3.2.1 general conditions of contract for subcontract

8/10/2019 3.2.1 General Conditions of Contract for Subcontract

http://slidepdf.com/reader/full/321-general-conditions-of-contract-for-subcontract 1/91

VIETNAM ELECTRICITY rEPS O MON THERMAL POWER PL NT

Section

IV.

General

Conditions

of ontract

GCC)

r

IV GCC



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VIETNAM

ELECTRICITY TEPSCO

MON THERMAL POWER

PL NT

1. Definitions

General Conditions of

ontract

A.

ontract and Interpretat ion

1 1

The following words and expressions shall have the

meanings hereby assigned to them:

(1)

“

Adjudicator means the person or persons named as

such n the SCC appointed by agreement between the

Employer and the Contractor to make a decision on or

to settle any dispute or difference between the

Employer and the Contractor referred to

피

or herby

the parties pursuant to GCC Sub-Clause

6 1

(Adjudicator) hereof.

(2)

“

Commissioning means

o p e r i o n of

the Facilities or

any p 따 thereof by the Contractor followed by

R e l i a b i l i η Run

Performance Test

up to Completion

of the Facilities and Take Over

by

EVN for

Commercial Operation

as provided

n

GCC Clause

24 hereof

for the purpose of carrying out

Performance

ε s t s ) .

“

Commercial Operation means the Operation taken

over

by

EVN immediately

a:ft

er the Completion of

Facilities as set forth in GCC Sub-Clause 25. 1

(3)

“

Completion means that the Facilities or a specific

따 thereof have or has been completed operationally

and structurally and put in a tight and clean condition

and that all work in r e s p ε c t of Commissioning

R e l i a b i l i η Run and Performance Test ofthe Facilities

or such specific

따

thereof has been completed; n

other words that the Facilities or specific 따 thereof

are ready for Commercial Operation

as

provided n

GCC Clause 24 (Completion) hereof.

Th

e date

of

Completion

of

Facilities is defined as the

date when the Performance Test is satisfactorily

completed and EVN certified and issued

“

Provisional

Acceptance Certificate .

(3)-1

“

Consultant means the person the firm

appointed by EVN to act

as

the engineering

consultant with concurrence of JICA for ensuring

successful completion

of

the Project. Tokyo Electric

Power Services Co.

Ltd. (TEPSCO) is appointed as

Consultant. Power Engineering and Consulting

IV-GCC-l



VIETN M ELECTRICITY TEPSCO

MON THERMAL POWER PL NT

(4)

(5) “ Contract Documents means the documents listed in

rticle

1

1 (Contract Documents) of the Form of

Contract Agreement (including any amendments

thereto).

(6) “ Contract Price means the sum specified in rticle

2

1 (Contract Price) of the Contract Agreement

subject to such additions and adjustments thereto or

deductions therefrom as may be made pursuant to the

Contract.

“Net Contract Price means Contract Price excluding

the amount of Provisional Sums

Physical

Contingencies and Tax and Duty as stated in Pricing

Sched

u1

e.

\

’

’

\

(7) “ Contractor means the person(s)

firm

consortium

t n r s i p

corporation or syndicate whose id to

perform the Contract has been accepted

by

EVN and

is named as such in the Contract Agreement

to

enter

the Contract and includes the legal successors or

permitted assigns ofthe Contractor.

(8) “ Contractor’s Equipment means a

Il

plant

facilities

equipment machinery tools apparatus appliances

or things

of

every kind required

in

or for

construction

instaIlation

completion and

maintenance of Facilities that are to be provided by

the Contractor

but does not include Plant and

Equipment or other things intended to form or

forming

ofthe

Facilities.

(9) “ Contractor ’s Representative means any person

nominated by the Contractor and approved by EVN

in the manner provided in GCC Sub-Clause 17.2

(Contractor’ s Representative and Project Manager)

hereof to perform the duties delegated

by

the

IV-GCC-2



VIETNAM

ELECT

CITY TEPSCO

MON THERM L

POWER PL NT

Contractor.

“Project Manager means a person appointed by the

Contractor

’

s Representative and approved

y

EVN

to supervise all works to be executed at the Site in

t h e m

없 m e r set forth in GCC Sub-Clause 17.2 .4. The

Contractor may appoint his Representative as Project

Manager

to

delegate his responsibilities and duties.

“Technica Leader means a persons or a firm who

sha

l

be selected from either the Boiler or Turbine

manufacturer and appointed by the Project Manager

with suitable qualifications and approved by EVN to

take full responsibility for the technical performance

ofthe

whole Facilities.

r/ \

}

(10)

o u n

따 ， of Origin means the countries and

territories b l e under the rules of Japan Bank for

Intemation

a

Cooperation as further elaborated in

Section IX.

(11) D a y 꺼 “Week , “Month and “Year means

calendar day

,

week

,

month and year of the Gregorian

Ca endar.

(12)

“

Defect Liability Period or

“

Warranty Period

means the period of validity

of

the warranties given

by the Contractor commencing at Completion

of

the

Facilities or a

thereof, during which the

Contractor is responsible for defects with respect to

the Facilities (or the relevant part thereof

as

provided in GCC Clause 27

D

efect i a b i l i 양 hereof.

(13)

“

Effective Date means the date of fulfillment

of

all

conditions stated in

Art

icle 3 ffective Date for

Determining Time for Completion) of the Form of

Contract Agreement, for the purpose of determining

the Time for Completion.

(14)

“

Employer (Vietnam Electricity or

“

EVN )

m e

없

the person named as such in the Contract Agreement

and includes the legal successors or permitted

assigns

ofthe

Employer.

Vietnam Electricity VN) and its subsidiary Cantho

Thermal Power Company Limited (CTTP) is the

implementing agency

of

the Government

of

Socialist

Republic of Vietnam to execute the Project. Tokyo

Electric Power Services Co

Lt

d

,

(TEPSCO) is

IV-GCC-3



VIETN M ELECTRICITY/ TEPSCO

MON

THERM L POWER PL NT

nominated

as

Consultant.

Th

e Word

“

EVN

is

hereinafter referred to

as

EVN itself

@ EVN and CTTP

@ EVN

CTTP and TEPSCO

or

@

CTTP and TEPSCO

as

the case may depend on the situation and

context where the word is used.

1

5

따

means the

“

o

Mon

Th

ermal Power Plant

Unit No. 2 Construction Project

as

stipulated in

Loan Agreement and the Contract Agreement.

(16) “Facilities means the plant

equipment

apparatus

machinery and structure to be manufactured

transported

supplied

installed an or constructed as

well

as

all the Insta

ation Services to be carried out

by the Contractor under the Contract to form

Permanent Works. However

the term “Temporary

Facilities sha

l1

be used

as

the fac

i1

ities temporarily

required for execution

o

the Permanent Works such

as temporary

퍼 t e m p o r

따

y

road

scaffolding

etc.

except construction equipment

materials and

consumables.

(16)-1 “Permanent Works means a portion o the Works

or the Facilities that is o permanent nature to be

executed and taken over to EVN by the Contractor

under the Contract.

(16)-2

“

Temporary Works means a portion

o

the Works

o

t e m p o r 따 y

nature required for execution and

completion o the Permanent Works and the remedy

o any defects.

(17) “GCC means this General Conditions o Contract

hereof

and “SCC means Special Conditions

o

Contract.

1 8 “Performance Test(s) means the test(s) specified

in

the Technical Specifications to be carried out

ascertain whether the Facilities or a specified part

thereof is able to attain the Functional Guarantees

specified in the Technical Schedule in accordance

IV-GCC-4



k

T N M ELECT CITY

/

TEPSCO

MON THERM L POWER PL NT

with the provisions

o

GCC Sub-Clause 25.2

performance Test) hereof.

1

9)

“

stallation Services means all those services

ancillary to the supply

o

the Plant and Equipment

for the Facilities, to

be

provided by the Contractor

under the Contract; e.g. transportation and provision

o marine or other similar insurance, inspection,

expediting, site preparation works, construction

works (including the provision and use o

Contractor’s Equipment and the supply o all

construction materials 띠

뼈 ，

installation, testing,

precommissioning, the provision o operations and

maintenance manuals, etc. as specified in the

Technical Specifications.

(20)

“

Provisional Acceptance means the acceptance by

EVN

o

the Facilities (or any

따 o

the Facilities

where the Contract provides for acceptance

o

the

Facilities in parts) after the satisfactory completion

ofPerformance Test, which certifies the Contractor

’

s

fulfillment o the Contract in respect o Functional

Guarantees

o

the Facilities (or the relevant 따

thereo

f)

in accordance with the provisions o GCC

Clause 28

F

unctional Guarantees) hereof and shall

in

ude deemed acceptance in accordance with GCC

Clause 25 (Commercial Operation and Provisional

Acceptance) hereof.

(21)

“

Plant and Equipment means permanent

equipment, machinery, apparatus, articles and things

o all kinds to be provided and incorporated in the

Facilities by the Contractor under the Contract

(in

uding the Optional Spare parts, Special Tools

and Consumables

to be

supplied by the Contractor

under GCC Sub-Clause 7.3 hereo

f),

but does not

include Contractor’s Equipmen

t.

(22) “Precommissioning means the testing, checking and

other requirements specified in the Technical

Specifications that are

to

be carried out by the

Contractor in preparation for Commissioning as

provided

in GCC

Clause 24 (Completion) hereof.

(23)

“

EVN

s

Representative means the person or the

firm appointed by EVN in the manner provided in

GCC Sub-Clause

17 .1 E

VN

’

s Representative)

hereofto perform the duties delegated

by

EVN.

IV-GCC-5



VIETN M

ELECTRICITY TEPSCO

o MON THERMAL POWER PL NT

(24)

EVN appointed CTTP as his Representative

delegated his responsibilities and duties to CTTP. 뺑

t

‘

J

“ Site m 없 the land and other places upon

피

the Facilities are to be installed

which are d e s i g n a t ~

for the Contractor to utilize for temporary facilities

working area and such other land or places as m

’

be specified in the Contract as forming part

of

the

Site.

(25) “ Subcontractor means any person

fmn

partnership

corporation or syndicate to

whom

execution

of

any

P

of the Facilities

including preparation of any

design

or

supply

of

any Plant and Equipment

is sub

contracted directly or indirectly by the Contractor

and includes his legal successors or permitted

asSlgnS

(26) “Time for Completion means the time within which

Completion of the Facilities as a whole (or

of

a

of

the Facilities where a separate Time for Completion

of such part has been prescribed) is to be attained in

accordance with the specifications and the relevant

provisions of the Contract.

EVN

will accept the Facilities as completed

upon

Issuance of Provisional Acceptance

e π i f i c t e

that

is

final date of Contract Period

the date of EVN’s

acceptance and taking over the Facilities for

Commercial Operation the date of risk transfer to

EVN and the date of starting Defect Liability Period.

(27) “Unit NO.l Contract means the Contract of 0 Mon

Th

ermal Power Plant Unit NO.l with EVN which is

being executed in the adjacent area to the Site. The

Unit NO.l is now put into commercial operation under

CTTP

’

s managemen

t.

(28) “JICA means Japan temational Cooperation

Agency; the financing institution to provide a Loan

with Socialist Republic

ofVietnam

for the Project.

(29) “Member Companies (in case of a consortium) and

“Nominated Subcontractors means the Contractor

who shall execute such major Works as Turbine

Generator

Boiler

Flue Gas Desulphurization System

and Civil Works except the Contractor

or

Lead Partner

who shall have all responsibilities under the Contract

IV-GCC-6



「

T N M ELECTRICITY

/

TEPSCO


towardEVN.

(30) “Specification or Technical Specification means

the General Technical Provisions and the Technical

Specification

of

the Works and the Bid Drawings.

(31) “ Works means both the Permanent Works and

Temporary Works

,

or either

of

them

,

each consisting

of

Goods and Services (or works), to be executed

under the Contract

(32) “Goods means the Equipment and Materials for the

Permanent Works

, and the Contractor

’

s Equipment,

Temporary Facilities and materials (including

too1s

,

appliances

,

spares

,

consumables) for the Temporary

Works, or any

of

them.

(33) “Services or “works means works

,

services

,

drawings

,

tests

,

installation

,

construction

,

commissioning or any

of

them appropriate, and any

other 따

of

the Works other than Goods.

(34) “Equipment or “Plant means plant

,

equipment

,

apparatus, machinery and vehicles intended to form or

o r m i n p

없

ofth

Permanent Works.

(35) “Materials means 상

r i n g s

of all kinds (other than

Equipment) intended to form or forming 따 of

Permanent Works, including the supply-only

materials, such

as

spares and consumables for

operation to be supplied by the Contractor under the

Contract.

(36)

“

Power Plant Unit

or “

Unit a complete power

generating Equipment Unit No.2 consisting

of

a

boiler

,

a turbine

,

a generator

,

a flue gas

desulphurization plant and unit auxiliaries other than

Common Equipment

(37) “ Common Equipment means the Equipment other

than Power

P1ant

Unit Such Equipment serves a

function for the who1e power station rather than for an

individual Unit and for the operation

of

two

2)

Power

Plant Units

N

os. 1 and 2).

(38) “ Critical Equipment and “ Critica1 Materials means

the items

of

a substantial nature

of

which the

performance is essential to the performance of the

Works or which

are so

designated by EVN. Such

IV-GCC-7



VIETNAMELECTRICITY TEPSCO

o


*

items are stipulated in Clause 2.1.2.2 in Volume 2:

. \ ~ ι

( β 3 9 )

C o n s t

’ ” ’ (and const

I n s t a l l a

í i o α o n

’ ” ’ (and

i n s t l l ψ l

’ ” ’ verb) m e 않 a n s the

s ì t ~

Services including setting, erection,

i n s t a l l a t i o

assembling, fixing and placing.

(40)

“

Partial Acceptance means the issuing

of

the

Provisional Acceptance or Taking-Over Certificate for

of

the F a c i l i t i ε s that has been completed to the

satisfaction of EVN

,

pursuant to SCC Sub-Clause

1.2.5.2 (n).

(41) ‘ 펜

n a l

Acceptance means the issuance of the Final

Acceptance Certificate for the Facilities upon expiry

of

the Defect

i

ability Period as stipulated in SCC

Sub-Clause 2.5.2(q and SCC Sub-Clause 2.5.2(r).

(42) “Key Date

of

the Contract means a Key Date

stipulated in SCC Sub-Clause 1.2 5.2.

(43)

“

Contract Period means the period starting from the

c t i v e

Date of Contract and terminating on the

completion date

ofth

Performance Tests, certified by

the Provisional Acceptance Certificate issued by EVN

for completion

of

the whole

of

the Works

as

stated in

GCC Sub-Clause 8.2, excluding the Works during

Defect Liability Period as stated in the Contract unless

extended in accordance with GCC Clause

40

(44)

“

Bid

D r a

n g s

means the drawings forming p 따 of

the Specification

as

defined in item (5) “ Contract

Documents above and to be used

as

따

of

the

Contrac

t.

(45) “Detailed Drawings or “ Construction Drawings or

“ Contractor’s Drawings means the drawings prepared

by the Contractor based on his detailed design and

planning to define the Works to be carried out and or

Equipment to be furnished under the Contract.

(46) When terms

of “

approval

, ‘

'judgment or direction

,

“when approved

,

“ subject to approval

,

“

satisfactory

, “

as directed

, “

where directed

, “

when

directed , “determined by ,

ε t c .

are used generally,

the approval

,

judgment or direction

,

etc. is implied to

be the function

of

EVN. Such function shall at all

times be exercised reasonably, or shall not

be

unreasonably withheld, whichever is appropriate.

IV-GCC-8



VIETNAM ELECTRICITY TEPSCO

MON

THERMAL POWER PL NT

2. ontract

Documents

2 1

(47)

“

Net Output means the generator output less both

excitation power and main oil pump power. Therefore,

in case excitation power is taken from the generator

and main oil pump power is directly connected with

the generator, the generator output is net output. On

the other hand

,

in case excitation power and main oil

pump power are taken from other sources, the

generator output minus excitation power and main oil

pump power ís net output.

(48) “Auxiliary Power Consumption means the electric

power consumed

by

all continued operation of

auxiliary equipment required for operation of power

p1ant such as circulating water pump and forced

draught fan. In case that the lubricant oil pump for

turbine is not direct1y connected with the turbo

generator shaft, the power consumed

by

such a pump

shall not be included in the Auxiliary Power

Consumption but the turbine output deducted by such

power consumption shall be regarded as net turbo

generator output.

Subject to

rt

icle

1.

2 (Order of Precedence) of the

Contract Agreement, a

l1

documents forming part

of

the

Contract (and all parts thereo

f

are intended to be

correlative

,

c o m p l e m e n t η and mutually explanatory.

The Contract shall be read as a whole.

Th

e Contractor shall not, without EVN

’

s prior written

consent, disclose the contents of the Contract (conditions,

specifications drawing

,

p sample or information

furnished by or on behalf

of

EVN in connection

therewith), to y p ε r s o n other than the Contractor’ s

employees or subcontractor. The Contractor shall not,

without EVN

’

s prior written consent, make use of any

documents or information as stated above except for the

purpose of

performing the Contrac

t

y documents

other than the Contract Agreement shall remain the

property

of

EVN and shall be returned to EVN

,

upon

completion of the Contract,

if

so required by EVN.

3. Interpretation

3 1

Language

3.1.1 All Contract Documents

,

all correspondence and

communications to be given, and all other documentation

to be prepared and supplied under the Contract shall be

written in the English Language

,

and the Contract shall be

construed and interpreted in accordance with that

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language.

The ruling language on all matters associated with the

Contract shall be English.

However

,

the Contractor shall employ

nglisht

Vietnamese interpreters during the execution

of

the

training programme

as

stipulated in SCC Sub-Clause

2.23.

Contract

communications are prepared in any language other than

the governing language under GCC Sub-Clause 3.1.1

above, the English translation of such documents,

correspondence or communications shall prevail

in

matters

of

interpretation.

3.2 Sin

u

ar and Plural

The

s i n g

shall include the plural and the plural shall

include the singular, except where the context otherwise

requires. Pronouns indicating male he) shall include

female she) or neuter

샤

and female

or

shall

include male pronoun.

3.3 Headings

3

.4

3.5

h

headings and marginal notes in the Conditions of

Contract are included for ease

of

reference

,

and shall

neither constitute a part

of

the Contract

야 f f e c

its

m t 않 e r p r e l O n

ε r s o n s

Words imparting persons or parties shall include firms

,

corporations and government entities.

Incoterms

Unless inconsistent with any provision

of

the Contract

,

the

meaning

of

any trade term and the rights and obligations

of

t i e s

thereunder shall be

as

prescribed by Incoterms.

Incoterms means intemational rules for interpreting trade

terms published by the Intemational Chamber of

Commerce

l

atest edition as

of

the Effective Date)

,

38

Cours Albert 1er, 75008 Paris, France.

3.6 Entire Agreement

Subject to GCC Sub-Clause 6

.4

hereof

,

the Contract

constitutes the entire agreement between EVN and

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PL NT

Contractor with respect to the subject matter of Contract

and supersedes all communications negotiations and

agreements whether written or oral)

of

parties with respect

thereto made prior to the date of Contract.

3.7 Amendment

No amendment or other variation of the Contract shall be

effective unless it is in writing

is dated

expressly refers to

the Contract

and is signed by a duly authorized

representative of each party hereto.

3.8 Independent Contractor

Th

e Contractor shall be an independent person s)

performing the Contract. The Contract does not

c r ε t e

any

agency partnership joint venture or other joint relationship

between the parties hereto.

Subject to the provisions of the Contract

the Contractor

shall be solely esponsible for the manner in which the

Contract is performed. All employees

representatives or

Subcontractors engaged by the Contractor in connection

with the performance

of

the Contract shall be under the

complete control of the Contractor and shall not be deemed

to be employees

of

EVN

and nothing contained in the

Contract or in any subcontract awarded by the Contractor

shall be construed to create any contractual relationship

between any such employees

representatives or

Subcontractors and EVN.

3.9 Joint Venture or Consortium

f

the Contractor

is

a joint venture or consortium

of

two

or more persons

all such firms

be jointly and

severally bound to EVN for the fulfillment of the

provisions

of

the Contract and shall designate one

of

such

persons to act

as

Lead Partner with authority to bind the

joint venture or consortium. The composition or the

constitution of the joint venture or consortium shall not

be altered without the prior consent ofEVN.

3.10 Non-Waiver

3.10.1 Subject to

GCC

Sub-Clause 3.10.2

no

relaxation

forbearance delay or indulgence by either

in

enforcing any of the terms and conditions of the Contract

or the granting

of

time by either party to the other shall

prejudice

affect or restrict the rights

of

that

under

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o

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the Contract nor shall any waiver by either party of any

Ireach

ofContract operate

as

waiver ofany subsequent or

continuing breach ofContract.

3.10.2 y waiver

of

a rights

powers or remedies under

the Contract must be in writing must be dated and signed

3 11

3.12

by an authorized representative of the granting such .

waiver

and must specify the right and the extent to which

it

is

being waived.

Severability

f any provision or condition

of

the Contract is prohibited

or rendered invalid or unenforceable

such prohibition

invalidity or unenforceability shall not 많 the v l i d i 양

or

e n f o r c e b i l i η

of

any other provisions and conditions

of

the Contract.

o u n

ofOrigin

“Origin means the place where the materials

equipment

and other supplies for the Facilities are mined

grown

produced or manufactured

and from which the services

are provided.

The Services

and equipment and materials for the

Permanent Works (the Equipment and the Materials

respectively) to be executed and supplied under the

Contract shall have their origin in source countries

eligible for JBIC loans and all expenditures made under

the Contract will be limited to such Equipment

Materials

and Services.

π l e c o u n t η of origin ofCritical Equipment and Materials

shall be preferably the same as countries of nominated

m a n u 옮 c t u r e r s belonging to the Bidders that have been

qualified.

In

case the Critical Equipment and Materials have an

origin other than the above-stated the Bidders shall

submit EVN the application

of

such an origin in the Bids

and provided that it is worldwidely recognized that such

Critical Equipment and Material are practically

substantially and functionally acceptable in their

performance and reliability for use in the duties similar to

those for this Project and well proven by successful

experiences

of

application to the same duties

as

above

they may be accepted. Particularly

as for 1) printers

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표

(human-machine interface) for computer systems,

home communication equipment such as telephone and

(2) small electronic devices, elements, parts or

components

I

Cs

,

LSIs

,

semiconductors

,

microchips

,

resisters, condensers, etc.), that are included or integrated

in equipment, modules, panels and boards of electrical,

control and instrument systems as such manufacturers

standard parts or components, their countries of origin

may not necessarily be the above stated countries.

The Critical Equipment and Materials referred to above

are items of a substantial nature and of which the

performance is essential to the performance of the W orks

or which are so designated by EVN. Such Critical

Equipment and Materials items are stipulated in Clause

2.1.2

.2

ofVolume 2.

/

In case specific brand name is found in the Bid

Document

,

it shall be read as such specific brand name or

substantially equivalen

t.

4. Notices

4.1 Unless otherwise stated in the Contract, all notices to be

given under the Contract shall be in writing, and shall be

sent by personal delivery, airmail post, special courier,

cable

,

telegraph

,

telex, facsimile or Electronic Data

Interchange (EDI) to the address

ofthe

relevant

4.1.1 y notice sent by cable

,

telegraph

,

telex, facsimile or

EDI shall be confirmed within two (2) days after dispatch

by notice sent by airmail post or special courier

,

except as

otherwise specified in the Contrac

t.

4. 2 y notice sent by airmail post or special courier shall be

deemed to have been delivered ten (10) days after

dispatch

,

in the absence of earlier receip

t. In

proving the

fact

of

dispatch, it shall be sufficient to show that the

envelope containing such notice was properly addressed,

stamped and conveyed to the postal authorities or courier

service for transmission by airmail or special courier.

4.1.3 y notice delivered personally or sent by cable,

telegraph

,

telex

,

facsimile or EDI shall be deemed to have

been delivered on date

of

its dispatch.

4. 4 Either p π y may change its postal, cable, telex, facsimile

or EDI address or addressee for receipt of such notices by

ten (10) days notice to the other in writing.

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VIETNAMELE T

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5

Governing

Law

6

Settlement of

Disputes

4

1

5 Wherever condition in the Contract is made

communication to

be

written or in writing'

condition shall mean any type-written or

lon

including facsimile transmission.

4.1.6 Wherever condition in the Contract requires the givin

4.2

5 1

6 1

6 1

1

notice

consent or approval by any person such

n

consent or approval shall not be unreasonably

l e l d

Unless otherwise specified such notice consent or

approval shall be in writing and shall be construed

accordingly.

Notices shall be deemed to include any approvals

consents

instructions

orders and certìficates to be given

under the Contract.

The Contract shall

be

governed by and interpreted in

accordance with laws

of

Vietnam.

Protests and Appeals

If

any dispute of any kind whatsoever shall arise between

EVN and the Contractor under or in connection with the

Contract including any question regarding its existence

a c c e p t a b i l i η

or validity or termination or the execution of

the Facilities (whether during the progress of the

Facilities or after their completion or whether before or

after the termination abandonment or breach

of

the

Contract) without prejudice to the generality of the

foregoing the parties shall seek to resolve any such

dispute or difference by mutual consultation.

6.1.2

If

the Contractor considers that EVN

’

s ruling instruction

or decision is unfair or out of scope

of

the conditions

of

the Contract the Contractor shall file a written protest

with EVN stating clearly and in detail ofthe Contractor

’

s

grounds

of

objection within ten (10) days

of

the date

of

the receipt of such ruling instruction or decision. EVN

shall deliver the decision in writing within t w n η eight

(28) days. EVN

’

s such decision shall be fmal and

conclusive unless the Contractor shall make written

appeal on the EVN’s decision 피 n twenty eight (28)

days after thc rcccipt of EVN’s dccision.

6.1.3 EVN and the Contractor shall make v η effort

to

resolve amicably by direct negotiation in accordance with

the conditions

of

the Contract.

6 1 .4 If

within twenty eight (28) days of the commencement of

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VIETNAM

ELECTRICITY TEPSCO MON THERM L POWER PL NT

negotiation EVN and the Contractor have been unable to

solve amicably such Contractual dispute

either party may

refer for resolution to arbitration by the mechanism

as

set

forth in GCC Sub-Clause 6.2 below.

6.2 Arbitration

6 2 1 n

y dispute s i n g under or in connection with the

Contract which has not been settled between the

Contractor and EVN

shall be referred to and finally

settled by arbitration.

f

either EVN or the Contractor

is

dissatisfied or

if

the both parties could not conclude the

dispute within the period as stated in GCC Sub-Clause

6 1

after the dispute being referred to the other

then either EVN or the Contractor may within fifty six

(56) days

of

such reference give a notice to the other

of

its intention to commence arbitration

as

hereinafter provided as to the matter in dispute. No

arbitration in respect of this matter may be commenced

unless such notice is given.

6.2.2

n

y dispute in respect

of

which a notice of intention to

commence arbitration has been given in accordance with

GCC Sub-Clause 6 2 1 shall be finally settled by

arbitration.

r

bitration may be commenced prior to or

after completion

ofthe

Facilities.

6.2

3

rbitration proceedings shall be

c o n d u c t ε d

in accordance

with the

“

Rules of Conciliation and rbitration of

Intemational Chamber of Commerce issued by the

In

temational Chamber

of

Commerce.

Th

e seat

of

rbitration shall be in Singapore and conducted in

English Language.

n r

bitration Board shall

be

formed

with three (3) members of whom two (2) members shall

be

appointed by EVN and the Contractor respectively

and these two members will appoint one (1) member

as

a

chairman ofthe Board. Iffirst two members

m o t

agree

upon the appointment

of

a member

within fifteen

(15) days the third member shall be appointed by the

President

of

Intemational Chapter

of r

bitrators. All

decisions by the Arbitration Board shall require simple

o r i t y

and shall bind on both parties. The decision

shall be informed to both parties in writing by the

Chairman of the Arbitration Board. The rbitration fee

shall be bome by the loosing

The rbitration Board

may engage experts to act in an advisory

c a p a c i η

but not

able

to

vote on the decision. Minutes

of

all

meetings

endorsed by members of the Board shall be kept by both

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VIETNAM

ELECT

R1CITY TEPSCO MON THERMAL POWER PL NT

partíes.

6.2.4 No one with a financial interest in the subject under

arbitration will be permitted to serve on this Board.

6 3

Notwithstanding any reference to the arbitration herein

며

the parties shall continue to perform their

respective obligations under the Contract unless

they otherwise agree

and

b) EVN shall pay the Contractor any payment due

the Contractor.

6

4

Court Litigation

n

y arbitration award pursuant to the conditions

of

this

Contract may be enforced in any court having jurisdiction

overEVN

the Contractor or their assets.

B.

Subject

Matter of ontract

7

Scope

of

Facilities

Unless otherwise expressly limited in the Technical

Specifications

the Contractor

’

s obligations cover the

provision

of

all Plant and Equipment and the

performance

of

all

n

stallation Services required for the

design

manufacture

procurement

q u a l i η assurance

construction

installation

associated civil works

commissioning and delivery of the Plant and Equipment

and completion of the Facilities in accordance with the

plans

procedures

specifications

drawings

codes and

any other documents as specified in the Technical

Specifications including

but are not limited to

the

provision

of

supervision and engineering services

the

supply of labor

materials

equipment

spare parts as

specified in GCC Sub-Clause 7.3 below) and accessories

Contractor’ s Equipment; construction utilities and

supplies

t e m p o r a η

materials

structures and facilities

transportation including

without limitation

un10ading

and hauling to

from and at the Site) and storage.

7 2

The Contractor shall

unless specifically excluded in the

Contract

perform all such work

a n ψ o r

supply all such

items and materials not specifically mentioned in the

Contract but that can

be

reasonably inferred from the

Contract as being required for attaining Completion

of

the Facilities

as if

such work and/or items and materials

7 1

/

l

‘

\

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VIETN M ELECTRICITY I TEPSCO


were expressly mentioned in the Contract.

7

.3

In addition to the supply

o

Essential Spare Parts

,

Special

Tools and Consumables specified in the Contract

,

the

Contractor agrees to supply Optional Spare Parts ,

Optional Special Tools and Additional Consumables

required for the operation and maintenance o the

Facilities for the period

o

two 2) years after the

Provisional Acceptance. However, the identity,

specifications and quantities o such Optional Spare

Parts, Optional Special Tools and Additional

Consumables and the terms and conditions relating to the

supply thereof are to be agreed between EVN and the

Contractor

,

and the price

o

such Optional Spare

Optional S p e c i

Tools and Additiona1 Consumables

shall be that given in Price Schedule provisional Sum

The price

o

such Optional Spare P Optional

Special Tools and Additional Consumables shall include

the purchase price therefor and other costs and expenses

including the Contractor’s relating to the supply o

spare parts.

7.4 The Facilities to be completed under the Contract shall be

made on a turn-key basis which include but not limited to

the Works mentioned below:

1) designing, manufacturing, shop testing, shipping

and delivering

,

installing

,

testing and

commissioning one 1) 300-330 MW

oi

gas fued

Thermal Power Plant which consists

o

equipment ey Equipment) such

s

boiler,

turbine

,

generator and flue gas desulphurization

plant FGD),

2) constructing associated civil and architectural

structures

3) commissioning, reliability test running, and

executing performance test to assure the

Facilities’ function in accordance with the

conditions o the Contract

4) supplying tools

,

spare and consumables in

accordance with the Contract

5) supplying vehicles and additional equipment for

EVN use and maintaining Site Offices for EVN

and the Consultant.

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VIETNAM

ELECTRICITY TEPSCO MON THERMAL POWER PL NT

8.

Commencem

ent,Execution

nd

Completion

(6) and other Works and e π i c e s under the provision

of

the Contrac

t.

7 5 This Project is planned as the extension of “

o

Mon

Thermal Power Plant Unit NO l and Common Facilities

for Two (2) Units Contract Unit

NO l

Contract) which

was taken over and is now in operation at the location

adjacent to the Site. So that the Contractor shall be duly

aware of his

r e s p o n s i i l i η

neither to obstruct nor to

damage the ongoing and completed Facilities or

Personnel under the Unit NO.l Contract pursuant to GCC

Clauses 9 and 33.

8 1

Time for Commencement

8 1 1 The Contractor shall commence work on the Facilities on

and from the Effective Date and shall

the

construction works at Site as soon

as

practically possible

as approved by EVN, and without prejudice to GCC Sub

Clause 26.2 hereof

,

the Contractor shall thereafter

proceed with the Facilities in accordance with the time

schedule specified in the corresponding Appendix 4

(Time Schedule) to the Contract Agreement.

8 1.2 Within fifteen (15) days of the Effective Date, the

Contractor shall send the Contractor’s Representative

and supporting staff for the kick off meeting at CTTP

and he or other representative

b

efore starting of

full-scale construction at the Site) shall staying in

Can Tho City for daily contact and communication with

EVN.

8.2 Execution ofWorks

8 2 1

Th

e Contractor shall, always during the Contract Period,

execute the works at Site in mobilization of staff,

workforce

,

Contractor’s Equipment and Temporary

Facilities which, in the judgment

of

EVN, are sufficient

to complete the Facilities within the Contract Period in

compliance with the key dates and other conditions of

the Contract.

8.2.2 The c a p a c i η

of

the Construction Equipment and the

Temporary Facilities

, sequence

of

operations, method

of

operations and workforce employed shall be such as to

ensure the completion of the Works within the Contract

Period and on Time for Completion.

8.2.3

Th

e Contractor shall be responsible for gaining and

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V1ETNAM ELECTRICITY TEPSCO


\

9.

ontractor

’s

9 1

Responsibilities

maintaining any licenses, permits, permissions or

authorities that may be necessary to enable him to

c π y

out the Works.

If

requested to

do

so

,

EVN shall provide

advice and assistance to the Contractor in gaining such

authorizations , but this shall in no way relieve the

Contractor of

e s p o n s i b i l i η

8

.3

Time for Completion

8

.3 1 Th

e Contractor shall attain Completion

of

the Facilities

or

of

a part where a separate time for Completion

of

s u c h p is

specified as key dates in the Contract) within

thirty five 35) months

of

Effective Date or within such

extended time to which the Contractor shall be entitled

under GCC Clause 40 hereof.

Th

e date

of

completion is

as specified in GCC Clause 24 Completion).

8

.3

.2

Th

e Works shall be completed in the sequence order

of

commissioning

p

ower receiving

,

initial firing

,

initial

없 n

admission

,

synchronization

,

run and

adjustment), reliability run and performance tests,

of

which key dates are set forth in SCC Sub-Clause 1.2.5.2

k), 1) and n).

8

.3

3

The Works

,

except that part to be performed during the

Defect Liability Period

,

shall be completed within the

Contract Period indicated

in

GCC Sub-Clause 8

.3.1. Th

e

Time for Completion

of

the W orks

,

the last date

of

the

Contract Period

,

sha

Il

be the date

of

satisfactory

completion

of

the Performance Tests, as certified

by

the

Provisional Acceptance Certificates issued by EVN

,

for

the whole

of

the Equipment.

8.3

.4 Th

e date

offinal

and total completion

ofthe

whole ofthe

W orks shall be the date

of

termination of the Defect

Liability Period for the whole

of

the Works.

It

shall be

certified by the Final Acceptance Certificate issued by

EVN in accordance with SCC Sub-Clause

1.

2

.5

.2 r)

,

after the Inspection for Final Acceptance

of

the Works

,

and provision by the Contractor

of

the Optional Special

Tools, Spare Parts and Consumables for operation and

maintenance in accordance with GCC Sub-Clause 12.5.

Th

e Contractor shall design

,

manufacture including

associated purchases and or subcontracting), install,

construct and complete the Facilities with due care and

diligence in accordance with the Contract.

9.2 Th

e Contractor confirms that it has entered into this

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V1ETNAM

ELE TRI ITY

/ TEPSCO

0 MON THERMAL POWER P 없 때

ζ ι

? 용 윗 얀 쌓

， . . ， ~ .

‘ ’

i C_

-

‘

I

:: .

Contract on the 밟 s i s o a proper examination o the d ’ 핸

relating

to

the Facilities including any data

as to

b o

g X ~ :

얻

s t s )

provided by EVN

and on the basis

o

따

o r m a

따 핸

Y

that the Contractor could have obtained from a vi

inspection o the Site including the conditions o the works

o

Unit No

. l

Contract as stated in

GCC

Sub-Clause

7 5

above and o other data readily available

to

him 려 a t i n g to

the Facilities

as o

the date twenty-eight 28) days prior

to

Bid submission.

Th

e Contractor acknowledges that any

failure

to a c q u 없

himself with all such data and

information shall not relieve his responsibility for properly

estimating the difficulty or cost

o

successfully performing

the Facilities.

9.3

Th

e Contractor shall acquire in his name all permits

approvals an

d/

or licenses from all local

state or national

govemment authorities or public service undertakings in

the country where the Site is located that are n e c e s s

y for

the performance

o

the Contract including without

limitation visas for the Contractor

’

s and Subcontractor

’

s

personnel and entry permits for all imported Contractor

’

s

Equipment.

Th

e Contractor shall acquire all other permits

approvals an

d/

or licenses that are not the responsibility o

EVN under

GCC

Sub-Clause 10.3 hereof and that are

n e c e s s a η

for the performance

o

the Contrac

t.

9

.4 Th

e Contractor shall comply with all laws in force in

Vietnam. The laws will include all local state national or

other laws that affect the performance o the Contract and

bind upon the Contracto

r.

π l e Contractor shall indemnify

and hold harmless EVN from and against any and all

liabilities

damages

claims

fines

penalties and expenses

o

whatever nature arising or resulting from the violation

o such laws by the Contractor or his personnel

including

the Subcontractors and their personne

l.

9 5

o u n 따 ofOrigin

9.5.1 The Equipment

Materials and Services for the Permanent

Works

to

be executed and supplied under the Contract

shall have their origin in source countries eligible for JBIC

loans and all expenditures made under the Contract will

be

limited

to

such Critical Equipment and Critical Materials

as

stated in

GCC

Sub-Clauses 9 2 and 9.5.3 below.

9.5.2 The country o origin

o

the Critical Equipment and

Materials shall

be

preferably the same

as

countries

o

the

nominated manufacturers belonging

to

the Contractor

as

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MON THERMAL POWER

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qualified or shall be approved by signing the Contract.

9.5.3 The Critical Equipment and Materials

r r e d

to above are

items of a substantial nature and

of

which the performance

is essential to the performance

of

the Works or which are

so

designated by EVN. Such Critical Equipment and

Materials items are stipulated in Clause 2.1.2.2 in Volume

2

9 5

.4 Th

e origin shall be considered to

be

the place where

materials are mined

grown or produced or from which the

Equipment and Materials are fabricated or produced

or

from which the Services are provided. The Equipment and

Materials are considered to be produced when

through

manufacturing processing or major assembling of

components

they are commercially recognized to be

substantially different

in

basic characteristics from its

components.

9.6

9.7

The Contractor shall submit quality assurance program

within twenty eight 28) days

of

Effective Date for EVN’s

approval as stipulated in SCC Sub-Clause 1.2.4.6.

The Contractor shall also propose and execute e t y

Management Procedure and submit periodical safety

record for EVN’s approval. The Contractor shall

indemnify EVN against any liability for losses and

d

l g e s to the property

and against personal injury or

casualty to the personnel

of

EVN

Contractor or

Subcontractor and any party including Unit NO.l

Contractor.

Further to the above the Contractor shall execute the

Safety Management sincerely in conformity with Clause

2.1.9 in Volume 2. The Contractor’s employees shal abide

strictly by the laws of the Socialist Republic of Vietnam

relevant to the execution

of

the Contract. The Contractor

shall conduct the W orks with due regard to safety against

accidents to his employees and to the employees

of

EVN

inspecting the Works. He shall provide such machinery

guards

safe walkways

ladders

bridges

and other safety

devices as may be required by EVN

as

requisite to the

prevention

of

accidents. He shall promptly report to EVN

all accidents occurring to the Contractor’s and

Subcontractor’s employees.

Th

e Contractor shall be

responsible for the payment of all indemnities arising out

of

any labor accident that may occur in the course

of

the

Works for which is responsible.

IV-GCC-21



〔

~

VIETNAMELECT

CITY TEPSCO

MON THERMAL POWER PLA

9.8

면 . 0 : :

진 횟 、

f; \ 6

‘ > ‘

c

If for any reason which does not entitle the Contractor 힐 ， t l F

an extension of the Contract Period the rate of progress 칭

the W orks or any section thereof is

따

any time

in

t h e : :

썼

opinion

of

EVN

too slow to ensure completion

of

t4

Works within the Time for C o m p l e t i o ~ or extended Time

for Completion

the Contractor shall thereupon

on written

notice from EVN) take such steps as are n e c e s s

Y

to

accelerate the Works to complete the Works

or such

section within the Time for Completion

or extended Time

for Completion. However

the Contractor shall not be

entitled to any additional payment for taking such steps.

9.9 Keeping the Site

of

Works in a sanitary condition in

accordance with the laws

of

the Socialist Republic

of

Vietnam and as directed by EVN.

9.10 The Contractor sh 1 erect and maintain such barriers and

lights as will effectively prevent any accident in

consequence of his Works; and any c o n s σ u c t i o n which

may be jeopardized in any manner must be thoroug

h

y and

substanti

y braced against winds floods settling falling

or like occurrences and when n e c e s s y should be

covered and protected from sun and rain; and he shall be

liable for a

l

damages occasioned in any manner by his

acts or neglect

or those

of

his agents

employees

or

workmen.

9.11

Th

e Contractor sh

1 provide his own vehicles to be used

in the Socialist Republic of Vietnam for the execution of

his W orks under the Contract.

9.12

Wh

en ordered by EVN

the Contractor sh

1 make suitable

and adequate conditions for the safe and free passage of

persons and vehicles around or under the W orks while the

same

IS

m progress.

Such conditions for traffic shall be made to the

satisfaction ofEVN

9.13

If

in the execution of the W orks

it is necessary to

interrupt the natural flow of any river or stream

or any

surface drainage

or the flow

of

any artificial drain

the

Contractor shall take adequate measures to prevent

damage to either public or private property and shall be

held liable for any damage resulting from any neglect on

his part to provide for either natural or artificial drainage

which he may have i n t e π u p t e d

9.14 The Contractor shall encroach upon public streets and

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VIETNAM

ELECT

CITY TEPSCO o MON THERMAL POWER

PLANT

data and other information received from EVN for any

p o s e other than the design

procurement

of

Plant and

Equipment

construction or such other work and services

as

are required for the performance

of

the Contrac

t.

16.3 The obligation of a

under

GCC

Sub-Clauses 16.1

and 16.2 above

h o w ε v e r shall not apply to that

information which

a)

now or hereafter

ε n t e r s

the public domain through

no

fault

of

that

b) can be proven to have been possessed by that at

the time

of

disclosure and which was not previously

obtained

d i

rectly or indirectly

from the other party

hereto

c) o t h e r Í s e

lawfully becomes available to that party

from a third party that has no obligation of

confidentiality

16

.4 The above provisions

of

this

GCC

Clause 16 shall not

in

any way modify any undertaking

of

confidentiality given

by either

of

the parties hereto prior to the date

of

the

Contract in respect

ofthe

Facilities or any

thereo

f.

16.5

Th

e provisions

of

this

GCC

Clause 16 shall survive

termination

for whatever reason

of the Contract.

E

Execution of

the Facilities

17. Representatives 17 1 EVN

’

s Representative

EVN

appointed CTTP

as

his e p r ε s e n t a t i v e and delegated

his responsibilities and d u t i ε s to CTTP. EVN may from

time to time appoint some other person

as

EVN

’

s

Representative in place

of

the person previously

so

appointed

and shall give a notice

of

the

of

such other

person to the Contractor without delay. No such

appointment shall be made at such a time or in such a

manner

as

to impede the progress ofwork on the Facilities.

Such appointment shall only take effect upon receipt of

such notice by the Contractor. EVN’s Representative shall

represent and act for EVN at all times during the r e n c y

of

the Contract. All notices

instructions

orders

certificates

approvals and all other communications under

the Contract shall be given by EVN

’

s Representative

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VIETNAM ELECTRICITY TEPSCO MON

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PL NT

except as herein otherwise provided.

All notices, instructions , information and other

communications given by the Contractor to EVN under the

Contract shall be given to EVN’ s R e p r ε s e n t a t i v e except as

herein otherwise provided.

17.2 Contractor’ s e p r e s e n t a t i v ε Project Manager

17.2.1 If the Contractor’s Representative is not named in the

Contract

,

then within fourteen 1

4

days of the

E f 6 ε c t i v e

Date, the Contractor shall appoint the Contractor’s

Representative and shall r ε q u e s t EVN in writing to

approve the person so appointed. If EVN makes no

objection to the appointment within fourteen 14) days,

the Contractor’s Representative shall be deemed to have

been approved. If EVN objects to the a p p o i n t m ε n t within

fourteen 14) days giving the reason therefore

,

then the

Contractor shall appoint a replacement within fourteen

14) days of such objection.

17.2.2

Th

e Contractor’s Representative shall represent and act

for the Contractor at all times during the currency of the

Contract and shall give to EVN

’

s Representative all the

Contractor’s notices

,

instructions

,

information and all

other communications under the Contract. All notices,

instructions

,

information and all other communications

given by EVN or EVN ’ s Representative to the Contractor

under the Contract shall be given

to

t h ε Contractor

’

s

Representative or, in his absence, his deputy, except as

herein otherwise provided. The Contractor shall not

revoke the appointment

of

the Contractor

’

s

Representative without EVN’s prior written consent,

which shall not be unreasonably l e l d If VN

consents thereto

,

the Contractor shall appoint some other

person as the Contractor

’

s Representative, pursuant to the

procedure set out in GCC Sub-Clause

17 2

.1.

17.2.3 The Contractor’s Representative may, e c t to the

approval

of

EVN which shall not be unreasonably

withheld)

, at

any time delegate to any person any of the

powers, functions and authorities vested in him. Any such

delegation may be revoked at any time. Any such

delegation or revocation shall be subject

to

a prior

n o t i c ε

signed by the Contractor’s Representative, and shall

specify the powers, functions and authorities thereby

d e l e g a t ε d or revoked. N

0

such delegation or revocation

shall take effect unless and until a copy thereof has been

delivered to EVN and EVN

’

s Representative. Any act or

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o MON THERMAL POWER

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exercise by any person of powers functions and

authorities

so

delegated to him in accordance with this

GCC Sub-Clause 17.2.3 shall be deemed to be an act or

exercise by the Contractor

’

s Representative.

17.2.4 From the commencement of installation of the Facilities

at the Site until Completion the Contractor’s

Representative shall appoint a suitable person as the

project manager hereinafter

r e f e r r ε d

to

as

“ Project

Manager ). Project Manager shall supervise all work

done at the Site by the Contractor and shall be present at

the Site throughout normal working hours except when

on leave

sick or absent for reasons connected with the

proper performance of the Contrac

t.

Whenever the

Project Manager is absent from the Site

a suitable person

shall be appointed to act as his or her deputy.

The Contractor may appoint person for the position

ofhis representative and Project Manager.

The Proj ect Manager shall appoint

“

Technical Leader

and propose such appointment

to

EVN for approva

l.

Technical Leader shall be a person or a firm who shall

take full responsibility by supervising for the technical

matters of the Facilities under the Contrac

t.

e

Contractor may nominate one (1) or

s e v ε r l

persons to

hold concurrently for the position

of

Contractor’s

Representative Project Manager and Technical Leader

subject to EVN’s approva

l.

17.2.5 EVN may by notice to the Contractor object to any

representative or person employed by t h ε Contractor L. 1

the execution of the Contract who in the reasonable

opinion

of

EVN

may behave inappropriately

may

be

incompetent or negligent or may commit a s ε n o u s

breach

of

the Site regulations provided under GCC Sub

Clause 22.3. EVN shall provide evidence

of

the same

whereupon the Contractor shall remove such person from

the Facilities.

17

.2

6

f

any representative or person employed by the

Contractor

is

removed in accordance with GCC Sub

Clause 17

.2

5

the Contractor shall

where required

promptly appoint a replacemen

t.

18.

WorkProgram 18 .1

Contractor

’

s Organization

The Contractor shall supply

to

EVN and the EVN ’s

Representative a chart showing the proposed organization

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MON

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PL NT

to be

e s t a b l i s h ε d

by the Contractor for carrying out work

on the Facilities. The chart shall include the identities

of

the key personnel together with the curricula vitae of

such key personnel to be employed within twenty-one

(21) days of the E f f i ε c t i v e Date. The Contractor shall

promptly inform EVN and EVN ’s Representative in

writing of any revision or alteration of such an

organization chart.

18.2 Program ofPerformance

Within twenty-eight (28) days after the date of signing

the Contract Agreement

the Contractor shall prepare and

submit to EVN a detailed program of performance

of

the

Contract

made

in

the form specified in

t h ε

SCC Sub

Clauses 1 2.4.2 (e) and 1 2.9.1 reviewing the “Agreed

Work Schedule and showing the sequence in which it

proposes to design

manufacture

transport

assemble

install and precommission the Facilities

as well as the

date by which the Contractor reasonably requires that

EVN shall have fulfilled his obligations under the

Contract

so

as to enable the Contractor to execute the

Contract in accordance the program and to achieve

Completion Commissioning and Acceptance of the

Facilities in accordance with the Contrac

t

The p r o r

n

so submitted by the Contractor shall accord with the

Time Schedule included in the corresponding Appendix

4(Time Schedule) to the Contract Agreement and any

other dates and periods specified in the Contract. The

Contractor shall update and revise the

p r o n

as and

when appropriate or when required

by VN

’s

Representative but without modification in the Times for

Completion given

in

the GCC Sub-Clause 8.3 and any

extension granted in accordance with GCC Clause 40

and shall submit all such revisions to EVN’s

Representative.

The Contractor should observe key dates as specified in

the Contract Agreement and SCC Sub-Clause 1 2.5.2

from time to time during execution ofthe Works.

The Contractor shall use Critical Path Method (CPM)

PERT network or other internationally used program as

the form ofProgram ofPerformance ofthe Contract.

18 3

Progress Report

The Contractor shall monitor progress of all the activities

specified in the program referred

to

in

GCC

Sub-Clause

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VIETNAM ELECTR1CITY TEPSCO


18.2 above

and supply a progress report to EVN’s

Representative every month.

The progress report shall be in a form acceptable to

EVN ’s Representative and shall indicate: a) percentage

completion achieved compared with the

p l n n ε d

percentage completion for each activity; and b) where

any activity is behind the program giving comments and

likely consequences and stating the corrective action

being taken.

18

.4

Progress ofPerformance

If at any time the Contractor ’s actual pro gress falls

behind the program referred to in GCC Sub-Clause 18.2

or it becomes p p r ε n t that it will so fall behind the

Contractor shall

at the request

of

EVN or the EVN ’s

Representative prepare and submit to EVN ’s

Representative a revised program

taking into account the

prevailing circumstances and shall notify EVN ’s

Representative of the steps being taken to expedite

progress

so as

to attain Completion

of

the Facilities

within the Time for Completion under GCC Sub-Clause

8.3

any extension thereof entitled under GCC Sub

Clause 40 1

or any extended period

as

may otherwise be

agreed upon between EVN and the Contractor.

18 5 Work Procedures

The Contract shal1 be ε x ε c u t e d in accordance with the

Contract Documents the procedures given

in

the

section on Sample Forms and Procedures of the Contract

Documents.

The Contractor may execute the Contract in accordance

with his own standard proj ect execution plans and

procedures to the extent that they

do

not conflict with the

s i o n s

contained in the Contrac

t

19. Subcontracting

19

1 The corresponding Appendix 5 List of Approved

Subcontractors) to the Contract Agreement specifies

major items of supply or services such as Boiler

Turbine

Generator

FGD and civil works) and a list

of

approved Subcontractors against each item in uding

vendors.

sofar

as

no Subcontractors are listed against any such

item


p r ε p r e

a list

of

Subcontractors

for such item for incIusion in such lis

t

The Contractor

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VIETNAM ELECTR1CITY TEPSCO o MON THERMAL POWER

PL NT

may from time to time propose any addition to or deletion

from any such list. The Contractor shall submit any such

list or any modification thereto to EVN for its approval in

sufficient time so

as

not to impede the progress

of

work

on the Facilities. Such approval by EVN for any of the

Subcontractors shall not relieve the Contractor from any

of his obligations, duties or responsibilities under the

Contract.

19.2 The Contractor shall select and employ his

Subcontractors for such items from those listed in

the lists referred to in GCC Sub-Clause 19 1

,

except the

Contractor execute such items by himself. However, the

Contractor shall not subcontract the whole of the

F acilities unless otherwise provided in the Contrac

t.

19.3 For items or parts of the Facilities not specified in the

corresponding Appendix 5

L

ist of Approved

Subcontractors to the Contract Agreement, the

Contractor may employ such Subcontractors as it may

select, at its discretion, and submit the list

of

such

subcontractor with detailed information to EVN for

approval. However such approval will not relieve the

Contractor from his obligation under the Contract.

19

.4

The Contractor shall be responsible for acts

,

default and

negligence of the Contractor any subcontractors or

member of consortium

,

and his agent or employee. e

Contractor shall not replace or remove member of

consortium or subcontractors as s t i p u l a t e 강 above Sub

Clause 19.1. The Contractor shall at all times employ a

competent workforce, which in the judgment

of

EVN

shall be sufficient to ensure the time for completion of the

Facilities. The Contractor shall maintain at the Site an

efficient and adequate number

of

work force, t m p o r y

facilities and Contractor’s Equipment to satisfactorily

execute the Facilities in a safe

,

efficient workmanlike

manner at the rate of progress specified in its working

s c h ε d u l e

All the Contractor

’

s Equipment and

Temporary Facilities shall

be

always in good working

conditions and the Contractor shall repair or replace any

of damaged or inefficient equipment or facilities.

19 5

The Contractor shall be notified to the fact that several

materials required for the Project are available in the

Socialist Republic of Vietnam with acceptable

i n t ε r n a t i o n a l standard quality. The Contractor is

encouraged to maximize the use

of

local materials unless

IV-GCC 46



VIETN M ELECT

CITY

/ TEPSCO MON THERM L POWER

PL NT

‘

20. Design and

Engineering

the requirements under the Contract with respect to timely

availability, quality and price are jeopardized. e

Contractor shall identify local materials and Equipment

components he intends to purchase locally in his Bid.

The Contractor shall make

his

own

r n g e m e n t s

for the

engagement of all labors and, save insofar as the Contract

otherwise provides

,

for the transport

,

housing

,

feeding and

p y m ε n t

thereof. The Contractor

is

encouraged to employ

in the execution

of

the Contract Vietnamese citizens to the

possible extent with preference being given to residents

within the immediate vicinity

of

the Project Site

,

taking

into consideration his overall responsibility to complete

the Works on a timely basis.

20.1 Specifications and Drawings

20.

1 The Contractor shall execute the basic and detailed

design and the engineering work in compliance with the

provisions

of

the Contract, or where not

so

specified, in

accordance with good engineering practice.

The Contractor shall be responsible for any

discrepancies, errors or omissions in the specifications,

drawings and other technical documents that he has

prepared

,

whether such specifications

,

drawings and

other documents have been approved by

VN

’

s

Representative or not.

20.

2

Th

e Contractor shall entitled to disclaim responsibility

for any design, data, drawing, specification or other

document

,

or any modification thereof provided or

designated by or on behalf of VN, by giving a notice of

such disclaimer

to

EVN

’

s Representative.

20.2 Codes and Standards

Wherever references are made in the Contract to codes and

standards in accordance with which the Contract shall be

executed

,

the edition or the revised version

of

such codes

and standards current at the date twenty-eight 28) days

prior to date of Bid submission shall apply unless

otherwise specified. During Contract execution, any

changes in such codes and standards shall be applied after

approval by EVN and shall be treated in accordance with

GCC Clause

39

The Contractor shall, within twenty eight

28) days of Effective Date, submit for EVN’s approval a

list

of

the Codes and Standards, or thereof, which shall

govem the design, manufacture, shoptests, shipping,

IV-GCC-47



‘



delivering

construction

installation

commissioning

reliability run

and p ε r f o r m n c e test ofthe Facilities.

20.3 Approval

lR

eview

of

Technical Documents by EVN

’

s

Representative

20.3.1 The Contractor shall prepare or cause his Subcontractors

to prepare) and furnish to EVN ’s Representative the

documents listed in the corresponding Appendix 7 List

of

Documents for Approval or Review) to the Contract

Agreement for its approval or review as specified and in

accordance with the requirements of GCC Sub-Clause

18.2

r o g r

ofPerformance). Any

ofthe

Faci1ities

covered by or related to the documents to be approved by

EVN

’

s Representative shall be executed o

y after

EVN’s Representative ’s approval thereof. GCC Sub

Clauses 20.3.2 through 20.3.7 shall apply to those

documents requiring EVN

’

s Representative

’

s

but not to those furnished to EVN’ s Representative for its

review o y

20.3.2 Within fourteen 14) days

of

receipt by EVN’s

Representative

of

any document requiring EVN

’

s

Representative ’s initial study and review in accordance

with GCC Sub-Clause 20.3.1

EVN

’

s Representative

sha

l1

instruct

t h ε

Contractor to submit additional and

explanatory drawings/data reports and shall request the

Contractor to organize explanation meeting

if

required or

to make revision if any. The Contractor shall submit

such additional documents and or make explanation

within seven 7) days

of

such EVN’s instruction or

request. EVN shall within seven 7) days of such

resubmission

either return one copy thereof to the

Contractor with its approval endorsed thereon or shall

notify the Contractor in writing

of

its disapproval thereof

and the reasons therefor and the modifications that

EVN

’

s Representative proposes.

In the event that the Contractor does not receive EVN

’

s

approval confirmation and or comment within the period

above-mentioned

the Contractor shall be entitled to

proceed with execution

of the Works concemed

as

reporting it to EVN provided that there has been

no

delay

or no default

on

the procedures by the Contracto

r.

However such delayed approval

of

EVN does not release

the Contractor from any obligation and responsibility

under the Contrac

t.

20.3.3 EVN’s Representative shall not disapprove any document

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\

VIETN M ELECT

CITY

/ TEPSCO


except on the grounds that the document does not comply

찌

r i t

some specified provision

of

the Contract or that it is

contrary to good engineering practice.

20.3 .4 f EVN

’

s Representative disapproves the document the

Contractor shall modi:fy the document and resubmit it for

EVN ’s Representative’s approval in accordance with

GCC Sub-Clause 20 3 2 f EVN

’

s Representative

approves the document subject to modification s) the

Contractor shall make the required modification s)

whereupon the document shall be deemed to have been

approved.

20.3.5 f any dispute or difference occurs between EVN and the

Contractor in connection with the Contract or arises out

of the disapproval by EVN

’

s Representative

of

any

document an

or any modification s) thereto that cannot

be settled between the parties within a reasonable period

then such dispute or difference may be referred to

arbitration for determination in accordance with GCC

Sub-Clause 6.2 hereof.

f

such dispute or difference is

referred to an arbitration EVN

’

s Representative shall

give instructions as to whether and

if so

how

performance

of

the Contract is to proceed. The

Contractor shall proceed with the Contract in accordance

찌

r i t

EVN

’

s Representative

’

s instructions

provided that

if

EVN has not given notice under GCC Sub-Clause 6.1.2

hereof then the Contractor shall be r e i m u r s ε d by EVN

for any additional costs incurred by reason of such

instructions and shall be relieved of such responsibility or

liability in connection with the dispute and the execution

of the instructions

as

the arbitrator shall decide

and the

Time for Completion shall be extended accordingly.

20.3.6 EVN

’

s e p r e s e n t a t i v ε approval with or without

modification of the document furnished by the

Contractor

shall not relieve the Contractor

of

any

responsibility or l i a b i l i η imposed upon it by any

provisions of the Contract except to the extent that any

subsequent failure results from modifications required by

EVN

’

s Representative.

20.3.7 Contractor shall not depart from any approved

document unless the Contractor has first submitted to

EVN

’

s Representative an amended document and

obtained EVN

’

s e p r e s ε n t a t i v e approval thereof

pursuant to the provisions of this

GCC

Sub-Clause 20.3.

f

EVN ’s Representative

r ε q u e s t s

any change

in

any

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VIETNAM

ELECT

CITY

I

TEPSCO MON THERM L POWER PL NT

21 Procurement

already approved document andlor in any document

based thereon

the provisions of GCC Clause 39 shall

apply to such reques

t.

21.1 Plant and Equipment

Subject to GCC Sub-Clause 14.2 the Contractor shall

manufacture or procure and transport all the Plant and

Equipment in an expeditious and orderly

m r

to the

Site.

21.2 Employer-Supplied Plant

Equipment

and Materials

f

the corresponding Appendix Scope

of

W orks and

Supply by the Employer) to the Contract Agreement

provides that the Employer shall furnish any specific items

of machinery

equipment or materials to the Contractor

the

following provisions shall apply:

2

1

2 1

The Employer shall

at its own risk and

ε x p n s

transport each item to the place on or near the Site as

agreed upon by the

t i e s

and make such item available

to t h ε Contractor at the time specified in the program

furnished by the Contractor pursuant to GCC Sub-Clause

18.2 unless otherwise mutually agreed.

21 .2.2 Upon receipt of such item the Contractor shall inspect

the same visually and notify the Employer ’s

Representative

of

any detected shortage defect or

default.

Th

e Employer shall immediately remedy any

shortage defect or default or the Contractor shall if

practicable and possible at the request

of

the Employer

remedy such shortage defect or default at the Employer ’s

cost and expense. After inspection such item shall fall

under the care

custody and control ofthe Contractor.

Th

e

provision of this GCC Sub-Clause 21

2

2 shall apply to

any

item supplied to remedy

any

such shortage or

d ε f u l t

or to substitute for any defective item or shall apply to

defective items that have been repaired.

21.2.3 The foregoing responsibilities of t h ε Contractor and its

obligations

of

care custody

and

control shall not relieve

the Employer of liability for any undetected shortage

defect or default

nor place the Contractor under any

liability for any such shortage defect or default whether

under GCC Clause 27 or under any other provision of

Contrac

t

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VIETNAM

ELECTRICITY

TEPSCO MON THERMAL

POWER

PL NT

21 3 Transportation

21 3 1


at

his own risk and expense

transport all the Plant and Equipment and the

Contractor’s Equipment

to

the Site by the mode o

transport that the Contractor judges most suitable under

all the circumstances.

2

1.

3.2 Unless otherwise provided in the Contract the Contractor

shall be entitled to select any safe mode o transport

operated by any person to c π y the Plant and Equipment

and

the Contractor’s Equipment.

2

1.

3 3 Upon dispatch o each shipment o the Plant and

Equipment and the Contractor’s Equipment

the

Contractor shall notify EVN by telex

cable

facsimile or

lectronic Data Interchange EDI)

o

the description o

the Plant and Equipment and

o

the Contractor

’

s

Equipment the point and means

o

dispatch and the

estimated time and point

o

arrival in Vietnam

i

applicable and at the Site. The Contractor shall furnish

EVN with relevant shipping documents to be agreed upon

between the parties.

2

1.

3.4 The Contractor shall be responsible for obtaining

i

n e c e s s a η

approvals from the authorities for

transportation o the Plant and Equipment and the

Contractor’s Equipment to

the

Site. EVN shall use its

best endeavors in a timely and expeditious manner to

assist the Contractor in obtaining such approvals i

requested by the Contractor. The Contractor shall

indemnify and hold harmless EVN from and against any

claim for damage to roads

bridges or any other traffic

facilities that may be caused by

the

transport

o

the Plant

and

Equipment and the Contractor’s Equipment to the

Site.

21 .4 Customs Clearance

The Contractor shall at his own expense handle all

imported Plant and Equipment and Contractor’s

Equipment at the point s) o import and shall handle any

formalities for customs clearance subject to EVN’s

obligations under GCC Sub-Clause 14.2 provided that

i

applicable laws or regulations require any application or

act

to be made by or in the name of EVN who shall take

all

necessary steps to comply with such laws or

regulations. In the event

o

delays in customs clearance

that are not the fault o the Contractor the Contractor

IV-GCC-51





22. Installation

shall be entitled to an extension in the Time for

Completion pursuant to GCC Clause 40.

22.1

Setting Ou

Supervisio

nIL

abor

22.1.1 Bench Mar

k:

The Contractor shall be responsible for the

true and proper setting-out of the Facilities in relation to

bench marks reference marks and lines provided to it in

writing by or on behalf ofEVN.

f

at any time during the progress of installation of the

Facilities any error shall appear in t h ε position level or

alignment

of

the Facilities

the Contractor shall forthwith

notify EVN’s Representative of such error and at his

own expense

immediately rectify such error to the

reasonable satisfaction of EVN ’s Representative. f such

error is based on incorrect data provided in writing

by

or

on behalf of EVN the expense of rectifying the

s m ε

shall be bome by EVN.

f those given bench marks or reference marks are

disturbed or dislocated during the installation and

construction

ofthe

Facilities the Contractor shall relocate

and reset those points at the Contractor ’s expense.

22.

2 Contractor’s Supervision: The Contractor shall give or

provide all necessary superintendence during the

installation of the a c i l i t i ε s and Project Manager or its

deputy shall be constantly on the Site to provide full-time

superintendence of the installation. The Contractor shall

provide and employ only technical personnel who are

skilled and experienced in their respective callings and

supervisory staff who are competent to adequately

supervise the work at hand.

22.1.3 Labor:

a) The Contractor shall provide and employ on the Site

in

the installation of the Facilities such skilled semi

skilled and unskilled labor

as

is necessary for the

proper and timely execution

of

the Contract. The

Contractor is encouraged to use local labor that has

the necessary skills.

b) Unless otherwise provided in the Contract the

Contractor shall be responsible for the recruitment

transportation accommodation and catering of all

labor

local or

e x p a t r i a t ε

required for the execution

of

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VIETNAM ELECTRICITY

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the

Contract and for all payments in connection

therewith.

c)

e Contractor shall be responsible for obtaining all

necessary permit s) and/or visa s) from the

appropriate authorities for the

ε n t r y

o all labor and

personnel to be employed on the Site into Vietnam.

d) The Contractor shall at his own expense provide the

means o repatriatión to all o his and his

Subcontractor ’

s personnel employed on the contract

at the Site to their various home countries. e

Contractor shall also provide suitable t e m p o r η

maintenance

o

all such persons from the cessation

o

their employment on the Contract to the date

programmed for their departure. In the event that the

Contractor defaults in providing such means

o

transportation and temporary maintenance, EVN may

provide the to such personnel and recover the

cost o doing so from the Contracto

r.

e) The Contractor shall comply with the provisions

o

all

laws

o

Vietnam affecting the employment o labor.

In

the event EVN becomes liable to any employee or

labor o the Contractor under provisions o any such

law

,

resulting from the Contractor

’

s failure to comply

with the said law, t h ε Contractor shall indemnify

EVN and shall reimburse EVN any expenses or

p e n l η imposed. The Contractor shall submit detailed

returns showing names o supervisory staff and the

numbers

o

each class o labor employed by the

Contractor and subcontractors on the Site in such a

manner and at such intervals as EVN may instruct.

e Contractor shall at all times during the progress

of the Contract use his best endeavors to prevent any

unlawful

,

riotous or disorderly conduct or behavior by

or

n o n g s t

his employees and the labor

o

his

Subcontractors.

f)

The Contractor shall, in all dealings with his labor

and

the labor o his Subcontractors currently

employed on or connected with the Contract, pay due

regard to all r e c o g n i z ε d festivals, official holidays,

religious or other customs and all local laws and

regulations pertaining to the employment

o

labor.

g)

On the Site

,

the Contractor shall observe the normal

working hours

as

specified by EVN. EVN shall allow

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VIETN M

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t h ε Contractor to

c a π Y

out work on the Site

continuously during such working hours.

h)

HIV Prevention Program

Vietnam Government had set up the National

Committee for HIV/AIDS drug and prostitution

prevention. Cantho City People

’

s Committee also set

up the Steering Board against HIV/AIDS Drug and

Prostitution.

The Contractor

therefore:

i) is responsible for coordinating with Local

Government to implementing an HIV/AIDS

Prevention Program;

ii) is responsible for implementing an HIV AIDS

Prevention Program n o n g the Contractor

’

s

Employees and the local community) for the

duration o the Contractor

’

s contract

commencing as soon as practicable after the

Contractor’s E m p l o y e ε s arrive at the Site in

conjunction with occupational health staff o the

Contractor and the local health authorities involved

in HIV AIDS prevention;

iii) instructs the Contractor’s Employees to participate

in the HIV AIDS Prevention Program in the course

o

their employment and during their normal

working hours or any period o overtime provided

for in the relevant employment contracts;

For further d ε t i l t h ε Contractor c

a.. 1

contact the

followirlg address:

Backup Health Center

Cach Mang Thang Tam Street Chau Van Liem Ward

o

Mon District

Cantho

i η

Vietnam

Tel.No.: 0710 3661444

Fax.No.: 07103664578

22.2 Contractor

’

s Equipment

22.2 .1

exclusively for the execution

o

the Contract.

Contractor shall not remove the same from the Site

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without EVN

’

s Representative

’

s consent that such

Contractor’s Equipment is

no

longer required for the

execution

of

the Contract.

22.2.2 Unless otherwise specified in the Contract upon

completion

of

the Facilities the Contractor shall remove

from the Site all Contractors Equipment brought by the

Contractor onto the Site and any surplus materials

remaining thereon.

22.2.3 EVN will if requested use its best endeavors to assist the

Contractor in obtaining

any

local state or national

government permission required by the Contractor for the

export of the Contractor

’

s Equipment imported by the

Contractor for use in the execution

of

the Contract that is

no

longer required for the execution

of

the Contract.

22 3

Site Regulations and Safety

EVN and the Contractor shall establish Site regulations

s ε t t i n out the rules to be 0 bserved in the execution of the

Contract at the Site and shall comply therewith. The

Contractor shall prepare and submit to the EVN

with a

copy to EVN’s Representative

proposed Site regulations

for EVN

’

s approval which approval shall not be

unreasonably withheld.

Such Site regulations shall include but shall not be

limited to

rules

in

respect of security

safety of the

Facilities gate control sanitation medical care and fire

preventíon.

22 4 Opportunities for Other Contractors

22 4 1 The works under Unit NO.l Contract is being executed

in

adjacent area ofthe Site

as

stated in GCC Sub-Clause 7.5

the Contractor shall coordinate with the other contractor

under the Unit NO.l Contract

to

facilitate both works

under the Unit No.l and Unit NO 2

The Contractor shall upon written request from EVN or

EVN

’

s Representative

give

all reasonable opportunities

for carrying out the work to any other contractors

employed by EVN on or near the Site.

22 4 2 f the Contractor upon written request 갚 o EVN or

EVN’s Representative makes available to other

contractors any roads or ways the maintenance for which

the Contractor

is

responsible

permits the use by such

other contractors of the Contractor’s Equipment or

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provides any other service of whatsoever nature for such

other contractors

EVN shall fully compensate the

Contractor for any loss or damage c a u s ε d or occasioned

by such

o t h ε r

contractors in respect

of

any such use or

service and shall pay to the Contractor reasonable

remuneration for the use of such equipment or the

provision of such services.

22 4

3

The Contractor shall also

so

r a n g e to perform his work

as to minimize to the extent possible interference with

the work of other contractors. EVN’s Representative shall

determine the resolution of any difference or

co

n:flict that

may arise between the Contractor and other contractors

and the workers of EVN in regard to t h ε i r wor

k.

22.4.4 The Contractor shall notify EVN’s Representative

promptly of any defects in the other contractors ’ work

that come to its notice and that could affect the

Contractor

’

s wor

k.

EVN

’

s Representative shall determine

the corrective measures if any required to rectify the

situation after inspection ofthe Facilities. ε c i s i o n s made

by EVN’s Representative shall be binding on the

Contractor.

22.5 Emergency W ork

f by reason of an emergency arising in connection with

and during the e x ε c u t i o n of the Contract any protective or

remedial work is necessary

as

a matter of urgency to

prevent damage to the Facilities the Contractor shall

immediately

따

out such work.

f

the Contractor is unable or unwilling to do such work

immediately

EVN may

do

or cause such work to be done

as EVN may determine is necessary in order to prevent

damage to the Facilities. n such an event EVN shall

as

soon as practicable after the o c c u π e n c ε

of

any such

emergency

notify the Contractor in writing of such

e m e r g ε n c y the work done and the reasons therefor f the

work done or caused to be done by EVN is work that the

Contractor was liable to do at his own expense under the

Contract the reasonable costs incurred by EVN in

connection therewith shall be paid by the Contractor to

EVN. Otherwise the cost of such remedial work shall be

bome by the EVN.

22.6 Site Clearance

22.6

1

Site Clearance in Course ofPerformance: In the course

of

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carrying out the Contract

the Contractor shall k ε p the

i t ε reasonably free from all unnecessary obstruction

store or remove any surplus materials clear away any

wreckage

rubbish or temporary works from the Site

and

remove any Contractor’s Equipment no longer required

for execution of the Contract.

22.6

2

Clearance of Site after Completion: After Completion of

all of the Facilities the Contractor shall clear away

and remove all wreckage rubbish and debris of any kind

from the Site and shallleave the Site and Facilities clean

and safe.

22.7 Watching and Lighting

The Contractor shall provide and maintain at his own

expense all lighting fencing and watching when and

where necessary for the proper execution and the

protection

ofth

Facilities or

for

the safety

ofth

owners

and occupiers of adjacent property and for the safety of

the public especially EVN’s facilities and the contractor

under the Unit NO 1 contrac

t.


provide and maintain such danger lights and barriers

as

will effectively prevent any accident during the Contract

Period.

22.8 Work at Night and on Holidays

22.8 1 Unless

o t h ε r w i s

provided in

the

Contract

no

work shall

be carried out during the night and on public holidays of

Vietnam without prior written consent

of

EVN except

where work is

n e c e s s

or required to ensure safety of

the Facilities or for the protection of life or to prevent

loss or damage to property

when the Contractor shall

immediately advise EVN’s Representative provided that

provisions ofthis GCC Sub Clause 22.8.1 shall not apply

to any work which is customarily carried out by y or

double shifts.

22.8.2 Notwithstanding GCC Sub Clauses 22.8.1 or 22. 1 3

if

and when the Contractor considers it necessary to

없

out work at night or on public holidays

so as

to meet the

Time for Completion and requests EVN

’

s consent

thereto EVN shall not unreasonably withhold such

consen

t.

The Contractor shall comply with the goveming

pertinent laws and regulations of Vietnam regarding t h ε

works on Saturdays Sundays Official Holidays and at

nights. EVN shall assist the Contractor in securing

necessary permit upon the Contractor

’

s request for

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VIETNAMELECTRICITY TEPSCO MON THERMAL POWER PL NT

23. Test and

Inspection

overtime works and works on Saturdays Sundays

Official Holidays and at nights for EVN ’s staff and the

Contractor

’

s employee.

3

1 The Contractor shall at his own expense carry out at the

place

of

manufacture an

d

or on the Site all such tests

an

d

or inspections

of

the Plant and Equipment and any

part ofthe Facilities whenever EVN deems it necessary.

23.2 EVN and its Representative or their nominee including

the Consultant shall be entitled to attend the aforesaid

test provided that all costs and expenses incurred in

connection with such attendance including

but not

limited to all traveling and board and lodging expenses

shall be reimbursed under the provisions

of

Provisional

Sum A) as stated in Appendix 1 Terms and Procedures

ofPayment)

23.3 Whenever EVN requested to c π y out any such test

an

d

or inspection

the Contractor shall give a reasonable

advance notice of such test an

d

or inspection and of the

place and time thereof to EVN

’

s Representative. he

Contractor shall obtain from any relevant party or

manufacturer any necessary permission or consent to

enable EVN and EVN

’

s Representative or t ε l r

nominee)

to

attend test an

d

or inspection.

3

.4 The Contractor shall provide EVN

’

s Representative with

a certified report of the results of any such test and or

mspectìon.

If VN or VN

’

s Representative or t ε i r nominee) fails

to attend test and or inspection or if it is agreed upon

between the parties that such persons shall not do so

then

the Contractor may proceed with test and or inspection in

absence of such persons and shall provide EVN

’

s

Representative with a certified report of the results

thereof.

23.5 EVN

’

s Representative may require the Contractor to

carry out any test an

d

or inspection. Further

if

such a test

an

d

or inspection impedes the progress of work on the

Facilities an

d or the Contractor’s performance

of

his

other obligations under the Contract due allowance will

be made in respect of the Time for Completion and the

other obligations

so

affected.

23.6

If

any Plant and Equipment or any part of the Facilities

fails to pass

any

test and/or inspection

the Contractor

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VIETNAMELECTRICITY

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shall either rectify or replace such Plant and Equipment

or

of

the Facilities and shall repeat test

an

d or

inspection upon giving a notice under GCC Sub Clause

23.3. The Contractor shall bear and pay all the expenses

in connection with this repeated test an

d

or inspection.

23.7 If any dispute or

d i f f e r e n c ε of

opinion arises between the

t i e s in connection with or arising out of test and or

inspection

of

the Plant and Equipment or

of the

F acilities that cannot be settled between the parties within

a reasonable period

of

time

it may be referred to an

settlement of dispute for determination in accordance

with GCC Sub Clause 6.1.

23.8

Th

e Contractor shall afford access

of

EVN and

VN

’s

Representative at any reasonable time to any place where

the Plant and Equipment are being manufactured or the

Facilities are being installed in order to inspect the

progress and the m e r of manufacture or installation

provided that EVN ’s Representative shall give the

Contractor a reasonable prior notice.

23.9 The Contractor agrees that neither the execution

of

test

an

d

or inspection of Plant and Equipment nor

any

p

of

the Facilities nor the attendance by EVN or VN ’s

Representative

nor the issue

of

any test certificate

pursuant

to

GCC Sub Clause 3

.4

shall r e l ε s e the

Contractor from any other responsibilities under the

Contract.

3

0 No

of

the Facilities or foundations shall be covered

up on the Site without the Contractor carrying out any

test an

d

or i n s p ε c t i o n required under the Contract.

Th

e

Contractor shall give a reasonable notice to VN ’s

Representative

w h ε n e v e r

any such ofthe Facilities or

foundations are ready or about to be ready for test and or

inspection; such test and/or inspection and notice thereof

shall be subject to the r e q u i r e m ε n t s

of

the Contrac

t.

23.11 The Contractor shall uncover any of the Facilities or

foundations or shall make openings in or through the

same as EVN’s Representative may from time to time

require at the Site and shall reinstate and make good

s u c h p

If

any

of the Facilities or foundations have been

covered up

at

the Site after compliance with t h ε

requirement

of

GCC Sub Clause 23.10 and are found to

be executed in accordance with the Contract the

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24. Completion of

the Facilities

expenses of uncovering

,

making openings in or through

,

reinstating, and making good the same shall

be

borne by

EVN

,

and the i m ε for Completion shall be reasonably

adjusted to the extent that the Contractor has thereby

been delayed or impeded in the performance of any

of

his

obligations u n d ε r the Contrac

t.

24 1 The Facilities shall be completed in the sequence order

of

Commissioning power receiving, initial firing, initial

steam admission

,

synchronization

,

trial run and adjustment)

Reliability Run and Performance Test of which definition

and key dates are set forth in SCC Sub-Clause 1 2 5

2

The W orks

,

except that part to be performed during Defect

Liability Period

,

shall be completed within the Contract

Period or extended period as stipulated in GCC Clause 40.

The Time for Completion of the Facilities

,

or the last day

of the Contract Period shall be the date of satisfactory

completion

of

Performance Test as certified by the

Provisional Acceptance Certificate issued by EVN

,

for the

whole ofth Facilities.

The date offinal and total completion ofth Facilities shall

be the d t ε

of

termination

of

the Defect Liability Period for

the whole of the Facilities. t shall be certified by Final

Acceptance Certificate issued by EVN in accordance with

SCC Sub-Clause 1 2.5.2

,

after the Inspection for Final

Acceptance ofth Facilities.

24 2 Commissioning

After al the equipment and auxiliary items have been

assembled, installed c o n n ε c t e d and carried out pre

commissioning tests, then the Contractor sha

l

notify EVN

the readiness for Commissioning as early as possible at the

latest one 1) month prior to Commissioning.

Training of EVN’s personnel for

o p e r

i o n and

maintenance at Site as set forth in SCC Sub-Clause

1 2 23.2 sha 1 be started with Commissioning.

24.3 Reliability Run

Reliability Run shall be carried out for thirty 30) days

after completion of Commissioning in accordance with

Clause 2.1.12 in Volume 2

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24

.4

Partial Acceptance

EVN reserves the right to take over

t h ε of

the

Facilities constructed by the Contractor and ready for use

prior to i s s u n c ε of Provisional Acceptance Certificate by

issuing Partial Acceptance Certificate.

The Defect Liability Period for the facility which Partial

Acceptance Certificate is issued and is taken

o v ε r

by

VN

shall

from the date ofPartial Acceptance Certificate.

24.5 Performance Test

24.5 .1 The P ε r f o r m a n c e Test and repeats test t h ε r e o shall be

conducted by the Contractor after the period

of

Reliability

Run of the Facilities or relevant thereof to ascertain

whether the Facilities or the relevant can attain the

Functional Guarantees as s p e c i f i ε d in I tem

11

α a i n

Design Conditions and Guaranteed Performance Data

Items) in Forms and Procedures, Technical Schedule and

Technical Specifications. EVN shall attend the

P e r f o r m a n c ε

T est and

, if

necessary and appropriate to do

so , assist the Contractor in the Contractor’ s attaining such

information

as

may be reasonably

r e q u i r ε d

in relation to

the conduct and results of the Performance Test and any

repeats thereo

f).

24.5 .2 f for reasons not attributable to the Contractor, the

Performance Test

ofthe

Facilities or relevant thereof

cannot be successfully completed within the Time for

Completion as adjusted in GCC Clause 40

E

xtension of

Time for Completion)

,

the Contractor shall be deemed

have fulfilled his obligations with respect to the

Functional Guarantees and GCC Sub-Clause 28 .2 and

shall not apply Liquidated Damages set forth in GCC

Sub-Clause

28 .4,

however

,

the Contractor shall conduct

Performance Test as soon as practicable to ascertain his

Functional Guarantee.

24.6 Provisional Acceptance

24.6.1 EVN

’

s Representative shall, within fourteen

1 4

days of

the date of satisfactory completion of Performance Test

,

issue a Provisional Acceptance Certificate in the form

specified in Item 7

F

orm of Provisional Acceptance

Certificate) in Forms and P r o c e d u r ε s stating that the

Facilities or that part thereof have

r e a c h ε d

Completion

as

of the date of the Contractor’s notice that shall be the date

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of on which the Contract Period terminates.

f

EVN ’s Representative notifies the Contractor of any

defects an

or deficiencies

then


correct such defects an

or deficiencies and shall repeat

the p r o c ε d u r e described in GCC Sub-Clause 24.5. f

EVN

’

s Representative is satisfied that the Facilities or that

part thereof have reached Completion

EVN’s

Representative shall

within seven 7) days

of

receipt of

the Contractor’s repeated notice issue a Provisional

Acceptance Certificate stating that the Facilities or that

P thereof have reached Completion as of the date of the

Contractor

’

s repeated notice.

f

EVN

’

s Representative is

not so satisfied then it shall notify the Contractor in

writing

of

any defects

a n ψ o r

deficiencies within seven

7)

days of receipt of the Contractor’s repeated notice and the

above procedure shall be repeated.

24.6.2 f EVN

’

s

R e p r ε s e n t a t i v e

fails to issue the Provisional

Acceptance Certificate and fails to inform the Contractor

of any defects an

or deficiencies within fourteen 1 4)

days after receipt

of

the Contractor

’

s notice under GCC

Sub-Clause 24.6 or within seven 7) days of receipt of the

Contractor

’

s repeated notice under GCC Sub-Clause 24.6

or if EVN makes use of the Facilities or part thereof

then

the Facilities or that part thereof shall be deemed to have

reached Completion

as

of the date

of

the Contractor’s

notice or repeated notice or as of EVN’s use of the

Facilities

as

the case may be.

24.7 As soon as possible after Completion the Contractor shall

rectify all outstanding minor items so that the Facilities are

fully completed in accordance with the requirements of the

Contract. In the event

of

failing such obligations EVN will

undertake such completion and deduct the costs t h ε r e o f

from any monies owing to the Contractor.

24.8 Upon Completion EVN shall be responsible for the care

custody and control of the

a c i l i t i ε s

or the relevant p

thereof

together with the risk of loss or damage thereto

and shall thereafter take over the Facilities or the relevant

p a π t h e r e o f

24.9 The Contractor shall guarantee that he shall attain such

Completion

of

the Facilities within t h ε Time for

Completion as stated in

GCC

Sub-Clause 8.3 or within

such extended time

as

stated in

GCC

Clause

40

hereo

f.

Failure

of

completion

of

the Facilities within the said Time

for Completion may result

in

the Contractor

’

s payment for

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25. Commercial

Operation and

Provisional

Acceptance

Liquidated Damages s stated in GCC Sub Clause 26.2

hereof.

25.1

Commercial Operation

25. 1.1 Commercial Operation of the Facilities or any part

thereof shall be commenced by EVN immediately after

issue of the Provisional Acceptance Certificate by

VN

’s

Representative

pursuant to GCC Sub-Clause 24.6

or

immediately after the Facilities shall be deemed to have

reached Completion under GCC Sub-Clause 24.6 .2.

25.1.2 EVN shall supply t h ε o p ε r t i n g and maintenance

personnel and all raw materials

utilities

lubricants

chemicals

catalysts

facilities

services and other matters

required for Commercial Operation.

25.1.3 VOID

25

.2

Performance Test

25 .2

.1 replaced 24

.4

.1 above

25.2

.2

replaced 24

.4.2

above

25.3 Provisional Acceptance

25.3

.1

Subject to GCC Sub-Clause 24.6 Provisional Acceptance

shall occur in respect of the F acilities when

a) Performance Tests has been successfu11y completed

and the Functional Guarantees are met; or

b)

Other conditions as stipulated in GCC Sub-Clause

24.5.2 or GCC Sub-Clause

28

.2 .2 or GCC Sub

Clause 24.6.2

25.3

.2

At any time after any

of

the events set out in GCC Sub

Clause 25.3.1 have occurred the Contractor may give a

notice to EVN

’

s Representative requesting the issue

of

Provisional c c ε p t a n c e Certificate in the form provided

in

em

7

F

orm of Provisional Acceptance Certificate)

in Forms and Procedures or in another form acceptable to

EVN in respect of

t h ε

Facilities or the part thereof

specified in such notice

as

of

the date of satisfactory

completion ofPerformance Tes

t.

25.3.3 EVN’s Representative shall

after consultation with EVN

and within fourteen 14) days

of

receipt

of

the

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26.

Contractor’s notice

issue Provisional Acceptance

Certificate.

25

.3.4

If

within fourteen 4 days

of

receipt

of

the Contractor’s

notice EVN

’

s Representative fails to issue Provisional

Acceptance Certificate or fails to inform the Contractor in

writing of the justifiable reasons why VN

’

s

Representative has not issued Provisional Acceptance

Certificate the Facilities or the r e l ε v n t thereof shall

be deemed to have been accepted as

of

the date

of

the

Contractor

’

s said notice.

25 .4

t i l

Acceptance

25

.4.1 If

the Contract specifies that Completion and

Commissioning shall be carried out in respect

of of

the Facilities the provisions relating to Completion 없

Commissioning including the Performance test shall

apply to each such of the Facilities individually and

Partial Acceptance Certificate shall be issued accordingly

for it.

25

.4

.2

If a p of the Facilities comprises facilities such as

buildings

for which no Commissioning or Performance

Test is required then EVN’s Representative shall issue

the Partial Acceptance Certificate for such facility when

it attains Completion

provided that the Contractor shall

thereafter complete any outstanding minor items that are

listed in the Provisional Acceptance Certificate.

25.5 Final Acceptance

EVN shall issue Final acceptance Certificate on the date

of

termination

of

Defect Liability Period

provided that

the Contractor shall exercise

all

the Contractor ’s

obligation during the Defect Liability Period as stated in

GCC

Clause 27 after the inspection of EVN. The date

of

such issuance

of

Final Acceptance Certificate shall be the

date of final and total completion

of

the whole of the

Facilities.

F. Guarantees and Liabilities

Completion 26.1

Time

The Contractor shall r ε s p o n s i b l e for the proper

performance

of

the Contract including his organization

and p r o s ε c u t i o n ofthe

Works subject to all conditions set

삼

by the Specifications and in accordance with the

Guarantee

IV GCC 64



VIETNAM

ELECTRICITY TEPSCO MON THERMAL POWER

PL NT

27.

Defect

Liability

damage thereby suffered by EVN.

EVN will deduct the n o u n t

of

such liquidated damages

from any money due or which may become due to the

Contractor or from the Performance Security whichever

convenience to EVN.

26.3 The Contractor shall submit a schedule showing date

duration and

p r o ε d u r e

required for connecting works

between Unit nos. 1 and 2 during a outage ofUnit NO.l.

If the Contractor fails to complete such connecting works

within the proposed time period

the Contractor shall pay

to EVN liquidated damages in the amount of Japanes Yen

23

000

000 or equivalent in US or

Euro

per day.

27.1 The Contractor warrants that t h ε Facilities or any

p

thereof shall be free from defects in the design

engineering

materials and workmanship

of

the Plant and

Equipment supplied and

of

the work executed. The

Contractor shall be responsible for making good any

defect in or damage to any part

of

the Facilities that

may

appear or occur during Defect Liability Period due to

either

a) any defective material

workmanship or design

or

b) any act or omission of the Contractor during

execution

of

the Contract.

27.2

Th

e Defect Liability Period shall

be

twenty four (24)

months from the following date of Completion of the

Facilities

or Satisfactory Completion of Performance

Test

certified by Provisional Acceptance Certificate. If

during the Defect Liability Period any d ε f e c t should be

found in the design engineering materials and

workmanship

of

the Plant and Equipment supplied or of

the work executed by the Contractor

the

Contractor shall

promptly in consultation and agreement

r i t

VN

regarding appropriate remedying

of

the defects

and at its

cost

repair

replace or otherwise

make

good (as the

Contractor shall

at

his discretion determine) such defect

as well as any damage to the Facilities caused by such

defect. The Contractor shall not

be

responsible for the

repair

replacement or making good

of

any defect

or of

any

l g e

to the Facilities arising out of or resulting

from any ofthe following causes:

a)

improper operation or maintenance

of

the

IV-GCC-66



VIETNAM ELECT

R1CITY

TEPSCO MON

THERMAL POWER PL NT

Facilities by EVN

b) operation

of

the Facilities outside specifications

provided in the Contract

c) normal wear and tea

r.

27.3 The Contractor’s obligations under this GCC Clause 27

shall not apply to

리

any materials that are supplied by EVN under

GCC Sub-Clause 21.2 are normally consumed in

operation or have a normal life shorter than the

Defect Liability Period stated herein

b)

any designs

specifications or other data

designated

supplied or specified by or on

behalf

of EVN or any matters for which the Contractor

has disclaimed responsibility herein

c) any other materials supplied or any other work

executed by or on behalf

of

EVN

except for the

work executed by EVN under GCC Sub-Clause

27.7.

27

.4

EVN shall give the Contractor a notice stating the nature

of

any such defect together with all available

e v i d e n c ε

thereof

promptly following the discovery thereof.

VN

shall afford all reasonable opportunity for the Contractor to

inspect any such defect.

27.5 EVN shall afford the Contractor all n e c e s s a η access to the

Facilities and the Site to

ε n b l e

the Contractor to perform

his obligations under this GCC Clause 27 The Contractor

may

with the consent

of

EVN

r e m o v ε

from the Site any

Plant and Equipment or any part

of

the Facilities that are

defective

if

the nature

of

the defect

andlor any

n a g e

to

the F acilities caused by the d ε f e c t

is

such that repairs

cannot be expeditiously carried out at the Site.

27.6

If

the repair

replacement or making good

is of

such a

character that it may affect the efficiency

of

the Facilities

or any

thereof• EVN may give to the Contractor a

notice requiring that tests of the defective part

of

the

Facilities shall be made by the Contractor immediately

upon completion

of

such remedial work whereupon the

Contractor shall carry out such tests.

If

such p fails the tests the Contractor shall carry out

further repair

replacement or making good as

t h ε

case

IV-GCC-67



VIETNAM

ELECTRICITY

TEPSCO


may be) until that

p

of the Facilities passes such

t ε s t s

The tests shall

be

agreed upon by EVN and the Contractor.

27.7 The Contractor shall respond to EVN within fourteen 14)

days after

t h ε

notice

as

stated in GCC Sub-Clause 27

.4

above in writing setting out the action proposed to be

carried out in rectification

and

the rectification work

within forty 40) days or reasonable time to commence

agreed by EVN after the approval of rectification proposal

in writing by EVN.

f

the Contractor failed

to

respond the

rectification proposal or to commence the work necessary

to remedy such defect or any damage

to

the Facilities

caused by such defect within a reasonable time

as

stated

here above EVN may following notice to the Contractor

proceed to do such work

and

t h ε

reasonable costs incurred

by EVN in connection therewith

sha be

paid to EVN by

the Contractor or may be deducted by EVN from

money due the Contractor or claimed under the

Performance

S e c u r i η

27.8 fthe Facilities or any part thereof cannot be used by reason

of such defect an or making good of such defect

the

Defect Liability Period of the Facilities or such part

as the

case may be shall be

e x t ε n d e d

by a period equal to the

period during which the Facilities or such

m o t be

used by EVN because

of

any

ofthe

aforesaid reasons.

27.9 Except

as

provided in GCC Clauses

27

33

the

Contractor shall

be

under

no l i a b i l i η

whatsoever and

howsoever arising

and whether under the Contract or at

law in respect

of

defects in the Facilities or any part

thereof the Plant and Equipment design or engineering or

work executed that appear after Completion

of

the

Facilities or any part thereof

except where such defects are

the result

of

the gross negligence

fraud

criminal or

회

action of the Contractor.

27.10 In addition

the Contractor shall also provide an extended

r a n t y

for any such component

of

the Facilities and

during the period of time

as

may specified in the GCC

Sub-Clause 27.8 above. Such obligation

sha

be in

addition to the defect liability specified under GCC Sub

Clause 27.2.

27.11 Two 2) months before the end of the Defect Liability

Period


the Inspection for Final

Acceptance. The Inspection shall cover for the Critical

Equipment

as

set forth in the Specification.

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VIETNAM ELECTRICITY TEPSCO o MON THERMAL POWER PL NT

27.12 T h ε Contractor shall remedy and rectify omissions and

defects attributable to the Contractor that are found through

such Inspection

providing any required engineers

spares

and consumables. However

EVN

will provide office

space warehouse e1ectric power and water required

for

the

Inspection

free

of

charge. The Contractor shall be entit led

to utilize the equipment and f c i l i t i ε s ofthe

“

Maintenance

Workshop and

a b o r a t o r γ T 1s and Equipment already

taken over to

EVN

for the Inspection associated

services

but the Contractor shall return them to EVN after

they have been confirmed to be in normal and operational

condition and not to have been deteriorated in any way.

28. Functional 28.1 The Contractor guarantees that during the Performance

Guarantees

test

the Facilities and all

p

thereof shall attain the

Functional Guarantees specified in the corresponding Item

11 Main Design Conditions and Guaranteed Performance

Data tems) in Forms and Procedures and Technical

Specifications hereto subject to upon the conditions

therein specified.

28.2 Guarantee Requirements

28.2.1 The guaranteed performance shall be without any

tolerance values. The Contractor shall demonstrate all the

guarantees covered

in

t

em

11

(Main Design Conditions

and Guaranteed Performance Data

t

ems)

in

Forms and

Procedures through the Performance Tests. If during

tests it is found that the Equipment have failed to

meet

the guarantees

the Contractor shall out all n e c e s s

modifications to make the Equipment comply with the

guaranteed requirements.

28.2.2 However

if

the Contractor is not able to d ε m o n s t r a t e the

guarantees

even after the modifications within ninety

(90)

days of notification by EVN (or such other prolonged

time granted

by

EVN)

EVN

will at its discretion:

(i) accept t h ε Equipment only after levying the penalties

listed in GCC Sub-Clause 28 .4 noting that such penalty

will be trebled if a significant deviation in performance

has been demonstrated from t h ε tests.

(ii) or accept the Equipment only after assessing and

deducting from the Contract price or Performance Bond

the amount equivalent to the deficiency of the

Equipment as assessed by EVN.

IV-GCC-69

괜



VIETN M ELECT

CITY/ TEPSCO


28.2.3 All guaranteed

e t e r s

are considered as reasonably

and necessarily to be quoted by the Contractor

b a s ε d

on

the established proven results obtained from similar

power plant units

in

u c c e s s

뼈

operational

e x p e r i e n c ε .

Evidence for this shall necessarily include the test codes

used

acceptance test results

accuracy of various

instruments used for the Performance Test details

of

tolerances

if

allowed

etc.

While quoting the guarantee parameters the Contractor

shall

k ε e p

in mind the requirements specified especially

regarding the reliability p e r a b i l i η and maintainability

of

the Equipment proposed.

28.2

.4

EVN reserves the right to evaluate the parameters quoted

by the Contractor based on his experience and established

values.

28.2.5 The amount of liquidated damage may

be

calculated pro

rata for the fractional

p

of the specified Equipment and

Plant unless stated otherwise.

28.2.6 The boiler

turbine

generator and their associated

nominated auxiliaries shall perform continuously

l o u t

the noise levels

e x c ε e d i n g

the values specified in

respective Equipment Specifications over the entire range

of output and operating frequencies.

28.3 Performance Tests

Th

e Performance Tests (acceptance tests) for the various

items

of

Equipment shall be carried out as specified

under

the respective Equipment Specifications. All the guarantees

shall tested together as far

as

practicable.

The Performance Tests shall be conducted for Power Plant

UnitNo 2

28 .4 Penalty for Equipment Performance D e f i c i ε n c i e s

In case of defect in the efficiencies r outputs

in

respect to . ~ 、

the guaranteed data indicated in T ε c h n i c a l Schedules : ‘ 긴

the listed Equipment

may

still be accepted subject to the . 셔 싸 i

payment of i q u i d a t ε d damages by the Contractor in each ‘ ;

조

case involved.

’ i

N

I

/ Ö /

L;? ‘ 잉

떠 Turbine Generator Heat Rate 팍

Heat rate in kJ

Wh corresponding

to

100 turbine rated

IV-GCC-70



VIETN M ELECTRICITY TEPSCO

oMON THERM L POWER PL NT

output (river water temperature 30

o

C 0 make up and

rated steam conditions).

If

the heat rate resulting from the Performance Tests

performed at the Site in accordance with the weighted

mean value stipulated in Clause 13.

1.

2 in Volume

13

and

the conditions stipulated in Clause 2.1.13 in V olume 2

proves greater than the guaranteed heat rate

the Contractor

shall pay EVN the 없 n o u n t

ofYen

17

727

000 per

kJ

/kWh

weighted mean value for oil frring and Yen

15

362

000 per

kJ/kWh weighted mean value for gas firing.

For fractional values of such excess. the Contractor shall

pay the corresponding fraction

ofthe

indicated penalty.

Should the percentage excess in heat rate e x ε e d two and a

halfpercent (2.5 )

as calculated by the formu1a below

the

liquidated damage of Yen 17 727 000 for every one (1)

kJ

/kWh

for oil firing will be trebled to Yen

53 181

000

Yen 15

362

000 for every one (1) kJ/kWh for gas firing

will be trebled to Yen 46

086

000.

HT HG

E= x 100

HG

where:

E = Percentage excess

ofheat

rate ( )

HT = Test result

of

heat rate (kJ/kWh - weighted mean

value

H G G u a r a n t ε e d heat (kJ/kWh

b) Turbine-Generator Output

Output in kW at turbine maximum continuous rating (river

water temperature 30

oC

0 make up and rated steam

conditions).

If the turbine generator output resulting from the

Performance Test performed at the Site in accordance with

the conditions stipulated in Clause

2.

1.

13

in Volume 2 is

proven to be less than the n t e e d output; the Contractor

shall pay EVN the amount

of

Yen 922

000 per 1

kW

shortfall in generator output for Power Plant Unit

NO.2.

For fractional values of such limitation the Contractor

shall pay the corresponding fraction

of

the indicated

IV-GCC-71





penalty.

Should the percentage shortfall in turbine

g e n ε r t o r

output

exceed two and a

half

percent (2.5 )

,

as

c l c u l t ε d

by

the

formula below

,

the penalties

of

Yen 922

,

000 for

v η

1

kW

shortfall shall be trebled

to

Yen 2

,

766

,

000 for

Power

Plant Dnit No

2

OG-OT

E =

- - - -

x

1

00

OG

where:

E = Percentage shortfall

of

turbine generator output

OT = Test result ofturbine generator output

OG

= Guaranteed turbine-generator output

,

or 330MW

(c) Boiler Efficiency

If

the efficiency

d e r i v ε d

from the Performance Test

performed at the Site

in

accordance with the weighted

mean value

s t i p u l t ε d

in Clause

13.1 2

in Volume

13

and

the conditions stipulated in Clause 2.1.13 in Volume 2 falls

below the guaranteed efficiency

,


EVN the amount

of

Yen 144

,

708

,

000 for every 0.1

reduction in weighted mean value

of

the efficiency for oil

firing and Yen 125

,

388

,

000 for every 0.1 reduction in

weighted mean value

of

the efficiency for gas firing.

For fractional values

of

the reduction in efficiency, the

Contractor shall pay the corresponding fraction

of

the

indicated penalty.

Should the percentage reduction in efficiency

ε x c e e d

two

and a half percent (2.5 ), as calculated by the formula

below

,

the penalties

of

Yen 144

,

708

,

000 for every 0.1

reduction in efficiency for oil frring will be trebled to Yen

434

,

124

,

000 and Yen

125 ,

388

,

000 for every 0.1

reduction in efficiency for gas firing will be trebled to Yen

376

,

164

,

000.

많

w h e r ε

D = Percentage reduction in efficiency ( )

ET =Actual test efficiency ( ) - weighted mean value

IV-GCC-72



VIETN M ELECTRICITY

TEPS O

OMONTHERM LPOWER PL NT

EG =Guaranteed efficiency ( )

Both efficiencies shall be based on the high heating value.

(d) Total Unit A u x i l i a η Power Consumption

If the power consumption of the electrical auxiliaries

resulting from the Unit Auxiliary Power Consumption

Tests as a Performance Test ε x e c u t e d at the Site in

accordance with the conditions stipulated in Volume 8

proves greater than the guaranteed consumption, the

Contractor shall pay EVN the amount of Yen 438,000 for

every one (1)

kW

excess in the weighted mean value for oi1

firing and Yen 380,000 for every one (1)

kW

excess in the

weighted mean value for gas frring.

For fractional values ofthe

x ε s s


the corresponding fraction

ofthe

indicated penalty.

Should the power consumed by the electrical auxiliaries

exceed ten percent 10 ) as calculated by the formula

be10w

,

the penalties

ofYen

438

,

000 for every one

1)

kW

excess in the weighted mean value for oil firing will be

treb1ed

to Yen 1,314,000 and Yen 380,000 for every one

1) kW excess in the weighted mean value for gas frring

will be treb1ed to Yen 1,140,000.

PT PG

E = - - - - x 100

PG

where:

E = Percentage excess

of

power consumption ( )

PT = Power consumption during tests (kW) - weighted

mean v a u ε

PG =

G u a r a n t ε e d

power consumption (kW) - weighted

mean value

(e) Power Transformer Losses

With reference to the main transformer and unit auxiliary

transformers (20/6.6 kV), if the total effective losses

resulting from the Shop Tests (workshop tests) executed

as

prescribed in Vo1ume 8 an

d

or Volume 2 prove greater

than the guaranteed

va1ue

, the Contractor shall pay EVN

the amount

of

Yen 870,000 and Yen 1,740,000 for every

o n ε

(1)

kW

excess in the guaranteed

10ad 10ss

at rated

IV-GCC-73





a l l ε g e d

infringement

of

any

p a t ε n t

utility model

registered

d ε s i g n

trademark

copyright or other intellectual property

right registered or otherwise existing at the date

of

the

Contract by reason of: a) the installation

of

the Facilities

by the Contractor or the use

of

the Facilities in Vietnam;

and b) the sale of

the products produced by the Facilities

m any country.

Such indemnity shall not cover any use of the

a c i l i t i ε S

or

any part thereof other than for the purpose indicated

by

or

to be reasonably inferred from the Contract

any

infringement resulting from the use

of

the Facilities or any

thereof

or any products produced thereby in

association or combination with any other equipment

plant

or materials not supplied by the Contractor

pursuant to the

Contract Agreement.

29.2

If

any proceedings are brought or any claim

is

made against

EVN arising out

of

the matters referred to in GCC Sub

Clause 29.1

EVN shall promptly give the Contractor a

notice thereof

and the Contractor may at his own expense

and in EVN’s name conduct such proceedings or claim and

any negotiations for the settlement

of

any such proceedings

or claim.

If

the Contractor fails to notify EVN within

twenty-eight 28) days after receipt of such notice that it

intends to conduct any such proceedings or claim

then

V s h

be free to conduct the

없

on its own behalf.

Unless

t h ε

Contractor has so failed

to

notify EVN within

the twenty-eight 28) day period

EVN shall make no

admission that may be prejudicial to the defense

of

any

such proceedings or claim.

EVN shall

at the Contractor’s request

afford all available

assistance to the Contractor in conducting such proceedings

or claim

and shall be reimbursed by the Contractor for all

reasonable expenses incurred in so doing.

29.3 EVN shall indemnify and hold a r m l ε s s the Contractor and

his employees

officers and Subcontractors from and

against any and all suits

actions or administrative

proceedings

claims

demands

losses

damages

costs

and

e x p e n s ε s of whatsoever nature

including attorney’ s fees

and expenses

which the Contractor may suffer

s

a resuIt

of

any infringement or alleged infringement

of

any patent

utility model

registered design

trademark

copyright or

other intellectual property right registered or otherwise

existing at the date

of

the Contract arising out

of

or in

connection with any design

data

drawing

specification

or

IV-GCC-75



VIETNAM

ELECTRICITY TEPSCO

oMON

THERMAL POWER

PLANT

30. Limitation

of

Liability

31.

Transfer

of

Ownership

other documents or materials provided or designated

by

or

on behalf

ofEVN

30 1 Except in cases

of

gross negligence or

l l f u l

misconduct

(a) the Contractor shall not be liable to EVN

whether

under the Contract

in tort

or otherwise

for any

indirect or consequential loss or damage

loss

of

use

loss

of

production

or loss

of

profits or

interest costs

provided that this exclusion shall

not apply to any obligation

of

the Contractor to

pay liquidated damages to EVN and

(b) the aggregate liability

of

the Contractor to

EVN

whether under the Contract

in tort or otherwise

shall not exceed the

없 n o u n t often

percent (10 )

ofNet Contract Price

provided that this limitation

shall not apply to the cost of repairing or replacing

defective equipment

or to any obligation

of

the

Contractor to indemnify EVN with respect to

patent infringemen

t.

G. Risk Distribution

31.1 The Goods (the Equipment and Materials) for the

Permanent Works

upon being loaded free on board

(FOB) become and remain the property

ofEVN

3

1.

2

3

1.

3

31 .4

3

1.

5

Th

e ownership

of

the Goods for Temporary Works such

as

Construction q u i p m ε n t Temporary

a c i l i t i ε s

and

materials shall always remain the property

of

the

Contractor.

The Permanent W orks

other than those items

of

which the

ownership is transferred on FOB condition

shall become

and remain the property

of

EVN upon placement

regardless of partial or

c o m p l e t ε

at the Site in accordance

with the Contrac

t.

; ? 、 ‘

This transfer

of

title shall not be construed to mean an

삿

acceptance of the Works

Equipment and Materials

or of

녁 새 ’ 즘

their compliance with the

S p ε c i f i c a t i o n

and the fulfillment

/:r.N ::r

of

the

a n t e e

conditions

of

this Contract until the

r

satisfactory

l e t i o n of

Performance Tests

of

the

Works.

The transfer

of

title shall not relieve the Contractor

of

IV-GCC-76



\

VIETNAM

ELECTRICITY TEPSCO

MON

THERMAL POWER PL NT

32.

are of

Facilities

responsibi1ity for all risks

even Owner

’

s risks

of

10ss and

damage to the Works Equipment and Materia1s as

specified under GCC C1ause 1

.2

.20. e transfer

of

ownership shall not be construed

as

representing any

transfer

of

risk.

31.6 Notwithstanding the conditions

of

the a b o v ε the

Contractor sh

1 be responsib1e for all damage to and 10ss

of

all aforesaid items furnished by the Contractor and any

i t ε m

furnished to the Contractor

by

EVN to enab1e the

Contractor to comp1ete the installation and for all

t e m p o r 따

s t r u c t u r ε s

and faci1ities and for all 따 of the

inst 1ation comp1eted or in progress.

31.7 All the risks other than the Excepted

sks

shall be

transferred to EVN upon taking over of the Permanent

Works on the date

of

comp1etion ofthe Performance Tests

certified by the Provisiona1 or 따 t i a Acceptance

Certificate.

32.1 e Contractor be responsib1e for the care and custody

ofthe

Facilities or any 없 thereof until the date

of

Comp1etion ofthe Facilities pursuant to GCC

C1ause

24

or

where the Contract provides for Comp1etion

ofthe

Facilities

따 unti1 the date

of o m p 1 ε t i o n of

the e l ε v a n t p 따 and

sh

1 make good at his own cost any

1 ss

or

a m a g e

that

may

occur to the Facilities or the r e l ε v a n t p 앙 thereof from any

cause whatsoever during such a period. The Contractor

sh

1

so be responsible for any 1 ss or damage to the Facilities

caused by the Contractor or his Subcontractors in the course

of any work carried out pursuant to GCC Clause 27.

Notwithstanding the foregoing

the Contractor sh

1 not

be

liab1e for any 1 ss or damage to the Facilities or that 하

thereof caused by reason ofany of the matters specified or

referred to inparagraphs a)

b),

c) and 이 ofG Sub

C1auses

32.2 and 38.

1.

32 .2

If

any 1 ss or damage occurs to the

F a c i l i t i ε s

or any part

t h ε r e o f

or to the Contractor

’

s temporary fac i1ities

by

reason

of

a) insofar as they relate to Vietnam) nucIear reaction

n u

ε a r radiation

radioactive contamination

pressure

wave caused by aircraft or other aerial objects or any

o t h ε r 따

r e n c e s

that an experienced contractor could

not reasonably foresee

or

if

r ε a s o n a b y foreseeable

cou1d

not reasonably make provision for or insure

against

insofar

as

such risks are not normally insurable

IV-GCC-77




MON

THERMAL

POWER PL NT

on the insurance market and are mentioned

in

the

genera1 exclusions

of

the

p01icy of

insurance

including

War Risks and

P01itica1

Risks

taken out under GCC

C1ause 34 hereof

b) any use or occupation by EVN or any third party

o t h ε r

than a Subcontractor) authorized by EVN of any part

ofthe

Facilities

c) any use

of

or re1iance upon any design

data

or

specification provided or designated by or on

behalf

of

EVN

or any such

m a t t ε r

for which the Contractor has

disclaimed responsibility

h e r ε m

d) Force Majeure as stated in GCC C1ause 37.

EVN shall pay to the Contractor all sums payab1e n

respect

of

the Facilities executed

notwithstanding the

same being

10st

destroyed or damaged

and will

pay

to

the

Contractor the rep1acement

va1ue

of all t e m p o r

facilities and all parts thereof

10st

destroyed or damaged.

If

EVN requests the Contractor in writing to make good

any 10ss or damage to the Facilities thereby occasioned

the Contractor shall make good the at the

cost of

EVN in accordance with GCC

C1ause

39.

If

EVN does not

request the Contractor in writing to

m a k ε

good any 10ss or

damage to the Faci1ities thereby o c c a s i o n ε d

EVN shal1

either request a change n accordance with GCC C a u s ε

39

excluding the performance

ofthat

of

the Faci1ities

thereby

10st


or

where the 10ss or

damage affects a substantia1 of the Facilities EVN

shall terminate the Contract pursuant to GCC Sub-Clause

42.1 hereo

f.

32.3 The Contractor shall be 1iab1e for any

10ss

of or damage to

any Contractor’s Equipment

or any other property of the

Contractor used or intended to be used for purposes

of

the

Facilities

except i) as m ε n t i o n e d in GCC Sub-C1ause

32

.2

with respect to the Contractor’s temporary faci1ities)

and

ii)

where such

10ss

or damage arises by reason

of

any

ofthe

matters specified in GCC Sub-C1auses 32 .2 a)

b)

c)

d) and 38.

1.

32.4 With respect to 10ss or damage caused to the Faci1ities

or any

t h e r ε o f

or to the Contractor’s Equipment by

reason

of

any

of

the matters specified in GCC Sub-Clause

38

.1 the provisions

ofG

Sub-C1ause 38.3 shall apply.

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33. Loss

of

or

33 1

Subject to GCC Sub-Clause 33.3


indernnify and hold h a r m l ε s s EVN and its employees and

officers from and against any and all suits actions or

administrative proceedings claims demands losses

d

없 n a g e s costs and ε x p e n s e s of whatsoever nature

including attorney

’

s fees and expenses in respect of the

death or injury of any person or loss of or damage to any

property including the facilities constructed under Unit

NO 1

Contract and the employees and the

p r o p e π y

ofUnit

N0 1 contractor other than the F acilities whether accepted

or not)

i s i n g

in connection with the supply and

installation of the Facilities and by reason of the

negligence

of the Contractor or his Subcontractors or their

employees officers or agents except any injury death or

property damage caused by the negligence

of

EVN its

contractors

employees

officers or agents.

Damage to

Property

Accident

or

n j u η to

Workers

Indemnification

33.2

If

any proceedings are brought or any claim is made

against EVN that might subject the Contractor to liability

under GCC Sub-Clause 33.1 EVN shall promptly give the

Contractor a notice thereof and the Contractor may at his

own expense and in EVN

’

s

n

없

n e

conduct such

proceedings or claim and any negotiations for the

settlement of any such proceedings or claim.

If the Contractor fails to notify EVN within t w e n t y e i

28) days after receipt of such notice that it intends to

conduct any such proceedings or claim then EVN shall be

free to conduct the same on its own h a l f The cost

incurred by EVN in connection herewith shall be

paid

by

the Contractor to EVN. U

ε s s

the Contractor has so failed

to

notify EVN within the twenty-eight 28) day period

EVN shall make no admission that may be prejudicial to

the defense of any such proceedings or claim.

EVN shall at the Contractor’s request afford all available

assistance to the Contractor in conducting such

proceedings or claim and shall be reimbursed by the

Contractor for all reasonable expenses incurred

in so

doing.

33.3 EVN shall indernnify and hold harmless the Contractor

and his employees officers and Subcontractors from any

liability for loss

of

or damage to property

of

EVN

other

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34.

Insurance

than the Facilities not yet taken over, that is caused by fire,

exp10sion or any other peri1s , in excess of the amount

recoverab1e from insurances

p r o c u r ε d

under GCC Clause

34

,

provided that such fire

,

exp10sion or other perils

w e r ε

not caused by gross negligence or

w i l l

펴 misconduct

of

the Contractor.

33 .4 The entitled to the benefit

of

an indemnity under this

GCC Clause

33

shall take all reasonab1e measures to

mitigate any

10ss

or damage which has occurred.

If

the

P

fails to take such measures

,

the other

liabilities shal1 be corresponding1y reduced.

34.1 To the extent specified in the corresponding Appendix 3

I

nsurance Requirements) to the Contract Agreement

,

the

Contractor

shal1

at his expense take out and maintain in

effect, or cause to be taken out and maintained

in

effect,

during the period of de1ivery and installation (construction

/erection /instal1ation

fie1d

testing /commissionnnnning

/reliability runlperformance test) at the Site

,

the insurances

set forth be10w in the surns and with the deductibles and

other conditions specified in the said Appendix 3.

Th

e

identity

of

the insurers and the form of the po1icies shall

be subject to the approval of EVN, who shou1d not

unreasonably withhold such approva

l.

리

Transit

I n s u r a n c ε

During Transport (including Marine

Cargo surance)

Covering loss or damage occurring while in transit

from the Contractor

’

s or Subcontractor

’

s works or

stores until

r i v l

at the Site

,

to the Plant and

Equipment (including spare parts therefor) and

to

the

Contractor

’

s E q u i p m ε n This insurance shall cover

all risks including war risk for marine and inland

transit, and shall be one hundred and t ε n percent

(110%)

of

CIF price

of

the Equipment

,

P1ant and

Materials.

(b) Construction and Erection All

Ri

sks surance or

“

All

Ri

sks Builder

’

s

Ri

sk Insurance

Covering physical

10ss

or damage to the Facilities at

the Site

,

occurring prior to Completion

of

the

Faci1ities

,

with an extended maintenance coverage

for

the Contractor

’

s 1iabi1ity in respect of any 10ss or

damage occurring during the Defect Liability Period

while the Contractor is on the Site for the purpose

of

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VIETNAM ELECT

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performing his ob1igations during the Defect Liabi1ity

Period. This i n s u r a n c ε

is

to be intemationa1 standard

practice for a contractor to insure

u n d ε r

such a po1icy.

(c) Third Party Liabi1ity Insurance

Covering bodi1y injury or death suffered

y third

parties (including EVN’s

p ε r s o n n e 1

and

10ss

of or

darnage to property occurring in c o n n ε c t i o n with the

supp1y

,

instal1ation and construction

ofthe

Facilities.

d) Automobile Liability Insurance

o v ε r i n g

use of all vehicles used by the Contractor or

his Subcontractors (whether or not owned by them) in

connection with the execution

of

the Contract.

(e) Workers Compensation

In accordance with the Vietnarnese law

,

the

Contractor shall take out this insurance to s ε c u r e his

emp1oyees

,

therefore the Contractor faithfully comply

with the requirements of

the said law.

f) EVN ’

s Liability

In

a c c o r d a n c ε

with the statutory requirements

applicab1e in any country where the Contract or any

P

thereof is executed.

(g) Other Insurances

Such other insurances

as

may be specifically agreed

upon by the parties hereto as listed in the said the

corresponding Appendix 3.

34.2 EVN shall be narned as co-insured under all insurance

i c i e s taken out by the Contractor pursuant

to

GCC Sub

Clause 34.1

,

except for Workers Compensation and

EVN’s Liability Insurances

,

and the Contractor’s

Subcontractors shall be named as co-insured under all

msurance i c i e s taken out by the Contractor pursuant to

GCC Sub-C1ause 34.1 except for the Transit Insurance

During Transport

,

Workers Compensation and EVN ’s

Liabi1ity Insurances. All insurer ’s rights

of

subrogation

against such co-insured for losses or claims arising out

of

the performance of the Contract shall be waived under

such policies.

The Contractor and EVN shall indemnify each other from

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VIETNAM

ELECTRICITY rEPSCO


and against such claims and liabilities

as

provided by way

o Insurance.

Notwithstanding anything in this Contract to the contrary

,

it is agreed that

n e i t h ε r t h ε

Contractor nor EVN shall be

liable to the other

p a π y

for loss o production, profit,

and or use, or any other consequential

n a g e

34.3 The Contractor shal1 in accordance with the provisions o

the corresponding Appendix 3

In

surance Requirements)

to the Contract Agreement,

e l i v ε r

to EVN

c e r t i f i c t ε s o

insurance (or copies o the insurance policies)

as

evidence

that the required policies are in fu

l

force and effect. The

certificates shall provide that

no

less than twenty-one (21)

days notice shall be given to EVN by insurers prior to

cance

l

ation or material modification o a policy. The

Contractor shall furnish to EVN a copy o Transit

nsurance Policy as soon as practicable but not later than

one (1) month prior to the first scheduled shipment

together with official receipts as an evidence

o

premium

payment.

34.4 The Contractor shall ensure that, where applicable, his

Subcontractor(s) shall take out and maintain in effect

adequate insurance policies for their personnel and

vehicles and for work

e x e c u t ε d

by them under the

Contract

,

unless such Subcontractors are covered by the

policies tak:en out by the Contractor.

34.5 Without prejudice to the Contractor

’

s obligations and

responsibilities under the Contract, EVN shall be

responsible for assisting the Contractor in claiming

insurance mentioned in items a) and (b) to GCC Sub

Clause 34.1 above while the Contractor shall be

r e s p o n s i b l ε for securing the insurance mentioned in item

(c) from reputable insurance companies acceptable to

EVN.

These insurances sha

l

cover the periods up to the end o

Contract Period

o

the whole

o

the Works. The Contractor

shall be responsible for the deductibles in relation to all

claims under the insurance policies mentioned above

,

없 i s i n g

from events during the period o the insurance.

However, EVN shall be responsible for all risks and for

taking out

o

insurance for the Works from the date

o

Provisional Acceptance.

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VIETN M

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The obligation of EVN to assist the Contractor in securing

the above items

b)

and (c) under GCC Sub-Clause 34.1

a b o v ε shall be limited to All Risks “Builders

Ri

sks

Insurance and

“

Third Party Liability Insurance . The

Contractor shall satisfy himself

as

to the adequacy

of

the

coverage and the terms and conditions

of

such Insurance.

t

shall be understood that EVN shall not

in any way

be

liable for inadequate coverage. Insurance effected

by

the

Contractor pursuant to the items (a) and

b)

shall

be

d e t

to the terms

conditions

“

excess clause and

exceptions referred to in the policy or policies

of

insurance.

Th

e Contractor and his Subcontractor(s) shall

with all due diligence conform to the conditions

of

the

policies and all reasonable requirements

of

Insurers and

shall bear at their own expense any failure to

do

so.

fthe

insurance coverage provided under items (a) and (b)

to GCC Sub-Clause

34 1

is lirnited to that amount above a

specified

“

excess the Contractor may elect to provide

coverage to insure him against such “ excess .

The Contractor shall as soon

as

practicable but not later

than

f i f t ε e n

(15) days after the Effective Date

of

the

Contract fumish the nsurance Policies

to

EVN with the

official receipts evidencing premium payments to EVN.

The Contractor shall indemnify EVN against all actions

suits

claims

demands

costs or expenses

i s i n g

from

or

in connection with any accident

illness or death (other

than such as may be attributable to EVN

its agents

or

s e r v a n

to persons employed by the Contractor or his

Subcontractor at the Site.

The Contractor shall initiate and successfully obtain

security payments covering losses or damages arising out

ofthe

Contrac

t.

Failure to initiate or settle the claim within

a reasonable period

of

time shall constitute sufficient

grounds for EVN to exercise its rights under the Contrac

t.

Should the Contractor fail or refuse to maintain his

insurance above

EVN will secure

r e n ε w

or maintain the

said insurance

and any and all expenses incurred t h e r ε b y

shall be deducted from any and all sums due or

may

b ε c o m e d u ε

to the Contractor. The Performance Bond

submitted by the Contractor shall also be used where

n e c e s s a η

to cover such expenses.

The insurance that covers risks for the Warranty Periods

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35. Unforeseen

Conditions

shall be taken out by the Contractor s e p r t ε l y if

necessary in the opinion ofthe Contracto

r

34.6 If the Contractor fails to take out andlor rnaintain in effect

the insurances referred to in GCC Sub-Clause

34 1

VN

rnay take out and rnaintain in effect any such insurances

and rnay frorn tirne to t i r n ε deduct frorn any arnount

d u ε

the Contractor under the Contract any prerniurn that

VN

shall have paid to the insurer or rnay otherwise recover

such arnount

as

a debt due frorn the Contracto

r. If VN

fails to take out andlor rnaintain in effect the insurances

referred to in GCC 34.5

the Contractor rnay take out

and

rnaintain in effect any such insurances and rnay from t ime

to tirne deduct frorn any arnount due EVN under the

Contract any prerniurn that the Contractor sh 1 paid

to the insurer or rnay otherwise recover such n o u n t as a

debt due frorn EVN.

If

the Contractor fails to or

is

unable

to take out and rnaintain in effect any such insurances the

Contractor shall nevertheless have

no

liability or

responsibility towards EVN

and the Contractor sh 1 have

full recourse against EVN for any and all liabilities

of

EVN herein.

34.7 Unless otherwise provided in the Contract

the Contractor

shall prepare and conduct all and any claims rnade under

the policies effected by it pursuant to this GCC Clause 34

and all monies payable by any insurers sh

1 be paid to the

Contractor. EVN shall give to the Contractor all such

reasonable assistance as may be required by the

Contractor. With respect to insurance clairns in which

EVN’s interest is involved

the Contractor shall not give

any release or rnake any comprornise with the insurer

without the prior written c o n s ε n t

of

EVN. With respect to

insurance claims in which the Contractor’s interest is

involved EVN shall not give any release or make

any

compromise with the insurer without the prior written

consent ofthe Contractor.

34.8 Notwithstanding the provisions of insurance the

Contractor shall be responsible for the

ε x e c u t i o n of

the

Facilities under the conditions ofthe Contract.

35 1 If during the execution of the Contract the Contractor

shall encounter on the Site any physical conditions other

than climatic conditions) or artificial obstructions that

could not have been reasonably foreseen prior to the date

of

the Contract Agreement by an experienced contractor

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o MON THERM L f E R P L N T

on the basis

of

reasonable examination

of

the data relating

to the Facilities including any data

as

to

boring tests)

provided by EVN

and on the basis

of

information that

the

Contractor could have obtained from a visual inspection

of

the Site if access thereto was available) or from other data

readily available to the Contractor relating to the

Facilities

and

if

the Contractor determines that

the

Contractor will in consequence

of

such conditions or

obstructions

incur additional cost and expense or require

additional time to perform his obligations under the

Contract that would not have been required

if

such

physical conditions or artificial obstructions had not

been

encountered

the Contractor shall promptly

and before

performing additional work or using additional Plant and

Equipment or Contractor

’

s

E q u i p m ε n t

notify

VN

’

s

Representative

in

writing

of

려 the physical conditions or

r t i f i i

떠 obstructions

on the

Site that could not have

b ε e n

reasonably foreseen

b) the additional work and or Plant and Equipment an

d

or

Contractor

’

s Equipment required

including the steps

which the Contractor will or

p r o p o s ε s

to take to

overcome such conditions or obstructions

c) the extent

of

the anticipated delay

d) the additional cost and expense that the Contractor is

likely to incur.

On receiving any notice from the Contractor under this

GCC Sub-Clause 35.1

EVN

’

s Representative shall

promptly consult with EVN and Contractor and decide

upon the actions to be t a k ε n

to

overcome the physical

conditions or

t i f i c i a l

obstructions encountered.

Following such consultations

EVN’ s Representative shall

instruct the Contractor

with a copy

to

EVN

ofthe

actions

to

be

taken.

35.2 ny reasonable additional cost and expense incurred by

the Contractor in following the instructions from EVN

’

s

Representative

to

overcome such physical conditions

or

artificial obstructions referred to in

GCC

Sub-Clause 35.1

shall

be

paid by

VN

to the Contractor as Physical

Contingency

an addition to the Contract Price.

35.3

If

the Contractor

is

delayed or impeded in the performance

of

the Contract because

of

any such physical conditions or

artificial obstructions

r e ε r r e d

to in

GCC

Sub-Clause 35.1

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36. Change in Laws 36.1

and Regulations

37. Force

Majeure

37.1

the Time for

o m p l ε t i o n

shall

be e x t ε n d e d

in a c c o r d a n c ε

with GCC Clause 40.

If after the date twenty-eight 28) days prior to the date

of

Bid submission in Vietnam any law regulation

ordinance

o r d ε r or by-law having the force of law is

enacted promulgated abrogated or changed which shall

be deemed to include any change in interpretation

or

application by the competent authorities) that

s u b s ε q u e n t l y affects the costs and e x p ε n s e s of the

Contractor an

or the Time for Completion

the Contract

Price shall be correspondingly increased or

d e c r ε a s e d

an or the Time for Completion shall be reasonably

adjusted to the extent that the Contractor has thereby been

affected in the performance

of

any ofhis obligations under

the Contract. Notwithstanding the foregoing such

additional or reduced costs shall not be separately paid

or

credited if the same has already been accounted for in the

price adjustment provisions where applicable in

accordance with the GCC Clause 39. The Contractor shall

submit the documents demonstrating the actual additional

cost incurred due to the changes in laws and regulations

for the certification by EVN.

“

Force

e u r e

shall mean event beyond the

reasonable control of EVN or of the Contractor as the

case may be and which is unavoidable notwithstanding

the reasonable care of

the

affected and shall include

without limitation the following:

a) war hostilities or warlike operations whether a

state of war be declared or not) invasion act

of

foreign enemy and civil war

b) rebellion revolution insurrection mutiny

usurpation

of

civil or military government

conspiracy riot civil commotion and terrorist acts

c) confiscation nationalization mobilization

commandeering or requisition by or under the

order of any government or

de

jure or de facto

authority or ruler or any o t h ε r act or failure to act

of any local state or national g o v ε r n m e n t authority

d)

strike

sabotage

lockout

embargo

import

restriction port congestion lack

of

usual means

of

public transportation and communication

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industrial dispute

, s h i p w r ε c k

shortage or

restriction

of o w ε r

supply

,

p i d e m i c s

quarantine

and plague

,

e) earthquake

,

landslide

,

volcanic activity

,

fire

,

flood

or inundation, tidal wave, typhoon or cyclone,

hurricane

,

storm

,

lightning

,

or other inclement

weather condition, nuclear and p r ε s s u r e waves or

other natural or physical disaster,

f)

shortage

of

labor

,

materials or utilities where

c u s ε d

by circumstances that are themselves F orce

Majeure.

37.2

If

either party is prevented

,

i n d ε r ε d

or delayed from or

n

performing any

of

its obligations under the Contract by an

event of F orce Maj eure, then it shall notify the other

n

writing

of

the occurrence

of

such event and the

circumstances thereof within fourteen

4

days after

the

occurrence

of

such event.

37.3 The

who has given such notice shall be excused

from the performance or punctual performance

of

its

obligations under the Contract for

so

long as the relevant

event of Force Majeure continues and to the extent that

such party

’

s performance

is

prevented

,

hindered

or

delayed. The Time for Completion shall be extended in

accordance with GCC Clause 40.

37

.4

The

p π y

or parties affected by the event

of

Force

e u r e

shall use reasonable efforts to mitigate the

e f f ì ε t

thereof upon its

or

their

r m n c e of

the Contract and

to 미 l f i l l its or

t h ε i r

obligations under the Contract, but

without

p r e j u d i ε

to either

right to terminate the

Contract under GCC Sub-Clauses 37.6 and 38.5.

37.5 Delay or nonperformance by either hereto caused

by

the

o c c u r r e n c ε of

any event ofForce

e u r e

shall not

a) constitute a default or breach

ofthe

Contract

,

b) subject to GCC Sub-Clauses 32.2, 38.3 and 38

.4)

give rise to any claim for damages or additional

cost or expense occasioned thereby

if

and to the extent that such delay or nonperformance is

caused by the occurrence

of

an event

ofForce

Majeure.

37.6

If

the performance

of

the Contract is substantially

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38.

War

sks

prevented

hindered

or

delayed for a

s i n g l ε

period

of

more

than sixty (60) days or an aggregate period

of

more than

one hundred and twenty

1

20) days on account

of

one

or

more events

of

Force

e u r e

during the currency

of

the

Contract

the parties will attempt to develop a mutually

satisfactory solution failing which either party

may

terminate the Contract

by

giving a notice to the other

but

without prejudice

to

either

right to terminate the

Contract under GCC Sub-Clause 38.5.

37.7 In the event

of

termination pursuant to GCC Sub-Clause

37.6 the rights and obligations of VN and the Contractor

sha11

be as specified in GCC Sub-Clauses

42

1 2 and

42.1

3.

37.8 Notwithstanding GCC Sub-Clause 37.5 Force Majeure

shall not apply to

없 y

ob1igation

of

EVN

to

make

payments to the Contractor herein.

38.1

“

War sks shall mean any event specified in paragraphs

떠

and (b)

of

GCC S u b - C l a u s ε 37.1 and any explosion or

impact

of

any mine

bomb

s h ε 1 1

grenade or other

projectile

missile

munitions or explosive of war

occurring

or existing in or near Vietnam.

38.2 Notwithstanding anything contained

in

the Contract the

Contractor shall have no liability whatsoever for or with

respect to;

(a) destruction of

or

damage to


Plant and

Equipment

or any part thereof

(b) destruction

of

or damage to

p r o p

of

EVN or any

third

a π y

(c) injury or

10ss

oflife

if

such destruction

damage

injury or

10ss

of life

is

caused

by any War

Ri

sks

and EVN shall indemnify and hold

t h ε

Contractor harmless from and against any and all claims

1iabilities

actions

1awsuits

damages

costs

charges

or

expenses arising in consequence

of

or in connection with

the

38.3

If

the Facilities or any

P1ant

and Equipment or Contractor

’

s

Equipment or any other p r o p e π y of the Contractor used or

intended to be used for the purposes

of

the Facilities shall

sustain destruction or damage by reason

of

any War Risks

EVN shall pay the Contractor for;

IV-GCC-88





떠

any part

of

the Facilities or the Plant and Equipment

so

destroyed

or

damaged (to the extent not already

paid for by EVN)

(b) replacing or making good any Contractor ’ s

Equipment or other property

of

the Contractor so


(c) replacing or making good any such destruction or

damage

to

the Facilities or the Plant and Equipment

or any part thereof

so far

as

may

be

required by EVN

and

as

may be

n e c e s s

y

for completion ofthe Faci1ities.

If

EVN does not require the Contractor to replace or make

good any such destruction or damage to the Facilities

VN

shall either request a change in accordance with GCC

Clause 39


of

that

of

the

Facilities thereby destroyed or damaged or

where the

1 ss

destruction or damage affects a substantial part

of

the

Facilities

shall terminate the Contract

pursuant to GCC

Sub-Clause 42. 1.

38

.4

Notwithstanding anything contained in the Contract

VN

shall pay the Contractor for any increased costs

or

incidentals to the execution

of

the Contract that are in any

way attributable to

consequent on resulting from or in any

way connected with any War

Ri

sks

provided that the

Contractor shall

as

soon as practicable notify the EVN

in

writing

of

any such increased cos

t.

38.5

If

during the performance

of

the Contract any War sks

shall occur that fmancially or otherwise materially affect the

execution of the Contract by the Contractor the Contractor

shall use his reasonable efforts to execute the Contract with

due and proper consideration given to the safety of his and

his Subcontractors personnel engaged in the work on the

Facilities

provided

however

that

if

the

ε x e u t i o n of

the

work on the Facilities becomes impossible or is

substantially prevented for a single period of more than

sixty (60) days or an aggregate period

of

more than one

hundred and twenty

1

20) days on account

of

any War

sks

the parties will attempt to develop a mutually

satisfactory solution

failing which either

may

terminate the Contract by giving a notice to the other.

38.6 In t h ε event

of

termination pursuant to GCC Sub-Clauses

38.3 or 38.5

the rights and obligations

of

EVN and the

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Contractor shall

be

s p e c i f i ε d in GCC Sub-Clauses 42.1.2

and 42.

3

H hange in

ontract

Elements

39.

hange

in 39.1 Introducing a Change

the

Facilities

39.

1 Subject to GCC Sub-Clauses 39.2.5 and 39.2.7

EVN shall

have the right to propose

and subsequently require

that

EVN ’s Representative order the Contractor from time to

time during the performance

of

the Contract to make any

change

modification

addition or deletion

to

in

or

from the

Facilities (hereinafter called “Change ) provided that such

Change falls within the general scope

of

the Facilities and

does not constitute unrelated work and that it

is

technicall y

practicable

taking into account both the state

of

advancement of t h ε Facilities and

t h ε

technical

compatibility

of

the Change envisaged with the

n t u r ε of

the Facilities as specified in the Contract.

Further

EVN reserves the right to delete Flue Gas

Desulphurization Plant (FGD) and Electrostatic Precipitator

(EP) from the Scope

of

the Facilities

when the schedule

of

availability ofNatural Gas is confirmed.

39.1.2 The Contractor may

from time to

t i m ε

during his

performance

of

the Contract

propose to EVN (with a copy

to EVN

’

s Representative) any Change that the Contractor

c o n s i d ε r s

necessary or desirable to improve the q u l i

efficiency or safety

of

the Facilities. EVN may at its

discretion approve or e c t any Change proposed by

the

Contractor within twenty eight (28) days

of

the Contractors

written notification of such Change

provided that EVN

shall approve any Change

p r o p o s ε d

by the Contractor to

ensure the safety

ofthe

Facilities.

39.

3 Notwithstanding GCC Sub-Clauses 39.

1 and 39.

2

no

change made necessary because

of

any default

of

the

Contractor in the performance

of

his obligations under the

Contract shall be

d e ε m e d

to be a Change

and such change

shall not result in any adjustment of the Contract Price or

the Time for Completion.

39.1

.4

The procedure on how

to

proceed with and

e x ε u t e

Changes is specified in GCC Sub-Clauses 39.2 and 39 .3

and further

d ε t i l s

and sample forms are

p r o v i d ε d

in

It

em 8

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(Change Order Procedures) in Forms and P r o c e d u r ε s

39.2 Changes Originating from EVN

39.2

.1

If

EVN proposes a Change pursuant

to

GCC Sub-Clause

39.1.1 EVN shall send to the Contractor a

R ε q u e s t

for

Change Proposal

,

requiring the Contractor to prepare and

furnish a “Change Proposal to EVN’s Representative as

soon as reasonably practicable (normally within ten (10)

days but

even in the complicated case

not longer than

twenty one (21) days of such request). A “ Change

Proposal

,

shall include the following:

(a) brief description

ofthe

Change

(b) effect on the Time for Completion

(c estimated cost

of

the Change

(d) effect on Functional Guarantees (if any)

(e) effect on any other provisions

of

the Contract.

39.2.2 Prior to preparing and submitting the “Change Proposal,

the Contractor shall submit to EVN ’s Representative an

“Estimate for Change P r o p o s 마 which shall be an estimate

of

the cost

of

preparing and submitting the Change

Proposal

Upon receipt of the Contractor’s Estimate for Change

Proposal

EVN shall do one

of

the following:

(a) accept the Contractor’s estimate with instructions to the

Contractor to proceed with the preparation

of the

Change Proposal

b) advise the Contractor

of

any part of his Estimate for

Change Proposal that is unacceptable and request

the

Contractor to review his estimate

(c advise the Contractor that EVN does not intend to

proceed with the Change.

39.2.3 Upon receipt

of

EVN ’s instruction to proceed under

G

Sub-Clause 39.2.2 (a)


with proper

expedition

p r o c ε e d

with the preparation

of

the Change

Proposal

in accordance with GCC Sub-Clause 39.2.

1.

39.2

.4 Th

e pricing

of

any Change shall

as far as practicable

be

calculated in accordance with the rates and prices included

in the Contract.

If

such rates and prices are inequitable

the

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39.2.5

parties thereto shall agree on specific rates for the valuation

of

the Change using one or more

of

following procedure to

be

discussed and agreed by the Contractor and EVN.

(a) Using unit rate for each item multiplied by its

quan

t1

ty

(b) Using Lurnp Sum price for total works

(c) Using actual cost paid by the Contractor evidenced

by voucher and

r e c ε i p t

plus the Contractor

’

s fee ten

percent

1

0 )

of

Total Cost

(d) Comparing quotations (at least three (3) quotations)

from the various subcontractors capable

of

undertaking such works plus

f i v ε

percent (5 )

of

Contractor

’

s fee

f

before or during the preparation

of

the Change Proposal

it

becomes apparent that the aggregate effect

of

compliance

therewith and with all other Change Orders that have

already become binding upon the Contractor

u n d ε r

this

GCC Clause 39 would be to increase or

d e c r ε s e

the

Contract Price as originally set forth in Article 2 (Contract

Price) of the Contract Agreement by more than fifteen

percent (15 )

the Contractor may give a written notice

of

objection thereto prior to furnishing the Change Proposal as

aforesaid.

f

EVN accepts the Contractor’s objection

EVN

shall withdraw the proposed Change and shall notify the

Contractor in writing thereo

f.

Th

e Contractor’s failure to so object shall neither affect his

right to object to

y

subsequent

r e q u ε s t e d

Changes or

Change Orders herein

nor affect his right to take into

account

when making such

s u b s e q u ε n t

objection

the

percentage increase or decrease in the Contract Price that

any Change not objected to by the Contractor represents.

39.2

6

Upon receipt of the Change Proposal

EVN and the

Contractor shall mutually agree upon all matters

t h e r ε m

contained. Within fourteen (14) days such agreement

EVN shall

if EVN intends to proceed with the Change

issue the Contractor with a Change Orde

r.

f

EVN

is

unable to reach a decision within fourteen

1

4)

days

it shall notify the Contractor in detail as to when the

Contractor can expect a decision.

If EVN decides not

to

proceed with the Change for

whatever reason

it shall

within the said period

of

fourteen

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4

days notify the Contractor accordingly. Under such

circumstances

the Contractor shall be entitled to

reimbursement

of

all costs reasonably incurred by it in the

preparation

of

the Change Proposal

provided that these do

not exceed the amount given by the Contractor in his

Estimate for Change Proposal submitted in accordance

GCC Sub-Clause 39.2 2

39 2

.7 f

EVN and the Contractor cannot reach agreement on the

price for the Change an equitable

u s t m e n t

to the Time

for

Completion or any other matters i d e n t i f i ε d in the

Change Proposal EVN may nevertheless instruct the

Contractor to proceed with the Change by issue of a

“Pending Agreement Change Order.

Upon receipt of a Pending Agreement Change Order the

Contractor shal1 immediately proceed with effecting the

Changes covered by such Order. The parties shall t h e r e f t ε r

attempt to reach agreement on the outstanding issues under

the Change Proposal.

fthe parties cannot reach agreement within sixty (60) days

from the date of issue

of

the Pending Agreement Change

Order then the matter may be referred to EVN for the

Settlement

of

Dispute in accordance with the provisions of

GCC

Sub-Clause 6.1.

39 3 Changes Originating from Contractor

39 3 .1 f the Contractor proposes a Change pursuant to GCC Sub

Clause 39.1 2

the Contractor shall submit to EVN’s

Representative a written

“

Application for Change

Proposal

,

giving

r ε s o n s

for the proposed Change and

including the information specified in GCC Sub-Clause

39.2.1.Upon receipt ofthe Application

for

Change Proposal

the t i s shall follow the procedures outlined in GCC

Sub-Clauses 39.2.6 and 39.2.7. However

should EVN

choose not to proceed the Contractor shall not be entitled to

recover the costs of n g the Application for Change

Proposal.

39.4 Execution of Change Order

The Contractor shall not proceed to execute the Changes

until EVN authorizes and issues Change Order in writing to

the Contractor. Changes in the Time for Completion or the

Contract Price authorized by Change Order shall c o n s t i t u t ε

part

of

the Facilities under the Contract and the conditions

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40. Extension

of

Time for

Completion

of

the Contract shall be applied and such changes shall not

be subject to renegotiation.

A written amendment

of

the Contract shall be made and

signed by EVN and the Contractor.

40

l

The Time s) for Completion specified in GCC Sub-Clause

8 3

shall be extended

if

the Contractor

is

delayed or impeded

in the performance of any

of

his obligations under the

Contract by reason

of

any of the following:

a) any Change in the Facilities

as

provided in GCC

Clause 39

b)

any occurrence

of

Force Maj eure

as

provided in GCC

Clause 37, unforeseen conditions as provided in GCC

Clause

35

, or other o c c u r r ε n c e of any of the matters

specified or referred to in paragraphs a), b) and c)

of

GCC Sub-Clause 32.2

c) any suspension order given by EVN under GCC Clause

41

hereof or reduction in the rate of progress pursuant

to GCC Sub-Clause 41.2

d) any changes in laws and regulations

as

provided

in

GCC Clause 36

e) any default or breach

ofthe

Contract by EVN, such as

any activity, act or omission

of

other contractors

employed by EVN

,

including failure

of

EVN to

p r o v i d ε

n e c e s s η right of way or possession of the Site,

f) delay

of

payment more than t h i π y 30) days by EVN

for the reason not attributable to the Contractor frorn

the due date as stated in Appendix 1 T erms and

Procedures ofPayment) to the Contract Agreement

g) delay caused by Vietnamese authority in issuing

n e c e s s η permissions , approvals or authorization

in

spite of the Contractor’s tirnely and appropriate

procedures and documentations

h) delays attributable to EVN or caused by customs, such

as

i) delay caused by order issued by EVN

,

and

ii)

late approval of documents

u n r ε s o n b l y h ε l byEVN

i) any other matter specifically mentioned in the Contract

by such a

p

o d as shall fair and reasonable in all the

circumstances and as shall fairly reflect the delay

or

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41. Suspension

impediment sustained by the Contracto

r.

40.2 Except where

o t h e r w i s ε

specifically provided in the Contract

including Changes in t h ε Facilities as stated in GCC Clause

39

the Contractor shall submit to EVN

’

s Representative a

notice of intention to make a claim for an extension of the

Time for Completion within fourteen

1

4) days

of

the event

becoming known to the Contractor.

The notice shall be

followed by the claim together with particulars of the event

or c i r c u m s t n c ε justifying such extensÌon as soon as

reasonably practicable but not more than three 3) months

later after the said notice. As soon as reasonably practicable

after receipt of such notice and supporting particulars of the

claim

EVN and the Contractor shall a g r ε e upon the period

of

such extension with the express consent

of

the bank issued

the Performance Security. In the event that the Contractor

does not accept EVN’s estimate of a fair and reasonable t i r n ε

extension the Contractor shall be entitled to refer the matter

to

、 이 ，

pursuant to GCC Sub-Clause 6.1.

40.3 The Contractor shall demonstrate to EVN ’s satisfaction that

the Contractor has at all times used his r ε a s o n a b l e efforts to

minimize any delay and the cost incurred in the performance

ofhis

obligations under the Contract.

41 1

EVN may request EVN ’ s Representative by notice to t h ε

Contractor

to

o r d ε r

the Contractor to suspend performance

of

any or all

of

his obligations under the Contrac

t.

Such

notice shall specify the obligation

ofwhich

performance is to

be suspended the effective date of the suspension and the

reasons therefo

r. Th

e Contractor shall thereupon suspend

performance of such obligation except those obligations

n e c e s s η for the care or preservation

of

the Facilities) until

ordered in writing to resume such performance by EVN’s

R e p r e s e n t a t i v ε

f

by virtue

of

a

s u s p ε n s i o n

order given by EVN ’s

Representative

other than by reason

of

the Contractor

’

s

default or breach of

the Contract

the Contractor’s

performance

of

any

of

his obligations

is

suspended for

an

aggregate period

of

more than ninety 90) days

then at any

time thereafter and provided that at that time such

performance

is

still suspended

the Contractor may give a

notice to EVN ’s Representative requiring that EVN shall

within twenty-eight 28) days

of

receipt

of

the notice

order

the resumption

of

such performance or request and

subsequently order a Change in accordance with GCC Clause

39


of

the suspended obligations

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from the Contract.

If EVN fails to

do so

within such period, the Contractor may,

by a further notice

to

EVN

’

s Representative

,

elect to treat the

suspension, where it affects a part only of the Facilities, as a

deletion

of

such

in accordance with GCC Clause 39

or,

where it affects the whole of the Facilities,

as

termination

of

the Contract under GCC Sub-Clause 42.1.

41 2

If

(a) EVN has

f i l ε d

to pay the Contractor any sum due

under the Contract within the specified period, has

failed to approve any invoice or supporting documents

without just cause pursuant to the corresponding

Appendix 1 (Terms and Procedures of Payment) to the

Contract Agreement, or commits a substantial breach

of

the Contract, the Contractor may give a notice to

VN

that requires payment

of

such sum

,

with interest

thereon , requires approval of such invoice or

supporting documents

,

or

s p e c i f i ε s t h ε

breach and

requires EVN

to

remedy the same,

as

the case may be.

If EVN fails to pay such sum together with such

interest

,

fails

to

approve such invoice or supporting

documents or give its reasons for withholding such

approval

,

or fails to remedy the breach or take steps to

r e m ε d y the breach within f o u r t e ε n (14) days after

receipt of the Contractor

’

s notice, or

(b) the Contractor is unable to carry out any

of

his

obligations under the Contract for any reason

attributable to E\t N, including but not limited to EVN ’ s

failure to provide possession of or access to the Site or

other areas in

c c o r d n c ε

with GCC Sub-Clause 10.2

,

or failure to obtain any governmental permit necessary

for the execution andJor completion

ofthe

Facilities

,

then the Contractor may by fourteen

1

4) days notice to

EVN suspend performance of all or any of his obligations

under the Contract

,

or reduce the rate ofprogress.

4

1

3

If

the Contractor

’

s performance

of

his obligations is

suspended or the rate of progress is reduced pursuant to this

GCC Clause

41

, then the Time for Completion shall be

extended in accordance with GCC Sub-Clause 40 1 , and any

and all additional costs or expenses incurred by the

Contractor as a result of such suspension or reduction shall

be paid by EVN

to

the Contractor in addition

to

the Contract

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Price except in the case of suspension order or reduction in

the rate of e s s by reason of the Contractor’ s default

or

breach of the Contract.

4 .4

During the period of suspension


not

remove from the Site any Plant and Equipment any part

of

the Facilities or any Contractor

’

s Equipment

without

the

prior writlen consent ofEVN.

42. Termination 42.1 Termination for EVN’s Convenience

42.1.1 EVN may at any time terminate the Contract for any reason

by giving the Contractor a notice of termination that refers

to this GCC Sub-Clause 42.1.

42.1.2 Upon receipt

of

the notice

of

termination

u n d ε r

GCC Sub

Clause 42.1.1 the Contractor shall either immediately or

upon the date specified in the notice

of

termination

(a) cease all further work

e x c ε p t

for such work as

VN

may specify in the notice of termination for the sole

purpose of protecting that part of the Facilities already

executed

or any work required to leave the Site

n

a

clean and safe condition

(b) t e r m i n a t ε all subcontracts

except those to be assigned

to EVN pursuant to paragraph (d) (ii) below

(c) remove all Contractor ’ s Equipment from the Site

repatriate the Contractor’s and his Subcontractors

personnel from t h ε Site remove from the Site any

wreckage rubbish and debris

of

any n d and leave

the

whole of the Site in a clean and safe condition

(d) In addition the Contractor subject to the payment

specified in GCC

S u b C l a u s ε

42.

3

shall

(i) d e l i v ε r to EVN the

of

the Facilities executed

by the Contractor up to the date of termination

(ii)

to

the extent legally possible

assign to EVN all

right title and benefit of the Contractor to the

Facilities and to the Plant and Equipment as of the

date

of

termination

and

as

may be required

by

EVN in any subcontracts concluded between

the

Contractor and his Subcontractors

(iii) deliver to EVN all non-proprietary drawings

specifications and other documents prepared by the

Contractor or his Subcontractors as at the date

of

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termination in connection with the F a c i l i t i ε s

42.1.3 In the event oftermination ofth Contract under GCC Sub

Clause 42.

1

EVN shall pay to the Contractor the

following amounts:

(a) the Contract

P r i c ε

properly attributable to the parts of

the Facilities executed by the Contractor

as of

the date

of termination

(b) the costs reasonably incurred by the Contractor in th

removal

of

the Contractor’s Equipment from the Site

and in the repatriation

of the Contractor’ s and his

Subcontractors personnel

( c) any amounts to be

려

by the Contractor to his

Subcontractors in connection with the termination

of

any subcontracts including any cancellation charges

(d) costs incurred by the Contractor in protecting th

Facilities and leaving the Site in a clean and safe

condition pursuant to paragraph (a) of GCC Sub-Clause

42.

2

(e) the cost of satisfying all other obligations

commitments and claims that the Contractor may in

good faith have undertaken with third parties

in

connection with the Contract and that are not covered

by paragraphs (a) through (d) above.

42.2 Termination for Contractor ’s Default

42.2.1 EVN

without prejudice to

뻐 y

other rights or remedies

it

may possess may terminate the Contract forthwith in

th

following circumstances by giving a notice

of

termination

and its reasons therefor to the Contractor

referring to this

GCC Sub-Clause 42.2:

(a)

if

the Contractor becomes bankrupt or insolvent

has a

receiving o r d ε r issued against it compounds with his

creditors or if the Contractor

is

a corporation a

resolution

is

passed or order is made for its winding up

(other than a voluntary liquidation for the purposes

of

amalgamation or reconstruction) a e c e i v ε r is appointed

over any

p a π of

his undertaking or assets

or

if th

Contractor takes or suffers any other analogous action

in consequence of debt

EVN shall be at liberty ;

(i)

To

terminate the Contract forthwith by notice

in

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42.2

.2

writing to the Contractor or to the receiver or

liquidator or to any person in whom the Contract may

become vested and to act in the 없 m e r provided in

GCC Sub-Clauses 42.1 and

42

.2

as

though the above

mentioned notice had been the notice referred to in

such clause and the W orks had e ε n taken out

of

the

Contractor’s hands

or

ii)

To

give such receiver

liquidator or other person the

option of carrying out the Contract subject to his

providing a guarantee for the due and faithful

performance

of

t h ε Contract up to amount to be

agreed.

b)

if

the Contractor assigns or transfers the Contract

or

any

or interest therein in violation of the provision

of

GCC Clause 43.

c)

if

the Contractor has engaged in corrupt or fraudulent

practices in competing for or in executing the Contract.

If

the Contractor

a) has abandoned or repudiated the Contract

b) has without valid reason failed to commence work

on

the


promptly or has suspended other than

pursuant to GCC Sub-Clause

41.2)

the progress

of

Contract performance for more than

t w e r r η e i g h t

28)

days after receiving a written instruction from EVN to

proceed

c) persistently fails to execute the Contract in accordance

with the Contract or p ε r s i s t e n t l y neglects to carry out

his obligations under the Contract without just cause

d) refuses or is unable to provide sufficient materials

services or labor to execute and complete the Facilities

in the

없 m e r

specified in the program furnished under

GCC Sub-Clause 18.2 at rates of progress that give

reasonable assurance to EVN that the Contractor can

attain Completion of the Facilities by the Time for

Completion as extended

e) fails to satisfactorily complete the Performance Tests

for Provisional Acceptance Certificate within the

Contract Period or e x t e n d ε d time pursuant to GCC

Clause 40

or

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f)

fails to perform any other material obligation s)

u n d ε r

the Contract and does not commence to take action to

remedy his failure within the period of fourteen 14)

days or such longer period as EVN may grant in

writing) after receiving

of

notice of default from EVN

specifying nature

of

such default.

then EVN may

,

without prejudice

to

y

other rights

EVN may possess under the Contract, give a notice to the

Contractor stating the nature

of

the default and requiring

the Contractor to remedy the same. f the Contractor fails

to

remedy or to take steps to remedy the same within

fourteen 14) days of its receipt of such notice, then EVN

may terminate the Contract forthwith by giving a notice

of

termination to the Contractor that refers to this GCC

Sub-Clause 42.2.

42.2.3 Upon receipt

of

the notice

of

termination under GCC Sub

Clauses 42.2.1 or 42.2.2, the Contractor shall, either

immediately or upon such date

as

is

specified in the notice

of termination

,

a) cease all further work

,

except for such work as EVN

may specify in the notice of termination for t h ε sole

purpose

of

protecting that

of the Facilities already

executed

,

or any work required to leave the Site in a

clean and safe condition

b) terminate all subcontracts,

x c e p t

those to be assigned

to

EVN pursuant to paragraph d) below

c) deliver to EVN the of the

a c i l i t i ε s

ε x e c u t e d by

the Contractor up to the date of termination

d) to the extent legally possible , assign to EVN all right,

title and benefit of the Contractor

to

the Facilities and

to the Plant and Equipment

as

of the date of

termination

,

and

,

as may be required by EVN

,

in

any

subcontracts concluded between the Contractor and his

Subcontractors

e) deliver to EVN all drawings, specifications and other

documents prepared by the Contractor or his

Subcontractors as

of

the date of termination in

connection with the Facilities.

42.2.4 The EVN may enter upon the Site, expel the Contractor,

and complete the Facilities by himself or by employing any

third p a π y EVN may, to the exclusion of any right

of

the

Contractor over the same, take over and use with the

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payment of a fair rental rate to the Contractor with all the

maintenance costs to the account of EVN and with an

indemnification by EVN for

all

liability including damage

or injury to persons arising out

of

EVN

’

s use

of

such

equipment any Contractor’s Equipment owned by the

Contractor and on the Site in connection with the F a c i l i t i ε s

for such

r e a s o n a b l ε

period

as

EVN considers expedient for

the supply and installation ofthe Facilities.

Upon completion

of

the Facilities or at such earlier date as

EVN thinks appropriate EVN shall give notice to the

Contractor that such Contractor’s Equipment will be

returned to the Contractor at or near the Site and shall

return such Contractor’s Equipment to the Contractor in

accordance with such notice. The Contractor shall

thereafter without delay and at his cost remove or

r n g e

removal of the same from the Site.

42.2.5 Subject to GCC Sub-Clause

42 .2 6

the Contractor shall be

entitled to be paid the Contract Price attributable to the

Facilities executed

as

of the date

of

termination

the value

of any unused or t i a l l y used Plant and Equipment on the

Site

and the costs

if

any

incurred in protecting the

Facilities and in leaving the Site in a clean and safe

condition pursuant to paragraph a) of

GCC Sub-Clause

42

.2

3 y sums due EVN from the Contractor accruing

prior to the date of termination shall be deducted from the

amount to be paid to the Contractor n d ε r this Contract.

42.2.6

f

EVN completes the Facilities

the cost

of

completing the

Facilities by EVN shall be determined.

f the sum that the Contractor

is

entitled to be paid

pursuant to GCC Sub-Clause 42.2.5 plus the reasonable

costs incurred by EVN in completing the Facilities

exceeds the Contract Price the Contractor shall be liable

for

such

x c e s s

f such excess is greater than the sums due the Contractor

under GCC Sub-Clause 42.2.5

the Contractor

pay the

balance to EVN and if such excess is less than the sums

due

the Contractor under GCC Sub-Clause 42

.2

5

EVN

shall pay the balance to the Contractor.

EVN and the Contractor shall agree

in writing

on the

computation described above and the manner in which any

sums shall be paid.

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42.3 Termination by Contractor

42 3 1If

a) EVN has failed to pay t h ε Contractor any sum due under

the Contract within the specified period

has failed to

approve any invoice or supporting documents without

just cause pursuant to the corresponding Appendix 1

Terrns and Procedures of Payment) of the Contract

Agreement

or commits a substantial breach of the

Contract

the Contractor may give a notÎce

to

EVN that

requires payment

of

such sum

with interest thereon

requires approval of such invoice or supporting

documents

or specifies the breach and requires EVN to

remedy the same

as

the case may be.

If

EVN fails to

pay such sum together with such interest

fails to

approve such invoice or supporting documents or give

its reasons for withholding such approval

fails to

remedy the

b r ε c h

or take steps to remedy the breach

within fourteen 14) days after receipt of the

Contractor’s notice

or

b) the Contractor

is

unable to

c r η

out any of his

obligations under the Contract for any reason

attributable to EVN

including but not limited

to

EVN

’

s

failure to provide possession

of

or access to the Site

or

other areas or failure to obtain any governmental perrnit

n e c e s s 따 y

for the execution an

or

completion

of

the

Facilities

then the Contractor may give a notice to EVN thereof and

if

EVN has

f i l ε d

to pay the outstanding sum

to approve

the invoice or supporting documents

to give its reasons for

withholding such approval or to remedy the breach within

twenty-eight 28) days

of

such notice

or

if

the Contractor is

still unable to out any of his obligations under the

Contract for any reason attributable to EVN within twenty

eight 28) days

of

the said notice the Contractor may by a

further notice to EVN referring to this GCC Sub-Clause

42.3.1 forthwith terminate the Contract.

42 3

.2 The Contractor may terminate the Contract forthwith

by

giving a notice to EVN to that effect

referring

to

this GCC

Sub-Clause 42.3.2

if

EVN becomes bankrupt or insolvent

has a receiving order issued against EVN compounds with

its creditors

or

being a corporation

if

a resolution is

passed or order

is

made for its winding up other than a

voluntary liquidation

for

the purposes

of

amalgamation or

reconstruction) a receiver

is

appointed over any part

of

its

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undertaking or assets or if EVN takes or suffers any other

analogous action in consequence of deb

t.

42.3.3

fthe

Contract

is

terminated under GCC Sub-Clauses 42.3.1

or 42.3.2

then the Contractor shall immediately

(a) cease all further work

except for such work

as

may be

n e c e s s η for the p o s e of protecting that of the

Faci1ities already executed or any work required to

leave the Site in a clean and safe condition

b)

terminate 1 subcontracts

except those

to

be assigned

to EVN pursuant

to

paragraph (d) (ii)

(c) remove all Contractor’s Equipment from the Site and

repatriate the Contractor

’

s and his Subcontractors'

personne1 from the Site.

(d) In addition

the Contractor

subject

to

the payment

specified in GCC Sub-Clause 42.3

.4

shall

(i) de1iver to

EVN the parts

of

the Faci1ities executed

by the Contractor up to the date of termination

(ii) to the extent legally possible assign to EVN all

right tit1e and benefit of the Contractor to the

Faci1ities and to the

P1ant

and Equipment as

of

the

date

of

termination and

as

may

be

required by

EVN in any subcontracts concluded between the

Contractor and his Subcontractors

(iii) de1iver to EVN 1 drawings

s p e i f i

i o n s

and

other documents prepared by the Contractor or his

Subcontractors as of the date of termination

in

c o n n ε c t i o n with the Faci1ities.

42.3 .4 fthe Contract

is

terminated under GCC Sub-C1auses 42.3.1

or 42.3.2

EVN shall pay to the Contractor all payments

specified in GCC Sub-C1ause 42.

1.

3

and reasonab1e

compensation for all

1 ss

except for

1 ss

of profit

or

damage sustained by the Contractor arising out

of

in

connection with or in consequence of such termination.

42.3.5 Termination by the Contractor pursuant to this GCC Sub

C1ause

42.3 is without p r ε j u d i e to any other rights or

remedies of the Contractor that may be exercised in lieu of

or in addition to rights conferred by GCC Sub-C1ause 42.3.

42

.4 In this GCC Clause 42

the expression “ Facilities

executed shall include all work executed

Installation

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43. Assignment

Services provided and all Plant and Equipment acquired

or subject

to

a lega

l1

y binding obligation to purchase)

by

the Contractor and used or intended

to

used for the

purpose

of

the Facilities

up to and in

uding the date

of

termmat

n.

42.5 In this GCC Clause 42

in calculating any monies due from

EVN to the Contractor

into consideration shall be taken

any sum previously paid by EVN to the Contractor under

the Contract including any advance payment paid pursuant

to the corresponding Appendix 1

T ε r m s

and Procedures

of

Payment) to the Contract Agreement.

43 1

Neither EVN nor the Contractor shall without the express

prior writien consent

of

the other party which consent shall

not be unreasonably

l e l d assign to

없 y

third

p

the

Contract or any part thereof or any benefit obligation

or interest therein or thereunder

except that the Contractor

sha

l1

be entitled to assign either absolutely or by way

of

charge any monies due and payable to it or that may become

due and payable to it under the Contract