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Exhibit 10.03
Agreement for Desgin, Supploy of Plant
CHANGE ORDER
Change Order Date: November 3O, 1998 Change Order No. 02
Contractor: Telesource CNMI, Inc. CUC Contract No. CUC-PG-97-CO57
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This CHANGE ORDER NO.02 is made in reference to the
AGREEMENT FOR DESIGN, SUPPLY OF PLANT AND EQUIPMENT, PRIVATE
CONSTRUCTION, MAINTENANCE AND OPERATION, AND TRANSFER OF OWNERSHIP
(Contract No. CUC-PG-97-COS7) effective as of September 17, 1997
between the COMMONWEALTH UTILITES CORPORATION and TELESOURCE CNMI,
INC. (the "Original Agreement"). To the extent the terms and
conditions of the Original Agreement and Change Order No. 1 are
not in conflict with the terms and conditions of this Change Order
No. 2 the provisions of both the Original Agreement, Change Order
No. 1 and this Change Order No. 2 shall together hereafter govern
the rights and obligations of the parties.
RECITALS
A The parties to the Original Agreement desire to implement a
more detailed procedure for submission and review of the drawings
and technical specifications used in the performance of the Work,
including a procedure to facilitate communications between CUC
and the Contractor in the event that there is a need to clarify
the technical portions of the Original Agreement or any change
order issued thereunder.
B. The parties further desire to amend and clarify Paragraph 11.2
of the Original Contract, which sets forth CUC rights regarding
the review, comment and approval of all Drawings.
AGREEMENT
1. Definitions. Unless otherwise defined, all capitalized
terms used in this Change Order No. 2 are defined in the
Original Agreement and are used herein as so defined.
2. Reference to Paragraph 11.2. Reference is hereby made to
Paragraph 11.2 of the Original Agreement, which states in its
entirety:
11.2) Before starting certain Work identified in any
Drawing. Contractor may submit such Drawing to CUC for
review. CUC shall respond within five (5) Business Days of
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actual receipt by CUC of the Drawing. After such review
CUC shall return one copy of each such Drawing to
Contractor marked "Reviewed", "Reviewed with Comments" or
"Comments" as appropriate and with sufficient explanation
to enable Contractor to Determine the basis for any such
comments. Contractor may proceed to implementation in the
case of Drawings marked "Reviewed". Such Drawings marked
"Reviewed with Comments" may be corrected by Contractor as
appropriate but need not be re-submitted to CUC. Drawings
marked "Comments" shall be corrected by Contractor and
re-submitted to CUC. CUC, in reviewing such resubmitted
Drawings shall be limited to review of matters related to
or affected by the previous "Comments". If CUC does not
respond within five (5) Business Days of Actual receipt of
a Drawing by CUC, Contractor shall proceed as though CUC
has no comments and CUC be deemed to have returned the
Drawing to Contractor marked "Reviewed".
CLARIFICATION OF GENERAL PROVISIONS
3. Amendment to Paragraph 11.2. Paragraph 11.2 of the Original
Agreement, is hereby replaced in its entirety by the
following:
11.2) Review of Drawings and Specifications.
11.2.1) Submittals. Before starting the Work identified
in any Drawing or technical Specification (each a
"Submittal"), Contractor shall submit three (3) copies of
such Submittal to the CUC Project Manager for review.
Submittals shall be delivered to the CUC Project Manager
in a timely fashion so as to allow time for review, as
set forth in Section 11.2.3) below, without impeding the
progress of the Work.
11.2.2) Form of Submittal. Each Submittal shall clearly
identify the following, as appropriate:
a) Date of submission and dates of any
previous submissions.
b) Project title and number.
c) Contact identification.
d) Names of Contractor, Supplier and
Manufacturer.
e) Identification of product, with
Specification section number.
f) Field dimensions, clearly identified as
such.
g) Relation to adjacent or critical features
of the Work or materials.
h) Applicable standards, such as ASTM or
federal specification numbers.
i) Identification of deviations from the
Scope of Work.
j) Identification of revisions on
resubmittal.
k) A blank space for the Contractor and CUC
Project Manager stamps.
l) Contractor shall initial or sign each
Submittal, and by so-doing he shall be
deemed to have represented to CUC that
Contractor has either determined and
verified all quantities,
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dimensions, field construction criteria,
materials, catalog number, and similar
data, or assumes full responsibility for
doing so and has reviewed or coordinated
each Submittal with the requirements of
the Scope of Work.
m) If the Scope of Work includes performance
specifications stating required results
which can be verified as meeting
stipulated criteria, so that further
detailed design by Contract prior to
fabrication is necessary, such Submittal
must be prepared under the seal of a
professional engineer registered in the
appropriate jurisdiction and contain a
certification in a form substantially as
follows:
"I hereby certify that this Submittal
was prepared by me or under my direct
personal supervision or that I have
personally reviewed this Submittal
which was prepared by others, and I
accept responsibility for the
adequacy of the Submittal to meet the
criteria stipulated in the Scope of
Work to the same degree that I would
If I had prepared it, and that I am a
duly registered professional
engineer, under the laws of the
Commonwealth of the Northern Mariana
Islands, and that I am competent to
prepare or review this Submittal."
11.2.3) CUC Review. CUC shall respond within ten (10)
Business Days of actual receipt by CUC of the Submittal.
CUC's review shall be limited to the Submittal's general
conformance to the design concept of the Plant and
compliance with information set forth in the Scope of
Work. CUC review shall not extend to means, methods,
sequences, techniques or procedures of construction or to
safety precautions or programs incident thereto. Review
of a separate item as such will not indicate approval of
the assembly in which the item functions. After such
review CUC shall return one copy of each such Drawing to
Contractor marked "Reviewed", "Reviewed with Comments",
"Comments" or "Returned" as appropriate and with
sufficient explanation to enable Contractor to Determine
the basis for any such designation.
11.2.3.1) "Reviewed". Submittals marked
"Reviewed" has been designated by CUC
to be in conformance to the design
concept of the Plant and Scope of
Work. Contractor may proceed to
implementation in the case of
"Reviewed" Submittals.
11.2.3.2) "Reviewed with Comments". Submittals
marked "Reviewed with Comments" have
been reviewed by CCC and appear to be
in conformance to the design concept
of the Plant and Scope of Work,
except as noted by the CCC Project
Manager. Contractor may proceed with
the implementation in the case of
Submittals "Reviewed with Comments"
with the modifications and
corrections as indicate by the CUC
Project Manager. Submittals "Reviewed
with Comments" need not be
resubmitted to CUC.
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11.2.3.3) "Comments". Submittals marked
"Comments" have been reviewed by CUC
and appear to fail to conform to the
design concept of the Plant and
Scope of Work. The Contractor
shall not implement the Work related
to such "Returned" Submittals, but
shall cure the defects and resubmit
such Submittal for CUC review in
the same manner as set forth in
this Section 11.2). All changes
from the previous submittal shall
be clearly identified by Contractor.
CUC, in reviewing such resubmittals
shall be limited to review of
matters related to or affected by
the previous "Comments".
11.2.3.4) "Returned". Submittals marked
"Returned" have not been reviewed due
to a defect in the form required
under Section 11.2.2) or are
substantially contrary to the design
concept of the Plant and Scope of
Work. The Contractor shall not
implement the Work related to such
"Returned" Submittals, but shall cure
the defects and resubmit such
Submittal for CUC review, if
required.
11.2.3.5) CUC's Failure to Respond. If CUC does
not respond within ten (10) Business
Days of Actual receipt of a Submittal
by CUC, or before the expiration of
any extension thereof, Contractor
shall proceed as though CUC has no
comments and CUC shall be deemed to
have returned the Submittal to
Contractor marked "Reviewed".
11.2.4) Request for Extension. For good cause
demonstrated by CUC, Contractor shall grant, and CUC
shall be entitled to, one (1) extension of reasonable
length to the response period set forth in Paragraph
11.2.3), above, the length of such extension to be
mutually agreed upon by the parties on a case by case
basis; provided CUC shall have requested such extension
in writing within the original ten (10) day response
period; and provided further that Contractor shall be
entitled to a Change Order under Section 5 of the
Original Agreement, equitably adjusting the Contract Term
and/or Price to reflect any delays caused by CUC's
failure to respond within the original ten (10) day
response period.
1125) Deviations. CUC's review of Submittals under this
Section 11.2) shall not relieve Contractor from its
responsibility for any deviations from the Scope of Work
unless Contractor has, in writing, called the CUC Project
Manager's attention to the deviation at the time of
submission, and the CUC Project Manager has given his
written concurrence to such deviation through a change in
the Scope of Work evidenced by a Change Order executed
under Section 5 of the Original Agreement. CUC consent
under this Section 11.2.5) shall not relieve Contractor
from its responsibility for errors or omissions in
Submittals.
11.2.1) Work in Progress. All Submittals under which Work
is currently on-going as of the date of this Change Order
No. 2 shall be deemed to be
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marked "Reviewed". All other Submittals, including those
Submittals related to Change Order No. 1 shall be subject
to the amended review procedures of this Section 11.2).
4. Procedure for Clarifying Drawings and Technical
Specifications. Paragraph 11.3 shall be added to the Original
Agreement setting forth the procedure for obtaining
clarifications to the Drawings and technical Specifications
as follows:
11.3) Requests for Information.
11.3.1) RFI Procedure. In the event Contractor requires
technical or other information from CUC relating to the
Work, he may request such information from CUC through a
"Request For Information". CUC shall respond to all
Requests For Information within ten (10) Business Days of
their receipt, including in their response all detail
necessary for the completion of the Work.
11.3.2) Contractor Action. Responses to Requests for
Information which do not involve a change in the Contract
Price or Term, and which are consistent with the overall
intent of the Original Agreement including the provisions
of Change Order No. 1, shall be preformed by Contractor
without additional claim or charge.
11.3.3) Change Orders. In the event any response to a
Request for Information necessitates a change or
adjustment in the Work, other than a change under Section
11.3.2, above, Contractor shall be entitled a Change
Order which references the applicable Request for
Information and adjusts the Contract Price and/or Term in
accordance with Section 5 of the Original Agreement.
11.3.4) CUC's Failure to Respond. If CUC does not respond
within ten (10) Business Days of Actual receipt of the
Request for Information by CUC, unless an extension is
granted under the same procedure as provided in Paragraph
11.2.4, above, Contractor shall be entitled to a Change
Order under Section 5 of the original Agreement, which
makes an equitable adjustment to the Contract Term and/or
Price to reflect any delays caused by CUC's failure to
act.
(This space intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Change
Order No.2 as of the date(s) set for the below.
Procurement and Supply
I hereby certify that to the best of my information and
belief this Change Order is in compliance with the CUC
Procurement Regulations, is for a public purpose, and does not
waste or abuse public funds.
/s/ Xxxxxxx DLG. Xxxxxxx Date: 12/4/98
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Xxxxxxx DLG. Xxxxxxx
Manager, Procurement & Supply
Commonwealth Utilities Corporation Comptroller
I hereby certify that there are sufficient funds
available for the execution of this Change Order.
/s/ Xxxxx Xxx Date: 12/3/98
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Xxxxx Xxx
Comptroller
Attorney General
I hereby certify that this Change Order has been
numbered, reviewed and approved as to form and legal capacity.
/s/ Xxxxxxx X. Ohile for Maya B. Kara Date: 12/3/98
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Maya B. Kara
Attorney General (Acting)
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Commonwealth Utilities Corporation
/s/ Xxxxxxx X. Xxxxxxxxxx Date: 12/3/98
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Xxxxxxx X. Xxxxxxxxxx
Executive Director
/s/ Xxxx X. Xxxx Xxxx Date: 12/3/98
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Xxxx X. Xxxx Xxxx
Chairman, Board of Directors
Commonwealth Development Authority
/s/ Xxxx X. Xxxxxxx Date: 12/9/98
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Xxxx X. Xxxxxxx
Chairman, Board of Directors
Telesource CNMI, Inc.
On behalf of Telesource CNMI, Inc., I represent that I am
authorized to bind Telesource CNMI Inc. to the terms of this
Change Order, and by my signature I do so hereby accept for
Telesource, CNMI, Inc., and bind Telesource CNMI, Inc. to, the
terms of this Change Order. I further represent for Telesource
CNMI, Inc. that no person associated with Telesource CNMI, Inc.
has retained any person in violation of Section 6-205 of the CUC
Procurement Regulations.
/s/ Khajarour X. Xxxxxxxx Date: 11/30/98
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Xxxxxxxxx X. Xxxxxxxx
President
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CERTIFICATION OF CONTRACT COMPLETION
I hereby certify that this contract bears all signatures
and is therefore complete.
/s/ Xxxxxxx DLG. Xxxxxxx Date: 12/10/98
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Xxxxxxx DLG. Xxxxxxx
Manager, Procurement & Supply
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