COMPUTERIZED PROCESS CONTROL AGREEMENT
(HARDWARE AND SOFTWARE)
This SYSTEMS supply and service agreement, hereinafter "Agreement," is
made and entered into by and between Rofan Services Inc. (hereinafter "RSI")
and Destec Energy, Inc. (hereinafter "DEI"), located at:
RSI:
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Corporation of: State of Delaware
DEI:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Corporation of: State of Delaware
RSI and DEI hereby agree this Agreement consists in its entirety of this
executed covering document and the following attachments:
Appendix A - Service Agreement
Appendix B - Intellectual Property Provisions for
Subcontracts Required Under Cooperative
Agreement No. DE-FC21-92MC29310
Appendix C - Certain Contract Clauses Required
by Cooperative Agreement
No. DE-FC21-92MC29310
Schedule 1 - System Charges
RSI agrees to supply to DEI in accordance with the terms and conditions
of this Agreement one or more MOD5 PROCESS CONTROL SYSTEMS for its PLANT(S)
described in Schedule 1 attached hereto and made a part hereof. It is
contemplated that Schedule 1 may be amended from time to time as SYSTEMS are
added and modified under this Agreement. This Agreement constitutes
the entire understanding between RSI and DEI pertaining to all MOD5 PROCESS
CONTROL SYSTEMS for DEI's PLANT(S) and supersedes any prior or
contemporaneous agreements and all negotiations, representations and
proposals written or oral pertaining to this subject.
ARTICLE 1 - DEFINITIONS
Terms used in this Agreement shall have the meanings ascribed to them as
follows:
a. MOD5 PROCESS CONTROL SYSTEM (SYSTEM) means specially designed, direct
digital control, redundant computer technology for providing process
control and supplying process operation information. SYSTEM comprises
MOD5 HARDWARE, MOD5 SOFTWARE, and an associated MINICOMPUTER.
b. MOD5 HARDWARE means a user defined hardware configuration designed to
implement the SYSTEM which comprises two or more MOD CANS, two or more
MOD5 COMPUTERS, and one or more INTERFACE PROCESSORS.
c. MOD CAN is a modular input/output device with associated electronics
which receives inputs and originates output relative to PLANT
instrumentation. Each MOD CAN provides static graphics displaying
immediate information on conditions of selected signals and data.
d. MOD5 COMPUTER is a specially designed, high speed control computer.
e. INTERFACE PROCESSOR is an electronic functional interconnection within
a SYSTEM between MOD5 COMPUTER(S) and MINICOMPUTER(S), which contains
hardware, dedicated executable software, and firmware, otherwise
primarily comprised of one or more MODSERVERS.
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f. MINICOMPUTER is a member of a family of computers manufactured by the
Digital Equipment Corporation comprising VAX hardware executing the
currently supported version of the VMS operating system specified by
RSI, said computers otherwise referred to as VAX/VMS systems, to be
separately acquired by DEI.
g. DOWTRAN is a specific language designed for the process control
application engineer to convert and express the CONTROL SCHEMA into the
APPLICATION PROGRAM for a manufacturing process. The APPLICATION
PROGRAM is further transformed into COMPILED DOWTRAN using a MOD5
COMPILER.
h. MOD5 OVERHEADS means the executable operating systems software for the
MOD5 COMPUTER that executes the COMPILED DOWTRAN and implements
diagnostics, inputs, outputs, alarms and event logging.
i. DOWTRAN SUPPORT TOOLS are utility programs which execute on the
MINICOMPUTER to assist the application engineer in writing the
APPLICATION PROGRAM in DOWTRAN.
j. APPLICATION PROGRAM, to be provided by DEI, is a human readable
representation of the CONTROL SCHEMA in DOWTRAN.
k. COMPILED DOWTRAN is the machine readable code which results from the
compilation process executed by the MOD5 COMPILER to convert the
APPLICATION PROGRAM written in DOWTRAN into said machine readable code.
l. CONTROL SCHEMA, to be provided by DEI, comprises the entire collection
of concepts, process dynamics and control models, and associated
decision models which are referenced to define the APPLICATION PROGRAM.
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m. MOD5 COMPILER is a computer program which executes on the MINICOMPUTER
to produce COMPILED DOWTRAN from the APPLICATION PROGRAM written in
the DOWTRAN language.
n. GPI means an executable subset of process information and related
software specially designed and developed for execution on the
MINICOMPUTER which displays and stores process information and
related information to assist operations personnel.
o. MOD5 SOFTWARE means MOD5 OVERHEADS, DOWTRAN SUPPORT TOOLS, MOD5
COMPILER, GPI, and NEW SOFTWARE VERSIONS.
p. PRODUCT NOTICE is a change in hardware design and/or software design
and/or announcements of new products.
q. HARDWARE MAINTENANCE means periodic testing, calibration, replacement
of faulty or worn out parts, substitution or addition of new
electronic capabilities according to PRODUCT NOTICES, and general
overall maintenance of the HARDWARE components.
r. HARDWARE CONSUMABLES include, without limitation, fuses, light bulbs,
chart paper, and other such utility sundry items which are not
considered a part of HARDWARE MAINTENANCE that DEI may require to
operate the PLANT in a comprehensive manner.
s. NEW SOFTWARE VERSION means a uniquely identified, revised, and
improved release of MOD5 SOFTWARE directed to improve process
efficiencies and/or reliability.
t. PLANT means DEI's facilities listed in the attached Schedule 1.
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u. INSTALLATION DATE is the date on which a given SYSTEM has been
physically installed in a PLANT. This date shall be confirmed in
writing to RSI by the PLANT Manager, but in any case shall be deemed
to be no later than thirty (30) days after start up of the PLANT.
v. MODSERVER is a specially configured, commercially available computer
specified by RSI which executes a commercially available operating
system and RSI supplied application software to connect a MOD5
COMPUTER to a GPI system.
w. SHIPMENT DATE is the date on which the MOD5 HARDWARE has been
transferred to the carrier.
x. EFFECTIVE DATE is the date of execution of the last party to sign.
ARTICLE 2 - TERM
The term of this Agreement shall begin on the execution date hereof and,
subject to the provisions herein for termination, shall continue for a period
of fifteen (15) years after the INSTALLATION DATE of the last SYSTEM to be
supplied hereunder. It shall thereafter continue from year to year until
terminated in its entirety, pursuant to the provisions of Articles 4 and 10
herein by either RSI or DEI. The obligations of Article 5 shall survive any
expiration or accelerated termination of this Agreement for a period of five
(5) years.
ARTICLE 3 - PAYMENTS
3.1 SYSTEM CHARGES. Charges for SYSTEMS supplied hereunder are set
forth in the accompanying Schedule 1.
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3.2 TAXES AND SHIPPING. DEI shall pay all taxes, however designated,
which are levied or based on the MOD5 HARDWARE and/or MOD5 SOFTWARE or their
use including without limitation property taxes, local fees or excise taxes
but excluding taxes withheld based on RSI's net income. In the event DEI
defaults in the payment of any such tax, RSI may pay such tax and shall be
reimbursed by DEI, with interest, as an additional charge. DEI shall be
responsible for paying MOD5 HARDWARE shipping costs F.O.B. RSI shipping point.
ARTICLE 4 - TERMS OF POSSESSION AND USE
4.1 RSI and DEI agree that all MOD5 HARDWARE and MOD5 SOFTWARE
(excluding components sent off site to be repaired and the MINICOMPUTER to be
acquired by DEI directly from an appropriate source of such computers)
supplied by RSI hereunder will be kept by DEI in its sole possession and
control and will at all times be located at the PLANT(S) designated in the
attached Schedule 1.
4.2 DEI shall enjoy all rights of possession and use of SYSTEM(S)
supplied hereunder subject to RSI's rights under Paragraph 4.3, upon one
year's prior written notice to DEI, upon occurrence of one or more of the
following conditions:
(a) DEI breaches the secrecy obligations of Article 5;
(b) DEI fails to make payments within sixty (60) days after notice
of payments in arrears;
(c) The Dow Chemical Company (TDCC) equity holdings of DEI, direct
and indirect, decline below twenty percent (20%), or events occur from
which such event may be reasonably predicted and that an affiliate of
TDCC will no longer be operating PLANT ("Affiliate" in this context is
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an entity in which TDCC may exercise a substantial amount of control);
(d) TDCC, as the result of (i) governmental action, or (ii) DEI
financial distress (including any assignment of assets for the benefit of
creditors) faces loss of at least joint control, direct or indirect, over
DEI assets in which SYSTEM(S) are installed.
(e) RSI discontinues support of SYSTEMS acquired by DEI hereunder.
4.3 In the event:
(a) conditions of Paragraph 4.2(a) and (b) occur, RSI may terminate
this Agreement and its support of SYSTEMS supplied hereunder and optionally
reacquire SYSTEMS for a charge equal to one hundred percent (100%) of the
unamortized book value as carried on DEI's books.
(b) conditions of Paragraph 4.2(c), (d) or (e) occur within
fifteen (15) years of the EFFECTIVE DATE, RSI shall have the following
options:
(i) to reacquire SYSTEMS for a charge equal to one hundred
percent (100%) of the unamortized book value as carried on DEI's books;
(ii) to provide an alternative computer driven process
capability at least equivalent in functionality to that of the SYSTEM,
any new hardware being for the account of DEI and intangible charges
being for the account of RSI; or
(iii) to allow DEI to retain existing SYSTEM on the condition
that DEI procures for its own account a competent technical advisor for
continued support of the existing SYSTEM
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in which event proprietary MOD5 SOFTWARE will be made available to such
advisor, provided such advisor agrees to preserve confidentiality and
limit use of any RSI proprietary information for DEI's benefit.
(c) Notwithstanding the provisions of Article 4.2, Paragraphs 4.3(a) and
4.3(b), in the event that RSI elects to discontinue support of SYSTEMS
pursuant to Paragraph 4.2(e), RSI may only elect to implement the options
specified in Paragraphs 4.3(b)(i) and 4.3(b)(ii) with DEI's prior written
consent.
4.4 RSI understands and acknowledges that, as the normal course of
DEI's business, DEI obtains debt and equity financing for its power
generations and coal gasification projects on a non-recourse off balance
sheet basis and accordingly may arrange partnership and/or leveraged lease
structures involving third parties for its projects, including the Wabash
River Coal Gasification Repowering Project (the "Wabash Project"). DEI
intends to seek to obtain debt and equity financing for the Wabash Project.
Accordingly, DEI and RSI agree to work together in good faith to negotiate,
revise and/or restructure this Agreement and take such other actions as
necessary to enable DEI to obtain such financing on reasonable commercial
terms.
4.5 Subject to DEI's reasonable operating, safety and secrecy
requirements, DEI shall permit access of RSI or RSI designees to the PLANT(S)
to permit the removal of the SYSTEM supplied hereunder.
4.6 The APPLICATION PROGRAM produced by DEI shall be considered
derivative software and as such retainable by DEI with the proviso that DEI
will diligently pursue protecting RSI's interests pursuant to Article 5.
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ARTICLE 5 - CONFIDENTIALITY
MOD5 HARDWARE and MOD5 SOFTWARE are unique, valuable properties. DEI
agrees to maintain and protect RSI's proprietary interests therein and will
accordingly, subject to DEI's obligations to the U.S. Department of Energy
pursuant to the Cooperative Agreement dated July 2, 1992 pertaining to the
Wabash Project, keep all information pertaining thereto in confidence and
not use the same except as is necessary to the enjoyment and exercise of the
rights granted by RSI hereunder at the PLANT(S) listed in the attached
Schedule I. DEI will take diligent action to fulfill the foregoing
obligations by instruction and agreement with its employees or agents
respecting the confidentiality of this information and shall obtain from such
agents their written commitments to comply with terms of confidentiality.
ARTICLE 6 - SOFTWARE COPIES
MOD5 SOFTWARE may only be copied, in whole or part, with proper
inclusion of RSI's copyright notice and any other proprietary notice required
by RSI, as necessary and incidental to the use of such software for archival
and backup purposes or to replace a worn or defective copy. All such copies
shall be subject to the terms and conditions of this Agreement and shall be
kept and used at the designated PLANT(S). If DEI is unable to operate the
MOD5 SOFTWARE on originally installed equipment, the MOD5 SOFTWARE may be
transferred temporarily to another system during the period of equipment
malfunction. Should the hardware or equipment system be upgraded and
replaced by another system acquired from RSI, MOD5 SOFTWARE acquired
hereunder may be transferred and used on the replacement system.
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ARTICLE 7 - WARRANTIES AND DISCLAIMERS
7.1 THE EXPRESSED WARRANTIES HEREIN CONTAINED ARE IN LIEU OF ANY AND
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF
MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. RSI warrants that
MOD5 HARDWARE and MOD5 SOFTWARE as delivered will operate substantially as
indicated in documentation provided by RSI. RSI will promptly replace or
adjust any defective component of MOD5 HARDWARE, or MOD5 SOFTWARE, except for
HARDWARE CONSUMABLES. Within a period of two (2) years after delivery of
MOD5 HARDWARE and MOD5 SOFTWARE components, DEI shall examine and test same
to determine that each component thereof is in proper working order and
capable of operating as indicated in said documentation provided by RSI. DEI
shall promptly, upon discovery, notify RSI of any alleged deficiency which
may exist.
7.2 RSI warrants the MOD5 HARDWARE AND MOD5 SOFTWARE as delivered by
RSI under this Agreement shall not infringe the copyrights or patent rights
of a third party existing on their INSTALLATION DATE. Upon prompt written
notice from DEI providing all pertinent details of a claim of such asserted
infringement, RSI undertakes to investigate and at RSI's expense to settle or
to defend against such a claim, provided DEI grants any necessary authority
and gives its full support and cooperation, or to obtain the right for DEI to
continue to use the SYSTEM, or to replace or modify the allegedly infringing
components of the SYSTEM which RSI has so delivered to avoid any such claim
that is found to be valid. Without prejudice to the generality of the
foregoing, such expense shall extend to reasonable attorneys' fees incurred
by DEI in respect of such claim. If an award is rendered against DEI, in any
litigation that RSI defends hereunder for infringement by the components of
the SYSTEM which RSI has so delivered, then RSI shall reimburse DEI for
damages and costs awarded by the judicial authority in respect to those
components.
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7.3 DEI acknowledges that it is responsible for each APPLICATION
PROGRAM and is not relying on RSI's skill or judgment to select or furnish
goods suitable for operations of a particular process and that there are no
warranties which are not contained in this Agreement. DEI acknowledges that
it has made the selection of the SYSTEM. RSI shall not be liable for
special, incidental or consequential damages arising out of or in connection
with the performance of the SYSTEM. RSI shall not be responsible for any
loss or damage caused by, nor shall any sums due hereunder ▇▇▇▇▇ by reason
of, any interruption in or loss of service or use of the equipment or any
part thereof arising from any reason not solely attributable to RSI. Without
limiting the generality of the foregoing, examples of the foregoing include
errors in the APPLICATION PROGRAM, normal wear and tear of the SYSTEM, or
gradual deterioration of the SYSTEM.
7.4 RSI's total obligation after INSTALLATION DATE under this Article
shall in no event exceed fifty percent (50%) of the total amount of the fees
actually received by RSI under this Agreement.
7.5 DEI may terminate this Agreement by written notice to RSI if RSI
defaults in the performance of any of its material obligations hereunder.
For the purpose of this Agreement, a notice by facsimile shall be deemed a
written notice and shall be effective on receipt. DEI does not waive any
other remedies that may be available to it by operation of law or otherwise.
ARTICLE 8 - LIABILITY, INDEMNITY AND RISK OF LOSS
8.1 DEI assumes all risks and liabilities, whether or not covered by
insurance, and shall indemnify and hold RSI and its employees harmless for
any liability, claim, loss, damage or expense for injuries to or deaths of
persons and for damage to property, howsoever arising from or incident to the
possession,
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use; operation or storage of MOD5 HARDWARE and MOD5 SOFTWARE, and operation
of the SYSTEM save and except for any matter attributable to the negligence
or wilful misconduct of RSI. Said assumption of risks and liabilities by DEI
shall apply whether such injury or death to persons be to agents or employees
of DEI or be to third persons and whether such damage be to property of DEI
or to property of others.
8.2 DEI shall, except for normal wear and tear, be liable for any and
all loss or damage to the equipment and software during the period from the
date that the acquired component is delivered to DEI's premises until the
date that element is redelivered to RSI, including but not limited to, loss
or damage caused by fire, lightning, sprinkler leakage, tornado, typhoon and
wind storms, water damage, earthquake, collapse of building or structures,
strikes, riots and civil commotion, vandalism and malicious mischief,
burglary, theft, hostile or warlike actions in time of peace or war,
insurrections, revolutions, civil war or usurpation of power, or nuclear
reaction, nuclear radiation or radioactive contamination. During the term of
this Agreement and until equipment is redelivered to RSI, DEI shall be liable
for the prompt repair of equipment at its sole cost and expense. If
equipment or software is irreparably damaged, lost, stolen or destroyed, DEI
agrees to promptly replace or bear the cost of replacing same.
ARTICLE 9 - SYSTEM MAINTENANCE, REPAIRS, INSTALLATION AND MINICOMPUTER
9.1 Throughout the term of this Agreement after installation of the
SYSTEM, DEI shall maintain site conditions to provide an acceptable operating
environment for the SYSTEM as referenced in documentation provided by RSI.
DEi is responsible for maintenance not provided under the Service Agreement
attached hereto as Appendix A, and installation of the SYSTEM. DEI will
maintain the SYSTEM in a current and up-to-date
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condition adapting the same and the APPLICATION PROGRAM to accommodate
PRODUCT NOTICES and NEW SOFTWARE VERSIONS when recommended by RSI, which will
be supplied by RSI or by vendors approved by RSI. Such adaptations will
address (1) improvements in operating reliability, (2) enhancements in
functionality reasonably solicited by DEI and deemed appropriate for
implementation by RSI or (3) management of issues related to obsolescence in
the SYSTEM. RSI will counsel DEI, as required pursuant to the attached
Service Agreement, to accomplish the foregoing and DEI shall permit RSI or
RSI's designee access to the SYSTEM for providing any necessary assistance,
such access to include network access if deemed appropriate. This paragraph is
fundamental to the basic purposes of this Agreement and may not be severed
from this Agreement.
9.2 RSI agrees to supply Maintenance Services, including maintenance and
adjustment of MOD5 HARDWARE parts and Enhancement Services, solely in
accordance with the SERVICE AGREEMENT which is incorporated as Appendix A of
this Agreement. RSI is not responsible for supply of the MINICOMPUTER, but
DEI shall acquire rights for the services of MINICOMPUTER at DEI's PLANT.
Unless otherwise agreed in writing, DEI shall, at its expense, obtain and
keep in full effect throughout the term of this Agreement, a contract from
the manufacturer of the MINICOMPUTER providing for maintenance service and
will otherwise maintain the MINICOMPUTER and associated software in good
working order and make all necessary and recommended adjustments and repairs
thereto.
9.3 DEI will at all times cooperate with RSI in allowing the
manufacturer of the MINICOMPUTER and RSI to control and install all PRODUCT
NOTICES on equipment as shall be determined necessary or desirable by the
manufacturer or RSI. Subject to DEI's reasonable operating, safety and
secrecy requirements, DEI shall grant PLANT access to the MINICOMPUTER and
SYSTEM to the manufacturer, RSI and RSI's designee during normal working hours
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for inspection, repair, maintenance, installation of PRODUCT NOTICES
and for any other reasonable purpose, said access to include network access if
deemed appropriate. DEI shall immediately notify RSI of all details
concerning any malfunction arising out of the alleged or apparent improper
manufacture, functioning or operation of the SYSTEM components supplied by
RSI.
ARTICLE 10 - EXPIRATION AND RENEWAL
Upon expiration of the term of this Agreement as specified in Article 2
hereof, this Agreement shall thereafter continue in effect from year to year
unless this Agreement is terminated by either RSI or DEI upon the terms and
conditions set forth below.
10.1 DEI may terminate this Agreement upon one (1) year's prior written
notice to RSI and upon such termination DEI shall have the following options:
(a) to obtain and install at its own expense, an alternative
computer driven process control system from a third party; or
(b) to retain existing SYSTEM on the condition that DEI procures
for its own account a competent technical advisor for continued support of
the existing SYSTEM in which event proprietary MOD5 SOFTWARE will be made
available to such advisor, provided such advisor agrees to preserve
confidentiality and limit use of any RSI proprietary information for DEI's
benefit.
10.2 RSI may terminate this Agreement upon two (2) years' prior written
notice to DEI and upon such termination shall allow DEI to either:
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(a) obtain and install an alternative computer-driven process under
the conditions specified in Paragraph 10.1(a) above; or
(b) retain existing SYSTEM under the conditions specified in
Paragraph 10.1(b) above.
10.3 In the event termination of this Agreement by either party under
the provisions of this Article 10 causes a party unreasonable and unforeseen
hardship, the parties shall negotiate in good faith to modify the terms for
expiration and/or renewal to equitably readjust the burdens of such event.
ARTICLE 11 - NOTICES
DEI and RSI agree that notices required hereunder shall be deemed
received the seventh day after mailing, if mailed air postage prepaid to RSI
or DEI as the case may be at their respective address given below.
If to RSI, to: Rofan Services Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: M. N. ▇▇▇▇▇, Vice President
If to DEI, to: Destec Energy, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇. ▇▇▇▇,
Senior Vice President
Copy to: ▇. ▇. ▇▇▇▇▇▇▇▇▇, Plant
Manager, Wabash Project
Either party may change such address for notice by sending to the other party
a written notice.
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ARTICLE 12 - SEVERABILITY
Any provision hereof prohibited by, or unlawful or unenforceable under,
any applicable law of any jurisdiction shall be ineffective as to such
jurisdiction without invalidating the remaining provisions of this Agreement.
In the event a material provision is affected, the parties shall reformulate
their mutual undertakings in such manner as to preserve, as much as possible,
their original intentions and objects of this Agreement, consistent with the
laws of such jurisdiction.
ARTICLE 13 - ALTERATIONS
Except for DEI's preparation and modification of APPLICATION PROGRAM, no
alterations to MOD5 SOFTWARE source code or to MOD5 HARDWARE shall be made
without first obtaining in each instance the prior written approval of RSI
which approval shall be expeditiously considered and not be unreasonably
withheld. If after such written approval has been obtained, the alterations
or attachments interfere with the normal or satisfactory maintenance,
operation or insurability of the MOD5 HARDWARE, or MOD5 SOFTWARE or any part
thereof in such manner as to increase the cost of maintenance or insurance
thereof or to create a safety hazard, DEI will upon notice from RSI to that
effect promptly remove the alterations or attachments and restore such MOD5
SOFTWARE source code or MOD5 HARDWARE to its normal condition.
ARTICLE 14 - CONFLICTS AND ASSIGNABILITY
This Agreement does not operate as an acceptance of any conflicting
terms or conditions and shall prevail over any conflicting provision of any
subsequent purchase order or other instrument of DEI, it being understood
that any purchase order or the request of DEI acted upon by RSI shall be for
the
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convenience of DEI only but shall not operate to amend or modify in any
respect the terms hereof. This Agreement may only be altered, modified,
supplemented or deviated from by further agreement in writing executed by an
authorized representative of each RSI and DEI. DEI and RSI each acknowledge
that by executing this Agreement they each have reviewed the attachments
listed above and agree to be legally bound and dutifully perform their
respective obligations thereunder. This Agreement may not be assigned by
either party without the other party's prior written approval except to a
parent, affiliate or sister company of RSI or DEI.
ARTICLE 15 - APPLICABLE LAW
The law of the State of Indiana shall be applied in the construction and
interpretation of this Agreement. No law of conflicts or choice of law shall
supersede this provision except as provided in Article 5.
ARTICLE 16 - DEPARTMENT OF ENERGY (DOE) REQUIREMENTS
RSI agrees to comply with the provisions of Appendix B entitled
"Intellectual Property Provisions for Subcontracts Required Under Cooperative
Agreement No. DE-FC21-92MC29310" and
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Appendix C entitled "Certain Contract Clauses Required by Cooperative
Agreement No. DE-FC21-92MC29310" attached hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on their behalf by their duly authorized representatives.
ROFAN SERVICES INC. DESTEC ENERGY, INC.
By: /s/ M. N. ▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇
--------------------------- ---------------------------
Name: M. N. ▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇
------------------------- ------------------------
Title: Vice President Title: Senior Vice President
------------------------ -----------------------
Date: July 31/93 Date: 8/2/93
------------------------ ------------------------
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APPENDIX A
SERVICE AGREEMENT
MOD5 PROCESS CONTROL SYSTEM TRAINING,
MAINTENANCE AND ENHANCEMENT
1. SERVICES
To facilitate efficient use of SYSTEMS, RSI agrees to provide and DEI
agrees to acquire SYSTEM Training, Maintenance, and Enhancement Services as
provided hereunder. RSI and DEI further agree to cooperate in discussing NEW
SOFTWARE VERSIONS and in reviewing and modifying the APPLICATION PROGRAM, and
installing derived COMPILED DOWTRAN in a timely manner consistent with the
secure and efficient operations of DEI's PLANT to accommodate any provided NEW
SOFTWARE VERSIONS. DEI has responsibility to acquire, through separate
arrangements with RSI or another party, training and/or services necessary to
apply DOWTRAN to the CONTROL SCHEMA to produce an APPLICATION PROGRAM.
(i) Training Services shall consist of training in methods which RSI
deems appropriate for implementing the SYSTEM in a PLANT by DEI.
This shall include, but is not limited to, training in producing
the APPLICATION PROGRAM and COMPILED DOWTRAN, SYSTEM operation,
HARDWARE MAINTENANCE, SYSTEM repair, use of DOWTRAN, application of
MOD5 OVERHEADS, and use of DOWTRAN SUPPORT TOOLS. Such training
shall further include education in the use of the INTERFACE
PROCESSOR, MOD5 COMPILER, MOD5 COMPUTER, and GPI to provide process
information and process information management capabilities. During
such training period, RSI will assist DEI's technical employees in
writing a manual containing the necessary programming, operating,
and maintenance procedures for the SYSTEM and the use of GPI on the
MINICOMPUTER.
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(ii) Maintenance Services for MOD5 HARDWARE and MOD5 SOFTWARE include
the notification of and assistance for implementation, where
necessary, of PRODUCT NOTICES for MOD5 HARDWARE and MOD5 SOFTWARE,
on-request preventive maintenance based on the specific needs of
MOD5 HARDWARE, and remedial maintenance advice for MOD5 HARDWARE,
MOD5 SOFTWARE, firmware, and other HARDWARE MAINTENANCE conducted
by DEI. RSI shall render service promptly. Subassemblies and
printed circuit boards will be furnished to DEI on exchange basis
for defective units. Acquisition and installation of HARDWARE
CONSUMABLES shall be the responsibility of DEI.
(iii) Enhancement Services shall include the delivery and assistance in
the installation of NEW SOFTWARE VERSIONS.
(iv) DEI shall be responsible for the appointment of a computer systems
professional or process control professional fluent in the English
language having a level of technical qualifications and experience
acceptable to RSI, whose acceptance will not be unreasonably
withheld, as manager for the SYSTEM. The SYSTEM manager shall
enter into a secrecy agreement with RSI to protect RSI's technology
and shall cooperate with RSI in enabling outside access to the
SYSTEM when appropriate.
2. SERVICE LIMITATIONS
Services are contingent upon the proper use of the SYSTEM in accordance
with SYSTEM training provided under Article 1 above. Services do not include
any of the following: electrical work external to the SYSTEM, INTERFACE
PROCESSOR, or MINICOMPUTER; replacing or providing HARDWARE CONSUMABLES;
refinishing SYSTEM; or maintenance of accessories, attachments,
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machines, or other devices not provided by RSI. Service shall not
include practices which in RSI's judgment are unsafe or impractical
for RSI to render because of alterations to the SYSTEM or
connection of the PLANT by mechanical or electrical means to
machine devices furnished by a supplier other than RSI. Service
will not be performed on a SYSTEM located in an unsafe or hazardous
environment, as determined by RSI. Service to be provided does not
include service necessitated by elements external to the SYSTEM
which are not within RSI's operation or maintenance instructions or
installation site preparation guidelines including, but not
limited to, humidity, temperature, power failure, surges, air
conditioning, grounding, static charge control, service resulting
from accident, neglect, alterations, improper use or misuse of the
SYSTEM or by repairs attempted by DEI's personnel or service to a
version other than the installed version of MOD5 SOFTWARE and MOD5
HARDWARE.
3. SERVICE CHARGES
(i) For Training Services, Maintenance Services and Enhancement
Services described in Paragraphs 1(i), (ii) and (iii) respectively
performed at DEI's PLANT, DEI shall pay RSI a service charge in the
amount of RSI's standard charge for such services, plus reasonable
travel and living expenses. This fee is presently $125.00 per hour.
This charge is waived during the first ninety (90) calendar days
after the INSTALLATION DATE.
(ii) For home based maintenance and support services described
in paragraphs 1(ii) and (iii) above conducted at the home locations
of RSI and its suppliers, DEI shall pay RSI a quarterly fee
determined by multiplying the total number of MOD CANS it has in
its SYSTEMS (Schedule 1) by a standard service fee. This standard
service fee shall be subject to RSI's reasonable annual adjustment
to spread RSI's annual support costs on a pro rata basis on written
notice.
-21-
(iii) For all other services, as may be provided under Article
1. SERVICES above, including training of DEI's employees conducted
in RSI designee facilities away from DEI's PLANT, DEI shall pay
RSI's reasonable costs in providing such services and shall
moreover be responsible for the travel and living expenses of DEI's
employees involved in such training when away from their regular
place of employment.
(iv) Service charges accruing under Paragraph 3(ii) above will
be invoiced on a calendar quarterly basis and shall be payable
within thirty (30) days of receipt of an invoice therefor. All
other service charges will be invoiced as incurred.
-▇▇-
▇▇▇▇▇▇▇▇ ▇
INTELLECTUAL PROPERTY PROVISIONS
FOR
SUBCONTRACTS
REQUIRED UNDER COOPERATIVE
AGREEMENT NO. DE-FC21-92MC29310
INTELLECTUAL PROPERTY PROVISIONS FOR SUBCONTRACTS
PAGE
----
1. NOTICE AND ASSIGNMENT REGARDING PATENT AND COPYRIGHT
INFRINGEMENT ................................................ 1
2. INTELLECTUAL PROPERTY INDEMNITY ............................. 1
3. ADDITIONAL TECHNICAL DATA REQUIREMENTS ...................... 2
4. RIGHTS IN TECHNICAL DATA .................................... 2
Note:
In these clauses, the term "Joint Venture" means Participant as defined at
clause 4(a)(9); and, the term "Cooperative Agreement" means Cooperative
Agreement No. DE-FC21-92MC29310 between Wabash River Coal Gasification
Repowering Project joint Venture and the Department of Energy as defined at
clause 4(a)(6).
i
1. NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT
(a) The Subcontractor shall report to both the Joint Venture and to the
Contracting Officer for the Cooperative Agreement, promptly and in
reasonable written detail, each notice or claim of patent or
copyright infringement based on the performance of this Subcontract
of which the Subcontractor has knowledge.
(b) In the event of any claim or suit against either the Joint Venture or
the Government on account of any alleged patent or copyright
infringement arising out of the performance of this Subcontract or
out of the use of any supplies furnished or work or services
performed hereunder, the Subcontractor shall furnish when requested
by the Joint Venture or the Contracting Officer for the Cooperative
Agreement all evidence and information in the possession of the
Subcontractor pertaining to such suit or claim. Such evidence and
information furnished to the Government shall be furnished at the
expense of the Government except where the Subcontractor has agreed
to indemnify the Government.
2. INTELLECTUAL PROPERTY INDEMNITY
(a) The Subcontractor shall indemnify both the Joint Venture and the
Government and their officers, agents, and employees against
liability, including costs, for infringement of U.S. Letters Patent
(except U.S. Letters Patent issued upon an application which is now
or may hereafter be kept secret or otherwise withheld from issue by
order of the Government) resulting from Subcontractor's (a)
furnishing or supplying standard parts or components which have been
sold or offered for sale to the public on the commercial open market;
(b) utilizing its normal practices or methods which normally are or
have been used in providing goods and services in the commercial open
market in the performance of the Subcontract; or (c) utilizing any
parts, components, practices, or methods to the extent to which the
Subcontractor has secured indemnification from liability. The
foregoing indemnity shall not apply unless the Subcontractor shall
have been informed as soon as practicable by the Joint Venture or the
Government of the suit or action alleging such infringement and shall
have been given such opportunity as is afforded by applicable laws,
rules, or regulations to participate in the defense thereof; and
further, such indemnity shall not apply to a claimed infringement
which is settled without the consent of the Subcontractor unless
required by final decree of a court of competent jurisdiction or
to an infringement resulting from addition to or change in such
supplies or components furnished or construction work performed for
which addition or change was made subsequent to delivery or
performance by the Subcontractor.
(b) The Subcontractor shall indemnify and save and hold harmless the
Joint Venture and the Government, including their officers, agents,
and employees acting within the scope of their official duties
against any liability, including costs and expenses for violation
by the Subcontractor of proprietary rights or copyrights arising
out of delivery or use of any data furnished or utilized by the
Subcontractor in the course of or under this Subcontract.
3. ADDITIONAL TECHNICAL DATA REQUIREMENTS
(a) In addition to the Technical Data specified elsewhere in this
Subcontract to be delivered, the Contracting Officer may, at any
time during the Cooperative Agreement performance or within 1 year
after completion of Phase III, call for the Subcontractor to
deliver any Technical Data first produced or specifically used in
the performance of this Subcontract, except technical data
pertaining to items of standard commercial design.
(b) The provisions of the Rights in Technical Data clause included in
this Subcontract are applicable to all Technical Data called for
under this Additional Technical Data Requirements clause.
Accordingly, nothing contained in this clause shall require the
Subcontractor to actually deliver any Technical Data, the delivery
of which is excused by Paragraph (e) of the Rights in Technical
Data clause.
(c) When Technical Data are to be delivered under this clause, the
Subcontractor will be compensated for appropriate costs for
converting such data into the prescribed form for reproduction, and
for delivery.
4. RIGHTS IN TECHNICAL DATA (Long Form)
(a) Definitions.
(1) "Technical Data" means recorded information, regardless of form or
characteristic, of a scientific or technical nature. It may, for
example, document research, experimental, developmental, or
demonstration, or engineering work, or be usable or used to define
a design or process, or to procure, produce, support, maintain,
2
or operate material. The data may be graphic or pictorial
delineations in media such as drawings or photographs, text in
specifications or related performance or design type documents or
computer software (including computer programs, computer software
data bases, and computer software documentation).
Examples of Technical Data include research and engineering
data, engineering drawings and associated lists,
specifications, standards, process sheets, manuals, technical
reports, catalog item identification, and related information.
Technical Data as used herein do not include financial reports,
cost analyses, and other information incidental to Subcontract
administration.
(2) "Proprietary Data" means Technical Data which embody trade
secrets developed at private expense, such as design procedures
or techniques, chemical composition of materials, or
manufacturing methods, processes, or treatments, including
minor modifications thereof, provided that such data:
(i) Are not generally known or available from other sources
without obligation concerning their confidentiality;
(ii) Have not been made available by the owner to others
without obligation concerning their confidentiality; and
(iii) Are not already available to the Government without
obligation concerning their confidentiality.
Appendix 2 to this Exhibit is Participant's assertion
of Proprietary Data categories.
(3) "Contract Data" means Technical Data first produced in the
performance of this Subcontract, Technical Data which are specified
to be delivered under this Subcontract, Technical Data that may be
called for under the Additional Technical Data Requirements clause
of this Cooperative Agreement, if any, or Technical Data actually
delivered in connection with this Subcontract.
(4) "Unlimited Rights" means rights to use, duplicate, or disclose
Technical Data, in whole or in part, in any manner and for any
propose whatsoever, and to
3
permit others to do so.
(5) "Government" means the Government of the United States of
America.
(6) "Cooperative Agreement" means Cooperative Agreement No.
DE-FC21-92MC29310 between Wabah River Coal Gasification Repowering
Project Joint Venture and the Department of Energy.
(7) "Know-how" means unpatented technical information, assistance,
training or expertise including drawings, designs, specifications,
blueprints, or manuals owned or controlled by the Subcontractor.
(8) "Facility" means the coal gasification combined cycle repowering
facility located at PSI Energy, Inc.'s Wabash River Generating
Station at West Terre Haute, Indiana, that is to be designed,
constructed, and operated as part of the Cooperative Agreement.
(9) "Participant" means the Wabash River Coal Gasification Repowering
Project Joint Venture and its successors and assigns. The Wabash
River Coal Gasification Repowering Project Joint Venture is a joint
venture consisting of Destec Energy, Inc., and PSI Energy, Inc.,
formed by Joint Venture Agreement dated April 30, 1991. This Joint
Venture Agreement has been amended and superseded by the Amended
Restated Joint Venture Agreement dated May 6, 1992.
(10) "Protected Clean Coal Technology Data" means Technical Data or
commercial or financial data first produced in the performance of
this Subcontract which, if it had been obtained from and first
produced by a Non-Federal party, would be a trade secret or
commercial or financial information that is privileged or
confidential under the meaning of 5 U.S.C. 552(b)(4), and which is
marked as being Protected Clean Coal Technology Data by a Party to
this Subcontract.
Appendix 3 to this Exhibit classifies Protected Clean Coal
Technology Data.
(11) "CGCC Technology" means all the patented and/or unpatented Technical
Data and know-how required to design, procure, construct, and
operate a coal gasification combined-cycle system, consisting of
the combination of the following basic elements and
4
process: an oxygen-blown, two-stage entrained flow gasifier,
capable of utilizing high sulfur bituminous coal to produce
synthetic fuel gas, a gas mixture composed substantially of
hydrogen and carbon monoxide; a gas conditioning system for
removing sulfur compounds and particulates; systems or mechanical
devices for improved coal feed; a combined-cycle power generation
system, wherein the conditioned synthetic fuel gas is combusted
in a combustion turbine generator to make electrical power and
wherein steam, produced from cooling synthetic fuel gas from a
heat recovery steam generator in the combustion turbine exhaust,
is used to feed a steam turbine generator to generate a second
source of electrical power; and the control system and algorithms
necessary to integrate and control the overall system as required
by the operator, as demonstrated under the Cooperative Agreement
including any improvements or modifications embodied during
commercialization by/or through the Participant which are
incorporated in the system.
(b) Allocation of Rights.
(1) The Government shall have:
(i) Unlimited Rights in Contract Data except as otherwise
provided below with respect to Proprietary Data or
Protected Clean Coal Technology Data. Contract Data
identified in Appendix 4 this Exhibit shall be made
available to the Government with Unlimited Rights;
(ii) The right to remove, cancel, correct, or ignore any
marking not authorized by the terms of this Subcontract on
any Technical Data furnished hereunder, if in response to
a written inquiry by DOE concerning the propriety of the
markings, the Participant with the assistance of the
Subcontractor fails to respond thereto within 60 days or
fails to substantiate the propriety of the markings. DOE
will notify the Participant of the action taken;
(iii) No rights under this Subcontract in any Technical Data
which are not Contract Data.
5
(2) The Participant and Subcontractor shall have:
(i) The right to withhold Proprietary Data in accordance with
the provisions of this clause; and
(ii) The right to use for their private purposes, subject to
patent, security, or other provisions of this Subcontract,
Contract Data first produced in the performance of this
Subcontract, provided the data requirements of this
Subcontract have been met as of the date of the private
use of such date. The Subcontractor agrees that to the
extent it receives or is given access to Proprietary Data
or other technical, business, or financial data in the
form of recorded information from DOE or a DOE Contractor,
including that of Participant, or Subcontractor, the
Subcontractor shall treat such data in accordance with any
restrictive legend contained thereon unless use is
specifically authorized by prior written approval of the
Contacting Officer; and
(iii) The right to ▇▇▇▇, with ▇▇▇'▇ concurrence, as Protected
Clean Coal Technology Data, any data first produced in the
performance of this Subcontract by its employees, in
accordance with paragraph (h) of this clause.
(3) Nothing contained in this Rights in Technical Data clause shall
imply a license to the Government under any patent or be
construed as affecting the scope of any licenses or other rights
otherwise granted to the Government under any Patent.
(c) Copyrighted material.
(1) The Subcontractor shall not, without prior written authorization
of the Patent Counsel, establish a claim to statutory copyright
in any Contract Data first produced in the performance of this
Subcontract. To the extent such authorization is granted, the
Government reserves for itself and others acting on its behalf a
royalty-free, nonexclusive, irrevocable, worldwide license for
Governmental purposes to publish, distribute, translate,
duplicate, exhibit, and perform any such data copyrighted by the
Subcontractor. To the extent such authorization is granted, the
6
Participant is granted a royalty-free, nonexclusive, irrevocable,
worldwide, transferable license to incorporate and utilize any
such data copyrighted by the subcontractor in the CGCC
Technology.
(2) The Subcontractor agrees not to include in the Technical Data
delivered under this Subcontract any material copyrighted by the
Subcontractor and not to knowingly include any material
copyrighted by others, without first granting or obtaining at no
cost a license therein for the benefit of the Government and the
Participant of the same scope as set forth in Paragraph (c)(1)
above. If such royalty-free licenses are unavailable and the
Subcontractor nevertheless determines that such copyrighted
material must be included in the Technical Data to be delivered,
rather than merely incorporated therein by reference, the
Subcontractor shall obtain the written authorization of the
Contracting Officer to include such copyrighted material in the
Technical Data prior to its delivery.
(3) The Subcontractor agrees that upon written application by the DOE
it will grant to the extent practicable a non-exclusive license
to responsible third parties in any copyrighted work that is
utilized, tested or embodied by the Subcontractor in the
performance of work under this Subcontract to practice the CGCC
Technology system which is the subject of the Cooperative
Agreement on terms and conditions which are reasonable under the
circumstances.
(d) Lower Tier Subcontracting. It is the responsibility of the
Subcontractor to obtain from the contractors and lower tier
subcontractors Technical Data and rights therein, on behalf of the
Government and the Participant, necessary to fulfill the
Subcontractor's obligations to the Government and the Participant with
respect to such data. In the event of refusal by a lower tier
subcontractor to accept a clause affording the Government and the
Participant such rights, the Subcontractor shall:
(1) Promptly submit written notice to the Participant and the
Contracting Officer of the Cooperative Agreement setting forth
reasons for the lower tier subcontractor refusal and other
pertinent information which may expedite disposition of the
matter; and
7
(2) Not proceed with the Subcontract without written authorization of
the Contracting Officer.
(3) As used in this Rights in Technical Data clause, the term
Contractor or Subcontractor includes any person or entity
responsible for fulfilling the Participant's obligations to the
Government with respect to technical data.
(e) Withholding of Proprietary Data. Notwithstanding the inclusion of the
additional Technical Data Requirements Clause in this Subcontract or
any provision of this Subcontract specifying the delivery of Technical
Data, the Subcontractor may withhold Proprietary Data from delivery,
provided that the Subcontractor furnishes in lieu of any such
Proprietary Data so withheld Technical Data disclosing the source,
size, configuration, mating and attachment characteristics, functional
characteristics, and performance requirements ("Form, Fit, and
Function" data, e.g., specification control drawings, catalog sheets,
envelope drawings, etc.), or a general description of such Proprietary
Data where "Form, Fit, and Function" data are not applicable. The
Government shall acquire no rights to any Proprietary Data so withheld
except that such data shall be subject to the "Inspection rights"
provisions of paragraph (f), the "Limited rights in Proprietary Data"
provisions of Paragraph (g), the "Availability of contact and other
data" provisions of paragraph (h), the "Commercialization of CGCC
Technology" provisions of Paragraph (i).
(f) Inspection rights. Except as may be otherwise specified in this
Subcontract for specific items of Proprietary Data, which are not
subject to this paragraph, the Contracting Officer's representatives,
at all reasonable times up to 3 years after final payment under the
Cooperative Agreement, may inspect at the Subcontractor's facility any
Proprietary Data withheld under Paragraph (e) for the purpose of
verifying that such data properly fell within the withholding
provisions of Paragraph (e) or for evaluating work performance.
(g) Limited rights in Proprietary Data. Except as may be otherwise
specified in this Subcontract as Technical Data which are not subject
to this paragraph, the Subcontractor shall, upon written request from
the Contracting Officer at any time prior to 3 years after final
payment under this Cooperative Agreement, promptly deliver to the
Government any "Proprietary Data" withheld pursuant to paragraph (e)
of the Rights in Technical Data clause of this Subcontract. The
following legend and no other is authorized to be affixed on any
"Proprietary
8
Data" delivered pursuant to this provision, provided the "Proprietary
Data" meets the conditions for initial withholding under Paragraph (e)
of the Rights in Technical Data clause. The Government will
thereafter treat the "Proprietary Data" in accordance with such
legend.
LIMITED RIGHTS LEGEND
This "Proprietary Data" furnished under Cooperative Agreement
DE-FC21-92MC29310 with the United States Department of Energy
(Project) may be duplicated and used by the Government with the
express limitations that the "Proprietary Data" may not be
disclosed outside the Government or be used for purposes of
manufacture without prior permission of the Participant, except
that further disclosure or use may be made solely for the
following purposes:
(1) This "Proprietary Data" may be disclosed for evaluation
purposes under the restriction that the "Proprietary Data"
be retained in confidence and not be further disclosed.
(2) This "Proprietary Data" may be disclosed to DOE
contractors or DOE consultants who are supporting DOE in
the Government's Clean Coal Technology program of which
this Cooperative Agreement is a part, for information or
use in performing work or monitoring progress under the
Project, and under the restriction that the "Proprietary
Data" be retained in confidence and not be further
disclosed; or
(3) This "Proprietary Data" may be used by the DOE or others
on its behalf for emergency repair and overhaul work at
the Facility under the restriction that the "Proprietary
Data" be retained in confidence and not be further
disclosed.
Non DOE personnel shall be required to sign and submit to
the Participant and Subcontractor a Non-Disclosure
Agreement (Appendix 1 of Attachment B) if Proprietary Data
must be disclosed to them.
This legend shall be marked on any reproduction of this data in
whole or in part.
(Note: Copy of "Appendix 1 of Attachment B" is attached as
Appendix 1 to this Exhibit.)
9
(h) Availability of contract or other data.
(1) The Subcontractor will, for the entire period of
Subcontractor's participation in the project at the
Facility (including operation of the Facility) throughout
the term of this Cooperative Agreement and for three years
thereafter, whether or not under a Government Cooperative
Agreement, keep and maintain all Technical Data, including
Proprietary Data and data obtained from subcontractors and
licensors, necessary to construct and/or operate the
Facility, and all data including business and financial
data necessary to evaluate the technical and economical
operation of the Facility. Subcontractor shall provide to
Participant such data as necessary to permit the
Government and its representative the right to inspect at
the Facility any data kept and maintained pursuant to this
paragraph.
(2) If the Subcontractor withdraws from this Subcontract or
defaults, the Government shall have the right to have all
data kept and maintained pursuant to Paragraph (1) above,
delivered to the Participant and the Government or
otherwise disposed of as the Contracting Officer shall
direct upon such termination. Any Proprietary Data
delivered pursuant to this paragraph shall be marked as
provided in Paragraph (g) above with the addition to the
legend thereof as follows: (4) This "Proprietary Data" may
be used by the Government or others, including the
Participant, on its behalf in confidence to the extent
necessary to enable completion of Phases II and/or III
under the Cooperative Agreement.
(3) The Subcontractor agrees to and does hereby grant to the
Government, including the Participant, or others acting on
its behalf, an irrevocable non-exclusive paid-up license
in and to any Proprietary Data of the Subcontractor which
are incorporated or embodied in the design or construction
or utilized in the operation of the Facility: (1) to
practice, or to have practiced, by or for the Government
at the Facility, and (2) to transfer such license with the
transfer of that Facility. Further, the Subcontractor
agrees to obtain an equivalent license from its
contractors, subcontractors, and licensors, if any. The
license granted pursuant to this subparagraph shall be for
the limited purpose of completion, repair or operation of
the demonstration facility.
10
(i) Commercialization of CGCC Technology.
(1) The Subcontractor agrees to obtain sufficient rights to
meet Participant's commitments to commercialize and/or
license CGCC Technology as set forth in the Cooperative
Agreement.
(j) The Subcontractor acknowledges that full and comprehensive
compliance of its reporting requirements under this Subcontract
may include disclosure of Proprietary Data to the Government for
exercise of the Government's rights in accordance with this
rights in Technical Data Clause. Recognizing that the Government
intends to publish information about the project which is the
subject of the Cooperative Agreement while preserving the
Proprietary Data of the Participant and the Subcontractor, the
Participant and Subcontractor agree to submit all deliverables as
stand-alone documents which do not contain Proprietary Data. Any
Proprietary Data needed for fullness of reporting shall be
included in a proprietary appendix containing data in which
either the Participant or the Subcontractor assert a proprietary
claim.
(k) Protected Clean Coal Technology Data.
(1) Notwithstanding any other provisions of this Rights in
Technical Data clause, the Participant or the
Subcontractor may, with concurrence of DOE, (i) claim and
▇▇▇▇ as Protected Clean Coal Technology Data any data
first produced in the performance of this Subcontractor by
their employees, and (ii) so claim and ▇▇▇▇, following
mutual agreement of the other party, any data first
produced in the performance of this Subcontract by the
other party's employees.
(2) Any such claimed Protected Clean Coal Technology Data will
be clearly marked as "Protected Clean Coal Technology
Data", will be treated as such, and, except as otherwise
provided herein, will not be published, disseminated or
disclosed to others outside the Government by the
Government for a period, as approved by DOE, of up to 5
years after completion of the operations phase of the
Cooperative Agreement without the prior written
authorization of the Participant. The marking shall
include the following legend and such other restrictions
or limitations on use or disclosure as may be applicable
or appropriate.
11
PROTECTED CLEAN COAL TECHNOLOGY DATA
This Protected Clean Coal Technology Data was produced
under a Cooperative Agreement identified as DE-FC21-
92MC29310 under a DOE Clean Coal Technology Project and
may not be published, disseminated or disclosed to others
by the Government until 5 years after completion of the
operations phase of the above Cooperative Agreement,
unless express written authorization is obtained from the
Participant. Upon expiration of the period of protection
set forth in this legend, the Government shall be marked
on any reproduction of this data, in whole or in part.
(3) Any such marked Protected Clean Coal Technology Data may
be used by the DOE or others on its behalf for emergency
repair and overhaul work at the Facility, subject to the
restrictions on disclosure, publication, and dissemination
in the Legend.
(4) Any such marked Protected Clean Coal Technology data
shall, upon the request of DOE, be made available to DOE
contractors or DOE consultants who are supporting DOE in
the Government's Clean Coal Technology program of which
this Cooperative Agreement is a part, subject to the
restrictions on disclosure, publication, and dissemination
in the Legend, for use in performing work or monitoring
progress under the Project.
(5) With respect to use of Protected Clean Coal Technology
Data by non DOE personnel as provided for in paragraphs
(3) and (4) above, non DOE personnel shall be required to
sign and submit to the Participant a Non-Disclosure
Agreement (Appendix 1) if such data must be disclosed to
them.
(6) The Participant shall have the right to license such
Protected Clean Coal Technology Data or include such
Protected Clean Coal Technology Data in a license with
other technology developed under this Clean Coal
Technology Project and, in accordance with paragraph (j)
of the Cooperative Agreement, agrees to license such
Protected Clean Coal Technology Data to responsible third
parties. Such licenses shall include terms and conditions
that are reasonable under the circumstances, including
obligations of confidentiality.
12
(7) The obligations of confidentiality and restrictions on
publication and dissemination shall end for any Protected
Clean Coal Technology Data:
(i) At the end of the protected period, as indicated
in the Legend, i.e. 5 years after completion of
the operations phase of the Cooperative Agreement;
(ii) If the data becomes publicly known or available
from other sources without a breach of the
obligations of confidentiality with respect to the
Protected Clean Coal Technology Data;
(iii) If the same data is independently developed by
someone who did not have access to the Protected
Clean Coal Technology Data and such independently
developed data is made available without
obligations of confidentiality;
(iv) Five years, as agreed to by DOE, after a
determination not to enter into the operations
phase of the Cooperative Agreement, or after the
operations phase is terminated prior to
completion; or
(v) If the Participant disseminates or authorizes
another to disseminate such data without
obligations of confidentiality.
13
APPENDIX 1
NON-DISCLOSURE AGREEMENT
I,______________________, as an employee of ______________________________,
operating under the terms and conditions of a contract or subcontract with the
United States Department of Energy (DOE), understand that during the course of
performing duties under such contract or subcontract, I may be furnished or
provided access to Proprietary data and/or Protected Clean Coal Technology Data
and/or information that is the property of _____________________and is submitted
for review or evaluation in the course of or under Cooperative Agreement
No._______________ between the ______________________ and DOE, and that such
data and/or information shall be used only as directed.
I certify that I will not disclose such Proprietary data and/or Protected Clean
Coal Technology Data and/or information to any non-DOE employees except those
who have executed same or similar Non-Disclosure Agreement nor to any DOE
employees without a need to know.
I certify that I will not disclose any Proprietary data and/or Protected Clean
Coal Technology Data and/or information except as provided herein, and that I
will take adequate precaution to protect any such data and/or information
relating to such technology which may come into my custody or control which is
marked with the Limited Rights Legend specified in paragraph 9(g) of the Rights
in Technical Data clause of the said Cooperative Agreement and with individual
pages marked with the legend, "Proprietary Data" and/or "Protected Clean Coal
Technology Data."
As used herein, Proprietary data and/or Protected Clean Coal Technology Data
and/or information means technical data to which I may be given access by
_________________, which may embody trade secrets developed at private expense,
such as design procedures or techniques, chemical composition of materials, or
manufactured methods, processes, or treatments including modifications thereof,
provided that such data:
(1) are not or have not been generally known or available from other sources
without obligation concerning their confidentiality; and
(2) have not been made available by the Participant or its subcontractors, to
others, including the U.S. Government, without obligation concerning their
confidentiality.
B1-1
This non-disclosure agreement shall not be assigned, delegated, nor any right or
duty hereunder be transferred to any other individual or organization. The
Participant may enforce this agreement.
_________________________ ____________________________
Date Signature
_________________________ _____________________________
Witness Company
B1-2
APPENDIX 2
PROPRIETARY DATA
The following shall constitute a definition of the categories of Technical data
which the Participant claims to be Proprietary data under the Rights in
Technical Data Clause 9. These data are available for inspection pursuant to
the provisions of Clause 9(f).
1. Computer source codes, design correlations and formulae, detailed design
calculations, and calculational procedures and techniques.
2. Design and manufacturing methodologies.
3. Correspondence, including reports, meeting minutes and notes, calculations,
and other documentation used for communications within and/or between the
Participant's organizations regarding commercial aspects of the Project.
4. Data, reports, or correspondence related to non-project activities,
including that related to other similar projects, to the extent such data,
reports, or correspondence are utilized in performance of work under this
Cooperative Agreement.
5. The control system details for the coal slurry preparation, coal
gasification, heat recovery, and fuel gas cleaning processing steps from
coal feed conveyor to gas turbine fuel flow. This includes computer
algorithms, computer software, computer software databases, computer
software documentation, theory, and hierarchy.
6. The theory, equations, and computer code describing the chemical
kinetics thermodynamics and heat, momentum, and mass transfer of the
relevant coal gasification, heat recovery, and fuel gas cleaning
processing steps from coal feed conveyor to gas turbine fuel flow.
7. Vendor/subcontractor Proprietary data supplied to the Participant.
8. Detailed gasification process heat and material balance data (flow,
pressure, temperature and key chemical components).
9. Detailed Piping and Instrumentation Diagrams (P&ID).
10. Facility operating procedures.
B2-1
APPENDIX 3
PROTECTED CLEAN COAL TECHNOLOGY DATA
The following shall constitute a definition of the categories of Protected Clean
Coal Technology Data as defined under the Rights in Technical Data Clause 9
provided that these data do not divulge or allow derivation of Proprietary data.
Pursuant to Clause 9(1), these data are classified for marking as Protected
Clean Coal Technology Data.
1. Correspondence, including reports, meeting minutes and notes, calculations,
and other documentation used for communications between the Participant and
the Participant's subcontractors regarding technical and commercial aspects
of the Project.
2. Correspondence, including reports, meeting minutes and notes, calculations,
and other documentation used for communications between the Participant and
the Participant's subcontractors regarding technical and commercial aspects
of the Project.
3. Summary Process Flow Diagram (SPFD), including heat and material balance
data (flow, pressure, temperature, and key chemical components) of major
interconnecting streams, for major process steps including the following:
Coal handling
Air separation
Slurry preparation
Gasification
High temperature heat recovery (syngas)
Particulate removal
Low temperature heat recovery and fuel gas saturation
Acid gas removal
Sulfur recovery
Tail gas incineration
Combustion turbine generator
Heat recovery steam generator
Steam turbine generator/condenser
Make-up/demineralized water
Cooling water
Sour water treatment
Gasification plant waste water treatment
4. Individual Process Flow Diagrams (IPFD) for each of the major process
steps.
5. Facility operating logs and laboratory analysis records.
6. Scope of supply specifications for Project equipment and subsystems, and
process equipment list identifying equipment manufacturers.
7. Detailed physical drawings of the Project and its components.
B3-1
8. Detailed Facility information related to capital cost for major equipment
components, capital cost by work breakdown structure tasks, and fixed and
operating costs listed by categories such as labor, fuel and feedstock,
chemicals, maintenance, supplies, etc.
9. General arrangement details of major equipment.
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APPENDIX 4
CONTRACT DATA WITH UNLIMITED RIGHTS
The following shall constitute a definition of Contract Data for which the
Government shall have Unlimited Rights pursuant to Clause 9(b) of the Rights in
Technical Data Clause provided that these data do not divulge or allow
derivation of Proprietary data or Protected Clean Coal Technology Data.
1. Physical and chemical properties of feed coal, feed coal slurry, slag,
recycle char, raw syngas, sour syngas, and sweet syngas.
2. Major equipment list, overall plot plans and representative elevation
drawings, and nominal capacities for major systems including, but not
limited to, air separation, coal preparation and feed, gasification and
slag removal, product gas cooling and steam generation, particulate removal
and recycle, desulfurization, sulfur recovery, gas turbine cycle, gas
turbine heat recovery, and steam generator cycle.
3. Summary Process Block Diagram (SPBD) depicting major process steps and
major interconnecting streams with qualitative descriptions of the process
steps.
4. Overall material and energy balance including stream data (flow, pressure,
and temperature) of the major interconnecting streams of the following
process blocks: coal gasification, combustion turbine generator, heat
recovery steam generator and steam turbine generator.
5. Total capital costs for the facility and total fixed and operating costs of
the Facility, and general economics of the CGCC Technology when applied to
commercial plants.
6. Operating performance data, start-up and operating experience, overall
plant and component availability, qualitative materials performance, and
qualitative control philosophy description for the Facility.
7. Compositions and flow rates of all solid, liquid, and gaseous streams
discharged to the environment, as required by and submitted to regulatory
agencies.
8. All other data generated under the Cooperative Agreement not otherwise
classifiable under the Rights in Technical Data Clause 9 as being
Proprietary data or Protected Clean Coal Technology Data. In the event
that the Participant inadvertently fails to ▇▇▇▇ any such data as
Proprietary Data or Protected Clean Coal Technology Data, upon notification
to the COTR the Participant shall have the right within ninety (90) days of
submission to DOE to redesignate such data as Proprietary Data or Protected
Clean Coal Technology Data as appropriate and said data will be treated by
the DOE as such.
B4-1
CERTAIN CONTRACT CLAUSES REQUIRED BY
COOPERATIVE AGREEMENT NO. DE-FC21-92MC29310
DEFINITIONS
PRIME CONTRACTOR shall mean the Wabash River Coal Gasification Repowering
Project Joint Venture, Destec Energy, Inc. or PSI Energy, Inc., as applicable.
CONTRACTOR shall mean that entity entering into a subcontract with the
Prime Contractor in connection with Cooperative Agreement No. DE-FC21-92MC29310.
EQUAL EMPLOYMENT OPPORTUNITY
For construction contracts over $10,000, the Contractor shall comply with
Executive Order 11246 of September 24, 1965 entitled "Equal Employment
Opportunity," as amended by Executive Order 11375 of October 13, 1967, as
supplemented in U.S. Department of Labor regulations (41 CFR Part 60) and any
amendments thereto as may be adopted hereafter.
ANTI-KICKBACK PROCEDURES
For all construction or repair contracts, the Contractor shall comply with
the ▇▇▇▇▇▇▇▇ Anti-Kickback Act (18 U.S.C. 874) as supplemented in U.S.
Department of Labor regulations (29 CFR Part 3) and any amendments thereto as
may be adopted hereafter.
CONTRACT WORK HOURS AND
SAFETY STANDARDS ACT--OVERTIME COMPENSATION
For construction contracts over $2,000 and for all contracts over $2,500
involving the services of mechanics or laborers. The Contractor shall comply
with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act
(40 U.S.C. 347-330) as supplemented by U.S. Department of Labor regulations (29
CFR Part 5) and any amendments thereto as may be adopted hereafter.
REPORTING REQUIREMENTS
The Contractor shall provide the Prime Contractor with all documents, books,
records or other information necessary for the Prime Contractor to comply with
Article XV of the Schedule of Articles of Cooperative Agreement No. DE-FC21-
92MC29310 and Attachment C, Federal Assistance Reporting Checklist, attached
thereto and incorporated by reference therein.
1
RECORDS RETENTION
For contracts over $10,000, the Contractor shall retain all financial and
performance records, supporting documents, statistical records, and other
records of the Contractor which the Contractor considers reasonably pertinent to
this contract. The period of required retention shall be from the date each
such record is received by the Contractor until three years after one of the
following dates, whichever is latest: Contractor's receipt of final payment
under this Contract; or the date of termination of this Contract. If any claim,
litigation, negotiation, investigation, audit, or other action involving the
records starts before the expiration of the three-year retention period, the
Contractor shall retain the records until such action is completed and all
related issues are resolved, or until the end of the three-year retention
period, whichever is later.
ACCESS TO RECORDS
For contracts over $10,000, the Prime Contractor, DOE, and the Comptroller
General of the United States, or any of their duly authorized representatives
shall have access to any books, documents, papers, or other records (including
those on electronic media) of the Contractor which are pertinent to this
contract. The purpose of such access is limited to the making of audits,
examinations, excerpts, and transcripts. The right of access described in this
paragraph shall last as long as the Contractor retains records which are
pertinent to this contract.
CLEAN AIR AND WATER
For contracts and subcontracts over $100,000, the Contractor and its
subcontractors shall comply with all applicable standards, orders, or
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)),
section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738,
Environmental Protection Agency regulations (40 CFR Part 15) and any amendments
thereto as may be adopted hereafter.
ENERGY POLICY AND CONSERVATION
The Contractor shall comply with all mandatory standards and policies relating
to energy efficiency contained in the energy conservation plan of the State of
Indiana issued pursuant to the Energy Policy and Conservation Act (42 U.S.C.
6201, ET SEQ.).
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SCHEDULE 1
SYSTEM CHARGES
SITE: Wabash River Coal Gasification Repowering Project,
Terre Haute, Indiana
SYSTEM DESIGN SPECIFICATIONS:
18 MOD CANS with programmable graphics
10 MOD5 COMPUTERS
4 MODSERVERS
and associated MOD5 SOFTWARE as described in the
Agreement.
CHARGES:
Charges for the SYSTEM supplied hereunder accrue as follows:
$286,188.00 on the SHIPMENT DATE;
$572,376.00 on the INSTALLATION DATE; and
$286,188.00 on the date the SYSTEM is released to
operations.
These charges shall be payable within sixty (60) days after
the date specified.