ADES » Topics » 8.1 Performance and Completion Requirements.

These excerpts taken from the ADES 10-K filed Mar 14, 2008.

8.1 Performance and Completion Requirements.

8.1.1 Performance Requirements. The Project shall meet the Performance Requirements described in Sections 8.1.1.1 through 8.1.1.7 when tested pursuant to a Completed Performance Test performed in accordance with the requirements of Appendix C and the other provisions of this Agreement and Applicable Legal Requirements. In addition to the foregoing, the Project must be capable of continuous commercial operations in compliance with Applicable Legal Requirements. The Levels of Performance Requirements shall be established by Phase 1 Work.

The Requirements set forth in Sections 8.1.1.1 through 8.1.1.7 are the “Performance Requirements”.

8.1.1.1 Activated Carbon Throughput Minimum. The Activated Carbon Throughput from the Project will not be less than [            ] tons/day, when corrected to Design Conditions (the “Activated Carbon Production Requirement”)]

8.1.1.2 Activated Carbon Quality Specification. The Activated Carbon produced from the Project will be of a quality at least as good as the specifications set forth in Appendix R (the “Activated Carbon Specification Requirement”).

8.1.1.3 Limestone Consumption Requirement. Limestone consumption will not result in a Ca/S ratio in excess of [            ], when corrected to Design Conditions (the “Limestone Consumption Requirement”).

8.1.1.4 Net Electrical Output Requirement. The Net Electrical Output from the Project will not be less than [            ] kilowatts, when corrected to Design Conditions (the “Net Electrical Output Requirement”).

8.1.1.5 Environmental Compliance Requirement. The Project will comply with all requirements of the emissions table set forth in Appendix C (the “Environmental Compliance Requirement”).

 

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8.1.1.6 Noise Level Requirements. The Project will comply with the noise limitations and requirements set forth in Appendix C and Applicable Legal Requirements.

8.1.1.7 Reliability Requirement. Contractor shall perform the Work with the objective that actual Project Reliability will be              percent (        %) as determined in accordance with the TBD Reliability Test performed on or before the Substantial Completion Date (the “Reliability Requirement”).

8.1.2 Required Substantial Completion Date. Contractor shall perform the Work with the objective that the Substantial Completion Date for the Project will occur on or before the Early Required Substantial Completion Date.

8.1.3 Target Final Completion Date. Contractor shall perform the Work with the objective that Final Completion of the Project will occur on or before the Target Final Completion Date.

8.1 Performance and Completion Requirements.

STYLE="margin-top:6px;margin-bottom:0px; margin-left:4%; text-indent:4%">8.1.1 Performance Requirements. The Project shall meet the Performance Requirements described in Sections 8.1.1.1
through 8.1.1.7 when tested pursuant to a Completed Performance Test performed in accordance with the requirements of Appendix C and the other provisions of this Agreement and Applicable Legal Requirements. In addition to the
foregoing, the Project must be capable of continuous commercial operations in compliance with Applicable Legal Requirements. The Levels of Performance Requirements shall be established by Phase 1 Work.

STYLE="margin-top:12px;margin-bottom:0px; text-indent:4%">The Requirements set forth in Sections 8.1.1.1 through 8.1.1.7 are the “Performance Requirements”.

STYLE="margin-top:6px;margin-bottom:0px; margin-left:8%; text-indent:4%">8.1.1.1 Activated Carbon Throughput Minimum. The Activated Carbon Throughput from the Project will not be less than
[            ] tons/day, when corrected to Design Conditions (the “Activated Carbon Production Requirement”)]

STYLE="margin-top:6px;margin-bottom:0px; margin-left:8%; text-indent:4%">8.1.1.2 Activated Carbon Quality Specification. The Activated Carbon produced from the Project will be of a quality at least as
good as the specifications set forth in Appendix R (the “Activated Carbon Specification Requirement”).

SIZE="2">8.1.1.3 Limestone Consumption Requirement. Limestone consumption will not result in a Ca/S ratio in excess of [            ], when corrected to Design Conditions (the
“Limestone Consumption Requirement”).

8.1.1.4 Net Electrical Output Requirement. The Net Electrical
Output from the Project will not be less than [            ] kilowatts, when corrected to Design Conditions (the “Net Electrical Output Requirement”).

STYLE="margin-top:6px;margin-bottom:0px; margin-left:8%; text-indent:4%">8.1.1.5 Environmental Compliance Requirement. The Project will comply with all requirements of the emissions table set forth in
Appendix C (the “Environmental Compliance Requirement”).

 























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8.1.1.6 Noise Level Requirements. The Project will comply with the noise
limitations and requirements set forth in Appendix C and Applicable Legal Requirements.

8.1.1.7 Reliability
Requirement
. Contractor shall perform the Work with the objective that actual Project Reliability will be              percent
(        %) as determined in accordance with the TBD Reliability Test performed on or before the Substantial Completion Date (the “Reliability Requirement”).

STYLE="margin-top:6px;margin-bottom:0px; margin-left:4%; text-indent:4%">8.1.2 Required Substantial Completion Date. Contractor shall perform the Work with the objective that the Substantial Completion
Date for the Project will occur on or before the Early Required Substantial Completion Date.

8.1.3 Target Final
Completion Date
. Contractor shall perform the Work with the objective that Final Completion of the Project will occur on or before the Target Final Completion Date.

FACE="Times New Roman" SIZE="2">8.2 Late Substantial Completion Damages and Buydown Amounts.

8.2.1 Late
Completion Liquidated Damages
. If Substantial Completion does not occur on or before the Required Substantial Completion Date, Contractor shall pay liquidated damages to Owner for such delay for each and every day that elapses between the
Required Substantial Completion Date and the date on which Substantial Completion occurs (“Late Substantial Completion Damages”). The per-day Late Substantial Completion Damages payable pursuant to this Section shall be $
             per day [less net income from product generated by the Project after deducting all costs, including the full amount of Owner’s carrying and other cost for debt,
such net income calculated on a daily basis] provided if the Activated Carbon Production Requirement has been achieved and the Project is operated so as to produce activated carbon in an amount at least equal to such Requirement level on such day,
then the Late Substantial Completion Damages for such day shall be reduced to $            . Notwithstanding the payment of Late Substantial Completion Damages, Contractor shall
continue to expeditiously perform, repair, replace and fix the Work until Substantial Completion is achieved. The Parties agree that it would be extremely difficult and impracticable to determine precisely the amount of actual damages that would be
suffered by Owner as a result of Contractor’s failure to achieve the applicable Required Substantial Completion Date. The Parties further agree that the Late Substantial Completion Damages are a fair and reasonable substitute therefor. The
Parties agree that each is estopped to argue the invalidity, unenforceability or otherwise question the reasonableness of the Late Substantial Completion Damages, as they represent the allocation of risk between the Parties and the basis of the
bargain. Late Substantial Completion Damages will not

 























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(i) limit Contractor’s liability for its failure to perform any of its other obligations hereunder, including Defects in the Work, or its
obligations to achieve Final Completion, or (iii) limit Owner’s remedies for Contractor’s failure to perform any of its other obligations hereunder. Liquidated Damages are understood to be an estimate of actual damages and not a
penalty, and to represent Contractor’s sole liability and Owner’s sole remedy for the deficiency specifically giving rise to the Liquidated Damages liability.

STYLE="margin-top:6px;margin-bottom:0px; margin-left:4%; text-indent:4%">8.2.2 Late Substantial Completion Damages. In the event that a failure to achieve Substantial Completion by the Required
Substantial Completion Date is attributable (in whole or in part) to one or more Owner Supplier(s), Contractor shall give notice to Owner to that effect (together with reasonable supporting documentation) and Contractor shall assist Owner in
recovering the applicable Late Substantial Completion Damages from the responsible Owner Supplier(s) under the terms of the Owner Contract(s) in question.

FACE="Times New Roman" SIZE="2">8.3 Early Substantial Completion Bonus. If the Substantial Completion Date occurs before the Required Substantial Completion Date, then Contractor will earn a bonus equal to
$             per day for each day by which the Substantial Completion Date is earlier than the Required Substantial Completion Date (the “Early Substantial Completion Bonus
Amount”
); provided, however, that the maximum amount of the bonus payable by Owner pursuant to this Section 8.3.1.1 shall be $            .

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EXCERPTS ON THIS PAGE:

10-K (2 sections)
Mar 14, 2008
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