

    

    Exhibit
3 – Release to Work Form

     

    
      

      

    

     

    
      	
              Contractor:

            	
              NewMech
      Companies, Inc.

            


    

     

     

    
      	
              No.

            	
              Description

            	
              Ref.

            	
              Received

              Date

            	
              Approved

              Date

            	
              Approval
      Initial

            
	
              1

            	
              Executed
      Contract

            	 
      	 
      	 
      	 
      
	
              2

            	
              Insurance
      Certificate with proper coverage, verbiage, and 30 day cancellation
      notice

            	
              Article
      42

              Attach.
      C

            	 
      	 
      	 
      
	
              3

            	
              Site
      Specific Safety Plan by Contractor

            	
              Article
      11

            	 
      	 
      	 
      
	
              4

            	
              Safety
      Supervisor Resumes Reviewed

            	 
      	 
      	 
      	 
      
	
              5

            	
              Safety
      Supervisor Interviewed

            	 
      	 
      	 
      	 
      
	
              6

            	
              Business
      Licenses

            	 
      	 
      	 
      	 
      
	
              7

            	
              Emergency
      Numbers

            	 
      	 
      	 
      	 
      
	
              8

            	
              Quality
      Control Plan by Contractor Reviewed

            	
              Article
      21

            	 
      	 
      	 
      
	
              9

            	
              Project
      Execution Plan and Site Specific Security Plan Reviewed (1week prior to
      Mobe)

            	 
      	 
      	 
      	 
      
	
              10

            	
              Contract
      Performance Security*

            	
              Article
      65

            	 
      	 
      	 
      
	
              11

            	
              Organization
      Chart

            	 
      	 
      	 
      	 
      
	
              12

            	
              Permits
      as required per Basis of Design

            	
              Article
      15

            	 
      	 
      	 
      
	
              13

            	
              Construction
      Kick-off Meeting (to be scheduled collaboratively, possibly the same day
      as Ground Breaking)

            	 
      	 
      	 
      	 
      
	
              14

            	
              Site
      (Project) Labor Agreement Received

            	 
      	 
      	 
      	 
      


    

    *
Contract Performance Security must be in hand within 7 days after Contract
Execution date or prior to Mobilization, whichever is
earlier.  The
Contractor is hereby released to begin work on site.

    


    ______________________________________                                                                                     Date:
_____________

    Company

    


    ______________________________________                                                                                     Date:
_____________

    Contract
Administrator/Manager

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

        

         

      

    

    Exhibit
4 – Requisition for Payment

     

    
      

      

    

     

    
      	
              From:

            	
              Insert
      from whom here

            	 
      	
              Application
      Date:

            	
              Insert
      Application Date

            
	
              To:

            	
              Insert
      who to here

            	 
      	
              Invoice
      No.:

            	
              Insert
      Invoice Number

            
	
              Attn:

            	
              Insert
      attention to here

            	 
      	
              Payment
      No.:

            	
              Insert
      Payment Number

            
	 
      	 
      	 
      	
              Period
      From:

            	
              Insert
      Date From

            
	 
      	 
      	 
      	
              Period
      To:

            	
              Insert
      Date To

            


    

     

     

    
       

      
        	
                Table
      1

              	
                 

              	 
      	
                Table
      2

              	 
      	
                $

              
	
                Current
      Contract Status

              	 
      0.00%	 
      	
                Progress
      Invoice Amount

              	 
      	
                $

              
	 
      	 
      	 
      	
                Change
      Order Invoice Amount

              	 
      	
                $

              
	
                Original
      Contract Value

              	
                $

              	 
      	
                Invoice
      Amount

              	 
      	
                $

              
	
                Approved
      Change Order Value

              	
                $

              	 
      	
                Less
      Retention

              	
                0.0%

              	
                $

              
	
                Current
      Contract Value

              	
                $

              	 
      	
                Subtotal
      Invoice Amount

              	 
      	
                $

              
	 
      	 
      	 
      	
                Less
      Previous Invoices

              	 
      	
                $

              
	
                Approved
      Contract Changes

              	
                0.00%

              	 
      	
                Net
      Invoice Amount

              	 
      	
                $

              
	
                Approved
      Change Order Progress

              	
                0.00%

              	 
      	 
      	 
      	 
      


      

       

      Double
click on tables to edit.  Click anywhere else to
exit.

    

     

    Application
is made for current payment as shown in Table 2 above.  Required
schedule of value/continuation sheets are attached.

     

    Contractor
certifies that this application for payment and all other information submitted
and attached is true, accurate, and in accordance with the provisions of the
Contract.

     

    Above
does not include material furnished, labor performed, or expense incurred for
which authorization has not been given, as follows:

     

    
       

    

    
      	
              ·  

            	
              Insert
      Description of expense item here

            


    

    
      	
              ·  

            	
              Insert
      Description of expense item here

            


    

    
      	
              ·  

            	 


    

     

     

    Contractor
certifies that the above is a true statement of account of the Contract to date
and releases Company, its agents, heirs, successors, or assigns, from any claim
or claims of whatever nature for materials furnished, labor performed, or
expense incurred to date which is not included in the above amounts, or for
which Contractor has not provided Company with written notification, except such
amount as we may become entitled to in the event of cancellation of incomplete
portions, of the Contract.

     

     

    
      	
              Contractor:

            	 
      	 
      	
              Signature:

            	 
      
	
              Contractor
      Rep:

            	 
      	 
      	
              Title:

            	 
      


    

    


    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

        

      

    

     

    Exhibit
5 – Form of Letter of Credit

     

    
      

      

    

    SAMPLE

     

    IRREVOCABLE
STANDBY LETTER OF CREDIT

     

     

    
      	
              CONTRACTOR:

            	
              Contractor Name

            
	 
      	
              Contractor Address

            
	 
      	
              City, State Zip Code

            
	 
      	
              Country

            
	 
      	 
      
	
              BENEFICIARY:

            	
              [Company Entity]

            	 
      
	 
      	
              [Address]

            
	 
      	
              [City, State, Zip]

            
	 
      	
              [Country]

            


    

     

     

    By order
and for the account of [Contractor Name] (hereinafter referred to
as “Contractor”), we hereby open our irrevocable standby Letter of Credit No.
      in favor of [Company Entity] (hereinafter referred to as
“Company”) for an amount up to [Spell Out] US Dollars ($     ), expiring at the counter of the negotiating bank with the
close of business on [Date].

     

    Payments
under this Letter of Credit No.       are available to
Beneficiary against Beneficiary’s sight draft on us. The amount of such draft
shall not exceed [Spell Out] US Dollars ($      ). Sight drafts shall be accompanied by a written statement
signed by an official of Beneficiary certifying that Contractor has failed to
perform some or all of its obligations under Contract No.       dated      
(hereinafter referred to as “the Contract”) as agreed between Contractor and
Beneficiary.

     

    Any
references to the Contract are for information purposes only and the terms and
conditions of same are not incorporated nor made part of this irrevocable
standby Letter of Credit.

     

    This
Letter of Credit shall be automatically extended without amendment for
additional periods of one year from the present or any future expiration date
hereof, unless we notify you by certified mail at least sixty (60) calendar days
prior to the expiration date then applicable that we elect not to renew this
Letter of Credit for an additional one year period.

     

    It is a
condition of the Letter of Credit that if this Letter of Credit would expire
during the interruption of business of the issuing bank or the performance of
Contractor in compliance with the Contract for reasons referred to in Article 37
of the Uniform Customs and Practice for Documentary Credits (2007 revision),
International Chamber of Commerce Publication No. 600, this Letter of Credit
shall not expire until 30 days after the end of such interruption.

     

    It is a
further condition of this Letter of Credit that Contractor and/or Bank, and/or
Beneficiary shall not be deemed responsible for any default due to the
conditions included in the above referenced Article 37.

     

    All fees
associated with this credit are for Contractor’s account.

     

    Unless
expressly stated, this Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits (2007 revision), International Chamber of
Commerce Publication No 600.

     

    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

        

         

      

    

    


     

    
      	
              SIGNATURE
      AND SEAL

            	 
      
	 
      	 
      
	
              Name
      of Bank

            	 
      
	 
      	 
      
	
              Address

            	 
      
	 
      	 
      
	
              Date

            	 
      


    

     

    


     

     

    


    
      
         

        
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                    Contract
      Number – 84670

                    Contract
      Title – EPC Balance of Plant

                    Contractor
      – NewMech Companies, Inc.

                    Project
      Name – Mill Creek Generating Station
(MCGS)

                  


          

           

           

        

        
          

        

         

      

    

    Exhibit
6 – Change Order Request Form

     

     

    
      

      

    

     

    Fill in
the header before providing paper and electronic copy to Sub

     

     

    
      	
              COR
      No.

            	 
      	 
      	
              Revision

            	 
      	 
      	
              Date

            	 
      
	 
      
	
              Originator

            	 
      	 
      	
              Contractor

            	 
      
	 
      
	
              To
      the attention of

            	 
      	 
      


    

     

     

    AFFECTED
DISCIPLINE

    
 

    
      	 
      	
              Demolition
      / Salvage

            	 
      	
              Concrete

            	 
      	
              Instrumentation

            
	 
      	
              Site
      work / Civil

            	 
      	
              Special
      Concrete

            	 
      	
              Insulation

            
	 
      	
              Underground
      Electrical

            	 
      	
              Structural
      Steel

            	 
      	
              Painting

            
	 
      	
              Underground
      Piping

            	 
      	
              Building
      Construction

            	 
      	
              Manufacturing
      & Process Duct

            
	 
      	
              Pipeline

            	 
      	
              Aboveground
      Piping

            	 
      	
              Mechanical
      Equipment

            
	 
      	
              Piling

            	 
      	
              Aboveground
      Electrical

            	 
      	
              Instrumentation

            
	 
      	 
      	
              Other

            	 
      	
              Explain

            	 
      	 
      


    

     

     

    REASON
FOR CHANGE

     

     

    
      	 
      	
              RFI
      -- No.

            	 
      	 
      	 
      	
              Correction
      Of Interface Problem

            
	 
      	
              Field
      Work Order -- No.

            	 
      	 
      	 
      	
              Schedule
      Acceleration

            
	 
      	
              Revised
      Drawing Or Specification

            	 
      	
              New
      Drawing Or Specification

            
	 
      	
              Work
      Stoppage / Delay

            	 
      	
              Potential
      Claim

            
	 
      	
              Rework

            	 
      	
              Client
      Request

            
	 
      	
              Vendor
      Error -- VPR No.

            	 
      	 
      	 
      	
              Other
      (Describe)

            	 
      
	
              List
      all relevant document types and numbers

            	 
      
	 
      


    

    


    DESCRIPTION
OF CHANGE

    


    Change
Order Request (“COR”) is a written request from Contractor to Company asking for
a Change Order.  Such CORs shall be submitted within seven days after
the occurrence of any event that Contractor believes entitles Contractor to a
Change Order.  When submitting a COR, Contractor shall
include:

     

    a
detailed narrative describing the factual basis of the request including
references to the applicable Contract Documents or other contractual basis,
and

    
      


      
        
           

          
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                      Contract
      Number – 84670

                      Contract
      Title – EPC Balance of Plant

                      Contractor
      – NewMech Companies, Inc.

                      Project
      Name – Mill Creek Generating Station
(MCGS)

                    


            

             

             

          

          
            

          

           

        

      

    

    a
narrative describing how Contractor has complied with the applicable Notice
requirement of the Contract, and

     

    a
detailed build-up of the proposed change in the GMP, if any, including labor
(hours and unit rates), Materials and Equipment, Subcontracts, Constructions
Works, and markups for overhead together with supporting documentation such as
time sheets and vendor invoices, and

     

    a
detailed analysis showing the impact, if any, on the detailed Contract
Schedule.

    


    
      	
              COR
      Description:

            	 
      
	 
      
	 
      
	 
      
	 
      
	 
      	
              (Attached
      additional sheets as necessary.)

            


    

     

     

    
      	
              This
      request has cost impact?

            	 
      	
              Yes

            	 
      	
              No

            


    

     

     

    CHANGE
ORDER REQUEST COST SUMMARY (Attach details as requested above)

     

     

    
      	
              Direct
      Labor

            	
              $

            
	
              Direct
      Materials

            	
              $

            
	
              Construction
      Equipment

            	
              $

            
	
              Subcontracts

            	
              $

            
	
              Indirect
      Costs

            	
              $

            
	
              Overhead

            	
              $

            
	
              Contingency

            	
              $

            
	
              Applicable
      Taxes

            	
              $

            
	
              Other

            	
              $

            
	
                 Total
      COR Costs

            	
              $

            


    

     

    


     

    
      	
              Total
      number of workhours associated with this COR:

            	 
      


    

     

    


     

    
      	
              COR
      represents schedule impact?

            	 
      	
              Yes

            	 
      	
              No

            
	
              If
      yes, specify number of workdays

            	 
      


    

    


    
      	
              Originator
      Signature:

            	 
      	 
      	
              Date:

            	 
      


    

    


    


    
      


      
        
           

          
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