Contract for Engineering Procurement Construction

Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Hợp đồng tổng thầu EPC

CoNrn rcr FoR ENGINEERING. PROCUREMENT aNI SUPPT-Y BETWEEN MAN DTESEL SE, Grnn'raNY (AS SUPPLY CoNrnecron) AND ATLAS POWER LIMITED, PAKISTAN (As OWNER) *r,1.,ii i{qe3l:. iii ai ?f l.:: rc.il,j i.: TABLE oF CoNTENTS DEFINITI0NS I 8 9 SCOPE OF C0NTRACT RES Po NSIBILITI ES o r O rywnn RESPaNSIBILITIES O r S uppLy Conrnlcro n 11 DESIGN. t. ) 3. 4. 5. 6. '7 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. )t 23. 24. 25. ;';;,l j ;-l:l s:,1*l gi: "-)j)-l r'. nr,,. - STAFFAND LAB0R PLANT, MATENALS AND IFoRKMAN9HIP CoNrnIcr Prucn AND PAVMENT Co a aBNcnarr,tr DATE, D ELAv, Cntnen Ononns. NorasED IYARRANTY D E FA u LT, Tp nanl,qn o I,t INDEMNITIES FoRcE MAJEURE. 50 ASS IG N MEN?, S U B CO N TRA CNNG Noncns,ann CouuaNtca LI MI TATI0N O F L IABI L ITY D r,sPaTE R ES0I,UT{QN Pnoprunr,eny AND CoNFIDENTTAL INFqRMATT,N. ig 20 24 25 27 29 37 37 JJ 56 56 Scnnnul,ns ScnnnumNuunrn Drr.c.rLs SCHEDULE 1 TSCHNIcAL SpBCINCATIoNS oF FACILITY Scnrnulr 2 TrcsNrcal SPEcTFTcATIoNS Scntoulr3 PRoJEcr ScHeourp Scnrnuln4 Sne Derarrs SCHEDULE 5 NorUseo Scur'ouln 6 FORM oF L/C Scnnour,r 7 PPA RELEVANT PRoVISIoNS Scnonur,r 8 FoRu orDowN PeyueNr BoNo SCHEDULE 9 FORM OF PROGRESS REPORTS SCHEDULE 10 NoT USED SCHEDULE 11 Fonu orNorrce to CoprurNcE Scnrnur,r 12 Fonu or Coxrnqcr CoprprBrroN Centtplcatr Scnnour,n 13 DRAwTNGS, SpectrrcetloNs Rtvrpw PnocBounr SCHEDULE 14 Queurv AssuRANcE / Quernv CoNrnor Scnrntu,ri 15 FINAL DocUMENTATIoN Scnnour,n 16 PERMITS AND CoNSENTS FRoM ITELEVANT GOVERNMENTAL AUTHORITIES SCHEDULE 17 LIST oF AppRovED SuBcol.rrRAcroRs SCHEDULE 18 TECHNICAL STUDIES .r1;:' *l.ii, i:; r"'' \'1 1r.;,r,f; l;+',:,rl :. .:ii!4. .,:. I lr.i.:l:I: CONrnacT FoR ENcrNrrnrNG" PRoCUREMENT INn Suppr,y This coNrn{cr FoR ENGTNEERTNG, pRocuREMENT AND suppl,y (the contract) is made and entered into as of this 14'h day of October, 2007 by and between: MAN DIESEL sE, a company duly organized and existing under the laws of Germany, with oflice located at stadtbachstrasse l, 86153 Augsburg, Germany (the suppty contractor); and ATLAS PowER LIMITED, a company duly organized and existing under the laws of Pakistan with office located at 2nd Floor Federation House, Sharae Firdousi, Clifton, Karachi, 75600, Pakistan (the Owner); (the Supply Contractor and the Owner are hereinafter jointly referred to as the Parties or singularly as Party) REcITALS (a) WHEREAS, owner wishes to have the Supply contractor design, engineer, procure, manufacture and supply equipment to the Owner for a heavy fuel oil-fired diesel engine generating power facility, with a total capacity of 213.60 MW (neQ; o) WHEREAS, Supply contractor is inter alia in the business of providing design, engineenng, equipment procurement and off-shore equipment tuppiies for treavy fuei oil-fired diesel engine generating power facility projects; (c) WHEREAS, Owner wishes to conclude an agreement with Supply Contractor for the design, engineeing, procurement, supply and delivery of equipment and workshop testing ofthe afore-mentioned Facility related thereto; and (d) WHEREAS, the Parties desire to set forth the terms and conditions under which Supply conhactor will provide and owner will pay for such works and services. No% THEREFonE, in consideration of the mutual covenants herein contained, the receipt and sufficiency of which is hereby acknowledged, intending to be legally bound, the parties hereto agree as follows: DrrrmnoNs l. capitalized terms used in this contract, including the recital hereto, without other definition shall have the meanings specified hereunder, unless the context requires otherwise. 't,t' .:;; ;::. i,{ i: j;-r6:l g 1 .:i j22,i 1 i i!311i::a; Applicable Laws shall mean all laws, treaties, ordinances, rules, regulations and orders having force of law, and any authoritative interpretation ofsuch laws, treaties, ordinances, rules, regulations and orders issued by a competent court, arbinal tribunal or other governmental agency that directly or indirectly apply to the Facility or any supply, service or work thereof valid on the Effective Date. Applicable Permits shall mean all authorizations, consents, decrees, permits, waivers, privileges or approvals required to be obtained or maintained by the Supply Contractor in connection with Supply Contractor's obligations to be performed hereunder. Approved Design shall mean the design arrived at after the completion of the review procedure provided in Section 5.2 (Constuction Documents) and as per the Specifications. Business Day(s) shall mean business day(s) in the Country and in Germany. Change in Law shall mean: (a) the adoption, promulgation, repeal, modification or reinterpretafion after Effective Date by any Public Sector Entity of any Applicable Law of the Counky (including a final, binding and non-appealable decision ofany Public Sector Entity); or (b) the imposition by a Relevant Authority of any material term or condition in connection with the issuance, renewal, extension, replacement or modification of any Consent and Governmental Authorizatton after the Effective Date: or (c) the imposition by a Relevant Authority of any additional Conseint, that in the case of each of the above clauses establishes a change in either cost or revenue as a consequence of any requirement for the desigr of the Facility that is materially more restrictive than the most restrictive requirements (i) in effect as of the Effective Date, (ii) specified in any applications, or other documents filed in connection with such applications. for any Consent filed by any Party on or before the Taking Over, and (iii) agreed to by any Party in any agreement in the Project Documents. Change Ortler shall mean a written order to Supply Contractor pursuart to Section l0 hereof authorizing an addition, delehon or re\rslon rn the work any change m the C'ontract Price, and/or any adjustment of the Scheduled Taking Over Date. Commeutement Date shall have the meaning as definbd in Section 9. Completion Cost shall bear the meaning ascribed thereto in Section 15.2.5.1: Confidential Information shall bear the meaning ascribed thereto in Section 24.1 Consent shall mean all approvals, consents, authorisations, notifications, concessions, acknowledgements, licences (including the Generation License), \'i I ',. i. -':'::iii: .j11 ' ir;:a2.: .:. j j(;:l'if 'J pennits, decisions or similar items which is or are issued by a Relevant Authority and which the Owner or any of its contractors is required to obtain from any Relevant Authority. Construction Contract shall mean the agreement so entitled between the Owner and the Construction Contractor dated October 14.2007 for the construction, erection, installation, testing and commissioning of the Facility and each of its components. Construction Contractor shall mean Shirazi Trading Company (Private) Limited, a company duly organized and existing under the laws of Pakistan, with offrce located at 8th Floor, Adamjee House, I. I. Chundrigar Road, Karachi, Pakistan. Construction Documents shall mean all drawings, calculation, computer software (programs), samples, pattems, models, operation and maintenance manuals, and other manuals and information of a similar nature, relating to Works, to be submitted by the Supply Contractor to the Owner as required by the Specifications and Schedule 13 (Drawings, Specifications Review Procedure). Contract shall mean this Engineering, Procurement and Supply Contract, including all Schedules attached hereto and such further documents as may be expressly incorporated in the Contract with the consent of the Parties, including any Change Orders. Contract Completion Certilicate shall mean the certificate issued by the Owner's Representative under Section 14.10, in the form set out io Schedule 12 (Form of Contract Completion Certificate). Contract Period shall mean the period commencing from the date of receipt of the Down Payrnent and ending upon the complete performance of the respective obligations of each of the Parties under the Contrzct- Contract Price shall mean the amount payable to the Supply Contractor set forth in Secfion 8 and as adjusted pursuant to the terms ofany Change Order, ifapplicable. Contractor's Representative shall bear the meaning ascribed thereto in Section 4.7. Cost shall mean expenditures properly incurred (or to be incurred) by the Supply Contractor, whether on or ofl the Site, including overheads, insurance and similar charges also including profit. Country shall mean the Islamic Republic of Pakistan, treing the country in which the Site is located. Defects or Deficiencies shall mean, unless otherwise specifically stated and without limitatisn, any alesigns, engineering, Plant, Materials or suppl ies which fail to conform to the Specifications or the warranties given hereunder or are of improper or inferior workrnanship or are not as explicitly described herein. Disclosing Party shall bear the meaning ascribed thereto in Secfion 24.1. Down Payment shall bear the meaning ascribed thereto in Section 8.3.2. Down Payment Bond shall bear the meaning ascribed thereto in Section 4.2.1, whic\, shall be in the form set forth in Schedule 8 (Form of Down payment Bond). Down Payment Bond Expiry Date shall bear the meaning ascribed thereto in Section 4.2.2; Effective Date shall mean the date on which this contract shall be duly signed by both Parties. EUR shall mean the legal currency of the European Union. Facility shall mean the electricity generating facility, as described in the Specifications, to be constructed on Owner's Site in the Country. Final EIA Report shall bear the meaning ascribed thereto in Section 4.12.2. Force Majeure Event shall bear the meaning ascribed thereto in Section 19. Fuel Supplier shall mean Pakistan State Oil Company Limited, a company incorporated under the laws of Pakistan with its resistered office located at pSo House, Khayaban-e-Iqbal, Clifton, Karachi. Fuel supply Agreement shall mean the agreement so entitled entered into between the Fuel supplier and the owner dated 5ft october 200]. for the provision offuel for purposes of testing, commissioning and operating the Facility. GOP shall mean the Government of Islamic Republic of pakistan. Governmental Authorities shall mean any local or national agency, authority, departments, inspectorate, ministry, official court, tribunal, or public or statutory (whether autonomous or not) which has jurisdiction over the parties or all or any aspect of the subject matter of the Fro.lect. Governmental Authorization(s) and/or Governmental Approval(s) shall mean all permits' licenses, authorizations, consents, decrees, waivers, privileges, approvals, authorizations or exemptions frorn, and all filings with, and notices- io, utty Governmental Authority required in order for the Facility to be engineered, procured, conskucted and operated lawfully. Grid shall mean the electrical grid of the power purchaser. Hazardous l,taterials shall mean any toxic or hazardous- substance or waste regulated by Applicable Laws in the corurtry or in Supply contractor's country or stated as hazardous by the Governmental Authoritics. Implementation Agrcemcnt shall mcan means the asreenrent so entitled entered into between the government ofthe country and the ownir dated lgft september 2007. L/c shall mean the irrevocable letter of credit, issued by the rJC Issuing Banlg to be established by the owner in favour of the supply contractor in accordance with Section 8.3.5, in the form set our in Schedule 6 @orm of L/C\. as approved bv the' L/C Issuing Bank shall mean the National Bank of pakistan, Supply Contra ctor for issuance of the UC. Lapse of Consent shall mean any Consent (a) ceasing to remain in full force and effect and not being renewed or replaced within the time period prescribed by the Applicable Laws of the Country or (b) (other than a Specified Consent) not being issued upon application having been properly and timely made and diligently pursued, or (c) being made subject, upon renewal or otherwise, to any terms or conditions that materially and adversely affect a Party's ability to perform its obligations under any document included within the Project Documents, in each of the above instances despite such Party's compliance with the applicable procedural and substantive requirements as applied in a "non-discriminatory" (as explained in Section 12.4 of the Implementation Agreement) manner. Latent Defect shall mean any defect in any section of the works which did not or could not have become apparent upon a diligent and careful examination or testing by the Owner. Latent Defects Notification Period shall mean in respect of any section of the works, the period commencing on the date of expiry of the warranty period for any section of the works and continuing until the date which is 24 months thereafter, as may be extended under Section 14.13. Lender(s) shall mean the financial institutions extending financing to the owner in relation to the financing (including any refinancing) of the project (or any part thereof), together with their respective successors and assigns. Lenders' Representative shall mean any person engaged by any Lender in connection with the transactions contemplated hereby whose duties may include: (a) examination of the design and engineering of the equipment to be supplied to the country and (b) co" nfirmation of the information contained in each of the proeress Reports and any Payment Documentation and the Taking Over Certificate. Major Equipment shall mean the portion of the Works, as described in the Specifications as major equipment. Materials shall mean things of all kinds (other than plant) to be provided and inc.rporatcd in thc works by the Supply contractor, including thc supply-only items (if any), which are to be supplied by the Supply Contractor as specified in the Contract- Notice to commence shall mean the written notice issued to the Supply contractor by I'hc (Jwncr's ltcprcscn laLi vc as scl. lirr11 lu Scction 9.:1, , in thc lirrnr scl. lirlh in Schedule 11 (Form of Notice to Commence). o&M contract shall mctm lhe agreement so entitled to te entered into between the Owner and the Operator for the operation and maintenance of the Facility. operator shall mean the contractor appointed pursuant to the o&M contract for the operation and maintenznce of the Facililr. ownerf s Documents shall mean all documents issued by the owner to other contractors, or documents submitted by those contractors to the owner, or the proiect Documents, which pertain to the execution of the works under the project. Owner's Representative shall have the meaning as per Section 3.4. Parties shall mean collectively the Owner and the Supply Contractor. Party shall mean the Owner or the Supply Contractor, as the case may be. Payment Documentation shall bear the meaning ascribed thereto in section g.3.3. Person shall mean any individual, corporation, company, partnership. joint venture, association, trust, unincorporated organization or Government Authority. Plant shall mean new and clean machinery and apparafus intended to form or forming part of the works including the supply-only items (if any), which are to be supplied by the Supply Contractor as specified in the Contract. Power Purchaser shall mean National rransmission & Despatch company (Through central Power Purchasing Agency) on behalf of Ex-wApDA Distribution companies), a public limited company incorporated under the laws of pakistan, with its principal offrce at WAPDA House, Shahrah-e-euaid-e-Azam, Lahore, pakistan. Power Purchaser's Interconnection Facilities shall mean the facilities to be provided by the Power Purchaser for receiving power produced by the Facility. PPA Relevant Provisions or Power purchase Agreement shall mean the relevant provisions of the power purchase agreement dated 66 september 2007 entered into between the owner and the Power purchaier, as may be amended from time to time, which are contained in Schedule 7 (ppA Relevant provisions). Programme shall bear the meaning ascribed thereto in Section 4.14. Progress Reports shall mean the progress reports to be delivered by Supply Contractor on a monthly basis as set forth in Seution 4.4 antt in {.hc lorm sct forth irr Schedule 9 @orm of Progress Reports). F'ject shall mean the Facility tq be constl'lrcted on the Site in thc country. h'oJcct Docurucuts shall ritcult dre; PPA Rclcvaul. Provisions, thu O&Iv{ Conlr:aut alil the Fuel Supply Agreement. Project schedule shall mean the time frame as per schedulo 3 (projoct schodulo). Prudent Electrical Practices shall mean the use of equipment, practices or methods, as required to comply with applicable industry cooeq s-tandards, and regulations in the Country: (a) .to protect Power purchaser's system, employees, agents, and customers from malfunction occurring at the project and (b) to protect the Frolect ano ffiflH:r; ":H*.#?;:T:T.^, rrnders and agents at the project r,o,q. malfunctions occurring on the Grid. ,. t,i- ._, '-'- ,1:.'1.! ].: .l )-j :'::,.;,; ,:., Prudent Utility Practices shall mean those practices, methods, and equipment, in effect at the time of performance of the Works, that are commonly used on an international basis by the electric utility industry having regard to engineering and operational considerations in the country to engineer, design and manufacture, operate and maintain electric power generating equipment lawfully and with safety, dependability, efficiency and economy. Public Sector Entity shall mean (a) the federal government, the provincial govemment, any subdivision of either, or any local govemmental authority with jurisdiction over the owner, the Project, or any part thereof, or (b) any depanment, authority, instrumentality, agency, or judicial body of the federal govemment, the provincial govemment or any such local govemmental authority, (c) courts and tribunals in the country, and (d) any commission or independent regulatory agency or body havingjurisdiction over the Owner, the project or any part thereof. Receiving Party shall bear the meaning ascribed thereto in Section 24.1. Relevant Authority shall mean the department, authority, instrumentality, agency or other relevant entity from which a consent is to be obtained and any authority, body or other Person having jurisdiction under the Applicable Laws of the country with respect to the Project, as the case may be. Scheduled raking over Date shall mean March 3l't, 2009, as may be modified in accordance with this Contract. site shall mean the area of land provided by owner, on which the Facility is to be built and installed, as clearly described and outlined in Schedule 4 (Site Details). specifications shall mean the specifications for the design, engineering, manufacture, piocurcmcnt and supply of the Facility set forth in Schedule I (Technical Specilications of Facility) and Schedule 2 (Technical Specifications). Specified Consent shall bear the meaning ascribed thereto in the Implementation Agreement. Subcontractor shall mean any subcontractor of the Supply contractor, manufacturer or supplier for a part of the works or any person to whom a part of the works has been subcontracted in accordance with Section 20.2, and the legal successors in title to such Person, but not anv assignee of such person. supply contractor shall bear thc nrcani.g ascribetl tleretu in the Re.:itals. supply contractorrs Documents shall mean all project documents, which pertain to the desipgr, engineering, procurcment, rnanufacture and supply of equipment for the Project. supply contractor's Equipment shall mean all machinery apparatus and other things required for the execution and completion of the Works and the remedying of any Defects or Deficiencies, but does not include plant, Materiiti, Major Equipment or other things intended to form or forming part of the project. +" ''ti .: -i"* ' i;' :; ';.'\ 1 ". -,,-, :rr', ir.'.Z ,', :,,.,r,r,.',_ i: ,1 i., , . ii 'r.' .r . -,. j;j [...]... the Contract as being required for the proper performance of the Work as if performance of such work were ixpressly mentioned in the Conhact 4.21.3 supply contractor shall be solely and fully responsible for all acts, deeds and omissions of its representatives, employees, Subcontractors,vendors, suppliers and other personnel engagedby the Supply contractor for the performance of work 4.21.4 Supply Contractor... the language, for day-to-daycommunications 4.8 CONSTRUCTIoNDOCUMENTS The ConstructionDocumentsshall be in the custody and care of the Supply Contractor The Supply Contractor shall provide sufficient number of copies of Construction Construction Documentsfor the use of the Owner'sRepresentative, Contractoror as specifiedin the Specifications 4.9 COoRDINATIONoFW0RKS and 4.9 1 The SupplyContractor shallbe... manufacture, supply contractor'sinspections, of the tests and delivery; and h) any supporting information and documentaryevidence in respect of any requests owner's consentfor extension the Time for completion or for to t:-,t ;.: ' :: ' ,'-;; ::-,i-ri;::,- adjustmentto any other date or milestone set forth in this Contract or increase in the Contract Price 4.5 OrnrnReponrs 4 5 1 The Supply Contractor shall... thecoordination properexecution for of the Works ensuringthat such Work is proceedingaccordingJo thb Contract. The to Supply Contractorshall also be responsible coordinationwith other contractors for the extentspecifiedin the Specifications 4.9.2 The Supply Contractor shall obtain coordinate and submit to the Owner's Representative his information all details from Subcontractors for and suppliers of Major... requires for obtaining consents(including consents) relating to the works and this contract The Supply contractor shall promptly notifu the owner in a timely manner upon becoming aware of any changesin the information to be provided to the owner pursuant to this Contract 4.6 SUPPLY CONTRACTOR'S LICENSES Supply contractor shall be responsible for obtaining all Govemmental Approvals required to perform any... reasonabletirnes dur.ins tfue ContractPeriod " 5 1 , 3 The sup.plycontractor shall lrear rhe cost for modificationsor replacements of equipmcntthat may be necessitated reasonsattributable to the supply contractor for and as a result of the supply conhactor deficiencyin the totality and-accuracy of design engineering and ,\ 5.2 5.2.1 CONSTRUCTIONDOCUMENTS The Supply Contractor shall prepare Construction Documents... of the Time for Completion under another section of this Contract, unless the Supply Contractor has not complied with such Section; Change in Law that may result in delay of the Time for Completion If the Supply Contractor shall be delayed in the performanceof any of its obligations under this Contract by any of the matters specified hereunder where such delay shall occur before the Time for Completion,... sufficiencyof the ContractPrice Unlessotherwisestatedin the Contract, the Contract Price shall cover all his obligations under the Contract and all things n€ccssaryfor the proper design, execution and completion of the Works and the remedying anyDefects Deficiencies requiredby the Contract of or as 4.I4 PRoGRAMMEoFWoRK 4.14.1 Within forty five (45) days after Effective Date the Supply Contractor shall... major eventsand activitiesin the productionof Construction Documents and the periods for the pre-constructionreviews under Section 5.2 4.14.5 T"l'te Supply contractor shall, wheneverrequiredby the ouner's Representative, provide in writing, for information, a generaldescription of the arrangements and methods which the supply contractor proposesto adopt for the execution of the works No significant... its obligations under the Contract, the Supply Contractor shall establish and maintain good, prudent and intemationally acceptable financial and administrative practices,standards,proceduresand controls 4.21.2 Supply Contractor shall perform all of its other obligations under the Contract The Supply Contractor shall perform all such work not specifically mentioned in the Contract but which can be reasonablyinferred . Supply contractor in accordance with this Contract. Scopn OF CoNTRAcT For and in consideration of the amounts to be paid to Supply contractor by owner as hereinafter set forth,. CONTN-A.CTON SUPPLY CONTRACTOR'S GENERAL RESPONSIBILITIES Supply Contractor shall perform the Works in conformity with the requirements set forth in the Contract, including the. Procedure). Contract shall mean this Engineering, Procurement and Supply Contract, including all Schedules attached hereto and such further documents as may be expressly incorporated in the Contract