Draft form contract 2013

Except as set forth in the first sentence of this Section 2.6, if such uncovering and subsequent inspection pursuant to this Section 2.6 shall reveal that such portion of the Work compli

THIS CONTRACT is dated [•] 2013 and made between:

(1) AES-VCM MONG DUONG POWER COMPANY LIMITED of Unit 302,

3rd Floor, Asia Tower, No 6 Nha Tho Street, Hanoi, Vietnam (the Employer);

Applicable Laws means any and all treaties, acts, statutes, laws, codes, standards,

regulations, permits, ordinances, rules, judgments, orders, decrees, directives, or any similar form of decision or determination by, or any interpretation or administration

of any of the foregoing, by any Government Agency as may be in effect from time to time, including all applicable anti-corruption, anti-money laundering, anti-terrorism and economic sanction and anti-boycott laws, including the U.S Foreign Corrupt Practices Act

Acceptable Credit Provider means a bank or financial institution which has issued a

Credit Support Document that has:

(a) a foreign senior unsecured rating of at least [Aa3] by Moody’s Investors

Service, Inc (Moody’s) and a foreign long - term issuer rating of at least

[AA-] by Standard & Poor’s Rating Services, a division of McGraw-Hill

Companies, Inc (S&P), if rated by both Moody’s and S&P, or

(b) if rated by either Moody’s or S&P but not both, a foreign senior unsecured

rating of at least [Aa3] by Moody’s or a foreign long-term issuer rating of at least [AA-] by S&P

Bill of Quantities means the bill of quantities in respect of the Works as set out in Schedule 10

Business Day means any day other than a Saturday, Sunday or legal or bank holiday

in Vietnam

Commencement Date means the date for commencement of the Works (or the

balance of the Works, as applicable), being the Business Day after receipt by the Contractor of the Notice to Proceed or such later date as may be agreed between the Employer and the Contractor and stated in the Notice to Proceed

Contract Price means the sum of VND[•], as the same may be adjusted in accordance with this Contract

Contractor's Permits means all permits, licences and approvals (other than the

Employer Permits) which are required for the Works (including those listed in Part B

of Schedule 5)

Contractor's Documents means the calculations, computer programs and other

software, drawings, manuals, models and other documents of a technical nature supplied by the Contractor under this Contract

Contractor's Equipment means all apparatus, machinery, vehicles and other things

required for the execution and completion of the Works and the remedying of any defects However, Contractor's Equipment excludes Temporary Works, Plant, Materials and any other things intended to form or forming part of the Permanent Works

Contractor's Personnel means any person appointed from time to time by the

Contractor to act on behalf of the Contractor for the purpose of the Contract and all personnel whom the Contractor utilises on Site, who may include the staff, labour and other employees of the Contractor and of each Subcontractor; and any other personnel assisting the Contractor in the execution of the Works

Cost means all expenditure reasonably incurred (or to be incurred) by the Contractor,

whether on or off the Site, including overhead and similar charges, but does not include profit

Credit Support Document means any of the Advance Payment Security and

Performance Security

day means a calendar day and year means 365 days

Defects Notification Period means the period of 365 days from the date on which the

Works or Section is completed as certified under Clause10.1

Dong or VND means Vietnamese Dong

Drawings means the drawings for the Works as set out in Schedule 8

Employer’s Liability Insurance means a type of insurance provided by Contractor for its employee(s) as set out in Schedule 16

Employer Permits means those permits, licences and approvals which are listed in Part A of Schedule 4

Employer’s Risks means:

(a) war, hostilities (whether war be declared or not), invasion or act of foreign

enemies;

(b) rebellion, terrorism, revolution, insurrection, military or usurped power, or

civil war, within Vietnam;

(c) riot, commotion or disorder by persons other than the Contractor's Personnel,

within Vietnam and affecting the Site and/or the Works;

(d) munitions of war or explosive materials within Vietnam and affecting the Site

and/or the Works, except as may be attributable to the Contractor's use of such munitions or explosives;

(e) ionising radiations, or contamination by radio-activity from any nuclear fuel,

or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such an assembly, within Vietnam and affecting the Site and/or the Works, except to the extent to which the Contractor may be responsible for the use of any radio-active material;

(f) pressure waves caused by aircraft or other aerial devices travelling at sonic or

supersonic speeds;

(g) use or occupation by the Employer of any part of the Works, except as may be

specified in this Contract;

(h) any operation of the forces of nature affecting the Site and/or the Works,

which was unforeseeable or against which an experienced contractor could not reasonably have been expected to take precautions;

(i) any breach by the Employer of this Contract;

(j) any change in the Laws of Vietnam, or any change in the manner in which the

Laws of Vietnam are applied, after the date of this Contract; and

(k) losses arising out of the Employer's right to have the Permanent Works

executed on, over, under, in or through any land, and to occupy this land for the Permanent Works

Final Time for Completion means the date that is [180] days after the Time for

Completion

Financing Parties means any and all secured or unsecured lenders, security holders,

note or bond holders, lien holders, investors, equity providers, holders of indentures, security agreements, mortgages, deeds of trust, pledge agreements and providers of swap agreements, interest rate hedging agreements, letters of credit and other documents evidencing, securing or otherwise relating to the construction, interim or long-term financing or refinancing of the Project, and others providing any construction, interim or long-term financing or refinancing or political risk insurance for the Project, and any trustees or agents acting on their behalf; and the legal successors in title to each of these persons

Force Majeure means as defined in Clause14.1

Good Industry Practice means the exercise of that degree of skill, diligence, prudence

and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor:

(l) seeking in good faith to comply in a timely manner with its contractual

obligations;

(m) complying with all Applicable Laws; and

(n) engaged in the same type of undertaking and under the same or similar

circumstances and conditions as that in which the relevant matter arises

Goods means Contractor's Equipment, Materials, Plant and Temporary Works, or any

of them as appropriate

Governmental Agency means any government or any governmental agency,

semi-governmental or judicial entity or authority (including, without limitation, any stock exchange or any self-regulatory organisation established under statute)

Key Personnel has the meaning set forth in Clause 3.4.1

Laws means all national (or state) legislation, statutes, ordinances and other laws, and

regulations and by-laws of any legally constituted Governmental Agency

Limited Notice to Proceed or LNTP means a notice substantially in the form of

Schedule 3

LNTP1 Commencement Date means the Business Day after receipt by the Contractor

of the Limited Notice to Proceed in relation to the LNTP1 Works or such later date as may be agreed between the Employer and the Contractor and stated in that Limited Notice to Proceed

LNTP1 Works means the works and services specified as such in the relevant LNTP LNTP2 Commencement Date means the Business Day after receipt by the Contractor

of the Limited Notice to Proceed in relation to the LNTP1 Works or such later date as may be agreed between the Employer and the Contractor and stated in that Limited Notice to Proceed

LNTP2 Works means the works and services specified as such in the relevant LNTP Major Subcontractor means any Subcontractor:

(a) described in Schedule 13 as a Major Subcontractor; or

(b) whose Subcontract compromises Work specified in Schedule13.for

performance by a Major Subcontractor

Materials means things of all kinds (other than Plant) intended to form or forming

part of the Permanent Works

Notice to Proceed or NTP means a notice substantially in the form of Schedule 4 Party means the Employer or the Contractor, as the context requires

Performance Security means a performance security in the form of Schedule 2 Permanent Works means the permanent works to be executed by the Contractor

under this Contract

Plant means the apparatus, machinery and vehicles intended to form or forming part

of the Permanent Works

Power Facility means those components comprising a nominal 1120 MW net

coal-fired power plant and all facilities, systems and ancillary equipment relating thereto to

be located on the Project Site

Project means, collectively, the design, engineering, procurement, permitting,

fabrication, construction, installation, security, financing by the Employer, commissioning, start-up, testing, completion, ownership, operation and maintenance

of the Power Facility and all activities incidental thereto

Project Site means the areas designated as such in Schedule 9

Quality Assurance Plan means as defined in Clause 3.11

Section means a part of the Works specified as such (if any) in the Specification Site means the places where the Permanent Works are to be executed and to which

Plant and Materials are to be delivered, and any other places as may be specified in this Contract as forming part of the Site

Specification means the specification for the Works as set out in Schedule 7

Subcontractor means any person named in this Contract as a subcontractor, or any

person appointed as a subcontractor, for a part of the Works

Taking-Over Certificate means a certificate issued under Clause 10.1

Temporary Facilities means temporary works and services as set out in Clause 3.10 Temporary Works means all temporary works of every kind (other than Contractor's

Equipment) required on Site for the execution and completion of the Permanent Works and the remedying of any defects

Tests on Completion means the tests which are specified in this Contract or agreed by

both Parties or instructed as a Variation, and which are carried out under Clause 9 before the Works or a Section (as the case may be) are taken over by the Employer

Time for Completion means [required date for completing the Works or a Section (as

the case may be) to be inserted]

Variation means any change to the Specification or the Works which is instructed or

approved as a variation under Clause 12

VAT means value added tax and any other tax of a similar nature whether charged in

Vietnam or elsewhere

Warranty Period means as defined in Clause 12.2

Works mean the Permanent Works and the Temporary Works, or either of them as

appropriate

1.2 Interpretation

Unless the context of this Contract otherwise requires, the following rules of interpretation shall apply to this Contract:

(a) the headings contained in this Contract are used solely for convenience and do

not constitute a part of this Contract, nor should they be used to aid in any manner to construe or interpret this Contract;

(b) references to any contract, agreement or document (including this Contract)

shall be construed as a reference to such agreement or document as the same may be amended, modified, supplemented or restated;

(c) references to any Law, permit, licence, approval, policy or guideline shall be

construed as a reference to the same as it may have been, or may from time to time be, amended, modified, supplemented or re-enacted; and

(d) references to any person shall be construed as a reference to such person’s

successors and permitted assigns

2 THE EMPLOYER

2.1 Access to Site

(a) Subject to paragraph (b) below, the Employer shall provide the Contractor

with right of access to, and possession of, the Site on the Business Day after receipt by the Contractor of the Notice to Proceed or such later date as may be agreed between the Employer and the Contractor and stated in the Notice to Proceed The right of access and possession may not be exclusive to the Contractor

(b) The Employer shall not be obliged to give the Contractor access to the Site

unless the Contractor:

(i) has obtained all permits, licences and approvals required to access, possess and perform the Works on the Site (other than permits, licences and approvals which are listed in Part A of Schedule 4); (ii) has delivered to the Employer the advance payment security and the stated and undrawn amount of such advance payment security is in

aggregate not less than the principal amount of all advance payments (howsoever defined) then outstanding under this Contract;

with this Contract; and (iv) has delivered to the Employer evidence of the insurance required to be maintained by the Contractor in accordance with Clause 18.2

2.2 Permits and licences

The Employer shall:

(a) obtain and maintain the Employer Permits; and

(b) cooperate with the Contractor in connection with the Contractor’s efforts to

obtain the Contractor Permits

2.4 Employer’s Right to Attend Contractor Inspections

Contractor shall notify Employer of any significant testing or significant inspections

of the Work or any portion thereof no less than (a) twenty-one (21) days in advance of such testing or inspection, for any testing or inspection outside the Site or the Work Areas, and (b) [forty-eight (48)] hours in advance of such testing or inspection, for any testing or inspection at the Site or the Work Areas If Contractor has provided such notice to Employer, then Contractor shall have the right to perform such testing

or inspections on the date(s) set forth in such notice In the event such testing is rescheduled, Contractor will promptly notify Employer of the re-scheduled date of the testing Employer will have the right to be present at all such inspections and testing

as reasonably determined by Employer In the event that such inspections and testing reveal that the progress and quality of the Work is not in accordance with the Contract Documents or the Baseline Schedule, Employer will be entitled to make recommendations to Contractor for the purpose of remedying such deficiencies or take actions as set forth in Section 2.5

2.5 Inspection of and Correction of Work

At any stage of completion, Employer or its representatives will have the reasonable right to have access to and to inspect the Work on the Site or on the Work Areas and,

on reasonable notice to Contractor, off the Site If Employer’s inspection reveals any material non-compliance with the Contract Documents or any other defects in any

portion of the Work, then upon written notice from Employer, Contractor will promptly stop such defective Work and correct all such defective or non-compliant Work, If Contractor fails to initiate correction of the defective or non-compliant Work within [five (5)] days of Employer’s notification thereof or thereafter fails to diligently pursue correction of the defective or non-compliant Work, then Employer may, without prejudice to any other remedy Employer may have, (i) order Contractor

to suspend (in part or in whole) the performance of the affected or related Work, until the cause of such failure has been eliminated or corrected, provided that the right of Employer to suspend Contractor’s performance of the affected or related Work (in part or in whole) will not give rise to any duty on the part of Employer to exercise such right for the benefit of Contractor or any other Person and (ii) if such defective Work is materially non-compliant with the requirements of this Agreement, correct such defective Work Employer’s exercise of its rights under this Section 2.5 is without prejudice to any other right or remedy Employer may have, and Employer’s correction of such defective or non-compliant Work will not relieve Contractor of its obligations under this Agreement All costs and expenses related to the corrective actions taken by Employer will be for the account of Contractor, and Contractor will promptly reimburse such amounts to Employer

2.6 Right to Uncover Work

If, prior to inspection by Employer, Contractor covers Work (i) that was to be inspected by Employer prior to covering pursuant to the Contract Documents or (ii)

in relation to which Employer has given Contractor reasonable notice that it will be inspected prior to covering, Employer shall have the right, at Contractor’s expense, to order the Work uncovered for inspection If Employer requests at any time before Substantial Completion, upon reasonable notice and for good cause, Contractor shall remove or uncover finished portions of the Work After examination, Contractor shall restore such portions of the Work to the standard required by this Agreement If any portion of the Work so exposed or examined pursuant to this Section 2.6 is not in compliance with this Agreement, the expense of uncovering and replacing the covering, or replacing the parts removed, shall be at Contractor’s expense Except as set forth in the first sentence of this Section 2.6, if such uncovering and subsequent inspection pursuant to this Section 2.6 shall reveal that such portion of the Work complies with this Agreement, Contractor shall be entitled to a Claim pursuant to Clause13.2

2.7 Right to Stop Work for Cause

Employer or its representatives may order Contractor to stop performance of specific portions of the if the activities of Contractor or any Subcontractor are, in the opinion

of Employer or its representatives, causing or threatening to cause danger to life or damage to property, to violate Employer’s obligations under the Project Documents,

or are in violation of Applicable Laws or Applicable Permits, in which case Contractor shall immediately stop such activities until Employer agrees upon corrective actions and a restart date In the event of such a stop order, Contractor will not be entitled to a Change Order adjusting the Baseline Schedule or adjusting the Contract Price and the cost of any delays experienced by Contractor as a result of

such order will be borne by Contractor Employer’s right to stop work under this Section 2.7 is without prejudice to any other right or remedy Employer may have

2.8 Right to Suspend Work for Convenience

Employer may for any reason, by a written order, suspend (and later reinstate) the Work, or any portion thereof, without terminating this Agreement Upon receipt of such order, Contractor will promptly suspend (or reinstate as soon as reasonably practicable, as applicable) its performance of such Work, or the portion of such Work, for such time or times and in such manner as Employer may require and shall during any such period properly protect, make safe and secure the Work, or the portion of the Work, which was suspended by Employer, in such manner as Employer shall request Unless otherwise instructed by Employer, Contractor shall, during any suspension, maintain to the extent practicable its staff and labor on or near the Site and/or necessary easements ready to proceed with the Work as soon as practicable upon receipt of Employer’s further written instructions If, after the issuance of the Notice

to Proceed, Employer suspends, postpones, or slows the Work pursuant to this Section 2.8, then Contractor will be entitled to a Claim as provided in Clause 13.2

3 THE CONTRACTOR

3.1 Performance security

(a) The Contractor shall on or before the Commencement Date deliver to the

Employer the Performance Security issued by an Acceptable Credit Provider

in the amount required under this Clause 3.1

(b) The required amount of the performance security shall be:

(i) until the issue of the Taking-Over Certificate for the Works, 10% of the Contract Price; and

(ii) thereafter until the date that is 28 days after the expiry of the Defects

Notification Period (the Performance Security Expiry Date), 5% of

the Contract Price

(c) The Contractor shall ensure that the performance security is valid and

enforceable until the Performance Security Expiry Date If the terms of the performance security specify its expiry date prior to the Performance Security Expiry Date, the Contractor shall extend the validity of the performance security until the Performance Security Expiry Date

3.2 Mobilisation

(a) The Contractor shall:

(i) within twenty eight days upon the issue of the Commencement Date, commence and continue his mobilisation operations with the utmost

dispatch and in accordance with the approved program of Works and method statement, as stated in this Contract; and

(ii) furnish whatever additional Contractor's Equipment that may be necessary, for a proper and timely completion of the Works in accordance with the requirements of this Contract

(b) Mobilisation as specified in this clause shall:

(i) include:

(A) the assembly, preparation and loading for transport of all

Contractor's Equipment at the Contractor's home station or any other location and of all Contractor's Equipment, material and spare parts from the present location to the Site;

(B) the supply and furnishing at Site of all personnel, equipment

instruments and spare parts necessary for surveys and measurements;

(C) unloading and installing, ready for use, Contractor's

Equipment, material and spare parts and whatever else required for the execution of the Works;

(D) erection of Contractor's Site office, Contractor's staff and

labour camp, work yards, pre-cast yards, workshops, depots and stores; and

(ii) be completed in such a way that completion of the Works will be in accordance with the timing requirements specified for each item of the Works;

paid and proof thereof has been submitted to the Employer for approval; and

(iv) be complete when all things stipulated in this Clause are done and all main equipment is on site and operable

3.3 Manner of execution

The Contractor shall carry out the manufacture of Plant, the production and manufacture of Materials and all other execution of the Works:

(a) in the manner (if any) specified in this Contract;

(b) in a proper workmanlike and careful manner, in accordance with Good

Industry Practice; and

(c) with properly equipped facilities and non-hazardous Materials, except as

otherwise specified in this Contract

3.4 Skill and care

The Contractor undertakes that it has exercised and will continue to exercise in the performance of its obligations under this Contract all the reasonable skill and care to

be expected of a professionally qualified and competent:

(a) architect, in respect of architectural design and consultancy services;

(b) engineer, in respect of engineering design and consultancy services; and (c) other professional designer, manager or consultant, in respect of other design,

management or consultancy services,

experienced in the design and construction of works of a size, scope and complexity similar to the Works using Good Industry Practice as is applicable at the time of design and/or construction as appropriate

3.4.1 Labor and Personnel

Contractor will provide and be solely responsible for all labor and personnel required

in connection with the Work, including: (a) professional engineers properly licensed

to perform engineering services in the relevant country of origin and at the Site and Work Areas and qualified to perform the type of engineering services required by Contractor hereunder, and (b) a project manager or other representative who shall have the experience and authority to administer this Agreement on behalf of Contractor, to timely furnish information as requested by Employer and to agree upon procedures for coordinating Contractor’s efforts with those of Employer, and who shall be present, unless otherwise agreed by Employer, at the Site at all times when the Work is being performed to ensure appropriate actions are taken with respect to the safety and security of the Facility and personnel at all times Contractor’s staff shall include the key personnel holding the positions set forth in Schedule 15, who will be solely dedicated to the Project and shall be reasonably acceptable to Employer

(the “Key Personnel”) Contractor shall provide Employer with the names and

résumés of each of the Key Personnel, and shall make each of the Key Personnel available for interview by Employer, and Contractor shall not hire such Key Personnel or allow such Key Personnel to perform any Work until Employer has approved such Key Personnel Contractor will not remove or replace any of the Key Personnel (i) without the prior written consent of Employer, and (ii) without providing for an appropriate transition period If at any time during the performance

of the Work any individual of Contractor’s Personnel becomes, in Employer’s reasonable discretion, a detriment to the Project, then, upon notice from Employer, Contractor will promptly remove such detrimental individual, and replace such detrimental individual with an individual reasonably acceptable to Employer If at any time during the performance of the Work any of the Key Personnel should no longer be available to perform services in connection with the Work then Contractor will promptly replace such individual with an individual reasonably acceptable to Employer Any costs associated with the addition, replacement or renewal of any Contractor Personnel (including any Key Personnel), whether at Employer’s request

or otherwise, shall be for the account of Contractor

Contractor shall appoint a Key Person (“Contractor’s Authorized Representative”)

and notify Employer in writing of Contractor’s Authorized Representative’s name, mailing address, email address, facsimile and telephone number within five (5) days after the Commencement Date Contractor may, at any time, change the designation

of Contractor’s Authorized Representative; provided that Contractor shall promptly notify Employer in writing of such change Contractor’s Authorized Representative shall be authorized:

a) to administer, modify or amend this Contract on behalf of

Contractor;

b) to agree to Change Orders;

c) to agree upon procedures; and

to provide such information as is necessary for coordinating the efforts of the Parties

3.5 Compliance with Laws

The Contractor shall, in performing the Contract, comply with Applicable Laws

3.6 Permits and licences

(a) The Contractor shall obtain and maintain all Contractor Permits If the

Contractor is unable to obtain, or has failed to timely obtain, any Contractor Permit, Contractor shall immediately notify the Employer thereof If any Government Authority with jurisdiction over the Project, or any element of the Work, requires, within the limits of its authority, changes in the design or construction of the Project or any element of the Work as a requirement for or condition to any Contractor Permits, such changes shall not, save as provided

in Clauses 8.7 or 13.2, result in any change in the Contract Price or an extension of time

(b) The Contractor shall keep the Employer informed of the progress it is making

in obtaining and maintaining the Contractor Permits and shall comply with all reasonable instructions given by the Employer with respect thereto The Contractor shall provide the Employer with copies of all Contractor Permits and any correspondence pertaining thereto

(c) The Contractor will cooperate with the Employer in connection with the

Employer’s efforts to obtain the Employer Permits

3.7 Contractor's Documents, proprietary property and information

(a) As between the Parties, the Contractor shall retain the copyright and other

intellectual property rights in the Contractor's Documents and other design documents made by (or on behalf of) the Contractor

(b) The Contractor grants to the Employer a non-terminable transferable

non-exclusive royalty-free licence to copy, use and communicate the

Contractor's Documents, including making and using modifications of them,

in connection with the Works and to allow the Employer to fully use the Works, including the sale, development, operation, repair, maintenance, modification, expansion (but not replication), and if necessary, reconstruction,

of the Works This licence shall:

(i) apply throughout the actual or intended working life (whichever is longer) of the relevant parts of the Works;

(ii) entitle any person in proper possession of the relevant part of the Works to copy, use and communicate the Contractor's Documents for the purposes of completing, operating, maintaining, altering, adjusting, repairing and demolishing the Works; and

computer programs and other software, permit their use on any computer

(c) Without limiting the foregoing:

(i) the Employer shall at all times have the right to retain and use copies

of Contractor’s standard drawing details, designs, specifications, databases, computer software and any other proprietary property and

information as it relates to the Works (Contractor’s Standard Proprietary Property), and the Employer is hereby granted a fully

paid, royalty-free, perpetual, transferable, irrevocable right and license

to use Contractor’s Standard Proprietary Property and any other information of Contractor prepared for or incorporated into the Works

(Contractor’s Project-Specific Information), including the right to

reproduce, modify, make derivative works from and make copies thereof for effective use thereof and to disclose all such Contractor’s Standard Proprietary Property and Contractor’s Project-Specific Information to employees of the Employer and third parties as necessary in connection with the Project or with the Works’ operation, maintenance or future modification, or as required by Applicable Laws; and

(ii) the Contractor shall, for itself and cause its Subcontractors to, provide software which will enable the Employer fully and efficiently to avail itself of its license in Contractor’s Standard Proprietary Property and Contractor’s Project-Specific Information

3.8 Subcontractors

(a) The Contractor:

(i) shall be responsible for the acts or defaults of any Subcontractor (including any nominated Subcontractor), its agents or employees, as if they were the acts or defaults of the Contractor;

(ii) shall not subcontract the whole of the Works;

(iii) the Contractor shall not be required to obtain consent to suppliers of Materials, or to a subcontract for which the Subcontractor is named in Schedule 13, but shall obtain the prior consent of the Employer to other proposed Subcontractors;

(iv) shall give the Employer not less than 28 days' notice of the intended date of the commencement of each Subcontractor's work, and of the commencement of such work on the Site; and

(v) shall procure from each of its Subcontractors, in and as part of each Subcontract, a right, transferable to and by Employer without such Subcontractor’s consent, to the same or broader license as set forth in Clause 3.7(b), with respect to any work product created or incorporated

by such Subcontractor in connection with its performance of the Works

(b) Schedule 13 contains a list of Subcontractors acceptable to the Employer who

may provide Plant, Materials or Contractor’s Equipment in connection with the Works The Contractor is responsible for and hereby represents and warrants that it has conducted sufficient due diligence on each of the Subcontractors identified in Schedule 13 to ensure that such Subcontractors will perform in compliance with Clause 22, and that each Subcontract shall include the provisions contained in Clause 22 The Contractor will be obligated, unless otherwise agreed to by the Employer, to select from Schedule 13 those Subcontractors who will be providing the equipment and/or services set forth therein The Employer and the Contractor will have the right

to recommend additions or deletions to Schedule 13 from time to time, provided that no such addition and/or deletion shall be made without the consent of the Employer and further provided that the Contractor has conducted sufficient due diligence on any proposed additional Subcontractor

to ensure that such Subcontractor will perform in compliance with Clause 22 Prior to commencement of any Subcontractor's work, the Contractor shall represent to the Employer in writing that it has performed appropriate due diligence on the Subcontractor to ensure that such Subcontractor will perform

in compliance with Clause 22

(c) If at any time during the performance of the Works any Subcontractor is not

complying with the standards of performance applicable to the Works in this Contract, or is otherwise detrimental to the Project, then, upon notice from the Employer, such Subcontractor at the Contractor’s cost, shall be immediately removed from the Project, and the Contractor, at the Contractor’s cost, will promptly replace or procure the replacement of such Subcontractor with another Subcontractor acceptable to the Employer

(d) The Employer reserves the right to enter into other contracts associated with

the Works The Contractor shall at all times coordinate its work with the work

of other contractors If the performance of the Works is dependent upon or

interconnected with the work of other contractors (Third Party Works), the

Contractor shall perform adequate inspections of the Third Party Works to insure its compatibility with the Works Any defect discovered during inspection which would render the Works incompatible with any Third Party Works, or which would prevent the Contractor from properly performing the Works, shall be promptly reported, in writing, to the Employer The Contractor’s failure to make adequate inspections in a timely manner shall constitute an acceptance of the Third Party Works if the defect is patent or would have been discoverable by reasonable inspection

(e) Except as provided in Section 2.8.3, the Employer will not be deemed by

virtue of this Contract or otherwise to have any contractual obligation to or relationship with any Subcontractor Contractor will include a clause to this effect in each Subcontract No Subcontractor is intended to be or shall be deemed a third party beneficiary of this Contract Contractor shall be solely responsible for paying each Subcontractor for services, equipment, material or supplies in connection with the Works Contractor shall be fully responsible for the Work performed in whole or in part from any of its Subcontractors and nothing herein shall relieve Contractor of any and all obligations hereunder, whether or not Contractor has delegated such obligations to a Subcontractor (f) The Contractor shall ensure that each Subcontract is transferable by the

Contractor to the Employer and the Financing Parties (as collateral security or absolutely) without the prior consent of such Subcontractor For these purposes, each Subcontract shall provide that, upon notification to the Subcontractor from Employer or the Financing Parties that, (i) this Contract has been terminated and (ii) the Employer or the Financing Parties will thereafter be assuming the Contractor’s future rights and obligations under such Subcontract, then such Subcontractor shall continue to perform all of its obligations under such Subcontract for the benefit of the Employer or the Financing Parties and shall recognize the Employer or the Financing Parties as being vested with all of the future rights and obligations of the Contractor under such Subcontract Notwithstanding the foregoing, it is specifically understood and agreed (and each Subcontract shall clarify) that no Subcontractor shall have any right to look to the Employer or the Financing Parties for the performance of Contractor’s obligations under any Subcontract unless and until such Subcontractor has received notification that its Subcontract has been transferred to the Employer or the Financing Parties, as applicable Each Subcontract shall require the corresponding Subcontractor to execute an acknowledgment of the agreement to the provisions of this Clause 3.8(f) in the form approved by the Employer Within seven (7) days after a Subcontract is executed by the Contractor, the Contractor will deliver to the Employer a copy of such acknowledgment and agreement, signed by the applicable Subcontractor

(g) The Contractor shall provide the Employer with a final form of each Major

Subcontract, prior to execution, for the Employer’s review and approval The Employer’s review and approval of any Major Subcontract will not relieve Contractor of any of its obligations under this Contract As a condition to

Final Completion, Contractor shall provide Owner with copies of all Subcontracts, including Major Subcontracts, relating to the Work

(h) The Contractor shall procure from all Major Subcontractors, and shall use all

reasonable efforts to procure from all other Subcontractors, warranties and guarantees with respect to any materials, equipment or services provided by such Subcontractors consistent with the warranties and guarantees provided by Contractor under this Contract Neither the Contractor, nor any Subcontractor

or Contractor’s Personnel, shall take any action which could amend, modify, release, void, impair, discharge or waive any existing Subcontractor warranties and guarantees without the consent of the Employer Upon expiration of the Warranty Period, all remaining warranties, if any, under each Subcontract shall be assigned to the Employer

(i) In this Clause 3.8, Nominated Subcontractor means a Subcontractor specified

as a nominated subcontractor in the Specification or whom the Employer, under Clause 12, instructs the Contractor to employ as a Subcontractor

3.9 Co-operation

(a) The Contractor shall, as specified in the Specification or as instructed by the

Employer, allow appropriate opportunities for carrying out work to:

(i) staff, labour and other employees of the Employer;

(ii) any other contractors employed by the Employer, and

who may be employed in the execution on or near the Site of any work not included in this Contract

(b) The Contractor shall be responsible for his construction activities on the Site

and shall co-ordinate his own activities with those of other contractors to the extent (if any) specified in the Specification

(a) The Contractor shall set out the Works in relation to original points, lines and

levels of reference specified in this Contract or notified by the Employer The Contractor shall be responsible for the correct positioning of all parts of the Works, and shall rectify any error in the positions, levels, dimensions or alignment of the Works

(a) As a condition precedent to the Employer’s obligation to make payment of the

Contract Price to the Contractor, the Contractor shall prepare and provide for the Employer’s approval a written description of its means and methods to ensure quality assurance and control for the Works, which shall include

sufficient detail, specific to the Works, regarding the design, procurement, testing, construction, commissioning, testing, inspection and start up, always

giving due regard to safety (the Quality Assurance Plan) The Contractor’s

Quality Control Manager shall provide the Employer with written reports of quality assurance or quality control issues as they occur, and at Employer’s written request

(b) The Quality Assurance Plan shall include a testing and inspection plan which

identifies all material tests and inspections related to the Work The testing and inspection plan shall be updated and all test and inspection test results shall be delivered to the Employer within five (5) days of test or inspection completion

(c) Details of all procedures and compliance documents shall be submitted to the

Employer for information before each design and execution stage is commenced When any document of a technical nature is issued to the Employer, evidence of the prior approval by the Contractor himself shall be apparent on the document itself The Contractor shall submit for the Employer’s approval any proposed updates to the Quality Assurance Plan before Contractor adopts them

(d) The Contractor shall comply with, and shall require each of its Subcontractors

to comply with, the Quality Assurance Plan during all phases of performance

of the Work For the avoidance of doubt, such compliance shall not relieve the Contractor of any of his duties, obligations or responsibilities under this Contract

(e) The Employer may, at any time during performance of the Work, conduct a

compliance audit with respect to the Quality Assurance Plan If such audit demonstrates non-compliance with any aspect of the Quality Assurance Plan, the Employer shall notify the Contractor of such non-compliance and the Contractor shall promptly undertake appropriate remedial action, at the Contractor’s sole risk, cost and expense

The Contractor shall bear all costs and charges for special and/or temporary rights-of-way which he may require, including those for access to the Site The Contractor shall also obtain, at his risk and cost, any additional facilities outside the Site which he may require for the purposes of the Works

The Contractor:

(a) shall not interfere unnecessarily or improperly with the convenience of the

public or the access to and use and occupation of all roads and footpaths, irrespective of whether they are public or in the possession of the Employer or

of others; and

(b) shall indemnify and hold the Employer harmless against and from all

damages, losses and expenses (including legal fees and expenses) resulting from any such unnecessary or improper interference

The Contractor shall not, and shall procure that its Subcontractors and the Contractor’s Personnel shall not, damage any public or private property (including all parallel, converging and intersecting electric lines and poles, telephone or cable lines and poles, roads, highways, waterways, railroads, sewer lines, natural gas pipelines, drainage ditches, culverts, buildings, structures, monuments, vehicles, trees, shrubs, lawns, walks and pavements) on roads and routes to the Site or along, adjacent to, or near the Site The Contractor shall assess and reinforce roads as necessary for all Work, including transportation to the Site If the Contractor, any of its Subcontractors

or any of the Contractor’s Personnel, directly or indirectly cause any damage to any such property, then the Contractor shall immediately notify the Employer and, at the Contractor’s own expense, repair, rebuild, reinforce or otherwise fully restore the same to the satisfaction of the property owner and in accordance with all Applicable Laws

(a) The Contractor shall be deemed to have been satisfied as to the suitability and

availability of the access routes to the Site The Contractor shall use reasonable efforts to prevent any road or bridge from being damaged by the Contractor's traffic or by the Contractor's Personnel These efforts shall include the proper use of appropriate vehicles and routes

(b) The Contractor shall (as between the Parties):

(i) be responsible for any maintenance which may be required for his use

of access routes;

(ii) provide all necessary signs or directions along access routes, and shall obtain any permission which may be required from the relevant authorities for his use of routes, signs and directions; and

(c) pay any Costs of the Contractor due to non-suitability or non-availability, for

the use required by the Contractor, of access routes

3.16 Document Retention

The Contractor shall maintain, for a period of seven (7) days after the expiry of the Defects Notification Period (or longer if required by Applicable Laws), all material records in its possession or control related to the Project, including:

(a) all records for Work performed for which the Contractor was paid its

additional Cost (if any), including payroll records and daily time sheets; (b) invoices for materials and equipment, accounts payable and accounts

receivable;

(c) all design documents and Subcontract documentation;

(d) all Subcontracts; and

(e) records of all orders for Variations

The Employer shall not be liable for and makes no representation or warranty as to the accuracy, completeness, sufficiency or suitability of any drawings or any information or data contained in the Contract Documents and any data or information provided or made available to Contractor at any time whether prior to or after execution of this Contract, and Contractor shall independently verify the accuracy, completeness, sufficiency or suitability thereof before adopting the same for the purposes of the performance of the Work, and errors or omissions therein shall be at Contractor’s sole risk, cost and expense Contractor shall not be entitled to any claim against Employer, including a claim for an adjustment of the Baseline Schedule, or any adjustment to the Contract Price, related to any such information

(a) The Employer uses a web-based project management system (the Application)

for managing Working Documents (as defined below) and reporting The Contractor shall provide names, email addresses and job titles for each proposed individual user to enable Employer to set up user accounts for the Application The Employer shall provide Contractor with user guides and

access instructions for the Application (collectively, the Application Documentation) and training reasonably required with respect thereto If

required by Employer, the Employer shall provide the Contractor with access

to the Application for up to ten (10) users at no cost to the Contractor Access

by the Contractor for additional users may be provided at additional cost to the Contractor for an annual fee of approximately one thousand Dollars (US$1,000) per user

(b) For purposes of the Application and Application Documentation, the

Contractor agrees to comply with the following license restrictions The Contractor shall not, and shall cause its Subcontractors not to:

(i) use any reverse compilation, decompilation or disassembly techniques

or other methods to determine any source code, design structure, concepts and construction method of the Application or replicate the functionality of the Application for any purpose or create derivative works based on the Application for any purpose;

(ii) remove any proprietary notices, labels, or marks in or on the Application or Application Documentation;

or loan the Application or Application Documentation to any other party;

(iv) use the Application or Application Documentation for any purpose other than to perform the Work;

(v) allow any individual not employed by Contractor or the applicable Subcontractor to have access to the Application or Application Documentation;

(vi) make any copy of the Application; or

(c) In addition to providing Employer with the electronic copies using the

Application, Contractor shall deliver hard copies of Working Documents (as defined below) that are required to be provided in writing in accordance with this Contract

(d) If the Application is not accessible or inoperable, Contractor shall deliver the

Working Documents electronically and in hardcopies

(e) The Contractor shall not be entitled to an extension of time, or to payment of

any additional Cost, if the Application is not accessible or is inoperable at any time or for any other reason

(f) The Parties may use the Application to exchange various working documents

relating to their respective performance under this Contract (the Working Documents), including the following:

(i) lists of systems, equipment, submittals, inspections and tests;

(ii) statistical reports regarding safety and environmental incidents;

(iv) Contractor insurance documents;

(v) Change Orders and related documentation;

(vi) Applications for Milestone Payment, invoices and related approvals;

(vii) technical and other documents to be submitted, reviewed and/or approved in accordance with the terms of this Contract, including the Contractor Documents and Contractor Design Documents;

(ix) notices of non-compliance and non-conformance;

(x) corrective action reports;

(xi) requests for information and responses thereto;

the terms of this Contract

The Contractor shall be responsible for all Contractor's Equipment When brought on

to the Site, Contractor's Equipment shall be deemed to be exclusively intended for the execution of the Works The Contractor shall not remove from the Site any major items of Contractor's Equipment without the consent of the Employer However, consent shall not be required for vehicles transporting Goods or Contractor's Personnel off Site

(a) The Contractor shall, except as stated below, be responsible for the provision

of all Temporary Facilities and utilities (including but not limited to power, construction water and other services) necessary for the performance of the Work under this Contract including for use by Employer’s representatives, and meeting the requirements set forth in Schedule 17

(b) The Contractor shall:

(i) be entitled to use for the purpose of commissioning the Works such supplies of electricity of which details and prices are given in the Specification; and

(ii) at its risk and cost, provide any apparatus necessary for his use of the electricity for the purpose of commissioning,

and the amounts due for such electricity shall be payable by the Contractor to the Employer

3.21 Security of the Site

The Contractor shall be responsible for keeping unauthorised persons off the Site, and authorised persons shall be limited to the Contractor's Personnel, the staff, labour and other employees of the Employer and any other personnel notified to the Contractor

or by the Employer as authorised personnel of the Employer's other contractors on the Site

(a) The Contractor shall confine his operations to the Site, and to any additional

areas which may be obtained by the Contractor and agreed by the Employer as working areas The Contractor shall take all necessary precautions to keep Contractor's Equipment and Contractor's Personnel within the Site and these additional areas, and to keep them off adjacent land

(b) During the execution of the Works, the Contractor shall keep the Site free

from all unnecessary obstruction, and shall store or dispose of any Contractor's Equipment or surplus materials The Contractor shall clear away and remove from the Site any wreckage, rubbish and Temporary Works which are no longer required

(c) Upon the issue of the Taking-Over Certificate, the Contractor shall clear away

and remove, from that part of the Site and Works to which the Taking-Over Certificate refers, all Contractor's Equipment, surplus material, wreckage, rubbish and Temporary Works The Contractor shall leave that part of the Site and the Works in a clean and safe condition However, the Contractor may retain on Site, during the Defects Notification Period, such Goods as are required for the Contractor to fulfil obligations under this Contract

3.23 Fossils

(a) All fossils, coins, articles of value or antiquity, and structures and other

remains or items of geological or archaeological interest found on the Site shall be placed under the care and authority of the Employer The Contractor shall take reasonable precautions to prevent Contractor's Personnel or other persons from removing or damaging any of these findings

(b) The Contractor shall, upon discovery of any such finding, promptly give

notice to the Employer, who shall issue instructions for dealing with it If the Contractor suffers delay and/or incurs Cost from complying with the instructions, the Contractor shall give a further notice to the Employer and shall be entitled subject to Clause 13.3 to:

(i) an extension of time for any such delay, if completion is or will be delayed, under Clause 8.6; and

(ii) payment of any such Cost, which shall be included in the Contract Price

4 SITE CONDITIONS AND SCOPE OF THE WORK

4.1 Site conditions

The Contractor acknowledges and represents that:

(a) it has conducted a thorough examination of the Site and its surroundings and it

is fully acquainted with all environmental, surface and subsurface conditions (including ground, ground water and geological conditions) existing within or near the Site;

(b) it has familiarized itself as to the nature of the accommodations available for

the Works, materials and equipment, all means of communication, entry to and departure from the Site, construction of buildings, and all other matters necessary for performance of the Works and is satisfied that the same are sufficient for performance of Contractor’s obligations under this Contract and has taken them into account prior to bidding, executing this Contract and performing the Works;

(c) it has made local and other independent inquiries as to the availability and

supply, for the entire period for performance of the Works, of materials, services, labour and other items necessary for the prosecution of the Works, and has satisfied itself that the nature, quality, extent and practicability of each

is sufficient for performance of Contractor’s obligations under this Agreement;

(d) and will continue to take all steps necessary to fully understand the nature of

the Work, the general local conditions which can affect the Work and the cost thereof, including but not limited to conditions relating to the ash pipeline and slurry pump interconnections, transportation, handling, storage of materials, import and export issues, taxes, insurance, availability and/or work ethic of qualified labour, water, roads, weather, topographic conditions, Applicable Laws, applicable permits and approvals and the character and availability of equipment and facilities needed preliminary to and during the prosecution of the Works; and

(e) the failure of Contractor to fully familiarize itself with the foregoing

conditions shall not entitle the Contractor to an extension of time or to payment of any additional Cost incurred by the Contractor

4.2 Scope of the Works

The Employer and the Contractor agree, notwithstanding any other provision hereof, that:

(a) the Works are to be performed by the Contractor on a “turnkey” basis and

Contractor shall provide the Owner with the Works completed and capable of operation in accordance with the terms of this Contract;

(b) as part of the Work (and except as otherwise expressly stated in this Contract

as being the responsibility of Employer) the Contractor shall provide any other services, work or items not specifically described or indicated in this Contract if:

(i) such service, work or item is required by Applicable Law, the Contractor Permits, the Employer Permits or Good Industry Practice;

or (ii) the provision of such additional service, work or item is necessary to make the Works operable and capable of performing as specified in this Contract and otherwise in accordance with Good Industry Practice; and

(c) technical specifications stated herein are the Owner’s minimum acceptable

criteria for safety, efficiency, reliability, operability, maintainability, quality of equipment and performance of the Works, except that:

(i) where such technical specifications are different from the Applicable Laws in effect as of the date of this Contract, the more stringent will apply; and

(ii) where such technical specifications describe portions of the Work in general terms, but not in complete detail, it is understood that, subject

to the Contractor meeting the requirements of this Agreement, Applicable Laws and the Technical Specifications, Good Industry Practice shall apply

5 DESIGN BY CONTRACTOR

5.1 General design obligations

The Contractor shall carry out, and be responsible for, the design of the Works Such design shall be prepared by qualified designers who are engineers or other professionals who comply with the criteria (if any) stated in the Specification The Contractor shall submit to the Employer for approval the name and particulars of each proposed designer and design Subcontractor

5.2 Documents Submission Schedule

Within thirty (30) days after the Commencement Date the Contractor shall submit to

the Employer for its review and comment a schedule (the Documents Submission Schedule) for the submission to the Employer of design and construction documents prepared by the Contractor (the Contractor Design Documents) The Contractor shall

incorporate or address, in writing, any Employer’s comments on the Documents Submission Schedule to the reasonable satisfaction of the Employer

5.3 Contractor Design Documents

(a) Contractor shall prepare and submit to the Employer for its review and

comment the Contractor Design Documents in accordance with the Documents Submission Schedule, the Specification and the Drawings In the event of any inconsistency between the Documents Submission Schedule and any requirement of this Contract, the requirements of this Contract shall prevail

(b) The Employer may provide comments to the Contractor Design Documents

and, if the Employer does so, it shall do so as soon as reasonably practicable but, in any event, within fourteen days after the later of:

(i) the Employer’s receipt of the Contractor Design Documents; or

(ii) the final date for submission by the Contractor of the same as determined pursuant to the Documents Submission Schedule

(c) The Contractor shall not commence execution of any part of the Works prior

to the expiry of the review period for the Contractor Design Documents that are relevant to its design and execution and shall incorporate or address, in writing, the Employer’s comments to the Contractor Design Documents to the reasonable satisfaction of the Employer Notwithstanding the foregoing, if Contractor believes that any comment from the Employer constitutes a Variation, it shall comply with Clause 13.3 before incorporating any such comment into the Contractor Design Documents If Contractor does not comply with Clause 13.3 before incorporating any comment of the Employer, Contractor shall have waived its ability to request a Variation under Clause 13.2 in respect of such comment

(d) The Employer’s provision of, or failure to provide any comments to any of the

Contractor Design Documents shall in no event be deemed as the Employer’s acceptance thereof or a waiver of any of Contractor’s obligations to perform the Work or Contractor’s liability in accordance with the requirements of this Contract

5.4 Employer certification or sealing

(a) The Employer shall certify or seal such Contractor Design Documents as are

designated in the Documents Submission Schedule as Contractor Design Documents for certification or sealing by the Employer

(b) The Employer may require that a Contractor deliver to it for certification or

sealing such other Contractor Design Documents as the Employer may designate to the Contractor from time to time It is a condition precedent to the Employer’s obligation to certify or seal any Contractor Design Document (which condition precedent may be waived by the Employer at its absolute discretion) that a Contractor’s request for the same is accompanied by a representation in writing by the Contractor in form and substance satisfactory

to the Employer that the relevant Contractor Design Document is in accordance with the requirements of this Contract and applicable Laws The Employer may refuse to certify or seal a Contractor Design Document if the Employer considers:

(i) the Contractor is in breach of any such representation; or

(ii) such certification or sealing is not required under the Laws of Vietnam

(c) The Employer’s certification or sealing of a Contractor Design Document

shall in no event be deemed as the Employer’s acceptance thereof or a waiver

of any Contractor obligation to perform the Works or of any Contractor liability in accordance with the requirements of this Contract

5.6 Operation and maintenance manuals

Prior to commencement of the Tests on Completion, the Contractor shall supply to the Employer provisional operation and maintenance manuals in sufficient detail for the Employer to operate, maintain, dismantle, reassemble, adjust and repair the Plant The Works shall not be considered to be completed for the purposes of taking - over under Clause 10.1 until the Employer has received and approved these documents

6 PLANT, MATERIALS AND WORKMANSHIP

6.1 Access to Site and inspection

(a) The Employer, the Financing Parties and their representatives and technical

advisers shall at all reasonable times:

(i) have full access to all parts of the Site and to all places from which natural Materials are being obtained; and

(ii) during production, manufacture and construction (at the Site and elsewhere), be entitled to examine, inspect, measure and test the materials and workmanship, and to check the progress of manufacture

of Plant and production and manufacture of Materials

(b) The Contractor shall give notice to the Employer whenever any work is ready

and before it is covered up, put out of sight, or packaged for storage or transport The Employer shall then either carry out the examination, inspection, measurement or testing without unreasonable delay, or promptly give notice to the Contractor that the Employer does not require to do so If the Contractor fails to give the notice, he shall, if and when required by the Employer, uncover the work and thereafter reinstate and make good, all at the Contractor's cost

6.2 Testing

(a) The Contractor shall provide all apparatus, assistance, documents and other

information, electricity, equipment, fuel, consumables, instruments, labour, materials, and suitably qualified and experienced staff, as are necessary to

efficiently carry out tests specified in the Specification The Contractor shall agree, with the Employer, the time and place for the specified testing of any Plant, Materials and other parts of the Works

(b) The Employer may, under Clause 12, vary the location or details of specified

tests, or instruct the Contractor to carry out additional tests If these varied or additional tests show that the tested Plant, Materials or workmanship is not in accordance with the Contract, the cost of carrying out this Variation shall be borne by the Contractor, notwithstanding other provisions of this Contract (c) The Employer shall give the Contractor not less than 24 hours' notice of the

Employer's intention to attend the tests If the Employer does not attend at the time and place agreed, the Contractor may proceed with the tests, unless otherwise instructed by the Employer, and the tests shall then be deemed to have been made in the Employer's presence

(d) If the Contractor suffers delay and/or incurs Cost from complying with these

instructions or as a result of a delay for which the Employer is responsible, the Contractor shall give notice to the Employer and shall be entitled subject to Clause 13.3 to:

(i) an extension of time for any such delay, if completion is or will be delayed, under Clause 8.7; and

(ii) payment of any such Cost, which shall be included in the Contract Price

(e) The Contractor shall promptly forward to the Employer duly certified reports

of the tests When the specified tests have been passed, the Employer shall endorse the Contractor's test certificate, or issue a certificate to him, to that effect If the Employer has not attended the tests, he shall be deemed to have accepted the readings as accurate

6.3 Rejection

(a) If, as a result of an examination, inspection, measurement or testing, any Plant,

Materials, design or workmanship is found to be defective or otherwise not in accordance with the Contract, the Employer may reject the Plant, Materials, design or workmanship by giving notice to the Contractor, with reasons The Contractor shall then promptly make good the defect and ensure that the rejected item complies with this Contract

(b) If the Employer requires this Plant, Materials, design or workmanship to be

retested, the tests shall be repeated under the same terms and conditions If the rejection and retesting cause the Employer to incur additional costs, the Contractor shall pay these costs to the Employer

6.4 Remedial Work

(a) Notwithstanding any previous test or certification, the Employer may instruct

the Contractor to:

(i) remove from the Site and replace any Plant or Materials which is not in accordance with this Contract;

(ii) remove and re-execute any other work which is not in accordance with this Contract; and

Works, whether because of an accident, unforeseeable event or otherwise

(b) The Contractor shall comply with the instruction within a reasonable time,

which shall be the time (if any) specified in the instruction, or immediately if urgency is specified under paragraph (iii) above

(c) If the Contractor fails to comply with the instruction, the Employer shall be

entitled to employ and pay other persons to carry out the work Except to the extent that the Contractor would have been entitled to payment for the work, the Contractor shall pay to the Employer all costs arising from this failure

6.5 Ownership of Plant, Materials and other goods

(a) Title to all Materials and Plant provided or to be provided by the Contractor to

the Employer as part of the Works shall vest in Employer upon the earliest of: (i) the occurrence of any event by which, under Applicable Laws, title passes from the Contractor or the Subcontractor providing such Materials and Plant;

(ii) the date of payment therefore by the Contractor or the Employer, notwithstanding any amounts withheld by Employer in accordance with this Contract;

(iii) the date any of the Materials and Plant is delivered to the Site or to storage; and

(iv) the date of the termination of this Contract

(b) Notwithstanding passage of title from the Contractor to the Employer, subject

to the terms of this Contract, the Contractor will retain care, custody and control of all such Materials and Plant and bear the complete risk of loss, destruction or damage (including deterioration in quality) thereof (including any deductibles and uninsured losses, provided that the Employer will be responsible for the payment of the deductible under the construction all-risk policy if such loss occurs before Substantial Completion and results from, the gross negligence or wilful misconduct of the Employer)

(c) At least thirty (30) days prior to shipment (whether by ship, air, rail, truck or

otherwise) of any Materials and Plant from a location outside of the Country

(the Delivery Point) to the Site, the Contractor shall notify the Employer and

any insurers (including marine cargo insurance providers) providing insurance for such Materials and Plant of the shipment date and the location of the Delivery Point together with such other details as the Employer and such insurers may reasonably request The Contractor shall assist the Employer and any insurers with all necessary inspections required prior to any such shipment, and shall, promptly upon receipt by Contractor, provide the Employer with copies of any pre-shipping inspection reports The Contractor shall not ship such Materials and Plant from the Delivery Point prior to the shipment date set forth in such notice without the prior written consent of the Employer The Contractor shall (at its sole cost and expense) make such Materials and Plant available for inspection at the Delivery Point (including on the vessel for shipment for proper stowing and securing of the cargo) by the Employer

6.6 Royalties

The Contractor shall pay all royalties, rents and other payments for:

(a) natural Materials obtained from outside the Site, and

(b) the disposal of material from demolitions and excavations and of other surplus

material (whether natural or man-made), except to the extent that disposal areas within the Site are specified in this Contract

7 TAXES

7.1 Contractor’s taxes

(a) Notwithstanding anything to the contrary in this Contract, the Contractor shall

administer and pay for:

(i) all corporate income tax and all other applicable taxes with respect to its profits, revenue or fee;

(ii) all taxes in connection with the employment of any Contractor employee and any withholding taxes in connection with labour the Contractor is required to deduct from any payments to Subcontractors, including, but not limited to, unemployment insurance, social insurance contributions, health insurance contributions, retirement benefits, pensions and annuities now imposed, or hereafter imposed, by any Governmental Agency with respect to, assessed against or measured by wages, salaries or other remuneration paid to persons employed by any Contractor person in connection with the Works; (iii) any customs duties, import duties, service tax, business tax, foreign contractor withholding tax, VAT, and other taxes or charges relating to:

(A) the Works including any thereof arising on equipment,

materials, fuels, supplies and spare parts, regardless of whether they are incorporated into the Power Facility, including any replacement equipment, materials, supplies and spare parts; (B) the purchase of goods, equipment, materials, fuel, supplies,

spare parts, services and other items by the Contractor within Vietnam;

(C) the design and engineering, installation, testing,

commissioning, warranty, training, maintenance and any other services in order to perform this Contract;

(D) any taxes imposed on a Contractor or any of its Subcontractors

which the Contractor or any of its Subcontractors has a primary legal obligation to pay in any country as a result of the performance of the Work or applicable Laws and which have not otherwise been expressly allocated to the Employer; and (E) any penalties, interest or similar charge arising from non-

payment, late payment or short payment of any item in this Clause

(b) In the event the Employer is required by Applicable Law or is otherwise

directed by any Government Authority to deduct or withhold from any payment due by the Employer under this Agreement an amount in respect of tax:

(i) the Employer shall be entitled to deduct and withhold that amount and topay such amount to the applicable Governmental Authority, and

(ii) any amount so withheld shall be treated for all purposes of this Agreement as having been paid by the Employer as part of the Contract Price(c) Any withholding from payments due to the Contractor hereunder that the Employer makes pursuant to applicable Laws shall be

in satisfaction of Contractor’s responsibilities pursuant to this Clause 7.1 and the Contractor shall have no recourse against the Employer in respect

of such withholding

7.2 Taxes and other charges related to importation

The Contractor shall:

(a) administer in accordance to the Laws of Vietnam, and the Employer will pay

to the relevant Governmental Agency, any Vietnamese customs duties, import duties and VAT relating to the import by the Contractor of goods, Contractor's Equipment, Materials, fuel, supplies, spare parts and other items for incorporation into or use in connection with the Works; and

(b) as soon as practicable, but no later than five days from the date of payment of

VAT by the Employer, provide all necessary documents and support to the Employer for the purpose of claiming refund of any VAT paid to a

Governmental Agency

7.3 Contractor indemnity

To the fullest extent permitted by Applicable Law, the Contractor hereby releases and indemnifies, defends and holds harmless the Employer, the Financing Parties and each of their respective directors, officers, shareholders, members, partners, Affiliates, subsidiaries, employees, representatives, contractors and agents, and the

respective successors and assigns of all of the foregoing (collectively, the "Employer Indemnitees"), from and against all liability (including any strict liability), claims,

suits, legal or administrative proceedings, demands, penalties, actions, causes of action, Liens, costs (including attorneys’ fees), expenses, losses, damages, injuries,

interest or judgments (collectively, "Indemnified Items") that may be imposed on,

incurred by or asserted against any Employer Indemnitee (whether or not such Employer Indemnitee is a party to such Indemnified Items) directly or indirectly in connection with, relating to or arising before or after completion of the Works and in any manner directly or indirectly caused or claimed to be caused, occasioned, or contributed to, in whole or in part, by reason of any act, omission, fault or negligence, whether active or passive, of the Contractor, any Contractor Personnel or any of their respective directors, officers, shareholders, members, partners, Affiliates, subsidiaries, employees, representatives, contractors and agents (collectively,

"Contractor Persons") in connection with, or incidental to, the performance of the

Works, including:

any violation of any Applicable Law;

any claim or allegation that any equipment, apparatus, materials or information provided by Contractor or any Subcontractor in connection with its performance of the Works, any method or process used by Contractor or any Subcontractor in connection with its performance of the Works, any use

of the Works based on the incorporation of, or use of, any equipment, apparatus, materials or information provided by Contractor or any Subcontractor in connection with the performance of the Works, or any method or process used by Contractor or any Subcontractor, constitutes an infringement, misappropriation, dilution or other violation of any intellectual property or proprietary rights of any third party;

Contractor’s obligation to pay taxes;

all liens, claims or similar encumbrances arising in connection with the Works;

any interference with the Employer’s ongoing operation of the Works or Power Facility; and

any breach of contract by Contractor with any Subcontractor

Notwithstanding anything stated in the foregoing, any indemnification payment made pursuant to this Clause 7.3 shall be increased by any tax incurred by the Employer Indemnitees in connection with such indemnity payment

7.4 Information and Reimbursement

(a) The Contractor shall furnish to the appropriate taxing authorities, all

information and reports required in accordance to applicable Laws to be furnished in connection with all the Contractor’s taxes of the Contractor or any taxes payable by the Employer, which are the responsibility of the Contractor under this Contract

(i) the Contractor fails to timely pay any Contractor’s tax and such failure, unless Contractor is contesting such Contractor’s tax in good faith by appropriate proceedings timely instituted, continues for five days after receipt by the Contractor of written notice of such failure from the Employer; or

(ii) the Contractor fails to pay any Contractor’s tax that the Employer is legally obligated to pay and such failure continues for five days after receipt by the Contractor of written notice of such failure from the Employer,

then the Employer shall have the right, but not the obligation, to pay such Tax

To the extent that the Employer pays the Contractor’s taxes pursuant to this Clause 7.4, Contractor shall reimburse the Employer for the full amount of such taxes paid by the Employer (increased for any and all tax cost, penalties, interest and legal expenses and fees incurred by the Employer in connection with such reimbursement) within thirty days after the Contractor’s receipt of written evidence of such payment The Contractor shall cooperate with the Employer in its application for refunds of any improperly paid tax for which the Employer is responsible and shall promptly remit such refunds on to the Employer The Contractor shall maintain copies of all tax exemption certificates in its records

7.5 Withholding by Employer

In the event the Employer is required by Applicable Law or is otherwise directed by any Government Authority to deduct or withhold from any payment due by the Employer under this Agreement an amount in respect of tax:

(i) the Employer shall be entitled to deduct and withhold that amount and

to pay such amount to the applicable Governmental Authority, and

(ii) any amount so withheld shall be treated for all purposes of this Agreement as having been paid by the Employer as part of the Contract Price

7.6 VAT invoices

To the extent the Employer is required to pay VAT in Vietnam, the Contractor shall provide proper VAT invoices as required under applicable Laws, as well as any supporting documents to allow the Employer the Employer to claim the full amount

of VAT credits or refunds from any relevant Governmental Agency

8 TIME FOR COMPLETION

8.1 Commencement of the Works

The Contractor:

(a) shall commence execution of the LNTP1 Works on the LNTP1

Commencement Date;

(b) shall commence execution of the LNTP2 Works on the LNTP2

Commencement Date; and

(c) shall commence execution of the Works (or the balance of the Works, as

applicable) on the Commencement Date

Any portion of the Works performed under any Limited Notice to Proceed shall be considered part of the Works performed pursuant to this Contract

8.2 No Employer obligation to issue LNTP or NTP

The Employer’s issuance of a Limited Notice to Proceed shall not oblige the Employer to issue the Notice to Proceed, and the Employer has no obligation under this Contract to issue a Limited Notice to Proceed or the Notice to Proceed

8.3 Contractor not to proceed

The Contractor shall not proceed with any aspect of the Works prior to the Commencement Date, unless so directed by the Employer in a Limited Notice to Proceed, and in the absence of such written notice, the Contractor does so at the Contractor’s sole risk and expense It is agreed that, save as provided in Clause 15.3,

no payment will be made by the Employer to the Contractor for Works performed until the Commencement Date If this Contract is cancelled before the Commencement Date, the Contractor shall be entitled to be paid the unpaid balance of the value of the LNTP1 or LNTP2 Works executed

8.4 Time for Completion

The Contractor shall complete the whole of the Works, and each Section (if any), by the Time for Completion for the Works or Section (as the case may be), including:

(a) achieving the passing of the Tests on Completion; and

(b) providing the documents in accordance with Clause 5.5 and Clause 5.6; and (c) completing all other work which is stated in the Contract as being required for

the Works or Section to be considered to be completed for the purposes of taking-over under Clause 10.1

8.5 Works programme

(a) The Contractor shall submit a detailed programme for the Works (Project

Schedule) to the Employer on or before the Commencement Date as set forth

in Schedule 19

(b) The Contractor shall provide monthly updates of the programme for the

Works that shall reflect progress achieved for the previous month and any adjustments to future work Each current programme shall be delivered to the Employer in hard copy and electronically If, as a result of events and/or conditions encountered, the Contractor desires or is required to change or modify the dates, durations, sequencing, logic or resource requirements of the forecast planning, such modifications shall be reflected in the current programme Each current programme shall be maintained in a dated and sequentially numbered order so that each of them may be compared electronically with each other and the Project Schedule

(c) The Contractor shall perform the Works in accordance with the programme

for the Works submitted in accordance with paragraph (a) above and as amended in accordance with paragraph (b) above

8.6 Monthly Progress Reports and Meetings

(a) On a monthly basis, or more frequently if reasonably requested by the

Employer, the Contractor shall provide to the Employer a monthly progress report of actual progress of the Works in the format as set forth in Schedule

18 by no later than five Business Days after the end of each month The Contractor shall hold progress meetings with the Employer and the Employer’s invitees on a monthly basis or more frequently (including weekly

or daily) if required by the status of the Works or as reasonably requested by the Employer

8.7 Extension of Time for Completion

The Contractor shall be entitled subject to Clause 13.3 to an extension of the Time for Completion if and to the extent that completion for the purposes of Clause 10.1 is or will be delayed by any of the following causes:

(a) a Variation (unless an adjustment to the Time for Completion has been agreed

under Clause 12);

(b) an Employer’s Risk; or

(c) any other event of circumstances stated in the Contract as entitling the

Contractor to an extension of the Time for Completion

If the Contractor considers himself to be entitled to an extension of the Time for Completion, the Contractor shall give notice to the Employer in accordance with Clause 13.3

8.8 Delay liquidated damages

(a) If the Contractor fails to comply with Clause 8.4 the Contractor shall pay

delay damages to the Employer for this default at the rate of VND[•] per day for every day which shall elapse between the relevant Time for Completion and the date stated in the Taking-Over Certificate

(b) These delay damages shall be the only damages due from the Contractor for

such default, other than in the event of termination under Clause 16.2 prior to completion of the Works These damages shall not relieve the Contractor from his obligation to complete the Works, or from any other duties, obligations or responsibilities which he may have under this Contract

8.9 Suspension of Work

(a) The Employer may at any time instruct the Contractor to suspend progress of

part or all of the Works During such suspension, the Contractor shall protect, store and secure such part or the Works against any deterioration, loss or damage

(b) If the Contractor suffers delay and/or incurs Cost from complying with the

Employer's instructions under paragraph (a) above and/or from resuming the work, the Contractor shall give notice to the Employer and shall be entitled subject to Clause 13.3 to:

(i) an extension of time for any such delay, if completion is or will be delayed, under Clause 8.7, and

(ii) payment of any such Cost, which shall be included in the Contract Price

(c) The Contractor shall not be entitled to an extension of time for, or to payment

of the Cost incurred in, making good the consequences of the Contractor's faulty design, workmanship or materials, or of the Contractor's failure to protect, store or secure in accordance with paragraph (a) above

(d) After the permission or instruction to proceed is given, the Contractor and the

Employer shall jointly examine the Works and the Plant and Materials affected by the suspension The Contractor shall make good any deterioration

or defect in or loss of the Works or Plant or Materials, which has occurred during the suspension

9 TESTS ON COMPLETION

9.1 Contractor's Obligations

(a) The Contractor shall carry out the Tests on Completion in accordance with this

Clause and Clause 6.2, after providing the documents in accordance with

Clause 5.5 and Clause 5.6

(b) The Contractor shall give to the Employer not less than 21 days' notice of the

date after which the Contractor will be ready to carry out each of the Tests on Completion Unless otherwise agreed, Tests on Completion shall be carried out within 14 days after this date, on such day or days as the Employer shall instruct

(c) The Tests on Completion shall be carried out in the sequence specified in the

Specification or, if no such sequence is specified, in the sequence specified by the Employer As soon as the Works, or a Section, have passed the Tests on Completion the Contractor shall submit a certified report of the results of these Tests to the Employer

9.2 Delayed Tests

(a) If the Tests on Completion are being unduly delayed by the Employer,

paragraph (d) of Clause 6.2 and/or Clause 9.5 shall be applicable

(b) If the Tests on Completion are being unduly delayed by the Contractor, the

Employer may by notice require the Contractor to carry out the Tests within

21 days after receiving the notice If the Contractor fails to carry out the Tests

on Completion within the period of 21 days, the Employer may proceed with the Tests at the risk and cost of the Contractor The Tests on Completion shall then be deemed to have been carried out in the presence of the Contractor and the results of the Tests shall be accepted as accurate

9.3 Retesting

If the Works, or a Section, fail to pass the Tests on Completion, Clause 6.3 shall apply, and the Employer or the Contractor may require the failed Tests, and Tests on Completion on any related work, to be repeated under the same terms and conditions

9.4 Failure to pass Tests on Completion

(a) If the Works, or a Section, fail to pass the Tests on Completion repeated under

Clause 6.3, the Employer shall be entitled to :

(i) order further repetition of Tests on Completion under Clause 6.3; or (ii) issue a Taking-Over Certificate

(b) In the event of paragraph (a) (ii) above, the Contractor shall then proceed in

accordance with all other obligations under the Contract, and the Contract

Price shall be reduced by such amount as shall be appropriate to cover the reduced value to the Employer as a result of this failure

9.5 Interference with Tests on Completion

If the Contractor is prevented, for more than 14 days, from carrying out the Tests on Completion by a cause for which the Employer is responsible, the Contractor shall give notice to the Employer and shall be entitled subject to Clause 13.3 to:

(a) an extension of time for any such delay, if completion is or will be delayed,

under Clause 8.7; and

(b) payment of any such Cost, which shall be included in the Contract Price

10 TAKING OVER

(a) Except as stated in Clause 9.4, the Works shall be taken over by the Employer

when:

(i) the Works have been completed in accordance with the Contract, including the matters described in Clause 8.4 and except as allowed in paragraph (c)(i) below; and

(ii) a Taking-Over Certificate for the Works has been issued, or is deemed

to have been issued in accordance with this Clause

(b) The Contractor may apply by notice to the Employer for a Taking-Over

Certificate not earlier than 14 days before the Works will, in the Contractor's opinion, be complete and ready for taking over If the Works are divided into Sections, the Contractor may similarly apply for a Taking-Over Certificate for each Section

(c) The Employer shall, within 28 days after receiving the Contractor's

application:

(i) issue the Taking-Over Certificate to the Contractor, stating the date on which the Works or Section were completed in accordance with the Contract, except for any minor outstanding work and defects which will not substantially affect the use of the Works or Section for their intended purpose (either until or whilst this work is completed and these defects are remedied); or

(ii) reject the application, giving reasons and specifying the work required

to be done by the Contractor to enable the Taking-Over Certificate to

be issued The Contractor shall then complete this work before issuing

a further notice under this Clause

(d) If the Employer fails either to issue the Taking-Over Certificate or to reject the

Contractor's application within the period of 28 days, and if the Works or

Section (as the case may be) are substantially in accordance with the Contract, the Taking-Over Certificate shall be deemed to have been issued on the last day of that period

(a) The Employer may, at its sole discretion, issue a Taking-Over Certificate for

any part of the Permanent Works

(b) The Employer shall not use any part of the Works (other than as a temporary

measure which is either specified in the Contract or agreed by both Parties) unless and until the Employer has issued a Taking-Over Certificate for this part However, if the Employer does use any part of the Works before the Taking-Over Certificate is issued:

(i) the part which is used shall be deemed to have taken over as from the date on which it is used;

(ii) the Contractor shall cease to be liable for the care of such part as from this date, when responsibility shall pass to the Employer, and

Certificate for this part

(c) After the Employer has issued a Taking-Over Certificate for a part of the

Works, the Contractor shall be given the earliest opportunity to take such steps

as may be necessary to carry out any outstanding Tests on Completion The Contractor shall carry out these Tests on Completion as soon as practicable before the expiry date of the relevant Defects Notification Period

11 REMEDYING DEFECTS

In order that the Works, and each Section, shall be in the condition required by the Contract (fair wear and tear excepted) by the expiry date of the relevant Defects Notification Period or as soon as practicable thereafter, the Contractor shall at its risk and expense:

(a) complete any work which is outstanding on the date stated in a Taking-Over

Certificate, within such reasonable time as is instructed by the Employer, and (b) execute all work required to remedy defects or damage, as may be notified by

(or on behalf of) the Employer on or before the expiry date of the Defects Notification Period for the Works or Section (as the case may be)

(a) If the Contractor fails to remedy any defect or damage in accordance with 11.1

above within a reasonable time, a date may be fixed by (or on behalf of) the

Employer, on or by which the defect or damage is to be remedied The Contractor shall be given reasonable notice of this date

(b) If the Contractor fails to remedy the defect or damage by this notified date the

Employer may (at his option) carry out the work himself or by others, in a reasonable manner and at the Contractor's cost, and the Contractor shall pay to the Employer the costs reasonably incurred by the Employer in remedying the defect or damage

12 CONTRACTOR WARRANTY

The Contractor warrants and guarantees to the Employer as follows:

(a) all Materials and Plant incorporated into the Works shall be free of defects and

deficiencies in materials, assembly and workmanship, new, unused and undamaged when installed, in compliance with the requirements of this Contract, suitable for use under the climatic and normal operating conditions described in this Contract and otherwise in compliance with the standards of performance set forth in Clause 3; and

(b) the design, construction, procurement and installation services included in the

Works shall be performed with Contractor’s best skill and judgment, in a good and workmanlike manner and otherwise in compliance with the standards of performance set forth in Clause 3

If the Employer notifies Contractor in writing at any time in the period from the date stated in the Taking-Over Certificate as the date on which the Works or Section were completed in accordance with this Contract until the date that is two years thereafter

(the Warranty Period) that a breach of the warranty referred to in Clause 12.1 above

has occurred, the Contractor shall correct the defects and deficiencies promptly, without additional compensation and with minimal interference to the Employer’s operations The Contractor’s obligation to correct defects and deficiencies shall include labour, parts, transportation, factory repair and testing, dismantling, re-erecting, re-testing and commissioning

The Parties acknowledge that the Warranty is given by Contractor to Employer in addition to any Subcontractor warranties and guarantees that Contractor assigns to Employer pursuant to this Agreement, and that the expiration of the Warranty Period

is only applicable to the Warranty and will have no effect on any assigned Subcontractor warranties and guarantees that may be of longer duration Contractor’s Warranty obligations under this Article shall not be adversely affected by any actual

or possible Subcontractor warranties and guarantees

12.4 Warranty period Extension

(a) Extension for Corrected Work Any Work that is repaired or replaced by

Contractor, in satisfaction of Contractor’s obligations pursuant to Clause 12.2 (the “Corrected work”) will automatically be re-warranted by Contractor in conformance with the same Warranty set forth in Clause 12.1, and, subject to Clause 12.4.b below, Contractor will have the same obligations in relation thereto as set forth in Clause 12.2, for Corrected Work For the avoidance of doubt, to the extent a Warranty claim is made prior to the end of the Warranty Period or the Warranty End Date, Contractor shall be obligated to meet its repair obligations under Clause 12.2 in respect of any such claim

(b) Latent Defects Notwithstanding anything in Clause 12.4.(a) to the contrary,

if, following the end of the Warranty Period, Employer observes or discovers any material non-compliance with the Warranty that would not have been revealed to Employer during the Warranty Period despite Employer’s exercise

of reasonable due diligence in operating and maintaining the Facility, the Contractor shall effect the repair or replacement of such non-compliance with the Warranty (including any necessary uncovering and recovering) provided that notice of such error, omission, defect or deficiency shall have been given

to Contractor by Employer within five (5) years following the Taking-Over Certificate and provided further that Employer provides Contractor with such access to effect such repair or replacement as provided in Clause 8.4

The Parties acknowledge that the establishment of the Warranty Period relates only to the specific obligation of Contractor to cure Work that does not comply with the Warranty and has no relationship to the time within which Employer may seek to enforce, or commence proceedings to establish, Contractor’s liability with respect to Contractor’s other obligations under this Contract

The Warranty and Contractor’s obligations under this Clause are conditioned on the continuing operation and maintenance of the Facility in accordance in all material respects with the O & M Manual and Good Industry Practice The Warranty and Contractor’s obligations under this Clause do not cover, and Contractor shall have

no obligation to effect, repairs and/or replacement to the extent required due to ordinary wear and tear, or due to a failure to operate and maintain the Facility in accordance in all material respects with the O&M Manual and Good Industry Practice

Contractor further warrants and guarantees that title to all materials, supplies and equipment provided pursuant to this Contract shall pass to Employer free and clear of all claims, liens, security interests and other encumbrances, and that such materials, supplies and equipment shall not be acquired by Contractor subject to any agreement under which a security interest or other lien or encumbrance is retained by any