ABU DHABI GAS LIQUEFACTION COMPANY LIMITED
CONDITIONS OF CONTRACT
for
PROJECT MANAGEMENT CONSULTANT (MAJOR)
CONTENTS
CLAUSESUBJECT
1DEFINITIONS
2SCOPE OF SERVICES
3DURATION
4PROCEDURES
5COMPANY’S ASSISTANCE TO CONSULTANT
6CONSULTANT’S OBLIGATIONS
7FINANCIAL COMMITMENT
8CONDITIONS OF PERFORMANCE
9TAXES AND DUTIES
10LIABILITIES
11INSURANCE
12AUDIT AND ACCOUNTS
13VARIATIONS
14ACCEPTANCE
15NOT USED
16WARRANTIES
17BANK GUARANTEE
18CLAIMS AND LIENS
19NOT USED
20PROPERTY IN DRAWINGS, PATENTS AND CONFIDENTIALITY
21SUBCONTRACTORS
22PERSONNEL
23AGREEMENT INTERPRETATION
24SUSPENSION
25TERMINATION
26ENTIRE AGREEMENT
27INDEPENDENT CONTRACTOR
28CONFLICT OF INTEREST
29ASSIGNMENT
30ARBITRATION
31WAVER
32FORCE MAJEURE
33APPLICABLE LAW
34CUSTOMS LAW
35NOTICES AND ADDRESSES
36CONTINUING OBLIGATIONS
37AGGREGATE LIABILITY/ LIMITATION of LIABILITY
38SPECIAL CONDITIONS
Annexure A - ADGAS General Obligations
Annexure B –Notes On Insurance
Annexure C– Guidance Notes for Das Island Contractors
Annexure D - Form of Performance Bond
GREEMENT PREAMBLE
THIS AGREEMENT, effective as of the ______, is entered into in Abu Dhabi, U.A.E.
BY AND BETWEEN
ABU DHABI GAS LIQUEFACTION COMPANY LTD. (ADGAS) (hereinafter referred to as 'COMPANY', which expression shall, where the context so permits, include its successorsininterest and assigns), duly organised under the laws of AbuDhabi and having its postal address as P.O. BOX 3500, ABUDHABI, U.A.E. of one part
AND
______(hereinafter referred to as 'CONSULTANT', which expression shall, where the context so permits, include its successorsininterest and assigns) duly organised under the laws of Abu Dhabi having its postal address as ______of the other part.
WITNESSETH:
WHEREAS COMPANY desires to have certain SERVICES performed as hereinafter specified; and
WHEREAS CONSULTANT represents that it possesses the necessary premises, equipment, personnel and capability to carry out such SERVICES and is willing to do so on the terms and conditions hereinafter contained:
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN CONTAINED, IT IS HEREBY AGREED AND DECLARED BETWEEN THE PARTIES AS FOLLOWS:
CLAUSE 1: DEFINITIONS
1.1In this AGREEMENT (including the ANNEXURES hereto) the words and expressions listed hereunder shall have the meanings hereby assigned to them, save where the context otherwise requires:
1.2AGREEMENT means the present document (Clauses 1 through 35) including the attached ANNEXURES 1 through 11.
1.3AGREEMENT PRICE means the remuneration payable to CONSULTANT under this AGREEMENT as per Clauses 7 and 13 and ANNEXURE 7 for execution and completion of the SERVICES.
1.4ANNEXURES means ANNEXURES 1 through 11, which are attached hereto as part of this AGREEMENT.
1.5CONTRACTOR means any and all persons, firms, companies or partnerships (including their subcontractors), other than the CONSULTANT, ENGINEER and LICENSORS, contracted by ADGAS to carry out works or services related to the PROJECT.
1.6CO-ORDINATION PROCEDURES means the procedures described in Clause 4 and ANNEXURE 6 for carrying out the SERVICES including any supplement thereto developed by CONSULTANT and approved by ADGAS.
1.7ENGINEER means the engineering contractor appointed by ADGAS to perform the Front End Engineering and Design (FEED) Services for the PROJECT.
1.8EFFECTIVE DATE means the date first above written in AGREEMENT PREAMBLE on which the AGREEMENT comes into force and the PARTIES’ obligations in respect thereof commence.
1.9EPC means detailed engineering, procurement, construction and commissioning works and services that are to be performed by the EPC CONTRACTOR for the PROJECT.
1.10EPC CONTRACT means the contract which will be concluded between ADGAS and the EPC CONTRACTOR for the provision by the latter of EPC works and services for the PROJECT and any amendments there to.
1.11EPC CONTRACTOR means any and all persons, firms, companies or partnerships (including their subcontractors) contracted by ADGAS to carry out EPC works or services related to the PROJECT.
1.12FEED means Front End Engineering and Design Services performed by ENGINEER for the PROJECT.
1.13FEED CONTRACT means the contract between ADGAS and ENGINEER for the provision by the latter of Front End Engineering and Design Services for the PROJECT and any amendment thereto.
1.14FINAL ACCEPTANCE CERTIFICATE means the certificate signed by ADGAS and issued to CONSULTANT in accordance with Clause 14.
1.15FORCE MAJEURE means strikes (excluding strikes occurring among the employees of CONTRACTOR or its SUBCONTRACTORS) or other industrial disturbances of a general nature, acts of the public enemy, terrorism, wars, undeclared wars, acts of governments including the governments of the Emirate of Abu Dhabi or the U.A.E., blockades, insurrections, riots, epidemics, landslides, earthquakes, lightning, civil disturbances, explosions and any other cause or event which is unforeseen, unavoidable, insurmountable and similar to the kind herein enumerated or equivalent forces, not within control of the PARTY affected thereby and which that PARTY is unable to overcome by the exercise of due diligence.
1.15GROSS NEGLIGENCE means any act or failure to act which seriously and substantially deviates from a reasonable course of action without justification and which is in reckless disregard of or wanton indifference to, foreseeable harmful consequences.
1.16HOME OFFICE means CONSULTANT’s home office location(s) as specified in Schedule-1 of ANNEXURE-7.
1.17INSTALLATIONS means all facilities constituting the PROJECT, including tie-ins and modifications to existing facilities, as described in the ANNEXURES.
1.18LICENSOR means any and all persons, firms, companies or partnerships contracted by ADGAS to license any patent, knowhow, technology or process for the design or operation of INSTALLATIONS.
1.19LICENSE AGREEMENT means the agreement(s) between ADGAS and LICENSORS for the provision by the latter of licensed technology for the PROJECT and any amendment thereto, which may at ADGAS option be novated/assigned to the EPC CONTRACTOR.
1.20PARTY(IES) means ADGAS and/or CONSULTANT.
1.21PROJECT means the Project described in the ANNEXURE 1.
1.22PROJECT MANAGEMENT CONSULTANT (PMC) has the same meaning as CONSULTANT.
1.23PROVISIONAL ACCEPTANCE CERTIFICATE means the certificate signed by ADGAS and issued to CONSULTANT in accordance with Clause 14.
1.24SCHEDULE means the time-table for implementation of PROJECT and SERVICES as set out in ANNEXURE 3.
1.25SERVICES means all services to be performed or provided by CONSULTANT under this AGREEMENT.
1.26SITE means all locations in Abu Dhabi where the INSTALLATIONS are to be permanently constructed, erected, tested, operated and maintained.
1.27SPECIFICATIONS means the specifications, drawings and procedures referenced in the ANNEXURES or implied therein, and any modifications or additions thereto as may from time to time be approved in writing by ADGAS for the PROJECT.
1.28SUBCONTRACTOR means any persons, firms, companies or partnerships (not being an employee of CONSULTANT) engaged by CONSULTANT for supplying services to CONSULTANT for the performance of SERVICES.
1.29VENDOR means any and all suppliers of materials and equipment in connection with the PROJECT other than ENGINEER, CONSULTANT, LICENSORS and CONTRACTORS.
1.30VARIATION means any and all changes in or relative to the SERVICES mutually agreed by the PARTIES in accordance with Clause 13 hereof.
1.31WARRANTY PERIOD means the eighteen (18) months period from the effective date of PROVISIONAL ACCEPTANCE CERTIFICATE, provided that the WARRANTY PERIOD may be extended in accordance with Clause 16.4 of the AGREEMENT.
1.32WILFUL MISCONDUCT means any act or failure to act taken or not taken with an intentional disregard of foreseeable harmful consequences.
CLAUSE 2: SCOPE OF SERVICES
2.1GENERAL
CONSULTANT agrees to provide and perform the SERVICES specified in ANNEXURE 4 in accordance with the terms of this AGREEMENT, so that the required quality of SERVICES is attained in accordance with good professional and reputable management practices and in compliance with ANNEXURE 4.
2.2SCOPE OF SERVICES
The CONSULTANT shall provide all services for the management of the EPC phase of the PROJECT. The scope of SERVICES is as detailed in ANNEXURE 4.
All purchase orders and other contracts to be entered into by ADGAS (e.g. with ENGINEER, CONTRACTORS, LICENSORS, etc.) will be entered into in the name of the ADGAS, using ADGAS’s terms and conditions with ADGAS making all payments to and approving/ settling all claims disputes/variations etc.
2.3INCREASE OR DECREASE IN THE SCOPE OF SERVICES
Subject always to the provisions of Clause 13 hereof,ADGAS shall have the right at any time and at its own discretion to increase or decrease the scope of SERVICES, and in such case the AGREEMENT PRICE and/or SCHEDULE will be adjusted in accordance with the provisions of this AGREEMENT.
CLAUSE 3: DURATION
3.1COMING INTO FORCE
This AGREEMENT shall come into force on the EFFECTIVE DATE.
3.2SCHEDULE
SERVICES shall be performed and completed pursuant to the SCHEDULE set out in ANNEXURE 3.This SCHEDULE shall be subject to adjustments only in accordance with the provisions of this AGREEMENT. CONSULTANT shall use all reasonable endeavours to ensure that the EPC CONTRACTOR completes its services in accordance with the SCHEDULE in the EPC CONTRACT. CONSULTANT shall not be liable for failure of EPC CONTRACTOR to meet the SCHEDULE in the EPC CONTRACT provided that such failure is not attributable in part or in whole to CONSULTANT’s failure to perform its obligations under the AGREEMENT.
3.3COMPLETION OF SERVICES
SERVICES shall be considered completed upon issuance by ADGAS of the FINAL ACCEPTANCE CERTIFICATE.
However, the issuance of FINAL ACCEPTANCE CERTIFICATE shall not relieve CONSULTANT of its obligations that survive termination or expiry of the AGREEMENT or are otherwise provided for in the AGREEMENT.
CLAUSE 4: PROCEDURES
4.1In executing the SERVICES, CONSULTANT shall observe the basic requirements set out in the CO-ORDINATION PROCEDURES as specified in ANNEXURE 6. ADGAS shall approve final CO-ORDINATION PROCEDURES and such other supplemental procedures as may be necessary for the proper and efficient performance of the SERVICES.
4.2Subject to ADGAS’s prior approval, CONSULTANT may perform the SERVICES in accordance with its own standard project execution plans and procedures to the extent that they do not conflict with the provisions contained in the CO-ORDINATION PROCEDURES.
CLAUSE 5: ADGAS'S ASSISTANCE TO CONSULTANT
5.1ADMINISTRATIVE ASSISTANCE
5.1.1ADGAS will, if required, provide assistance to CONSULTANT to secure necessary licenses, visas, work permits, documentation for immigration and egress to CONSULTANT’s and its SUBCONTRACTORS’ personnel, equipment and operations in Abu Dhabi in connection with this AGREEMENT.The said assistance shall be limited to the issuance by ADGAS of letters to government departments responsible for these matters. After issuance of such letters, which shall be communicated via CONSULTANT, all further actions necessary to obtain the required permits and approvals shall be CONSULTANT's sole responsibility.
5.1.2ADGAS will, if required, provide other support services, which are set out in ANNEXURE 7.
5.1.3ADGAS will assist CONSULTANT to co-ordinate with other parties at SITE and to provide in a timely fashion such information to CONSULTANT as is reasonably necessary for this purpose.
5.2NOT USED
5.3DATA
5.3.1ADGAS shall provide or cause to be provided to CONSULTANT for the performance of the SERVICES the data and information pertaining to the PROJECT.
5.3.2ADGAS shall also supply CONSULTANT with such other pertinent information as is reasonably available and as CONSULTANT may reasonably require for the performance of SERVICES.
5.3.3To the extent reasonably possible, CONSULTANT shall bring to ADGAS’s attention any obvious error or inadequacy in the data provided by ADGAS. However, CONSULTANT shall not be responsible for errors or inadequacies in information relating to ADGAS’s existing facilities, site conditions both surface and subsurface, feedstock composition, and any other like item of information which CONSULTANT cannot reasonably verify.
5.4ADGAS'S REPRESENTATIVE
Upon coming into force of this AGREEMENT, ADGAS will designate in writing its representative or representative(s) who shall be authorised to act on ADGAS's behalf with respect to this AGREEMENT.
CLAUSE 6: CONSULTANT'S OBLIGATIONS
6.1CONSULTANT shall perform and provide SERVICES in accordance with the provisions of this AGREEMENT and such further instructions given to CONSULTANT by ADGAS.
6.2CONSULTANT shall always, in respect of any matter relating to this AGREEMENT or the SERVICES, support and safeguard ADGAS’s interests in any dealing with ENGINEER, CONTRACTORS, LICENSORS, VENDORS or any third party.
6.3Subject always to the provisions of Clause 16 hereof, CONSULTANT shall perform the SERVICES and carry out its obligations under the AGREEMENT with due diligence, efficiency and professional skills, in accordance with the recognised international standards of project management techniques and practices, observing and employing sound management practices in its utilisation of resources, employing appropriate advanced technology and safe methods, and deploying sufficient human resources.
6.4CONSULTANT shall be solely responsible to ADGAS for the performance of its obligations under this AGREEMENT and for management and co-ordination of all members of the CONSULTANT's team, including CONSULTANT's SUBCONTRACTORS, and for reports to and timely scheduling of meetings with ADGAS for the purpose of co-ordination, reviews and approvals.
6.5CONSULTANT shall, if ADGAS so demands in writing, promptly remove from the SERVICES and replace, with a person of requisite qualifications at its own cost, any of its employees, or employees of CONSULTANT's SUBCONTRACTOR who, in the reasonable opinion of ADGAS,
is not qualified or is technically incompetent to perform the work assigned to him,
is careless, negligent, dishonest, untrustworthy or of unacceptable personal and professional behaviour,
has been certified as medically unfit by a medical officer for the duties to be rendered by him,
has persistently impaired his capacity to efficiently perform his duties through consumption of alcohol or other intoxicating liquids, or the use of drugs or
is the subject of a demand or order by any properly authorised governmental officials for his removal.
ADGAS's decision with respect to the removal of personnel in all such matters shall be final and binding on the CONSULTANT. Such removal and replacement of personnel shall not relieve CONSULTANT of any of its obligations under the AGREEMENT.
6.6Personnel who are assigned to the PROJECT by the CONSULTANT shall have been physically examined and found fit for their assignments and their qualifications must meet minimum qualifications established in ANNEXURE 8, unless otherwise approved by ADGAS. CONSULTANT shall source its personnel for performance of SERVICES only from amongst its permanent direct hired personnel from its designated HOME OFFICE locations(s). Use of Agency personnel or personnel specifically hired for the SERVICES shall be by exception and only with prior written approval of ADGAS. Agency personnel shall not be considered for Categories 1 to 3 (as defined in ANNEXURE 7), unless the proposed personnel have adequate prior work experience with CONSULTANT either in a direct hire capacity or as an Agency personnel.
6.7CONSULTANT shall arrange for mobilisation, demobilisation of its personnel including seeking visas, licences, resident permits, work permits, required security passes and applicable licences.
6.8ADGAS shall notify CONSULTANT of its approval to mobilise nominated personnel by issue of a signed Manpower Mobilisation Request as described in CO-ORDINATION PROCEDURES. Thereafter, CONSULTANT shall not change the approved key personnel for its convenience for the duration of their required tenure barring exceptional circumstances, including but not limited to death, illness, compassionate grounds, resignation or dismissal, and with prior approval of ADGAS. Any costs of demobilisation or mobilisation of replacement shall in such circumstances be to CONSULTANT’s account.
Subject to the foregoing, CONSULTANT shall ensure in its Staffing Plan continuity of key personnel in various phases of the SERVICES. CONSULTANT shall be responsible for deploying sufficient human resources to perform the SERVICES in the most expeditious method using sound cost management practices in accordance with Staffing Plan included in ANNEXURE 3.
6.9Subject always to Clause 5.3.3 hereof, CONSULTANT shall promptly review all information relevant to the PROJECT, take necessary actions or cause ADGAS to initiate actions on all matters, which in CONSULTANT's opinion, appear to be deficiencies, omissions and contradictions or ambiguities.
6.10CONSULTANT shall furnish all personnel, facilities, equipment, material, supplies and services (except as may be expressly stated as furnished by ADGASin ANNEXURE 7) for the duration of this AGREEMENT.
6.11CONSULTANT agrees to allow ADGAS freedom of access at all reasonable times to all places where the SERVICES are being performed.
6.12CONSULTANT shall retain all documents pertaining to SERVICES and PROJECT for a period of five (5) years after the issue of FINAL ACCEPTANCE CERTIFICATE or termination of AGREEMENT.
6.13CONSULTANT shall ensure that no unfair advantage is given to any Tenderer or CONTRACTOR and shall not practice fraud or deceit in dealing with ADGAS or ENGINEER / LICENSORS / VENDORS / CONTRACTORS directly or indirectly. If ADGAS is satisfied that CONSULTANT or its personnel have attempted directly or indirectly to practice collusion with ENGINEER / LICENSORS / VENDORS / CONTRACTORS undertaking the execution of the PROJECT or accept gifts or promise of pecuniary or other benefits, CONSULTANT shall remove and replace at its own cost any personnel connected with such incidents forthwith. ADGAS's decision in this regard shall be final and binding on CONSULTANT.
6.14Subject always to the provisions of Clause 13, in carrying out SERVICES, CONSULTANT shall comply with ADGAS’s policies, procedures and directives, including any pertaining governmental regulations, as are amended from time to time.
6.15As of the EFFECTIVE DATE, CONSULTANT shall designate a competent authorised representative acceptable to ADGAS to represent and act for CONSULTANT and shall inform ADGAS in writing of the name and address of such representative and the scope of his authority.All notices, determinations, directions, instructions and other communications given to CONSULTANT's authorised representative by ADGAS shall be deemed to be given to CONSULTANT as to all matters pertaining to this AGREEMENT and the performance of the PARTIES hereunder.
6.16CONSULTANT shall independently perform SERVICES and manage the EPC phase of the PROJECT in accordance with the terms and conditions of this AGREEMENT in a diligent and prudent business like consultant working in the sole interest of the ADGAS and the PROJECT. CONSULTANT shall nevertheless be required to obtain prior written ADGAS approval on all critical issues as listed in the CO-ORDINATION PROCEDURES. For the avoidance of doubt, the above shall include but not be limited to all legal, financial and commercial matters that require exercise by ADGAS of financial or other delegation of authority, including but not limited to the following:
1)Contractual Notices
2)Vendor / Sub-contractor Lists
3)Award Recommendations for Purchase Orders
4)Concessions Requests / Design Deviations
5)Changes to terms / conditions
6)Variations
7)Completion / Acceptance Certificates
8)Settlement of Claims and Disputes
9)Waiver of Liquidated Damages
10)Termination / Cancellation
11)Completion and Acceptance
CONSULTANT shall be responsible for bringing to ADGAS’s attention all such issues requiring ADGAS input in a timely manner. CONSULTANT shall also promptly notify ADGAS of any circumstances that may delay or adversely affect the SERVICES.