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    20 views81 pages

    FMC Contract

    Uploaded by

    Mahmoud Hussein

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    © All Rights Reserved
    Download as PDF or read online from Scribd
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    Facility Management Company Agreement Copy Between Benban Solar Developers Association and Health and Safety Home (Facility Management Contractor) Project Reference Number: A14110.001 - 090813 FACILITY MANAGEMENT SERVICES INTRODUCTION. DEFINITIONS AND ACRONYMS. 1. FORM OF AGREEMENT. 10, 4a. 12. 13, 1a as. 18. 47, 2. GENERAL TERMS AND CONDITIONS... 20. 2a 22 23. 24 25. 26. 27. 28 29. 210. 2a. 212 213. 21a. 215. 216, 247. 218, 219, 220, 221. 222. 3. PARTICULAR CONDITIONS.. 4. SCOPE OF SERVICES. 44, 42. 43, 4a 45. 46. 47. 45, 43, 420. aun az. TABLE OF CONTENTS ‘CONTRACT AGREEMENT. ARTICLE 1: GENERAL. ARTICLE 2: COMPENSATION. ARTICLE 3: TERM OF THE AGREEMENT. ARTICLE 4: MODIFICATION TO THE AGREEMENT. ARTICLE 5: LAWS AND REGULATIONS. ARTICLE 6: PERFORMANCE SECURITY. ARTICLE 7: ENTIRE AGREEMENT THE SERVICES... ‘QUALITY OF SERVICES. (CHANGES IN THE SERVICES SUSPENSION OF SERVICES. *BSDA" RESPONSIBILITIES PROPREITARY AND CONFIDENTIAL INFORMATION... INDEMNITY AND INSURANCE. COMPENSATION ANO FEES... PAYMENT, [SERVICE DELAYS AND PENALTIES TERMINATION.. ‘TERMINATION ASSISTANCE. CONTRACT COMPLETION.. NOTICES. ENTIRE AGREEMENT. ASSIGNMENT ‘SEVEREABILITY AND WAIVER... DISPUTE RESOLUTION. RESOLUTION BY DESIGNATED OFFICERS... SUMMARY RELIEF. WARRANTY. BUSINESS CONTINUITY INTERPRETATIONS... ENVIRONMENTAL SOCIAL AND H&S PLAN FOR O&M PHASE... SOLAR PARK COORDINATION ‘SECURITY & CRISIS MANAGEMENT ‘TRAFFIC AND ROAD MANAGEMENT... CENTRAL FACILITY SERVICES, ‘ADHOC SUPPORT SOLD WASTE MANAGEMENT ‘COMMUNITY LIASION AND COMMUNICATIONS HSE OVERSIGHT & GOVERNANCE WASTEWATER MANAGEMENT... NEW PLOT COORDINATION = [MONTHLY REPORTING OF ACTIVITIES & INCIDENTS 2s 7 : sesneeeeess 5. SERVICE DELIVERY PERFORMANCE. 6. KEY PERFORMANCE INDICATORS.. APPENDIXES APP A-HSH Technical Proposal 2 Sep 2020 (Round 1) ~ Email Reference ‘APP B—HSH Technical Inputs Round 2, 15 Oct 2020 ‘APP C—HSH Clarification Document Round 2, 28 Sep 2020 ‘APP D HSH Financial Offer Round 2, 15 Oct 2020 APP E— MoM with Consultant 19 Oct 2020 APP F- HSH Bis clarification sheet (Round 1) APP G— HSH Financial Offer (Round 1) ‘APP H = Letter of Award (LOA) ‘Agreement Copy ~Banban Solar Developers Azsocaton & Hesih and 2 Safety Home FACILITY MANAGEMENT SERVICES INTRODUCTION ‘The Egyptian New and Renewable Energy Agency has sponsored the development of the 37 km” Benban Solar Park which has up to 41 solar photovoltaic (PV) power plants of 20 to 50 MW capacity This is located adjacent to the Luxor-Aswan Highway near the village of Benban in the Aswan governorate in Upper Egypt. ‘The individual solar projects are separate and independent, but are contiguous, and share common access roads, and @ common solution to evacuate power. The projects are operating according to the Feed in Tariff Program FIT Programme presidential decree for Solar PV which sets the framework for the construction of 2 GW of Solar PV. The construction and commissioning are complete and the BSDA wishes to appoint a Facilities ‘Management Company (HSH) to undertake the management of the operations and maintenance phase of the solar park on behalf and for the benefit ofall the projects on the Park. There remain seven plots which have not been taken up and may in the future be activated and developed. During the construction and commissioning stages of the Park, Hassan Allam (HA) was appointed to manage the common facilities and has developed an Environmental and Social Management System (ESMS) including Solar Park overarching construction-phase Environmental and Social Management Plans (€SMPs) which will form the basis for the management of health & safety, security, social and environmental aspects of the Park going forwards. The ESMS's and ESMPs of the individual solar projects are generally aligned with the HSH's ESMS / ESMP, ensuring a consistent approach to the management of ESHS matters across the Solar Park. The Hassan Allam (HA) has also coordinated, in ‘conjunction with the BSDA, the community engagement and management of matters such as grievances arising from local communities and workers. The ESMS and ESMPs develop by Hassan Allam (HA) company for construction, and the ESMS / ESMPs for the majority of the projects on the Solar Park, are aligned with international standards including the IFC's Performance Standards, EBRD's Performance Requirements, and the Equator Principles. During the operational phase, 8SDA wishes to appoint an HSH company based on an open tender floated to the interested and qualified bidders in the month of July-August 2020. Based on an evaluation of the offers submitted, Health and Safety Home has been selected as the preferred bidder and LOA was issued to HSH on dated 4" November 2020, ‘Agreement Copy ~ Benban Sola Developers Assocation & Heath and 3 Salety Home DEFINITIONS AND ACRONYMS ‘Acronyms Definitions Bidder | vendor who responds to the invitation to bid for this tender L Business Day ‘Working Day, during working hours agreed upon between HSA and BSDA Business Pian | The plan produced by HSH and approved by BSDA | T me Benban Solar Developers Association BSA Representative ‘the person(s) appointed to represent BSDA in accordance with this | ‘Agreement [Charges “The sum payable to HSH in addition to the Costs Client BSDA ‘Commencement Date The Date of commencement of the provision of contracted services Confidential information| The content of this Contract and all secret or confidential | ‘commercial, financial, marketing, technical or other information of BSDA. ‘The Consultant that will be appointed by the "BSDA” to supervise Consultant the implementation of the Services by the HSH and the latter compliance with the Instructions of the "BSDA”. EBRD European Bank for Reconstruction & Development | FETC Egyptian Electricity Transmission Company EIB European Investment Bank Employee ‘An employee who is engaged in the performance of the Contract SMS: Environmental & Social Management System ESMP Environmental & Social Management Plan EAA Egyptian Environmental Affair Agency cas Environmental and Social Fee ‘The Fee statedin the Contract Agreement Unforeseeabie, extra ordinary event(s), beyond the control of the Force Majeure Parties to this Contract, which cannot be mitigated, and which has severe effects on the ability of a party to perform its obligations under this Contract. WM 7 Ome eon cna SI iim SH Health and Safety Home (FMC contractor) Fe International Finance Corporation Intellectual Property ‘Any patent, copyright (Including moral rights), database right, design right, registered design, trade mark or, service mark (whether registered or otherwise), domain name, know-how, utility model, unregistered design or any other industrial or intellectual property right subsisting anywhere in the world and, where relevant, any application for protection or proprietorship of any such rights Job Request A written request by BSDA PIs Key Performance Indicators Lenders International Financial Institutions that have financed the Developers on developing the Projects Ucar Local Content and Gender Action Plan New Service Provider ‘A new provider of services after the expiry or termination [or partial termination) ofthe services under this Contract REA New and Renewable Energy Authority (state-owned) Personnel Costs “The costs of employing the Contract Personnel and such costs shall include the personnels basic salary, performance related bonus, cash allowances for benefits and/or business use vehicles, employer's taxation and/or related labor costs, pensions, individual insurance costs (including but not limited to professional indemnity insurance), training, subscriptions, background and vetting costs and any other costs arising out the employment of the personnel asset out in the Scope of Service PPA Power Purchase Agreement Quarter (One of the quarter periods of three months ending on Sist of March or 30th of June or 30th of September or 31st of December in each Year during the term of this Contract. Apart from the first ‘Quarter which shall be the period from the Commencement Date nti the first to occur of the above dates and the final Quarter which shall be the period from the end of the previous Quarter until the date on which this Contract expires or is terminated ‘Schedule of Rates & Prices The schedule of rates and prices set out in the Particular Conditions, as may be updated, amended or replaced from time to time in accordance with the Contract, site The location where the Services are to be performed, or as may change from time to time by written natice from BSDA to HSH Projects Collective denotation ofthe plots assigned to the Developers in the Benban Site oem Operation and Maintenance ‘Scope of Services The scope of Services set out in the Technical Scope, as may be varied in accordance with the Contract ‘The Facility Management Services agreed upon between the two Services parties in the technical scope of work. These services include but ‘not inclusive of; Operation and Maintenance, cleaning, pest control, security... ete. and other services in the scope SA ‘Service Level Agreement set out in the relevant Annex that defines the level of service to be provided by the Service provider HSH. Term The period described in the Agreement, as may be extended in accordance with the Contract Variation ‘Any change to the Services directed by BSDA Termination Assistance The assistance to be provided by HSH to BSDA to maintain the service either on termination or expiration of the Contract Agreumect Copy ~Benban Solar Developer Associaton & Heath and ‘Shey Home 1.FORM OF AGREEMENT This Facilities Management Agreement ("This “Agreement") dated (dey) 26/08/2020 between Benban Solar Development Association (BSDA) (Fist party); Registration number 1643 for Year 2019 with its premises located at Aswan, Egypt, represented inthis agreement by Mr. Hesham Ahmed Mohamed Abd El GGheny El Gamal in his capacity as Chairman of BSDA, hereinafter called "BSDA” AND Health and Safety Home with its premises located at 16A Al Hoda Tower, Al Bahr Alazam Street, GIZA, Cairo represented in this agreement by Dr. Hany Moustafa Eimetwally Elsayed in his capacity as General Manager hereinafter called "FMC" BACKGROUND WHEREAS, “HSH” isa qualfed professional frm who offered to provide its services to BSDA and BSDA has accepted IN CONSIDERATION OF the matters described above and ofthe mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, “BSDA” ‘and "HSH" (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows: SERVICES 1.BSDA hereby agrees to engage HSH with services (the “Services"] mentioned in the Scope of Service 2. The Services will also include any other tasks which the Parties may mutually agree on, in ‘writing during the Agreement. 3. HSH hereby agrees to provide such Services to BSDA ‘4.1m the case HSH, upon the request of the BSDA, has performed and completed, to the full satisfaction of BSDA, any Section ofthe Services, prior to the date of signing this Agreement, such Section of the Services so performed shall be deemed to have been performed pursuant to this ‘Agreement and the Conditions thereof shall be applied on that Section of the Services. 1.0. CONTRACT AGREEMENT 1 ARTICLE 1: GENERAL ‘A."BSDA” wishes to engage "HSH “in the Facility Management Services” in accordance with the Terms and Conditions of the Agreement and The Agreement Documents. B. The Contract Agreement Documents consists of; Contract Agreement ‘= Particular Terms and Conditions ‘= General Terms and Conditions ‘+ _ The Authority's Tender Document, Project A14110.001 / 090813 dated 11th July 2020 ‘+ _ HSH's Bid Submission Document dated 2 September 2020 (Round 1) ‘+ HSH’s Bid Clarification Document dated 14" September & 29th September 2020 ‘+ HSH's discussion with Authority on 14" October 2020 + HSH's Revised Financial Offer dated 14" October 2020 (Round 2) © HSH's MoM with the Consultant dated 19" October 2020 ‘+ Appendixes A to H attached to the Agreement ‘+ The Financial and Technical Offers submitted by HSH (Round 1) © Commercial Data Form (Pricing Matrix) * Letter of award C.The above-mentioned documents forming the Agreement are to be considered as one indivisible whole. In the case of any discrepancies between the documents, the hierarchy of documents is in the ‘order mentioned above. D. “Health and Safety Home” hereby confirms that he has the expertise licenses and resources to provide the service of the Project in accordance with this Agreement and he is fully aware and acknowledges the services as defined in the technical scope and deemed to have agreed with and accepted all General ‘Specification and information provided here in as being sufficient to ensure reliable and safe operation E. Health and Safety Home will be engaged as an independent Service Provider. Nothing in the Contract, constitutes HSH as an employee, agent, partner, or joint venture of BSDA. F. Health and Safety Home acknowledges and agrees that it has no authority to incur and must not incur ‘any obligation on behalf of BSDA except with the express written instruction of BSDA. 1.2. ARTICLE 2: COMPENSATION This isa Fixed Price Contract including all related Taxes, Customs, Value Added Taxes A. Insurance, socialinsurances,reimbursables, and all other costs and expenses necessary for the performance and completion of the Services 8. HSH shall submit documentary evidence from the Social Insurance authority certifying that all its employees including all staf presumed to be working for the “Services” are covered under such insurance within 1 month from the Contract signing dat. Inthe case, HSH is unable to submit such documentary evidence; HSH shall submit a document evidencing the payment of the ‘contracting social insurance withthe Social Insurance authority in relation tothe project. C.The Contract Sum is considered based on the various Tender Documents being complimentary and interpreted on a collective basis. No one Section of the Tender document shall have priority cover the other. Any ambiguity or discrepancy shal be resolved and settled by “BSDA” who shall then notify HSH” thereon. D. BSDA agrees to pay Health and Safety Home (HSH) a lumpsum of EGP 153,959,256 ( One Hundred Fifty-Three Million, Nine Hundred Fifty-Nine Thousand, Two Hundred Fifty-Six Egyptian Pounds oniy) for executing “Operation & Maintenance works for Facity Management" at Benban Solar Park for a period of Sixty 60 months. ‘The stated Lumpsum price of EGP 153,959,256 includes HSH bid price plus 10% contingency which willbe upon BSDA request (the BSDA maintain a contingency for changes in scope or community service, extemal common visits oF inspections, Allocation of Lend for the Facil ity Management Works or related costs during project execution). The commencement date of the Facility Management Contract shall be 24th November 2020, E. BSDA agrees to pay HSH an onetime advance payment of 15% of the annual contract amount which shall be covered by bond/or Corporate Cheque drawn on major Egyptian bank and will be deducted from the monthly invoices in twelve installments. F, The above-mentioned amounts are based on the monthly fees stated herein which shall constitute the maximum monthly payment to be made by BSDA to HSH in accordance with the HSH's Scope of Service. The Services fees are payable via a cheque issued by BSDA to HSH upon the submission of a monthly invoice with the total fees of the services rendered. G. BSDA reserves the right to reduce the Monthly fees based on the achievement of the KPIs and financial matrix (Outlined in Section 6) and agreed upon with HSH. H. The fees forthe services are fixed for the duration of the Contract (5 years}. In case the Contract Is renewed with the same Service Provider, the two parties shall agree on an annual 11.3, ARTICLE 3: TERM OF THE AGREEMENT 'A. The termof this Agreement (the “Term") will begin on the date ofthis Agreement willremain in full force for five years and may be renewed by a mutual agreement. The Agreement may be terminated before the expiry of its Term in accordance with Article 2.10 of the General Conditions 114, ARTICLE 4: MODIFICATION TO THE AGREEMENT ‘A. Anyamendment or modification to this Agreement or additional obligation assumed by either partyin connection with this Agreement will only be binding i evidenced in writing signed by each Party or an authorized representative of each Party and attached to this agreement. 15. ARTICLE 5: LAWS AND REGULATIONS |A. Health and Safety Home (HSH contractor) acknowledges that the company is familiar with all laws, decrees, statutes, regulations of Egypt and the respective ministries, agencies, etc, Which are relevant tothe Works described in the Contract Documents. This Contract shall be governed by and construed in accordance with the Laws of the Arab Republic of Egypt. HSH shall in performing the Services, comply with all applicable laws, regulations and ordinances in force in Egypt applicable tothe Services. This Contract is written in the English Language “and all exchange of correspondences shall be written in Arabic. 1.6, ARTICLE 6: PERFORMANCE SECURITY A. Health and Safety Home shall submit the performance security bond with in thirty (30) days from signing of the contract document. HSH shall submit to BSDA 2 Bank Letter of Guarantee a5 an unconditional and irevocable Performance Security with a value equal to [fifteen per cent (15%) of the total yearly contract value fr the fist year and willbe reduced to ten per cent (1086) of the total yearly contract value forthe remining contract term] from a bank Certified by the Central Bank of Egypt. 8. The Performance Security shall be valid fr the whole duration ofthe Contract and any extension thereto and shall be renewed accordingly when necessary at HSH's cost. . The Performance Security shall be returned to HSH upon the completion ofall Services and the approval of BSDA for satisfactory performance of the Services and compliance ofall its obligations ._ IF si fails to provide the Performance Security as per the provisions of this Cause, BSDA.eserves the right to terminate the Agreement. E._ BSDA shall be entitled to recover from the Performance Security the value of any damages, defects, deficiencies, Consequential losses..ete. caused by HSH during the performance of the Services. 1.7. ARTICLE 7: ENTIRE AGREEMENT It is agreed that there is no representation, warranty, collateral agreement or condition affecting this ‘agreement except as expressly provided in this Agreement. IN WITNESS WHEREOF, the Parties have caused this agreement to be executed by their respective duly authorized representatives as of the date first written above: First Party: Benban Solar Developers Association, “BSDA” Name: Wishaa Sl Gamal. Postion: SOA Shetlrster tt nnn Signature: Date: DAUM VOLE cnn Second Party: Health and Safety Home ” FMC” Name: Position Signature Date: ‘Agreement Copy ~ Benban Sols Developers Assecition & Heh and " Safely Home 2.GENERAL TERMS AND CONDITIONS 2.0, THE SERVICES ‘he HSH shall perform the Services defined under this Contract and the Scope of Service in ‘accordance with the requirements stated hereunder. These Services shall include the overall management, co-ordination, administration and supervision for the effective and efficent realization of such Services. HSH will be fully responsible an¢ liable for the care and safe custody ‘and operation ofthe Site and their constituents during the execution of the designated Service(s) reference to the approved scope. ‘BHSH must have full knowledge ofthe Site, and all relevant procedures necessary to perform the Work. C_The Parties acknowledge @ relationship of mutual trust and confidence intended by this Contract ‘and shall cooperate one with the other in every respect to ensure effective performance and ‘appropriate compensation in return for that performance. D+ _HSHis committed to BSDA to provide the best skilsand management and to cooperate fully with SDA. HSH agrees to furnish efficient business administration an technical superintendence for Services, HSH undertakes to provide the Services in the best and soundest way and in the most expeditious and economical manner consistent with the interest of BSDA and Consultant to HSH. = HSH shall provide qualified and specialized engineers, technicians and subcontractors, subject to the provisions ofthis Contract, for the delivery of the Services according to the agreed upon SLA and KPIs. F- HSH is committed to submit the organization chart of those employees engaged in the provisioning of the Services. G-_HSH shall employ its direct workforce in the provision of Services and shall secure and maintain their respective requirements that are necessary for carrying out and successful completion of the Services including, but net limited to, transportation, accommodation, communication medical insurance required bylaw. 4 ome HSH shall assure its subcontractor’s adherence to the provisions concerning the workforce employment requirements. BSDA and/or Consultant may conduct interviews with HSH’s and The Sub Service Provider's al delay any employee, subcontractor, or associate engaged in performing the Services who, in BSDA’s opinion, is technical workforce; and, at its request, HSH shall replace with mi incapable, uncooperative or whose performance is perceived as unsatisfactory. Sets forth, indicatvely the details of HSH's organization and staffing as contemplated on the Effective Date ofthis Contract. HSH should be solely responsible for their staff HSH shal share their personnels qualifications with BSOA. HSH shall sign back-to-back agreements with its sub-service providers, including Nominated ‘Subservice Providers, which include provisions identical to that stipulated hereunder, as far 2s, they are applicable. HSH undertakes to provide the Services, to the best and full extent of his ability and with the professional sil, digence and care normally employed and exercised by firms of international reputation with respect to Facility Management Services and in accordance with the Terms and Conditions included in this Contract. HSH shall be responsible for the performance of the Services. HSH shall be fully liable for Site Equipment, Systems and Works if such fallure occurs due to HSH’s negligence or failure to perform the Services. In that event, HSH shal, on its own expenses and without any additional cost to Consultant/ BSDA, repair, replace, and/or fix to the satisfaction of BSDA, the affected elements and any other elements that have suffered any losses as 2 result thereof. In case HSH does not follow the agreement in rendering the services and/or isnot able to fulfil the needed repairs, BSDA may choose, at its own discretion, to employ a third party to repair, 1f necessary, replace such Site's elements and, in the event of which, the cost of such repairs and/or replacement shall be reimbursed by or deducted from by HSH's manthly invoice HSH should net employ sub-contractors other than these named in its proposal without prior written approval of the BSDA. HSH is able to use its own staff or sub-contractors named in its proposal, but it must seek BSDA approval for sub-contractors other than those proposed. 13 2.2. QUALITY OF SERVICES A; The services will be evaluated in accordance with the weight of each activity mentioned in the “Scope of Services” B- HSH shall perform the Services with promptness and diligence, and in accordance with sound technical standards and best practices approved by Consultant & BSDA and mentioned in the Service Level Agreement and the Key Performance Indicators set herein in this Contract, ‘The quality of HSH's performance hereunder shall be closely observed, monitored and documented by Consultant & BSDA in a monthly evaluation Form. Should the reviews indicate negligence or substandard performance or of low-quality level on HSH's side, BSDA shall be entitled to apply the provisions under Article “Service Delays and Penalties” D+ HSH shall, in performing the Services, comply with all laws, ordinances and regulations in force in Egypt applicable to the Contract as well as BSDA Safety, Health, Environmental, and Quality measures set herein in the Particular Conditions. E- Neither Party shall be liable to any failure to fulfl any ofits obligations insofar as such failure is. due to Force Majeure set herein in the particular conditions. F Nevertheless, should HSH be only partially affected by any of the aforementioned cases, it shall remain liable for the performance of those obligations not affected as such. 2.2. CHANGES IN THE SERVICES |A- ASDA, without invalidating this Contract, may order changes inthe Services that are within the general scope of this Contract and does not exceed the 20% from the total HSH’s invoice. These changes may consist of adeltions, deletions or other revisions. If such changes may occur and have @ consequential financial impact, 2 change of Services Timing, financial and/or time adjustment, will be negotiated accordingly before issuing a Change Order. B- Any, and all, such changes to the Services shall be authorized by an official Change Order signed by both Parties which shall be considered as amendment to this Contract. “4 ‘Any changes requested by BSDA which exceeds 20% of HSH invoice and/or is out of the scope of this Contract shall be deemed an amendment to the Contract and shall be made in writing upon the approval of the two parties. 2.3. SUSPENSION OF SERVICES a BSDA may, at its discretion, suspend (but neither terminate nor lead to termination) the performance of the Services, in whole or in part, at any time, by giving HSH a seven (7) Business Days prior written notice of such suspension, After such a suspension, HSH shall resume the full performance of the Services within 2 reasonable time when directed to do so by notice from BSDA. Reimbursement for additional direct costs and overhead costs incurred by HSH: ‘+ Insuspending the Services ‘+ during the period of suspension, and ‘© in reactivating the Services after the suspension period shall be mutually agreed upon between both Parties and paid by BSDA to HSH ‘The aforementioned does not, in any way, involve the suspension of works by BSDA due to HSH's fai re to carry out any orders to perform any provisions of the Contract, including and most important of which, but not limited to, BSDA’s Safety, Health, Environmental, Access and Security Policies. In such events, HSH shall, in addition to all other liabilities under this Contract, be fully liable for the repercussions of the delay that is caused by such suspension. 24, *BSDA” RESPONSIBILITIES au B. BSDA shall designate a Representative who shall be fully acquainted with the requested Services and be the Principle Point of Contact for HSH. ‘This representative shall also have the authority to act on BSDA’s behalf in elation to all matters identified by BSDA from time to time and notified to HSH. 15 During the term of this Contract, or in the event of addition of Site, end upon HSH’s request, BSDA will furnish HSH with relevant Site specification, manuals and relevant documentation, when available, in respect of the Site against signature of receipt by HSH. b+ Upon Hsl’s written request, BSDA shall provide such other information and data, when available, as necessary for the Services or as may be reasonably requested by HSH for the execution of the Services. ‘The information and data submitted to HSH under shall constitute integral part of the Contract. 2.5. PROPREITARY AND CONFIDENTIAL INFORMATION ‘Ae Any and all information acquired by one Party from the other, its employees, agents, or contractors, in the course of performing its obligations hereunder, is and shall remain confidential and the exclusive property ofthe Party disclosing such confidential information the “Disclosing Party") and shall not be used by the other Party (the "Receiving Party”) for purposes other than the execution of this Contract, except with the Disclosing Party's prior written consent. B- Each Party shall ensure that al of its employees, agents and contractors engage dealing with these Services of the confidential character of information are committed (in writing) not to ivulge any such information to third parties, for whatever reason or whatever form. Each Party shall limit access to the other Party's confidential information to its authorized ‘employees or sub-contractors, having 2 need to know an‘ is related to the Services performed Furthermore, neither Party shall publish or disclose such information to others, or cause or permit employees, agents or contractors to publish or disclose such information to others, without the prior written approval ofthe other Party. HH is responsible for procuring/ providing all the properties and assets needed by HSH ‘and/or the Sub- Service Providers to render and deliver the services under this Contract. E- Unless otherwise agreed in writing by both parties, HSH shall notify BSDA within sixty (60) days of receipt (or as otherwise agreed in writing between the parties) where any of BSDA ‘Asset{s) is not in good condition when received by or on behalf of HSH or 2 Sub- Service wM 6 provider. This Asset Condition Survey report shall be submitted during the mobilization phase to BSDA. F.BSDA shall permit HSH, its employees and Sub-Service Providers, including the Third-Party Service Providers, to access all parts of the Properties for the purpose of performing the Services and the Transition Services, G-_ HSH shall ensure that all On-Site Personnel comply with all BSDA policies and procedures relating to the use of BSDA property and assets which has been notified by BSDA to HSH In writing on of before the Commencement Date ofthe applicable Scope of Service and ensure that such On-Site Personnel shall keep themselves fully appraised of any updates or amendments to the same. 2.6. INDEMNITY AND INSURANCE ‘ke BSDA will not be, in any way, directly or indirect, held liable for any casualties, death of persons, loss or damage of property of third parties, accidents of any nature whatsoever caused by HSH or any ofits afllates or subcontractors. HSH shallindemnify, defend and hold harmless BSDA, its affllates, and their directors, agents and employees (the “Indernities") from and against any liability for injury to or death of persons, loss of or damage to property ‘of 8SDA and/or any third parties, insofar as such injury, death or damage arises out of or In the course of or by reason of the carrying out by HSH of its obligations under this Contract and to the extent that the same is due to any acts or omissions of HSH, its subcontractors or agents. Be HSH shall cause all its subcontractors to agree to indemnify BSDA, its affiliates, and thelr irectors, agents and employees (the “Indemnities") and hold them harmless from all claims for bodily injury and property damage that may arise from that HSH's operations. Such provisions shall be in a form satisfactory to BSDA. HSH shall defend any claim or sult brought against an Indemnity based upon any alleged indernnified injury, death, loss or damage, and shall pay all costs and expenses, including legel fees, in connection with such claim or sult, provided that prompt notice of such claim or suit ome Yu jegm Cray i Cie and requested reasonable assistance are given by the Indemnity. HSH’s liability hereunder Is. unlimited. HSH shall maintain during Contract Term with reputable Egyptian Insurance companies, ‘approved by BSDA, and to the satisfaction of BSDA all insurance policies required by law or which would normally be maintained for Services including, but not limited to, All Risk insurance, Third Party Liability Insurance, Performance Insurance and Transportation Insurance Policies. Feilure of HSH to effect and maintain the said insurance policies shall be considered as 2 material breach to Contract. These Insurance policies will not by any means limit or invalidate HSH’s responsibilities and liablities under the Contract. “The insurance Policies shal be issued and be in effect within one month from date of signing the Contract. HSH shall provide, immediately upon issue and effect, BSDA, with copies ofthe Insurance Policies and shall pay at due time the premiums of such Policies, providing BSDA with copies of the receipts evidencing these payments within 48 hours of effecting the payments, #f filed, BSDA in the first case shall hold payments due to HSH and in the second case, BSDA shall have the right to pay the premiums and deduct the same from payments due to HSH HSH shall officially enforce the Contractor's Social Insurance, Performance Insurance and public Liability insurance within Fiteen (15) business days from the start date ofthe execution of any operation and shall pay all contributions in due time, HSH shal strictly comply with the requirements of Socal Affairs Minister Decree no. 74 for year 1988. BSDA has the right at any time during the Contract Term to withhold, off-set or deduct from amounts due to HSH any amounts that HSH is liable for towards the Social Insurance Authority under this Contract without notice to HSH, if HSH failed to provide BSDA with the receipts evidencing these payments to the seid Authority in 2 timely manner. Upon payment of these amounts to the said Authority by BSDA, on behalf of HSH, BSDA shall provide HSH withthe evidences of these payments. Payment of these amounts shall not release HSH from its responsibilities and liabilities under Egyptian Law and the Contract towards the Social Insurance Authorities. HSH shall build and institute the EHS & Q Plan which shall take into account all BSDA's policies ‘and requirements and meet all prevalent EHS policies and industry best practices during the ‘term of Contract, which are accounted as an integral quality factor. BSDA shall not be held responsible for any repercussions of HSH's neglect to abide by the said Safety Policy, especial should any incident arse as a result thereof. I there is any breach of these Policies, HSH is obliged to immediately rectify such breach. BSDA reserves the right to suspend HSH's performance from the relevant part ofthe Services, should HSH perform a material breach of these Policies or any part thereof. HSH shall be solely held liable for all the consequences arising out of the said material breach and the subsequent suspension. Lisi shall commit to BSDA’s Environmental Policy and adhere to the Environmental Legislation Law No. 4/1994 and any other industry standards that support the environment and help the prevention of pollution. ‘To the extent permitted by law, Terms and Conditions of this Contract shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest, SDA shall not be liable for any loss of profit, loss of use, , loss of contracts, and/ or for any indirect incidental or consequential damage that may be caused by HSH. sH must obtain an appropriate policy of Performance Insurance and must maintain that policy for the term of the Contract. The policy must be for an amount not less then 10,000,0006P in respect of any single occurrence HSH shall procure the Insurance policies referred to inthis Clause, with a waiver by the insurer of all rights of subrogation they might be able to exercise against BSDA or any of ts consultants, servants, employees and/or agents. HSH must ensure that any subservice providers have similarly insured thelr employees. ‘Third Party Liability Insurance being a coverage in respect of death or injury of persons and/or loss of or damage to property in respect of motor vehicles used by HSH in connection with carrying out of the Work or the remedying of defects therein. HSH shall ensure that Sub-Service Providers maintain such insurance in respect of motor vehicles used by them. Such insurance shall provide an unlimited indemnity for death and/or overs Assocation & Heath and injury to persons and the equivalent of not less than 1,000,000EGP for loss of or damage to property which shall be extended as may be necessary cover any additonal cover required by statutory requirements in the Country. 2.7. COMPENSATION AND FEES. ‘Ac The fees mentioned in this contract are fixed throughout its validity period and are inclusive of alltypes of taxes, fees, social insurance, and stamps prescribed in accordance with Egyptian laws. HSH shall submit monthly invoices with the completed Services authorized and approved by Consultant/and or BSDA. Unauthorized Payment lcither HSH nor any ofits directors, agents or employees shall pay or receive from any agent, employee or contractor of Consultant/BSDA any rebates, gifts oF entertainment, or any commissions or fees. HSH shall promptly notify consultant/BSDA of its knowledge or discovery of any violation of this section changes: Ifa substantial Change to the Services is agreed upon in writing by Both Parties in accordance with Article2.2 “Changes in the Services", an adjustment to the Fixed Fees and/or Reimbursements, if applicable, shal take place accordingly as 2 result of such Change subject ‘to mutual agreement between both Parties. Withholding Tax« 'BSDA, in effecting the payments as outlined hereunder, shall deduct that percentage of withholding taxes which may be required to be deducted by the Tax Law and shall remit same tothe Tax Authority for HSH’s account. BSDA shall provide HSH with evidence cof such payment, in accordance with the said Tax Law unless HSH provides BSDA with sufficient legal evidence that HSH is not subject to such tax. Asa result of a review, the parties may decide to amend or not to amend any or all of the rates and prices, Any such amendment must be in writing and signed by both parties. 2.8, PAYMENT 2.8.1 For the management plans and the one time and annual jobs: the HSH shall successfully complete the work, submit the report/s with the invoice/s to “Consultant”. 2. “Consultant” shall accept the report/s and the related invoices. Payment/s will be made by the "BSDA”. 2.8.2 For the monthly invoices for the monthly services: | HSH shall submit to “Consultant” the monthly report after successful completion of Services, 2 monthly invoice detalling the Services provided and invoicing hundred percent (100%) of the respective amounts due according to the financial matrix KPI's scoring. “Consultant” shall accept the monthly report, deduction (if required), the monthly invoice and make a report to “BSDA” to approve the monthly invoice. 2.83 Payments will be made by BSDA to HSH against HSH’s invoices within Sixty (60) calendar days from the receipt of acceptable invoice by Consultant/BSDA. The invoice shall include the documents evidencing Consultant /BSDA’s approval to the Services (technical supplements) in accordance with Contract requirement 28.4 In the event BSDA in good faith disputes a portion of an invoice, BSDA shall pay the undisputed portion within the said Sixty (60) days period or within twelve (12) calendar days from HSH's submission of a credit note whichever is later. 2.8.5 BSA will advise HSH of the disputes in the invoice, if any, through a written notice within a period of ten (10) working days from the date of receiving the invoice by BSDA, requesting from HSH to submit a credit note with the disputed amount. 2.8.6 If HSH felled to submit the requested credit note to BSDA within ten (10) working days {ror receiving the said notice, the said invoice will be rejected and considered as if it was not submitted. HSH’s submission of the said credit note shall nt in any way mean that HSH waives its right to recover the disputed amount. a 29, 287 288 289 28.10 28.21 28.12 2813 All disputed portions shall be discussed by both Parties and Consultant amicably and shall be either paid by BSDA to HSH within Sixty (60) calendar days of reaching an agreement thereof or otherwise waived by HSH. Where 2 dispute or claim is not resolved, it shall be referred to arbitration by a single arbitrator to be selected by agreement between the parties HSH requiring referral to arbitration shall notify BSDA, In writing, thereof, not later than thirty calendar days after the mediator has expressed his opinion, failing which the mediator’s opinion shall be deemed to have been accepted by all Members and shall be put into effect ‘ll disputes arising out of or in connection withthe present Contract shal be finally settled under the Rules of Arbitration of Cairo International Centre for Arbitration by one arbitrator appointed in accordance with the said Rules. The place of arbitration shall ben Egypt and the language of the arbitration shall be in Arabic. HSH will maintain complete, clear and accurate records of all Reimbursements and of all ‘time worked by its personnel in the performance of the Services hereunder. All such records shall be maintained in accordance with recognized commercial accounting practices. ‘ASDA shall have the right to examine and audit such records, up to four times 2 year, during HsH's working hours following an agreed upon prior notice date. Said records shall be maintained for at least (3) years after the respective Service completion date. SERVICE DELAYS AND PENALTIES A. Service Delay: HSH shall use its best endeavours to meet the Service terms mentioned herein the SLA 8. If HSH failed to meet the qui of Services as per the SLA as per the report raised by “Consultant”, BSDA shall then reflect such fallure on the respective monthly review report in accordance with the provisions of the Article "Quality of Services” and the KPIs. Sa pers Assolaton & Health and | 22 ome pom chia SI C.BSDA reserves the right to impose the respective penalty scheme outlined in the “Key Performance Indicators” without referring to HSH or obtaining arbitral award, bp. Notwithstanding the aforementioned, f HSH fals to deliver the service as per the SLA and this fallce persists for two days from the date on which BSDA notifies HSH of the subject default, SDA thal then have the right to assign 2 third party, without referring to HSH, to rectify the subject failure. HSH shall bear all the costs and expenses pertaining to this asignment and the results thereof and shall fully cooperate, upon BSDA's request, with the assigned party to accomplish the assigned tasks on a timely and qualitative manner. Service Quality: The quality of SH's performance shall be evaluated according to the provisions of Article “Quality of Services”. ff the quality of HSH’s performance is determined by “Consultant” as substandard or of low quality level under Article “Quality of Services” then, BSDA shal have te right, in ation to any ther rights stipulated under the Contract, without referring to HSH or obtaining an arbitral ‘award, to impose the Service Penalty Scheme included under the KPIs. {G. Notwithstanding the, BSDA shall isve @ prompt notice of “Substandard Performance” to HSH referring to the SLA. 1H. HSH shall exert all efforts to remedy the situation before issuance of the subsequent monthly aeport. Failure of which, HSH shall be considered in a material breach tots obligations under the contract and BSDA shall then have the right to terminate the Contract for HSH’s material breach hereunder, Notwithstanding the aforementioned, if Service, or part thereof, be technically rejected, then HSH’s invoice forthe said Service shal be rejected accordingly and HSH will not be paid forthe said Service tlt is technically accepted by “Consultant”/BSDA 2.10.TERMINATION a BSDAmay terminate the Contract, effective immediately, without liability if HSH commits any materal that breach any ofits obligations set forth hereunder provided that HSH does not rectify such breach within Ten (10) ealendar days after receipt of prompt written notice, or where rectification cannot reasonably be completed within Ten (10) calendar days, initiate steps to rectify breach within Ten (10) calendar day and complete such rectification within thirty (30) calendar days from receipt of written notice. Termination under this Clause shall be without prejudice to any other remedy or rights of The Company. For the avoidance of doubt, if at any time HSH's performance as measured by the Key Performance Indicators is assessed to be extremely poor (total KPI's score less than 85%) for two consecutive months or for any four non- consecutive months per ye2r, HSH will be deemed in breach of the Contract, and BSDA will be entitled to terminate the Contract. ‘Termination will not discharge either Party from performing any obligation or from payment of sums already due or becoming due by reason of the termination. In the ‘event this Contract is terminated for any reason, BSDA shall pay HSH as follows: ‘= Forall Services satisfactorily completed and payments due through to the date of termination ‘+ For the works in process on a percentage of completion basis and upon acceptance of “Consultant” /BSDA. = The said payments may be withheld by BSDA to settle HSH's liabilities, if any, ‘which are due on the date of settlement. Either Party may have the right to terminate the Contract with a 60 (Sixty) days’ notice inthe event of force majeure which lasts fora period of more than 90 (Ninety) calendar days. Upon termination of this Contract for any reason, the following shall take place: +The relationship of the two Parties shall cease, and any rights or licences granted under or pursuant to this Contract shall cease to have effect and to the extent expressly provided for in this Clause # Any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect 24 «Each Party shall promptly return to the other Party (or ifthe other Party so requests by notice in writing) all properties in its possession including all of the other's Confidential Information and shall make no further use of such Confidential Information without prior written approval by the other Party ‘s HSH shall vacate BSDA’s properties and any office and/or any other space(s) provided by BSDA in accordance with the provisions of this Article fin any case, termination shall take place without the need to either take any further procedures or to obtain an arbitral award. 4g. If either Party wishes to terminate this Agreement, it may do s0 by providing one hundred eighty (180) days’ written notice to the other Party. In case of such termination, the terminating Party will bear allits own and the other Party's direct and indivect costs, including bank commitments, contracts commitment, and other items associated with or affected by the termination. fh. Celing on Uabilty: The total lability Incurred by HSH under this Contract with respect to damages diminution, fines, penalties, amounts offset, or any other similar amounts shall be expressly subject In aggregate to acelin of 18,000,000 Egyptian Pounds (Only Eighteen Million Egyptian Pounds) or the amounts pald by BSDA hereunder on the date of assessment, whichever is greater. Should the liabilities of HSH hereunder exceed this ceiling value, HSH shall then be considered to have materially breached the Contract and BSDA shall have the right to terminate the Contract by 3{three) months’ notice to HSH, HSH’s liabilities under Article “indemnity and insurance”, oF in cases of gross negligence or wilful misconduct, are unlimited and are not governed by the said celling value. i. On termination or expiry of the Contract, HSH must deliver to BSDA all material ang ilable by 8SDA to HSH, in soft and hard copy ofall documents 25 BF rawings pro¥uced by HSH in relation to the Project. ‘Agreement Copy —Benban Sola Developers Astociation & Heath an Sey Heme = 2.21. TERMINATION ASSISTANCE In case the Contract is terminated, HSH shall provide to “Consultant”/BSDA all management records relating to each ofthe applicable Properties ina format compatible with BSDA’s com puter system. bas part of the provision of Termination Assistance to BSDA, HSH shall also provide Consultant/BSDA with copies of al relevant legal documents and any other records relating to the properties which HSH has under its possession or control in an ordered and indexed fashion in electronic and hard copy format. . From the date of issuance of the Termination Notice of this Contract, HSH shall co-operate with ‘and/or any New Provider of the Services appointed by BSDA in ensuring the smooth handover and continued running of the Services during such handover to New Provider. HSH shall perform the services set out in this Agreement. 4. No later than 6 (six) months prior tothe expiry ofthis Contractor within 7 days of receipt of any ‘Termination Notice in the event this Contract is terminated early, the Parties shall hold 2 review meeting 2t which both partes’ Representatives shall be present. The sole purpose of which willbe to discuss arrangements for the hand-over of the Services from HSH to @ New Provider, under 1DA’s supervision. If termination takes effect sooner than 6 months ater the Termination Notice, HSH shall continue to attend such meetings and provide the Termination Assistance envisaged in this Clause for a period of 6 months from such Termination Notice. @. By the end of this Contract or onits termination, BSDA will ascertain the extent to which (if any) the Facility has not been maintained in accordance with this Contract. A list of such defects will be provided to HSH. {HSH appointed for the new contract shall be required in conjunction with BSDA/Consultant to lst any further defects within the first sixty days of the new contract and the lst of such further defects provided to HSH. Upon receipt of the two lists, HSH shall have a period of 14 days from receipt of each, to dispute any items, and any such disputed item(s) will be referred to BSDA in the aching an agreement. fg. After either or both of the 14 days period referred to above (disputed items apart) HSH shall have a further period of seven days, in respect of each list of defects, commence rectifying the defects and proceed diligently to complete the remedial works to the standards as defined in the Contract. n the event that the necessary works remedying the agreed defects are not commenced within the seven days period referred to above, HSH shal forfetthe right to carry out such works and the new Service Provider shall cary out the works and HSH shall immediately pay to BSDA proper costs of such works. h tn respect of any disputed defects (being those first referred to BSDAY), the new Service Provider shall at a proper cost ané on written instruction from BSDA forthwith remedy such disputed defects. HSH shall reimburse to BSDA the proper cost of such works this is elther agreed between BBSDA and HSH or if HSH is found to be liable under this Contract. 2.12. CONTRACT COMPLETION a. Upon the Contract end date, HSH shall continue to provide his services as requir d by BSDA for 2 period of not less than one months to assist in familiarizing BSDA and/or ‘the new Service Provider with the operations on site. b. Prior to Contract end date HSH shal! © Return the fully written up logbooks to BSDA/Consultant, and provide in a written report, any other information that has been found necessary to the proper operations and maintenance of the installations...etc. ‘= Provide all maintenance records and site history gathered during the Contract, in appropriate formats respecting the systems of Consultant/BSDA, ‘+ Certify in writing that all repair works classified as Emergency, has been identified and completed prior to the end date of the Contract. Mak@-wyailable all spare parts with prices for BSDA to purchase. BSDA shall ‘Agreement Copy ~Senban Solar Developers Assocation & Heath and \ 27 senses oo oe 2.13. NOTICES ‘Any notice required under this Contract shall be in writing and shall be hand delivered, against dated signature, to the authorized representative ofthe respective Party sent by registered mail & EMAIL, return receipt requested, by special courier with acknowledgement of receipt or by Facsimile confirmed by one of the aforementioned ways. N shall be made to the following addresses unless either Party shall by ike notice designate another address at which it shall receive notices: 8SDA/Consuitant Mr. Hesham Ahmed Mohamed Abd El Ghany El Gamal Chairman. BSDA Aswan. Egypt (BSDA/Consultant Representative details) HSH Dr. Hany Moustafa Elmetwally Elsayed 116A Al Hoda Tower, Al Bahr Alazam Street, GIZA, Cairo (HSH Representative details) Either Party may, by such notice, request the other Party to send copies of subsequent notices to other addresses. 'A Party may send an effective notice (and other directions and communications) if itis in ‘writing, signed and either left at the addressee's address or sent to the addressee by m: or fax. ‘A notice (and other documents) will be deerned to have been given and received: + if addressed or delivered to the relevant address in the Form of the Agreement ‘or last communicated in writing to the person giving the notice; ©. Notices (and other directions and communications) must be served on the Parties at the addresses set out in the Form of the Agreement, 2.14, ENTIRE AGREEMENT ‘This Contract represents the entre agreement between the Parties with reference to the subject ‘matter hereof and supersedes any prior agreement or understanding on the same subject matter. All the Articles of tis Contract are essential. Any delivery installation, service etc. required by one single document shall be executed to the same extent and purpose as those required by al documents. The misplacement, ation, or omission of a word, sentence, or character shall not change the intent of any document(s) from their intent where that is obvious by reasonable interpretation of the Contract documents as 2 whole. These documents are intended to be complementary to one anther, however, incase of conflict, ambiguity or discrepancy between the provisions set forth in said documents, this Terms and Concitions provisions shall prevail tn the event that the subject conflict, ambiguity or discrepancy took place in the Contract technical supplements provisions, the provisions determined then solely by BSDA shall prevail 2.15. ASSIGNMENT HSH shall not assign to any third party, all or part of this Contract or the performance of any duties ‘there-under, without the prior written approval of Consultant /or BSDA unless otherwise enforced bby any part of this Contract. In the event that BSDA agrees to this, HSH will continue to be responsible in conjunction withthe assignee for the work it wll perform, 2.36, SEVEREABILITY AND WAIVER IF any provision, oF portions or applications thereof, of this Contract are held unenforceable or invalid, the validity and enforceability ofthe remaining provisions shall not be affected thereby. Failure by either Party at any time to enforce any of the conditions of the Contract shall not be construed as @ waiver by that Party nor afect that Party’s right to take any subsequent action. {any of the Parties so chooses to waive any ofits rights fora specific situation this shall be in writing ‘an exceptional case and does not entail a consequential waiver of this WAM 20 2.17, DISPUTE RESOLUTION 2 Any dispute arising from or in connection with the interpretation or implementation of this Contract shall be settled amicably via negotiations between the two parties within thirty days ofthe beginning ofthe dispute. b. Within 3 days after the receipt of a Ni of Dispute, the parties will eonvene at least once to amicably resolve the dispute andor to agree on methods of doing so. At such meeting each ofthe parties must be duly represented by one ‘or more person having authority to do so. ©. If the period has elapsed without the parties having reached an amicable settlement for the dispute, either party may refer the dispute to arbitration in accordance with the arbitration Rules of the Cairo Regional Centre for International Commercial Arbitration. 4. The parties agree to form an arbitra tribunal consisting of three arbitrators each appointed by an arbitrator. The two arbitrators shall choose the arbitrator. n case of cisogreement, the arbitrator shall appoint the arbitrator according tothe rules in force. The arbitration shall be in Cairo. Six months from the date of the first ‘session, and the judgment issued by the arbitral tribunal shal be final and binding to both parties an shall not be challenged by ordinary means. fe. tis agreed by the parties that the arbitral tribunal may issue temporary orders ‘or precautionary measures at the request of either party. f. Any Notice of Dispute shall be deemed duly served, in the case of a ni

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