EXHIBIT NO. 10.138.05
CHANGE ORDER
TO THE
AMENDED AND RESTATED CONTRACT
FOR THE
ENGINEERING, PROCUREMENT AND CONSTRUCTION
OF THE
UPPER BHOTE KOSHI HYDROELECTRIC PROJECT
CHANGE ORDER NO. 005
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 and 4 (the "Contract"),
including, the Critical Dates, the Construction Schedule, and the
Milestone Payment Schedule, and have mutually agreed to this
Change Order No. 005.
Now therefore, the Parties agree to the following:
A. SCHEDULE ADJUSTMENTS
1. The Parties herein agree to amend and restate the Critical
Dates defined in Article 5.2.3, Change Order No. 001, Change
Order No. 002, and Change Order No. 003 as follows:
Milestones Critical Date
Start Mobilization 6/1/97
Health, Safety and Environmental Plan 7/5/97
Complete
Turbine, Generator, Inlet Valve and 8/31/97
Governor Ordered
Transformer and Powerhouse Crane Ordered 11/15/97
River Closure 3/20/98
Cutoff Wall Under Spillway Complete 12/15/97
Powerhouse Excavation Complete 2/28/98
Draft Tubes Delivered to the Site 3/1/98
Surge Shaft Complete 9/15/98
Headrace Tunnel Excavation 50% Complete 9/30/98
Dam, Spillway and Right Side Wall of 6/15/98
Desanding Basin Foundations Complete
Powerhouse Roof Complete 4/30/99
All Transmission Towers Erected 4/30/99
All Major Equipment on Site 6/1/99
Headrace Tunnel Complete 9/20/99
Operators Village Complete 7/1/99
Transmission Line Complete 8/31/99
Penstock Complete 10/31/99
Stage 2 Headworks Concrete Complete 9/20/99
Unit Delivery Date of First Unit 11/15/99
Unit Delivery Date of Second Unit 12/31/99
2. The Parties agree to amend and replace the Construction
Schedule attached as Exhibit A to the Contract as previously
amended in Change Order No. 003, Exhibit 3.1, with the revised
Construction Schedule attached as Exhibit 5.1 to this Change
Order No. 005.
3. The Parties agree to amend and replace the Milestone Payment
Schedule attached as Exhibit E-2 to the Contract as amended in
Change Order No. 003, Exhibit 3.2, with the revised Milestone
Payment Schedule attached as Exhibit 5.2 to this Change Order No.
005.
B. SPECIAL CONSIDERATIONS
1. The Parties agree that the definition "Guaranteed Unit
Delivery Date" shall be revised to read:
"shall mean with respect to the First Unit,
November 15, 1999, and with respect to the Second
Unit , December 31, 1999".
2. Article 12.1 of the Contract shall be amended as follows:
"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 November 15, 1999, and (2) the Second Unit Delivery
shall occur on or before the Guaranteed Unit Delivery Date of the
Second Unit, or December 31, 1999, but in no event shall such
date be before September 1, 1999."
3. Article 12.2 of the Contract shall be amended as follows:
"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 November 15, 1999, 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
November 8 $75,000
through November 14
November 1 $150,000
through November 7
October 25 $225,000
through October 31
October 18 $300,000
through October 24
October 11 $385,000
through October 17
October 4 through $470,000
October 10
September 27 $555,000
through October 3
September 20 $640,000
through September 26
September 13 $725,000
through September 19
September 6 $810,000
through September 12
September 1 $895,000
through September 5
* Note that all Dates referenced are in 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 December 31, 1999, 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
December 25 $100,000
through December 31
December 18 $200,000
through December 24
December 11 $310,000
through December 17
December 4 $420,000
through December 10
November 27 $540,000
through December 3
November 20 $660,000
through November 26
November 13 $780,000
through November 19
November 6 $900,000
through November 12
October 30 $1,020,000
through November 5
October 23 $1,140,000
through October 29
October 16 $1,260,000
through October 22
October 9 through $1,380,000
October 15
October 2 through $1,500,000
October 8
September 25 $1,620,000
through October 1
September 18 $1,740,000
through September 24
September 11 $1,860,000
through September 17
September 4 $1,980,000
through September 10
September 1 $2,100,000
through September 3
* Note that all Dates referenced above are in 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."
4. Article 12.3 of the Contract shall be amended as follows:
"12.3 Delay in Unit Delivery Date. If the Unit
Delivery Date of the first Unit and second Unit are not achieved
on each respective Guaranteed Unit Delivery Date, in addition to
the liability imposed pursuant to Article 18, Contractor shall be
obligated to pay liquidated damages equal to the following
amounts:
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 December 15, 1999, 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
December 16, 1999 up to and including December 31, 1999.
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 December 31, 1999, 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 March
15, 2000. For any such delay after March 15, 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 March 15, 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.
5. Exhibit F of the Contract shall be amended and restated as
follows:
"Desanding Basin Trapping Efficiency:
A test of the desanding basin trapping efficiency
shall be carried out to demonstrate that the
desanding basin meets the Minimum Desanding Basin
Trapping Efficiency criteria. The desanding basin
trapping efficiency tests shall be planned and
performed during the Wet Season that occurs prior
to the Final Acceptance Date. At least three tests
shall be performed prior to September 1, under
conditions that are suitable to demonstrate that
the desanding basin will perform as intended. If
the tests cannot be carried out prior to September
1, the Contractor shall devise a procedure for
mobilizing suspended material in the river water
to simulate the high suspended solid
concentrations that typically prevail during July
and August. The simulated conditions shall be
developed during each test. If during the
performance of the test, the plan for mobilizing
suspended material does not appear to be adequate,
the Owner shall not accept the test.
The Contractor shall design and submit a program
for approval by Owner that causes a diversion of
river water through the desanding basin at a rate
that is approximately equal to the combined
discharge capacity of both Units while operating
at full gate.
On each testing Day, one set of three samples
shall be taken at the upstream end of the
desanding basin and the second set of three
samples shall be taken just upstream from the
headrace tunnel intake. At each location, three
samples each shall be taken near the right bank,
in the middle and near the left bank of the basin.
The samples shall be taken with a U.S. Geological
Survey (USGS) depth-integrating D-74 sampler. The
procedures of sampling shall be as per USGS
guidelines, or equivalent guidelines proposed by
the Contractor and as agreed to by the Owner.
All samples shall be analyzed for suspended
sediment concentrations in milligrams (mg) per
liter and particle size distributions as
percentage of the total sediment.
Headworks Seepage and Leakage Loss:
The design criteria for the maximum allowable
seepage through the dam, foundation and abutments
is 200 liters per second. The design of the
headworks shall adopt conservative design
procedures and assumptions so that the constructed
Facility shall meet this criteria.
The Contractor shall design and submit for
approval by Owner an appropriate program to test
and establish the rate of seepage and leakage
through the dam, foundation and the headworks.
The test shall be performed prior to the Delivery
Date of the Second Unit.
Seepage and leakage loss from the headworks shall
be established by monitoring the river inflow, the
flow through the Units, the discharge from the
desanding basin or spillway to the Bhote Koshi
River, minimum required release through the
headworks to the Bhote Koshi River, and any other
loss, such as gate and valve leakage or change in
reservoir storage, as applicable, during the 168
hour continuous run test as required by Exhibit I
Part 3.10 of the Scope of Work.
River inflow shall be measured at a suitable
location upstream of the headworks. Flow through
the Units shall be measured by Unit flow metering
equipment supplied with the Units. The Contractor
shall develop measuring methods that are
acceptable to the Owner.
The 168-hour difference, established during the
testing of the Second Unit, between river inflow
and flow through the Units, adjusted for the
discharge from the desanding basin or spillway to
the Bhote Koshi River, minimum required release
through the headworks to the Bhote Koshi River,
and any other loss, such as gate and valve leakage
or change in reservoir storage, as applicable, and
seepage and leakage loss from the tunnel and
penstock (see below), shall be the seepage and
leakage loss at the headworks.
The criteria for acceptance of the test will
recognize the accuracy of measurement procedures
adopted in the Performance Test.
To obtain the most accurate assessment of the
headworks seepage and leakage loss, the
Performance Testing Guidelines may be modified, as
agreed upon by the Owner to suit the conditions
that are discovered during the design and the
construction of the Facility."
6. The Parties agree that any and all claims of a
Force Majeure Event submitted by Contractor to Owner
claiming delay due to the non-availability of
explosives are hereby withdrawn. The Parties understand
and agree that this Change Order No. 5 resolves any
claims for schedule or cost relief submitted by
Contractor relating to the non-availabilities of
explosives, up to, and including, the date of signing
this Change Order No. 5 as indicated below.
7. This Change Order No. 005 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 No. 005 shall supercede
Change Order No. 001, Change Order No. 2, Section D, and
Change Order No. 3, Sections B (2), (3) and (4). All other
terms and conditions of the Contract are hereby ratified
and confirmed and shall remain in full force and effect.
C. COST ADJUSTMENTS
None.
Agreed to this __________ day of November 1997 by and between:
OWNER: CONTRACTOR:
Bhote Koshi Power Company China Gezhouba Construction Group
Private Limited Corporation for Water Resources
and Hydropower
By:__________________________ By:__________________________
Xxxxxx X. Xxxxxx Xxx Xx
