Unassociated Document


    

      EXHIBIT
        10.2

    

    

      BASIC
        AGREEMENT BETWEEN

      


      EAST
        TENNESSEE MATERIALS AND ENERGY CORPORATION

      AND

      BECHTEL
        JACOBS COMPANY, LLC.

       

      BASIC
        AGREEMENT NUMBER 

      23900-BA-99447F

      September
        1, 2005

      


      This
        Basic Agreement (BA) between East Tennessee Materials and Energy Corporation
        (hereinafter "Seller") and Bechtel Jacobs Company, LLC (hereinafter "Company")
        on its behalf, acting under its Prime Contract Number DE-AC05-98OR22700 with
        the
        United States Department of Energy (DOE), is entered into to provide services
        to
        the DOE Management and Operating Contractors, Management and Integration
        Contractors, and designated affiliates in accordance with the
        following:

      


      
        	 	
                1.

              	
                This
                  Agreement is on behalf of the Department of Energy and those contractors
                  and designated affiliates named in Attachment
                  A.

              


      

      


      
        	 	
                2.

              	
                The
                  pricing for each line item of mixed waste covered under this Agreement
                  is
                  in accordance with Attachment B. The waste disposal calculation
                  shall be
                  in accordance with Attachment B and transportation shall be in
                  accordance
                  with Attachment B.

              


      

      


      
        	 	
                3.

              	
                The
                  ordering provisions are contained in Attachment
                  C.

              


      

      


      
        	 	
                4.

              	
                Basic
                  Ordering Agreement General Terms and Conditions for Commercial
                  Items DOE
                  Contractors (09/98) are included in Attachment D and made a part
                  herein.

              


      

      


      
        	 	
                5.

              	
                Agreement
                  is contingent on completion of the National Environmental Policy
                  Act
                  (NEPA) within two years from date of Award. If the NEPA requirements
                  have
                  not been completed within two years, the Agreement may be terminated,
                  at
                  no cost to the Company or Government, or an extension of required
                  schedules may be negotiated at the discretion of the Company or
                  Government. The Seller shall support the DOE in completion of the
                  NEPA
                  requirement.

              


      

      


      
        	 	
                6.

              	
                Any
                  news release, public announcement, advertisement or publicity proposed
                  to
                  be released by either party concerning the existence of this Agreement,
                  its terms or conditions or the activities of either party in connection
                  with the resulting Agreement shall be subject to the approval of
                  both
                  parties prior to release.

              


      

      


      The
        parties agree that any entity having a prime contract with the DOE awarded
        pursuant to Federal Acquisition Regulations (FAR) Subpart 17.6 and Department
        of
        Energy Acquisition Regulation (DEAR) Subpart 917.60 (collectively hereinafter
        called "Contractor") may place orders under this Agreement and receive the
        appropriate discounted prices. In addition, these discounted prices shall
        be
        available to any entity having a subcontract under such a prime contract
        and
        such subcontractors may also place orders under this Agreement and receive
        the
        appropriate discounted prices. 

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      

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      Each
        Contractor shall place its own orders under this Agreement and shall be
        direct-billed accordingly. Contractors’ may jointly place orders, or a series of
        individual orders, to secure the most favorable price. The Company, Contractor,
        and DOE reserve the right to assign raw waste to the appropriate category
        and
        resulting treatment Agreement and reserves the right to order treatment under
        the most favorable price.

      


      ARTICLE
        I - DEFINITIONS

      


      The
        following special definitions are provided for this Agreement:

      


      Agreement
        Administrator - The person with the authority to enter into Agreements who
        is
        assigned as responsible for this Agreement as a whole and who is specified
        in
        Article VII - Administration.

      


      Order
        Administrator - The person with the authority to enter into Agreements who
        is
        assigned as responsible for the specific Order issued under this Agreement
        and
        who is specified in the Order.

      


      Disposal
        Facility - The Department of Energy disposal facility under contract at the
        time
        of disposal. 

      


      Residue
        -
Matter
        remaining after completion of any abstractive chemical or physical process,
        such
        as evaporation, combustion, distillation, or filtration. 

      


      Reactive
        Waste
        - Substance,
        material or waste that reacts in the presence of air or water to release
        hydrogen gas and heat at a rate that when not controlled (through some means
        such as inerted atmosphere) usually results in fires, possibly small explosions,
        and a caustic solution. Included in this category would be the alkaline metals
        found in Group IA of the periodic chart. Metal powders and pyrophoric metals
        are
        not necessarily Reactive Waste. For purposes of this subcontract, cyanide
        and
        sulfide bearing waste in accordance with 40 CFR 261.23 are not included as
        reactive waste. These are not amenable to the same treatment process and
        are
        priced under other appropriate labpack categories.

      


      Any
        reference to Lockheed Martin Energy Systems, Inc., shall be interpreted as
        Bechtel Jacobs Company, LLC., in any document made a part of this Agreement.
        

      


      ARTICLE
        II - SCOPE OF WORK

      


      All
        orders placed hereunder shall reference the number of this BA (23900-BA-99447F).
        The term of this BA is extended for two years from June 23, 2003 through
        September 30, 2006. The Company has the option of extending this Agreement
        annually, after the initial term has expired, based on the Company’s analysis of
        the Seller’s performance and cost/pricing history.

      


      The
        Seller agrees to treat mixed waste in quantities described herein as any
        Contractor may order during the term of this Agreement. The Seller's obligation
        to each Contractor shall become effective upon acceptance of particular orders
        issued under this Agreement. The Agreement Administrator shall be furnished
        a
        copy of each order placed under this Agreement. In the event the Seller rejects
        an order, for any reason, the Agreement Administrator shall be notified in
        writing within five days of such rejection by the Seller stating the reason
        for
        rejection. Three rejections of orders by the Seller, for any reason other
        than
        non-conforming materials, shall be sufficient grounds for termination of
        this
        Agreement. The Company, Contractors, and DOE reserve the right to classify
        raw
        waste by category and to assign the treatment of raw waste among the categories
        covered by the Statement of Work dated December 8, 1997 and made a part
        hereof.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
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      ARTICLE
        III - DELIVERY OR PERFORMANCE

      


      (a) Delivery
        or performance shall be made only as authorized by orders issued in accordance
        with the Ordering Provisions contained in Attachment C. The Seller shall
        furnish
        to the Company or the Contractor, when and if ordered, the supplies or services
        specified in the order.

      


      (b) There
        is
        no limit on the number of orders that may be issued. 


      (c) Any
        order
        issued during the effective period of this Agreement and not completed within
        that period shall be completed by the Seller within the time specified in
        the
        order. The Agreement shall govern the Seller's and Contractor’s rights and
        obligations with respect to that order to the same extent as if the order
        were
        completed during the Agreement's effective period.

      


      (d) Disposal
        of treated waste shall be under the existing DOE contract for waste disposal
        in
        effect at the time of disposal. The DOE contract will govern demurrage and
        other
        administrative matters. For process residue from labpack waste streams only,
        M&EC is authorized to dispose of such residue at regulatory approved
        disposal sites. 

       

      (e)
         The
        Seller is not obligated to accept any individual order less than 6,000kg
        of mass
        weight of raw waste.

      


      ARTICLE
        IV - FUNDING

      


      Funding
        will only be authorized under individual orders issued under this Agreement.
        There shall be no funding provided in the Basic Agreement. The level of
        performance requested will depend entirely upon requirements of the Company
        and
        the DOE affiliates for the period of performance covered by the Agreement.
        

      


      ARTICLE
        V - FIRST ARTICLE TESTING 

      


      First
        Article Testing will be authorized to commence only as a part of the first
        order
        issued under this Agreement and shall be at the same price per kg as the
        production quantities to be treated in the first order. Treatment of production
        quantities may not proceed until written authorization is granted by the
        Company, DOE or Contractor based upon completion of a successful First Article
        Test.

      


      (a) The
        first
        article is (tbd
        by vendor requirements)
        (kg) of
        each treatment category which shall be tested in accordance with the provisions
        contained or referenced in this Agreement. At least 10 calendar days prior
        to
        the beginning of first article approval tests, the Seller shall furnish written
        notice to the Company or Contractor of the time and location of the testing
        so
        that the Company or Contractor may witness such testing if it so
        elects.

      


      (b) Within
        116 weeks from the date of this Agreement, the first article approval test
        report shall be forwarded to the Agreement Administrator or his designee,
        marked
        "FIRST ARTICLE: Basic Agreement No. 23900-BA-99447F, Order No. _____." The
        Company or the Contractor shall, by written notice to the Seller within 20
        calendar days after receipt of such test report, approve, conditionally approve,
        or disapprove such first article. The notice of approval or conditional approval
        shall not relieve the Seller from complying with all requirements of the
        specifications and all other provisions of this Agreement. A notice of
        conditional approval shall state any further action required of the Seller.
        A
        notice of disapproval shall cite reasons therefor.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
         

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      (c) If
        the
        first article is disapproved by the Company or the Contractor, the Seller
        may be
        required, at the option of the Company or the Contractor, to repeat any or
        all
        of the first article approval tests. After each notification by the Company
        or
        the Contractor of the requirement for additional tests, the Seller shall
        at no
        additional cost to the Company or the Contractor make any necessary changes,
        modifications, or repairs required for another first article test. Thereafter,
        the Seller shall perform the required additional approval tests and deliver
        another report to the Company or the Contractor under the terms and conditions
        and within the time specified by the Company or the Contractor. The Company
        or
        the Contractor shall take action on this report within the time limit specified
        in (b) above. All costs related to additional approval tests shall be borne
        by
        the Seller. 

       

      (d) If
        the
        Seller fails to deliver any first article approval test report within the
        time
        or times specified, or if the Company or the Contractor disapproves any first
        article, the Seller shall be deemed to have failed to make delivery within
        the
        meaning of the “Termination” clause of this Agreement, and this Agreement shall
        be subject to termination.

      


      (e) Where
        the
        approved first article is not consumed or destroyed in testing, and unless
        otherwise provided in this Agreement, the first article may be delivered
        as part
        of the Agreement quantity if it meets all terms and conditions of the Agreement
        for acceptance.

      


      (f) In
        the
        event the Company or the Contractor does not approve, conditionally approve,
        or
        disapprove the first article within the time specified in (b) or (c) above,
        the
        Company shall, upon timely written request made by the Seller, make a
        determination of the delay occasioned the Seller thereby, and shall equitably
        adjust the delivery or performance dates, and any other contractual provision
        affected by such delay, in accordance with the procedures provided in the
        "Changes" clause.

      


      (g) Until
        first article approval is granted, no costs for the first article shall be
        allocable to this Agreement for the purpose of termination settlements, if
        this
        Agreement is terminated for convenience. 

      


      (h) The
        first
        article test must be performed at the facilities in which the treatment is
        to be
        performed under the Agreement. A certification by the Seller to this effect
        must
        accompany each first article which is offered.

      


      ARTICLE
        VI- PAYMENT

      


      Payment
        terms - Net 30. For each shipment under a work release, 100% (one hundred
        percent) of Transportation from Generator Site to Treatment Facility and
        100%
        (one hundred percent) of Handling will be invoiced upon receipt of shipping
        manifest showing shipment has been accepted at the Treatment Facility. 100%
        (one
        hundred percent) of Transportation from Treatment Facility to Disposal Facility
        will be invoiced upon receipt of shipping manifest showing shipment has been
        accepted at the Disposal Facility. 33% (thirty three percent) of the Task
        Order
        Drum Equivalent along with the assumed TOC and Hg concentrations will be
        invoiced upon receipt of the waste at the Treatment Facility which covers
        the
        profile review and approval, shipment receipt, waste sampling and analysis,
        material preparation/movement, storage, process determination/procedures,
        radiological surveys, Environmental Safety and Health reviews and Waste Tracking
        and reporting (Quality Assurance). 52% (fifty two percent) will be invoiced
        after processing and certification is provided with the submittal of the
        invoice
        that all treated waste meets the applicable LDR treatment standards. The
        remaining 15% (fifteen percent) will be paid within 30 days of receipt of
        the
        Certificate of Disposal or other appropriate evidence of destruction.


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      
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      LIQUID
        WASTE ONLY:

       

      Payment
        Terms - Net 30. For Liquid Waste as defined in Attachment B, Category B Liquids.
        Shipment under a work release; 50% (fifty percent) of estimated cost for
        treatment and disposal upon receipt by Seller and the remaining 50% of the
        treatment cost upon submitting a certificate of Disposal. 

      


      Pricing
        for liquid waste streams are provided on a per gallon basis using the outside
        volume of the container received for processing. 

      


      The
        cost
        associated with disposal of the treatment residues are included in the prices
        for the Waste Stream. 

      


      ARTICLE
        VII- FIXED PRICES


      The
        Company or Contractor shall be entitled to purchase services at the fixed
        prices
        identified in Attachment B . The prices identified in Attachment B are firm
        for
        the effective period of this Agreement, described in Article II - Scope of
        Work.

      


      ARTICLE
        VIII - ADMINISTRATION

      


      BA
        Procurement Administrator address is as follows:

      


      Bechtel
        Jacobs Company LLC

      Attn:
        Lucretia Ann Jordan

      K-1007
        Room 2313, MS7596Hwy
        58

      Oak
        Ridge, Tennessee 37831-7596

      


      
        	Telephone:	
                (865)
                  241-2168

              


      

      
        	Fax:	
                (865)
                  576-3947

              


      

      
        	Email:	
                jin@bechteljacobs.org

              


      

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
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      The
        work
        to be performed under this Agreement is subject to the monitoring of the
        Agreement Administrator. 

      


      Notwithstanding
        any of the other provisions of this Agreement, the Agreement Administrator
        shall
        be the only individual authorized to : (1) waive any requirement of this
        Agreement or (2) modify any terms or conditions of this Agreement. The Ordering
        Administrator shall be the only individual authorized to modify any terms
        or
        conditions of the Agreement only as they apply to a specific Order and waive
        any
        requirement of the Agreement only as it applies to a specific
        Order.

      


      The
        Order
        Administrator ࿂s
        name,
        address, and phone number shall appear on each Order issued under this
        Agreement.

      


      East
        Tennessee Materials and Energy Corporation

      Attn:
        Jim
        Morrison

      701
        SCARBORO ROAD, SUITE 300

      Oak
        Ridge, TN 37830

      


      Telephone
        (865) 813-1312

      Fax:
        (865) 813-1301

      


      ARTICLE
        IX - OTHER ITEMS

      


      COMPLIANCE
        WITH LAWS


      All
        permits, licenses, and government approvals of whatever nature relating to
        the
        performance of the work, any part thereof, or any things used in connection
        therewith, will be obtained by the Seller at its own cost and expense, and
        the
        Seller will furnish copies of the same to the Company upon request. Failure
        to
        obtain and maintain current all permits, licenses, and government approvals
        of
        whatever nature relating to the performance of the work shall be grounds
        for
        termination of the Agreement at no cost to the Company or
        Government.

      


      Seller
        will comply with all laws and ordinances and all pertinent lawful orders,
        rules
        and regulations relating to the work, to any activities, labor, equipment,
        vehicles, containers, facilities, of disposal areas provided by Seller in
        connection with the work, and to the preservation of the public health and
        safety and environment. Seller will indemnify and hold harmless the Company,
        the
        DOE, and 

      the
        Contractor against all fines, penalties, assessments, damages, and other
        liabilities of whatever nature arising out of or resulting from Seller’s failure
        to comply as set forth herein.

      


      INDEMNIFICATION

      


      Seller
        agrees to indemnify, save harmless and defend the Company, the DOE, and the
        Contractor from and against any and all liabilities, claims, penalties,
        forfeitures, suits and the costs and expenses incident thereto (including
        costs
        of defense, settlement and reasonable attorneys' fees), which it may hereafter
        incur, become responsible for or pay out as a result of death or bodily injuries
        to any person, destruction or damage to any property, contamination of or
        adverse effects on the environment, or any violation of governmental laws,
        regulations or orders. 

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
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      Seller
        indemnifies and holds the Department of Energy (DOE), and Bechtel Jacobs
        Company
        LLC and the present and future officers, directors, shareholders, employees
        and
        agents of these entities (hereinafter, these entities and individuals shall
        be
        referred to as “indemnified parties”) and the Contractor, harmless from “any and
        all claims and liabilities” arising from the Seller’s (I) treatment, generation,
        and management of waste, including any release or threat of release of the
        waste
        or constituents thereof resulting from the Seller’s management thereof; (ii) any
        contamination of or adverse effects on the environment as a result of the
        Seller’s management of the waste; and/or (iii) Seller’s breach of the terms of
        this Agreement.

      


      The
        phrase “any and all claims and liabilities” shall be understood in its most
        comprehensive sense, which includes any and all claims, losses, damages,
        fines,
        costs, reasonable attorney fees, or other detriments, and, without limiting
        the
        foregoing, specifically includes all statutory or common law claims brought
        against indemnified parties, Seller, and/or Seller’s Subcontractor(s), including
        claims brought pursuant to sections 106, 107 or 113 of the Comprehensive
        Environmental Response, Compensation and Liability Act, or sections 7002
        and
        7003 of the Resource Conservation and Recovery Act, and similar state and
        local
        environmental laws.

      


      In
        connection with the foregoing, Seller specifically waives and relinquishes
        all
        statutory or common law claims against the indemnified parties that Seller
        may
        otherwise have in connection with transfer to Seller of title and responsibility
        for the material, including any claims arising under environmental laws,
        claims
        for property damage or bodily injuries, including death.

      


      Notice
        of Claim


      With
        respect to any claim for indemnification, the indemnified party (or parties)
        making such claim shall give written notice of the claim within a reasonable
        period following the event or occurrence and identify the basis of the
        indemnification asserted, and allow Seller (including its employees, agents,
        insurers and counsel) reasonable access to any of its employees, property
        and
        records for the purpose of conducting an investigation of such claim and
        for the
        purpose of obtaining statements, photographs, physical evidence and chemical
        analyses and taking such other steps as may be necessary to preserve evidence
        of
        the occurrence on which the claim is based.

      


      Preservation
        of Rights Against Third Parties

       

      In
        the
        event any third party, including any government agency, asserts any claim,
        demand or cause of action arising out of the performance of this Agreement,
        Seller and the Company agree to maintain their respective rights, as well
        as for
        their mutual benefit, any rights that each may have resulting from either
        (I) an
        action against, or (ii) a hold harmless or indemnification Agreement with
        any
        transporter, disposal site operator or any other party who may share
        liability.

      


      Survival

       

      The
        indemnity and waiver provisions in paragraph 2 shall survive the expiration
        or
        termination of this Agreement.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
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      TITLE
        TO WASTE

      


      Title
        to
        the raw waste and treated waste shall remain with the DOE. All raw waste
        delivered under this Agreement shall be as described in the individual order
        releases. The Company nor the Contractor shall have no right to recover any
        material encountered in the raw waste nor any credit for its potential value
        nor
        any credit for any monies received for recycled material. Recycle material
        becomes the property of the Seller. 

      


      TRANSPORTATION

       

      The
        Seller must provide Certification of Insurance which meets the requirements
        of
        the clause entitled Insurance
        as
        referenced below. Certification documents shall be forwarded to the Agreement
        Administrator within 30 day of Agreement date. The Company requires trained
        drivers familiar with EPA, DOE and DOT procedures with regard to shipment
        of
        low-level radioactive materials and emergency spill procedures. The transporting
        vehicle will be placarded by Seller's personnel in accordance with DOT
        regulations found in 49 CFR 100-199 and transported in accordance with DOT
        and
        other applicable regulations.

      


      INSURANCE

      


      See
        Exhibit B, Special Conditions Fixed Price - Commercial Services, SC-14
        Insurance. 

      


      SHIPPING
        DOCUMENTS

      


      A
        shipping manifest will be completed by the Company or Contractor in accordance
        with 49 CFR 100-199 and 49 CFR 761.202 - .218 and signed by the transporter
        and
        facility operator upon receipt of material. The owner/operator will mail
        the
        manifest original to the Company or Contractor within 30 days after receipt
        of
        material. Manifest shall be mailed to Bechtel Jacobs Company, LLC, K-1007
        Room 2313, MS7596,
        Oak
        Ridge, TN. 37831-75596; Attention: Lucretia Ann Jordan.

      


      FINES,
        PENALTIES AND ASSESSMENTS

      


      (a) If
        the
        Seller fails to perform the services within the time specified in this Agreement
        or any order placed under this Agreement, or any extension, the Seller shall
        pay
        to DOE or the Company or the Contractor the amount of any fine or penalty
        imposed on DOE or the Company or the Contractor for failing to have that
        waste
        treated and disposed in accordance with the Site Treatment Plan
        (STP).

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
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      (b) Additionally,
        if performance is so delayed, the Company may terminate this Agreement in
        whole
        or in part under the Default clause in this Agreement

      


      (c) The
        Seller shall not be charged with for any fine or penalty imposed when the
        delay
        in performance arises out of causes beyond the control and without the fault
        or
        negligence of the Seller as defined in the Default clause in this
        Agreement.

      


      RIGHTS
        TO PROPOSAL DATA

      


      Except
        for technical data contained in page _NONE_____ of the Proposer's proposal
        dated
        May 1, 1998, which is asserted by the Proposer as being proprietary data,
        it is
        agreed that as a condition of the award of this Agreement, and notwithstanding
        the provisions of any notice appearing on the proposal, the Company and the
        Government shall have the right to use, duplicate, and disclose and have
        others
        do so for any purpose whatsoever, the technical data contained in the proposal
        upon which this Agreement is based. 

      


      Key
        Personnel and Point of Contact

       

      East
        Tennessee Materials and Energy Corporation

      Mr.
        Larry
        McNamara

      Ms.
        Renee
        Echols

      701
        SCARBORO ROAD, SUITE 300

      Oak
        Ridge, TN 37830

      Phone
        (865) 813-1303

      Fax
        (865)
        813-1301

      


      Labor
        Personnel and Work Rules

      


      Seller
        shall employ only competent and skilled personnel to perform the Work and
        shall
        remove from the Work any Seller personnel determined to be unfit or acting
        in
        violation of any provision of this Agreement.

      


      ARTICLE
        X - Agreement CONTENTS

      


      The
        provisions of the following articles and documents are made a part of this
        Agreement:

      


      
        	1.	
                Exhibit
                  5 - Patent Indemnity

              


      

      
        	2.	
                Exhibit
                  9 - Technical Data

              


      

      
        	
                3.

              	
                Basic
                  Ordering Agreement General Terms & Conditions for Commercial Items DOE
                  Contractors (09/98)

              


      

      
        	
                4.

              	
                Attachment
                  A - List of Eligible DOE Site, Contractors, Designated Affiliates,
                  and SMO
                  Laboratories.

              


      

      
        	5.	
                Attachment
                  B - Pricing Proposal

              


      

      
        	6.	
                Attachment
                  C - Ordering Provisions

              


      

      
        	7.	
                Statement
                  of Work dated September 1, 2005

              


      

      
        	8.	
                FAR
                  clauses:    53.203-1
                  Gratuities

              


      

      52.222-1
        Notice to Government of Labor Disputes

      52.222-3
        Convict Labor

      52.223-14
        Toxic Chemical Release Reporting

      52.223-7
        Notice of Radioactive Materials

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
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      9. Exhibit
        B - Special Conditions Fixed Price Commercial Services

      


      IN
        WITNESS WHEREOF, the parties hereto have executed this document as of the
        day
        and year of the Bechtel Jacobs representatives signature.

      


      
        
          	
                  EAST
                    TENNESSEE MATERIALS AND

                	
                  BECHTEL
                    JACOBS COMPANY, LLC.

                
	
                  ENERGY
                    CORPORATION

                	 	 
	 	 	 	 
	
                  Name

                	
                  /s/
                    Jim Morrison

                	
                  Name

                	
                  Lucretia
                    Ann Jordan /s/ Lucretia Ann Jordan 

                
	 	 	 	 
	
                  Title

                	
                  Business
                    Manager

                	
                  Title

                	
                  Subcontract
                    Administrator 

                
	 	 	 	 
	
                  Date

                	
                  September
                    21, 2005

                	
                  Date

                	
                  September
                    20, 2005