Cayman
Islands, B.W.I.
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0-25248
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98-0619652
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(State
or Other Jurisdiction of
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(Commission
File No.)
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(IRS
Employer Identification No.)
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Incorporation)
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Exhibit No.
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Description
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10.1
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Form
of Agreement for Desalinated Water Supply dated May 2005 among Water and
Sewerage Corporation, Consolidated Water Co. Ltd. and Consolidated Water
(Bahamas) Limited (formerly Waterfields Company
Limited).*
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10.2
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Letter
of Acceptance dated January 25, 2011 (effective January 31, 2011) between
Water and Sewerage Corporation and Consolidated Water Co.
Ltd.*
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10.3
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Proposal
letter dated December 8, 2010 addressed to the Water and Sewerage
Corporation.*
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99.1
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Press
release issued by Consolidated Water Co. Ltd. on January 31,
2011.
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*
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Portions
of these Exhibits have been omitted pursuant to a request for confidential
treatment.
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CONSOLIDATED
WATER CO. LTD.
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By:
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/s/ Frederick W.
McTaggart
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Name:
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Frederick
W. McTaggart
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Title:
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President
& CEO
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Date:
February 4, 2011
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CONSOLIDATED
WATER
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Waterfields
Company Limited
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Page
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GENERAL
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1
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2.
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DEFINITIONS
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1
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3.
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CONTRACTOR'S
CONSTRUCTION OBLIGATIONS
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5
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4.
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SITE
USAGE
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7
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5.
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TERM
AND DURATION
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7
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6.
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ELECTRICAL
POWER SUPPLY AND FUEL OIL SUPPLY
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8
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7.
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PURCHASE
BY THE CORPORATION OF SATISFACTORY DESALINATED WATER
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10
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8.
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BASIC
ELEMENTS OF THE PRICE PER 1000 IMPERIAL GALLONS DELIVERED
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13
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9.
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DELIVERED
AND ACCEPTED DESALINATED WATER AMOUNTS
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13
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10.
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ADJUSTMENTS
IN THE PAYMENTS FOR DESALINATED WATER DELIVERED
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15
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11.
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PARTIES
TO WHOM DESALINATED WATER MAY BE SOLD
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18
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12.
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PAYMENTS
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18
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13.
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UNSATISFACTORY
DESALINATED WATER
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19
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14.
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PLANT
"SERVICE" WATER
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19
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15.
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OWNERSHIP
OF THE PLANT AND DISPOSITION OF THE PLANT AT THE END OF THE CONTRACT
PERIOD
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20
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16.
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PLANT
BUYOUT PRICE SCHEDULE
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21
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17.
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SECURITIES
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21
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18.
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INSURANCES
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23
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19.
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DAMAGES
TO THE CORPORATION'S AND OTHERS PROPERTY
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27
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20.
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THE
CONTRACTOR'S RESPONSIBILITY FOR DESALINATED WATER AFTER DELIVERY TO THE
CORPORATION
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27
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21.
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LAND
FOR PLANT CONSTRUCTION PURPOSES
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28
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22.
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RESPONSIBILITY
FOR THE PHYSICAL CONDITION AND SECURITY OF THE PLANT DURING THE PERIOD OF
AGREEMENT
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28
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23.
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THE
CONTRACTOR'S REGULAR REPORTS TO THE CORPORATION
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28
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24.
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APPROVAL
OF THE CONTRACTOR'S OPERATING AND MAINTENANCE PERSONNEL
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28
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25.
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PERSONNEL
ENGAGED BY THE CONTRACTOR
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29
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26.
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WORK
PERMITS
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29
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27.
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CORPORATION'S
RIGHTS TO VISIT AND INSPECT THE PLANT
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29
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28.
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RECTIFICATION
OF DEFECTS AND DEFICIENCIES
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29
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29.
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NOTICE
OF CESSATION OF PRODUCTION
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30
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30.
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REPLACEMENT
OF DEFECTIVE MEMBRANES, MICRON SIZE CARTRIDGE FILTER ELEMENTS AND
MULTIMEDIA FILTRATION MATERIALS
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30
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31.
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CORPORATION'S
INSPECTION OF THE PLANT DURING THE CONSTRUCTION PERIOD
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30
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32.
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VERIFICATION
OF DESALINATED WATER QUANTITY, QUALITY AND PLANT PERFORMANCE
GUARANTEES
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31
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33.
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THE
CONTRACTOR'S OBLIGATIONS AT THE COMPLETION OF THE DESALINATED WATER
DELIVERY PERIOD
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33
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34.
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PLANT
DESIGN FOR MINIMUM WATER TREATMENT CHEMICALS, FUEL OIL AND ELECTRIC POWER
CONSUMPTIONS
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33
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35.
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CONSTRUCTION
PROGRESS REPORTS
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33
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36.
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CAPITAL
COST (VALUE) OF THE PLANT
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33
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37.
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CHANGE
ORDERS
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34
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38.
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LIQUIDATED
DAMAGES
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34
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39.
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UPKEEP,
LOSS AND DAMAGE
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34
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40.
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CONTRACTOR'S
RESPONSIBILITY TO ITS SUPPLIERS AND SUBCONTRACTORS
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34
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41.
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STANDBY
FEE
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35
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42.
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DEFAULT
AND TERMINATION
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35
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43.
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CONTRACTOR'S
REPRESENTATIONS
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37
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44.
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CONTRACT
DOCUMENTS
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38
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45.
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ENTIRE
AGREEMENT, BINDING EFFECT AND MODIFICATION
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39
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46.
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GOVERNING
LAWS AND ARBITRATION
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39
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47.
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TRANSFER
AND ASSIGNMENT
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39
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48.
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NOTICE
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39
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49.
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SIGNATURES
AND SEALS
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40
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APPENDIX
A
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42
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APPENDIX
B
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46
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APPENDIX
C
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50
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APPENDIX
D
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51
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APPENDIX
E
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57
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APPENDIX
F
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58
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1.
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GENERAL
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2.
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DEFINITIONS
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a.
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"
B$
" or "
Bahamian Dollars
" means
the lawful currency of the Commonwealth of The
Bahamas.
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b.
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"
Bahamas Electricity
Corporation
" or "
BEC
" means the Bahamas
Electricity Corporation.
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c.
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"
Bid
" means the bid
submitted by the Contractor to the Corporation for the construction,
ownership and operation of the Plant dated the 31
st
day of March, 2004 as amended on the 6
th
day of July, 2004, the 7
th
day of July, 2004, the 1
st
day of October, 2004, and the 21
st
day of April, 2005.
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d.
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"
Bidding and Contract
Documents
" means the bidding and contract documents contained in
Part 2 of the Tender Documents.
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e.
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"
Catastrophic Damage
"
means widespread and severe damage to the Plant caused by Force Majeure
which renders it inoperable.
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f.
|
"
Construction Period
"
means the period described in Clause 5.1(i)
hereof.
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g.
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The
"
Delivery Points
",
of the Desalinated Water shall be at the Corporation's existing storage
tanks, adjacent to the Plant Site. The "
Terminal Point
" for the
supply of Desalinated Water by the Contractor shall be the Water Tariff
Meter.
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h.
|
"
Demobilization Period
"
means the period described in clause 5.1(iii)
hereof.
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i.
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"
Desalinated Water
" or
"
Satisfactory Desalinated
Water
" shall be the desalinated water, as produced by the Plant,
and delivered to the Corporation having a chloride concentration not
exceeding 250 mg/L and meeting all quality requirements as stated on the
Plant Performance Guarantees, and meeting World Health Organization (WHO)
guidelines, latest issue as of December 1, 2003, for potable water,
with the exception of boron. The standard for boron shall be
less than 1.5 mg/1 for the purposes of this Agreement. The
Desalinated Water shall be free of any contaminants, in quantities, which
may be injurious to the public health, shall be odorless and colorless and
have a pleasant taste to the average person, and shall be fully safe and
suitable for ingestion by human beings, long term, all as set forth in the
said guidelines.
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j.
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The
"
Desalinated Water
Delivered per week
" shall be the total amount of Satisfactory
Desalinated Water delivered per week, as measured by the Water Tariff
Meter reading, at 12:00 noon on Monday of each week. (Daily
readings of Desalinated Water delivered shall also be taken at 12:00 noon
each day.)
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k.
|
"
Desalinated Water Delivery
Period
" means the period described in Clause 5.1(ii) and which
may be extended in accordance with the provisions of Clause 15.2
hereof.
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l.
|
"
Desalinated Water Sale Price
per MG
" means the price at which the Contractor has agreed to
supply and which the Corporation has agreed to pay for each KIG of
Desalinated Water supplied pursuant to the terms hereof and more
particularly described in Clauses 7 and 8 hereof and Appendix A
hereto.
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m.
|
"
Force Majeure
" in so far
as it affects the Contractor's supply and construction of the Plant and
the Contractor's operation of the Plant and production of Desalinated
Water, and the ability of the Corporation to take delivery of Desalinated
Water, is:
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i.
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war,
hostilities (whether war be declared or not), invasion, act of foreign
enemies;
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ii.
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rebellion,
revolution, insurrection, or military or usurped power, or civil
war;
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iii.
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ionizing
radiations, or contamination by radio-activity from any nuclear fuel, or
from any nuclear waste from the combustion of nuclear fuel, radio-active
toxic explosive, or other hazardous properties of any explosive nuclear
assembly or nuclear component
thereof;
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iv.
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pressure
waves caused by aircraft or other aerial devices traveling at sonic or
supersonic speeds;
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v.
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riot,
serious commotion or serious
disorder;
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vi.
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any
operation of the forces of nature or other catastrophe or act of God
against which an experienced contractor could not reasonably have been
expected to take precautions;
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vii.
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pre-existing
man-made environmental site contamination or impacts;
or
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n.
|
"
Guaranteed Interim Production
Quantity
" is the quantity of Satisfactory Desalinated Water that
the Contractor guarantees to deliver and the Corporation guarantees to
accept over a period of 24 consecutive hours during the Construction
Period as specified in
Clause 5.1(i).
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o.
|
"
Guaranteed Water
Quantity
" is the quantity of Satisfactory Desalinated Water that
the Contractor guarantees to deliver and the Corporation guarantees to
accept per week of 168 consecutive hours, at any time during the
Desalinated Water Delivery Period of this Agreement and more particularly
defined in Clause 9.3 hereof.
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p.
|
"
Guarantees of
Performance
" or "
Performance Guarantees
,"
are guarantees given by the Contractor to the Corporation in the form set
out in section 8 of Part 2 of the Bidding and Contract Documents and
dated 31
st
day of March, 2004 as amended on the 6
th
day of July, 2004, the 7
th
day of July, 2004, the 1
st
day of October, 2004, and the 21
st
day of April, 2005, of Satisfactory Desalinated Water delivery per 168
hours, Desalinated Water salinity, electricity kwh consumption per 1000
Imperial Gallons of Satisfactory Desalinated Water delivered, electricity
KVA Maximum Demand, fuel oil consumption per 1000 Imperial Gallons of
Satisfactory Desalinated Water delivered, maximum diesel engine noise and
air emissions, and chemical consumption in pounds of chemical per 1000
Imperial Gallons of Desalinated Water
delivered.
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q.
|
"
IGPD
" is Imperial
Gallons per day, "
IGPH
" is Imperial
Gallons per hour, "
IGPW
" is Imperial
Gallons per week, "
IGPM
" is Imperial
Gallons per minute, "
KIG
" is one thousand
Imperial Gallons, "
MIG
" is one million
Imperial Gallons. "
MIGD
" is millions of
Imperial Gallons per day, "
IG
" is Imperial
Gallons. One Imperial Gallon equals 1.201 U.S.
gallons.
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r.
|
"
KVA Maximum Demand
"
means the overall Plant maximum electrical demand in kilovolt amperes when
the Plant is producing the Rated
Capacity.
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s.
|
"
Letter of Acceptance
"
means the letter of acceptance dated the 11
th
day of March, 2005 issued by the Corporation to the Contractor and
delivered by the Contractor to the Corporation on the 11
th
day of April, 2005.
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t.
|
The
"
Plant
" shall
include the seawater reverse osmosis plant to be constructed and operated
on the Site pursuant to the terms hereof together with all equipment,
buildings, infrastructure, fixtures, appurtenances, auxiliaries,
ancillaries, supplies inventories and materials of the complete reverse
osmosis desalination plant, all within and including the plant enclosing
boundary fence, and otherwise, and including all pipework and equipment
and works necessary for supply of feedwater to the plant and disposal of
effluents (including desalinated water), from the plant, and an electrical
power supply system.
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u.
|
The
"
Rated Capacity
"
of the Plant is the volume of Satisfactory Desalinated Water which the
Plant can produce in one week (168 consecutive hours) as stated in the
Performance Guarantees at any time, during the Desalinated Water Delivery
Period of this Agreement.
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v.
|
The
"
Site
" shall be
the real property on which the Plant is constructed, operated and
maintained as shown in the Specifications, hereto, and including land
occupied by pipework and equipment necessary for feedwater supply to the
plant and effluents (including Desalinated Water) disposal from the
Plant.
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w.
|
The
"
Specifications
"
shall be specifications of the Plant contained in the Bidding and Contract
Documents, the Bid and more particularly described in Appendix F
hereto. The Plant shall be designed and equipped in accordance
with the Specifications, except only that where the Contractor wishes to
deviate from the Specifications, the Contractor shall obtain the written
consent of the Corporation.
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x.
|
"
Substantial Completion
"
means the completion of construction and performance testing of the Plant
at the Rated Capacity sufficient for the concomitant delivery of the
Guaranteed Water Quantity to the
Corporation.
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y.
|
"
Tender Documents
" means
the tender documents prepared by the WSC inviting the submission of bids
for the supply of water from a seawater reverse osmosis plant dated
December, 2003, as amended from time to
time.
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z.
|
"
Total Desalinated Water
Delivery Amount
" means the total amount of Desalinated Water that
the Contractor agrees to deliver to the Corporation over the entire length
of the Desalinated Water Delivery Period as defined in
Clause 3.
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aa.
|
The
"
Water Tariff
Meter
" or "
Revenue
Meter
") shall be a device, registering in Imperial Gallons, which
measures (totalizes) the total quantity of Desalinated Water delivered by
the Plant. The Water Tariff Meter shall be calibrated no less
often than once every six (6) months, or more often as reasonably required
by the Corporation, with such calibration to the satisfaction of the
Corporation, to maintain an accuracy not less than plus or minus one
percent when water flows through it at the obligated water rated divided
by 7, Imperial Gallons per day.
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bb.
|
"
Work
" means the work to
be carried out by the Contractor,
inter alia
, in
constructing and operating the Plant as more particularly described in
Part 5 of Section 2 of the Bidding and Contract
Documents.
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cc.
|
"
US$
" is United States
Dollars.
|
|
dd.
|
"
US
" means the United
States of America.
|
|
ee.
|
"
Unsatisfactory Desalinated
Water
" means desalinated water produced by the Plant (i) having a
chloride concentration exceeding 250 mg/L or (ii) failing to meet the
definition of Satisfactory Desalinated Water
herein.
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ff.
|
"
Windsor Plant
" means the
seawater desalination plant owned and operated by the Contractor and
located adjacent to the Nassau International Airport, New
Providence.
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3.1
|
The
Contractor shall, entirely at its own expense, design, engineer,
manufacture, fabricate, supply, deliver to Site, install, construct,
insure, bond, equip and outfit, commission and test the
Plant.
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3.2
|
As
a minimum, the Contractor shall submit to the Corporation, for approval,
which approval shall not be unreasonably withheld, the
following:
|
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a.
|
the
following drawings:
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1.
|
Site
plan
|
|
2.
|
process
flow
|
|
3.
|
general
equipment arrangement
|
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4.
|
one-line
electrical
|
|
5.
|
process
and instrumentation (P&I)
|
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6.
|
instrumentation
and loop sheets
|
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7.
|
structural
drawings for the Plant reverse osmosis
building
|
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8.
|
control
system block diagram
|
|
9.
|
conduit
and cable schedules
|
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b.
|
Drawings,
catalog cuts, pumps curves, calculations, etc. for the major equipment
submittals listed in
Appendix E.
|
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c.
|
Other
information as shall be reasonably required to satisfy the Corporation as
to the suitability and adequacy of the design and the Plant as a
whole.
|
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d.
|
Operation
and maintenance manuals together with drawings of the Plant as-built, in
sufficient detail to enable the proper and efficient operation,
maintenance, dismantling, re-assembly and adjustment of the
Plant. The Plant shall not be considered completed until such
operation and maintenance manuals, together with as-built drawings, have
been submitted and approved by the Corporation. The Contractor
shall be responsible for the periodic updating of the Corporation's sets
of operations and maintenance manuals for the Plant to reflect equipment
modifications, changes in parts lists, changes in operating procedures,
discontinued parts, etc. As a minimum, the Contractor shall update the
operations and maintenance manuals on an annual
basis.
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e.
|
Sample
forms for invoices and weekly and monthly
reports.
|
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3.3
|
Approval
by the Corporation, as per (a) through (e) of Clause 3.2 above, shall
not relieve the Contractor of any of his responsibilities under this
Agreement.
|
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3.4
|
In
the event of the Contractor desires to deviate from the Specifications,
the Contractor shall first obtain Corporation's written agreement to such
deviations.
|
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3.5
|
The
Contractor shall comply in full with all relevant Bahamian labor laws,
Bahamian Government Ordinances and the like and with all relevant Bahamian
and such other accepted construction codes, regulations and standards as
the Corporation may approve provided that all codes, regulations and
standards approved by the Corporation are notified to the Contractor in
writing.
|
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3.6
|
On
completion of construction of the Plant, the Contractor shall ensure the
complete Site is neat and tidy in all respects, with all trash, junk,
garbage, surplus spoil, surplus materials and the like properly disposed
of and removed to, approved permissible remote locations, all to the
satisfaction of the Corporation.
|
4.
|
SITE
USAGE
|
|
4.1
|
The
Corporation grants the Contractor an irrevocable license to use, occupy
and have access to the Plant Site at no cost to the Contractor during the
period that this Agreement is in force, for the purposes of performing its
obligations and exercising its rights under the Contract
Documents.
|
5.
|
TERM
AND DURATION
|
|
5.1
|
The
term of this Agreement shall consist of three periods,
viz:
|
|
i.
|
The
Construction Period
|
|
a.
|
Interim
Delivery Period 1 shall commence at the beginning of week 26 of the
Construction Period and expire at the end of Week 52 of the Construction
Period during which time the Contractor shall deliver 1.0 MIGD from the
Windsor Plant.
|
|
b.
|
Interim
Delivery Period 2 shall commence at the beginning of week 53 of the
Construction Period and expire upon Substantial Completion during which
time the Contractor shall deliver 1.0 MIGD from the Windsor Plant, plus
1.6 MIGD from the Plant.
|
|
ii.
|
Desalinated
Water Delivery Period
|
|
iii.
|
The
Demobilization Period
|
6.
|
ELECTRICAL
POWER SUPPLY AND FUEL OIL SUPPLY
|
|
6.1
|
During
the Desalinated Water Delivery Period, the high pressure reverse osmosis
pumps will be powered by diesel engines. Electrical power for
the operation of the balance of plant loads, which shall include all other
motors, controls, lighting, heating/ventilation/air conditioning ("HVAC"),
etc. will normally be purchased from the Bahamas Electricity
Corporation. In the event of a BEC power supply failure,
operation of the standby diesel generator will be permitted for the
duration of such power failure. The electricity generated by
the standby diesel generator will be metered and billed to the Corporation
in accordance with the provisions of Clauses 6.8 and 9.5 of this
Agreement.
|
|
6.2
|
Electrical
power costs, installation, supply and usage, during the Construction
Period shall be to the account of the
Contractor.
|
|
6.3
|
The
Contractor shall, at its own expense, representing part of the capital
cost of the Plant, pay BEC for the installation and connection charges for
the complete electrical power supply to the Plant, needed during the
Desalinated Water Delivery Period. Payment for this capital
cost shall be made in accordance with
Clause 12.1.
|
|
6.4
|
Subject
to certain provisos in this Agreement relating to electrical power
consumption per 1000 Imperial Gallons of Satisfactory Desalinated Water
delivered to the Corporation and KVA Maximum Demand per annum not
exceeding the Performance Guarantees made by the Contractor at the time of
its Bid, the Corporation shall incur the actual net billed costs of
electrical power (Kilowatt Hours and KVA Maximum Demand per annum)
consumed during the Desalinated Water Delivery
Period.
|
|
6.5
|
All
electrical power (kilowatt hours and KVA Maximum Demand) supplied to the
Plant during the Desalinated Water Delivery Period, by the BEC, shall be
metered by the BEC's tariff meter for the
Plant.
|
|
6.6
|
With
the exception of fuel oil for emergency use for the production of
electricity by the standby diesel generator as described in
Clauses 6.1 and 6.8 and for the high pressure reverse osmosis pumps
as described hereafter and the electricity charges and handling fee
described in Clause 6.4 above, the Contractor shall be responsible
for payment of all costs associated with the supply, delivery, unloading,
storage, and consumption of fuel oil and disposal of fuel oil sludge in an
environmentally responsible manner during the Desalinated Water Delivery
Period. The Contractor will purchase fuel oil on a contract
basis from a local fuel oil supplier. The Contractor is
required to solicit competitive bids for long term contracts for the
supply of fuel oil. The Contractor will be obligated to select
the lowest evaluated bid price for fuel oil. The Corporation
reserves the right to review the bids received by the Contractor and
approve the Contractor's selection of a fuel oil supplier prior to the
placement of a contract between the Contractor and the fuel oil
supplier. It is anticipated that the long term fuel oil supply
contract will have a term of three years. Since the fuel oil
supply contract will be competitively bid at regular intervals, price
variations due to escalation will be reflected in these fuel bid prices
and the terms of the fuel oil supply contract and no further adjustments
for escalation will be required. Fuel oil price adjustments
will be required periodically in accordance with the terms of the approved
fuel oil supply contract as outlined in the calculation procedure for
annual price escalation set out in
Appendix B.
|
|
6.7
|
In
respect to the foregoing, the Contractor shall provide and install as part
of the Plant an accurate and certified fuel oil metering system (U.S.
Gallons) to check all fuel oil deliveries and all quantities of fuel oil
used.
|
|
6.8
|
In
the event of BEC power supply failure or excursion, fuel oil used by the
standby diesel generator for the production of electricity for Desalinated
Water production shall be paid by the Contractor to the fuel oil supplier
and the Corporation will reimburse the Contractor in accordance with
Clause 9.5 of the Agreement.
|
7.
|
PURCHASE
BY THE CORPORATION OF SATISFACTORY DESALINATED
WATER
|
|
7.1
|
The
unit amount of Satisfactory Desalinated Water for billing and other
purposes shall be 1000 Imperial Gallons (1000 I.G.), expressed also as
KIG.
|
|
7.2
|
During
the Desalinated Water Delivery Period, the Contractor shall submit to the
Corporation a weekly report which summarizes the amount of Desalinated
Water (in KIG) delivered by the Contractor to the Corporation in that
week. The report shall also summarize all cost elements
associated with the supply of Desalinated Water by the Contractor during
the week which will be billed to the Corporation as part of the monthly
invoice. These cost elements shall be in accordance with the
current Desalinated Water Sale Price per KIG of Satisfactory Desalinated
Water delivered and shall include all costs listed in the Desalinated
Water Sale Price per KIG of Satisfactory Desalinated Water including fixed
charges - capital repayment (capital repayment and interest thereto),
general & administration (including administration, insurance,
bonding securities), operation & maintenance labor, overhead and
profit on labor, spare parts, replacement membranes, cartridge filters
& miscellaneous consumables, consumption of fuel oil, feedwater and
product water treatment chemicals, and cleaning
chemicals.
|
|
7.3
|
Invoices
shall be presented by the Contractor at the end of each month of the
Desalinated Water Delivery Period.
|
|
7.4
|
At
the commencement of the Construction Period and for the first three years
of the Desalinated Water Delivery Period, the Desalinated Water Sale Price
per KIG of Satisfactory Desalinated Water delivered by the Contractor to
the Corporation, shall be as stated in Appendix A, subject only to
adjustments in the price of fuel oil as stipulated in the terms of the
approved fuel oil supply contract.
|
n
|
fixed
charges
|
n
|
general
& administrative charges
|
n
|
labor
|
n
|
overhead
and profit on labor
|
|
7.5
|
For each monthly billing period,
the Contractor shall submit a report to the Corporation summarizing all
costs associated with the production of Desalinated Water which occurred
during the billing period. This report shall contain all
consumption figures, cost elements and cost calculations as specified for
the
weekly
reports in Clause 7.2 above. The report shall include all
relevant details for the billing period's electrical power consumption
from BEC in kilowatt hours (total amount), KVA Maximum Demand reading,
consumption (each) of feedwater and product continuously dosed water
treatment chemicals (pounds weight totals) and fuel oil. These
details shall be verified and certified by the Contractor to the
satisfaction of the Corporation, when so requested by the
Corporation. The Corporation reserves the right to attend the
Plant to witness readings relative to the above, on a daily basis and on
the last day of each billing
period.
|
|
7.6
|
The
Contractor shall at all times procure fully suitable water treatment
chemicals at the lowest available competitive commercial
prices.
|
|
7.7
|
* *
* * * The most current version of the above adjustment and
formulae available shall be used to calculate the
adjustments.
|
|
7.8
|
The
Contractor is responsible to include in its price per KIG of Satisfactory
Desalinated Water delivered all associated and miscellaneous costs
including, but not limited to any income tax, value added tax, duties or
taxes which may be imposed by any authority having power in the
jurisdiction wherein the Plant Site is located, and/or any other
jurisdiction in which the Contractor is doing
business.
|
|
7.9
|
The
Corporation is permitted to import in The Bahamas certain (but not all)
goods, materials, plant and equipment free of customs duty, according to
the Water and Sewerage Corporation Act, 1976. Correspondingly,
the Desalinated Water Sale Price per KIG delivered, shall be exclusive of
customs duty on materials, plant and equipment incorporated in the Plant
which are imported into The Bahamas, and on consumables imported into The
Bahamas for the operation of the Plant during the Desalinated Water
Delivery Period.
|
|
7.10
|
The
Contractor shall acquaint himself with and observe all the regulations
pertaining to the importation of materials and constructional plant
including Section 36 of the Water and Sewerage Corporation Act,
1976. The Contractor shall allow in his prices for all freight
brokerage and stamp duty on the materials and plant he
imports.
|
|
7.11
|
The
Contractor shall consign to the Corporation all constructional plant,
materials and equipment to be used for the construction of and
incorporation into the Plant which the Contractor imports into The
Bahamas. In addition, all consumables to be used in the
operation of the Plant during the Desalinated Water Delivery Period that
the Contractor imports into The Bahamas are to be consigned to the
Corporation.
|
|
7.12
|
The
Desalinated Water Sale Price per KIG as billed shall be inclusive of the
current Bahamian stamp tax for importation of all imported materials,
equipment and consumables, including items that are supplied and installed
for the construction and operation of the Plant. For all and
any purposes (as of March 2005) this stamp tax was 7% on the delivered
cost, but is subject to any alteration that the Bahamas Government may
make. Should the rate of stamp duty be increased (or
decreased), the price payable by the Corporation for each KIG of
Satisfactory Desalinated Water shall be increased (or decreased) in
accordance with accepted accounting procedures to reflect the cost impact,
to the Contractor on the production of Desalinated Water by reason of such
stamp tax rate change.
|
|
7.13
|
The
Contractor shall be solely responsible for the condition of, and any
damage to goods, materials, equipment and plant consigned to the
Corporation, as above, through to their delivery at the Plant Site or
elsewhere in The Bahamas.
|
|
7.14
|
Any
plant or materials imported into The Bahamas under this Agreement and not
incorporated in the Plant, or not consumed in the Plant, and not
re-exported from The Bahamas, shall be liable to assessment and consequent
payment of customs and import duties by the
Contractor.
|
|
7.15
|
The
Contractor shall not claim or be allowed a refund of customs duty and
allied charges on any materials, goods, plant or equipment purchases in
the Bahamas where customs duty and allied charges have already been
paid.
|
8.
|
BASIC
ELEMENTS OF THE PRICE PER 1000 IMPERIAL GALLONS
DELIVERED
|
|
8.1
|
The
capital cost repayment element shall be fixed during the Desalinated Water
Delivery Period and shall not incorporate escalation, handling charges or
profit.
|
|
8.2
|
Interest
on capital cost shall be fixed during the Desalinated Water Delivery
Period and shall not incorporate escalation, handling charges or
profit.
|
|
8.3
|
The
price of each continuously dosed water treatment chemical shall be stated
and must include stamp tax.
|
|
8.4
|
The
price of labor and labor allied costs shall be
stated.
|
|
8.5
|
Consumables
(other than electricity, fuel oil, and continuously dosed water treatment
chemicals, listed in items 8.3 and 8.4 above) shall include spare parts,
replacement membranes, replacement micron cartridge filter intervals and
multi-media filtration media and must include stamp
tax.
|
|
8.6
|
General
and administration costs shall be
stated.
|
|
8.7
|
The
cost of fuel oil consumed by the Plant shall be charged back to the
Corporation in accordance with Clause 6.6 and
Clause 9.5.
|
9.
|
DELIVERED
AND ACCEPTED DESALINATED WATER
AMOUNTS
|
|
9.1
|
The
Contractor confirms that the Plant has been designed and will be
constructed and equipped to afford a continuous production of Satisfactory
Desalinated Water, at all times during the Desalinated Water Delivery
Period of not less than 35,000,000 Imperial Gallons in any week of 168
consecutive hours.
|
|
9.2
|
The
Corporation shall take delivery from the Contractor during the Desalinated
Water Delivery Period of not more than 35,000,000 Imperial Gallons in any
week of 168 consecutive hours, prior to instruction by the Corporation to
increase the installed membrane capacity to 6 MIGD in accordance with
Clause 9.7 below.
|
|
9.3
|
The
Contractor guarantees to deliver to the Corporation, during the
Desalinated Water Delivery Period 28,000,000 Imperial Gallons of
Satisfactory Desalinated Water (the "Guaranteed Water Quantity" which term
shall include any increase in the Guaranteed Water Quantity in accordance
with the provisions of Clause 9.7 hereof) in any week of 168
consecutive hours.
|
|
9.4
|
The
Corporation guarantees to take delivery, from the Contractor, during the
Desalinated Water Delivery Period of at least the Guaranteed Water
Quantity in any week of 168 consecutive
hours.
|
|
9.5
|
In
the event(s) of BEC power supply failure(s) or excursion(s), occurring
during the Desalinated Water Delivery Period the standby electrical
generating set incorporated in the Plant shall be operated by the
Contractor during the period(s) that such BEC electrical power supply
failures, or excursions, occur. The Contractor will purchase
fuel from the fuel oil supplier selected by the Contractor in accordance
with the provisions of Clause 6.6 hereof and will be reimbursed by
the Corporation based on the kilowatt hours generated by the standby
diesel generator for the production of Desalinated Water during such
periods multiplied by the guaranteed fuel consumption for the standby
diesel generator in US gal/kwh contained in the Performance Guarantees
multiplied by the current contract price per US gallon for the fuel oil
provided that this electrical power consumption does not exceed the amount
contained in the Performance Guarantees. In addition, the
Corporation will reimburse the Contractor in a similar manner for kilowatt
hours generated during "exercise test" operation of the diesel generator
under load for one hour per week for maintenance purposes in the event
that operation of this unit is not required as a result of BEC power
supply failures or excursions. Fuel oil supply to the standby
diesel generating set shall be independently
metered.
|
|
9.6
|
In
the event(s) that a proven case of Force Majeure, prevents the Contractor
from delivering or the Corporation from taking delivery of, during the
Desalinated Water Period, the Guaranteed Water Quantity in a week of 168
consecutive hours, any shortfall in Guaranteed Water Quantity that this
represents shall reduce the Guaranteed Water Quantity for the week
accordingly. However, the Total Desalinated Water Delivery
Amount shall not be reduced on this
account.
|
|
9.7
|
The
Corporation reserves the right to instruct the Contractor in writing to
increase the Guaranteed Water Quantity to 35,000,000 Imperial Gallons of
Satisfactory Desalinated Water in any week of 168 consecutive hours,
PROVIDED that such instruction shall not be given earlier than 24 months
after the Authorization to Proceed, and no later than the fifteenth (15th)
anniversary of the date of Substantial Completion. In the event
that such instruction is given, the Contractor shall have twelve (12)
months from the date that such instruction was received by the Contractor
to increase the Guaranteed Water
Quantity.
|
10.
|
ADJUSTMENTS
IN THE PAYMENTS FOR DESALINATED WATER
DELIVERED
|
|
10.1
|
Liquidated
Damages
|
Weeks from
the issuance of
the authorization
to Proceed
(Weeks)
|
Guaranteed Interim
Production Quantity of
Satisfactory
Desalinated Water
(KIG)
|
Maximum No of
Days Liquidated
Damages Apply
|
Amount of
liquidated damages
per day in B$ if the
Guaranteed Interim
Production Quantity
of Satisfactory
Desalinated Water is
not delivered by the
deadline indicated in
column 1
|
|||
26
|
1000
|
30
|
3,600
|
|||
53
|
2600
|
55
|
5,760
|
|||
65
|
4000
|
70
|
5,040
|
|
10.2
|
Electrical
Power Consumption is Greater or Less than Performance
Guarantee
|
|
10.3
|
KVA
Maximum is Greater or Less than Performance
Guarantee
|
|
10.4
|
Corporation
Does Not Take Delivery of the Guaranteed Amount in a
Week
|
|
10.5
|
Contractor
Does Not Make Delivery of the Guaranteed Water Quantity in a
Week
|
11.
|
PARTIES
TO WHOM DESALINATED WATER MAY BE
SOLD
|
|
11.1
|
The
Contractor shall deliver and sell Desalinated Water produced by the Plant
to the Corporation only. The Corporation may sell the
Desalinated Water produced by the Plant to any
party.
|
12.
|
PAYMENTS
|
|
12.1
|
All
costs and prices in the Bid shall be expressed in Bahamian Dollars and all
payments will be made in Bahamian Dollars. A one-time payment
of B$250,000 for a technical services allowance shall be made by the
Contractor to the Corporation within 14 days of the receipt by the
Contractor of the Authorization to Proceed with the construction of the
Plant. An allowance of B$300,000 for BEC electrical power
supply has been included in the capital cost of the Plant given in
clause 36.1. The payment for the electrical power supply
shall be made to BEC by the Contractor upon receipt of a quote for the
same, and the balance, if any, shall be paid to the Corporation within 14
days of payment to BEC.
|
|
12.2
|
The
Contractor shall provide a weekly report to the Corporation, not later
than 2 business days following the completion of the week, in respect to
Satisfactory Desalinated Water delivered to the Corporation during the
week, for any outstanding sums chargeable to the Corporation by the
Contractor and containing all other matters described in
Clause 7.2.
|
|
12.3
|
For
the purposes of payment with respect to monthly billings for Desalinated
Water delivered, payment shall be made in Bahamian
Dollars. Subject to Clause 7.7, the Desalinated Water Sale
Price per KIG shall be adjusted during the Desalinated Water Delivery
Period on account of escalation in accordance with Appendix B to this
Agreement and the terms hereof.
|
|
12.4
|
Payments
due to the Contractor, from the Corporation as per the terms and
conditions of this Agreement, shall be made by the Corporation to the
Contractor, not later than 30 days following the date of receipt by the
Corporation of the corresponding
billing.
|
|
12.5
|
Any
payments due to the Corporation from the Contractor as per the terms and
conditions of this Agreement shall be made by the Contractor to the
Corporation, not later than 30 days following the date of receipt by the
Contractor of the corresponding billing. However, billings by
the Corporation shall not be made at intervals less than one
month.
|
|
12.6
|
Payments
due to the Contractor from the Corporation, and vice versa, if not paid by
the due date, shall, until paid, accrue interest at the current prime
interest rate as advised by the Central Bank of The
Bahamas.
|
|
12.7
|
i.
|
The
Contractor shall issue with each invoice statement a written undertaking
that all sums: owing to suppliers or sub-contractors as of the date
thereof have been or will be paid in accordance with the terms of the
Contractor's agreement with such suppliers or
subcontractors.
|
|
ii.
|
Should
the Contractor not make any payments due under part (i) of this sub-clause
within the stated period the Corporation shall be entitled to pay such
sums provided for in the sub-contract direct to the supplier or
sub-contractor provided the monies to be paid do not exceed approved
invoices to the Corporation submitted by the Contractor. The
Corporation shall deduct such payments from any sums due or which may
become due to the Contractor.
|
13.
|
UNSATISFACTORY
DESALINATED WATER
|
|
13.1
|
The
Plant shall be so designed and equipped to fully and unfailingly
automatically "dump" (dispose of to waste) all and any Unsatisfactory
Desalinated Water produced; that is Desalinated Water having (i) having a
chloride concentration exceeding 250 mg/L or (ii) failing to meet the
definition of Satisfactory Desalinated Water
herein. Unsatisfactory Desalinated Water shall under no
circumstances pass through the Water Tariff Meter or be billed or supplied
to the Corporation.
|
14.
|
PLANT
"SERVICE" WATER
|
|
14.1
|
Any
potable water fed into the Plant from the Corporation's adjacent potable
water systems, during the period of the Agreement, shall be metered by the
Corporation and paid for by the Contractor to the Corporation at the
Corporation's current New Providence public supply rates and
charges.
|
15.
|
OWNERSHIP
OF THE PLANT AND DISPOSITION OF THE PLANT AT THE END OF THE CONTRACT
PERIOD
|
|
15.1
|
Whilst
this Agreement is in existence and for the term hereof, ownership of the
Plant, together with any parts thereof, including without limitation, any
parts consigned to the Corporation in accordance with the provisions of
Clause 7.11 hereof, shall be vested 100% in the
Contractor.
|
|
15.2
|
At
the end of the Desalinated Water Delivery Period, the Corporation reserves
the right to extend the Desalinated Water Delivery Period for an
additional five (5) year period PROVIDED THAT where the Corporation wishes
to extend the Desalinated Water Delivery Period, notice thereof shall be
given to the Contractor at least six (6) months prior to the expiration of
the initial Desalinated Water Delivery Period. The Contractor
also reserves the right to present a proposal to the Corporation for
extension of the Desalinated Water Delivery Period at least six (6) months
prior to the expiration of the initial Desalinated Water Delivery
Period. If the Corporation and the Contractor agree to extend
the Desalinated Water Delivery Period, the price of Desalinated Water per
KIG shall be renegotiated based on the deletion of the fixed capital cost
and interest elements of the then current Desalinated Water Sale Price per
KIG. All other provisions of this Agreement shall remain in
force unless amended in writing by mutual agreement of the Corporation and
Contractor. Ownership of the Plant during the extended
Desalinated Water Delivery period shall continue to be vested in the
Contractor.
|
|
15.3
|
At
the end of the Desalinated Water Delivery Period or at the end of the
extended Contract period, if the Contract is extended in accordance with
the provisions of Clause 15.2
hereof:
|
|
i.
|
The
Contractor shall have a six (6) month Demobilization Period in which to
demobilize. The Contractor shall leave the Plant Site in neat,
clean and tidy condition with all junk, garbage, and other miscellaneous
rubbish removed to the satisfaction of the Corporation. All
materials to be removed from the site for disposal shall be disposed of in
an environmentally sound manner in compliance with the Laws of the
Commonwealth of The Bahamas and to the satisfaction of the
Corporation.
|
|
ii.
|
The
Contractor shall submit a comprehensive list of materials, equipment,
parts, chemicals and consumables, and facilities that the Contractor
intends to remove from the Site to the Corporation for review and
approval. The Corporation shall have 30 days to review the list
for completeness and to indicate in writing any items which the
Corporation would like to purchase. The Corporation shall be
given the first right of refusal to purchase any equipment and/or
facilities on the Contractor's list. The purchase price for all
items of equipment and facilities which the Corporation intends to
purchase will be negotiated between the Corporation and the
Contractor.
|
16.
|
PLANT
BUYOUT PRICE SCHEDULE
|
|
16.1
|
The
Corporation reserves the right to purchase and take possession of the
Plant in the circumstances described in Clause 42 "Default and
Termination". In the event of Plant purchase the Corporation
will pay the Plant Buyout Purchase Price which will be determined from the
agreed Plant Buyout Purchase Price Schedule which is attached as Appendix
C to this Agreement. The Contractor's proposed Plant buyout
purchase price schedule was required to be submitted with the Bid in
accordance with Section 3, Clause 11, Part 2 of the Bidding
and Contract Documents.
|
17.
|
SECURITIES
|
|
17.1
|
Construction
Performance Security
|
|
a.
|
A
bank guarantee in the form attached hereto in Appendix D and in an
amount equal to 10% of the total capital cost of the Plant contained in
the Bid.
|
|
b.
|
A
Performance Bond in the form set out in Appendix D in an amount equal
to 25% of the total capital cost of the Plant contained in the
Bid.
|
|
17.2
|
Performance
and Operations Security
|
|
a.
|
Bank
Guarantees, for each upcoming year of the Desalinated Water Delivery
Period, in an amount equal in value to 50% of the following
sum:
|
|
b.
|
A
Performance Bond, for each upcoming year of the Desalinated Water Delivery
Period, in an amount for each upcoming year, equal in value to 110% of the
following sum:
|
|
17.3
|
Securities
|
18.
|
INSURANCES
|
|
18.1
|
The
Contractor without limiting its obligations shall purchase and maintain,
for the Construction Period and the Desalinated Water Delivery Period,
comprehensive general liability and other insurances for the Work being
performed and furnished pursuant to the terms hereof such as will provide
protection from claims set forth below, which may arise out of or result
from the Contractor's performance and furnishing of the Work and the
Contractor's other obligations under this Agreement. This shall
apply whether the contracted obligations are to be performed or furnished
by the Contractor, any sub-contractor to the Contractor or by anyone
directly or indirectly employed by any of them to perform or furnish any
of the Work, or by anyone for whose acts any of them may be
liable:
|
|
a.
|
Claims
under worker's or workmen's compensation, disability benefits and other
similar employee benefit acts (as per The Bahamas statutory requirements
and otherwise);
|
|
b.
|
Claims
for damages because of bodily injury, occupational sickness or disease, or
death of Contractor's and sub-contractor's
employees;
|
|
c.
|
Claims
for damages because of bodily injury, sickness or disease, or death of any
person other than the Contractor's employees;
and
|
|
d.
|
Claims
for damages insured by personal injury liability coverage which are
sustained (a) by any person as a result of the Contractor's performance of
its obligations hereunder an offense directly or indirectly related to the
employment of such person by the Contractor, or (b) by any other person
for any other reason, and;
|
|
e.
|
Claims
for damages, other than to the Works themselves because of injury to or
destruction of tangible property wherever located, including loss of use
resulting therefrom.
|
|
18.2
|
Contractual
Liability Insurance
|
|
18.2.1
|
The
comprehensive general liability insurance required, as above shall include
contractual liability insurance applicable to the Contractor's obligations
herein. These obligations shall include the
following:
|
|
18.2.1.1
|
The
Contractor shall pay all license fees and royalties and assume all costs
incident to the use in the performance of the Work or the incorporation in
the Work of any invention, design, process, product or device which is the
subject of patent rights or copyrights held by others. If a
particular invention, design, process, product or device is specified in
the Bidding and Contract Documents for use in the performance of the Work
and if to the actual knowledge of the Corporation or its engineer its use
is subject to patent rights or copyrights calling for the payment of any
license fee or royalty to others, the existence of such rights shall be
disclosed by the Corporation in the Bidding and Contract
Documents. The Contractor shall indemnify and hold harmless the
Corporation and their engineer and anyone directly or indirectly employed
by either of them from and against all claims, damages, losses and
expenses (including attorneys' fees and court costs) arising out of any
infringement of patent rights or copyrights incident to the use in the
performance of the Work or resulting from the incorporation in the Work of
any invention, design, process, product or device not specified in the
Bidding and Contract Documents, and shall defend all such claims in
connection with any alleged infringement of such
rights.
|
|
18.2.1.2
|
To
the fullest extent permitted by laws and regulations, the Contractor shall
indemnify and hold harmless the Corporation and their engineer and
consultants, agents and employees from and against all claims, damages,
losses and expenses, direct, indirect or consequential (including but not
limited to fees and charges of engineers, architects, attorneys and other
professionals and court costs) arising out of or resulting from the
performance of the Work, provided that any such claim, damage, loss or
expense (a) is attributable to bodily injury, sickness, disease or death
or to injury to or destruction of tangible property (other than the Work
itself) including the loss of use resulting therefrom and (b) is caused in
whole or in part by any negligent act or omission of the Contractor, any
subcontractor, any person or organization directly or indirectly employed
by any of them to perform or furnish any of the Work or anyone for whose
acts any of them may be liable, regardless of whether or not caused in
part by a party indemnified hereunder or arises by or is imposed by laws
and regulations regardless of the negligence of any such
party.
|
|
18.2.1.3
|
In
any and all claims against the Corporation or their engineer or any of
their consultants, agents or employees, by any employee of the Contractor,
any subcontractor, any person or organization directly or indirectly
employed by any of them to perform or furnish any of the Work or anyone
for whose acts any of them may be liable, the indemnification obligation
under Clause 18.2.1.2 above shall not be limited in any way by any
limitation on the amount or type of damages, compensation or benefits
payable by or for the Contractor or any such subcontractors or other
person or organization under workers' or workmen's compensation acts,
disability benefit acts or other employee benefit
acts.
|
|
18.3
|
Corporation's
Liability Insurance
|
|
18.4
|
Property
Insurance
|
|
18.5
|
The
Contractor shall purchase and maintain such machinery insurance or
additional property insurance as may be required by applicable laws and
regulations which will include the interests of BEC, the Corporation, the
Contractor, sub-contractors, and consultants in the Work (if any) all of
whom shall be listed as insured or additional insured
parties.
|
|
18.6
|
All
the policies of the insurance (or the certificates or other evidence
thereof) required to be purchased and maintained by the Contractor shall
contain a provision or endorsement that the coverage afforded will not be
cancelled, materially changed or renewal refused until at least thirty
days (30) prior written notice has been given to the Contractor by
certified mail and shall contain waiver provisions as
follow:
|
|
i.
|
The
Contractor shall be responsible for purchasing and maintaining any
property insurance to protect their interests and that of the
sub-contractors or others involved in the Work in excess of any deductible
amounts. The risk of loss within the deductible amount will be
borne by the Contractor or others suffering any such loss. If
any of them wishes property insurance coverage within the limits of such
amount, each may purchase and maintain it at the purchaser's
expense.
|
|
ii.
|
Should
the Corporation request in writing that other special coverage be included
in the property insurance policy, the Contractor shall, if possible,
include such insurance. The cost thereof will be charged to the
Corporation by an adjustment in the capital cost by appropriate change
order (agreed by the parties and effected in the manner described in
Clause 37 hereof) or written amendment. Prior to
commencement of the Work at the Site, the Contractor shall, in writing,
advise the Corporation whether or not such other insurance has been
procured by the Contractor.
|
|
iii.
|
The
Contractor shall at all times furnish certified proof to the Corporation
that all insurances are kept updated and renewed and that insurance
premiums have been paid prior to their due
dates.
|
|
18.7
|
Waiver
of Rights
|
|
18.7.1
|
The
Corporation and the Contractor waive all rights against each other for all
losses and damages caused by any of the perils covered by the policies of
insurance provided in response to the above and any other property
insurance applicable to the Work, and also waive all such rights against
the sub-contractors, consultants (if any) and all other parties named as
insureds in such policies for losses and damages so caused. It
is required that each sub-contract between the Contractor and a
sub-Contractor will contain similar waiver provisions by the
sub-contractor in favor of the Corporation, the Contractor, consultants
(if any) and all other parties, named as insured. None of the
above waivers shall be extended to the rights that any of the insured
parties may have to the proceeds of insurance payable under any policy so
issued.
|
|
18.7.2
|
The
Corporation and the Contractor intend that any policies provided shall
protect all of the parties insured and provide primary coverage for all
losses and damages caused by the perils covered
thereby. Accordingly, all such policies shall contain
provisions to the effect that in the event of payment of any loss or
damage the insurer will have no rights of recovery against any of the
parties named as insured or additional insured, and if the insurers
require separate waiver forms to be signed by consultants (if any) the
Corporation will obtain the same, if such waiver forms are required of any
sub-contractor, the Contractor will obtain the
same.
|
|
18.8
|
Submission
of Claims
|
|
18.9
|
Acceptance
of Insurance
|
|
18.9.1
|
If
the Corporation has any objections to the coverage afforded by or other
provisions of the insurance required to be purchased and maintained by the
Contractor, the Corporation shall notify the Contractor in writing thereof
within 30 days of the date of delivery of such certificate to the
Corporation. The Corporation and the Contractor shall each
provide to the other such additional information in respect of insurance
provided by each as the other may reasonably request. Failure
by the Corporation or the Contractor to file any notice of objection
within the time provided shall constitute acceptance of such insurance
purchased by the other.
|
|
18.9.2
|
All
insurances shall be effected at least 30 days before their period of
validity commences, with copies of the policies and premium paid lodged
with the Corporation at the time of their
execution.
|
19.
|
DAMAGES
TO THE CORPORATION'S AND OTHERS
PROPERTY
|
|
19.1
|
The
Contractor shall assume full responsibility for any damage inflicted by
the Contractor or its agents on property owned by the Corporation and
others, due to and arising from, but not limited to, the Contractor's
construction, operation and maintenance of the
Plant.
|
20.
|
THE
CONTRACTOR'S RESPONSIBILITY FOR DESALINATED WATER AFTER DELIVERY TO THE
CORPORATION
|
|
20.1
|
Provided
that the Desalinated Water produced by the Plant conforms with the
definition of Satisfactory Desalinated Water, as herein, the Contractor
will assume no responsibility for the Desalinated Water, its storage, its
ultimate use and its disposal after it has passed through the water Tariff
Meter, with the exception of loss of product water, that is Desalinated
Water stored by the Corporation in the ground storage tank to be provided
by the Contractor in accordance with the terms of the Bid, due to the
Contractor's failure to properly maintain such ground storage
tank.
|
21.
|
LAND
FOR PLANT CONSTRUCTION PURPOSES
|
|
21.1
|
If
available the Corporation shall, at no cost to the Contractor, temporarily
allocate sufficient area adjacent to the Plant being constructed for the
Contractor's Plant construction purposes. On the completion of
construction of the Plant this area shall be left neat and clean, free of
all garbage, junk, trash, surplus spoil, and miscellaneous garbage by the
Contractor and shall not thereafter be available for use by the
Contractor. The Contractor shall be responsible for determining
the environmental condition of the said area prior to the Construction
Period and after the Desalinated Water Delivery Period, and these
assessments must be agreed by the Corporation. The Contractor
shall be responsible at its own expense for rectifying any environmental
damage it may cause during the Construction period and Desalinated Water
Delivery Period.
|
|
21.2
|
The
Corporation accepts no responsibility for the Contractor's labor,
construction materials, equipment, plant, or other belongings whilst in
the above mentioned construction area or any area allocated for the
Contractor during construction.
|
22.
|
RESPONSIBILITY
FOR THE PHYSICAL CONDITION AND SECURITY OF THE PLANT DURING THE PERIOD OF
AGREEMENT
|
|
22.1
|
Responsibility
for the physical condition and security of the Plant shall rest entirely
with the Contractor during the period of this Agreement. The
Contractor shall be responsible for determining the environmental
condition of the said area prior to and during the Desalinated Water
Delivery Period, and these assessments must be agreed by the
Corporation. The Contractor shall be responsible at its own
expense for rectifying any environmental damage it may cause during the
Construction period and Desalinated Water Delivery Period At all times
during the Desalinated Water Delivery Period the Contractor shall keep the
Plant Site neat, clean, tidy and free of
garbage.
|
23.
|
THE
CONTRACTOR'S REGULAR REPORTS TO THE
CORPORATION
|
|
23.1
|
During
the Desalinated Water Delivery Period the Contractor shall make monthly
reports to the Corporation regarding maintenance, operation, replacement
of parts (including membranes and cartridge filter elements), operating
periods, staff employed, incidents (if any), and any other inputs
considered necessary by the Contractor concerning the Plant in
general. The format of the above mentioned reports, their
contents, matter covered, etc., shall be approved by the
Corporation.
|
24.
|
APPROVAL
OF THE CONTRACTOR'S OPERATING AND MAINTENANCE
PERSONNEL
|
|
24.1
|
All
personnel employed by the Contractor in The Bahamas shall be fully
qualified and experienced in their particular
duties.
|
|
24.2
|
The
Contractor shall remove from the Plant, any of its suppliers or
sub-contractors employees to whom the Corporation take reasonable
objection.
|
25.
|
PERSONNEL
ENGAGED BY THE CONTRACTOR
|
|
25.1
|
Resident
persons engaged by the Contractor to construct, operate and maintain the
Plant during the Desalinated Water Delivery Period shall be (a) Bahamian
citizens; or (b) permanent residents of The Bahamas with the right to be
gainfully employed in the Bahamas; or (c) expatriates in possession of
work permits.
|
26.
|
WORK
PERMITS
|
|
26.1
|
Procurement
of work permits for expatriate personnel shall be the responsibility of
the Contractor, including payment for same, but the Corporation may offer
such assistance as it can in the procurement of work permits where
qualified Bahamians could not be
found.
|
27.
|
CORPORATION'S
RIGHTS TO VISIT AND INSPECT THE
PLANT
|
|
27.1
|
During
the Construction Period the Corporation and/or its representatives shall
have the right to enter upon the Plant Site at any reasonable time to
check and ensure that the Plant is being constructed, installed, equipped,
outfitted and otherwise, in accordance with Specifications and approved
design and requirements of this Agreement. During the
Construction Period the Corporation shall have the right, if it so
desires, to have its accredited inspectors at the
site.
|
|
27.2
|
During
the Desalinated Water Delivery Period, the Corporation shall have the
rights to (a) enter upon the Plant Site at any reasonable time to check
the condition, operation, maintenance, and efficiency of the Plant, and to
(b) visit the Plant Site with the Corporation's personnel or other
accredited representatives. The Contractor shall, when
requested by the Corporation in writing, familiarize the Corporation's
personnel or accredited representatives in the on-going operations and
maintenance of the Plant.
|
|
27.3
|
During
the Desalinated Water Delivery Period, the Corporation reserves the right
to station an engineer at the Plant to observe operations, review
maintenance logs, and monitor water quantity, quality, and the usage of
consumables. Office space of no more than 200 square feet shall
be provided at the Plant for use by the Corporation's
personnel.
|
28.
|
RECTIFICATION
OF DEFECTS AND DEFICIENCIES
|
|
28.1
|
The
Plant shall be kept at all times in satisfactory operating condition and
satisfactorily repaired by the
Contractor.
|
|
28.2
|
The
Contractor shall submit its proposed maintenance program to the
Corporation for approval, which approval shall not be unreasonably
withheld. All requests for approval shall be answered within 10
business days of the submission by the Contractor of such
request. If such request is not answered within the said 10
business day period, the maintenance program shall be deemed to have been
approved by the Corporation. During the Desalinated Water
Delivery Period, the Corporation reserves the right to inspect the Plant
logs on a quarterly basis to ensure that the Contractor is conscientiously
adhering to the maintenance
program.
|
|
28.3
|
Defects
and deficiencies in the Plant and its operation, maintenance and repair
shall be fully rectified by the Contractor. Catastrophic Damage
shall be rectified only upon agreement in writing between the Contractor
and the Corporation regarding the effect of such rectification on this
Agreement and the allocation of costs for
same.
|
29.
|
NOTICE
OF CESSATION OF PRODUCTION
|
|
29.1
|
Any
cessation of Desalinated Water production by the Plant exceeding one day,
due to any cause, shall be immediately notified to the Corporation by the
Contractor by facsimile or email (together with the time and reason for
such cessation and the estimated time needed to resume
production). On resumption of production the Contractor shall
notify the Corporation by facsimile or email of the date and time of such
resumption. Failure of the Contractor to so comply with the
above shall cause the Corporation to advise the Contractor by facsimile or
email of the dates and times of cessation and resumption of production as
assessed by the Corporation, which shall then
prevail.
|
|
29.2
|
The
Corporation shall notify the Contractor by facsimile or email of any
foreseen requirement on the part of the Corporation that would require
that Desalinated Water production should cease or be curtailed
temporarily.
|
30.
|
REPLACEMENT
OF DEFECTIVE MEMBRANES, MICRON SIZE CARTRIDGE FILTER ELEMENTS AND
MULTIMEDIA FILTRATION MATERIALS
|
|
30.1
|
During
the Desalinated Water Delivery Period, the Contractor shall replace all
membranes, micron size cartridge filter elements, and multi-media
filtration materials that are or have become defective or unfit for their
purposes.
|
31.
|
CORPORATION'S
INSPECTION OF THE PLANT DURING THE CONSTRUCTION
PERIOD
|
|
31.1
|
During
the Construction Period the Corporation shall have the right to enter upon
the Plant Site at any reasonable time to check and ensure that the Plant
is being constructed, installed, equipped, outfitted and otherwise, in
accordance with Specifications, approved design and requirements of this
Agreement. Any deficiencies, defects, and/or shortcomings noted
by the Corporation in regard to the foregoing, shall be notified to the
Contractor and upon receipt of the notification they shall be rectified by
the Contractor. Also, on receipt of the notification, the
Contractor shall advise within 5 business days what corresponding action
it will be taking.
|
32.
|
VERIFICATION
OF DESALINATED WATER QUANTITY, QUALITY AND PLANT PERFORMANCE
GUARANTEES
|
|
32.1
|
Requirements
for performance testing of the Plant prior to acceptance by the
Corporation are specified in Section 10.3.2.2 of the Bidding and
Contract Documents.
|
|
32.2
|
The
Contractor shall purchase, install and calibrate at its own expense the
following measurement and testing
devices:
|
|
n
|
the
Water Tariff Meter or Revenue Meter
|
|
n
|
a
Corporation's Check Meter (the "Corporation's Check
Meter")
|
|
n
|
a
Desalinated Water Quality Meter (the "Desalinated Water Quality
Meter")
|
|
32.3
|
In
event that the Water Tariff Meter and the Corporation's Check Meter differ
by more than two percent (2%), the calibration of such meters shall be
checked and brought into agreement by a certified factory representative
of the meter manufacturer at the Contractor's expense. In the
event that this calibration check indicates that the Water Tariff Meter
readings were in error, the correct amount of Satisfactory Desalinated
Water delivered during the period in which the incorrect measurements were
taken shall be determined by applying the meter correction factor,
calculated by the factory representative, to the amount of water produced
during the period over which inaccurate meter readings were
made. In the event that the parties hereto cannot agree on the
actual period during which the inaccurate readings were made, the period
during which the measurements are to be adjusted shall be the last
one-half of the period from the most recent previous calibration of the
Water Tariff Meter until the meter reading was corrected by the factory
representative. To the extent that such an adjustment covers a
period for which an invoice has been issued pursuant to Clause 12
"Payments", any corrections to the amount of such invoice as a result of
the flow correction adjustment shall be added to or credited against, as
applicable, the amount of the next invoice issued after such adjustment is
made.
|
|
32.4
|
In
the event the Desalinated Water Quality Meter indicates that the
conductivity exceeds a value corresponding to the maximum allowable stated
in the Performance Guarantee, the Desalinated Water shall be sampled
within one hour and analyzed using an approved analytical method for
chlorides to determine the chloride concentration in the Desalinated
Water. Chloride concentration analysis shall be completed
according to the testing procedures described in the Standard Methods for
Examination of Water and Wastewater, latest edition. The
Contractor shall notify the Corporation by telephone within twelve (12)
hours if analytical tests confirm that chloride levels exceed 250 mg/1 at
any time and shall furnish copies of all analytical test results to the
Corporation upon receipt.
|
|
32.5
|
The
Contractor shall prepare and deliver to the Corporation a monitoring and
sampling protocol for review and comment prior to Substantial Completion,
which shall be attached as Exhibit 1 hereto. The monitoring and
sampling protocol shall be based on the standards set forth in
Section 8 of Part 2 (Performance Guarantees) of the Bidding and
Contract Documents and shall include the point and frequency of sampling
for each constituent to be monitored. The Contractor shall
furnish copies of water quality monitoring results to the Corporation with
such frequency and such form as may be agreed upon. The
Contractor shall monitor and sample water in accordance with the
monitoring and sampling protocol and shall furnish the Corporation with a
summary of all analytical test results required during each invoice period
on a monthly basis. The Contractor shall also monitor
Desalinated Water quality on a continuous basis by measuring conductivity
with the Desalinated Water Quality Meter. During the
Desalinated Water Delivery Period (and prior to such period as is
appropriate) the Corporation shall have the right to enter upon the Plant
Site and take samples of and test the Desalinated Water for its compliance
with the above mentioned Desalinated Water quality requirements, listed
herein. Certified accuracy apparatus for conducting such test
shall be provided by the Contractor and be readily available to the
Corporation at all times during the period of this
Agreement. However, any such sampling or testing shall not
excuse the Contractor's compliance with this
Agreement.
|
|
32.6
|
The
Contractor shall have the calibration of the Water Tariff Meter,
Corporation's Check Meter, and Desalinated Water Quality Meter checked on
a scheduled basis by a manufacturer's certified factory representative in
accordance with the manufacturer's specifications, guidelines or
recommendations. Each time the meter is checked or calibrated,
the Contractor shall deliver to the Corporation a written certification,
which shall include the date and time at which the meter was calibrated
and the name, address, and telephone number for the manufacturer's
representative who performed the calibration. The Corporation
shall have the right to inspect and verify that such calibrations have
been performed. The Corporation shall also have the right to
collect samples and take measurements to confirm the accuracy of these
devices, at the Corporation's expense upon reasonable notification to the
Contractor. However, any such sampling or testing by the
Corporation shall not interfere with operation and maintenance of the
Plant. The Corporations sampling and testing shall not excuse
Contractor's obligations to calibrate and adjust all the measuring devices
as specified herein.
|
|
32.7
|
As
and when requested by the Corporation, during the Desalinated Water
Delivery Period, the Contractor shall, to the satisfaction of the
Corporation and as witnessed by the authorized Corporation personnel,
check the Plant Performance Guarantees contained in the
Bid.
|
33.
|
THE
CONTRACTOR'S OBLIGATIONS AT THE COMPLETION OF THE DESALINATED WATER
DELIVERY PERIOD
|
|
33.1
|
The
Contractor's obligations at the end of the Desalinated Water Delivery
Period shall be as described in Clause 15 of this
Agreement. In addition, the Contractor will be responsible for
rectifying environmental damage, if any, caused by the Contractor to the
Plant Site during the Agreement Period as described in accordance with
Clauses 21 and 22 of this
Agreement.
|
34.
|
PLANT
DESIGN FOR MINIMUM WATER TREATMENT CHEMICALS, FUEL OIL AND ELECTRIC POWER
CONSUMPTIONS
|
|
34.1
|
The
Contractor acknowledges and agrees that the Plant shall be designed and
equipped for minimum water treatment chemicals consumption, the practical
minimum fuel oil consumption, the practical minimum electrical power
consumption and KVA Maximum Demand over its operating life. All
the above shall be consistent with a durable and highly efficient
Plant. The Plant shall at all times be operated in the most
efficient manner to afford the lowest practical cost Desalinated Water to
the satisfaction of the
Corporation.
|
|
34.2
|
In
the event that the Contractor identifies any opportunities for reduction
of the Desalinated Water Sale Price per KIG through the application of new
technology, plant modifications to improve efficiency, improved operating
techniques or procedures, the Contractor and the Corporation shall share
equally the cost savings which would result from the implementation of
such improvements.
|
35.
|
CONSTRUCTION
PROGRESS REPORTS
|
|
35.1
|
During
the Construction Period the Contractor shall furnish to the Corporation,
at four (4) week intervals, a Plant procurement and construction progress
report, illustrated with suitable color photographs to the satisfaction of
the Corporation.
|
36.
|
CAPITAL
COST (VALUE) OF THE PLANT
|
|
36.1
|
The
Contractor advises the Corporation that the capital cost (value) of the
Plant completely constructed, equipped, outfitted, and tested for
reliability and performance is * * * * *. This capital cost
shall be in respect of the price of Desalinated Water per KIG delivered to
the Corporation and regarded as a fixed sum not subject to
escalation.
|
37.
|
CHANGE
ORDERS
|
|
37.1
|
If
prior to completion of construction of the Plant, but subsequent to
signing this Agreement, either the Corporation or the Contractor seeks
modifications or alterations to the Plant or the Specifications, such
modifications or alternations and their effect on the capital cost of the
plant and the length of the Construction Period, shall be first mutually
agreed to in writing by the Contractor before their
implementation. The effect of such modifications and
alterations on the Desalinated Water Sale Price per KIG delivered shall
also be agreed in writing between the Corporation and the
Contractor.
|
38.
|
LIQUIDATED
DAMAGES
|
|
38.1
|
In
the event that Satisfactory Desalinated Water is not delivered within the
period guaranteed by the Contractor, as stated herein, then the
Corporation shall be compensated by the Contractor, as per the
requirements of Clause 10.1
herein.
|
39.
|
UPKEEP,
LOSS AND DAMAGE
|
|
39.1
|
The
Contractor shall be fully responsible for the upkeep and maintenance of
all equipment and facilities which comprise the Plant including the ground
storage tank. Such upkeep and maintenance shall include
maintaining all equipment in functional condition, maintaining the Plant's
appearance and aesthetics, and maintaining compliance with all safety
requirements. The upkeep and maintenance shall include
corrosion protection and repainting of painted areas and items on which
the original painting has
deteriorated.
|
|
39.2
|
If
any loss or damage happens to the Work, or any part thereof, or materials
or equipment for incorporation therein during the Construction Period and
during the Desalinated Water Delivery Period for which the Contractor is
responsible for the care thereof, the Contractor shall, at his own cost
rectify such loss or damage such that the Plant conforms in every respect
with that described in the Bid. The Contractor shall also be
liable for any loss or damage to the Work caused by it in the course of
any operations carried out by it for the purpose of complying with its
obligations. Catastrophic Damage to the Plant shall be
rectified as described in
Clause 28.3.
|
40.
|
CONTRACTOR'S
RESPONSIBILITY TO ITS SUPPLIERS AND
SUBCONTRACTORS
|
|
40.1
|
In
no way shall the Corporation be responsible for any acts and omissions of
the Contractor's sub-contractors, suppliers and other persons and
organization performing or furnishing any of the Work under direct or
indirect contracts, arrangements or agreements with the
Contractor. Nothing in this Agreement shall constitute or
create any contractual relationship between the Corporation and the
Contractor's sub-contractors, suppliers and other persons and
organizations performing any of the Work, nor shall it create any
obligation on the part of the Corporation to pay, or to attend to the
payment of any monies due such sub-contractor, supplier, or other person
or organization.
|
41.
|
STANDBY
FEE
|
|
41.1
|
In
the event that due to circumstances outside the control of the Corporation
it becomes necessary for the Corporation to request cessation of operation
of the Plant for an indefinite period, the Contractor shall whilst the
period of such cessation of operation is valid, place the Plant on
standby. For such period, the Corporation shall pay to the
Contractor for each day of standby, the Contractor's per diem fixed
capital recovery and interest charge, and the Contractor's current per
diem labor charge element and associated general & administrative
charge element per KIG at the production rate in Imperial Gallons per day
stated in Appendix A. In the event that the Corporation
notifies the Contractor that the period of Plant shutdown will be in
excess of 30 days, the Contractor shall take cost reduction measures as it
deems appropriate and the Corporation will reduce compensation to 55
percent of the subtotal of fixed costs, excluding fixed charges-capital
repayment, as stated in Appendix A and escalated to the current rates
per Appendix B.
|
42.
|
DEFAULT
AND TERMINATION
|
|
42.1
|
If
either the Contractor or the Corporation is placed in provisional or final
liquidation or under judicial management other than for purposes of a
scheme of reconstruction or amalgamation, the other party shall be
entitled without prejudice to any other rights or remedies available at
law or in equity to terminate this Agreement. This shall be
achieved by giving notices in writing that this Agreement will be canceled
unless such situation is remedied within 30
days.
|
|
42.2
|
If
either party defaults under this Agreement, then the non-defaulting party
shall give the defaulting party written notice describing such
default. For all defaults the defaulting party shall be given
30 days from the receipt of such notice to cure such
default. However, if the default cannot be cured within 30
days, with the exercise of reasonable diligence, the non-defaulting party
may grant a reasonable additional period of time in which to cure such
default. If the defaulting party fails to cure such default
within the prescribed period, then, in addition to any other rights or
remedies available at law or in equity, the non-defaulting party may
consider the defaulting party in material breach of its obligations under
this Agreement and immediately terminate the
Agreement.
|
|
42.3
|
In
the event that the Contractor is unable for reasons within its
responsibilities under this Agreement, or unwilling, to deliver
Satisfactory Desalinated Water to the Corporation for a period exceeding
60 consecutive days, then the Contractor shall be considered in default of
its obligations under this Agreement (except only in the case of Force
Majeure applying to the
Contractor).
|
|
42.4
|
In
the event that the Corporation terminates this Agreement as a result of
the Contractor defaulting prior to Substantial Completion of the
construction of the Plant, the Corporation may retain or draw upon all of
the security provided in the Construction Performance Security, referred
to herein, to offset damages the Corporation incurs or reasonably expects
to incur as a result of the Contractor's
default.
|
|
42.5
|
In
the event the Corporation terminates this Agreement after Substantial
Completion of construction of the Plant, i.e. during the Desalinated Water
Delivery Period, as a result of the Contractor defaulting, the Corporation
in addition to any other rights or remedies available at law, in equity or
stipulated in this Agreement, may retain or draw upon all of the current
Performance and Operations Security, referred to herein, and upon payment
of then current Plant buyout purchase price described in Schedule C hereto
at the time of termination along with any outstanding amounts due to the
Contractor with regard to the Desalinated Water produced and delivered to
the Corporation, and fuel, chemicals, materials, spare parts and specific
spare items inventory less any amounts owed by the Contractor to the
Corporation, may take title to the Plant and its assets including but not
limited to stored Desalinated Water, fuel, chemicals, materials, spare
parts and specific spare items
inventory.
|
|
42.6
|
In
the event that this Agreement is terminated by the Contractor before
Substantial Completion of the construction of the Plant due to the
Corporation's default, or due to the order of the Government of The
Bahamas the Contractor will be entitled to all expenses for the
construction of the Plant arising before the date of termination, for all
reasonable and unavoidable expenses incurred before and after the date of
termination, and for any loss of profits on such expenses provided that
such loss of profits can be proven. The said expenses and loss
of profits shall be duly proved and supported by
documentation. After payment of the above expenses and loss of
profits by the Corporation to the Contractor, the Plant as it is
constructed, materials and all interest in the site shall be transferred
to the Corporation upon payment by the Corporation of one Bahamian
dollar.
|
|
42.7
|
In
the event that this Agreement is terminated by the Contractor after
Substantial Completion of construction of the Plant (i.e. during the
Desalinated Water Delivery Period) due to default by the Corporation, or
due to order of the Government of The Bahamas, then the Contractor will be
entitled to payment of then current Plant buyout purchase price described
in Schedule C hereto at the time of termination along with any outstanding
amounts due to the Contractor with regard to the desalinated water
produced and delivered to the Corporation, and fuel, chemicals, materials,
spare parts and specific spare items inventory less any amounts owed by
the Contractor to the Corporation.
|
|
42.8
|
The
Contractor shall co-operate with the Corporation, in regard to the
foregoing, as the Corporation exercises its rights under this
Clause 42, by:
|
|
a.
|
providing
to the Corporation all documentation necessary, relevant and
appropriate;
|
|
b.
|
executing
all documents necessary, relevant and appropriate to the transfer of title
in the Plant to the Corporation;
|
|
c.
|
providing
the Corporation with good and marketable title to the Plant free of all
liens and encumbrances; and
|
|
d.
|
leaving
the Plant in good operating
condition.
|
43.
|
CONTRACTOR'S
REPRESENTATIONS
|
|
43.1
|
In
the context of this Agreement, the Contractor makes the following
representations:
|
|
i.
|
The
Contractor has familiarized itself with the full nature and extent of the
documents pertaining to this Agreement, the work, the Site and all local
conditions, laws and regulations that in any manner affects the cost,
progress, performance and furnishing of the
Work.
|
|
ii.
|
The
Contractor acknowledges that the Corporation has only afforded typical
feedwater analysis, hydraulic, hydrogeological and geological data and
information for the Island of New Providence, and that the Contractor will
conduct his own specific Site investigation in these
matters. The finding, of the Contractor's investigations will
determine the precise nature, sizing, complement and extent of the Plant
as to be built and equipped by the Contractor, at the Contractor's expense
and at no increase in capital cost or the Desalinated Water Sale Price per
KIG and/or with no increase in the consumption rates or guarantee figures
as stated on the Plant Performance Guarantees. Specifically,
the Contractor stipulates that all the equipment required to meet the
Performance Guarantees given by the Contractor will be included with no
increase in Plant capital cost or in the Desalinated Water Sale Price per
KIG versus the amounts stated in Appendix A as adjusted by
Appendix B.
|
|
iii.
|
The
Contractor has given the Corporation notice of all conflicts, errors or
discrepancies that it has discovered in the Bidding and Contract
Documents, and the written resolution thereof by the Corporation is
acceptable to the Contractor.
|
44.
|
CONTRACT
DOCUMENTS
|
|
44.1
|
The
Contract Documents (the "Contract Documents") which comprise the entire
contract between the Corporation and the Contractor concerning the Work
consist of the following:
|
|
1.
|
this
Agreement.
|
|
2.
|
Appendix
A - Contract Water Sale Price of Desalinated
Water
|
|
3.
|
Appendix
B - Annual Price Adjustment
|
|
4.
|
Appendix
C - Plant Buyout Purchase Price
Schedule
|
|
5.
|
Appendix
D - Securities (as per Article 17 of this
Agreement)
|
|
6.
|
Appendix
E - Submittals During Construction
|
|
7.
|
Appendix
F - The Specifications
|
|
8.
|
The
Tender Documents and addenda (not
attached)
|
|
9.
|
Letter
of Acceptance and the Bid
|
|
10.
|
Correspondence
between the Corporation and the Contractor prior to issue of the Letter of
Acceptance, list as follows:
|
|
a.
|
Letter
from Contractor to Corporation dated July 6,
2004
|
|
b.
|
Letter
from Contractor to Corporation dated July 7,
2004
|
|
c.
|
Letter
from Contractor to Hon. Minister of Works and Utilities dated
October 1, 2004
|
45.
|
ENTIRE
AGREEMENT, BINDING EFFECT AND
MODIFICATION
|
|
45.1
|
The
Contract Documents shall be binding upon the parties and their respective
successors and assigns and may be amended or modified only by further
writing signed by both parties. The Contract Documents set
forth the entire agreement of the parties with respect to the subject
matter hereof and supersede any prior agreements and understandings
whether oral or written relating to the subject matter
hereof.
|
46.
|
GOVERNING
LAWS AND ARBITRATION
|
|
46.1
|
The
Contract Documents and their implementation shall be construed under and
governed by the laws of the Commonwealth of The
Bahamas.
|
|
46.2
|
The
settlement of disputes not amicably resolved between the Corporation and
the Contractor shall be settled by the courts of the Commonwealth of The
Bahamas.
|
47.
|
TRANSFER
AND
ASSIGNMENT
|
|
47.1
|
This
Agreement may only be transferred or assigned if and when the present
parties agree to the same in writing provided that the Corporation hereby
consents to the immediate transfer by Consolidated Water Co. Ltd. of its
rights and obligations under this Agreement, the Letter of Acceptance and
the Bid to Waterfields Company Limited upon the execution
hereof.
|
48.
|
NOTICE
|
|
48.1
|
Any
written notice required or permitted under the terms of this Agreement
shall be sent by certified or registered mail, by Facsimile, or email to
the following addresses:
|
THE CORPORATION
|
THE CONTRACTOR
|
|
General
Manager
|
The
General Manager
|
|
Water
and Sewerage Corporation
|
Waterfields
Company Limited
|
|
87
Thompson Boulevard
|
Windsor
Fields
|
|
P.O.
Box N-3905
|
P.O.
Box N-54030
|
|
Nassau,
Bahamas
|
Nassau,
New Providence, Bahamas
|
|
Facsimile
No.: 242-322-5080
|
Facsimile
No: 242-377-3459
|
|
Telephone
No.: 242-302-5509
|
Telephone
No: 242-377-3451
|
|
and
|
||
Consolidated
Water Co. Ltd.
|
||
P.
O. Box 1114GT
|
||
Grand
Cayman, Cayman Islands
|
||
British
West Indies
|
||
Facsimile
No: 345-949-2957
|
||
Telephone
No: 345-945-4277
|
49.
|
SIGNATURES
AND SEALS
|
/s/ Frederick W. McTaggart |
(Signature)
|
/s/ Gerrard Pereira | |
/s/ Frederick W. McTaggart |
(Signature)
|
/s/ Gerrard Pereira | |
(Witness)
(Signature)
|
/s/ Donald P. Demerite |
(Signature)
|
/s/ Robert P. Wells |
(Signature)
|
/s/ illegible |
(Witness
Signature)
|
TABLE
6-1A
BID
PRICE FOR DESALINATED WATER
Guaranteed
NRW Reduction Option
|
||||||
Plant
Production Rate, IGPD
|
4,000,000
|
Availability
Factor
|
1.0000
|
|||
Annual
Prod. kgal/yr
|
1,460,000
|
Annual
Interest Rate
|
*****
|
|||
Plant
Capital Cost
|
*****
|
Number
of Years
|
20
|
|||
Production
Costs (Annual)
FIXED
COSTS
|
Annual
Cost
|
B$/kigal
Total
|
||||
Fixed
Charges - Capital Repayment
|
*****
|
*****
|
||||
General
& Administrative (Note 1)
|
*****
|
*****
|
||||
Operation
& Maintenance Labor
|
*****
|
*****
|
||||
Overhead
& Profit on Labor
|
*****
|
*****
|
||||
SUBTOTAL
FIXED COSTS
|
*****
|
*****
|
||||
Note
1: includes allowance for bonding and insurance
|
||||||
CONSUMABLES
|
||||||
B$/US
gal
|
US
gal/klgal
|
|||||
Diesel
Fuel
|
1.094
|
*****
|
*****
|
*****
|
||
Chemicals
|
B$/lb
|
lb/klgal
|
||||
Flocon
|
*****
|
*****
|
*****
|
*****
|
||
Gaseous
Chlorine
|
*****
|
*****
|
*****
|
*****
|
||
Caustic
Soda
|
*****
|
*****
|
*****
|
*****
|
||
Calcite
|
*****
|
*****
|
*****
|
*****
|
||
Carbon
Dioxide
|
*****
|
*****
|
*****
|
*****
|
||
Cleaning
Chem
(low
& hi pH)
|
*****
|
*****
|
*****
|
*****
|
||
Spare
Parts
|
*****
|
*****
|
||||
Replacement
Membranes
|
*****
|
*****
|
||||
Cartridge
Filters & Misc Consumables
|
*****
|
*****
|
||||
Other
|
*****
|
*****
|
||||
Subtotal
Consumables-less Profit
|
*****
|
*****
|
||||
Overhead
& Profit on Consumables
|
*****
|
*****
|
||||
SUBTOTAL
CONSUMABLES
|
*****
|
*****
|
||||
TOTAL
BID PRICE:
|
*****
|
*****
|
1.
|
The
fixed charges including capital repayment and the associated interest
shall remain fixed with no escalation throughout the term of this
Agreement.
|
2.
|
General
and administrative costs including insurance and bonding shall be
escalated on the third anniversary of Substantial Completion and on every
subsequent anniversary during the term of this Agreement, in accordance
with the International Monetary Fund Consumer Price Index ("CPI") for The
Bahamas. The original price contained in the Bid for general and
administrative costs will be adjusted by the ratio of the current CPI to
the CPI on the second anniversary of Substantial
Completion.
|
3.
|
Operation
& Maintenance Labor shall be escalated on the third anniversary of
Substantial Completion and on every subsequent anniversary during the term
of this Agreement, based on the International Monetary Fund Consumer Price
Index for The Bahamas. The original price contained in the Bid
for operation & maintenance labor will be adjusted by the ratio of the
current CPI to the CPI on the second anniversary of Substantial
Completion.
|
4.
|
Overhead
and profit on labor ("OHPL") shall be escalated by the Consumer Price
Index ("CPI") for the Bahamas as described in 2 & 3
above.
|
5.
|
Fuel
oil: The Contractor will be required to purchase fuel oil under long term
contract. The formula to be used in Appendix B for fuel oil
price adjustment will be based on the terms of the current approved fuel
oil supply contract. Price adjustments will be made at
intervals which are determined by the terms of the fuel oil supply
contract and may occur on a more frequent basis than the annual escalation
interval specified for other consumables. Since the fuel oil
supply contracts will be competitively bid at regular intervals, price
variations due to escalation will be reflected in the prices contained in
the Bid and the terms set out in the Contract Documents and no further
escalation calculation is required.
|
6.
|
Chemical
prices shall be escalated * * * * * during the term of this Agreement,
based on the Industrial Chemical Index ("ICI") from the US Department of
Commerce Producer Price Index. The original price for chemicals
contained in the Bid will be adjusted by the ratio of * * * *
*. Chemical prices shall also be adjusted to account for
changes in the rate of stamp tax, if any, as applied to the escalated
chemical prices multiplied by the current exchange rate of Bahamian
Dollars to US Dollars at the prevailing rate of the Central Bank of The
Bahamas 30 days prior to commencement of the new year of operations on the
Desalinated Water Delivery Period annual anniversary
date.
|
7.
|
The
price for spare parts & equipment consumables shall include spare
parts, replacement membranes, cartridge filters & miscellaneous
consumables, etc. The price for spare parts &
equipment consumables shall be escalated * * * * * the term of this
Agreement, based on the Construction Cost Index for Plant ("CCI")
published by the US Department of Commerce. The original price
contained in the Bid for spare parts & equipment consumables will be
adjusted by the ratio of * * * * *. The spare parts &
equipment consumables price shall also be adjusted to account for changes
in the rate of stamp tax, if any, as applied to the escalated spare parts
& equipment consumables prices multiplied by the prevailing exchange
rate as described in 6 above.
|
8.
|
Overhead
and profit on consumables shall be escalated on an annual
basis. Overhead and profit on consumables shall always remain
at the same ratio to the subtotal of consumables less profit as the prices
contained in the Bid.
|
PRODUCTION
COSTS (ANNUAL)
|
FORMULA
FOR ADJUSTMENT
|
ADJUSTED
CONTRACT PRICE
($/kigal) |
FIXED
COSTS
|
||
Fixed
Charges - Capital Repayment
|
No
annual adjustment required
|
|
General
& Administrative
|
G&An=(CPIc/CPIs)*(G&Ao)
|
|
Operation
& Maintenance Labor
|
O&MLn=(CPIc/CPIs)*(O&MLo)
|
|
Overhead
& Profit on Labor
|
OHPLn=(CPIc/CPIs)*(OHPLo)
|
|
SUBTOTAL
FIXED COSTS
|
||
CONSUMABLES
|
||
Fuel
oil
|
In
accordance with the terms of the approved fuel oil supply agreement
pursuant to Clause 6.6.
|
|
Chemicals
|
CHEMn=(STc/STo)*(XRc)*(ICIc/ICIs)*(CHEMo)
|
|
Spare
Parts & Equipment Consumables
|
SPCEn=
(STc/STo)*(XRc)*(CCIc/CCIs)*(SPECo)
|
|
SUBTOTAL
CONSUMABLES-LESS PROFIT
|
||
Overhead
& Profit on Consumables
|
OHPCn=[(CHEMn+SPCEn)/(CHEMo+SPECo)]*(OHPCo)
|
|
SUBTOTAL
CONSUMABLES
|
||
TOTAL
PRICE FOR THE NEW CONTRACT YEAR
|
G&A
|
= General
& Administrative Costs
|
CPI
|
= International
Monetary Fund Consumer Price Index for the
Bahamas
|
O&ML
|
= O&M
Labor Cost
|
OHPL
|
= Overhead
& Profit on Labor
|
ST
|
= Stamp
Tax (percent)(i.e. STo=7.0%=.07)
|
CHEM
|
= Chemical
Cost per 1000 igal
|
XRc
|
= Current
exchange rate $B/$US at time of annual escalation
calculation
|
ICI
|
= Industrial
Chemical Index - US Dept Commerce Producer Price
Index
|
SPCE
|
= Spare
Parts and Equipment Consumables Cost per 1000
igal
|
CCI
|
= Construction
Cost Index for Plant - US Dept of
Commerce
|
OHPC
|
= Overhead
& Profit on Consumables
|
c
|
= tax
rate or index on the last anniversary of Substantial
Completion
|
o
|
= tax
rate or price contained in the Bid
|
s
|
= index
on the * * * * *
|
n
|
= index
or price for the new operating
year
|
BUYOUT
PURCHASE PRICE
|
|
END
OF WATER DELIVERY PERIOD *:
|
BUYOUT
PURCHASE PRICE
|
Year
1
|
* *
* * *
|
Year
2
|
* *
* * *
|
Year
3
|
* *
* * *
|
Year
4
|
* *
* * *
|
Year
5
|
* *
* * *
|
Year
6
|
* *
* * *
|
Year
7
|
* *
* * *
|
Year
8
|
* *
* * *
|
Year
9
|
* *
* * *
|
Year
10
|
* *
* * *
|
Year
11
|
* *
* * *
|
Year
12
|
* *
* * *
|
Year
13
|
* *
* * *
|
Year
14
|
* *
* * *
|
Year
15
|
* *
* * *
|
Year
16
|
* *
* * *
|
Year
17
|
* *
* * *
|
Year
18
|
* *
* * *
|
Year
19
|
* *
* * *
|
Year
20
|
* *
* * *
|
To:
|
|||
[name
of Employer]
|
|||
[address
of Employer]
|
|||
WHEREAS
|
|||
[name and address of
Contractor]
|
|||
(hereinafter
called "the Contractor") has undertaken, to execute
|
|||
[name
of Contract and brief description of Works]
|
|||
(hereinafter
called the "Contract");
|
|||
AND
WHEREAS it has been stipulated by you in the said Contract that the
Contractor shall furnish you with a Bank Guarantee by a recognized bank
for the sum specified herein as security for compliance with his
obligation in accordance with the Contract;
|
|||
AND
WHEREAS we have agreed to give the Contractor such a Bank
Guarantee;
|
|||
NOW
THEREFORE we hereby affirm that we are the Guarantor and responsible to
you, on behalf of the Contract, up to a total of
|
|||
[amount
of Guarantee and
|
|||
currency
in which it is payable]
|
|||
[in
words], such sum being
|
|||
payable
in the circumstances described in the Contract and in accordance with the
terms hereof, and we undertake to pay you, upon your first written demand
and without cavil or argument, any sum or sums within the limits of
_______________________ [amount of Guarantee] as aforesaid without your
needing to prove or to show grounds or reasons for your demand for the sum
specified herein.
|
SIGNATURE
AND SEAL OF THE GUARANTOR
|
NAME
OF THE BANK
|
(1)
|
complete
the Contract in accordance with its terms and conditions;
or
|
|
(2)
|
obtain
a bid or bids from qualified Bidders for submission to the Employer for
completing the Contract in accordance with its terms and conditions, upon
determination by the Employer and the Surety of the lowest responsive
bidder, arrange for the contract between such Bidder and Employer and make
available as work progresses (even though there should be a default or a
succession of defaults under the contract or contracts of completion
arranged under this paragraph) sufficient funds to pay the cost of
completion; but not exceeding, including other costs and damages for which
the Surety may be liable hereunder, the amount set forth in the first
paragraph hereof; or
|
|
(3)
|
pay
the Employer the amount required by the Employer to complete the Contract
in accordance with its terms and conditions up to a total not exceeding
the amount of this
Bond.
|
On behalf of
|
|
(Contractor - Corporation)
|
|
By
|
|
In the capacity of
|
|
In the presence of
|
|
Signed on
|
|
On behalf of
|
|
(Guarantee/Sureties)
|
|
By
|
|
In the capacity of
|
|
In the presence of
|
To:
|
|||||||
[name
of Employer]
|
|||||||
[address
of Employer]
|
|||||||
WHEREAS
|
|||||||
[name and address of Contractor] | |||||||
(hereinafter
called "the Contractor") has undertaken, in pursuance of Contract No.
__________________
|
|||||||
to execute |
[description
of Contract and brief
|
||||||
description
of Works]
|
|||||||
(hereinafter
called the "Contract");
|
|||||||
AND
WHEREAS it has been stipulated by you in the said Contract that the
Contractor shall furnish you with a Bank Guarantee by a recognized bank
for the sum specified herein as security for compliance with his
obligation in accordance with the Contract;
|
|||||||
AND
WHEREAS we have agreed to give the Contractor such a Bank
Guarantee;
|
|||||||
NOW
THEREFORE we hereby affirm that we are the Guarantor and responsible to
you, on behalf of the Contract, up to a total of
|
|||||||
[amount
of Guarantee]
|
|||||||
[in
words], such sum being
|
|||||||
payable
in accordance with the provisions of the Contract (as defined hereafter)
and the terms hereof, and we undertake to pay you, upon your first written
demand and without cavil or argument, any sum or sums within the limits
of [amount of Guarantee] as aforesaid without your needing to
prove or to show grounds or reasons for your demand for the sum specified
herein.
|
|||||||
We
hereby waive the necessity of your demanding the said debt from the
Contractor before presenting us with the demand.
|
|||||||
We
further agree that no change or addition to or other modification of the
terms of the Contract or of the works to be performed thereunder or of any
of the contract documents which may be made between you and the Contractor
shall in any way release us from any liability under this Guarantee, and
we hereby waive notice of any such change, addition or
modification.
|
|||||||
The
guarantee shall be valid until the date of issue by
[ ]
of Substantial Completion.
|
|||||||
SIGNATURE
AND SEAL OF THE GUARANTOR
|
|||||||
NAME OF BANK
|
|
WATER
AND SEWERAGE CORPORATION
87
Thompson Blvd.
P.O.
Box N-3905, Nassau, Bahamas
www.wsc.com.bs
“Committed to Growth,
Committed to
Quality”
|
|
Our Ref:
WSC
236/13
|
Date:
January
25, 2011
|
ATTN.:
|
MR.
FREDERICK McTAGGART
|
BLUE
HILLS SWRO EXPANSION
|
25-JAN-2011
|
LETTER
OF ACCEPTANCE
|
WATER
AND SEWERAGE CORPORATION
|
|
Signature
:
|
/s/ Glen F. Laville
|
Glen
F. Laville
|
Title:
|
General
Manager
|
Signature:
|
/s/ Frederick W.
McTaggart
|
Frederick W.
McTaggart
|
Title:
|
President & CEO
|
Date:
|
January 31,
2011
|
Blue
Hills Expansion
4
MIGPD expanded capacity
3.5
MIGPD Guarantee
|
|||||
Plant
Production Rate, IGPD
|
3,500,000
|
Availability
Factor
|
1.0000
|
||
Annual
Prod. kgal/yr
|
1,277,500
|
Annual
Interest Rate
|
*****
|
||
Plant
Capital Cost
|
*****
|
Number
of Years
|
20
|
||
Production
Costs (Annual)
|
Annual
Cost
|
B$/kigal
|
|||
FIXED
COSTS
|
Total
|
||||
Fixed
Charges – Capital Repayment
|
*****
|
*****
|
|||
General
& Administrative (Note 1)
|
*****
|
*****
|
|||
Operation
& Maintenance Labor
|
*****
|
*****
|
|||
Overhead
& Profit on Labor
|
*****
|
*****
|
|||
SUBTOTAL
FIXED COSTS
|
*****
|
*****
|
|||
Note
1: includes allowance for bonding and insurance
|
|||||
CONSUMABLES
|
B$/US
gal
|
US
gal/klgal
|
|||
Diesel
Fuel
|
2.350
|
*****
|
*****
|
*****
|
|
Electricity
|
B$/kwh
|
kwh/klgal
|
|||
Power
Consumption
|
0.2720
|
*****
|
*****
|
*****
|
|
B$/kVA/yr
|
Max.
kVA
|
||||
Demand
Charge
|
136.32
|
*****
|
*****
|
*****
|
|
B$/lb
|
Ib/klgal
|
||||
Total
Chemical Consumables
|
*****
|
*****
|
|||
-
|
*****
|
||||
Spare
Parts & Equipment Consumables
|
*****
|
*****
|
|||
*****
|
*****
|
||||
Subtotal
Consumables-less Profit
|
*****
|
*****
|
|||
Overhead
& Profit on Consumables
|
*****
|
*****
|
|||
SUBTOTAL
CONSUMABLES
|
*****
|
*****
|
|||
TOTAL
PRICE:
|
*****
|
*****
|
RE:
|
Proposal
to Expand the Blue Hills Seawater Desalination Plant, New Providence,
Bahamas
|
|
1.
|
Within
eight (8) months of contract amendment execution and the Corporation’s
written Authorization to Proceed, design, procure, fabricate, ship,
assemble, install and commission a modification of and expansion to the
existing Blue Hills seawater reverse osmosis desalination plant. The total
capacity of the plant will become 12.0 million Imperial gallons of water
per day, with a daily guaranteed delivery to WSC of 10.3 million Imperial
gallons of water per day (or 10.0 million Imperial gallons of water per
day, with a daily guaranteed delivery to WSC of 8.5 million Imperial
gallons of water per day depending on the selected Expanded Plant size).
The expansion shall be comprised of the existing plant, plus additional
desalination units, seawater extraction wells, brine injection wells, and
product transfer system (“the Expanded Plant”). The product transfer
system shall include all tanks, pumps and associated pipe work up to the
existing tariff meter, plus an upgraded product transfer pipeline between
the tariff meter and the Corporation’s reservoirs. The product transfer
system would not include any additional reservoirs. The Expanded Plant
will be enclosed in a suitably constructed building that meets all local
building codes;
|
|
2.
|
Finance
the design and construction of the Plant Expansion for twenty (20)
years;
|
|
3.
|
Operate
and maintain the Expanded Plant, and shall meet all costs of and
associated with its operation and
maintenance;
|
|
4.
|
Provide
all chemicals, filters, replacement membrane elements, replacement parts
and other consumables for the Plant, and maintain an adequate supply of
spare parts to ensure the reliable operation of the Expanded
Plant;
|
|
5.
|
Make
every effort to supply the demand of the Customer at all times up to the
design capacity of the expanded plant, and shall guarantee to provide not
less than 72.1 million Imp. gallons (or 59.5 million IG depending on the
selected size of the Expanded Plant) of water to the Customer each and
every week during the term of the extended
agreement;
|
|
1.
|
Provide
all Bahamas government licenses, permits and other approvals relating to
the Expanded Plant for the proposed land use, abstraction of seawater from
the ground, injection of concentrated brine into the ground, and operation
of the Expanded Plant;
|
|
2.
|
Provide
a site, acceptable to Consolidated Water, for the seawater extraction
wells and brine injection wells. The feed water extraction boreholes and
brine injection boreholes shall be no farther than 350 ft. from the
Expanded Plant;
|
|
3.
|
Provide
a site, acceptable to Consolidated Water, for the Expanded Plant no
farther than 200 ft. from the existing Blue Hills
plant;
|
|
4.
|
Pay
all customs import duties (if any) on materials and equipment imported
into the Bahamas and used to construct and operate the Expanded Plant
throughout the term of the extended
agreement;
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5.
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Pay
all invoices issued by Consolidated Water after commissioning of the
Expanded Plant in accordance to the new unit
rate.
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1.
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Consolidated
Water has not provided in this price for a Construction Performance Bond
during the construction period of the Expanded
Plant;
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2.
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Diesel
engine emissions from the Expanded Plant would be the same as those agreed
for the Blue Hills Plant, and not as per the Original
Contract;
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3.
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The
unit rate below does not include an additional environmental assessment of
the site for the expanded operation. If these additional works were
required, we reserve the right to adjust our proposed rates to reflect
those additional costs.
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