Water Management Agreement - Example 4
Page 1 of 30
Water and Sewerage Company
Management Contract
for the Provision of
Water and Wastewater Services
GENERAL CONDITIONS
ARTICLE 1 - CONTRACT AND INTERPRETATION
1.1Definitions
Unless the context otherwise requires, the following terms wherever used in this Contract have the following meanings:
“Applicable Law” means the laws and any other instruments having the force of law in the [ ], as they may be issued and in force from time to time including, but not limited to any decree of the President or government of the [country];
“Authorities” means [ ];
“Contract” means the agreement between the Employer and the Operator which consists of the Contract Documents;
“Contract Documents” means the Form of Contract, General Conditions and all Appendices to the General Conditions;
“Contract Year” means a continuous period covering a full 365 days, 366 days in leap years, the first Contract Year to begin on the Starting Date;
“Effective Date” means the date on which this Contract comes into force and effect pursuant to GC Section 2.1;
“Foreign Currency” means any currency other than the currency that constitutes legal tender in [ ];
“Local Currency” means the [ ];
“Management Fixed Fee” is defined in GC Section 6.2.1;
“Management Staff” mean those persons directly employed by the Operator to carry out the Services as set out in the Management Staff Appendix;
“Member” means, any one of the entities forming the joint venture if the Operator is a joint venture;
“Operations Staff” is defined in GC Section 4.4;
“Operator” means the water and wastewater operator retained by the Employer to carry out the Services and is the party named as the Operator in the Form of Contract.
“Party” means the Employer or the Operator, as the case may be, and “Parties” means both of them;
[Note: For all joint venture participants to be “parties” this definition will be amended.]
“Performance Standards” is defined in the Performance Standards Appendix;
“Services” means the work to be performed by the Operator pursuant to this Contract, as described in the Services Appendix;
“Starting Date” is defined in GC Section 2.3.1 and the Contract Particulars Appendix;
“Subcontractor” means any entity to which the Operator subcontracts any part of the Services in accordance with the provisions of GC Section 3.8 and, for the purpose of this Contract, also includes any entity which the Operator enters into contracts with on behalf of the Employer in accordance with the Contract;
“Subsequent Operator” means the operator which is to assume the provision of the Services upon termination or completion of the Contract and may include one of the Authorities; and
“Third Party” means any person or entity other than the Employer, or the Operator.
[Note: For joint venture participants to be “parties” this definition will be amended.]
1.2Contract Documents
(1)Subject to the Form of Contract provisions, all documents forming part of the Contract, and all parts thereof, are intended to be correlative, complementary and mutually explanatory. The Contract shall be read as a whole.[1]
(2)The following appendices which are incorporated by reference into the Contract shall be referred to as follows:
Appendix “1” – Contract Particulars (the “Contract Particulars Appendix”)
Appendix “2” – Description of the Services (the “Services Appendix”)
Appendix “3” – Description of the Facilities (the “Facilities Appendix”)
Appendix “4” – Description of the Service Area (the “Service Area Appendix”)
Appendix “5” – Procurement Policies (the “Procurement Appendix”)
Appendix “6” – Performance Standards (the “Performance Standards Appendix”)
Appendix “7” – Management, Supervisory and Technical Staff (the “Management Staff Appendix”)
Appendix “8” – Staffing Policy (the “Staffing Policy Appendix”)
Appendix “9” – Performance Incentive Compensation (the “Incentive Compensation Appendix”)
Appendix “10” – Operator’s Proposal (the “Proposal”)
Appendix “11” – Performance Security (the “Performance Security Appendix”)
Appendix “12” – Operating Investment Fund Program (the “Operating Investment Fund Appendix”)
Appendix “13” – Bank Guarantee for the Management Fixed Fee Advanced Payment (the “Bank Guarantee Appendix”)
Appendix “14” – Charter of the Water and Sewerage Joint Stock Closed Company (the “Employer Charter”)
1.3Interpretation
1.3.1Language
This Contract has been executed in both the English language and the [ ]n language. The binding and controlling language for all matters relating to the meaning or interpretation of this Contract shall be the English language. Notwithstanding that the language of the Contract is English, the Operator shall have a full and complete ability to communicate, orally and in writing, in [ ]n either by itself or through translators or interpreters paid for by the Operator.
1.3.2Persons
Words importing persons or parties shall include firms, corporations, and government entities.
1.3.3Headings
The headings shall not limit, alter or affect the meaning of this Contract.
1.3.4Singular or Plural
In these Contract Documents the singular shall include the plural and the plural shall include the singular except where the context otherwise requires.
1.3.5Entire Agreement
This Contract constitutes the entire agreement between the Employer and the Operator and supersedes all communications, negotiations and agreements, whether written or oral, made by either the Operator or the Employer prior to the Effective Date.
1.3.6Amendment
No amendment or other variation of the Contract shall be effective unless it is in writing, is dated, expressly refers to the Contract, has been approved by the body legally authorized in accordance with the Applicable Law to make such an amendment or variation on behalf of the Employer, and is signed by a duly authorized representative of each Party to the Contract.
1.3.7Independent Contractor
(1)The Operator shall be an independent contractor in its performance of the Contract. The Contract does not create any agency, partnership, joint venture or other joint relationship between the Parties hereto.
(2)Subject to the provisions of the Contract, the Operator shall be solely responsible for the manner in which the Contract is performed. All employees, representatives or Subcontractors engaged by the Operator in connection with the performance of the Contract shall be under the complete control of the Operator and nothing contained in the Contract, or in any subcontract awarded by the Operator, shall be construed to create any contractual relationship between the Operator’s representatives or Subcontractors and the Employer. The relationship between the Operator, Employer and the Operations Staff shall be governed by the Staffing Policy Appendix.
(3)Notwithstanding that the Operator is an independent contractor, the parties acknowledge that,
(a)when the Operator incurs expenditures to be paid, in accordance with the Contract, for day to day operations and maintenance of the Facilities in the Service Area or with respect to the Operating Investment Fund, it does so on the Employer’s behalf; and
(b)When the Operator is carrying out the Services it does so on the Employer’s behalf.
1.3.8Joint Venture or Consortium
If the Operator is a joint venture or consortium of two or more persons, all such persons shall be jointly and severally bound to the Employer for the fulfilment of the provisions of the Contract and shall designate one of such persons to act as a leader with authority to bind the joint venture or consortium. The composition or the constitution of the joint venture shall not be altered without the prior written consent of the Employer.
1.3.9Non-waiver
(1)Subject to GC Section 1.3.9(2), no relaxation, forbearance, delay or indulgence by either Party 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 Party under the Contract, nor shall any waiver by either Party of any breach of Contract operate as waiver of any subsequent or continuing breach of Contract.
(2)To be a valid waiver, any waiver of a Party’s rights, powers or remedies under the Contract shall,
(a)be in writing;
(b)be dated and signed by a duly authorized representative of the Party granting such waiver;
(c)specify the right, power or remedy being waived and the extent to which it is being waived; and
(d)where the waiver is given by the Employer, be approved by the body legally authorized in accordance with the Applicable Law to waive the Employer’s rights, powers or remedies under the Contract.
1.3.10Severability
If any provision or condition of the Contract is prohibited or rendered invalid or unenforceable, such prohibition, invalidity or unenforceability shall not affect the validity or enforceability of any other provisions and conditions of the Contract.
1.3.11Number of Days
Except as expressly stated to the contrary elsewhere herein, in computing the number of days for the purposes of the Contract all days shall be counted, including Saturdays, Sundays and legal holidays, provided, however, that if the final day of any period shall fall on a Saturday, Sunday, or legal holiday, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or legal holiday.
1.3.12References to Currency
Except where provided otherwise in the Contract, for the purpose of the Contract, all references to currency or money shall mean the Local Currency.
1.3.13Rate of Interest
Wherever a reference to the payment of interest is made in the Contract Documents, the rate of interest shall be the borrowing rate set by the Central Bank of [ ] which is applicable at the relevant time.
1.3.14Survival of Obligations
Upon the termination or expiration of the Contract pursuant to the Contract, all rights and obligations of the Parties hereunder shall cease, except,
(1)such rights and obligations as may have accrued or to which the Parties may be entitled on the date of termination or completion;
(2)the Operator’s obligation of confidentiality set forth in GC Section 3.4;
(3)the Operator’s obligation with respect to Contract Records, Accounting and Auditing set forth in GC Section 3.7;
(4)any right which a Party may have under the Applicable Law;
(5)the Operator’s obligation to co-operate with the Employer on the matter of the transition arrangements in the event of termination or on completion; and
(6)any duty of the Operator to make its Management Staff available for a period of up to 60 days after the End Date to ensure a smooth transition to a Subsequent Operator.
1.3.15Section References
(1)Section and subsection references in the Contract Documents which refer to the General Conditions shall be preceded by the letters “GC” such that a reference to “GC Section”, followed by a number, shall refer to that section or subsection number in the General Conditions.
(2)Section and subsection references in the Contract Documents which refer to the Form of Contract shall be preceded by the letters “FC” such that a reference to “FC Section”, followed by a number, shall refer to that section or subsection number in the Form of Contract.
(3)Section and subsection references in the Contract Documents which refer to the Services Appendix shall be preceded by the letters “SA” such that a reference the “SA Section”, followed by a number, shall refer to that section or subsection number in the Services Appendix.
(4)Section and subsection references in the Contract Documents which refer to the Performance Standards Appendix shall be preceded by the letters “PSA” such that a reference to “PSA Section”, followed by a number, shall refer to that section or subsection number in the Performance Standards Appendix.
1.4Notices
(1)Any notice, request or consent required or permitted to be given or made pursuant to this Contract shall be in writing. Any such notice, request or consent shall be considered to have been given or made when delivered in person to the Authorized Representative of the Party to whom the communication is addressed, or when sent by courier to such Party at the addresses for notice set out in the Contract Particulars Appendix.
(2)Notice will be considered to be effective in the case of both personal delivery and delivery by courier, upon delivery to and acknowledgement of receipt in writing by the receiving Party.
(3)A Party may change its address for notice pursuant to this Contract by giving the other Party notice of change in accordance with this GC Section 1.4.
(4)The Operator’s address for the purpose of giving notice pursuant to this GC Section 1.4 shall be in [ ].
(5)Notice to the Operator pursuant to GC Section 1.4 shall be deemed to be notice to all Parties, excluding the Employer.
1.5Law Governing Contract
This Contract, its meaning and interpretation, and the relation between the Parties shall be governed by the Applicable Law.
1.6Location
The Operator shall perform the Services at such locations in the Service Area as are specified in the Contract Documents and, where the location of a particular task is not so specified, at such locations in the Service Area as the Employer may approve.
1.7Authority of Member in Charge
If the Operator consists of a joint venture of more than one entity, the Members hereby authorize the Member named in the Contract Particulars Appendix to act on their behalf in exercising all the Operator’s rights and obligations toward the Employer under this Contract, including, without limitation, the receiving of instructions and payments from the Employer.
1.8Authorized Representatives
(1)Prior to the Starting Date, the Operator and the Employer shall each identify,
(a)an individual to act as its contract liaison and coordinator (the “Authorized Representatives”); and
(b)an individual to be the official designate to act in the stead of its Authorized Representative in the event that its Authorized Representative in unavailable or unable to perform its obligations under the Contract.
(2)The Authorized Representatives and their designates may take any action required or permitted by the Contract and may execute any document required or permitted to be executed under the Contract.
(3)The Operator shall not change its Authorized Representative or its designate without the prior written consent of the Employer.
(4)For the purpose of the Contract, the Authorized Representatives and their designates shall be those individuals named as Authorized Representatives in the Contract Particulars Appendix.
1.9Taxes, Duties, Customs, Levies and Charges
1.9.1Management Fixed Fee and Performance Incentive Compensation
(1)Except as provided in GC Section 1.9.1(2), the Operator shall be exempt from the payment of all taxes and all duties, fees, customs, levies and charges assessed by all municipal state or national authorities in [ ] (the “Taxes”) with respect to the Management Staff costs and expenses, the Management Fixed Fee and the Performance Incentive Compensation.
(2)The Operator and its Management Staff shall, in accordance with the Applicable Law, pay all income and profit taxes assessed by all municipal, state or national authorities in [ ] with respect to the Incentive Compensation and all salary and wages paid to Management Staff .
1.9.2Procurement by the Operator
(1)If the Operator procures goods, works or services pursuant to GC Section 3.12.1(a) all Taxes related to that procurement shall be paid by the Employer.
(2)If the Operator procures goods, works or services pursuant to GC Section 3.12.1(b) all Taxes related to that procurement shall be paid by the Employer. The Parties acknowledge that the amounts set out in the Operating Investment Fund Appendix do not include any costs related to Taxes.
1.10Assignment
(1)[2]The Operator shall not assign to any third party the Contract, or any part thereof, or any right, benefit, obligation, or interest therein, without the prior written consent of the Employer[, except that the Operator shall be entitled to assign either absolutely or by way of charge any monies due and payable to it or that become due and payable to it under the Contract[3]].
(2)To be a valid assignment which has been approved by the Employer pursuant to GC Section 1.10(1), the assignment must,
(a)be in writing;
(b)be dated and signed by a duly authorized representative of the Employer;
(c)state the specific details of the assignment; and
(d)be approved by the body legally authorized in accordance with the Applicable Law to exercise the necessary authority.
ARTICLE 2 - TERM COMMENCEMENT, COMPLETION, AND TERMINATION OF CONTRACT
2.1Effectiveness of Contract
The Contract shall come into force and effect on the date the Form of Contract of this Contract is executed by the Parties (the “Effective Date”) contingent on final approval by the IDA[4].
2.2Expiration of Contract
Unless terminated earlier pursuant to GC Section 2.8 or extended pursuant to GC Section 2.5, this Contract shall terminate on the fourth anniversary of the Starting Date (the “End Date”).
2.3Commencement of Services
2.3.1Starting Date
(1)The Starting Date shall be established by the Employer[5] and shall be a date no later than 60 days after the Effective Date or on such later date as the Parties may agree in writing (the “Starting Date”).
(2)Except as provided in GC Section 2.3.1(3), the Operator shall carry out all Services commencing on the Starting Date.
(3)The Operator shall not take over the day to day operations and maintenance of the water and wastewater systems in the Service Area, as set out in the Services Appendix, until 30 days after the Starting Date (the “Takeover Date”).
2.4Services After the End Date
(1)The Operator, upon written request by the Employer no later than 30 days prior to the End Date, shall provide assistance to the Employer during a transitional period of up to 60 days after the End Date (the “Transition Assistance”). The purpose of the Transition Assistance is to ensure a smooth transition between the Operator and a Subsequent Operator of the Facilities. The Transition Assistance shall be related to only transition services and shall not be the full range of services as set out in the Services Appendix.
(2)The Employer shall pay the Operator an amount equal to 1/48 of the Management Fixed Fee for each month the Operator provides Transition Assistance as payment for the Transition Assistance provided by the Operator.
(3)If the Employer makes a request for assistance pursuant to GC Section 2.4(1),the Transition Assistance shall be provided by those Management Staff identified by the Employer and the identified Management Staff shall be resident in [ ] until the completion of the Transition Assistance. If the Employer does not identify all members of the Management Staff to provide Transition Assistance, the payment identified in GC Section 2.4 shall be reduced in proportion to the number of Management Staff which are not providing Transition Assistance.
2.5Extension of the Contract
(1)If both Parties agree, this Contract may be extended for a period of up to 12 months after the End Date. The Employer shall notify the Operator three months prior to the End Date if it wishes to enter into negotiations regarding an extension to the Contract.