EXHIBIT 10.138.8
CHANGE ORDER
TO THE
AMENDED AND RESTATED CONTRACT
FOR THE
ENGINEERING, PROCUREMENT AND CONSTRUCTION
OF THE
UPPER BHOTE KOSHI HYDROELECTRIC PROJECT
CHANGE ORDER NO. 008
RECITALS:
Whereas, in accordance with Article 6, the Contractor and Owner mutually agree
to amend certain terms in the Amended and Restated Contract for the Engineering,
Procurement and Construction of the Upper Bhote Koshi Hydroelectric Project,
dated December 19, 1996 including Change Orders 1,2,3,4,5,6and 7 (the
"Contract"), including, the Critical Dates, the Construction Schedule, and the
Milestone Payment Schedule, and have mutually agreed to this Change Order No.
008.
Whereas, there have been certain events that have affected the Contractor and
Owner during the construction of the project. These include, repairs to the
Larcha stream crossing, labor strike, wind damage, detonator magazine explosion,
and additional flood protection. The Contractor and the Owner have reached
agreement on the economic value of these events as set forth herein.
Whereas; the events of August 1998, that included a flood of the Bhote Koshi
River during the night of 10 August and the morning of 11 August affecting the
Facility Site and landslides throughout the month of August along the Arniko
Highway limiting access to the Facility Site, which is a combination of events
that materially and adversely affected the Parties abilities to perform their
obligations under the Contract.
Now therefore, the Parties agree to the following:
A. SPECIAL CONSIDERATIONS
1. The Parties acknowledge that Bonus for Early Delivery and Schedule
Liquidated Damages shall remain in full force, except as modified
herein.
2. This Change Order No. 008 shall constitute the entire agreement
between Owner and Contractor relating to the subject matter hereof
and shall operate as an amendment to the Contract. This Change Order
shall supercede, as appropriate, previous change orders. All other
terms and conditions of the Contract are hereby ratified and
confirmed and shall remain in full force and effect.
3. Due to the Force Majeure Events of August 1998 and other events as
cited in the Recitals, certain changes to the Contract to reflect the
affects of the Force Majeure Events on the expectations for project
completion it is agreed that the following two Definitions under
Article 1 of the Contract shall be changed to read as follows:
"Final Acceptance Date" shall mean the date on which Final Acceptance
actually occurs but in no event shall be later than July 30, 2000.
"Guaranteed Unit Delivery Date" shall mean with respect to the
First Unit, February 22, 2000 and with respect to the Second Unit,
April 7, 2000.
4. Due to the Force Majeure Events of August 1998 and other events
cited in the Recitals, certain changes to the Contract to reflect
the affects of the Force Majeure Events on the expectations for project
completion it is agreed that Article 10.6.1 and 10.6.1(d) of the Contract
shall be changed to read:
10.6.1 For any failed or incomplete Performance Test as demonstrated
by the inability to achieve the Minimum Performance Level, as set
forth in Article 10.5, Contractor shall correct the defect in the Works,
at the Contractor's expense, and the failed or incomplete Performance
Test shall be repeated. Such correction of defects and retesting may
be performed prior to the earlier of July 30, 2000 or
10.6.1 (d)with respect to either Unit, the Unit Delivery Date for each
Unit, provided, however, that if any Minimum Performance Levels are
not achieved, or if the Works otherwise fail to conform to the technical
specifications and requirements, as set forth in this Contract, by July
30, 2000, such failure shall constitute a default of the Contract pursuant
to Article 15; and provided further after the Guaranteed Unit Delivery
Date for either Unit the Contractor shall pay Schedule Liquidated
Damages as specified in Articles 12.3.
5. Due to the Force Majeure Events of August 1998 and other events as
cited in the Recitals, certain changes to the Contract to reflect the
affects of the Force Majeure Events on the expectations for project
completion it is agreed that Article 10.9 of the Contract shall be
changed to read:
10.9 Owner's Acceptance of Unit Delivery Date. Within fifteen (15)
Days following receipt by Owner of such Notice of Unit Delivery Date
with respect to any Unit, Owner shall notify Contractor in writing
whether Owner and the Independent Engineer have concluded that
Contractor has fulfilled the requirements of this Contract sufficient
to successfully achieve such Unit Delivery Date. If Owner and Independent
Engineer determine that Contractor has not fulfilled the requirements
for Unit Delivery Date of such Unit, Owner shall so notify Contractor,
specifying in reasonable detail the manner in which the requirements for
the Unit Delivery Date have not been met. Contractor shall promptly act
to correct such deficiencies so as to achieve such Unit Delivery Date by
the Guaranteed Unit Delivery Date. If Contractor fails to achieve such
Unit Delivery Date of either Unit by the Guaranteed Unit Delivery Date,
Contractor shall pay Schedule Liquidated Damages. Following any such
remedial action, Contractor may deliver to Owner a new Unit Delivery Date
Notice conforming to the requirements of this Article 10.9, and the
provisions of this Article 10.9 shall apply with respect to such new Unit
Delivery Date Notice in the same manner as they applied with respect to
the original Unit Delivery Date Notice. The foregoing procedure shall be
repeated as often as necessary, as long as Contractor is accruing, and
paying when due, Schedule Liquidated Damages, until the earlier of: (i)
Owner and Independent Engineer no longer reject Contractor's Unit Delivery
Date Notice and provide their own Notice to Contractor that the Unit
Delivery Date has occurred, and (ii) July 30, 2000.
6. Due to the Force Majeure Events of August 1998 and other events as cited
in the Recitals, certain changes to the Contract to reflect the affects
of the Force Majeure Events on the expectations for project completion it
is agreed that Article 10.10 of the Contract shall be changed to read:
10.10 Notice of Final Acceptance. Once Contractor has completed all of
the requirements for Final Acceptance, Contractor shall submit a proposed
Final Acceptance Certificate to Owner. A team consisting of representatives
of Owner, Financing Parties, Independent Engineer and Contractor shall as
soon as practicable make a final inspection of the Facility and determine
whether the Facility meets all requirements of this Contract. Within
fifteen (15) Days following such final inspection, Owner, with the consent
of Financing Parties and Independent Engineer, shall notify Contractor in
writing whether Contractor has fulfilled the requirements of this Contract
to reach Final Acceptance. If Owner and Independent Engineer determine
in good faith that, notwithstanding Contractor's delivery of the Final
Acceptance Certificate, the Contractor has not fulfilled the requirements
for Final Acceptance for the Facility, then Owner shall deliver its
Notice to such effect to Contractor describing in reasonable detail the
deficiencies noted and corrective action recommended. Contractor shall
promptly act to correct any such deficiencies. The procedure set forth
in this Article 10.10 shall be repeated as necessary until Owner accepts
the Final Acceptance Certificate and provides its own Notice to Contractor
that the Final Acceptance Date has occurred, provided however, if
Contractor has not completed the requirements for Final Acceptance by
July 30, 2000, Owner may upon Notice to Contractor, complete any
remaining items on the Punch List and charge all expenses incurred by
Owner to complete such Punch List items.
7. Due to the Force Majeure Events of August 1998 and other events as cited in
the Recitals, certain changes to the Contract to reflect the affects of the
Force Majeure Events on the expectations for project completion it is agreed
that Article 12.1 of the Contract shall be changed to read:
12.1 Guarantee of Timely Completion. Contractor warrants and guarantees
that (1) the First Unit Delivery shall occur on or before the Guaranteed
Unit Delivery Date of the First Unit, or February 22, 2000, and (2) the
second Unit Delivery shall occur on or before the Guaranteed Unit Delivery
Date of the Second Unit, or April 7, 2000, but in no event shall such date
be before September 1, 1999.
8. Due to the Force Majeure Events of August 1998 and other events as cited in
the Recitals, certain changes to the Contract to reflect the affects of the
Force Majeure Events on the expectations for project completion it is agreed
that Article 12.2 of the Contract shall be changed to read:
12.2 Bonus for Early Unit Delivery.
12.2.1 Bonus for Early Delivery of First Unit. In the event that the Unit
Delivery Date of the First Unit occurs prior to February 22, 2000, but not
earlier than September 1, 1999, Owner shall pay Contractor a bonus equal to
the relevant amount set forth in the following table:
Delivery Date Bonus Amount
February 15, 2000 through $ 75,000
February 21, 2000
February 8, 2000 through $150,000
February 14, 2000
February 1, 2000 through $225,000
February 7, 2000
January 25, 2000 through $300,000
January 31, 2000
January 18, 2000 through $385,000
January 24, 2000
January 11, 2000 through $470,000
January 17, 2000
January 3, 1999 through $555,000
January 10, 2000
December 27, 1999 through $640,000
January 2, 1999
December 20, 1999 through $725,000
December 26, 1999
December 13, 1999 through $810,000
December 19, 1999
December 8, 1999 through $895,000
December 12, 1999
No bonus shall be paid for any Day prior to September 1, 1999 and this
provision shall not be modified by any Force Majeure Event.
12.2.2 Bonus for Early Delivery of Second Unit. In the event that the
Unit Delivery Date of the Second Unit occurs prior to April 7, 2000,
but not earlier than September 1, 1999, Owner will pay Contractor a bonus
equal to the relevant amount set forth in the following table:
Delivery Date Bonus Amount
April 1, 2000 through $ 100,000
Arpil 7, 2000
March 25, 2000 through $ 200,000
March 31, 2000
March 18, 2000 through $ 310,000
March 24, 2000
March 11, 2000 through $ 420,000
March 17, 2000
March 5, 2000 through $ 540,000
March 10, 2000
February 27, 2000 through $ 660,000
March 4, 2000
February 20, 2000 through $ 780,000
February 26, 2000
February 13, 2000 through $ 900,000
February 19, 2000
February 6, 2000 through $1,020,000
February 12, 2000
January 30, 2000 through $1,140,000
February 5, 2000
January 23, 2000 through $1,260,000
January 29, 2000
January 16, 2000 through $1,380,000
January 22, 2000
January 9, 2000 through $1,500,000
January 15, 2000
January 1, 1999 through $1,620,000
January 8, 2000
December 25, 1999 through $1,740,000
December 31, 1999
December 18, 1999 through $1,860,000
December 24, 1999
December 11, 1999 through $1,980,000
December 17, 1999
December 8, 1999 through $2,100,000
December 10, 1999
No bonus shall be paid for any Day prior to September 1, 1999 and this
provision shall not be modified by any Force Majeure Event.
9. Due to the Force Majeure Events of August 1998 and other events as
cited in the Recitals, certain changes to the Contract to reflect the
affects of the Force Majeure Events on the expectations for project
completion it is agreed that Article 12.3.1 of the Contract shall be
changed to read:
12.3.1 If the Unit Delivery Date of the First Unit does not occur on
or before the Guaranteed Unit Delivery Date of the First Unit, Contractor
shall pay to Owner Twenty Thousand Dollars ($20,000) for each Day that
the Unit Delivery Date of the First Unit is delayed beyond the Guaranteed
Unit Delivery Date of the First Unit, up to and including March 22, 2000,
and shall pay to Owner Twenty-Five Thousand Dollars ($25,000) for each
Day that the Unit Delivery Date of the First Unit is delayed from March
23, 2000 up to and including April 7, 2000.
10. Due to the Force Majeure Events of August 1998 and other events as
cited in the Recitals, certain changes to the Contract to reflect the
affects of the Force Majeure Events on the expectations for project
completion it is agreed that Article 12.3.2 of the Contract shall be
changed to read:
12.3.2 If the Unit Delivery Date of the Second Unit does not occur on
or before the Guaranteed Unit Delivery Date of the Second Unit, or
April 7, 2000, Contractor shall pay to Owner Forty Thousand Dollars
($40,000) for each Day that the Unit Delivery Date of the Second Unit
is delayed beyond the Guaranteed Unit Delivery Date of the Second Unit,
up to and including June 22, 2000. For any such delay after June 22,
2000, Contractor shall pay to Owner Forty Five Thousand Dollars ($45,000)
for each Day that the Unit Delivery Date of the Second Unit is delayed
beyond June 22, 2000 up to and including the termination date of this
Contract pursuant to the last paragraph of this Article 12, or until the
maximum limit on Schedule Liquidated Damages is reached, whichever
occurs first.
11. Due to the Force Majeure Events of August 1998 and other events as cited
in the Recitals, certain changes to the Contract to reflect the affects of
the Force Majeure Events on the expectations for project completion it is
agreed that Article 12.3.4 of the Contract shall be changed to read:
12.3.4 In the event that the Unit Delivery Date for the Second Unit does
not occur on or before July 30, 2000, although Contractor has paid Schedule
Liquidated Damages or Performance Liquidated Damages, in addition to the
liability of Contractor due to indemnification and third party claims set
forth in Article 16 and 18.2 and Schedule Liquidated Damages, Owner may
terminated Contractor's employment and pay an amount up to thirty-five
percent (35%) of the total Contract Price, and Owner may, at its sole
option, draw on the Performance Guarantee and withhold the retainage and
may assert such remedies as are set forth in Article 15.1.
12. Due to the Force Majeure Events of August 1998 and other events as cited
in the Recitals, certain changes to the Contract to reflect the affects of
the Force Majeure Events on the expectations for project completion it is
agreed that Article 13.2.1 of the Contract shall be changed to read:
13.2.1 Prolonged Delay. If the Unit Delivery Dates for both Units shall
not have occurred by July 30, 2000 and, although Contractor shall have paid
Performance Liquidated Damages and Schedule Liquidated Damages, in addition
to the liability of the Contractor due to indemnification and third party
claims set forth in Article 16 and 18.2, Owner may terminate Contractor's
employment and this Contract pursuant to Article 15.1.2(b) and upon such
termination, Contractor shall pay an amount up to thirty-five percent (35%)
of the total Contract Price and Owner may, at its sole option, draw on the
Performance Guarantee and withhold the retainage and may assert such
remedies as are set forth in Article 15.1.
13. Due to the Force Majeure Events of August 1998 and other events as cited in
the Recitals, certain changes to the Contract to reflect the affects of the
Force Majeure Events on the expectations for project completion it is
agreed that Article 13.5.2(d) of the Contract shall be changed to read:
13.5.2(d). If (y) is less than the Minimum Output, the Owner may in its
sole discretion, require the Contractor to correct the defect in the
Works, and repeat the Performance Test for the Second Unit, and pay
Schedule Liquidated Damages as set forth in Article 12 until the date
upon which the defects in the First Unit are corrected to the
satisfaction of the Owner and Performance Tests, including the
simultaneous full gate operation of both Units, are performed and the
results demonstrate that the First Unit has achieved the Minimum Output
for such Unit. The failure of the Contractor to satisfy the conditions
in the immediately preceding sentence by July 30, 2000 shall constitute
a default under this Contract and shall entitle Owner to terminate
Contractor's employment and this Contract pursuant to Article 15.1.2(b)
and assert such remedies as are set forth in Article 15.1.5. The
delivery of the Second Unit shall not occur until the Performance Test
for the Second Unit demonstrates that both Units can meet or exceed
Minimum Output.
14. Due to the Force Majeure Events of August 1998 and other events as cited in
the Recitals, certain changes to the Contract to reflect the affects of the
Force Majeure Events on the expectations for project completion it is
agreed that Article 15.1.2(b) of the Contract shall be changed to read:
15.1.2(b). In the event Contractor (i) fails to achieve the Unit Delivery
Date for the Second Unit on or before July 30, 2000, (ii) fails to
achieve a milestone in the time period permitted under Contractor's
recovery plan approved by the Owner in accordance with Article 5.2.3,
or (iii) the Contractor does not provide special steps to be taken in
the recovery plan provided pursuant to Article 5.2.3, acceptable to
Owner, Owner may, without providing Contractor with a period to cure,
and without prejudice to any other right or remedy under this Contract,
terminate Contractor'' employment and this Contract.
15. In full and final settlement of any and all claims made by the Contractor
to the Owner out of in connection with the work done on the Larcha stream
crossing prior to August 1998 the Owner shall reimburse the Contractor
twenty four thousand three hundred fifty nine dollars and fifty two cents
($ 24,359.52) as determined as half the expenses in the repairs completed
by the Contractor.
16. In full and final settlement of any and all claims made by the Contractor
to the Owner arising out of or in connection with the labor strike that
occurred starting 8 November 1997 the Owner shall reimburse the Contractor
twenty three thousand ($23,000) for one half of the labor costs for idle
labor during said strike.
17. In full and final settlement of any and all claims made by the Contractor
to the Owner arising out of or in connection with the wind damage that
occurred at the Facility Site 31 March 1998 the Owner shall reimburse
the Contractor thirty five thousand nine hundred and twenty four dollars
($35,924) for the documented costs of the repair of the damages and
idle labor caused by said event.
18. In full and final settlement of any and all claims made by the Contractor
to the Owner arising out of or in connection with the detonator magazine
explosion that occurred on 17 March 1998 the Owner shall reimburse the
Contractor sixty thousand dollars ($60,000) for the repair of the damages
and idle labor for the time of the detonator magazine explosion.
19. In full and final settlement of any and all claims made by the Contractor
to the Owner arising out of or in connection with the work completed by
the Contractor to increase the flood protection of the project to a
flow level of six hundred and forty (640) cubic meters per second the
Owner shall reimburse the Contractor one hundred and eight thousand
seven hundred and twenty nine dollars ($108,729) for construction of
the protective works.
20. In full and final settlement of any and all claims made by the Contractor
to the Owner arising out of or in connections with the material damages
and repairs of the Arniko highway as a result of the Force Majeure
Events of August 1998 the Owner shall reimburse the Contractor four
hundred and fifty thousand dollars ($450,000).
21. Both parties agree that under the proposed schedule for completion of
installation of the generating units it may not be possible to meet all
the testing requirements required under the Contract due to availability
of flow in the Bhote Koshi River. Specifically, the river flows may
not be sufficient enough to fully test the desanding basin or two-unit
operation. The parties agree to meet prior to 15 December 1999 and
develop a solution to deal with potential limited water availability.
B. SCHEDULE ADJUSTMENT
1. The Parties agree to amend the Construction Schedule attached as Exhibit A
to the Contract as previously amended in Change Order No. 003, Change Order
No. 005, and Change Order 007 with the amendments to the Construction
Schedule, entitled Acceleration Schedule, attached as Exhibit 8.1 to this
Change Order No. 008.
2. The Parties agree to amend and restate the Critical Dates as defined in
Article 5.2.3, Change Order No. 001, Change Order No. 002, Change Order No.
003, Change Order No. 005, and Change Order No. 007. The Critical Dates
shall be defined as:
Milestones Critical Date
Start Mobilization 06/01/97
Health, Safety and Environmental Plan Complete 07/05/97
Turbine, Generator, Inlet Valve and Governor Ordered 08/31/97
Transformer and Powerhouse Crane Ordered 11/15/97
River Closure 03/20/98
Cutoff Wall Under Spillway Complete 12/15/97
Powerhouse Excavation Complete 02/28/98
Draft Tubes Delivered to the Site 03/01/98
Surge Shaft Complete 09/15/98
Headrace Tunnel Excavation 50% Complete 09/30/98
Dam, Spillway and Right Side Wall of Desanding Basin
Foundations Concrete Complete 06/15/98
Powerhouse Roof Complete 08/06/99
All Transmission Tower Erected 09/06/99
All Major Equipment on Site 06/08/99
Headrace Tunnel Complete 12/27/99
Operator's Village Complete 10/08/99
Transmission Line Complete 11/08/99
Penstock Complete 02/07/2000
Stage 2 Headworks Concrete Complete 12/27/99
Unit Delivery Date of First Unit 02/22/2000
Unit Delivery Date of Second Unit 04/07/2000
C. COST ADJUSTMENT
There shall be no cost adjustment to the Amended and Restated EPC
Contract as the funds to be paid to the Contractor by the Owner as
stated in this Change Order are reimbursements for work already
completed by the Contractor or for damages incurred by the Contractor.
This Change Order shall constitute a full and final settlement on all the
issues addressed herein. Reimbursement of funds shall be made on or
before 5 June 1999 provided the Contractor is not foreclosed from such
payment under the Amended and Restated EPC Contract.
Agreed this ___________ day of June 1999 by and between:
OWNER: CONTRACTOR:
Bhote Koshi Power Company China Gezhouba Construction Group
Private Limited Corporation for Water Resources
And Hydropower
By:/s/______________________ By:/s/__________________________
Xxx X. Xxxxxx Xxxx Xxxxxx
Senior Vice President Project Manager
