UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
June 2, 2023
(Date of earliest event reported)
CONSOLIDATED WATER CO. LTD.
(Exact Name of Registrant as Specified in Charter)
Cayman Islands, B.W.I. | 0-25248 | 98-0619652 |
(State or Other Jurisdiction of | (Commission File No.) | (IRS Employer Identification No.) |
Incorporation) |
Regatta Office Park
Windward Three, 4th Floor
West Bay Road, P.O. Box 1114
Grand Cayman, KY1-1102
Cayman Islands
(Address of Principal Executive Offices)
(345) 945-4277
(Registrant’s telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
| Trading Symbol(s) |
| Name of each exchange on which registered |
Class A common stock, $0.60 par value | CWCO | The Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
Service Agreement
On June 2, 2023, Consolidated Water Co. Ltd. (the “Company”), through its indirect wholly-owned subsidiary, Kalaeloa Desalco LLC (“Kalaeloa Desalco”), entered into a service agreement (the “Agreement”) with The Board of Water Supply of the City and County of Honolulu, Hawaii (the “BWS”), relating to the design, construction, operation and maintenance of the Kalaeloa Seawater Desalination Facility in Oahu, Hawaii (the “Project”). Once operational, the Company will deliver between 1.615 million gallons per day and 1.785 million gallons per day.
The BWS has agreed to pay the Company $149,648,118.00 (the “Design-Build Price”) for its design-build work in connection with the Project, which will be the Company’s entire compensation and reimbursement for the performance of the design-build work. The Design-Build Price includes payment for any taxes payable by the Company in connection with the design-build work, any utilities that will be required to perform the design-build work, commissioning and starting up the Project, operating the Project, conducting any acceptance tests, and correcting any nonconforming design-build work. The Design-Build Price will be paid as certain milestones are achieved. The BWS will obtain federal funding to reimburse itself for, or to pay directly, a portion of the Design-Build Price. The Design-Build Price is subject to certain adjustments for change orders and change directives issued by the BWS and for costs resulting from uncontrollable circumstances. The Design-Build Price also will be subject to a one-time adjustment (i) based on the occurrence of a change in the Employment Cost Index for Construction Workers for the period starting on the date that is 120 days following the submission of the proposal for the Project and ending on the issuance of the notice to proceed with construction of the Project and/or (ii) fluctuations in the costs of certain raw materials for the period starting on the date that is 120 days following the submission of the proposal for the Project and ending on the date of issuance of the notice to proceed with construction of the Project.
The BWS has agreed to pay the Company $11,533,546.00 (the “Development Price”) for its development work, which is included within the Design-Build Price. The Development Price will not be subject to adjustment. The Development Price will be paid to the Company as milestones are achieved, which payments will be considered to be partial payments of the Design-Build Price. Such payments of the Development Price will be conditioned upon the Company’s final completion of each development period activity corresponding to the payment date on the progress payment schedule and will not exceed the individual and aggregate maximum Design-Build Price payments therefor. The Company will be responsible for all other costs and expenses incurred in performing the development work obligations during the development period and such costs will not be reimbursable to the Company.
The Agreement will continue in effect for the 20 years following the date of the acceptance of the Project in accordance with the terms of the Agreement. The Agreement may be renewed and extended, at the option of the BWS, for two five-year renewal terms (together with the initial 20 year term, the “Term”). “Final Completion” of the Project will occur within 180 days of completion of the design-build work, acceptance of the Project by the BWS in accordance with the Project acceptance criteria, issuance of a final certificate of occupancy and the Company meeting certain deliverable and payment requirements under the Agreement.
Upon acceptance of the Project and for each contract year thereafter through the end of the Term, the BWS has agreed to pay the Company a service fee (the “Service Fee”) as compensation for the operation services to be performed by the Company. The Service Fee will be calculated based on certain fixed and variable components for the then current contract year. The Service Fee will be paid in monthly installments and will be calculated on account of the operation services rendered by the Company during the prior month. The Project will be municipally owned property and not subject to real property or possessory interest taxation. If the Company is nonetheless required to pay any real property or possessory interest tax on account of the Project, the Company will be entitled to recover the amount paid as part of the monthly Service Fee payment.
The Company will be required to deliver water at an average flow rate of 1.7 million gallons per day for each month during the operation period (the “Water Delivery Guarantee”). In the event that the Company fails in any month to meet the Water Delivery Guarantee, the Company will be responsible for paying liquidated damages to the BWS. In the event of repeated, unexcused failures to meet the Water Delivery Guarantee, the BWS may terminate the Agreement. The
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BWS will have the right, in its discretion, at any time, by written notice to the Company, to adjust the Water Delivery Guarantee to either 0.85 million gallons per day or 0 million gallons per day. In the event of such adjustment, the minimum and maximum daily flow rates will be adjusted to reflect a minimum of 95% of the adjusted Water Delivery Guarantee and a maximum of 105% of the adjusted Water Delivery Guarantee. The Company may also be required to adjust the flow rates, as required by the BWS, to respond to extraordinary or emergency circumstances. If such adjustments are necessary for uncontrollable circumstances that are not the fault of the Company, the Company will be relieved of its Water Delivery Guarantee obligations to the extent attributable to the extraordinary flow rate changes. In such event, the BWS will be responsible for any electricity demand levels established as a result of the flow rate demand levels required by the BWS to the extent that such demand levels exceed those established under normal operating conditions.
The Company also is required to meet certain enhanced water quality standards, which are collectively referred to in the Agreement as the “Water Treatment Guarantee.” In addition to the Water Delivery Guarantee and the Water Treatment Guarantee, the Company will have the obligation to meet certain other performance guarantees under the Agreement.
The Company provided commercially standard indemnifications to the BWS, the City and County of Honolulu, Hawaii, and the State of Hawaii Department of Land and Natural Resources and each of their respective elected officials, appointed officers, consultants, representatives, volunteers, agents and employees. Such indemnifications are not limited to insurance coverage required to be obtained by the Company under the Agreement or by any coverage exclusions. The Company is required to obtain performance and payment bonds in an amount equal to one hundred percent of the Design-Build Price, including any adjustments thereto, and maintain such bonds until Final Completion. Additionally, the Company is required to provide an operations performance bond as security for the Company’s operation services, in an amount equal to the annual Service Fee, for the duration of the Term.
The Company also is required to maintain insurance coverage to protect the BWS and certain third parties as loss payees.
The Company will be required to pay liquidated damages to the BWS in certain circumstances associated with the replacement of key individuals of the Company, unexcused delays in achieving acceptance of the Project, failure to comply with performance guarantees and non-performance or breach of the Agreement. In addition to liquidated damages, the BWS will have other remedies for each such circumstances of replacement, unexcused delay, non-compliance and non-performance, as applicable, as provided in the Agreement.
Upon the following events of default by the Company pursuant to the Agreement, the BWS may terminate the Agreement without any advanced notice requirement or providing any opportunity to cure: (i) the Company’s failure to obtain, maintain in full force and effect or renew within 30 days prior to expiration of any security instrument as security for the performance of the Agreement; (ii) the Company’s failure to demonstrate through its enhanced pilot testing that the proposed treatment processes will produce water that will meet the water quality standards; (iii) the Company’s failure to achieve acceptance of the Project prior to the end of the extension period under the Agreement; (iv) the Company’s failure to meet the performance guarantees set forth in the Agreement; (v) the Company’s failure to comply with the minimum and maximum flow rates set forth in the Agreement; (vi) the assessment by the BWS of liquidated damages in an aggregate amount that exceeds the liquidated damages sublimit amount specified in the Agreement; (vii) the Company’s failure to immediately take all appropriate action in the event of a public health or safety emergency due to the Company’s failure to comply with the Agreement; (viii) the Company’s abandonment or failure to operate all or a portion of the Project for two or more consecutive days in any contract year; (ix) the Company’s insolvency, voluntary bankruptcy or involuntary bankruptcy; (x) the Company’s default under the Guaranty Agreement (as defined below); or (xi) the Company’s failure to provide credit enhancement in connection with the Guaranty Agreement when and as required.
Upon the following events of default by the Company pursuant to the Agreement, the BWS may terminate the Agreement, but (a) must first provide written notice to the Company of the default and (b) the Company must fail to initiate within a reasonable time (in any event not more than 30 days from the initial default notice) actions reasonably necessary to correct the default and prevent its recurrence: (i) breach of a representation or warranty by the Company under the Agreement or Guaranty Agreement; (ii) a payment default that is not cured within 60 days following the due date for such payment; (iii) failure by the Company to resume contract services which have been suspended or stopped within a
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reasonable time after receipt of notice from the BWS to do so or, if applicable, after cessation of the event preventing performance; (iv) failure by the Company to materially comply with applicable laws or with instructions of the BWS consistent with the Agreement; (v) the Company’s performance of contract services deviates from the Agreement, and refusal or neglect to correct rejected contract services; (vi) the Company’s failure to achieve Final Completion; and (vii) the Company’s material breach of the Agreement or the failure to perform any other material obligation under the Agreement. If the Company initiates within such reasonable time and continues with due diligence to carry out to completion all actions required to cure a default described in the preceding sentence, the circumstance would not constitute an event of default.
The BWS may also terminate the Agreement for convenience at any time prior to the date of acceptance of the Project or during the operations period upon 60 days’ and 90 days, respectively, written notice to the Company. In such an event, the BWS and the Company may agree to a settlement provided the settlement does not exceed the Design-Build Price or applicable Service Fee, as applicable, plus settlement costs reduced by payments previously made by the BWS and certain other costs of the BWS. If settlement is not reached, the BWS will be obligated to pay the Company the actual costs of all work or services, as applicable, performed prior to termination plus a five percent mark-up less amounts previously paid by the BWS to the Company, as well as certain other costs, including settlement costs; provided, however, that if it appears that the Company would have sustained a loss if the entirety of the design-build work or operation services, as applicable, would have been completed, no mark-up will be allowed or included and the amount of compensation will be reduced to reflect the anticipated rate of loss.
Upon termination or expiration of the Agreement, the BWS or any successor operator of the Project designated by the BWS will have the right to offer employment to any employees of the Company employed at the Project notwithstanding any employment agreement, offer, letter or similar document to the contrary.
Upon termination or expiration of the Agreement, the BWS may require that the Company provide continuity of service and technical support to the BWS for a reasonable period of time. If the Agreement is terminated as a result of a default by the Company, the Company will be responsible for the costs and expenses of undertaking such continuity of service and technical support.
Neither the Company nor the BWS may assign the Agreement in whole or any part without the prior written consent of the other party, except that the BWS may assign its rights and obligations under the Agreement without the consent of the Company to another governmental body if such assignee assumes, and is legally capable of discharging, the duties and obligations of the BWS under the Agreement.
Guaranty Agreement
The Company will guarantee the payment and performance of the obligations of Kalaeloa Desalco under the Agreement pursuant to a guaranty agreement, entered into on June 2, 2023, by the Company and the BWS (the “Guaranty Agreement”).
Pursuant to the Guaranty Agreement, the Company will guarantee to the BWS (i) the full and prompt payment when due of each and all of the payments required to be credited or made by Kalaeloa Desalco under the Agreement and (ii) the full and prompt performance and observance of each and all of the obligations of Kalaeloa Desalco under the Agreement.
The BWS will have the right to proceed first and directly against the Company under the Guaranty Agreement without first proceeding against Kalaeloa Desalco or exhausting any other remedies against Kalaeloa Desalco which the BWS may have under the Agreement.
The Guaranty Agreement will remain in full force and effect until all of the obligations of Kalaeloa Desalco under the Agreement have been fully paid and performed.
A default by the Company under the Guaranty Agreement will also constitute an event of default under the Agreement. Under the Agreement, upon a material adverse change in the financial condition of the Company, Kalaeloa Desalco will
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be required to provide the BWS credit enhancement in the form of a replacement guarantor to become the guarantor for purposes of the Agreement.
Item 9.01. Financial Statements and Exhibits.
(d)Exhibits.
Exhibit No. | Description | |
10.1 | ||
10.2 | ||
104 | Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
CONSOLIDATED WATER CO. LTD. | ||
By: | /s/ David W. Sasnett | |
Name: | David W. Sasnett | |
Title: | Executive Vice President & Chief Financial Officer | |
Date: June 6, 2023 | ||
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EXHIBIT 10.1
|
SERVICE AGREEMENT
FOR THE
KALAELOA SEAWATER DESALINATION FACILITY
DESIGN, BUILD, OPERATE AND MAINTAIN PROJECT
OAHU, HAWAII
between
THE BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU
and
KALAELOA DESALCO LLC
Dated as of
June 2, 2023
|
[This Page Intentionally Left Blank]
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INTERPRETATION
(i)
TABLE OF CONTENTS
(continued)
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
ARTICLE 3
TERM
ARTICLE 4
GENERAL PERFORMANCE REQUIREMENTS
(ii)
TABLE OF CONTENTS
(continued)
(iii)
TABLE OF CONTENTS
(continued)
ARTICLE 5
MANAGEMENT, LABOR AND SUBCONTRACTORS
(iv)
TABLE OF CONTENTS
(continued)
ARTICLE 6
DEVELOPMENT PERIOD
(v)
TABLE OF CONTENTS
(continued)
ARTICLE 7
DESIGN AND PERMITTING OF THE PROJECT
(vi)
TABLE OF CONTENTS
(continued)
ARTICLE 8
CONSTRUCTION OF THE PROJECT
(vii)
TABLE OF CONTENTS
(continued)
ARTICLE 9
COMMISSIONING, TESTING, ACCEPTANCE AND FINAL COMPLETION
(viii)
TABLE OF CONTENTS
(continued)
ARTICLE 10
PAYMENT OF THE DESIGN-BUILD PRICE
(ix)
TABLE OF CONTENTS
(continued)
ARTICLE 11
OPERATION AND MANAGEMENT
ARTICLE 12
PERFORMANCE
(x)
TABLE OF CONTENTS
(continued)
(xi)
TABLE OF CONTENTS
(continued)
ARTICLE 13
MAINTENANCE, REPAIR AND REPLACEMENT
(xii)
TABLE OF CONTENTS
(continued)
ARTICLE 14
CAPITAL MODIFICATIONS
(xiii)
TABLE OF CONTENTS
(continued)
ARTICLE 15
SERVICE FEE AND OTHER PAYMENTS
(xiv)
TABLE OF CONTENTS
(continued)
ARTICLE 16
CHANGE PROCEDURES AND DISPUTE RESOLUTION
(xv)
TABLE OF CONTENTS
(continued)
ARTICLE 17
BREACH, DEFAULT, REMEDIES AND TERMINATION
(xvi)
TABLE OF CONTENTS
(continued)
ARTICLE 18
INSURANCE
ARTICLE 19
UNCONTROLLABLE CIRCUMSTANCES
(xvii)
TABLE OF CONTENTS
(continued)
ARTICLE 20
INDEMNIFICATION
(xviii)
TABLE OF CONTENTS
(continued)
ARTICLE 21
SECURITY FOR PERFORMANCE
ARTICLE 22
MISCELLANEOUS PROVISIONS
(xix)
TABLE OF CONTENTS
(continued)
(xx)
TABLE OF CONTENTS
(continued)
(xxi)
TABLE OF CONTENTS
(continued)
TRANSACTION FORMS
A.Form of Guaranty Agreement
B.Form of Labor and Materials Payment Bond
C.Form of Design-Build Performance Bond
D.Form of Operations Performance Bond
SCHEDULES
| 1. | Project Reference Information |
| 2. | Governmental Approvals |
| 3. | General Design-Build Work Requirements |
| 4. | Design and Construction Requirements |
| 5. | Design-Build Quality Management Plan and Quality Control Requirements |
| 6. | Design-Build Work Review Procedures |
| 7. | Progress Schedule Requirements |
| 8. | Mechanical Completion Requirements |
| 9. | Acceptance Testing Requirements |
| 10. | Design-Build Price and Maximum Drawdown Schedule |
| 11. | General Operations and Maintenance Requirements |
| 12. | Major Maintenance, Repair and Replacement |
| 13. | RO System Membrane Replacement |
| 14. | Guaranteed Maximum Electricity Utilization and Demand |
| 15. | Performance Guarantee Requirements and Liquidated Damages |
| 16. | Monitoring, Sampling and Reporting Requirements |
| 17. | Asset Evaluation Protocol and Exit Test Procedures and Standards |
| 18. | Insurance Requirements |
| 19. | Key Individuals and Approved Subcontractors |
| 20. | Example Service Fee Calculations |
| 21. | Certain Federal Requirements and Guidelines |
| 22. | Customer Outreach |
(xxii)
[This Page Intentionally Left Blank]
SERVICE AGREEMENT
FOR THE
KALAELOA SEAWATER DESALINATION FACILITY
DESIGN, BUILD, OPERATE AND MAINTAIN PROJECT
OAHU, HAWAII
THIS SERVICE AGREEMENT FOR THE KALAELOA SEAWATER DESALINATION FACILITY DESIGN, BUILD, OPERATE AND MAINTAIN PROJECT is entered into and effective as of the Contract Date (defined below), by and between the Board of Water Supply of the City and County of Honolulu, Hawaii (the “BWS”) and Kalaeloa Desalco LLC, a limited liability company organized and existing under the laws of the the State of Hawaii and authorized to do business in the State of Hawaii (the “DBOM Contractor”).
RECITALS
(A)The BWS has determined that it is in the BWS’s best interests to contract with a private entity to permit, design, construct, start-up, acceptance test, operate and maintain (including all capital maintenance) a new seawater desalination facility (the “Contract Services”).
(B)Pursuant to Subchapter 6 of HAR Chapter 3-122 and HRS § 103D-303, the BWS is authorized to conduct a procurement process to select a private entity to provide the Contract Services.
(C)The first phase of the procurement process was the issuance of a Stage-1 Request for Proposals (“Stage-1 RFP”) by the BWS on March 22, 2021. Following an evaluation of the responses submitted to the Stage-1 RFP based upon the criteria set forth in the Stage-1 RFP, the BWS selected three priority listed offerors to whom it would issue a Stage-2 Request for Proposals (“Stage-2 RFP”) to provide the Contract Services.
(D)On November 9, 2021, the BWS undertook the second phase of the competitive process by issuing the Stage-2 RFP to the three priority listed offerors. Stage-2 RFP Addenda were issued on November 22, 2021, December 20, 2021, January 7, 2022, January 12, 2022, February 4, 2022, March 11, 2022, April 13, 2022, and April 28, 2022.
(E)Final proposals submitted in response to the Stage-2 RFP were received on June 1, 2022 from two of the three priority listed offerors.
(F)The proposals were reviewed by the BWS and assigned a score based on the evaluation criteria and scoring method set forth in the Stage-2 RFP.
(G)Based on the evaluations and scoring of the final proposals, the BWS determined that the proposal submitted by the DBOM Contractor represented the best value to the BWS considering the relative importance of technical, business, financial and other evaluation factors included in the Stage-2 RFP.
(H)Consolidated Water Co. Ltd., an affiliate of the DBOM Contractor, will guarantee the payment and performance of the obligations of the DBOM Contractor under this Service Agreement pursuant to a separate guaranty agreement executed concurrently herewith.
(I)The BWS desires to receive, and the DBOM Contractor desires to provide, the Contract Services under the terms of this Service Agreement.
In consideration of the mutual covenants herein contained, the parties hereto, intending to be legally bound, agree as follows:
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“2008 FEIS” means the Final Environmental Impact Statement for the Proposed Kalaeloa Desalination Facility, dated September 2008, and identified as a Reference Document in Schedule 1 (Project Reference Information).
“Acceptable Disposal Site” has the meaning specified in subsection 12.12(B) (Acceptable Disposal Site).
“Acceptance” means demonstration by the DBOM Contractor that the Acceptance Tests have been conducted, the Project Acceptance Criteria have been achieved and all other Acceptance Date Conditions have been achieved.
“Acceptance Date” means the date on which Acceptance of the Project occurs or is deemed to have occurred under Article 9 (Commissioning, Testing, Acceptance and Final Completion).
“Acceptance Date Conditions” has the meaning specified in Section 9.3 (Acceptance Date Conditions).
“Acceptance Test” and “Acceptance Testing” means the test for Acceptance to be performed by the DBOM Contractor in accordance with Article 9 (Commissioning, Testing, Acceptance and Final Completion), Schedule 9 (Acceptance Testing Requirements) and the Full Facility Test and Acceptance Test Plan.
“Access Road” means the road to be constructed and maintained by the DBOM Contractor to provide access to the Project Site from Olai Street, as more particularly described in Schedule 4 (Design and Construction Requirements).
“Actual Annual Electricity Costs” means the sum of all actual annual electricity costs resulting from the DBOM Contractor’s performance of this Service Agreement as reflected in the electricity bills paid by the BWS, excluding any charges or penalties imposed by the electricity provider which are required to be reimbursed by the DBOM Contractor to the BWS on a monthly basis as provided in subsection 11.5(A) (Electricity Supply and Consumption).
“Additional Renewal Term” has the meaning specified in Section 3.2 (BWS Renewal Options).
“Adjustment Factors” means the CPI Adjustment Factor, the Chemicals Adjustment Factor and the Capital Maintenance Adjustment Factor.
“Affiliate” means, in respect of a person, any other person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person, where “control” means, with respect to the relationship between or among two or more persons, the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a person, whether through the ownership of voting securities, as trustee, personal representative or executor, by statute, contract, credit arrangement or otherwise, including the ownership, directly or indirectly, of securities having the power to elect a majority of the board of trustees or similar body governing the affairs of such person.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Annual Capital Maintenance Charge” has the meaning specified in subsection 15.6(B) (Generally).
“Annual Membrane Replacement Charge” has the meaning specified in subsection 15.7(B) (Generally).
“Annual Settlement Statement” has the meaning specified in subsection 15.12(A) (Generally).
“Applicable Law” means (1) any federal, State or local law, code, regulation, consent order or agreement; (2) any formally adopted and generally applicable rule, requirement, determination, standard, policy, implementation schedule or order of any Governmental Body having appropriate jurisdiction; (3) any established interpretation of law or regulation utilized by an appropriate Governmental Body if such interpretation is documented by such Governmental Body and generally applicable; and (4) any Governmental Approval, in each case having the force of law and applicable from time to time to: (a) the siting, permitting, design, acquisition, construction, equipping, financing, ownership, possession, start-up, testing, operation, maintenance, repair, replacement or management of water treatment systems, including the Facility; (b) the conveyance, treatment, storage or supply of water; (c) the air emissions therefrom; (d) the transfer, handling, transportation or disposal of Facility By-Products; and (e) any other transaction or matter contemplated hereby (including any of the foregoing which pertain to water treatment, waste disposal, health, safety, fire, environmental protection, labor relations, building codes, the payment of prevailing or minimum wages and non-discrimination). Applicable Law shall also be deemed to include the Hawaii Department of Labor and Industrial Relations, Hawaii Occupational Safety and Health Law through Hawaii Occupational Safety & Health Division (“HIOSH”) rules and regulations.
“Archeological Construction Monitoring, Mitigation and Preservation Plans” means the archeological construction monitoring, mitigation and preservation plans to be developed by the DBOM Contractor in accordance with the Contract Standards and requiring SHPD approval in accordance with Section 6.3 (Environmental and Archaeological Review).
“Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. 101 et seq., as amended from time to time and any successor statute thereto. “Bankruptcy Code” shall also include (1) any similar state law relating to bankruptcy, insolvency, the rights and remedies of creditors, the appointment of receivers or the liquidation of companies and estates that are unable to pay their debts when due, and (2) in the event the Guarantor is incorporated or otherwise organized under the laws of a jurisdiction other than the United States, any similar insolvency or bankruptcy code applicable under the laws of such jurisdiction.
“Baseline Cost Amount” has the meaning specified in subsection 10.1(C)(4)(b) (Baseline Cost Amounts).
“Baseline Project Record” has the meaning specified in subsection 13.5(B) (Baseline Project Record).
“Base Operating Charge” has the meaning specified in subsection 15.3(A) (Base Operating Charge Formulas).
“Billing Period” means each calendar month, except that (1) the first Billing Period shall begin on the Acceptance Date and shall continue to the last day of the month in which the Acceptance Date occurs, and (2) the last Billing Period shall end on the last day of the Term. Any computation made on the basis of a Billing Period shall be adjusted on a pro
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Board of Water Supply, City and County of Honolulu | Service Agreement |
rata basis to take into account any Billing Period of less than the actual number of days in the month to which such Billing Period relates.
“Bureau of Reclamation” means the United States Bureau of Reclamation and any successor agency.
“Business Day” means any day other than a Saturday, Sunday or any statutory holiday in the State.
“BWS” or “Board of Water Supply” means the Board of Water Supply, City and County of Honolulu, as identified in Article VII, Revised Charter of the City and County of Honolulu 1973, as amended.
“BWS-designated Governmental Approvals” means those Governmental Approvals that are the responsibility of the BWS, as designated in Schedule 2 (Governmental Approvals).
“BWS Fault” means:
“BWS Indemnitees” and “BWS Indemnitee” have the meaning specified in subsection 20.1(A) (DBOM Contractor Indemnity).
“BWS Property” means any structures, improvements, equipment, fire alarm systems, wastewater and water mains, valves, pumping systems, hydrants, hydrant connections, duct lines, lamps, lampposts, monuments, sidewalks, curbs, trees, lawns, roadways, utilities or any other systems, fixtures, or real or personal property owned, leased, operated, maintained, or occupied by the BWS.
“BWS Service Area” means all territory in which customers are served by the BWS Water System during the Term.
“BWS Water System” means the BWS’s water distribution systems (including all pipes, pumping stations, mains, valves, distribution facilities and equipment, treatment works, sources of water supply, and related buildings, structures, improvements and assets) managed by the BWS and serving the BWS Service Area.
“Capital Maintenance Adjustment Factor” has the meaning specified in subsection 15.6(C) (Annual Adjustment to the Annual Capital Maintenance Charge).
“Capital Modification” means any material change to any part of the Project occurring after the Acceptance Date, including the installation of new structures, equipment, systems or technology, as addressed in Article 14 (Capital Modifications).
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Change in Law” means any of the following acts, events or circumstances to the extent that compliance with the change materially expands the scope, interferes with, delays or increases the cost of performing the obligations of either party:
It is specifically understood, however, that none of the following shall constitute a “Change in Law”:
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Change Order” means a written order issued by the BWS in accordance with Section 16.1 (Change Procedures), making a Design and Construction Requirements Change or other modification to the Contract Services, whether made at DBOM Contractor request, due to Uncontrollable Circumstances, as a result of a term or condition imposed by a Governmental Body, or at the direction of the BWS, or otherwise making a Fixed Design-Build Price Adjustment, adjustment to the Scheduled Acceptance Date, adjustment to the Service Fee or other change to the terms and conditions of this Service Agreement. A Change Order shall be deemed to constitute a Contract Amendment.
“Chemicals Adjustment Factor” has the meaning specified in subsection 15.3(D) (Adjustment Factors Applicable to the Fixed Component).
“Chemicals Element” means the element of the Fixed Component of the Base Operating Charge to which the Chemicals Adjustment Factor shall be applied, as specified in Section 15.4 (Fixed Component).
“City” or “C&C” means the City and County of Honolulu, Hawaii.
“Commissioning” means completion and implementation of an approved commissioning program that includes a logical approach consistent with Good Industry Practice to demonstrate and confirm the performance of each unit process operating individually and together as a total plant treatment process to meet the Contract Standards.
“Commissioning Plan” means the protocols, procedures and processes for the performance of Commissioning prepared and documented by the DBOM Contractor and approved by the BWS in accordance with Schedule 8 (Mechanical Completion Requirements).
“Concentrate” means the membrane output stream that contains RO Feedwater rejected by the membrane, including dissolved solids and other concentrated RO Feedwater constituents.
“Construction Commencement Date” means the date identified in the Notice to Proceed to be issued in accordance with Section 6.8 (Closing the Development Period), following satisfaction of the Construction Commencement Date Conditions by the DBOM Contractor, upon which the DBOM Contractor shall have the right to proceed with the physical construction of the Project, as determined in accordance with Section 6.8 (Closing the Development Period).
“Construction Commencement Date Conditions” has the meaning specified in subsection 6.7(A) (Construction Commencement Date Conditions Generally).
“Construction Period” means the period of time after completion of the Development Period and issuance of a Notice to Proceed for the Construction Period in accordance with Section 6.8 (Closing the Development Period) and concluding at Acceptance, during which the DBOM Contractor will oversee and manage the construction, testing, Commissioning and Acceptance Testing of the Project.
“Construction Period Work” means all work required to be conducted by the DBOM Contractor during the Construction Period, including successful completion of design, construction and Acceptance Testing of the Project, preparation of the Operation and Maintenance Manual and other plans, and completion of staff training.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Consumables” means those materials, supplies and similar consumables used in connection with the operation of the Project, which may include fuel oil, diesel fuel, water treatment chemicals and other chemicals, lubricants and other fuels.
“Contract Administration Memorandum” has the meaning specified in subsection 22.3(B) (Contract Administration Memoranda).
“Contract Amendment” has the meaning specified in subsection 22.4(A) (Amendments Generally).
“Contract Date” shall be the date this Service Agreement is countersigned by the BWS, as set forth on the signature page hereto.
“Contract Services” means the Design-Build Work and the Operation Services.
“Contract Standards” means the standards, terms, conditions, methods, techniques and practices imposed or required by:
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Board of Water Supply, City and County of Honolulu | Service Agreement |
Subsection 1.2(S) (Applicability, Stringency and Consistency of Contract Standards) shall govern issues of interpretation related to the applicability, stringency and consistency of the Contract Standards.
“Contract Year” means the BWS’s fiscal year commencing on July 1st in any year and ending on June 30th of the following year; provided, however, that the first Contract Year of the Operation Period shall commence on the Acceptance Date and shall end on the following June 30th, and the last Contract Year shall commence on July 1st prior to the date this Service Agreement expires or is terminated, whichever is appropriate, and shall end on the last day of the Term or the effective date of any termination, whichever is appropriate. Any computation made on the basis of a Contract Year shall be adjusted on a pro rata basis to take into account any Contract Year of less than 365 or 366 days, whichever is applicable.
“Contracting Officer” means the Manager and Chief Engineer (Manager) of the BWS.
“Cost Substantiation” means the process of providing evidence of actual costs in accordance with Section 22.9 (Cost Substantiation).
“CPI Adjustment Factor” has the meaning specified in subsection 15.3(D) (Adjustment Factors Applicable to the Fixed Component).
“DBOM Contractor” means Kalaeloa Desalco LLC, a limited liability company organized and existing under the laws of the State of Hawaii, and its permitted successors and assigns.
“DBOM Contractor-designated Governmental Approvals” means those Governmental Approvals that are the responsibility of the DBOM Contractor, as designated in Schedule 2 (Governmental Approvals).
“DBOM Contractor Fault” means:
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“DBOM Contractor Improvements” means the Facility, the Product Water Storage Tanks, the Product Water Transmission Line, the Stormwater Control System, the Access Road, the UIC Transmission Line, the Underground Injection Well, the Recycled Water Lines, the Project Equipment, the Project Structures and all other improvements to be designed and constructed by the DBOM Contractor as specified in Schedule 4 (Design and Construction Requirements).
“DBOM Contractor Indemnity” means the indemnity obligations of the DBOM Contractor under Article 20 (Indemnification).
“DBOM Contractor Person” means:
“DBOM Contractor Representative” means the individual specified in writing by the DBOM Contractor as the representative of the DBOM Contractor from time to time for all purposes of this Service Agreement.
“Deliverable Material” means all documents, reports, studies, surveys, computer programs, warranties, manuals, submittals, licenses and other documents and materials required to be delivered by the DBOM Contractor to the BWS pursuant to this Service Agreement, including the Design Documents.
“Department of Health” or “DOH” means the State of Hawaii Department of Health or any successor agency.
“Department of Land and Natural Resources” or “DLNR” means the State of Hawaii Department of Land and Natural Resources or any successor agency.
“Design and Construction Requirements” means the specifications, drawings, and other technical requirements for the performance of the Design-Build Work set forth in Schedule 3 (General Design-Build Work Requirements) and Schedule 4 (Design and Construction Requirements).
“Design and Construction Requirements Change” means a change in the Design and Construction Requirements made by a Change Order or Unilateral Change Directive pursuant to Section 16.1 (Change Procedures): (1) as a result of a DBOM Contractor request agreed to by the BWS; (2) on account of Uncontrollable Circumstances; (3) as a result of a term or condition imposed by a Governmental Body; or (4) at the direction of the BWS.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Design-Build Emergency Response Plan” means the plan so designated to be prepared by the DBOM Contractor in accordance with subsection 8.7(F) (Emergencies).
“Design-Build Health and Safety Plan” means the plan so designated to be prepared by the DBOM Contractor in accordance with subsection 8.7(D) (Design-Build Health and Safety Plan).
“Design-Build Manager” has the meaning specified in subsection 5.1(A) (Design-Build Manager).
“Design-Build Performance Bond” means the performance bond to be provided by the DBOM Contractor concurrently with the execution of this Service Agreement as described in and maintained pursuant to this Service Agreement, in the form set forth in the Transaction Forms.
“Design-Build Period” means the period from and including the Contract Date through the date of Final Completion, and includes the Development Period and the Construction Period.
“Design-Build Price” means the sum of the Fixed Design-Build Price and the Fixed Design-Build Price Adjustments.
“Design-Build Quality Management Plan” or “Design and Construction Quality Management Plan” means the design-build quality management plan to be developed by the DBOM Contractor in accordance with Schedule 5 (Design-Build Quality Management Plan and Quality Control Requirements).
“Design-Build Security Plan” means the plan so designated to be prepared by the DBOM Contractor in accordance with subsection 8.8(B) (Design-Build Security Plan).
“Design-Build Work” or “Design and Construction Work” means everything required to be furnished and done for and relating to the design, construction and Acceptance of the Project by the DBOM Contractor pursuant to this Service Agreement during the Design-Build Period, including the Development Period Work and the Construction Period Work. Design-Build Work (and Design and Construction Work) includes the employment and furnishing of all labor, materials, equipment, supplies, tools, scaffolding, transportation, Utilities, insurance, temporary facilities and other things and services of every kind whatsoever necessary for the full performance and completion of the DBOM Contractor’s design, engineering, construction, start-up, Acceptance Testing, obtaining and maintaining Governmental Approvals and related obligations with respect to the construction of the Project during the Design-Build Period under this Service Agreement, including all completed structures, assemblies, fabrications, acquisitions and installations, all Commissioning and testing, and all of the DBOM Contractor’s administrative, accounting, recordkeeping, notification and similar responsibilities of every kind whatsoever under this Service Agreement pertaining to such obligations. A reference to Design-Build Work (or Design and Construction Work) shall mean any part and all of the Design-Build Work (and Design and Construction Work) unless the context otherwise requires, and shall include all Design and Construction Requirements Changes authorized by a Change Order or Unilateral Change Directive.
“Design Documents” means the DBOM Contractor’s plans, technical specifications, drawings, record drawings and other design and construction documents prepared in connection with the Design-Build Work.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Design Professional Services” means that part of the Design-Build Work consisting of the preparation of Design Documents for the Project by licensed professional engineering, architectural and land surveying firms, as well as all other services required to be performed by licensed design professionals as part of the Design-Build Work for the design and engineering of the Project, including professional engineering, architectural and land surveying services.
“Design Professional Services Firm” means any person providing Design Professional Services.
“Development Period” means the period of time after the issuance of a Notice to Proceed with the Development Period following execution of the Service Agreement and concluding at the point in time that the DBOM Contractor has met the conditions precedent to the commencement of the Construction Period and the BWS has issued the Notice to Proceed for the Construction Period in accordance with Section 6.8 (Closing the Development Period).
“Development Period Work” means everything required to be furnished and done for and relating to the Project by the DBOM Contractor pursuant to this Service Agreement during the Development Period. “Development Period Work” shall mean any part and all of the “Development Period Work” unless the context otherwise requires.
“Differing Site Conditions” means (a) actual subsurface or latent physical subsurface conditions at the Project Site which differ materially from those indicated in the Reference Documents, or (b) unknown physical subsurface conditions at the Project Site of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character required herein; provided, however, that the term “Differing Site Conditions” excludes conditions of which the DBOM Contractor had actual or constructive knowledge as of the Contract Date (including through review of the Reference Documents, conditions described in the Geotechnical Design Memorandum, as well as conditions that are evident from the location, topography and nature of the Project Site).
“DLNR Right of Entry Permits” has the meaning specified in subsection 4.2(D) (Department of Land and Natural Resources Right of Entry Permits).
“ECI-Construction Labor Cost Adjustment” has the meaning specified in subsection 10.1(C)(3) (ECI-Construction Labor Cost Adjustment).
“ECI-Construction Labor Cost Adjustment Date” has the meaning specified in subsection 10.1(C)(3) (ECI-Construction Labor Cost Adjustment).
“ECI-Construction Labor Index” means the final non-seasonally adjusted Employment Cost Index (State and Area Employment, Hours, and Earnings), for Construction, Specialty Trade Contractors for the Urban Honolulu, HI Area (Series ID: SMU15465202023800001), as reported by the U.S. Department of Labor, Bureau of Labor Statistics (BLS).
“Electricity Savings Element” shall have the meaning specified in subsection 15.3(C) (Basis of Variable Component).
“Encumbrances” means any Lien, lease, mortgage, security interest, charge, judgment, judicial award, attachment or encumbrance of any kind with respect to the Project, other than Permitted Encumbrances.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“End of Term Performance Evaluation Period” has the meaning specified in Schedule 17 (Asset Evaluation Protocol and Exit Test Procedures and Standards).
“End of Term Performance Evaluation Requirements” has the meaning specified in Schedule 17 (Asset Evaluation Protocol and Exit Test Procedures and Standards).
“Engineer-of-Record” means the professional engineer licensed in the State in good standing who is designated by the DBOM Contractor and acceptable to the BWS, acting reasonably, and is responsible for the preparation, signing, dating, sealing and issuing of the engineering documents relating to a portion of or all of the Design-Build Work.
“Enhanced Pilot Testing” has the meaning specified in subsection 6.4(B) (Enhanced Testing).
“Enhanced Pilot Testing Report” has the meaning specified in subsection 6.4(B) (Enhanced Testing).
“Enhanced Water Quality Standards” means those requirements for Product Water (in addition to the requirements imposed by Applicable Law), as set forth in Schedule 15 (Performance Guarantee Requirements and Liquidated Damages).
“Environmental and Archaeological Mitigation Measures” has the meaning specified in subsection 6.3(C) (Environmental and Archaeological Mitigation Measures).
“EPA” means the United States Environmental Protection Agency and any successor agency.
“Event of Default” means, with respect to the DBOM Contractor, those items specified in Section 17.2 (Events of Default by the DBOM Contractor) and, with respect to the BWS, those items specified in Section 17.5 (Events of Default by the BWS), which may lead to termination of this Service Agreement upon election of the non-defaulting party.
“Excluded Project Equipment and Structures” has the meaning specified in subsection 13.2(B) (Replacements of Excluded Project Equipment and Structures).
“Existing UIC Well” means the existing UIC Pilot Test wastewater disposal /cap rock monitoring well, including certain related structures and equipment, as more particularly described in Schedule 4 (Design and Construction Requirements).
“Exit Test” means the performance test of the Project to be conducted by the DBOM Contractor prior to termination or expiration of this Service Agreement to be conducted in accordance with subsection 17.9(F) (Exit Test) and Schedule 17 (Asset Evaluation Protocol and Exit Test Procedures and Standards), if required by such subsection and Schedule.
“Exit Test Plan” means the testing protocols, procedures and processes for the performance of the Exit Test, prepared and documented by the DBOM Contractor and approved by the BWS in accordance with Schedule 17 (Asset Evaluation Protocol and Exit Test Procedures and Standards), if required by such Schedule and subsection 17.9(F) (Exit Test).
“Exit Test Procedures and Standards” means the test procedures and standards for the performance test of the Project, to be conducted by the DBOM Contractor prior to termination or expiration of this Service Agreement, developed in accordance with Schedule 17 (Asset Evaluation Protocol and Exit Test Procedures and Standards), if required by such Schedule and subsection 17.9(F) (Exit Test).
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Extension Period” means the period commencing on the day after the Scheduled Acceptance Date and ending 180 days following the Scheduled Acceptance Date, or in the event of one or more delays caused by Uncontrollable Circumstances occurring during such period, the date determined by adding to such 180-day period the aggregate number of days of delay caused by such Uncontrollable Circumstances.
“Extraordinary Item” has the meaning specified in Section 15.9 (Extraordinary Items Charge or Credit).
“Facility” or “Plant” means the reverse osmosis water treatment plant, including all pumping, storage and chemical feed facilities and all related buildings, structures, fixtures and equipment, as more particularly described in Schedule 4 (Design and Construction Requirements), with an initial installed production capacity of 1.7 MGD and all facilities and the site design planned to cost-effectively facilitate potential future expansions of up to 5.1 MGD, to be designed, constructed, acceptance tested, operated, maintained and Exit Tested by the DBOM Contractor pursuant to the Contract Standards, together with any Capital Modifications made thereto from time to time.
“Facility By-Products” means Concentrate, RO Process Wastewater and Residuals requiring disposal by the DBOM Contractor.
“Fees and Costs” means reasonable fees and expenses of employees, attorneys, architects, engineers, expert witnesses, contractors, consultants and other persons, and costs of transcripts, printing of briefs and records on appeal, copying and other reimbursed expenses, and expenses reasonably incurred in connection with investigating, preparing for, defending or otherwise appropriately responding to any Legal Proceeding, including reasonable travel expenses.
“Final Completion” means completion of the Design-Build Work in compliance with the Design and Construction Requirements and the applicable requirements of this Service Agreement, as more particularly described in Section 9.7 (Final Completion).
“Final Project Evaluation Report” has the meaning specified in Schedule 17 (Asset Evaluation Protocol and Exit Test Procedures and Standards).
“Final Punch List” has the meaning specified in Section 8.14 (Final Punch List).
“Fitch” means Fitch Ratings Inc., and its successors and assigns.
“Fixed Design-Build Price” has the meaning specified in subsection 10.1(B) (Fixed Design-Build Price).
“Fixed Design-Build Price Adjustments” has the meaning specified in subsection 10.1(C) (Fixed Design-Build Price Adjustments).
“Fixed Development Price” has the meaning specified in subsection 10.2(A) (Fixed Development Price).
“Five-Year Major Maintenance, Repair and Replacement Plan” means the maintenance, repair and replacement plan for Excluded Project Equipment and Structures to be developed by the DBOM Contractor in accordance with Schedule 11 (General Operations and Maintenance Requirements).
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Flow Rate” means the rate of flow of Product Water volume delivered to the Point of Connection, as measured by the Product Water Flow Meter (adjusted for any Product Water withdrawn for use at the Facility) and expressed in MGD.
“Full Facility Test” means the test immediately prior to the Acceptance Test during which the DBOM Contractor shall demonstrate that the Facility is capable of reliable operation, to be performed by the DBOM Contractor in accordance with Article 9 (Commissioning, Testing, Acceptance and Final Completion), Schedule 9 (Acceptance Testing Requirements) and the Full Facility Test and Acceptance Test Plan.
“Full Facility Test and Acceptance Test Plan” means the testing protocols, procedures and processes for the performance of the Full Facility Test and the Acceptance Tests prepared and documented by the DBOM Contractor and approved by the BWS in accordance with Schedule 9 (Acceptance Testing Requirements) and Section 9.2 (Acceptance Testing).
“Geotechnical Design Memorandum” means the Geotechnical Design Memorandum, Geotechnical Approach and Assumptions, Kalaeloa Seawater Desalination Facility Treatment Plant DBOM Project, Kalaeloa, Oahu, Hawaii, dated August 30, 2022, prepared by Geolabs, Inc., and set forth in Schedule 4 (Design and Construction Requirements).
“Good Engineering and Construction Practice” means all methods, techniques, standards, and practices which, at the time they are to be employed and in light of the circumstances known (including the Project’s coastal location) or reasonably believed to exist at such time, are generally recognized and accepted as good design, engineering, equipping, installation, construction, commissioning and testing practices for the design, construction and improvement of capital assets in reverse osmosis water treatment plants and by the municipal drinking water industry in the United States.
“Good Industry Practice” means all methods, techniques, standards and practices which, at the time they are to be employed and in light of the circumstances known (including the Project’s coastal location) or reasonably believed to exist at such time, are generally recognized and accepted as good operation, maintenance, repair, replacement and management practices in reverse osmosis water treatment plants and by the municipal drinking water industry in the United States.
“Governmental Approvals” means all orders of approval, permits, licenses, authorizations, consents, certifications, exemptions, rulings, entitlements and approvals issued by a Governmental Body of whatever kind and however described which are required under Applicable Law to be obtained or maintained by any person with respect to the Contract Services. “Governmental Approvals” shall include, without limitation, the BWS-designated Governmental Approvals and the DBOM Contractor-designated Governmental Approvals.
“Governmental Body” means any federal, State, regional or local legislative, executive, judicial or other governmental board, agency, authority, commission, administration, court or other body (including the BWS, acting in its governmental capacity other than as a party to this Service Agreement), or any official thereof, having jurisdiction in any way over or in respect of any aspect of the performance of the Contract Services or relating to the Project.
“Guaranteed Maximum Annual Electricity Costs” has the meaning specified in Schedule 14 (Guaranteed Maximum Electricity Utilization and Demand).
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Guaranteed Maximum Electricity Demand” has the meaning specified in Schedule 14 (Guaranteed Maximum Electricity Utilization and Demand).
“Guaranteed Maximum Electricity Utilization” has the meaning specified in Schedule 14 (Guaranteed Maximum Electricity Utilization and Demand).
“Guarantor” means Consolidated Water Co. Ltd., a limited company organized and existing under the laws of the Cayman Islands, and its successors and assigns permitted thereunder.
“Guaranty Agreement” or “Guaranty” means the Guaranty Agreement entered into concurrently with this Service Agreement from the Guarantor to the BWS in the form set forth in the Transaction Forms, as the same may be amended from time to time in accordance therewith.
“Handback Retainage” has the meaning specified in subsection 13.5(H) (Determination of Handback Retainage).
“Handback Retainage Account” has the meaning specified in subsection 13.5(I) (Establishment and Use of Handback Retainage Account).
“Hazardous Materials” mean and include any and all radioactive materials, asbestos, organic compounds known as polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, hazardous wastes, toxic substances, and any and all other substances or materials defined as “hazardous materials”, “extremely hazardous materials”, “hazardous wastes”, or “toxic substances” under or for the purposes of Hazardous Materials Laws.
“Hazardous Materials Laws” mean and include all federal, State, and City laws, ordinances, rules, regulations or codes, now or hereafter in effect, relating to environmental conditions, human health or industrial hygiene, including but not limited to the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §9601 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.) the Clean Air Act (42 U.S.C.§ 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Sections 2601 through 2629), the Safe Drinking Water Act (42 U.S.C. Sections 300f through 300j), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.), the Occupational Safety and Health Act (29 U.S.C. Section 651, et seq.), Hawaii Revised Statutes, Chapters 128D, 342B, 342D, 342F, 342H, 342I, 342J, 342L 342N, and 342P, and applicable regulations promulgated thereunder and each as amended from time to time, or any other federal, State, or City environmental law, regulation, ordinance, rule, or by-law, whether existing as of the date hereof, previously enforced, or subsequently enacted.
“Hazardous Residuals” has the meaning specified in subsection 12.12(E) (Title and Documentation).
“Health and Safety Representative” has the meaning specified in subsection 8.7(A) (Health and Safety Representative).
“Hydraulic Transients Guarantee” means the DBOM Contractor’s guarantees of performance set forth in Section 12.5 (Hydraulic Transients Guarantee).
“Independent Evaluator” means a qualified independent evaluator or evaluation firm with demonstrated skill and experience in the evaluation of utility property similar to the
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Board of Water Supply, City and County of Honolulu | Service Agreement |
Project, not otherwise associated with the transactions contemplated hereby, selected with the mutual consent of the parties for the purpose of evaluating and determining the condition of the Project Structures and the Project Equipment and the performance capability of the Project in accordance with Section 13.5 (Project Evaluations). The Independent Evaluator may be an engineer or other technical professional, who is licensed as appropriate with the State, in good standing, and competent to perform such services.
“Initial Renewal Term” has the meaning specified in Section 3.2 (BWS Renewal Options).
“Initial Term” has the meaning specified in Section 3.1 (Effective Date and Initial Term).
“Insurance Requirement” means any rule, regulation, code, or requirement issued by any insurance company that has issued a policy of Required Insurance under this Service Agreement or by any insurance company that has issued a policy of insurance required to be obtained and maintained by the BWS in accordance with subsection 18.1(E) (BWS Insurance), compliance with which is a condition to the effectiveness of such policy.
“Intellectual Property” means any trade secrets, proprietary rights, patents, copyrights or trademarks recognized under Applicable Law.
“Key Individual” means any individual identified by the DBOM Contractor as having a lead capacity or a high level of authorization in a supervisory capacity, including those individuals identified as such in Schedule 19 (Key Individuals and Approved Subcontractors).
“Known Regulated Site Conditions” means Regulated Site Conditions identified in the Reference Documents, or otherwise known to the DBOM Contractor as of the Contract Date; provided, however, that nothing in the HONOULIULI 168 AISR - Draft, AIS (submitted), July, 2021, set forth as a Reference Document in Schedule 1 (Project Reference Information), shall be deemed to establish the presence of Regulated Substances anywhere in, on or under the Project Site that would constitute a Known Regulated Site Condition.
“Legal Proceeding” means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a material bearing upon this Service Agreement or the performances of the parties hereunder, and all appeals therefrom.
“Lien” means any and every lien against the Project or against any monies due or to become due from the BWS to the DBOM Contractor under this Service Agreement, for or on account of the Contract Services, including mechanics’, materialmen’s, and laborers’ liens.
“Loss-and-Expense” means any and all (1) loss, liability, forfeiture, obligation, damage, fine, penalty, judgment, deposit, charge, assessment, Tax, cost or expense, and (2) fees, costs and expenses of expert witnesses, contractors, and other persons, including all Fees and Costs, incurred in connection with investigating, preparing for, defending or responding to any Legal Proceeding, in each case relating to third party claims for which DBOM Contractor is obligated to indemnify the BWS Indemnitees pursuant to the DBOM Contractor Indemnity.
“Maintenance, Repair and Replacement Plan” means the maintenance, repair and replacement plan to be developed by the DBOM Contractor in accordance with Schedule 11 (General Operations and Maintenance Requirements).
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Major Maintenance, Repair and Replacement” means any renewal, repair or replacement of the machinery, equipment, structures or improvements constituting a part of the Project (excluding the RO system membranes) and having a cost (excluding overhead, profit and all costs associated with the labor of the DBOM Contractor or any of its Affiliates,) equal to or greater than $5,000 (which initial amount shall be subject to escalation annually on July 1 of each Contract Year by the Capital Maintenance Adjustment Factor).
“Major Maintenance, Repair and Replacement Schedule” has the meaning specified in subsection 13.3(B) (Major Maintenance, Repair and Replacement Schedule).
“Manager and Chief Engineer” or “Manager” means the Manager and Chief Engineer of the BWS.
“Material Adverse Change” has the meaning specified in subsection 21.1(C) (Material Adverse Change to the Financial Condition of the Guarantor).
“Material Subcontract” means any Subcontract between the DBOM Contractor and a Significant Subcontractor.
“Materials Cost Adjustment” has the meaning specified in subsection 10.1(C)(4)(a) (The Materials Cost Adjustment).
“Materials Cost Adjustment Date” has the meaning specified in subsection 10.1(C)(4) (Adjustment for Certain Raw Materials Cost Fluctuations).
“Mechanical Completion” has the meaning specified in subsection 8.13(A) (Conditions to Mechanical Completion).
“Mechanical Completion Date” means the date on which Mechanical Completion of the Project occurs or is deemed to have occurred under Section 8.13 (Mechanical Completion).
“Membrane Replacement Account” has the meaning specified in subsection 15.7(D) (Membrane Replacement Account).
“MG” or “mg” means millions of gallons.
“MGD” or “mgd” means millions of gallons per day.
“MG/L” or “mg/L” means milligrams per liter.
“Monthly Progress Report” has the meaning specified in subsection 4.8(A) (Design-Build Period Monthly Progress Reports).
“Moody’s” means Moody’s Investors Service Inc., and its successors and assigns.
“MRR Account” has the meaning specified in subsection 15.6(D) (MRR Account).
“NEPA” means the National Environmental Policy Act, 42 U.S.C. 4321 et seq., and applicable regulations promulgated thereunder, each as amended from time to time.
“NEPA Document” means the categorical exclusion, environmental assessment, finding of no significant impact or environmental impact statement prepared by the Bureau of Reclamation for the Project pursuant to NEPA, in draft and final forms as applicable.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“New Domestic Water Supply Permit” means the New Domestic Water Supply permit required to be issued by the Department of Health as an Acceptance Date Condition, authorizing the BWS to use Product Water as a source of potable water for public consumption.
“Notice to Proceed” or “NTP” means a written notice issued by the Officer-in-Charge authorizing the DBOM Contractor to commence performing a portion of the Contract Services, as specified in such written notice.
“O&M Element” means the element of the Fixed Component of the Base Operating Charge to which the CPI Adjustment Factor shall be applied, as specified in Section 15.4 (Fixed Component).
“O&M Plant Manager” has the meaning specified in subsection 5.1(B) (O&M Plant Manager).
“Officer-in-Charge” means the Manager and Chief Engineer (Manager) of the BWS or the delegated designee.
“Operations Lead” has the meaning specified in subsection 5.1(C) (DBOM Contractor’s Operations Lead).
“Operating Protocol” means the written protocol setting forth the practices and procedures which are necessary or useful in coordinating the activities of the parties during the Operation Period, including all interface, coordination, and water delivery and supply policies, procedures, plans and protocols to be established, adopted and revised in accordance with Section 11.7 (Operating Protocol), Section 12.9 (Service Coordination) and Schedule 11 (General Operations and Maintenance Requirements).
“Operation and Maintenance Manual” or “O&M Manual” means the comprehensive plan and related computer programs prepared by the DBOM Contractor containing detailed standard operating and maintenance procedures and other specific instructions, policies, directives, routines, schedules and other matters relating to the Operation Services, developed and maintained as required by Section 11.6 (Operation and Maintenance Manual) and Schedule 11 (General Operations and Maintenance Requirements) solely for the delivery of services under this Service Agreement.
“Operation Period” means the period from and including the Acceptance Date to and including the last day of the Term.
“Operation Period Emergency Response Plan” means the plan so designated to be prepared by the DBOM Contractor in accordance with subsection 11.15(A) (Operation Period Emergency Response Plan).
“Operation Period Health and Safety Plan” means the plan so designated to be prepared by the DBOM Contractor in accordance with Section 11.8 (Safety).
“Operation Period Security Plan” means the plan so designated to be prepared by the DBOM Contractor in accordance with Section 11.9 (Security).
“Operation Services” means everything required to be furnished and done for and relating to the operation of the Project by the DBOM Contractor pursuant to this Service Agreement during the Operation Period. Operation Services include the employment and furnishing of all labor, materials, equipment, supplies, Consumables, tools, storage,
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Board of Water Supply, City and County of Honolulu | Service Agreement |
transportation, insurance, sales, delivery and other things and kinds of services whatsoever necessary for the full performance of the DBOM Contractor’s operation, maintenance, repair, replacement, management, obtaining and maintaining DBOM Contractor-designated Governmental Approvals and related obligations under this Service Agreement, and all of the DBOM Contractor’s administrative, accounting, recordkeeping, reporting, notification and similar responsibilities of every kind whatsoever under this Service Agreement pertaining to such obligations.
“Operations Performance Bond” means the performance bond to be provided by the DBOM Contractor as an Acceptance Date Condition in accordance with the terms and conditions set forth in this Service Agreement and in the form set forth in the Transaction Forms.
“OSHA” means the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 650 et seq., including the applicable regulations promulgated thereunder, each as amended or superseded from time to time.
“Overdue Rate” means the statutory rate applicable to judgments against the State of Hawaii under Chapter 662, HRS.
“Payment Bond” means the labor and materials payment bond provided by the DBOM Contractor concurrently with the execution of this Service Agreement as described in and maintained pursuant to this Service Agreement, in the form set forth in the Transaction Forms.
“Performance Guarantees” means the guarantees of performance made by the DBOM Contractor set forth in this Service Agreement and the Schedules, including the Water Treatment Guarantee, the Water Delivery Guarantee, the Production Efficiency Guarantee, the Hydraulic Transients Guarantee and the Environmental Guarantees set forth in Article 12 (Performance) and Schedule 15 (Performance Guarantee Requirements and Liquidated Damages).
“Permitted Encumbrances” means, as of any particular time and without limiting the right of the DBOM Contractor to Uncontrollable Circumstance relief as and the extent provided in this Service Agreement with respect to Changes in Law, any one or more of the following:
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Board of Water Supply, City and County of Honolulu | Service Agreement |
“Point of Connection” or “POC” means the physical place of interconnection between the Product Water Transmission Line and the BWS Water System (as set forth in Schedule 4 (Design and Construction Requirements)) where metering and Product Water quality sampling shall be performed to monitor DBOM Contractor compliance with the Performance Guarantees.
“Production Efficiency Guarantee” means the DBOM Contractor’s guarantee of performance set forth in Section 12.4 (Production Efficiency Guarantee).
“Product Water” means Sourced Seawater which has been treated at the Facility in accordance herewith and delivered by the DBOM Contractor to the Point of Connection.
“Product Water Flow Meter” means the measuring device or devices located at the Point of Connection which shall be used to measure the daily total volume of Product Water delivered by the DBOM Contractor to the BWS Water System.
“Product Water Storage Tanks” means the storage tanks for Product Water produced by the Facility, including all related structures, pipes, valves, and equipment, as more particularly described in Schedule 4 (Design and Construction Requirements)
“Product Water Transmission Line” means the transmission line for the conveyance of Product Water from the Facility to the Point of Connection, including all related structures, pipes, valves, hydrants and equipment, as more particularly described in Schedule 4 (Design and Construction Requirements).
“Progress Payment Schedule” means the detailed itemized list, including schedule of values, that establishes the value or cost of each detailed part of the Design-Build Work, and which is used as the basis for preparing progress payments during the Design-Build Period and is in the form required by Schedule 10 (Design-Build Price and Maximum Drawdown Schedule).
“Project” means the Project Site, the DBOM Contractor Improvements, the Sourced Seawater Wells, the Existing UIC Well and any Capital Modifications made thereto from time to time, as more particularly described in Schedule 4 (Design and Construction Requirements).
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“Project Acceptance Criteria” means the criteria and standards for the achievement of Acceptance set forth in Article 9 (Commissioning, Testing, Acceptance and Final Completion) and Schedule 9 (Acceptance Testing Requirements).
“Project Equipment” means all manufactured equipment, property or assets, whether or not constituting personal property or fixtures, constituting part of the Project, including tanks (other than concrete tanks); basins (other than concrete basins); process and treatment, mechanical, piping (with an initial useful life of less than 20 years), electrical, instrumentation and controls, remote monitoring and communications, HVAC, chemical and other storage and feed systems, cranes and hoists, and any ancillary, appurtenant and support equipment and systems utilized in or at the Project.
“Project Manager” means the individual or firm designated by the BWS from time to time to manage and administer this Service Agreement and act as the BWS’s liaison with the DBOM Contractor in connection with the Contract Services.
“Project Schedule” means the DBOM Contractor’s critical path method completion schedule for the performance of the Design-Build Work, as set forth as an attachment to Schedule 7 (Progress Schedule Requirements) on the Contract Date and as updated and maintained by the DBOM Contractor in accordance with subsection 8.1(E) (Schedule and Reports) and Schedule 7 (Progress Schedule Requirements).
“Project Site” means the parcels of real property on which the Project is to be constructed, as more particularly described in Schedule 1 (Project Reference Information).
“Project Structures” means all structures, buildings, concrete tanks, concrete basins and piping (with an initial useful life of equal to or greater than 20 years) constituting part of the Project.
“Proposal” means the final proposal submitted by the DBOM Contractor on the Proposal Submittal Date in response to the Stage-2 RFP.
“Proposal Submittal Date” means June 1, 2022, which is the date the DBOM Contractor submitted its Proposal to the BWS in accordance with the Stage-2 RFP.
“QA/QC Manager” means an employee of the DBOM Contractor, any Affiliate of the DBOM Contractor, or the DBOM Contractor’s construction manager designated by the DBOM Contractor as the individual responsible for developing and implementing the Design-Build Quality Management Plan for the Project, as set forth in Schedule 5 (Design-Build Quality Management Plan and Quality Control Requirements).
“Qualified Commercial Bank” means (i) a domestic bank or (ii) subject to the BWS’s approval, acting reasonably, an international bank (or a subsidiary thereof) that is licensed in the United States of America:
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“Record Adjustment” has the meaning specified in subsection 10.1(C)(4)(c) (Record Adjustments).
“Record Adjustment Factor” has the meaning specified in subsection 10.1(C)(4)(c) (Record Adjustments).
“Recycled Water Lines” means the recycled water pipelines and connections to local off-site reclaimed water lines for Project Site usage, including all related structures, pipes, valves and equipment, as more particularly described in Schedule 4 (Design and Construction Requirements).
“Reference Documents” means those documents listed as Reference Documents in Schedule 1 (Project Reference Information).
“Regulated Site Condition” means, and is limited to:
“Regulated Substance” means (1) any oil, petroleum or petroleum product and (2) any pollutant, contaminant, hazardous substance, Hazardous Material, toxic substance, toxic pollutant, solid waste, municipal waste, industrial waste or hazardous waste that is defined as such by and is subject to regulation under any Applicable Law; except that de minimis quantities of any of the foregoing that are expressly exempted from regulation or remediation under Applicable Law shall not constitute a Regulated Substance hereunder.
“Reimbursable Costs Charge” has the meaning described in Section 15.8 (Reimbursable Costs Charge).
“Reliability Demonstration” means the continuous 30 day period consisting of the 16-day Full Facility Test period and followed by the 14-day Acceptance Test period.
“Relief Request Notice” has the meaning specified in subsection 19.2(C) (Submittal of Relief Request).
“Renewal Term” has the meaning specified in Section 3.2 (BWS Renewal Options).
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“Required Design-Build Period Insurance” has the meaning specified in Schedule 18 (Insurance Requirements).
“Required Insurance” means the Required Design-Build Period Insurance and the Required Operation Period Insurance, as set forth in Schedule 18 (Insurance Requirements).
“Required Operation Period Insurance” has the meaning specified in Schedule 18 (Insurance Requirements).
“Requisition” means a written submission by the DBOM Contractor on the form of requisition as agreed to by the parties, together with accompanying submittals, requesting progress payments or final payment with respect to the Design-Build Price, and which is to be accompanied by such supporting documentation as required by Article 10 (Payment of the Design-Build Price).
“Residuals” means any semi-solid or solid material resulting from the treatment of Sourced Seawater. The term “Residuals” does not include “Concentrate” or “RO Process Wastewater” as such terms are defined herein.
“Restricted Person” means any person who (or any member of a group of persons acting together, any one of which):
“RO” means reverse osmosis.
“RO Feedwater” means the cartridge filter effluent for the reverse osmosis system downstream of any chemical addition. The sampling point for the RO Feedwater is at the effluent of the cartridge filters and downstream of any chemical addition to the water entering the RO system membranes.
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“RO Process Recovery” means the amount of permeate produced by the reverse osmosis process divided by the amount of RO Feedwater supplied to the reverse osmosis process, expressed as a percentage.
“RO Process Wastewater” means: (1) Concentrate; (2) Unacceptable Water; (3) Sourced Seawater; (4) Sourced Seawater Well flushing wastewater; and (5) CaCO3 reactor backwash and rinsing wastes, RO membrane cleaning wastes (clean-in-place (CIP) wastewater) and laboratory wastes, that in each case with regard to this clause (5), have been treated in a manner that is consistent with Applicable Law.
“RO System Membrane Replacement Schedule” has the meaning specified in Schedule 13 (RO System Membrane Replacement).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., and its successors and assigns.
“Scheduled Acceptance Date” means the date which is 1,347 days following the issuance of the Notice to Proceed with the Development Period by the BWS, as such Scheduled Acceptance Date may be adjusted due to the occurrence of Uncontrollable Circumstances.
“Schedule” means any of the Schedules and, as applicable, any attachments thereto, that are appended to this Service Agreement and identified as such in the Table of Contents.
“Security Instruments” means the Guaranty Agreement, the Design-Build Performance Bond, the Payment Bond and the Operations Performance Bond.
“Senior Supervisors” has the meaning specified in subsection 22.5(B) (DBOM Contractor’s Senior Supervisors).
“Service Agreement” means this Service Agreement for the Kalaeloa Seawater Desalination Facility Design, Build, Operate and Maintain Project between the DBOM Contractor and the BWS, including the Schedules and the Transaction Forms, as the same may be amended or modified from time to time in accordance herewith.
“Service Fee” means the fee to be paid by the BWS to the DBOM Contractor as compensation for the performance of the Operation Services by the DBOM Contractor in accordance with Article 15 (Service Fee and Other Payments).
“SHPD” means the State of Hawaii Historic Preservation Division or any successor agency.
“Significant Subcontractor” means any Subcontractor identified as a “Significant Subcontractor” in Schedule 19 (Key Individuals and Approved Subcontractors) or which is performing Contract Services pursuant to a Subcontract with a contract value equal to or greater than $250,000.
“Sourced Seawater” means any water pumped from the Sourced Seawater Wells and conveyed to the Facility.
“Sourced Seawater Wells” means the two existing wells, including certain related structures and equipment, for the collection of Sourced Seawater, as more particularly described in Schedule 4 (Design and Construction Requirements).
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“Sourced Seawater Wells Condition Standards” has the meaning specified in subsection 8.12(B) (Condition of the Existing Sourced Seawater Wells; DBOM Contractor Evaluation).
“Specified Sourced Seawater Quality Parameters” means those Sourced Seawater quality parameters which are specified in Table 2.3 of Schedule 4 (Design and Construction Requirements).
“Stage-2 RFP” means the BWS’s Stage-2 Request for Proposals for the Kalaeloa Seawater Desalination Facility Design-Build-Operate and Maintain Project, issued on November 9, 2021, as amended.
“State” means the State of Hawaii.
“Stormwater Control System” means the stormwater control system and all related stormwater retention and drainage structures, pipes, valves and equipment located on the Project Site, as more particularly described in Schedule 4 (Design and Construction Requirements).
“Subcontract” means any contract entered into by the DBOM Contractor, or a Subcontractor of the DBOM Contractor of any tier, with one or more persons in connection with the carrying out of the DBOM Contractor’s obligations under this Service Agreement, whether for the furnishing of labor, materials, equipment, supplies, services or otherwise.
“Subcontractor” means any person, other than the DBOM Contractor, that enters into a Subcontract for any portion of the Contract Services, whether for the furnishing of labor, materials, equipment, supplies, services or otherwise.
“Surety” means the surety company or surety companies issuing the Design-Build Performance Bond, the Payment Bond or the Operations Performance Bond and meeting the qualification requirements set forth in subsection 21.2(C) (Surety Requirements).
“Tax” means any tax, fee, levy, duty, impost, charge, surcharge, assessment or withholding, or any payment-in-lieu thereof, and any related interest, penalty or addition to the tax.
“Term” has the meaning specified in Section 3.1 (Effective Date and Initial Term).
“Termination Date” means the last day of the Term resulting from either a termination or expiration under this Service Agreement.
“Transaction Form” means any of the Transaction Forms appended to this Service Agreement.
“UIC Transmission Line” means the transmission line for the conveyance of RO Process Wastewater and non-Product Water resulting from treatment of Sourced Seawater from the Facility to the Underground Injection Well, including all related buildings, structures, pipes, valves and equipment, as more particularly described in Schedule 4 (Design and Construction Requirements).
“Unacceptable Water” has the meaning set forth in Schedule 15 (Performance Guarantee Requirements and Liquidated Damages).
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“Uncontrollable Circumstance” means any act, event or condition that (1) is beyond the reasonable control of the party relying on it as a justification for not performing an obligation or complying with any condition required of such party under this Service Agreement, and (2) materially expands the scope of, materially interferes with, materially delays, or materially increases the cost of, performing the party’s obligations under this Service Agreement, to the extent that such act, event or condition is not the result of the intentional or negligent act, error or omission, failure to exercise reasonable diligence, or breach of this Service Agreement on the part of the party claiming the occurrence of an Uncontrollable Circumstance.
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“Underground Injection Well” or “UIC Well” means the well, including certain related structures and equipment, for the underground injection of RO Process Wastewater and non-Product Water resulting from treatment of Sourced Seawater, as more particularly described in Schedule 4 (Design and Construction Requirements).
“Unilateral Change Directive” has the meaning set forth in subsection 16.1(C) (Change Orders and Unilateral Change Directives).
“Unknown Regulated Site Conditions” means Regulated Site Conditions that are not Known Regulated Site Conditions.
“Utilities” means any and all utility services and installations whatsoever (including gas, water, sewer, electricity, telephone, and telecommunications), and all piping,
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wiring, conduit, and other fixtures of every kind whatsoever related thereto or used in connection therewith.
“Water Delivery Guarantee” has the meaning specified in subsection SECTION 12.3(C) (Water Delivery Guarantee; Liquidated Damages).
“Water Treatment Guarantee” has the meaning specified in subsection 12.2(B) (Enhanced Water Quality Standards).
“Wells” means the Sourced Seawater Wells, the Existing UIC Well and the Underground Injection Well.
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All liquidated damages provided for herein shall be at the discretion of the BWS, which shall have the right to waive any DBOM Contractor obligation to pay liquidated damages hereunder.
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AASHTO | American Association of State Highway and Transportation Officials |
ACI | American Concrete Institute |
ADAAG | Americans with Disabilities Accessibility Act Guidelines |
AISC | American Institute of Steel Construction |
AITC | American Institute of Timber Construction |
ANSI | American National Standard Institute |
ASTM | American Society for Testing and Materials |
AWWA | American Water Works Association |
AWS | American Welding Society |
FHWA | Federal Highway Administration, U.S. Department of Transportation |
FS | Federal Specifications |
GO6 | General Order No. 6 of the Public Utilities Commission, Rules for Overhead Electric Line Construction |
GRJP | General Rules for Joint Use of Poles |
HAR | Hawaii Administrative Rules |
HRS | Hawaii Revised Statutes |
IES | Illuminating Engineering Society |
NEC | National Electric Code |
ROH | Revised Ordinances of the City & County of Honolulu |
UBC | Uniform Building Code |
UL | Underwriters' Laboratories, Inc. |
UPC | Uniform Plumbing Code |
WCLA | West Coast Lumberman’s Association |
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No termination of this Service Agreement shall (1) limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination; or (2) preclude either party from impleading the other party in any Legal Proceeding originated by a third party as to any matter occurring during the Term.
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The DBOM Contractor acknowledges and agrees that the DLNR reserves the right to impose additional, but reasonable, terms and conditions as it deems necessary while the DLNR Right of Entry Permits are in force, and the DBOM Contractor shall comply with all such terms and conditions in performance of the Contract Services. Any related change in the terms and conditions of this Service Agreement as a result of such additional DLNR terms and conditions shall be incorporated, as appropriate, through a Change Order in accordance with Section 16.1 (Change Procedures). The DBOM Contractor further acknowledges and agrees that all disputes
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or questions arising under the DLNR Right of Entry Permits shall be referred to the Chairperson of the DLNR for a determination and resolution of the dispute or question and that the Chairperson’s decision shall be final and binding on the BWS and the DBOM Contractor.
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All of the information specified in items (1) through (8) of this subsection are Reference Documents provided by the BWS with the Stage-2 RFP and identified as such in Schedule 1 (Project Reference Information). If the DBOM Contractor establishes that any error, omission or insufficiency relating to the information provided to the DBOM Contractor specified above in this subsection has a material and adverse impact on the DBOM Contractor’s cost or time of performance under this Service Agreement, then the DBOM Contractor shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 19 (Uncontrollable Circumstances); provided, however, that the DBOM Contractor shall not be entitled to any such relief to the extent the error, omission or insufficiency is the result of DBOM Contractor Fault.
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The DBOM Contractor shall have the right to contest any fine or penalty imposed under this subsection so long as the DBOM Contractor is contesting any such action in good faith by appropriate proceedings conducted with due diligence and the BWS has no liability as a result of the failure of the DBOM Contractor to pay any such fine or penalty during the period of contest. Any capital investment, improvement or modification required to be made pursuant to this subsection, reasonably expected to result in a material change to the Project during the Operation Period, shall be considered a Capital Modification subject to the provisions of Article 14 (Capital Modifications).
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The DBOM Contractor represents and warrants that the Design-Build Manager shall be vested with the authority to act on behalf of the DBOM Contractor in connection with the performance of the Design-Build Work and to bind the DBOM Contractor with respect to any certification required under this Service Agreement to be made by the Design-Build Manager. The DBOM Contractor acknowledges that the performance of the individual serving from time to time as the Design-Build Manager will have a material bearing on the quality of service provided hereunder, and that effective cooperation between the BWS and the Design-Build Manager will be essential to effectuating the intent and purposes of this Service Agreement. Accordingly, the DBOM Contractor may change the individual assigned as the Design-Build Manager solely in accordance with the provisions of subsection (D) (BWS Rights with Respect to Key Individuals) of this Section.
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The DBOM Contractor represents and warrants that the O&M Plant Manager shall be vested with the authority to act on behalf of the DBOM Contractor in connection with the performance of the Operation Services and to bind the DBOM Contractor with respect to any certification required under this Service Agreement to be made by the O&M Plant Manager. The DBOM Contractor acknowledges that the performance of the individual serving from time to time as the O&M Plant Manager will have a material bearing on the quality of service provided hereunder, and that effective cooperation between the BWS and the O&M Plant Manager will be essential to effectuating the intent and purposes of this Service Agreement. Accordingly, the DBOM Contractor may change the individual assigned as the O&M Plant Manager solely in accordance with the provisions of subsection (D) (BWS Rights with Respect to Key Individuals) of this Section.
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Key Individuals: | Liquidated Damage Amount: |
DBOM Contractor Representative | $100,000 |
Design-Build Manager | $100,000 |
Quality Manager | $50,000 |
Design Manager | $50,000 |
O&M Plant Manager | $100,000 |
Operations Lead | $50,000 |
Maintenance Lead | $50,000 |
The DBOM Contractor understands and agrees that any damages payable in accordance with this subsection are in the nature of liquidated damages and not a penalty and that such sums are reasonable under the circumstances. The BWS shall waive the assessment of liquidated damages if the DBOM Contractor: (1) provides sufficient documentation that demonstrates that the Key Individual substitution has equal or better qualifications to the original Key Individual in accordance with subsection (D) (BWS Rights with Respect to Key Individuals) of this Section; and (2) implements a reasonable transition plan to ensure adequate training of the substitute Key Individual so that there is no disruption in the applicable Contract Services required to be provided pursuant to this Service Agreement.
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Without limiting the generality of any of the foregoing provisions of this subsection, the DBOM Contractor shall also comply with all applicable requirements relative to the Age Discrimination Act of 1975 (42 USC 6102); Title VI (42 USC 2000d) of the Civil Rights Act of 1964, as
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amended; and Equal Employment Opportunity (Executive Order 11246, as amended) that provide for non-discrimination in federally assisted programs. The DBOM Contractor shall include a similar nondiscrimination clause as set forth in this subsection in all Subcontracts. If the DBOM Contractor fails to include a nondiscrimination clause in a Subcontract, the BWS shall provide a reasonable opportunity to cure the defect. Failure of the DBOM Contractor to cure the defect within the time period granted shall be a material breach of this Service Agreement.
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The action of the DBOM Contractor signing this Service Agreement shall constitute the DBOM Contractor’s acceptance of and pledge to comply with the provisions for the sexual harassment policy as required by ROH § 1-18.
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Table 5.4
Significant Subcontractor | Role |
Pacific Advanced Civil Engineering, Inc. | Engineer of Record and Lead Design Professional Services Firm |
Bowers and Kubota | Lead Architectural, Civil and Landscape Design Consultant |
Nordic PCL Construction, Inc. | General Contractor |
Consolidated Water Co. Ltd.* | Co-Lead Operating Services Firm |
Perc Water Corporation* | Co-Lead Operating Services Firm |
* Equal 50% owner member of Kalaeloa Desalco LLC.
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The DBOM Contractor shall provide to the BWS, promptly following the receipt thereof, copies of any notice of default, breach or non-compliance received under or in connection with any Subcontract that may have a material and adverse effect on performance by the DBOM Contractor of its obligations under this Service Agreement.
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| (i) | A period of ninety days after the day on which the last of the labor was done or performed and the last of the material was furnished or supplied has elapsed without written notice of a claim given to DBOM Contractor and the Surety, as provide for in Section 103D-24, HRS; and |
| (ii) | The Subcontractor has provided to the DBOM Contractor (a) an acceptable release of retainage bond, executed by a surety company authorized to do business in the State, in an amount of not more than two times the amount being retained or withheld by the DBOM Contractor; (b) any other bond acceptable to the DBOM Contractor; or (c) any other form of mutually acceptable collateral. |
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With respect to the Significant Subcontractors set forth in Table 5.4 of subsection 5.4(B) (Required Use of Specified Significant Subcontractors), each of the courses of action described in items (1) through (3) of this subsection, shall be subject to BWS’s written consent, which shall not be unreasonably withheld or delayed.
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In the event any of the preceding conditions are not met, however, the DBOM Contractor shall bear the risk of the imposition of any such additional terms and conditions imposed by a Governmental Body in connection with a Governmental Approval and the design and construction costs resulting from any Design and Construction Requirements Change required under this subsection, and any related costs associated with the impact of any such change on the performance of the Operation Services, if any, shall be borne by the DBOM Contractor.
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Without limiting the right of the BWS to issue a Unilateral Change Directive, the DBOM Contractor shall be entitled to a Change Order in accordance with Section 16.1 (Change Procedures) providing appropriate price, schedule, performance and other relief in the event of a change in the scope of the Design-Build Work, including Design and Construction Requirements Changes, made at the direction of the BWS under this subsection, including, as appropriate any price or performance relief associated with the impact of any such change on the performance of the Operation Services, if any; provided, however, that the DBOM Contractor shall not be entitled to any such price, schedule, performance or other relief to the extent that any such Design and Construction Requirements Change is required due to DBOM Contractor Fault. The BWS shall have no obligation to make any change in the scope of the Design-Build Work, including Design and Construction Requirements Changes, under this Section.
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The DBOM Contractor-designated Governmental Approvals expected to be required as of the Contract Date are set forth in Table 2-1 of Schedule 2 (Governmental Approvals). The DBOM Contractor shall be responsible for identifying, obtaining and maintaining any Governmental Approvals required for the performance of the Design-Build Work that are not BWS-designated Governmental Approvals, whether or not the Governmental Approval is listed in Table 2-1 of Schedule 2 (Governmental Approvals). Subject to the terms and conditions that follow in this subsection, to the extent Applicable Law or the administrative practice of the applicable Governmental Body requires that Governmental Approvals that are required to be obtained by the DBOM Contractor pursuant to this Section be applied for or issued in the BWS’s name or that the BWS directly coordinate with such Governmental Bodies, the DBOM Contractor shall provide all necessary support and efforts to apply for and obtain such Governmental Approvals, including preparing all application and related documents for execution by the BWS. The BWS will support the DBOM Contractor in efforts to obtain any such Governmental Approvals in its name if:
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Any such assistance shall be provided only upon the reasonable request of the DBOM Contractor made directly to the BWS, and the BWS shall have no affirmative obligation independently to initiate or to provide such assistance. The BWS’s obligation to assist and cooperate pursuant to this Section shall be subject to the DBOM Contractor’s obligations under this Section and shall not require the BWS to:
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then the DBOM Contractor shall be entitled to an adjustment to the Scheduled Acceptance Date and the Fixed Design-Build Price to the extent provided in subsection (K) (Assumed Approval Issuance Dates) of this Section.
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Table 7.4
Governmental Approval | Issuing Governmental Body | Assumed Approval Issuance Date (Calendar Days) |
Underground Injection Well Waste Discharge Permit | Hawaii Department of Health, Safe Drinking Water Branch | 290 days1 |
Environmental Impact Statement (EIS), Supplemental | Hawaii Department of Health, Clean Water Branch, BWS and Bureau of Reclamation | 290 days1 |
Archaeological Inventory Survey Report (“AIS”) for Site | State Historic Preservation Division (SHPD) | 80 days1 (draft AIS may be used by DBOM Contractor at BWS’s direction and the risk of changes in the final AIS will be borne by the BWS) |
Olai Street Roadway Easements | DLNR and Property Owner | 290 days1 |
State Lands Access Roadway Easement | DLNR | 290 days1 |
Water Use Permit | State of Hawaii, Department of Land and Natural Resources (DLNR), Commission on Water Resource Management (CWRM) | 180 days2 |
Amendment to the BWS’ Domestic Water Supply Permit | Hawaii Department of Health, Safe Drinking Water Branch | 365 days |
Building Permit | City and County of Honolulu, Department of Planning and Permitting, Site Development Division (“City DPP”) | 332 days |
Preservation Plan, Burial Plan, and Archaeological Monitoring Plan | State Historic Preservation Division (SHPD) | 304 days |
New Domestic Water Supply Permit | Hawaii Department of Health, Safe Drinking Water Branch | 90 days |
Amendment or permission to use the | Hawaii Department of Health, Safe Drinking Water Branch | 30 days3 |
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existing UIC Well permit for Pilot Study discharge |
Notes:
1 This is a BWS-designated Governmental Approval and for purposes of this subsection/table the corresponding Governmental Approval Application Date shall be deemed to be the date of issuance of the Notice to Proceed with the Development Period by the BWS.
2 This is a BWS-designated Governmental Approval and for purposes of this subsection/table the corresponding Governmental Approval Application Date shall be deemed to be the date when the DBOM Contractor submits to the BWS the pump design portion of the permit application. The licensed contractor will need to participate or sign the pump installation application and submit documentation needed to complete the permit application.
3 This is a BWS-designated Governmental Approval and for purposes of this subsection/table the corresponding Governmental Approval Application Date shall be deemed to be the date when the DBOM Contractor submits to the BWS the information on the anticipated wastewater flows and durations, characteristics, quality and content needed to submit the documentation necessary to support DOB’s determination to allow temporary use of the Existing UIC Well for the Pilot Study discharge.
Except as set forth below in this subsection, the Scheduled Acceptance Date shall be adjusted to account for the number of days of delay by a Governmental Body in issuing any required Governmental Approval listed in Table 7.4 of this Section beyond the Assumed Approval Issuance Date, reduced by:
Any adjustment under this subsection shall be limited to the number of days any such Governmental Body delay actually causes delay in the DBOM Contractor’s critical path completion schedule after the exercise of all commercially reasonable mitigation efforts by the DBOM Contractor. In addition, the DBOM Contractor shall be entitled to an adjustment of the Fixed Design-Build Price determined pursuant to Section 19.4 (Schedule Relief and Related Price Relief) for the number of days of delay caused by the applicable Governmental Body, as calculated in accordance with this subsection. The DBOM Contractor shall bear the burden of proving any claim of entitlement to an adjustment under this Section, and shall promptly and regularly inform the BWS as matters arise which may culminate in any such claim in order to permit timely intervention by the BWS should it so elect. The DBOM Contractor has assumed in its Project Schedule that Governmental Approvals to be obtained from the City and County of Honolulu, Department of Planning and Permitting, Site Development Division (the “City DPP”) will be issued under a “one time review” process. If the City DPP does not undertake a “one time review” process with respect to any Governmental Approval under its jurisdiction, then any delay associated with obtaining the applicable Governmental Approval from the City DPP beyond the Assumed Approval Issuance Date as a result of the City DPP’s decision to not
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undertake a “one time review” shall not be grounds for an adjustment to the Scheduled Acceptance Date or to the Fixed Design-Build Price under this subsection. Except as specifically provided for in this Section, no delay by a Governmental Body in issuing a required Governmental Approval shall entitle the DBOM Contractor to any price adjustment, schedule relief or any other relief from its performance obligations hereunder.
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94
all so that the Project is suitable and adequate for the purposes thereof.
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98
Board of Water Supply, City and County of Honolulu | Service Agreement |
All remediation costs resulting from Regulated Substances or Regulated Site Conditions for which the DBOM Contractor bears responsibility pursuant to this Section shall be borne solely by the DBOM Contractor. The DBOM Contractor shall indemnify, defend and hold harmless the BWS Indemnitees in accordance with and to the extent provided in Article 20 (Indemnification) from and against all Loss-and-Expense resulting from Regulated Substances or Regulated Site Conditions for which the DBOM Contractor bears responsibility pursuant to this Section.
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The DBOM Contractor shall erect and maintain, as required by existing conditions and the Contract Standards, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying owners and users of adjacent sites and utilities.
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Except as provided in item (1) of this subsection, in the event such Design-Build Work does comply with this Service Agreement, the delay caused by such observation or test shall be treated as having been caused by an Uncontrollable Circumstance and any costs incurred with respect to such observation or test shall be for the account of the BWS (through and only through a Fixed Design-Build Price Adjustment) in accordance with Article 19 (Uncontrollable Circumstances).
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Alternatively, Mechanical Completion shall occur on any date certified by the BWS, which shall have discretion to waive any of the foregoing conditions.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
In no event shall the Final Punch List contain any incomplete items necessary for full Project operations. The BWS shall have the right to approve the Final Punch List. Completion of the Final Punch List work shall be verified by a final walk-through of the Project conducted by the BWS and the Project Manager with the DBOM Contractor and the Design-Build Manager.
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Alternatively, Final Completion shall occur on any date certified by the BWS, which shall have discretion to waive any of the foregoing conditions.
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Record Adjustment Factor = PPI2/ PPI1 – 1.00
The calculation of each Record Adjustment pursuant to this item (4) shall be reflected in a Contract Administration Memorandum. The parties acknowledge that each PPI is subject to a one-time revision four months after original publication. Accordingly, the parties will review each PPI four months after the Materials Cost Adjustment Date to determine if the index value for the applicable Materials Cost Adjustment Date has been revised. In the event of any such revision, the applicable Record Adjustment shall be revised through the execution of a subsequent Contract Administration Memorandum to reflect the revised PPI for the Materials Cost Adjustment Date. If the BWS issues any limited Notice to Proceed under subsection 6.8(C) (BWS Issuance of Limited Notice to Proceed), then for purposes of calculation of each Record Adjustment pursuant to this item (4) with respect to that portion of any Baseline Cost Amounts applicable to the Design-Build Work authorized to be performed pursuant to such limited Notice to Proceed:
| (i) | Such portion of any Baseline Cost Amounts shall be subtracted from the amount specified in Table 10.1 below; |
| (ii) | The Materials Cost Adjustment Date shall be the date of issuance of such limited Notice to Proceed under subsection 6.8(C) (BWS Issuance of Limited Notice to Proceed) and not the date of issuance of the Notice to Proceed with the Construction Period in |
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Board of Water Supply, City and County of Honolulu | Service Agreement |
| accordance with subsection 6.8(A) (Establishment of the Construction Commencement Date); and |
| (iii) | A separate calculation of the Record Adjustment applicable to such portion of any Baseline Cost Amounts shall be performed in accordance with this item (4). |
Except as provided in paragraph (a) above with respect to the calculation of the Materials Cost Adjustment, Record Adjustments shall not serve to increase or decrease the Fixed Design-Build Price.
Table 10.1
Dept of Labor PPI Series ID | Material | Baseline Cost Amounts |
|---|---|---|
WPU1333 | Ready Mix Concrete | $3,541,553.38 |
WPU05810212 | Asphalt | $189,911.18 |
WPU1017 | Steel Mill Products | $3,492,250.46 |
WPU0721 | Products From Plastic | $3,501,427.93 |
WPU057 | Refined Petroleum Products | $0.00 |
WPU101509 | Other Stainless Castings, low alloy steel | $19,792.97 |
WPU102501 | Aluminium Mill Shapes | $149,352.13 |
WPU10260314 | Copper and Copper Alloy Wire and Cable, bare and timme | $298,113.84 |
WPU11710216 | Electrical Conduit | $358,608.85 |
WPU1331 | Masonry Block and Brick | $256,722.53 |
WPU101704 | Hot Rolled Bars, Plates & Structural Shape | $78,984.80 |
WPU101708 | Cold Finished Bars | $0.00 |
WPU072106 | Plastic Construction Products | $560,228.47 |
WPU101706 | Steel Pipe and Tubing | $1,335,175.96 |
WPU101502 | Pressure and Soil Pipe and Fittings, Cast Iron | $2,739,834.29 |
WPU10250239 | Copper Base Tube and Pipe | $63,814.70 |
WPU102603 | Nonferrous Wire and | $298,223.66 |
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Dept of Labor PPI Series ID | Material | Baseline Cost Amounts |
|---|---|---|
Cable | ||
WPU1174 | Transformers and Other Power Regulators | $289,595.67 |
WPU114902 | Metal Valves | $1,257,625.28 |
WPU1334 | Pre-cast Concrete | $1,463,565.72 |
WPU133201 | Concrete Pipe | $0.00 |
WPU132101 | Construction sand, gravel and stone | $1,429,498.57 |
WPU1175 | Switchgear, switchboard equipment | $2,951,635.46 |
WPU1149 | Misc. general purpose equipment | $7,151,101.71 |
WPU1173 | Motors and Generators | $2,462,767.70 |
WPU114102 | Industrial Pumps | $1,306,639.16 |
WPU1171 | Wiring Devices, Electrical Conduit | $282,215.57 |
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The Project Manager shall review the DBOM Contractor’s certification to the BWS for each Fixed Development Price payment and within 10 Business Days of receipt of the DBOM Contractor’s certification delivered pursuant to this Section, shall verify or dispute in writing (or by telecommunication promptly confirmed in writing) the DBOM Contractor’s certification that the DBOM Contractor has achieved the level of progress indicated and is entitled to payment. If the Project Manager determines that the work has progressed as indicated in the DBOM Contractor’s certification, and the Project Manager provides written notice thereof to the DBOM Contractor and the BWS, the BWS shall pay the DBOM Contractor within 15 Business Days following such determination (but in no event later than 30 days after the BWS’s original receipt of the DBOM Contractor’s certification, subject to the BWS’s right to dispute payment in accordance with this Service Agreement and Applicable Law). Disputes regarding payments of the Fixed Development Price shall be resolved in accordance with subsection (D) (Disbursement Dispute Procedures) of this Section. The BWS shall pay any undisputed amounts of the Fixed Development Price in accordance with this Service Agreement and Applicable Law. In accordance with HRS §103-32.1, payments of the Fixed Development Price shall be subject to retention by the BWS pursuant to subsection 10.3(D) (Retention).
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The Project Manager shall review the DBOM Contractor’s certified Requisitions to the BWS for each Design-Build Price payment and within 10 Business Days after receipt of the DBOM Contractor’s written report delivered pursuant to this Section, shall verify or dispute in writing (or by telecommunication promptly confirmed in writing) the DBOM Contractor’s certification that the DBOM Contractor has achieved the level of progress indicated and is entitled to payment. If the Project Manager determines that the work has progressed as indicated in the DBOM Contractor’s certified Requisition and the Project Manager provides written notice thereof to the DBOM Contractor and the BWS, the BWS shall pay the DBOM Contractor within 15 Business Days following such determination (but in no event later than 30 days after the BWS’s original receipt of the DBOM Contractor’s certified Requisition, subject to the BWS’s right to dispute payment in accordance with this Service Agreement and Applicable Law). Disputes regarding payments of the Fixed Design-Build Price shall be resolved in accordance with subsection (C) of this Section. The BWS shall pay any undisputed amounts of the Fixed Design-Build Price in accordance with this Service Agreement and Applicable Law.
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In the event the Officer-in-Charge finds that the progress is not satisfactory, the Officer-in-Charge may continue to make progress payments to the DBOM Contractor for a sum equal to ninety-five percent (95%) of each construction drawdown payment, less previous payments and sums withheld by the BWS pursuant to this Service Agreement until such time as the DBOM Contractor achieves satisfactory progress. The five percent (5%) withheld from the previous payments prior to any such reduction in retainage after the first fifty percent (50%) of the Design-Build Work has been completed and progress is satisfactory shall continue to be retained by the BWS. The BWS shall release to the DBOM Contractor the accumulated funds retained from all prior drawdown payments (excluding interest) after Acceptance has occurred pursuant to Article 9 (Commissioning, Testing, Acceptance and Final Completion); provided, however, that to the extent items are contained on the Final Punch List, the BWS or the Project Manager shall reasonably estimate the cost to make each correction or to complete each such item and the BWS shall be entitled to withhold from payment of the retained funds an amount equal to 150% the aggregate value of such items, in addition to the amount of unresolved or unbonded claims by third parties or Encumbrances in connection with the Design-Build Work. Upon Final Completion, and so long as the authority contained in the Governmental Approvals to operate the Project remains unimpaired, the BWS shall release to the DBOM Contractor all remaining retained funds, excluding any interest accrued on the amount of the retained funds which interest shall be for the account of the BWS. Upon written request from the DBOM Contractor, if the completion of the Design-Build Work is being delayed by an Uncontrollable Circumstance through no fault of the DBOM Contractor, the DBOM Contractor may request the release of all or part of the amount withheld. The Contracting Officer, upon recommendation of the Officer-in-Charge, may make additional payments from the amount withheld to the extent that such amount withheld is not required for the protection of the BWS. The Contracting Officer may require the DBOM Contractor to submit tax clearances from the State and Internal Revenue Service and Surety clearance as a condition to the release of any retention. The DBOM Contractor may request, and the Contracting Officer, upon recommendation of the Officer-in-Charge, may enter into, an agreement to allow the DBOM Contractor to withdraw from time to time the whole or any portion of the sums retained as set forth above upon depositing with the Contracting Officer any general obligation bond of the State or its political subdivisions with a market value not less than the sum to be withdrawn; provided that the Contracting Officer may require that the total market value of such bond be greater than the sum to be withdrawn.
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In addition, in the event the DBOM Contractor fails to pay any Taxes, assessments, penalties or fees imposed by any Governmental Body (including the City), then the DBOM Contractor authorizes the BWS to deduct and withhold or pay over to the appropriate Governmental Body those unpaid amounts upon demand by the Governmental Body; unless with respect to any Governmental Body other than the City, the DBOM Contractor is contesting any such Taxes assessments, penalties or fees in good faith by appropriate proceedings conducted with due diligence and the BWS has no liability as a result of the failure of the DBOM Contractor to pay any such Taxes assessments, penalties or fees during the period of contest.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
Pursuant to Section 3-122-112, HAR, final payment shall be withheld until the DBOM Contractor is compliant on Hawaii Compliance Express. Final payment does not constitute a waiver by the BWS of any rights relating to the DBOM Contractor’s obligations under this Service Agreement. Final payment constitutes a waiver of all claims by the DBOM Contractor against the BWS relating to the Design-Build Work, the payment of the Design-Build Price or otherwise in connection with the Design-Build Period other than those previously filed in writing with the BWS on a timely basis and still unsettled.
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The DBOM Contractor shall agree to be named as a co-permittee on any Governmental Approval if so required by the issuing Governmental Body or the BWS. The DBOM Contractor shall manage the process of obtaining and maintaining the Governmental Approvals on behalf of the BWS for which it is responsible hereunder in a manner which affords the BWS a reasonable opportunity to participate in the permitting process as desired and to review and comment on such submittals and all material documentation submitted to and issued by any Governmental Body in connection therewith as provided in Schedule 2 (Governmental Approvals). The BWS shall deliver to the DBOM Contractor all Governmental Approvals relating to the Project to which it is a party promptly following receipt thereof.
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In addition to the liquidated damages that may be payable by the DBOM Contractor above, the occurrence of certain unacceptable Product Water events, including repeated, unexcused failures to meet the Water Treatment Guarantee, as identified in Schedule 15 (Performance Guarantee Requirements and Liquidated Damages), shall constitute an Event of Default by the DBOM Contractor upon which the BWS may terminate this Service Agreement for cause in accordance with Section 17.2 (Events of Default by the DBOM Contractor).
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Except for extraordinary Flow Rate changes required due to DBOM Contractor Fault, any extraordinary Flow Rate change required under this subsection shall be considered an Uncontrollable Circumstance, and the DBOM Contractor shall be relieved of its Water Delivery Guarantee obligations under this Section to the extent attributable to the extraordinary Flow Rate change in accordance with and to the extent provided in Article 19 (Uncontrollable Circumstances). In particular, during the period in which such demand change applies, the
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Board of Water Supply, City and County of Honolulu | Service Agreement |
BWS shall be responsible for any electricity demand levels established as a result of actions taken by the BWS under this subsection to the extent that such demand levels exceed those established under normal operating conditions. In responding to any extraordinary Flow Rate changes under this subsection, however, the DBOM Contractor shall be responsible for meeting all other Performance Guarantees. In no event shall a Flow Rate change implemented in accordance with the terms and conditions of subsection (F) (BWS Right to Adjust the Water Delivery Guarantee) of this Section constitute an extraordinary Flow Rate change under this subsection. Any extraordinary Flow Rate change requested by the BWS that is beyond the Facility’s design capacity shall be subject to Article 14 (Capital Modifications).
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For purposes of this Section, the range of Sourced Seawater quality reflected in any pilot testing data concerning the Sourced Seawater provided by the BWS in connection with the Stage-2 RFP, the data compiled by the DBOM Contractor in preparing its Proposal, information that is publicly available concerning similar seawater sources of the type contemplated by this Service Agreement, and information that is generally available to the water treatment industry and that a competent person suitably qualified to operate the Project would reasonably be expected to know in the exercise of Good Industry Practices, shall be considered in determining the anticipated and characteristic concentrations of the Sourced Seawater.
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The DBOM Contractor shall have the right to contest the occurrence of any alleged violation or alleged failure to cure and the DBOM Contractor shall have no obligation to pay such contested amounts until the contest is resolved. In no event shall the payment of liquidated damages by the DBOM Contractor for any failure of performance under this Section relieve the DBOM Contractor from the performance of the particular obligation.
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Notwithstanding any of the foregoing terms and conditions of this subsection, if the replacement of any Excluded Project Equipment and Structures is necessary as the result of DBOM Contractor Fault, including failure of the DBOM Contractor to comply with its obligations under Section 13.1 (Maintenance, Repair and Replacement Generally), subsection (A) (Major Maintenance, Repair and Replacements Generally) of this Section and Schedules 11 (General Operations and Maintenance Requirements) or 12 (Major Maintenance, Repair and Replacement), then the costs incurred for the required replacement of Excluded Project Equipment and Structures shall be borne by the DBOM Contractor and not payable by the BWS pursuant to this subsection.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
With respect to any Capital Modification to be undertaken at the BWS’s expense, the BWS will have the right to elect to be a party to all such construction contracts or design-build contracts, including if the BWS determines it is required to be a party to such contracts by Applicable Law.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
171
ASF = BOC + ACMC + AMRC + RC + EI | ||
Where, | | |
ASF | = | Annual Service Fee |
BOC | = | Base Operating Charge |
ACMC | = | Annual Capital Maintenance Charge |
AMRC | = | Annual Membrane Replacement Charge |
RC | = | Reimbursable Costs Charge |
EI | = | Extraordinary Items Charge or Credit |
Each component of the Service Fee shall be determined in accordance with this Article. The Service Fee is inclusive of all Taxes payable in connection with the performance of the Operation Services, including all applicable State and City general excise, sales use and similar Taxes.
BOC = FC + VC | ||
FC = OE + CE | ||
Where, | | |
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Board of Water Supply, City and County of Honolulu | Service Agreement |
BOC | = | Base Operating Charge |
CE | = | Chemicals Element |
FC | = | Fixed Component |
OE | = | O&M Element |
VC | = | Variable Component |
CPIAFn | = | CPIn-1 ÷ CPIb |
CAFn | = | PPI-Cn-1 ÷ PPI-Cb |
Where, | | |
CPIAFn | = | The CPI Adjustment Factor for Contract Year “n”. |
CPI | = | The final non-seasonally adjusted Consumer Price Index, for All Items, All Urban Consumers for the Honolulu Area (Series ID: CUURS49FSA0), as reported by the U.S. Department of Labor, Bureau of Labor Statistics (BLS). |
CPIn-1 | = | The average of the six bi-monthly (or 12 monthly in the event BLS reports monthly) CPI values occurring in the Contract Year preceding the Contract Year with respect to which a calculation is to be made thereunder. For example, for the Contract Year beginning July 1, 2026, CPIn-1 is the average of the six bi-monthly CPI values for the months of July 2025 through May 2026. |
CPIb | = | The base CPI which is the average of the six bi-monthly CPI values for the months of July 2021 through May 2022. |
CAFn | = | The Chemicals Adjustment Factor for Contract Year “n”. |
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Board of Water Supply, City and County of Honolulu | Service Agreement |
PPI-C | = | The final non-seasonally adjusted Producer Price Index, Industrial Chemical, for U.S. (Series ID: WPU061), as reported by the U.S. Department of Labor, Bureau of Labor Statistics. |
PPI-Cn-1 | = | The average of the 12 monthly PPI-C values occurring in the Contract Year preceding the Contract Year with respect to which a calculation is to be made thereunder. For example, for the Contract Year beginning July 1, 2027, PPI-Cn-1 is the average of the 12 monthly CPI values for the months of July 2026 through June 2027. |
PPI-Cb | = | The base PPI-C which is the average of the 12 monthly PPI-C values for the months of July 2021 through June 2022. |
If the final value of any component index is not available for the applicable period when required hereunder, the amount of the adjustment to be made shall be estimated by using the preliminary value of the index for the applicable period or the final value of the index for the latest available period. All calculations and payments based on such estimate shall be adjusted as soon as reasonably practicable after the final value of the index for the applicable period is published. The DBOM Contractor shall set forth the calculation of the estimated values of the index in its monthly invoices until the final values are published. The DBOM Contractor shall set forth the calculation of the final values of the index and the resulting calculation of the adjustment, if any, to payments made based on the estimated values during the Contract Year in an invoice as soon as practicable after the final value is published. Any dispute as to the estimated values, the final values or the calculation of payment adjustments shall be governed by Section 15.13 (Billing Statement Disputes). If any component index is no longer published at the time that adjustment is to be calculated, or if the base or method of calculation used for the component index is altered, the calculation shall be made using a comparable similar index or method mutually agreed upon by the DBOM Contractor and the BWS.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
CMAF | = | [0.30 x (CPIn-1 ÷ CPIb)] + [0.70 x (CE-PCIn-1 ÷ CE-PCIb)] |
Where, | | |
CPI | = | The final non-seasonally adjusted Consumer Price Index, for All Items, All Urban Consumers for the Honolulu Area (Series ID: CUURS49FSA0), as reported by the U.S. Department of Labor, Bureau of Labor Statistics (BLS). |
CE-PCI | = | The Chemical Engineering Plant Cost Index, as published in Chemical Engineering magazine. |
CPIn-1 | = | The average of the six bi-monthly (or 12 monthly in the event BLS reports monthly) CPI values occurring in the Contract Year preceding the Contract Year with respect to which a calculation is to be made thereunder. For example, for the Contract Year |
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Board of Water Supply, City and County of Honolulu | Service Agreement |
beginning July 1, 2026, CPIn-1 is the average of the six bi-monthly CPI values for the months of July 2025 through May 2026. | ||
CPIb | = | The base CPI which is the average of the six bi-monthly CPI values for the months of July 2021 through May 2022. |
CE-PCI n-1 | = | The average of the 12 monthly CE-PCI values occurring in the Contract Year preceding the Contract Year with respect to which a calculation is to be made thereunder. For example, for the Contract Year beginning July 1, 2027, CE-PCI n-1 is the average of the 12 monthly CE-PCI values for the months of July 2026 through June 2027. |
CE-PCI b | = | The base CE-PCI which is the average of the 12 monthly CE-PCI values for the months of July 2021 through June 2022. |
If the final value of any component index is not available for the applicable period when required hereunder, the amount of the adjustment to be made shall be estimated by using the preliminary value of the index for the applicable period or the final value of the index for the latest available period. All calculations and payments based on such estimate shall be adjusted as soon as reasonably practicable after the final value of the index for the applicable period is published. If any component index is no longer published at the time that adjustment is to be calculated, or if the base or method of calculation used for the component index is altered, the calculation shall be made using a comparable similar index or method mutually agreed upon by the DBOM Contractor and the BWS.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
The provisions in this subsection shall not be construed to impair the right of the DBOM Contractor and the BWS from mutually agreeing to a price adjustment under any method listed in items (1) through (5) of subsection (E) (Price Adjustment) of this Section.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
However, the Officer-in-Charge may request cost or pricing data if the Officer-in-Charge considers that such price is not reasonable.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
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Board of Water Supply, City and County of Honolulu | Service Agreement |
If the DBOM Contractor shall have initiated within such reasonable time and continued with due diligence to carry out to completion all actions required under item (2) above, the default shall not constitute an Event of Default during such period of time (in any event not more than 60 days from the initial default notice) as the DBOM Contractor shall continue with due diligence to carry out to completion all such actions.
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Board of Water Supply, City and County of Honolulu | Service Agreement |
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If the BWS shall have initiated and continued with due diligence to carry out to completion all actions required under item (2) above, the default shall not constitute an Event of Default during such period of time (in any event not more than 60 days from the initial default notice) as the BWS shall continue with due diligence to carry out to completion all such actions.
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If the DBOM Contractor fails to file a termination claim within one year from the effective date of termination, the Contracting Officer may, upon recommendation of the Officer-in-Charge, pay the DBOM Contractor, if at all, an amount set in accordance with items (1) through (4) of this subsection. Costs claimed, agreed to, or established under this subsection shall be in accordance with the Hawaii Procurement Code and its administrative rules and shall be subject to Cost Substantiation. Under no circumstances shall the DBOM Contractor or any Subcontractor be entitled to anticipatory or unearned profits, unabsorbed overhead, opportunity costs, or consequential or other damages as a result of a termination for convenience under this Section.
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If the DBOM Contractor fails to file a termination claim within one year from the effective date of termination, payment may be made by the BWS to the DBOM Contractor, if at all, in an amount set in accordance with items (1) through (4) of this subsection. Costs claimed, agreed to, or established under this subsection shall be in accordance with the Chapter 3-123, HAR, and shall be subject to Cost Substantiation. Under no circumstances shall the DBOM
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Contractor or any Subcontractor be entitled to anticipatory or unearned profits, unabsorbed overhead, opportunity costs, or consequential or other damages as a result of a termination for convenience under this Section.
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All policies of insurance provided by or on behalf of the DBOM Contractor shall be primary and non-contributory with respect to any insurance or self-insurance carried by the BWS. Unless the applicable insurance policy expressly allows the insurer to investigate and settle claims without the insured’s or additional insured’s approval, the BWS shall have the right to fully participate in all insurance claim settlement negotiations and to approve all final insurance settlements, which approval shall not be unreasonably withheld.
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Without limiting any obligation under this Article, as soon as practicable following notification of any Uncontrollable Circumstance, the parties shall consult with each other in good faith and use all reasonable efforts to agree on appropriate terms to mitigate the effects of the Uncontrollable Circumstance and facilitate the continued performance of this Service Agreement. The affected party shall notify the other party as soon as practicable after the Uncontrollable Circumstance ceases or no longer causes the affected party to be unable to comply with its obligations under this Service Agreement.
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or any combination thereof, each of which properly reflects the interference with performance, the time lost as a result thereof, or the amount of the increased cost, in each case only to the minimum extent necessary to compensate the DBOM Contractor or provide performance or schedule relief and only to the extent directly attributable to the Uncontrollable Circumstance. Price relief associated with an Uncontrollable Circumstance may include a mark-up, which shall be consistent with subsection 16.1(F) (Overhead and Profit). Any cost reduction achieved, or which should have been achieved, through the mitigation measures undertaken by the DBOM Contractor pursuant to Section 22.10 (General Duty to Mitigate) shall be reflected in a reduction of the amount by which the Fixed Design-Build Price or the Service Fee would have otherwise been increased or shall serve to reduce the Design-Build Price or the Service Fee to reflect such mitigating measures, as applicable. The DBOM Contractor shall not be entitled to any price relief on account of any costs incurred as the result of DBOM Contractor Fault or an act, event or circumstance that the DBOM Contractor is obligated to insure against under Article 18 (Insurance), irrespective of any limits of coverage and of any deductible applicable under any policy of insurance maintained or required to be maintained thereunder. Except as expressly provided in subsection 19.4(B) (Compensable Uncontrollable Circumstance Delay), the DBOM Contractor shall not be entitled to any price relief on account of delays attributable to Uncontrollable Circumstances.
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As indicated in item (1) of this subsection, any requests for time extensions during the Design-Build Period shall be limited to demonstrable delays in the critical path attributable to the event or circumstance giving rise to the request. To be considered by the BWS, the request shall be in sufficient detail (as determined by the BWS) to enable the BWS to ascertain the basis and amount of the time requested. The DBOM Contractor shall be responsible for preparing a Project Schedule update demonstrating to the BWS’s reasonable satisfaction that the event or circumstance: (a) had a specific impact on the critical path, and except in cases of concurrent delay, was the sole cause of such impact, and (b) could not have been avoided by re-sequencing of the Design-Build Work or other reasonable alternatives. In evaluating any request, the BWS will consider previous delays to the critical path that are not attributable to Uncontrollable Circumstances between the date of issuance of the Notice to Proceed for the Development Period or the Construction Period, as applicable, up to the point of the delay resulting from the applicable Uncontrollable Circumstance, and the effect any such previous delays have on the completion times included in the Project Schedule shall not be included in the time extension granted on account of the Uncontrollable Circumstance. The DBOM Contractor shall not be entitled to any time extension for Project delays unless such delays impact the ability of the DBOM Contractor to achieve the Scheduled Acceptance Date or Final Completion, as applicable, by the specified deadline. Delays that impact the DBOM Contractor’s ability to achieve planned early achievement of Acceptance or Final Completion, as applicable, shall not be the subject of a time extension.
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In addition, where any claim results from the concurrent negligence of (a) a BWS Indemnitee and (b) any DBOM Contractor Person, the DBOM Contractor Indemnity shall apply only to the extent of the negligence of the DBOM Contractor Person.
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The DBOM Contractor shall indemnify the BWS Indemnitees in a timely manner. The BWS Indemnitees, however, shall reimburse the DBOM Contractor for any proceeds subsequently received from the sources described in this subsection, to the extent that the DBOM Contractor would not have otherwise owed the BWS Indemnitees if such proceeds were available when the DBOM Contractor originally indemnified the BWS Indemnitees.
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In the event that the DBOM Contractor provides credit enhancement in the form of a replacement guarantor pursuant to item (1) of this subsection, the replacement guarantor shall become the Guarantor for purposes of this Service Agreement and the provisions of this Section shall apply equally to such replacement Guarantor. The BWS shall have the right but not the obligation, exercisable in its discretion, to waive, modify, alter or replace the foregoing requirement from time to time as and to the extent the BWS deems necessary to protect the public interest and to secure the performance by the DBOM Contractor of its obligations hereunder and by the Guarantor of its obligations under the Guaranty Agreement in light of the nature, extent and potential duration of the Material Adverse Change.
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The DBOM Contractor shall promptly advise the BWS as to whether any Unilateral Change Directive may result in any infringement or unauthorized use and, in the event of any failure by the DBOM Contractor to so advise the BWS, the DBOM Contractor shall indemnify, defend and hold harmless the BWS in accordance with and to the extent provided in Article 20 (Indemnification) for any Loss-and-Expense resulting from any such infringement or unauthorized use.
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The BWS shall have no obligation to mitigate, implied or otherwise, except as set forth in this Section or as expressly provided in this Service Agreement. Upon request by the DBOM Contractor, the BWS will promptly submit a detailed description, supported by all such documentation as the DBOM Contractor may reasonably require, of the measures and steps taken by the BWS to mitigate and meet its obligations under this Section.
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The BWS shall not be bound by any such certification and shall have the independent right to make its own determination with respect to any matter certified by any proposed assignee pursuant to this subsection. Any BWS approval of an assignment of this Service Agreement given in one instance shall not relieve the DBOM Contractor of its obligation to obtain the prior written approval of the BWS to any further assignment. Any such assignment of this Service Agreement which is approved by the BWS, shall require the assignee of the DBOM Contractor to assume the performance of and observe all obligations, representations and warranties of the DBOM Contractor under this Service Agreement, and no such assignment shall relieve the Guarantor of any of its obligations under the Guaranty Agreement, which shall remain in full force and effect during the Term hereof. The approval of any assignment, transfer or conveyance shall not operate to release the DBOM Contractor in any way from any claims already made against the DBOM Contractor under this Service Agreement unless such approval specifically provides otherwise. Any such approval of assignment shall be conditioned upon the assignee expressly agreeing to assume all obligations of the DBOM Contractor under this Service Agreement, including remedying any breaches that occurred prior to such assignment whether known or unknown at the time of assignment.
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Personal information does not include publicly available information that is lawfully made available to the general public from federal, BWS, or local government records. For purposes of this Section, “technological safeguards” means the technology and the policy and procedures for use of the technology to protect and control access to personal information.
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In either instance, the DBOM Contractor and the BWS shall follow chapter 487N, HRS, with respect to notification of a security breach of personal information.
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Honolulu Board of Water Supply Honolulu, Hawaii 96843 Manager and Chief Engineer Email Address: elau@hbws.org |
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with a copy to: Honolulu Board of Water Supply 630 South Beretania Street Honolulu, Hawaii 96843 Program Administrator, Water Resources Division Email Address: busagawa@hbws.org |
Kalaeloa Desalco LLC Fountain Valley, CA 92708 Attn: Nate Owen President Email Address: nowen@percwater.com |
with a copy to: Consolidated Water US Holdings, Inc. |
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Service Agreement to be executed by their duly authorized representatives as of the day and year first above written.
BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU | | KALAELOA DESALCO LLC | ||||
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By: | /s/ Ernest Y.W. Lau, P.E. | | By: | /s/ Nathan Owen | ||
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Name: | Ernest Y.W. Lau, P.E. | | Name: | Nathan Owen | ||
Printed | | Printed | ||||
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Title: | Manager and Chief Engineer | | Title: | President | ||
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Date: _June 2, 2023 ____________________ | | Date: _May 9, 2023 _________________________ | ||||
“Contract Date” | | | ||||
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APPROVED AS TO CONTENTS | | | ||||
By: /s/ Barry Usagawa Name: Barry Usagawa Printed Title: Program Administrator | ||||||
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APPROVED AS TO FORM AND LEGALITY | | | ||||
By: /s/ Geoffrey M. Kam Name: Geoffrey M. Kam Printed Title: Deputy Corporation Counsel | ||||||
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SERVICE AGREEMENT
DBOM CONTRACTOR ACKNOWLEDGMENT
STATE OF California )
: SS.
COUNTY OF Orange )
On this 9th day of May, 2023 before me appeared
Nathan Owen to me known to be the person(s) described in and who, on the date set forth above did in fact sign his/her name before me, and being by me duly sworn, did say that he isPresident of Kalaeloa Desalco LLC the DBOM Contractor named in the foregoing instrument, and that he is authorized to sign said 242 page instrument entitled Service Agreement and dated May 9, 2023 on behalf of the DBOM Contractor, and acknowledges that he/she/they executed said instrument as the free act and deed of the DBOM Contractor.
/s/ Dianna J. Benesh
(Notary Seal)Notary Public
State of California
My commission
expires: February 12, 2027
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SCHEDULES
TO THE SERVICE AGREEMENT
FOR THE
KALAELOA SEAWATER DESALINATION FACILITY
DESIGN, BUILD, OPERATE AND MAINTAIN PROJECT
OAHU, HAWAII
between
THE BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU
and
KALAELOA DESALCO LLC
|
[This Page Intentionally Left Blank]
EXHIBIT 10.2
|
GUARANTY AGREEMENT
from
CONSOLIDATED WATER CO. LTD.
to
THE BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU
Dated as of
June 2, 2023
|
[This Page Intentionally Left Blank]
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
ARTICLE III
GUARANTY COVENANTS
ARTICLE IV
GENERAL COVENANTS
[This Page Intentionally Left Blank]
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is made and dated as of June 2, 2023, between Consolidated Water Co. Ltd., a limited company organized and existing under the laws of the Cayman Islands (together with any permitted successors and assigns hereunder, the “Guarantor”), and the Board of Water Supply of the City and County of Honolulu, Hawaii (the “BWS”).
RECITALS
The BWS and Kalaeloa Desalco LLC, a limited liability company organized and existing under the laws of the State of Hawaii (the “DBOM Contractor”), have entered into a Service Agreement for the Kalaeloa Seawater Desalination Facility, Design, Build, Operate and Maintain Project, dated as of June 2, 2023, as amended from time to time (the “Service Agreement”), whereby the DBOM Contractor has agreed to obtain governmental approvals for, design, construct, start up, commission, acceptance test, operate, maintain, repair and replace a water treatment plant and related facilities, all as more particularly described therein.
The DBOM Contractor is an indirect subsidiary of the Guarantor.
Performance by the BWS and the DBOM Contractor of their obligations under the Service Agreement will result in a direct and substantial benefit to the Guarantor.
The BWS will enter into the Service Agreement only if, concurrently with its execution and delivery by the DBOM Contractor, the Guarantor guarantees the performance by the DBOM Contractor of all of the DBOM Contractor’s Obligations under the Service Agreement as set forth in this Guaranty Agreement.
In order to induce the execution and delivery of the Service Agreement by the BWS and in consideration thereof, the Guarantor agrees as follows:
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. For the purposes of this Guaranty Agreement, the following words and terms shall have the respective meanings set forth as follows. Any other capitalized word or term used but not defined herein is used as defined in the Service Agreement.
“Obligations” means the amounts payable by, and the covenants and agreements of, the DBOM Contractor pursuant to the terms of the Service Agreement.
“Transaction Agreement” means any agreement entered into by the DBOM Contractor or the BWS in connection with the transactions contemplated by the Service Agreement, including the Service Agreement and any supplements thereto.
SECTION 1.2. INTERPRETATION. In this Guaranty Agreement, unless the context otherwise requires:
(A)References Hereto. The terms “hereto”, “hereby”, “hereof”, “herein”, “hereunder” and any similar terms refer to this Guaranty Agreement, and the term “hereafter” means after, and the term “heretofore” means before, the date of execution and delivery of this Guaranty Agreement.
(B)Plurality. Words importing the singular number mean and include the plural number and vice versa.
(C)Persons. Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals.
(D)Headings. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Guaranty Agreement shall be solely for convenience of reference and shall not constitute a part of this Guaranty Agreement, nor shall they affect its meaning, construction or effect.
(E)Entire Agreement. This Guaranty Agreement constitutes the entire agreement between the parties hereto with respect to the transactions contemplated by this Guaranty Agreement. Except as provided in the Service Agreement with respect to the BWS Indemnitees, nothing in this Guaranty Agreement is intended to confer on any person other than the Guarantor, the BWS and their permitted successors and assigns hereunder any rights or remedies under or by reason of this Guaranty Agreement.
(F)Counterparts. This Guaranty Agreement may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Guaranty Agreement.
(G)Applicable Law. This Guaranty Agreement shall be governed by and construed in accordance with the applicable laws of the State of Hawaii.
(H)Severability. If any clause, provision, subsection, Section or Article of this Guaranty Agreement shall be ruled invalid by any court of competent jurisdiction, the invalidity of any such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Guaranty Agreement shall be construed and enforced as if such
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invalid portion did not exist provided that such construction and enforcement shall not increase the Guarantor’s liability beyond that expressly set forth herein.
(I)Approvals. All approvals, consents and acceptances required to be given or made by any party hereto shall be at the sole discretion of the party whose approval, consent or acceptance is required.
(J)Payments. All payments required to be made by the Guarantor hereunder shall be made in lawful money of the United States of America.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR. The Guarantor hereby represents and warrants that:
(1)Existence and Powers. The Guarantor is a limited company duly organized, validly existing and in good standing under the laws of the Cayman Islands, with the full legal right, power and authority to enter into and perform its obligations under this Guaranty Agreement.
(2)Due Authorization and Binding Obligation. This Guaranty Agreement has been duly authorized, executed and delivered by all necessary corporate action of the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights from time to time in effect and equitable principles of general application.
(3)No Conflict. To the best of its knowledge, neither the execution nor delivery by the Guarantor of this Guaranty Agreement nor the performance by the Guarantor of its obligations in connection with the transaction contemplated hereby or the fulfillment by the Guarantor of the terms and conditions hereof: (a) conflicts with, violates or results in a breach of any law or governmental regulation applicable to the Guarantor; (b) conflicts with, violates or results in a breach of any term or condition of the Guarantor’s corporate charter or by-laws or any order, judgment or decree, or any contract, agreement or instrument to which the Guarantor is a party or by which the Guarantor or any of its properties or assets are bound, or constitutes a default under any of the foregoing; or (c) will result in the creation or imposition of any material encumbrance of any nature whatsoever upon any of the properties or assets of the Guarantor except as permitted hereby.
(4)No Approvals Required. No approval, authorization, order or consent of, or declaration, registration or filing with, any Governmental Body is required for the valid execution and delivery of this Guaranty Agreement by the Guarantor or the performance of its payment or other obligations hereunder, except as such shall have been duly obtained or made.
(5)No Litigation. Except as disclosed in writing to the BWS, there is no Legal Proceeding, at law or in equity, before or by any Governmental Body pending or, to the best of the Guarantor’s knowledge, overtly threatened or publicly announced against the Guarantor, in which an unfavorable decision, ruling or finding could reasonably be expected to have a material and adverse effect on the validity, legality or enforceability of this Guaranty Agreement against the Guarantor, or on the ability of the Guarantor to perform its obligations hereunder.
(6)No Legal Prohibition. The Guarantor has no knowledge of any Applicable Law in effect on the date as of which this representation is being made which would prohibit the performance by the Guarantor of this Guaranty Agreement and the transactions contemplated by this Guaranty Agreement.
(7)Service Agreement. The Guarantor is fully aware of and consents to the terms and conditions of the Service Agreement.
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(8)Consideration. This Guaranty Agreement is made in furtherance of the purposes for which the Guarantor has been organized, and the assumption by the Guarantor of its obligations hereunder will result in a material benefit to the Guarantor.
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ARTICLE III
GUARANTY COVENANTS
SECTION 3.1. GUARANTY TO THE BWS. The Guarantor hereby absolutely, presently, irrevocably and unconditionally guarantees to the BWS for the benefit of the BWS (1) the full and prompt payment when due of each and all of the payments required to be credited or made by the DBOM Contractor under the Service Agreement (including all amendments and supplements thereto) to, or for the account of, the BWS, when the same shall become due and payable pursuant to this Guaranty Agreement, and (2) the full and prompt performance and observance of each and all of the Obligations. Notwithstanding the unconditional nature of the Guarantor’s obligations as set forth herein, the Guarantor shall have the right to assert the defenses provided in Section 3.4 hereof against claims made under this Guaranty Agreement.
SECTION 3.2. RIGHT OF BWS TO PROCEED AGAINST GUARANTOR. This Guaranty Agreement shall constitute a guaranty of payment and of performance and not of collection, and the Guarantor specifically agrees that in the event of a failure by the DBOM Contractor to pay or perform any Obligation guaranteed hereunder, the BWS shall have the right to proceed first and directly against the Guarantor under this Guaranty Agreement and without proceeding against the DBOM Contractor or exhausting any other remedies against the DBOM Contractor which the BWS may have. Without limiting the foregoing, the Guarantor agrees that it shall not be necessary, and that the Guarantor shall not be entitled to require, as a condition of enforcing the liability of the Guarantor hereunder, that the BWS: (1) file suit or proceed to obtain a personal judgment against the DBOM Contractor or any other person that may be liable for the Obligations or any part of the Obligations; (2) make any other effort to obtain payment or performance of the Obligations from the DBOM Contractor other than providing the DBOM Contractor with any notice of such payment or performance as may be required by the terms of the Service Agreement or required to be given to the DBOM Contractor under Applicable Law; (3) foreclose against or seek to realize upon any security for the Obligations; or (4) exercise any other right or remedy to which the BWS is or may be entitled in connection with the Obligations or any security therefor or any other guarantee thereof, except to the extent that any such exercise of such other right or remedy may be a condition to the Obligations of the DBOM Contractor or to the enforcement of remedies under the Service Agreement. Upon any unexcused failure by the DBOM Contractor in the payment or performance of any Obligation and the giving of such notice or demand, if any, to the DBOM Contractor and the Guarantor as may be required in connection with such Obligation and this Guaranty Agreement, the liability of the Guarantor shall be effective and shall immediately be paid or performed. Notwithstanding the BWS’s right to proceed directly against the Guarantor, the BWS (or any successor) shall not be entitled to more than a single full performance of the Obligations in regard to any breach or non-performance thereof.
SECTION 3.3. GUARANTY ABSOLUTE AND UNCONDITIONAL. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the DBOM Contractor shall have fully discharged the Obligations in accordance with their respective terms and conditions, and, except as provided in Section 3.4, shall not be subject to any counterclaim, set-off, deduction or defense (other than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) based on any claim that the Guarantor may have against the DBOM Contractor, the BWS or any other person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any way modified by reason of any of the following (whether with or without notice to, knowledge by, or further consent, of the Guarantor):
(1)the extension or renewal of this Guaranty Agreement or the Service Agreement up to the specified Terms of each agreement;
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(2)any exercise or failure, omission or delay by the BWS in the exercise of any right, power or remedy conferred on the BWS with respect to this Guaranty Agreement or the Service Agreement except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(3)any permitted transfer or assignment of rights or obligations under the Service Agreement or under any other Transaction Agreement by any party thereto, or any permitted assignment, conveyance or other transfer of any of their respective interests in the Project or in, to or under any of the Transaction Agreements;
(4)any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the BWS or any other person in any Transaction Agreement or in the Project;
(5)any renewal, amendment, change or modification in respect of any of the Obligations or terms or conditions of any Transaction Agreement;
(6)any failure of title with respect to all or any part of the respective interests of any person in the Project Site or the Project;
(7)the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the DBOM Contractor or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty Agreement or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty Agreement shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not been instituted and as if no rejection, stay, termination, assumption or modification has occurred as a result thereof, it being the intent and purpose of this Guaranty Agreement that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(8)except as permitted by Section 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the capital stock or other interest of the Guarantor or any Affiliate in the DBOM Contractor now or hereafter owned, directly or indirectly, by the Guarantor or any Affiliate, or any change in composition of the interests in the DBOM Contractor;
(9)any failure on the part of the DBOM Contractor for any reason to perform or comply with any agreement with the Guarantor;
(10)the failure on the part of the BWS to provide any notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty Agreement and to the DBOM Contractor as a condition to the enforcement of Obligations pursuant to the Service Agreement;
(11)any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the DBOM Contractor or the Guarantor under any Transaction Agreement;
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(12)the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease, transfer, abandonment or other disposition of any or all of the property of any of the foregoing to any person;
(13)any legal disability or incapacity of any party to the Transaction Agreements; or
(14)the fact that entering into any Transaction Agreement by the DBOM Contractor or the Guarantor was invalid or in excess of the powers of such party.
Should any money due or owing under this Guaranty Agreement not be recoverable from the Guarantor due to any of the matters specified in subparagraphs (1) through (14) above, then, in any such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the DBOM Contractor pursuant to the terms of the Service Agreement and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of this Guaranty Agreement. Notwithstanding anything to the contrary expressed in this Guaranty Agreement, nothing in this Guaranty Agreement shall be deemed to amend, modify, clarify, expand or reduce the DBOM Contractor’s rights, benefits, duties or obligations under the Service Agreement. To the extent that any of the matters specified in subparagraphs (1) through (6) and (8) through (14) would provide a defense to, release, discharge or otherwise affect the DBOM Contractor’s Obligations, the Guarantor’s obligations under this Guaranty Agreement shall be treated the same.
SECTION 3.4. DEFENSES, SET-OFFS AND COUNTERCLAIMS. Notwithstanding any provision contained herein to the contrary, the Guarantor shall be entitled to exercise or assert any and all legal or equitable rights or defenses which the DBOM Contractor may have under the Service Agreement or under Applicable Law (other than bankruptcy or insolvency of the DBOM Contractor and other than any defense which the DBOM Contractor has expressly waived in the Service Agreement or the Guarantor has expressly waived in Section 3.5 hereof or elsewhere hereunder), and the obligations of the Guarantor hereunder are subject to such counterclaims, set-offs or deductions which the DBOM Contractor is permitted to assert pursuant to the Service Agreement, if any.
SECTION 3.5. WAIVERS BY THE GUARANTOR. The Guarantor hereby unconditionally and irrevocably waives:
(1)notice from the BWS of its acceptance of this Guaranty Agreement;
(2)notice of any of the events referred to in Section 3.3 hereof, except to the extent that notice is required to be given as a condition to the enforcement of the Obligations;
(3)to the fullest extent lawfully possible, all notices which may be required by statute, rule of law or otherwise to preserve intact any rights against the Guarantor, except any notice to the DBOM Contractor required pursuant to the Service Agreement or Applicable Law as a condition to the performance of any Obligation;
(4)to the fullest extent lawfully possible, any statute of limitations defense based on a statute of limitations period which may be applicable to guarantors (or parties in similar relationships) which would be shorter than the applicable statute of limitations period for the underlying claim;
(5)any right to require a proceeding first against the DBOM Contractor;
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Board of Water Supply, City and County of Honolulu | Guaranty Agreement Article III - Guaranty Covenants |
(6)any right to require a proceeding first against any person or the security provided by or under any Transaction Agreement except to the extent such Transaction Agreement specifically requires a proceeding first against any person (except the DBOM Contractor) or security;
(7)any requirement that the DBOM Contractor be joined as a party to any proceeding for the enforcement of any term of any Transaction Agreement;
(8)the requirement of, or the notice of, the filing of claims by the BWS in the event of the receivership or bankruptcy of the DBOM Contractor; and
(9)all demands upon the DBOM Contractor or any other person and all other formalities the omission of any of which, or delay in performance of which, might, but for the provisions of this Section 3.5, by rule of law or otherwise, constitute grounds for relieving or discharging the Guarantor in whole or in part from its absolute, present, irrevocable, unconditional and continuing obligations hereunder.
SECTION 3.6. PAYMENT OF COSTS AND EXPENSES. The Guarantor agrees to pay the BWS on demand all Fees and Costs, incurred by or on behalf of the BWS in successfully enforcing by Legal Proceeding observance of the covenants, agreements and obligations contained in this Guaranty Agreement against the Guarantor, other than the Fees and Costs that the BWS incurs in performing any of its obligations under the Service Agreement, or other applicable Transaction Agreement where such obligations are a condition to performance by the DBOM Contractor of its Obligations.
SECTION 3.7. SUBORDINATION OF RIGHTS. The Guarantor agrees that any right of subrogation or contribution which it may have against the DBOM Contractor as a result of any payment or performance hereunder is hereby fully subordinated to the rights of the BWS hereunder and under the Transaction Agreements and that the Guarantor shall not recover or seek to recover any payment made by it hereunder from the DBOM Contractor until the DBOM Contractor and the Guarantor shall have fully and satisfactorily paid or performed and discharged the Obligations giving rise to a claim under this Guaranty Agreement.
SECTION 3.8. SEPARATE OBLIGATIONS; REINSTATEMENT. The obligations of the Guarantor to make any payment or to perform and discharge any other duties, agreements, covenants, undertakings or obligations hereunder shall: (1) to the extent permitted by Applicable Law, constitute separate and independent obligations of the Guarantor from its other obligations under this Guaranty Agreement; (2) give rise to separate and independent causes of action against the Guarantor; and (3) apply irrespective of any indulgence granted from time to time by the BWS. The Guarantor agrees that this Guaranty Agreement shall be automatically reinstated if and to the extent that for any reason any payment or performance by or on behalf of the DBOM Contractor is rescinded or must be otherwise restored by the BWS, whether as a result of any proceedings in bankruptcy, reorganization or similar proceeding, unless such rescission or restoration is pursuant to the terms of the Service Agreement, or any applicable Transaction Agreement or the DBOM Contractor’s enforcement of such terms under Applicable Law.
SECTION 3.9. TERM. This Guaranty Agreement is valid, binding and enforceable upon the date of execution and delivery hereof and shall remain in full force and effect until all of the Obligations of the DBOM Contractor have been fully paid and performed.
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ARTICLE IV
GENERAL COVENANTS
SECTION 4.1. MAINTENANCE OF CORPORATE EXISTENCE.
(A) Consolidation, Merger, Sale or Transfer. The Guarantor covenants that during the term of this Guaranty Agreement it will maintain its corporate existence, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it unless the successor is the Guarantor and the conditions contained in clause (2) below are satisfied; provided, however, that the Guarantor may consolidate with or merge into another entity, or permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer to another entity all or substantially all of its assets as an entirety and thereafter dissolve if: (1) the successor entity (if other than the Guarantor) (a) assumes in writing all the obligations of the Guarantor hereunder and, if required by law, is duly qualified to do business in the State of Hawaii, and (b) delivers to the BWS an opinion of counsel to the effect that its obligations under this Guaranty Agreement are legal, valid, binding and enforceable subject to applicable bankruptcy and similar insolvency or moratorium laws; and (2) any such transaction does not result in a Material Adverse Change, as defined in Section 21.1 of the Service Agreement or if such transaction results in a Material Adverse Change, as defined in Section 21.1 of the Service Agreement, the DBOM Contractor or the Guarantor provides credit enhancement as required by Section 21.1 of the Service Agreement.
(B)Continuance of Obligations. If a consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section. No such consolidation, merger or sale or other transfer shall have the effect of releasing the initial Guarantor from its liability hereunder unless a successor entity has assumed responsibility for this Guaranty Agreement as provided in this Section, and if such transaction results in a Material Adverse Change, as defined in Section 21.1 of the Service Agreement, the DBOM Contractor or the successor Guarantor shall provide credit enhancement as required by Section 21.1 of the Service Agreement.
SECTION 4.2. ASSIGNMENT. Except as provided in Section 4.1, this Guaranty Agreement may not be assigned by the Guarantor without the prior written consent of the BWS.
SECTION 4.3. QUALIFICATION IN HAWAII. The Guarantor agrees that, so long as this Guaranty Agreement is in effect, if required by law, the Guarantor will be duly qualified to do business in the State of Hawaii.
SECTION 4.4. CONSENT TO JURISDICTION. The Guarantor irrevocably: (1) agrees that any Legal Proceeding related to this Guaranty Agreement or to any rights or relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in the State courts located in Honolulu, Hawaii, having appropriate jurisdiction therefor; (2) consents to the jurisdiction of such courts in any such Legal Proceeding; and (3) waives any objection which it may have to the laying of the jurisdiction of any such Legal Proceeding in any such court.
SECTION 4.5. BINDING EFFECT. This Guaranty Agreement shall inure to the benefit of the BWS and its permitted successors and assigns and shall be binding upon the Guarantor and its successors and assigns.
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Board of Water Supply, City and County of Honolulu | Guaranty Agreement Article IV - General Covenants |
SECTION 4.6. AMENDMENTS, CHANGES AND MODIFICATIONS. This Guaranty Agreement may not be amended, changed or modified or terminated and none of its provisions may be waived, except with the prior written consent of the BWS and the Guarantor.
SECTION 4.7. LIABILITY. It is understood and agreed to by the BWS that nothing contained herein shall create any obligation of, or right to look, to any director, officer, employee or stockholder of the Guarantor (or any Affiliate of the Guarantor) for the satisfaction of any obligations hereunder, and no judgment, order or execution with respect to or in connection with this Guaranty Agreement shall be taken against any such director, officer, employee or stockholder.
SECTION 4.8. NOTICES.
(A) Procedure. All notices, demands or written communications given pursuant to the terms of this Guaranty Agreement shall be: (1) in writing and delivered in person; (2) transmitted by certified mail, return, receipt requested, postage prepaid or by overnight courier utilizing the services of a nationally-recognized overnight courier service with signed verification of delivery; or (3) given by facsimile transmission, if a signed original is deposited in the United States mail within two days after transmission. Notices shall be deemed given only when actually received at the address first given below with respect to each party. Either party may, by like notice, designate further or different addresses to which subsequent notices shall be sent.
(B)BWS Notice Address. Notices required to be given to the BWS shall be addressed as follows:
Honolulu Board of Water Supply Honolulu, Hawaii 96843 Manager and Chief Engineer Email Address: elau@hbws.org |
with a copy to: Honolulu Board of Water Supply 630 South Beretania Street Honolulu, Hawaii 96843 Program Administrator, Water Resources Division Email Address: busagawa@hbws.org |
(C)Guarantor Notice Address. Notices required to be given to the Guarantor shall be addressed as follows:
Consolidated Water Co. Ltd. Regatta Office Park President |
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Board of Water Supply, City and County of Honolulu | Guaranty Agreement Article IV - General Covenants |
Email Address: fmctaggart@cwco.com |
with a copy to: Duane Morris LLP 1875 NW Corporate Boulevard Telephone No.: (561) 962-2139 Email Address: drugarte@duanemorris.com |
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Board of Water Supply, City and County of Honolulu | Guaranty Agreement Article IV - General Covenants |
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty Agreement to be executed in its name and on its behalf by its duly authorized officer as of the date first above written.
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GUARANTY AGREEMENT
GUARANTOR ACKNOWLEDGMENT
STATE OF FLORIDA )
: SS.
COUNTY OF BROWARD )
On this 9th day of May, 2023 before me appeared
Frederick W. McTaggart to me known to be the person described in and who, on the date set forth above did in fact sign his/her name before me, and being by me duly sworn, did say that he isPresident and Chief Executive Officer of Consolidated Water Co. Ltd. the Guarantor named in the foregoing instrument, and that he/she/they is/are authorized to sign said 16 page instrument entitled Guaranty Agreement and dated May 9, 2023 on behalf of the Guarantor, and acknowledges that he/she/they executed said instrument as the free act and deed of the Guarantor.
/s/ Michael Latchan
(Notary Seal)Notary Public
State of Florida
My commission
expires: December 18, 2024
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