Kgn-tpp-013-2013 Muhoroni 30mw Emergency Thermal Power Plant Automotive Gas Oil Tender 2014

KENYA ELECTRICITY GENERATING COMPANY LIMITED
KGN-TPP-013-2013
TENDER FOR SUPPLY OF AUTOMOTIVE GASOIL FOR 30 MW MUHORONI TEMPORARY POWER PLANT
Kenya Electricity Generating Company Ltd Stima Plaza, Kolobot Road, Parklands P.O. Box 47936, 00100 NAIROBI Website: www.kengen.co.ke
November 2013
SECTION INVITATION TO TENDER -------------------GENERAL INFORMATION ---------------------INSTRUCTIONS TO BIDDERS -----------------GENERAL CONDITIONS OF CONTRACT ---SPECIAL CONDITIONS OF CONTRACT------TECHNICAL SPECIFICATIONS-----------------PRICE SCHEDULE . TENDER SUBMISSION FORM-------------------TENDER SECURITY FORM----------------------
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Section B Section C Section D Section E Section F Section G Section H Section I Section J
3 4-12 13-15 16-19 20-49 50 51 52 52 53 55 56 57
Section K CONTRACT FORM--------------------------------Section L PERFORMANCE SECURITY FORM-----------
Schedule 1 Schedule 2
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TENDER FOR SUPPLY OF AUTOMOTIVE GASOIL FOR 30MW TEMPORARY POWER PLANT AT MUHORONI
Section B INVITATION TO TENDER KENYA ELECTRICITY GENERATING COMPANY LIMITED

The Company invites sealed tenders from eligible candidates for the supply of Automotive Gas oil (AGO) to Muhoroni 30 MW Temporary Power Plant. Interested eligible candidates may obtain further information from, and inspect the Tender Documents at the office of: Supply Chain Manager, Kenya Electricity Generating Company Limited Ground Floor, Stima Plaza, Phase III Kolobot Road, Parklands P O Box 47936 - 00100 NAIROBI, KENYA Fax: (254) (020) 3666200 Where the tender document may be collected upon payment of a non-refundable fee of KShs. 1,000.00 paid in cash or through a bankers cheque at any KenGen office. The document can also be viewed and downloaded from the website www.kengen.co.ke. Bidders who download the tender document from the website must forward their particulars immediately for records and any further tender clarifications and addenda. Tenders must be accompanied by a security in the form and amount specified in the tender documents, and must be delivered to: Company Secretary, Legal & Corporate Affairs Director Kenya Electricity Generating Co. Ltd 7th Floor, Stima Plaza Phase III Kolobot Road, Parklands P O Box 47936 - 00100 NAIROBI, KENYA
On or before: 27th November, 2013 at 11:00 a.m. There will be a MANDATORY SITE VISIT on 15th November , 2013, 10:30 a.m. at Muhoroni Kenya Power (KPLC) Substation where the Temporary Power Plant is located. The tenders will be opened on 27th November 2013 11.00 am. in the presence of the candidates representative who chose to attend at Stima Plaza III, KenGen Executive Room 7th floor.
SUPPLY CHAIN MANAGER

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Section C
General Information Introduction

1. Eligible Tenderers This Invitation for Tenders is open to all firms licensed by the Ministry Of Energy/Energy Regulatory Commission to trade in fuels. Successful tenderers shall complete the supply of goods, by the intended date specified in the tender documents. 2. Cost of Tendering The Tenderer shall bear all costs associated with the preparation and submission of its tender, and the Kenya Electricity Generating Company Limited, will in no case be responsible or liable for those costs, regardless of the conduct or outcome of the tendering process.
The Tender Document

3 Contents
3.1 The tender document comprises the documents listed below and addenda issued in accordance with clause 5 of these instructions to tenders. (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) Invitation for Tenders General information Instructions to bidders General Conditions of Contract Special Conditions of Contract Technical Specifications Tender Form and Price Schedules Tender Security Form Contract Form Performance Security Form
3.2 The Tenderer is expected to examine all instructions, forms, terms, and specifications in the tender documents. Failure to furnish all information required by the tender documents or to submit a tender not substantially responsive to the tender documents in every respect will be at the tenderers risk and may result in the rejection of its tender. 4. Clarification of Documents A prospective tenderer requiring any clarification of the tender document may notify the Procuring entity in writing or by cable (hereinafter, the term cable is deemed to include facsimile) at the entitys address indicated in the Invitation for tenders. The Procuring entity will respond in writing to any request for clarification of the tender documents, which it receives no later than SEVEN (7) days prior to the deadline for the submission of tenders, prescribed by the Procuring entity. Written copies of the Procuring entity response (including an explanation of the query but without identifying the source of inquiry) will be sent to all prospective tenderers that have received the tender document.
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5. Amendment of Documents 5.1 At any time prior to the deadline for submission of tenders, the Procuring entity, for any reason, whether at its own initiative or in response to a clarification requested by a prospective tenderer, may modify the tender documents by amendment. 5.2 All prospective candidates that have received the tender documents will be notified of the amendment in writing or by cable, and will be binding on them. 5.3 In order to allow prospective tenderers reasonable time in which to take the amendment into account in preparing their tenders, the Procuring entity, at its discretion, may extend the deadline for the submission of tenders.
Preparation of Tenders
6. Language of Tender The tender prepared by the tenderer, as well as all correspondence and documents relating to the tender exchanged by the tenderer and Procuring entity, shall be written in English language
7. Documents Comprising the Tender The tender prepared by the tenderer shall comprise the following components: (a) (b) a Tender Form and a Price Schedule completed in accordance with paragraph 8 tender security furnished in accordance with paragraph 9
8. Tender Form The tenderer shall complete the Tender Form and the appropriate Price Schedule furnished in the tender documents. 9. Tender Security 9.1 The tenderer shall furnish, as part of its tender, a Tender Security of Kenya Shillings Five million (5,000,000.00). The tender security is required to protect the Procuring entity against the risk of Tenderers conduct which would warrant the securitys forfeiture, pursuant to paragraph 9.7
9.2
9.3 The tender security shall be denominated in Kenya Shillings or in another freely convertible currency, and shall be in the form of a bank guarantee or a bank draft issued by a reputable bank located in Kenya or abroad, in the form provided in the tender documents or another
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form acceptable to the Procuring entity and valid for until 28
th
of March 2014
9.4 9.4 Any tender not secured in accordance with paragraph 9.1 and 9.3 will be rejected by the Procuring entity as non-responsive, pursuant to paragraph 17.1 and 17.5. 9.5 Unsuccessful Tenderers tender security will be discharged or returned as promptly as possible as but not later than thirty (30) days after the expiration of the period of tender validity prescribed by the Procuring entity. 9.6 The successful Tenderers tender security will be discharged upon the tenderer signing the contract, pursuant to paragraph 25, and furnishing the performance security, pursuant to paragraph 26. 9.7 The tender security may be forfeited: (a) if a tenderer withdraws its tender during the period of tender validity specified by the procuring entity on the Tender Form; or in the case of a successful tenderer, if the tenderer fails: (i) to sign the contract in accordance with paragraph 25 (ii) to furnish performance security in accordance with paragraph 26
(b) or
10. Validity of Tenders 10.1 Tender shall remain valid UNTIL 28TH Of April 2014 or as specified in the tender documents after date of tender opening prescribed by the Kenya Electricity Generating Company Limited, pursuant to paragraph 13. A tender valid for a shorter period shall be rejected by the Procuring entity as non-responsive. 10.2In exceptional circumstances, the Procuring entity may solicit the Tenderers consent to an extension of the period of validity. The request and the responses thereto shall be made in writing. The tender security provided under paragraph 9 shall also be suitably extended. A tenderer may refuse the request without forfeiting its tender security. A tenderer granting the request will not be required nor permitted to modify its tender.
11. Format and Signing of Tender 11.1 The Tenderer shall prepare TWO copies of the tender, clearly marking one as ORIGINAL TENDER and the ot her as COPY OF TENDER. In the event of any discrepancy between them, the original shall govern. Tenders not meeting this requirement shall not be evaluated by the procuring entity. The tenderers MUST also in addition submit an electronic copy of the Original bid in either CD or Flash Disk form. 11.2 The original and all copies of the tender shall be typed or written in indelible ink and shall be signed by the tenderer or a person or persons duly authorized to bind the tenderer to the contract. Written power-of-attorney accompanying the tender shall indicate the latter authorization. The person or persons signing the tender shall initial all pages of the tender, except for unamended printed literature.
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11.3 The tender shall have no interlineations, erasures, or overwriting except as necessary to correct errors made by the tenderer, in which case such corrections shall be initialed by the person or persons signing the tender. 11.4 Bidders MUST sign and stamp on every page of your bid submission 11.5 Bidders Must paginate Their bid submission.
Submission of Tenders
12. Sealing and Marking of Tenders 12.1 The tenderer shall seal the original, copy a n d t h e e l e c t r o n i c c o p y of the tender in separate envelopes, duly marking the envelopes as ORIGINAL and COPY 1. And COPY 2. The envelopes shall then be sealed in an outer envelope. 12.2 The inner and outer envelopes shall: (a) be addressed to the Procuring entity at the following address: Company Secretary, Legal & Corporate Affairs Director Kenya Electricity Generating Co. Ltd. 7th Floor, Stima Plaza Phase III Kolobot Road, Parklands P O Box 47936-00100 NAIROBI, KENYA. (b) bear, Tender for supply of Automotive Gas Oil (AGO) to Muhoroni 30MW Temporary Power Plant, and the words: DO NOT OPEN BEFORE 27th November 2013 at 11.00am
12.3 The inner envelopes shall also indicate the name and address of the tenderer to enable the tender to be returned unopened in case it is declared late. 12.4 If the outer envelope is not sealed and marked as required by paragraph 12.2, the Procuring entity will assume no responsibility for the tenders misplacement or premature opening.
13. Deadline for Submission of Tenders 13.1 Tenders must be received by the Procuring entity at the address specified under paragraph 12.2 not later than 27th November 2013 at 11.00am 13.2 The Procuring entity may, at its discretion, extend this deadline for the submission of tenders by amending the tender documents in accordance with paragraph 5, in which case all rights and obligations of the Procuring entity and candidates previously subject to the deadline will thereafter be subject to the deadline as extended.
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14. Modification and Withdrawal of Tenders 14.1The tenderer may modify or withdraw its tender after the tenders submission, provided that written notice of the modification, including substitution or withdrawal of the tenders, is received by the Procuring entity prior to the deadline prescribed for submission of tenders. 14.2 No tender may be modified after the deadline for submission of tenders. 14.3No tender may be withdrawn in the interval between the deadline for submission of tenders and the expiration of the period of tender validity specified by the tenderer on the Tender Form. Withdrawal of a tender during this interval may result in the Tenderers forfeiture of its tender security, pursuant to paragraph 9.7.
Opening and Evaluation of Tenders

15. Opening of Tender 15.1The Procuring entity will open all tenders in the presence of tenderers representatives who choose to attend, at 27th November 2013 at 11.00am on 7th floor, Executive Room, Stima Plaza, Phase III, Kolobot Road, Parklands. The tenderers representatives who are present shall sign a register evidencing their attendance. 15.2 The tenderers names, tender modifications or withdrawals, tender prices, discounts, and the presence or absence of requisite tender security and such other details as the Kenya Electricity Generating Company Limited, at its discretion, may consider appropriate, will be announced at the opening. 15.3 The Procuring entity will prepare minutes of the tender opening. 16. Clarification of Tenders 16.1To assist in the examination, evaluation and comparison of tenders the Procuring entity may, at its discretion, ask the tenderer for a clarification of its tender. The request for clarification and the response shall be in writing, and no change in the prices or substance of the tender shall be sought, offered, or permitted. 16.2Any effort by the tenderer to influence the Procuring entity in the Procuring entitys tender evaluation, tender comparison or contract award decisions may result in the rejection of the tenderers tender. 17. Preliminary Examination 17.1 The Procuring entity will examine the tenders to determine whether they are complete, whether any computational errors have been made, whether required sureties have
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been furnished, whether the documents have been properly signed, and whether the tenders are generally in order. 17.2 Arithmetical errors will be rectified on the following basis. If there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and quantity, the unit price shall prevail, and the total price shall be corrected. If the candidate does not accept the correction of the errors, its tender will be rejected, and its tender security may be forfeited. If there is a discrepancy between words and figures, the amount in words will prevail. 17.3 The Procuring entity may waive any minor informality or non-conformity or irregularity in a tender which does not constitute a material deviation, provided such waiver does not prejudice or affect the relative ranking of any tenderer. 17.4 Prior to the detailed evaluation, the Procuring entity will determine the substantial responsiveness of each tender to the tender documents. For purposes of these paragraphs, a substantially responsive tender is one, which conforms to all the terms and conditions of the tender documents without material deviations. The Procuring entitys determination of a tenders responsiveness is to be based on the contents of the tender itself without recourse to extrinsic evidence. 17.5 If a tender is not substantially responsive, it will be rejected by the Procuring entity and may not subsequently be made responsive by the tenderer by correction of the nonconformity. 18. Evaluation and Comparison of Tenders 18.1 The Procuring entity will evaluate and compare the tenders, which have been determined to be substantially responsive, pursuant to paragraph 17. 18.2 The Procuring entitys evaluation of a tender will take into account, in addition to the tender price and the price of incidental services, the following factors, in the manner and to the extent indicated in paragraph 12.6.3 of the Special Conditions of the contract and in the technical specifications: (a) (b) delivery schedule offered in the tender; deviations in payment schedule from that specified in the Special Conditions of Contract;
18.3 Pursuant to paragraph 18.2 the following evaluation methods will be applied: (a) Delivery schedule. (i) The Procuring entity requires that the goods under the Invitation for Tenders shall be delivered at the time specified in the Schedule of Requirements. Tenders offering deliveries longer than the procuring entitys required delivery time will be treated as non-responsive and rejected.
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(b)
Deviation in payment schedule. Tenderers shall state their tender price for the payment of schedule outlined in the special conditions of contract. Tenders will be evaluated on the basis of this base price. Tenderers are, however, permitted to state an alternative payment schedule and indicate the reduction in tender price they wish to offer for such alternative payment schedule. The Procuring entity may consider the alternative payment schedule offered by the selected tenderer.
(c)
Financial Capability (to be evaluated from the latest financial statement) Minimum annual turnover of KShs. 1,000,000,000.00 (Kshs. 1.0 billion) Current ratio must be equal to or greater than 1.0 (one) Quick Acid Test Ratio must be positive Positive closing cash balance in Cash Flow Statement and Balance Sheet Where as the above Financial Capability is not met, the bidders MUST provide Letter(s) of support from reputable bank(s)
19. Contacting the Procuring entity Subject to paragraph 16, no tenderer shall contact the Procuring entity on any matter relating to its tender, from the time of the tender opening to the time the contract is awarded. Any effort by a tenderer to influence the Procuring entity in its decisions on tender evaluation, tender comparison, or contract award may result in the rejection of the Tenderers tender.
Award of Contract
20. Post-qualification 20.1 In the absence of pre-qualification, the Procuring entity will determine to its satisfaction whether the tenderer that is selected as having submitted the lowest evaluated responsive tender is qualified to perform the contract satisfactorily. 20.2 An affirmative determination will be a prerequisite for award of the contract to the tenderer. A negative determination will result in rejection of the Tenderers tender, in which event the Procuring entity will proceed to the next lowest evaluated tender to make a similar determination of that Tenderers capabilities to perform satisfactorily. 21. Award Criteria The Procuring entity will award the contract to the successful tenderer(s) whose tender has been determined to be substantially responsive and has been determined to be the lowest evaluated tender, provided further that the tenderer is determined to be qualified to perform the contract satisfactorily.
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22. Procuring entitys Right to Vary quantities The Procuring entity reserves the right at the time of contract award to increase or decrease the quantity of goods originally specified in the Schedule of requirements without any change in unit price or other terms and conditions. 23. Procuring entitys Right to Accept or Reject Any or All Tenders
The Procuring entity reserves the right to accept or reject any tender, and to annul the tendering process and reject all tenders at any time prior to contract award, without thereby incurring any liability to the affected tenderer or tenderers or any obligation to inform the affected tenderer or tenderers of the grounds for the Procuring entitys action. 24. Notification of Award Prior to the expiration of the period of tender validity, the Procuring entity will notify the successful tenderer in writing that its tender has been accepted. 25. Signing of Contract 25.1 At the same time as the Procuring entity notifies the successful tenderer that its tender has been accepted, the Procuring entity will send the tenderer the Contract Form provided in the tender documents, incorporating all agreements between the parties. 25.2 Within Fifteen (15) days of receipt of contract form, the successful tenderer shall sign and date the contract and return it to the preparing entity. 26. Performance Security 26.1 Within Fifteen (15) days of the receipt of notification of award from the Procuring entity, the successful tenderer shall furnish the performance security in accordance with the Conditions of Contract, in the Performance Security Form provided in the tender documents, or in another form acceptable to the Procuring entity. 26.2Failure of the successful tenderer to comply with the requirement of paragraph 25 shall constitute sufficient grounds for the annulment of the award and forfeiture of the tender security, in which event the Procuring entity may make the award to the next lowest evaluated Candidate or call for new tenders. 27. Corrupt Fraudulent Practices 27.1 The Procuring entity requires that tenderers observe the highest standard of ethics during the procurement process and execution of contracts. In pursuance of this policy, the Procuring entity:(a) defines, for the purposes of this provision, the terms set forth below as follows:
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(i)
corrupt practice means the offering, giving, receiving or soliciting of any thing of value to influence the action of a public official in the procurement process or in contract execution; and fraudulent practice means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of the Procuring entity, and includes collusive practice among tenderer (prior to or after tender submission) designed to establish tender prices at artificial noncompetitive levels and to deprive the Procuring entity of the benefits of free and open competition;
(ii)
(b)
will reject a proposal for award if it determines that the tenderer recommended for award has engaged in corrupt or fraudulent practices in competing for the contract in question; will declare a firm ineligible, either indefinitely or for a stated period of time, to be awarded any contract if it at any time determines that the firm has engaged in corrupt or fraudulent practices in competing for, or in executing, a contract.
(c)
27.2 Furthermore, tenderers shall be aware of the provision stated in the General Conditions of Contract.
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Section D Instructions To Bidders

1 Invitation to Bid (i) On account of anticipated power supplydemand imbalance as a result of the growing economy, the Government of Kenya (GOK) is in the process of procuring 30MW of Temporary Power at Muhoroni through Kenya Electricity Generating Company (KenGen). KenGen shall enter into a Temporary Power Supply Agreement with a Power Provider for Muhoroni 30MW Effective 15th January 2014 for a period of twelve (12) months.
Kenya Electricity Generating Company Limited (KenGen) hereinafter referred to as the "Purchaser", therefore invites Bids from interested companies, hereinafter referred to as the "Bidders", for the supply of Automotive Gasoil (AGO) (the "Fuel") to be delivered to its Plant at Muhoroni. 1.1 Quantity of Fuel and Duration of Supply The quantity of AGO required shall be approximately 2,000MT per month for Muhoroni 30MW Power Plant. Bidders are notified that KenGen will not guarantee a 100% power generation of the power plant at any one given time as this is determined by the requirements of power operator, Kenya Power. However, for evaluation purposes only, KenGen will use a Plant Load Factor of 50%. Bidders are also advised that the specific Fuel Consumption (SFC) of Muhoroni Plant is set at 0.223 kg/kWh. Bidders are welcome to bid for Muhoroni Plant fuel supply. The commencement date of the first initial supply after the signing of the fuel supply contract will be on 15th January 2014. Thereafter, the deliveries of Fuel will be made pursuant to orders made by the Purchaser. 1.2 Fuel Storage Facilities KenGen has Fuel Storage Facilities at Muhoroni Site with a combined capacity of 2,000,000 Litres. The Facilities will be availed to the winning Bidder for the purpose of storing and supplying the 30MW Temporary Power Plant with fuel. However, the Bidder will have to install its own pumps, motors, fuel delivery couplings, and stand-by generator. In addition, the bidder will have to open their own electricity account with Kenya Power and make arrangements with Kenya Power for water supply from a nearby borehole which belongs to Kenya Power. All the above will be at own cost. The bidder will also meet all security aspects of the depot facilities at own cost. The Bidder must provide in addition to the above evidence of access to a minimum storage capacity of 5,000MT either in Kisumu, Mombasa or Nairobi.
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There will be one Fuel Skid and the Fuel Supplier will be expected to provide two Billing and two Check Meters at the skid. Each Billing Meter will be connected to a Check Meter to form two parallel fuel supply lines. This is to cater for an alternative fuel supply line in case one fails. It must be noted that ONLY one fuel supply line will be operational at a given time as the alternative line is isolated and locked (sealed). It must be noted that KenGen has no responsibility whatsoever on what happens inside the fuel yard and the fuel custody transfer is after the Billing Meter. The lighting of the yard at night must be adequate enough not to create insecurity to the neighbouring power provider in any way. 1.3 Connection to the generators The bidder shall be required to provide transfer pumps and lay recoverable fuel transfer pipes from the storage tanks to the metering facilities just before the Service tanks. 1.4 Ownership and Operation Subject to paragraph 1.2 of Instructions to Bidders, the successful bidder shall be required to operate the fuel storage, transfer facilities and fuel at site. Custody transfer of the fuel shall pass to the Purchaser at the metering point. The cost of bio-coding of the fuel in the storage tanks if required by Kenya Revenue Authority will be the responsibility of the successful bidder and shall be invoiced separately to the Procurement Entity at cost. The successful bidder shall be required to provide a mass flow meter of 0.5% accuracy by weight. The successful bidder shall be responsible for all aspects of Environmental, Health and Safety of their installation. Any penalties by NEMA due to contraventions of the NEMA requirements will be borne by the Supplier. 1.5 Site Visits A MANDATORY SITE VISIT will be conducted by KenGen at Muhoroni 30 MW Power Plant site on Friday, 1st March 2013, 10:30 a.m. The site is located at Kenya Power Substation which is about 55 km from Kisumu on Kisumu-Kericho Highway. Bidders will be expected to assemble at the 30MW Muhoroni Power Plant site by 10.00 a.m. 2 Queries Queries with respect to all aspects of this tender may be addressed in writing or by e-mail at least Five (5) days before the closing date to: Mr. Joel Ngugi and copied to Mr. Richard Nderitu and Mr. Patrick Kimemia Kenya Electricity Generating Company Ltd
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Stima Plaza, Phase III, Kolobot Rd, Parklands, P.O Box 47936-00100, Nairobi. Tel. 020-3666423, 020-3666412 Fax. 020-248848 E-mail: jngugi@kengen.co.ke, CC: rnderitu@kengen.co.ke; pkimemia@kengen.co.ke; tenders@kengen.co.ke
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Section E General Conditions of Contract

1. Definitions 1.1 In this Contract, the following terms shall be interpreted as indicated: (a) The Contract means the agreement entered into between the Procuring entity and the tenderer, as recorded in the Contract Form signed by the parties, including all attachments and appendices thereto and all documents incorporated by reference therein. The Contract Price means the price payable to the tenderer under the Contract for the full and proper performance of its contractual obligations. The Goods means all of the equipment, machinery, and/or other materials, which the tenderer is required to supply to the Procuring entity under the Contract. The Procuring entity means the organization purchasing the Goods under this Contract. The tenderer means the individual or firm supplying the Goods under this Contract.
(b)
(c)
(d)
(e)
2. Application 2.1 These General Conditions shall apply in all Contracts made by the Procuring entity for the procurement of goods.
3. Standards The Goods supplied under this Contract shall conform to the standards mentioned in the General Conditions. 4. Use of Contract Documents and Information The Candidate shall not, without the Procuring entitys prior written consent, disclose the Contract, or any provision thereof, or any specification, plan, drawing, pattern, sample, or information furnished by or on behalf of the Procuring entity in connection therewith, to any person other than a person employed by the tenderer in the performance of the Contract.
5. Patent Rights The tenderer shall indemnify the Procuring entity against all third party claims of infringement of patent, trademark, or industrial design rights arising from use of the Goods or any part thereof in the Procuring entitys country.
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6. Performance Security 6.1 Within Fifteen (15) days of receipt of the notification of Contract award, the successful tenderer shall furnish to the Procuring entity the performance security in the amount specified in Special Conditions of Contract.
6.2 The proceeds of the performance security shall be payable to the Procuring entity as compensation for any loss resulting from the Tenderers failure to complete its obligations under the Contract 6.3 The performance security shall be denominated in the currency of the Contract, or in a freely convertible currency acceptable to the Procuring entity and shall be in the form of a bank guarantee issued by a reputable bank located in Kenya or abroad, acceptable to the Procuring entity, in the form provided in the tender documents. 6.4 The performance security will be discharged by the Procuring entity and returned to the Candidate not later than thirty (30) days following the date of completion of the Tenderers performance obligations under the Contract, including any warranty obligations, under the Contract. 7. Inspection and Tests 7.1 The Procuring entity or its representative shall have the right to inspect and/or to test the Goods to confirm their conformity to the Contract specifications. The Procuring entity shall notify the tenderer in writing, in a timely manner, of the identity of any representatives retained for these purposes. 7.2 The inspections and tests may be conducted on the premises of the tenderer or its subcontractor(s), at point of delivery, and/or at the Goods final destination. If conducted on the premises of the tenderer or its subcontractor(s), all reasonable facilities and assistance, including access to drawings and production data, shall be furnished to the inspectors at no charge to the Procuring entity. 7.3 Should any inspected or tested Goods fail to conform to the Specifications, the Procuring entity may reject the Goods, and the tenderer shall either replace the rejected Goods or make alterations necessary to meet specification requirements free of cost to the Procuring entity. The Procuring entitys right to inspect, test and, where necessary, reject the Goods after the Goods arrival shall in no way be limited or waived by reason of the Goods having previously been inspected, tested, and passed by the Procuring entity or its representative prior to the Goods delivery.
7.4
8. Packing 8.1 The tenderer shall provide such packing of the Goods as is required to prevent their damage or deterioration during transit to their final destination, as indicated in the Contract. 8.2 The packing, marking, and documentation within and outside the packages shall comply strictly with such special requirements as shall be expressly provided for in the Contract.
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9. Delivery and Documents The tenderer shall deliver the goods to the delivery point(s) specified in the special conditions of contract 10. Insurance The Goods supplied under the Contract shall be fully insured against loss or damage incidental to manufacture or acquisition, transportation, storage, and delivery in the manner specified in the Special conditions of contract 11.Payment 11.1 The method and conditions of payment to be made to the tenderer under this Contract shall be specified in Special Conditions of Contract. 11.2 Payments shall be made promptly by the Procuring entity as specified in the contract. 12.Prices Prices charged by the tenderer for Goods delivered and Services performed under the Contract shall not, with the exception of any price adjustments authorized in Special Conditions of Contract, vary from the prices by the tenderer in its tender.
13.Assignment The tenderer shall not assign, in whole or in part, its obligations to perform under this Contract, except with the Procuring entitys prior written consent. 14.Subcontracts The tenderer shall notify the Procuring entity in writing of all subcontracts awarded under this Contract if not already specified in the tender. Such notification, in the original tender or later, shall not relieve the tenderer from any liability or obligation under the Contract. 15. Suppliers Default 15.1 The Procuring entity may, without prejudice to any other remedy for breach of Contract, by written notice of default sent to the tenderer, terminate this Contract in whole or in part: (a) if the tenderer fails to deliver any or all of the Goods within the period(s) specified in the Contract, or within any extension thereof granted by the Procuring entity. (b) if the tenderer fails to perform any other obligation(s) under the Contract. (c) if the tenderer, in the judgment of the Procuring entity has engaged in corrupt or fraudulent practices in competing for or in executing the Contract.
15.2 In the event the Procuring entity terminates the Contract in whole or in part, it may
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procure, upon such terms and in such manner, as it deems appropriate, Goods similar to those undelivered, and the tenderer shall be liable to the Procuring entity for any excess costs for such similar Goods. 16. Liquidated Damages If the tenderer fails to deliver any or all of the goods within the period(s) specified in the contract, the procuring entity shall, without prejudice to its other remedies under the contract, deduct from the contract prices liquidated damages sum equivalent to 0.5% of the delivered price of the delayed goods up to a maximum deduction of 10% of the delayed goods. After this the tenderer may consider termination of the contract. 17. Resolution of Disputes 17.1 The procuring entity and the tenderer shall make every effort to resolve amicably by direct informal negotiation any disagreement or dispute arising between them under or in connection with the contract. 17.2 If, after thirty (30) days from the commencement of such informal negotiations both parties have been unable to resolve amicably a contract dispute, either party may require adjudication in an agreed national or international forum, and/or international arbitration. 18. Language and Law The language of the contract and the law governing the contract shall be English language and the Laws of Kenya respectively unless otherwise stated.
19. Force Majeure The tenderer shall not be liable for forfeiture of its performance security, or termination for default if and to the extent that its delay in performance or other failure to perform its obligations under the Contract is the result of an event of Force Majeure.
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Section F:
Special Conditions of Contract
i. Definitions In this Agreement, the following words and expressions shall (unless the content otherwise requires) bear the respective meanings set out below: Affiliate" means, in relation to any person, any holding company or subsidiary of that person or any subsidiary of a holding company of that person within the meaning of Section 154 of the Companies Act of Kenya (Cap. 486); Agreement" means this Fuel Supply Agreement between KenGen and the Supplier, as may be lawfully amended from time to time; "Alternative Supplier" means any supplier (or source of supply) of Fuel (as the case may be) other than the Supplier; "ASTM" means American Society for Testing and Materials; "Authorizations" means any approval, consent, license, permit, authorization or other permission granted by a Competent Authority relevant to the subject matter of this agreement; "Average US Dollar Exchange Rate" means the average for the relevant month of Fuel supply of the daily US dollar mean rate for the conversion of the relevant currency as determined by the Central Bank of Kenya for each day in the relevant month (calculated by aggregating such daily rates and dividing them by the number of days for which such rates were quoted); Bid Security means the On Demand bank guarantee submitted by the Supplier together with its Bid; "Certificate of Analysis" means a certificate issued by the Independent Inspector providing a detailed analysis of the Fuel in accordance with internationally recognized testing standards; "Change in Law" means the adoption, promulgation, or modification after the date of this Agreement of any Directive or the imposition upon the Parties of any material condition in connection with the issuance, renewal, extension, replacement or modification of any Authorization after the date of this Agreement that in either case establishes requirements over the subject matter of this Agreement that are materially more restrictive than the most restrictive of the requirements in effect as of the date of this Agreement; "Change in Tax" means any change, following the date of this Agreement in any duties, fees, and taxes imposed pursuant to the Laws of the Republic of Kenya in respect of the sale, importation, transportation or delivery of Fuel.
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"Competent Authority" means any local, national or supranational agency, authority, department, inspectorate, minister, official, court, tribunal or public or statutory person (whether autonomous or not) of the KenGen which has jurisdiction over the Parties or the subject matter of this Agreement; . Consumer means (Contracted provider of Temporary power) "Contracted Fuel Price" means the price stated in Clause 12.2 hereof; "Co-ordinators" means each of the Co-ordinators further described in Clause 29 hereof; Day and month mean a calendar day and a calendar month, respectively. "Delivery Point" means the respective delivery points for delivery of Fuel, as set out in Clause 22 "Default Rate" means 0.75 per cent per month above LIBOR "Directive" means any present or future directive, request, requirement, instruction, direction or rule of any Competent Authority (but only, if not having the force of law, if it is reasonable in all the circumstances for it to be treated as though it had legal force), and includes any modification, extension or replacement thereof from time to time in force; "Dispute" means any dispute, difference or disagreement of any kind whatsoever between the Supplier and KenGen in connection with or arising out of this Agreement "Equipment" means all of the pipes, storage tanks, loading and unloading facilities, transportation equipment, metering systems provided by the Supplier and such other equipment as may be required to supply Fuel from the Supplier to KenGen pursuant to the terms of this Agreement; "Expert Adjudication" means, the procedure for the resolution of disputes by expert adjudication conducted in accordance with Clause 30 (b-d) hereof; "Expiry Date" means Tuesday 14th January 2014. "Fuel" means Automotive Gasoil (AGO), which will be supplied by the Supplier pursuant to this Agreement; "Fuel Analyst" means an independent Person with relevant experience of fuel testing and analysis and willing to act as fuel analyst, at the request of KenGen; "Fuel Specifications" means the specifications for Fuel to be delivered pursuant to this Agreement as set out Section G; "Initial Delivery Date" means the date on which the Supplier after the receipt of the first weekly order, shall be required to begin the delivery of Fuel to the Delivery Point "Independent Inspector" means the individual or firm designated by mutual agreement of the Parties to measure the quality of Fuel and related matters set forth in this Agreement;
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"LIBOR" means in respect of any day, the offered rate for US$ quoted by Barclays Bank Plc, London, or such other bank as the Parties shall from time to time agree, to prime banks in the London Interbank Market at 11:00 hours (London time) for a deposit of a principal sum equivalent to the sum in question for a period commencing on such day and ending thirty (30) days later provided that if such rate is not quoted on any day the rate last quoted shall be used; "MT" or "Metric Ton" means 1,000 kilograms. "MW" means megawatt or megawatts, as the context requires; "NDDT" means nominated delivery date and time; "Party" means either KenGen or the Supplier and "Parties" means both of them; "Performance Security" means an on demand performance bond in the amount specified drawn on First class bank acceptable to KenGen. Platt's Quotation means the Platt's Oilgram Price Report or Platt's Marketwire (for crude oil) or Platt's European Marketscan (for products) quotation published by the McGraw-Hill Companies Inc. "Power Plant" means the 30MW at Muhoroni Diesel driven generator sets, and miscellaneous mechanical and electrical equipment; "Required Delivery Week" means the week by which any quantity of Contracted Fuel required by the Purchaser hereunder must be delivered by the Supplier to the Delivery Point(s), as a result of the relevant order of the Purchaser. "Supplier's Account" means the account maintained by the Supplier for the purpose of receiving payments from KenGen hereunder, or such other account as may be notified in writing by the Supplier to KenGen from time to time; "Supplier's Performance Security" means the performance guarantee as defined in Clause 6. "Temporary" means any condition or situation that is a basis for fuel Consumer to cease generation of electricity from the Plant pursuant to the EPPA; "Terminal " means the Supplier's Fuel storage point located at site, and its loading, unloading, and handling facilities for road through which supplies of Fuel are to be made by the Supplier; and "US Dollars" or "US$" means the lawful currency of the United States of America.
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ii.
Interpretation 1.2.1 In this Agreement (including its Schedules), unless the context otherwise requires: any references to: (a) a Law, Regulation or Order of a Competent Authority or any other enactment or any section of, or schedule to, or other provision of any such enactment shall be construed, at any particular time, as including a reference to any modification, extension or reenactment thereof then in force and to all instruments, orders or regulations then in force and made under or deriving validity from the relevant enactment or provision (as the same may have been so modified, extended or re-enacted from time to time); (b) an agreement shall be construed, at any particular time, as including a reference to the relevant agreement as it may have been supplemented, amended or novated; (c) a business day shall be construed as a reference to any day (other than a Saturday or a Sunday) which is not a public holiday in Nairobi; (d) a week shall be construed as a reference to a calendar week; (e) a month shall be construed as a reference to a calendar month according to the Gregorian Calendar; (f) a year shall be construed as a reference to a calendar year; (g) a particular Clause, Sub-clause or Schedule shall be a reference to the relevant Clause, sub-clause or Schedule in or to this Agreement; (h) a particular paragraph or sub-paragraph, if contained in a Schedule, shall be a reference to the relevant paragraph or sub-paragraph of that Schedule; and (i) a reference to a "Party or Parties" shall be construed as a reference to a party or parties to this Agreement; i.3.2 words in the singular may be interpreted as referring to the plural and vice versa, and words denoting natural persons may be interpreted as referring to corporations and any other legal entities and vice versa; a requirement that a payment be made on a day which is not a business day shall be construed as a requirement that the payment be on the next business day; the word "including" is to be construed without limitation;
i.3.3
i.3.4
6. Performance Security The performance security shall be KShs. 20,000,000 (KShs Twenty Million). 7. Inspection and tests
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DETERMINING QUALITY AND INSPECTION I.5 Independent Inspector
At least Fourteen (14) Days prior to the Initial Delivery Date, Fuel Supplier and KenGen shall engage an Independent Inspector to determine the quality (as provided in Clause 7.0) of each delivery. The Independent Inspector shall be a person established in the Republic of Kenya and agreed on between KenGen and the Fuel Supplier. All costs of the Independent Inspector shall be borne by the Supplier. The Parties shall replace the independent Inspector in the event that the Independent Inspector is unable, for any reason to perform its duties pursuant to this Agreement or the Parties otherwise mutually agree. I.6 (i) Quality of Fuel Fuel Samples
In addition to the sample for his test, the Independent Inspector shall procure for each of KenGen and the Consumer two samples of the Contracted fuel delivered. Each sample so delivered shall be sealed and shall clearly specify the time of delivery and the Delivery Date. (ii) Direct Delivery from a Vessel
In the event that Fuel Supplier delivers Fuel to the Delivery Point directly from a Vessel without temporarily storing such Fuel in the Fuel Supplier Storage Tanks, the Independent Inspector shall take Fuel samples as provided in Clause 7.0 from the shore tanks at the port from which the Vessel is to be loaded with Fuel prior to loading the Fuel on the Vessel. The Independent Inspector shall perform qualitative tests with respect to such samples in accordance with ISO 3170, ASTM 4057 or other similar method. The Independent Inspector shall provide the test results obtained pursuant to this clause 7.0 to KenGen at least twenty-four (24) hours prior to the NDDT. (iii) Direct Delivery from Fuel Supplier Storage Tanks
In the event that Fuel Supplier delivers Fuel to the Delivery Point directly from the Fuel Supplier Storage Tanks, the Independent Inspector shall take Fuel samples from the Fuel Supplier Storage Tanks at least forty-eight (48) hours prior to the NDDT. Following the taking of such Fuel samples, the Independent Inspector shall seal the Fuel Supplier Storage Tanks to prevent any additional product from being introduced into the tanks. The Independent Inspector shall perform qualitative tests with respect to such samples in accordance with ISO 3170, ASTM 4057 or other similar method. The Independent Inspector shall provide the test results obtained pursuant to this Clause 7.0 to KenGen at least twenty-four (24) hours prior to the NDDT. (iv) Specification of Fuel Delivered
KenGen shall have no obligation to accept delivery of any Fuel for which it has not timely received test results in accordance with the provisions of Clause 7.0, as applicable. If the Fuel does not comply with the Fuel Specifications, KenGen shall have the right to reject the Fuel, provided that KenGen notifies the Fuel Supplier in writing of such rejection within
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twelve (12) hours after KenGen receives the test results from the Independent Inspector indicating that the Fuel does not comply with the Fuel Specifications. If the Fuel complies with the Fuel Specifications, Fuel Supplier may commence delivery of the Fuel to the Delivery Point, subject to the provisions of Clause 7.0. Once the Fuel is delivered, KenGen shall nevertheless be entitled at its own costs to have one of the sealed sample or a sample of the Fuel delivered taken from the Purchaser's storage facilities analyzed by the Fuel Analyst, which analysis shall provide such information as KenGen the Purchaser may deem appropriate, including the calorific value and density of the Fuel delivered. KenGen shall have the right to reject any consignment of Fuel within three (3) days after the delivery date after duly obtaining test results from the Fuel Analyst of the samples so analyzed confirming that the Fuel delivered does not conform with the Fuel Specifications and the failure to so reject any consignment shall be deemed to constitute acceptance of that consignment of Fuel. I.7 Rejection of Off-Specification Fuel
If KenGen rejects any Fuel pursuant to Clause 7.0, Fuel Supplier shall dispose of such Fuel at its own cost and responsibility and KenGen shall have no obligation to pay for, or any other liability with respect to such Fuel. Notwithstanding the right of KenGen to reject any Fuel, which fails to comply with the Fuel Specifications, KenGen may at its option elect to accept Fuel, which does not comply with the Fuel Specifications. Any acceptance by KenGen of Fuel, which does not comply with the Fuel Specifications shall not absolve the Supplier of its obligation to pay liquidated damages in accordance with Clause 16 hereof. I.8 Fuel Analyst
No later than one (1) week after the Effective Date and thereafter, at least once a month, the Seller and KenGen shall meet in good faith and use all reasonable endeavours to agree on the Fuel Analyst to whom Test Samples may be delivered for analysis pursuant to this Clause 7.0, in the event of a dispute relating to the compliance of any such fuel with the Fuel Specification. The Fuel Analyst shall be an independent Person with relevant experience of Fuel testing and analysis and willing to act as fuel analyst. If the Parties are unable to agree on the identity of such Person within seven (7) days, the Fuel Analyst shall be the Kenya Bureau of Standards, its successors or assigns. I.9 Independent Verification
If KenGen rejects the fuel delivered as provided in Clause 7.0, either Party shall have the right to request the Fuel Analyst to confirm whether or not the Test Samples are compliant with the Fuel specification. If the seal on any of the Test Samples is broken, the Fuel Analyst shall conduct all analysis on the Test Sample with an unbroken seal. If the seals on both Test Samples are broken, the Fuel Analyst shall conduct all analysis on both Test Samples. The Fuel Analyst shall conduct the analysis of the fuel and render the results in writing within three (3) days from the day the Fuel Analyst was so instructed. I.10 Fees and Expenses
Where the analysis by the Fuel Analyst demonstrates that the fuel in dispute complies with the Fuel Specification, the fees and expenses of the Fuel Analyst shall be borne by KenGen.
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Where the analysis demonstrates that the fuel in dispute does not comply with the Fuel Specification, the fees and expenses of the Fuel Analyst shall be borne by the Supplier. I.11 Non-Conforming Fuel
Where the analysis by the Fuel Analyst demonstrates that the fuel delivered to KenGen was not compliant with the Fuel Specification, KenGen shall have the right to require the Supplier to remove such fuel from the Consumer's fuel storage facilities at the Site and the costs of such removal shall be borne by the Supplier. In any other circumstance, KenGen shall bear all costs associated with the removal and delivery to KenGen of any fuel delivered which was not compliant with the Fuel Specification. I.12 MEASUREMENT OF QUANTITY DELIVERED (i) Quantity shall be measured at the Delivery Point by a mass flow meter(s) of 0.5% accuracy by weight. In the event that such meters are not operational, quantity shall be measured at the delivery point using the consumer's meter(s). Valid quantities for invoicing shall be determined as provided in Schedule 1 part 2. In the event of non-applicability of offloading meters, at the Delivery Point, the applicable density to calculate the metric tons to invoice shall be determined taking into consideration the temperature of the fuel, measured at the time of loading (to be documented). (ii) Calibration of Meter Systems The Supplier will be provided with a certificate of correct calibration in respect of the mass flow meter(s) issued by a firm accredited by the Kenya Bureau of Standards or otherwise agreed by KenGen and Supplier. The Supplier shall have the right to request further verifications by a firm accredited by the Kenya Bureau of Standards or otherwise agreed by KenGen and Supplier. The costs of any such further verification shall be borne by the Supplier unless it is proven as a result of such verifications that there are deviations. (iii) Procedure for determining Quantity Detailed Procedure (to be incorporated as Schedule 2) for determining quantity will be developed and agreed by both parties (acting through the Coordinators), within two (2) weeks from the date of signature of this Agreement.
PRICE OF FUEL AND INVOICING 12.2 Price for Contracted Fuel

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The formula for the site delivered price (P) of AGO shall be as follows: P= Where: P= A= Price of Automotive Gas Oil delivered to Muhoroni Power Station. The mean average FOB price of AGO for the month preceding the month of delivery as quoted for Gasoil in the Platts Oilgram AG/Japan Product Assessment under the heading FOB Arab Gulf, expressed in US $/MT. Barrel to metric ton conversion shall be at 7.418 Barrels per metric ton. B= C= Fixed premium and freight for AGO shipment to Mombasa Excise Duty, Road Maintenance Levy, Petroleum Development Levy and Petroleum Regulatory Levy. Import Declaration Fee (IDF), Insurance, wharfage, ocean loss, inland transportation cost, storage cost, gross profit margin and other local cost. A+B+C+D
D=
The conversion of 1 Metric Tonne equals 1180 Litres will be used for evaluation of tender. However the Actual Fuel Weighted Density will be used for price computation when the contract is signed. The FOB price of AGO and CBK mean exchange rate for the month of December 2013 will be used for tender evaluation. All these cost parameters other than parameter A will remain fixed for the duration of the contract unless C is changed as may be published in the Kenya Gazette Notice. All payments made under the Fuel Supply Agreement will be in Kenya Shillings. Those costs denominated in US Dollars shall be converted into Kenya Shillings at Central Bank of Kenyas (CBK) average mean rate of the month preceding the month of Fuel delivery. In case of contract extension, the above pricing structure will continue to apply. 12.3 Increase of Price
Notwithstanding the above, if there is any increase in any of the components of the price for Contracted Fuel which are not indexed to an independent publication (except for components B, and D which shall be fixed) and any and all Taxes as defined in Clause 12.4 below, the said increase shall be recoverable by the Supplier from KenGen against a written demand, supported by sufficient documentary evidence to justify the increase. 12.4 Levies and Other Charges The price of Contracted Fuel as payable by the KenGen pursuant to this Clause shall be inclusive of all dues, fees, levies, imposts and other charges including but not limited to Road Maintenance
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Levy, Petroleum Development Levy and Petroleum Development Levy, whether imposed or to be imposed directly or indirectly on Contracted Fuel, or on its production, manufacture, storage, import, ownership, use, handling, sale, delivery or transportation and whether assessed or to be assessed on or upon the buyer or seller thereof or on any person (together referred to as "Levies" which term includes each and every such levy), of a change in levy. 12.5 Change in Levies
If a Change in Levies occurs, either Party may, within [one (1) month] following the Change in Levies, notify (the "Notice of Change in Levies") the other Party in writing of its intent to seek an adjustment to the price of Fuel calculated pursuant to Clause 12.2 hereof. Such an adjustment shall take the form of (a) an increase in the Fuel price calculated pursuant to Clause 12.2 hereof to take into account any increase in the Fuel Supplier's cost of complying with the Change in Levies, or (b) a decrease in the Fuel price calculated pursuant to Clause 12.2 hereof to take into account any savings to the Fuel Supplier resulting from the Change in Levies. The Parties shall meet within [fifteen (15) days] of the Notice of Change in Levies and endeavour to agree to the adjustment. If the Parties fail to agree to an adjustment to the Fuel price within [forty-five (45) Days] of the Notice of Change in tax, either Party may refer the matter to an Expert pursuant to Clause 30. 12.6 INVOICING AND PAYMENTS
12.6.1 Invoicing The Supplier shall, on or before the third business day of each month, submit an invoice to KenGen at its Nairobi offices for the Contracted Fuel delivered at the Delivery Point(s) during the preceding month or fraction thereof. 12.6.2 Content of Invoice Each invoice prepared by the Supplier shall be substantially in the form set out in Part One of Schedule 4 and shall contain the information specified in that Schedule. The Parties shall, before the execution of this Agreement, mutually agree on a suitable form, which shall be incorporated hereto as Schedule 1. 12.6.3 Payment due date Payments for Contracted Fuel delivered shall be effected in Kenya Shillings by cheque not later than sixty (60) days after the receipt of each monthly invoice, provided that during such period KenGen has been provided to its satisfaction with the documentary evidence contained in Part Two of Schedule 1. If any amount is not properly documented to KenGens satisfaction in accordance with Part Two of Schedule 1, the Supplier will be entitled to receive from KenGen at the payment due date as per the previous paragraph up to a fifty (50) percent of the undocumented amount (with the balance becoming payable within seven days upon delivery of the relevant outstanding documentation). 12.6.4 Late payment interest
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Any amount properly due from KenGen to the Supplier under this Agreement and remaining after the due date for payment shall bear interest payable in Kenya Shillings at the Default Rate from and including the date when the amount in question was due until but excluding the date when it is received by the Supplier accruing from day to day. 12.6.5 Errors, Omissions and adjustments If any invoice shall be found to be based on any material error or omission, or in case of adjustment to cash invoice, the party establishing any such error, omission or adjustments, shall as soon as possible give notice thereof to the other party whereupon any requisite adjustment to the invoice shall be made and corresponding payments or repayments/credits shall be effected as per Clause 12.6.3 12.6.6 The Supplier's Account Payment of any sum payable under this Clause shall be effected by cheque. All Bank charges in Kenya shall be borne by KenGen, bank charges caused because the Supplier's Account is located outside Kenya shall be borne by the Supplier. 12.6.7 Currency for Payments All amounts payable under this Agreement shall be payable in Kenya Shillings and the Supplier or KenGen, as the case may be, shall not be obliged to accept payment in any other currency. 19 FORCE MAJEURE a.2 Force Majeure Events For the purposes of this Agreement Force Majeure Event means subject to Clause 15, any event or circumstance which affects either Party and is not within the reasonable control (directly or indirectly) of the Party affected to the extent that such event or circumstance or its effects cannot be prevented, avoided or removed by such Party through the exercise of diligence and reasonable care. Force Majeure Events shall include, but shall not be limited to each of the following events and circumstances (each a "Force Majeure Event") to the extent that they satisfy the foregoing requirements; i. any act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, insurrection, civil commotion, act of terrorism, or sabotage provide at any event occurs in or involves the Republic of Kenya. Change in Law.
ii.
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The following events shall constitute Force Majeure provided that they occur in or involve the Republic of Kenya: i. ii. iii. iv. an act of God including lightning, earthquakes, volcanic activity. epidemics or plagues. explosions or chemical contamination (resulting from a Force Majeure Event); labour disputes including strikes, works to rule or go-slows or lockouts (except where such strikes, lockouts, go slows are within the power of the Party invoking Force Majeure to prevent);
a.3 Exclusions from Force Majeure The following events or circumstances shall not constitute a Force Majeure Event: i. late delivery to any Party of machinery equipment, materials, spare parts or consumable; ii. failure to maintain the required Security Stock; iii. a delay caused by the negligence or intentional action of a Party or such Party's subcontractors or agents or employees; iv. normal wear and tear or random flaws in materials and equipment or breakdown in equipment of the Supplier's or KenGen's own equipment; and v. insufficiency of funds or failure to make any payment due;
vi. any event which a diligent Party could reasonably have expected to both (A) take into account at the time of the conclusion of this Agreement and (B) avoid or overcome in the carrying out of its obligations; a.4 Notification Obligations If by reason of a Force Majeure Event a Party is wholly or partially unable to carry out its obligations under this Agreement, the affected Party shall (i) give the other Party notice of the Force Majeure Event(s) as soon as practicable, but in any event, not later than forty-eight (48) hours after the affected Party becomes aware of the Force Majeure Event(s) or six (6) hours after the resumption of any means of providing notice between the Purchaser and the Supplier; and give the other Party a second notice, describing the Force Majeure Event(s) in reasonable detail and, to the extent that can be reasonably determined at the time of the second notice, providing a preliminary evaluation of the
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(ii)
obligations affected, a preliminary estimate of the period of time that the affected Party will be unable to perform the obligations, and other relevant matters as soon as practicable, but in any event, not later than seven (7) days after the initial notice of the occurrence of the Force Majeure Event(s) is given by the affected Party. When appropriate or when reasonably requested to do so by the other Party, the affected Party shall provide further notices to the other Party more fully describing the Force Majeure Event(s) and its cause(s) and providing or updating information relating to the efforts of the affected Party to avoid and/or to mitigate the effect(s) thereof and estimates, to the extent practicable, of the time that the affected Party reasonably expects it will be unable to carry out any of its affected obligations due to the Force Majeure Event(s). . (a) The affected Party shall also provide notice to other Party of (i) with respect to an ongoing Force Majeure Event, the cessation of the Force Majeure Event, and (ii) the affected Party's ability to recommence performance of its obligations under this Agreement, each notice to be given as soon as possible but, in any event, not later than seven (7) days after the occurrence of each of (i) and (ii) above.
(b) Failure by the affected Party to give notice of a Force Majeure Event to the other Party within the forty-eight (48) hours period or six (6) hour period required by Clause 19.4 (a) shall not prevent the affected Party from giving such notice at a later time; provided, however, that in such case, the affected Party shall not be excused pursuant to Clause 19.5 for any failure or delay in complying with its obligations under or pursuant to this Agreement until the notice required by Clause 19.4 (a)(i); has been given. If such notice is given within the forty-eight (48) hour period or six (6) hour period as required by Clause 19.4 (a) (i), the affected Party shall be excused for such failure or delay pursuant to Clause 19.5 from the date of commencement of the relevant Force Majeure Event. a.5 Duty to Mitigate The affected Party shall use all reasonable efforts to mitigate the effects of a Force Majeure Event, including, but not limited to, the payment of reasonable sums of money by or on behalf of the affected Party, and seeking by the Supplier of alternative sources of Fuel. a.6 Delay Caused by Force Majeure So long as the affected Party has at all times since the occurrence of the Force Majeure Event complied with the obligations of Clause 19.4 and continues to so comply, then (i) the affected Party shall not be liable for any failure or delay in performing its obligations (other than an obligation to make a payment) under or pursuant to this Agreement and (ii) any performance deadline that the affected Party is obligated to meet under this Agreement shall be extended; provided, however, that no relief, including without limitation, the extension of performance deadlines, shall be granted to the affected Party pursuant to this Clause 19.6 to the extent that such failure or delay would have nevertheless been experienced by the affected Party had the Force Majeure Event not occurred and provided further, that the Supplier and the Purchaser will be excused for a failure to perform by virtue of this Clause for only 30 days.
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Where the Supplier had declared a Force Majeure Event, giving rise to the excuse of its obligations under this Clause 19.6, such Force Majeure Event will not be deemed to have ended until the Supplier has delivered sufficient quantities of Fuel to refill the Fuel Barge, pursuant to the Purchaser's past unfilled and current firm orders. Other than for non-excused breaches of this Agreement by the other Party, and without prejudice to the affected Party's right to indemnification pursuant to Clause 32 or for payment pursuant to Clause 28, the other Party shall not bear any liability for any loss or expense suffered by the affected Party as a result of a Force Majeure Event. a.7 Use of Supplier Facilities and Equipment If in the event of a Force Majeure Event or for any other reason, the Supplier is unable to deliver Contracted Fuel to the Power Plant for a period of 30 days consecutive days, KenGen shall be entitled, but not obligated, to seek and purchase Fuel from any Alternative Supplier and to use the Supplier's facilities and personnel and the Terminal (as long as the Supplier's Facilities, Personnel and Terminals shall be in a position to operate safely and at normal capacity and in such case, KenGen shall be entitled but not obligated to use the Supplier's facilities, including the Terminal/Depot and the Equipment to deliver such Contracted Fuel. Such self-help shall not excuse the Supplier for its non-performance. If the cost of Contracted Fuel from such Alternative Supplier is greater than that which would have been levied by the Supplier for Contracted Fuel the Supplier shall pay within ten (10) business days the excess cost incurred by KenGen as a result of purchasing Contracted Fuel from the Alternative Supplier (in accordance with Clause 26). 20. 20.1 SALE AND PURCHASE Obligations of Supplier and Purchaser
Subject to the terms and conditions of this Agreement, from and after the Initial Delivery Date, the Supplier agrees to sell and deliver Automotive Gasoil (AGO) on cost at Delivery Point to the Diesel Power Plant at Muhoroni. KenGen agrees to take ownership at the delivery point and pay for quantities of delivered Fuel. 20.2 Supplies and Delivery of Fuel
The Supplier guarantees that it shall supply and deliver Contracted Fuel to the Delivery Point on the Required Delivery Weeks and within the required Delivery Period(s). KenGen shall notify the Supplier of its requirements for Contracted Fuel in accordance with Clause 25 and shall pay the Supplier the Contracted Fuel Price determined in accordance with Clause 12.2.
20.3
Emergency Stock
The Supplier undertakes to keep at its Mombasa or Nairobi depots, an emergency stock of 5,000 metric tons of Fuel (the "Emergency stock") available for immediate delivery to the Delivery Point. Such Emergency Stock shall be always properly identified and shall be used for deliveries to KenGen at the Delivery Point. The Supplier shall provide to KenGen such evidence of the quantities held as Emergency Stock as KenGen may reasonably request.
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The Supplier understands that the rate of consumption of Fuel of the Power Plants depends on electricity power demand and operation of the power plant by the fuel Consumer, and therefore expressly acknowledges that nothing in this Agreement shall be construed as an undertaking or guarantee of KenGen to purchase, or to consume Fuel at any minimum rate.
21. 21.1
QUALITY AND TITLE Fuel Specifications All Fuel delivered to KenGen in satisfaction of the Supplier's obligations under this Agreement shall comply with the Specifications in all respect and shall be entirely free from all forms of contamination. The Supplier's delivery of Fuel to KenGen shall be deemed a representation and warranty by the Supplier to KenGen that the Fuel complies with the requirements of the preceding sentence. If any Fuel sampled and tested in accordance with the provisions hereof does not comply with the Specifications, KenGen shall reject such non-conforming supplies. In such a case the Supplier shall provide substitute Fuel meeting the Specifications being delivered to the Power Plants within the allowed time as per Clause 25.
21.2
Title to Fuel The Supplier warrants and represents to KenGen that the Supplier shall, at any time of delivery to KenGen at the Delivery Point, have good and marketable title to the Fuel sold to KenGen and that Fuel, when delivered to the Delivery Point shall be free and clear of liens and adverse claims of every kind. The Supplier shall indemnify KenGen against any and all such adverse claims and liens. Title and risk of loss of Fuel delivered hereunder shall pass from the Supplier to KenGen upon passing through the Delivery Point.
22. 22.1
TRANSPORTATION, FACILITIES AND POINT OF DELIVERY Transportation of Fuel The Supplier shall supply and deliver the contracted Fuel to the site by road tankers from respective depots.
22.2
Delivery Point The Delivery Point for Fuel shall be the flange or weld or other agreed mark like the metering point at the Power Plant(s) specified by KenGen to which the Supplier delivers the Fuel. The supplier shall provide transfer pumps and lay recoverable fuel transfer pipes from the storage tanks to the Delivery Point metering facilities just before the fuel skid or Service tanks. The pump must have adequate capacity to meet the estimated consumption demand of fuel per hour.
22.3
Facilities to be provided by the Supplier (i) The installations at the Delivery Point(s) shall have the following characteristics;
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High precision mass flow meter(s) of 0.5% accuracy by weight. The Supplier shall assume and shall have the obligation to provide adequate security, lighting and maintain the storage on site at its cost and shall bear all risks associated with the storage of fuel on site during the entire term of the Fuel Supply Agreement. Provided that KenGen reserves the right to use the storage and handling facilities in procuring Fuel in the event of delays by the Supplier to supply fuel pursuant to a weekly order made by the Purchaser. 23. Environmental Health and Safety Requirements The Supplier shall at all times comply with local environmental, health and safety practices (as provided by National Environmental Management Coordination Act 1999,its regulations and the Occupational Health and Safety regulations by the department of Occupational health and safety office and any other national regulations deemed relevant. In the absence of a national regulation, the Supplier shall comply with international regulations and best operating practices. The Supplier shall not: I. Engage in activities that create nuisance or potential risk to the adjoining land occupiers (EMCA 1999) Cause to release of any contaminants into the atmosphere beyond legal limits (Fossil fuel emission control regulations 2006). First schedule. Cause any spillage or waste of any contaminants or noxious substances. In case of such releases, the supplier shall bear the environmental restoration costs (EMCA 1999, Waste Regulation 2006) Release untreated effluent (storm water) from the depot into the adjourning environment (Water Quality Regulation 2006).
II.
III.
IV.
24. Site and Access (a) The Supplier acknowledges that it has had the opportunity to inspect the Site prior to the date of this contract, and that it accepts the Site in its present condition.
25. QUANTITIES OF FUEL TO BE DELIVERED - SCHEDULING a. Estimates for Future Deliveries
The Parties shall consult from time to time to develop estimates of future requirements of Contracted Fuel for the Power Plant(s) to be delivered by the Supplier with the goal of providing the Supplier with the best available estimates of future Contracted Fuel requirements, which will be based on the generation schedule of the Power Plants. Notwithstanding the foregoing, the parties acknowledge that such estimates on the part of KenGen shall in no way be deemed a Warranty by KenGen of its requirements under this Fuel Supply Agreement.
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KenGen will provide the supplier with an estimate of fuel consumptions for the month ahead and will provide the same to the Ministry of Energy. However, KenGen will NOT get ullage for the fuel supplier. b. I. Initial Delivery Date and Month Ahead Estimates for Contracted Fuel KenGen shall provide the initial weekly order notifying the Supplier of the Initial Delivery Date, which shall not be less than seven (7) days from the date of the signing of this Agreement KenGen shall, excluding the month of the Initial Delivery Date, within five (5) business days prior to the commencement of each month, provide the Supplier with an estimate of the expected monthly consumption and its distribution over the different weeks of the relevant month The estimate for a certain week of the following month may be zero at the Supplier's option. Such estimates shall be non-binding and shall be based on the monthly estimates of dispatch instructions for the relevant month under the Temporary Power Purchase Agreement. The estimate of Contracted Fuel for a month may be zero at KenGens option. Notification of Contracted Fuel Requirements Subject to Clause 25 (b) here above, KenGen shall after the Initial Delivery Date, before each Thursday, provide the Supplier with a firm order to purchase such quantity of Contracted Fuel for the next week as would be required by the Power Plant for power generation. The order shall be based on the weekly estimates of generation schedule of the Power Plant for the relevant Required Delivery Week, but shall not differ by more than thirty (30) percent from the estimation provided to the Supplier under Clause 25 (b) above for that specific week. In the event the power supply improves, KenGen reserves the right to terminate or vary the contracted quantity provided it gives a notice of not less than two months or such other period as may be agreed between the parties.
II.
III.
IV. c.
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26. DAMAGES
d. Failure of the Supplier to Deliver Contracted Fuel (i) Should there be delays on weekly orders, to the extent the Supplier fails to deliver Fuel which it was required to deliver in response to a Notice properly given by KenGen for the delivery of Fuel and consequent to that failure the fuel Consumer cannot generate electricity, the Supplier shall pay to KenGen an amount equal to Two Million (KShs. 2,000,000) Kenya Shillings per day. If by the second week of the delay, the Supplier would not have delivered, KenGen shall purchase from an alternative supplier. The Supplier would meet the extra costs incurred by KenGen in purchasing from an alternative suppler. Should the Supplier fail to supply by the third week of delay, KenGen will have the right to call the performance bond and terminate the supply contract without any liabilities to KenGen. The Supplier should maintain a minimum stock level of 500MT in the Storage facility at Site at all times failure to which will attract a penalty of KShs. 100 per MT per day. e. Claims for Compensation (a) KenGen shall be entitled to submit a claim for payment under Clause 26 (a) as soon as the circumstances giving rise to its right for indemnification occur.
(ii)
(iii)
(iv)
(b) Any amounts to be paid by the Supplier to KenGen in accordance with Clause 26 (a) above, may be deducted by KenGen from any payment then due by it to the Supplier or if there are no payments due, such amounts shall be paid by the Supplier to KenGen on a daily basis, in the case of liquidated damages. KenGen shall be entitled, in case of non-payment by the Supplier, to enforce the Supplier's Performance Bond in the relevant amount. (c) If there shall be a Dispute relating to a compensation, under Clause 26 (a) the Dispute resolution procedure specified in Clause 30 shall apply, and either Party (without prejudice to the right of KenGen to enforce the Supplier's Performance Bond) may refer the matter thereto.
(d) Any amounts not paid when due by the Supplier shall bear interest at the Default Rate, which shall accrue on a daily basis. (e) Claims arising from use of off specification AGO in power generation will be met by Supplier, provided that such off specification AGO is ascertained by an Expert appointed by all parties. The cost of the Expert will be met by the defaulting party.
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27 REPRESENTATIONS, WARRANTIES AND COVENANTS Representations, Warranties and Covenant of the Supplier The Supplier hereby represents and warrants that: (i) it is duly incorporated, existing and in good standing under the Laws of the Republic of Kenya and has, so far as is material to KenGen, complied fully with all applicable Laws of the Republic of Kenya, and that there are no proceedings pending, or to the best of its knowledge, threatened, for the dissolution of Supplier or that would adversely affect the performance by Supplier of its obligations under this Agreement; this Agreement has been duly authorized, executed and delivered by it and constitutes the legal, valid and binding obligation of it; to the best of its knowledge, the execution, delivery and performance of this Agreement does not and will not constitute a violation of any statute, judgment, order, decree or regulation or rule of any court, governmental authority or arbitrator of competent jurisdiction applicable or relating to it, its assets or its business; and it has, as of the date hereof, all permits, licenses, and approvals required by Competent Authority with jurisdiction over the Supplier to operate its business as it is presently operated.
(ii)
(iii)
(iv)
(a) Supplier Covenants; The Supplier hereby covenants as follows: (i) Equipment Supplier shall design, construct, operate and maintain the Equipment diligently and, so far as is material to KenGens rights and obligations hereunder, all applicable laws, rules, regulations and ordinances, and shall use its best efforts to have the Equipment available for the Contract Term. (ii) No Adverse Effect on the Power Plant The Supplier shall operate and maintain the Equipment, in such a manner so as not to have a material adverse effect on the Power Plant; provided, however, that the Supplier shall not be liable for any adverse effect on the Power Plant resulting from KenGens operation or maintenance of facilities on KenGen side of the delivery flange, the operation and maintenance of KenGens decanting facilities or the actions of KenGens employees other than when such actions are taken at the express direction of the Supplier's employees, agents, or direct contractors; and
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(iii)
Authorisations The Supplier shall, at its own cost and expense, obtain and maintain all Authorisations required from time to time under the Laws of the Republic of Kenya to discharge its obligations to KenGen hereunder and KenGen shall render all reasonable assistance to the Supplier as is within its power to enable the Supplier to obtain all such Authorizations.
28 DEFAULT TERMINATION (a) Termination by the Supplier for a KenGen Event of Default The Supplier may give KenGen a notice of termination of this Agreement (a "Supplier Notice of Intent to Terminate") upon the occurrence of any of the following event(s) unless resulting from a Force Majeure Event or breach by KenGen of this Agreement ("Purchaser Event of Default"): after the Initial Delivery Date, the abandonment by KenGen of the Power Plant for a period of sixty (60) consecutive days without prior written notice to, and the prior written consent of, the Supplier; such abandonment of the Power Plant to include no order for Fuel for a period of 90 consecutive days. a. any statement, representation or warranty by KenGen in this Agreement proving to have been incorrect, in any material respect, when made or when deemed to have been made and such failure or incorrect statement, representation, or warranty having a material and adverse effect on KenGen's ability to perform its obligations under this Agreement; and b. any material breach by KenGen of this Agreement such as would entitle the Supplier to treat this Agreement as having been repudiated by KenGen, that is not remedied within thirty (30) days of receipt of notice from the Supplier stating that a material breach of the Agreement which could result in the termination of the Agreement has occurred, identifying the material breach in reasonable detail, and demanding remedy thereof. (b) Termination and Suspension for KenGens non-payment (a) In the event that KenGen shall fail to pay any sum due to the Supplier hereunder on its due date for payment the Supplier may at any time thereafter upon having given to KenGen not less than one month's notice of its intention so to do immediately terminate the Supplier's obligations hereunder unless KenGen shall before such termination have paid to the Supplier all amounts then owing by KenGen to the Supplier including interest at the Default Rate payable thereon.
(b) In the event that the Supplier shall have given any notice of its intention to terminate its obligations hereunder on account of non-payment by KenGen it shall be entitled with effect from the date of such notice to suspend all future deliveries of Fuel unless
38
arrangements satisfactory to the Supplier to assure payment thereof shall have been made.
(c) Termination by KenGen for a Supplier Event of Default KenGen may give a notice of termination of this Agreement (a "KenGen Notice of Intent to Terminate") upon the occurrence of any of the following event(s), unless resulting from a breach by KenGen of this Agreement: (a) except for the purpose of amalgamation, reorganization or reconstruction that does not affect the ability of the amalgamated, reorganized or reconstructed entity, as the case may be, to perform its obligations under this Agreement, the occurrence of any of the following events: (i) the passing of a resolution by the shareholders of the Supplier for the winding up of the Supplier; (ii) the voluntary filing by the Supplier of a petition of bankruptcy, moratorium, or other similar relief; (iii) the appointment of a provisional manager or liquidator in a winding up proceeding after notice to the Supplier and due hearing, which appointment has not been set aside or stayed within ninety (90) days of such appointment; or (iv) the making by a court of law of an order winding up the Supplier;
(b) The dissolution, pursuant to law, of the Supplier, except for an amalgamation, reorganization or reconstruction, of the Supplier (provided, that such amalgamation reorganization or reconstruction does not affect the ability of the amalgamated, reorganized or reconstructed entity, as the case may be, to perform its obligations under this Agreement); (c) any default by the Supplier in the making of any payment or payments required to be made by it hereunder within thirty (30) days of the due date therefore.
(d) any failure by the Supplier to deliver Fuel to the Power Plant by more than two weeks after the relevant Required Delivery Week which is not excused in terms of this Agreement; (e) any material breach by the Supplier of this Agreement such as would entitle KenGen to treat such Agreement as having been repudiated by the Supplier that is not remedied within thirty (30) days of notice from KenGen to the Supplier, stating that a material breach of the Agreement with the Supplier has occurred which could result in the termination of this Agreement, identifying the material breach in question in reasonable detail and demanding remedy thereof.
(d) Termination by KenGen 1) Upon occurrence of an event of default by either Party that is not cured within the applicable period if any, the non-defaulting Party may, at its option, pursuant to Clauses 28 (c and d), as the case may be, initiate termination of this Agreement by delivering a written notice (each a "Notice of Intent to Terminate") to the Party in default. The Notice of Intent to Terminate shall specify in reasonable detail the
39
Purchaser event of default or Supplier event of default, as the case may be, giving rise to the Notice of Intent to Terminate. 2) Following the delivery of a Notice of Intent to Terminate, the Parties shall consult for a period commencing on such delivery date of up to ten (10) days (or such longer period as they may agree) as to what steps shall be taken with a view to mitigating the consequences of the relevant event giving regard to all circumstances. At the expiry of such period the non-defaulting party shall be entitled to terminate this Agreement by giving the defaulting Party a termination notice (the "Termination Notice"). During the period following the delivery of the Notice of Intent to Terminate, the Party in default may continue to undertake efforts to cure the default, and if the default is cured at any time prior to the delivery of a Termination Notice in accordance with this Clause 28, then the non-defaulting Party shall have no right to terminate this Agreement in respect of such cured default. KenGen shall purchase and the Supplier shall supply all quantities of Contracted or additional Fuel firmly requested under the provisions of this Agreement for delivery prior to the date on which termination actually takes place in the manner set forth and in accordance with the provisions of this Agreement and this Agreement shall terminate only upon completion of delivery and payment of such supplies. (d) Termination by Supplier The supplier may give a one month written notice, offering reasons, to terminate the contract. (e) Compensation Up on Termination Due to KenGen Event of Default If this Agreement is terminated due to KenGen in the event of default, KenGen shall pay to the Supplier an amount equal to the cost of the Fuel in respect of which an order had been placed pursuant to Clause 12.4. Upon payment, the Fuel shall become the property of KenGen. (f) Compensation Up on Termination Due to Supplier Event of Default If this Agreement is terminated due to a Supplier Event of Default then the Supplier shall pay to KenGen damages on the same basis as set forth in Clause 12.4. (g) No Further Obligation Upon such termination pursuant to this Clause 28 and, if applicable, the payment of compensation as required by Clause 28, including the enforcement of the Supplier's Performance Bond by KenGen, the Parties shall have no further obligations hereunder except for obligations that arose prior to such expiration or termination and obligations that expressly arise upon or survive such expiration or termination pursuant to this Agreement.
3)
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29 CO-ORDINATION (a) Coordinators Each of the Parties shall appoint the following persons as Co-ordinators (the "Co-ordinators"), whose duties are set out in Clause 29 (b) below. KenGen: Joel Ngugi Operations Manager, Projects
Supplier: . The Co-ordinators may be substituted by the Party appointing them by prior written notice of five (5) business days given to the other Party. (b) Powers of the Coordinator The Co-ordinators shall be responsible for and deemed to be duly authorized to make decisions relating to supervising and co-ordinating all aspects of this Agreement and of dealing with all matters of policy and pricing, including without limitation to the generality of the foregoing: a. all matters relating to policy, pricing and Specifications and written amendments to or modifications of this Agreement or any waivers hereunder; Appointing the Independent Inspector before the Initial Delivery Date and agreeing to any change of the identity of the Independent Inspector; consideration of proposed or anticipated changes in the levels of supply of, or demand for, Contracted or Additional Fuel. developing, the schedule of procedures relating to: a. the sampling of Fuel for testing or analysis is so decided by the two parties; b. the testing or analysis of Fuel samples so as to determine compliance of Fuel with the Specifications prior to use in power generation, if deemed necessary by the two parties; e. f. g. resolution of disputes; co-ordination of policy planning; issuance of notices as permitted hereunder including notices or communications in respect of Force Majeure Events, termination and damages; and producing an agreed manual of operating procedures for the purposes of implementing this Agreement based on the Supplier's existing systems. developing the Schedules relating to:
b.
c.
d.
h.
i.
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(A) agreed penalties in respect of Fuel not fulfilling certain parameters of the Specifications (other than water content); (B) the procedures for measuring quantity of Fuel delivered at the Delivery Point(s); (C) agreeing on the form of invoices and the documentary evidence accompanying each invoice. C Coordinators Procedures The Co-ordinators may agree on their respective procedures for the holding of meetings, the taking of minutes and the appointment of alternates and of committees and sub-committees to deal with any issue or issues.
30. DISPUTE RESOLUTION (a) Dispute Resolution by Coordinators If any question or any dispute or difference arises in the interpretation or meaning of any provisions of this Agreement or as to any matter in any way connected herewith or arising herefrom during the currency of this Agreement, such dispute or difference ("Dispute") shall forthwith be referred to the Co-ordinators for resolution based on Arbitration Act of 1995. Then the Co-ordinators shall promptly endeavour to resolve the Dispute by mutual discussion and agreement. The relevant Co-ordinators shall agree on a decision on the Dispute within five (5) business days of the date on which the Dispute arose. If they do not reach agreement within five (5) business days, the Dispute shall be referred to Expert Adjudication in the manner provided in Clauses 30(b) to 30(d) below. (b) Dispute resolutions by Expert adjudicator Any Dispute not resolved by the Co-ordinators in the manner specified in the preceding Clause 30 (a) shall be referred to Expert Adjudication by an Expert Adjudicator appointed in the manner set out in Clause 30 (c) and 30 (d) below within ten (10) business days of the expiry of the time limit for resolution of such Dispute by the Co-ordinators by issue of a Notice of Intention to Refer referred to in Clause 30 (d) below (except that the Parties may agree to refer a Dispute directly to arbitration). (c) Appointment of Expert Adjudicator The Parties shall mutually agree on the identity of the Expert Adjudicator within ten (10) business days of the Notice of Intention to Refer failing which the matter shall be referred to arbitration.
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(d) Procedure for Expert Adjudicator If the Dispute cannot be resolved by the Co-ordinators and either Party intends that the Dispute be referred to an Expert Adjudicator under this Agreement or the Parties mutually agree that the Dispute be directly referred to an Expert Adjudicator for determination, the Party specified in the relevant provision as having the right (or either Party if no single Party is so specified) shall give notice ("Notice of Intention to Refer") to the other Party of its intention to so refer the Dispute within five (5) business days of the expiry of the time limit for resolution of such Dispute by the Co-ordinators. The Party giving that notice is referred to herein as the "Applicant", and the Party to whom such notice is given is referred to here in as the "Respondent". i. A Notice of Intention to Refer shall include, interalia:
1. a description of the Dispute; the grounds on which the Applicant relies in seeking to have the Dispute determined in its favour; and all written material that the Applicant proposes to submit to the Expert Adjudicator; provided, however, that this paragraph shall not be construed so as to prevent the Applicant from using or producing further written material that comes into existence or comes to the Applicant's attention after the Notice of Intention to Refer is given, but in such event the Respondent shall be allowed a reasonable time to respond thereto. ii. The Respondent shall within fifteen (15) business days after service of the Notice of Intention to Refer, give to the Applicant a Notice of Intention to Defend which shall include, inter alia: the grounds upon which the Respondent relies in seeking to have the question determined in its favour; and all written material that the Respondent proposes to submit to the Expert Adjudicator, provided, that this paragraph shall not be construed so as to prevent the Respondent from using or producing further written material that comes into existence or comes to the Respondent's attention after its Notice of Intention to Defend is given, but in such event the Applicant shall be allowed a reasonable time to respond thereto. If within ten (10) business days after service of a Notice of Intention to Refer, the Parties have agreed on an Expert Adjudicator or the Expert Adjudicator has been appointed under Clause 30 (c) above the Dispute shall be so referred. Disputes subject to Expert Adjudication shall be determined in the following manner: (i) within five (5) business days of the appointment of the Expert Adjudicator, the Expert Adjudicator shall nominate a time and place in Kenya for hearing of the Parties on the Disputes which time shall not be more than seven (7) business days after the Expert Adjudicator's appointment; the Parties shall not be entitled to apply for discovery of documents but shall be entitled to have access to other Party's records and data relevant to the Dispute;
iii.
iv.
(ii)
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(iii)
at the time nominated for the hearing, each Party (or its duly authorized representative) must appear before the Expert Adjudicator and present its case in default the Expert Adjudicator may proceed on the basis of the non-attending Party's written submission; the Expert Adjudicator must finalize must determination on the Dispute as soon as possible after completion of the hearing and must forthwith advise the Parties in writing of the determination and his reasons therefore; any evidence given or statements made in the course of the hearing may not be used against a Party in any other proceedings; and the proceedings shall not be regarded as an arbitration and the laws relating to commercial arbitration shall not apply; and
(iv)
(v)
(vi)
v.
If the Expert Adjudicator does not arrive at a determination within a period of fourteen (14) business days of his appointment, or such longer or shorter period as the Parties may agree in writing, then either Party may, upon giving notice to the other, terminate the Expert Adjudicator's appointment, and a new Expert Adjudicators shall be appointed who shall resolve the Dispute in accordance with the provisions of this Clause 30. The Costs of Expert Adjudication under this Clause shall be paid by the Parties as determined by the Expert Adjudicator.
vi.
If a Dispute requiring Expert Adjudication is not settled within fourteen (14) business days by the Expert Adjudicator or if Expert Adjudication is provided for and either Party is not satisfied by the decision of the Expert Adjudicator then the Dispute may be finally settled under the provisions of this Clause 30 by reference to Arbitration hereunder. (c) Arbitration (i) If the Dispute is not settled within fourteen (14) days by mutual discussions and referral to an Expert Adjudicator is not required by this Agreement or agreed to by the Parties, then the Dispute shall be finally settled under the provisions of this Clause. Except as hereinafter provided, any Dispute arising out of or in connection with this Agreement shall, be referred to Arbitration and finally settled in accordance with the Arbitration Act Chapter 49 of the Laws of Kenya which Rules are deemed to be incorporated by reference into this Clause. It is hereby agreed that Arbitration proceedings conducted pursuant to this Clause shall be held in Nairobi, Kenya as follows: (a) There shall be a single arbitrator; (b) The language of the arbitration shall be English; (c) The award rendered shall apportion the costs of the arbitration;
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(ii)
(d) The award shall be in writing and shall set forth in reasonable detail the facts of the Dispute and the reasons for the tribunal's decision; (e) The award in such arbitration shall be final and binding upon the Parties and judgment thereon may be entered in any Court having jurisdiction for its enforcement; and the Parties renounce any right of appeal from the decision of the tribunal insofar as such renunciation can validly be made. If there is a conflict between this Agreement and such Rules, this Agreement shall prevail. (f|) Performing Obligations The existence of any Dispute shall not excuse either Party from performing or continuing to perform its obligations under this Agreement except to the extent such performance is expressly excused hereunder.
31. INSURANCE (a) Insurance to be obtained by the supplier The Supplier shall take out and maintain in full force and effect for the Term of this Agreement, policies of insurance covering: i. ii. iii. iv. v. Fire Policy for a sum insured of US Dollars 20Million Third party Liabilities i.e. Public Liability Cover and workmens compensation cover Goods in Transit or Marine policy Any damage, evaporation, loss or destruction of the Fuel upstream of the Fuel Delivery Point; Any damage to or destruction to the environment or third parties caused by the Fuel upstream of the Fuel Delivery Point.
The Supplier shall ensure that all such policies of insurance name KenGen the loss payee. The Supplier shall provide to KenGen copies of all policies effected by the Supplier and evidence that the premiums payable thereunder have been paid and KenGen shall have the right to inspect the original policies at the Supplier's offices. The Supplier shall be solely responsible for and shall defend, indemnify and hold KenGen and its agents free and harmless from any and all claims, demands, debts, damages, losses, causes of action, suits, expenses and costs arising out of or in connection with acts or omissions (whether directly or indirectly) of the Supplier which result in injury or death of persons, or damage to or destruction of property (including the Fuel) or the environment caused in any way by the Fuel upstream of the Fuel Delivery Point. 32. INDEMNIFICATION (a) Indemnification by Parties The Supplier shall indemnify KenGen against, and hold KenGen and or its contractors freed and harmless from, at all times after the date hereof, any and all loss, damage, liability, payment and obligation (excluding any indirect or consequential loss, damage, liability, payment or obligation), and all expenses (including without limitation reasonable legal fees)
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(collectively, "Loss"), incurred, suffered, sustained or required to be paid, directly by, or sought to be imposed upon, KenGen and/or its contractors for personal injury or death to persons or damage to property arising out of the Supplier's and/or its contractors intentional or reckless acts or omission or its gross negligence on Fuel upstream of the Delivery Point. b) KenGen shall indemnify the Supplier against, and hold the Supplier and/or its contractors harmless from, at all times after the date hereof, any and all loss, damage, liability; payment and obligation (excluding any indirect or consequential loss, damage, liability, payment and obligation) and all expenses (including without limitation reasonable legal fees) (collectively "Loss") incurred, suffered, sustained, or required to be paid, directly by, or sought to be imposed upon, the Supplier, for personal injury or death to persons or damage to property arising out of KenGen's and/or its contractors' intentional or reckless acts or omissions or its gross negligence. Notwithstanding anything to the contrary contained in the preceding paragraphs (a) and (b), nothing in this Clause 32 (a) shall apply to any Loss in respect of which the Supplier or KenGen, as the case may be, is fully indemnified pursuant to the terms of any policy of insurance.
c)
(b) Rights and Obligations to defend Without prejudice to the rights of the indemnified Party to be indemnified in respect of any claim, actions suit or proceedings as provided in Clause 30 (a). (i) The indemnified Party shall notify the indemnifying Party of any assessment or claim against the indemnified Party and shall notify the indemnifying Party of any claim, action, suit or proceedings in respect of which, if valid a claim would lie against the indemnified Party under any of the indemnities forthwith upon the indemnified Party becoming aware thereof. The indemnifying Party shall be offered a full opportunity at its expense of resisting, in the name of the indemnified Party, any claim, action, suit or proceedings, and shall at its expense be provided with or have made available to it all information and documents of the indemnified Party, to the extent applicable, reasonably required by the indemnifying Party for the purpose of such resistance as aforesaid, but subject to the indemnified Party being indemnified their reasonable satisfaction against all costs and expenses thereby incurred and to the indemnified Party being kept fully informed of all steps proposed to be taken by the indemnifying Party and the indemnified Party shall not, without written consent of the indemnifying Party admit, settle or discharge any such claim, suit or proceedings.
(ii)
(c) Liability Except as provided in this Agreement, KenGen and the Supplier shall not be liable, whether in contract, in tort, or otherwise, for consequential, indirect or special losses or special damages of any kind arising out of, or in any way connected with, the fulfilment of failure to fulfil this Agreement. (d) Survival
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The rights and obligations of the Parties arising out of the actions, which took place during the period KenGen was in occupation of the Power Plant, shall survive and continue for a period of five (5) years following the termination of this Agreement. 33. MISCELLANEOUS (a) Language The language for the purpose of administering and interpreting this Agreement shall be English. (b) Confidentiality Each of the Parties shall hold in confidence all documents and other information whether technical or commercial, supplied to it by or on behalf of the other Party relating to the construction, operation maintenance and management of the Power Plant and the Fuel delivery facilities and shall not, save as required by law or by any Competent Authority, publish or otherwise disclose or use this information for its own purposes otherwise than as may be required to perform its obligations under this Agreement. Notwithstanding the above, nothing herein contained shall preclude the use of provisions similar to those contained in this Agreement and the other Agreements referred to herein in agreements prepared and issued in connection with other projects. The obligations of the Parties under this Clause shall survive for a period of five (5) years following the termination of this Agreement. (c) Binding Agreement This Agreement shall be binding upon, the Parties hereto and their respective successors and permitted assignees. (d) Waivers i. No waiver by either Party of any default or defaults by the other in the performance of any of the provisions of this Agreement: i. shall operate or be construed as a waiver of any other or further default or defaults whether of a like or different character; or ii. shall be effective unless in writing duly executed by a duly authorized representative of the Party. ii. The failure by either Party to insist on any occasion upon the performance of any term, condition or provision of this Agreement or time or other indulgence granted by one Party to the other shall not thereby act as a waiver of such breach or the acceptance of any variation.
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(e) Survival Cancellation, expiration or earlier termination of this Agreement shall not relieve the Parties of obligations that by their nature should survive such cancellation, expiration or termination, including, without limitation, warranties, remedies, promises of indemnity and confidentiality. (b) Amendments This Agreement shall be amended only by agreement between the Parties in writing.
34. NOTICES (a) Address and Addresses Except as otherwise expressly provided in this Agreement, all notices or other communications to be given or made hereunder shall be in writing, shall be addressed for the attention of the persons indicated below and shall either be delivered personally or sent by courier, registered or certified mail or facsimile. The address of service of the Parties and their respective facsimile numbers shall be:
If to KenGen: Attention: Company Secretary, Legal & Corporate Affairs Director Kenya Electricity Generating Limited, Stima Plaza, Kolobot Road, P.O. Box 47936, 00100, Nairobi, Kenya. Facsimile: 254 -2 -248848 If to the Supplier: Attention: . Address: .. Facsimile: All notices shall be deemed to have been duly given (a) when delivered personally to the delivery address specified above by no later than 16:00 hours on the day of delivery, (b) if received on a business day for the receiving Party, when transmitted by facsimile to the receiving Party's facsimile number specified above by no later than 16:00 hours and, if delivered or received after 16:00 hours or on a day that is not a business day for the receiving Party, on the first business day following the date of delivery or transmittal by facsimile or (c) five (5) business days after being
48
deposited in a regularly maintained receptacle for the Postal Service in Kenya, postage prepaid, registered or certified, return receipt requested, addressed to the receiving Party, at the address indicated above. Any notice given by facsimile shall be confirmed in writing delivered personally or sent by registered or certified mail, but the failure to so confirm shall not be void or invalidate the original notice if it is in fact received by the Party to which it is addressed. (b) Changes of Address Any Party may by notice change the addressees and/or addresses to which such notices and communications to it are to be delivered or mailed. 35. GOVERNANCE This Agreement and the rights and obligations of the Parties arising hereunder shall be governed by and construed in accordance with the Laws of the Republic of Kenya. 36. SEVERABILITY If any of the provisions of this Agreement is found by an arbitrator, court or other competent authority to be void or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, the Parties shall thereupon negotiate in good faith in order to agree with the terms of a mutually satisfactory provision to be substituted for the provision so found to be void or unenforceable. 37. COSTS Each Party shall be responsible for its own legal costs and expenses in connection with the negotiation, preparation and execution of this Agreement. 38. The following documents, MUST be submitted, and will comprise a responsive tender. (a) (b) (c) (d) (e) (f) 39. Completed Price Schedule & Tender Form Copy of PIN/VAT registration certificate Tender Security A copy of Energy Regulatory Commission (ERC) Licence authorising the supplier to trade in fuels. A valid Tax Compliance certificate issued by the Kenya Revenue Authority Audited financial reports for the last two years Clause on Taxation a) Contract Price:The contract price shall be inclusive of all applicable taxes which include but are not limited to VAT, and Customs duty where applicable. The details of the taxes applicable shall be included in the price schedule. b) Tax information: For any tax information, bidders are encouraged to visit the Kenya Revenue Authority website which is http://www.kra.go.ke/
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Section G: Specifications for Automotive Gas Oil

EST Kg/m3 C %m C C min max max max min v max LIMITS TEST METHOD ASTM D Density at 20C Flash PMCC Sulphur Cloud point CFPP CCI Water Distillation Rec at 365C FBP v C min max 90 400 1.6-5.5 max max %m %m max max 3.5 1 0.01 0.01 Nil 0.5 0.15 445 1500 130 473 482 974 974 524 154 53 4 139 139 14 71 815-865 66 0.05 12 (a) 6 (b) 48 0.05 4737 95 86 380 74 123 4052 93 4294 2500 IP 365 34 336 219
Viscosity at 40C cS Colour Copper corrosion Sediment Ash Strong Acid No. Total Acid No.
mgKOH/g max mgKOH/g max max
RCR on 10% Res %m
(a) Cloud point may exceed 12 if CFPP is max 5 (b) CFPP may exceed 6 if cloud point is max 9.
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Section H:
PRICE SCHEDULES MUHORONI 30MW POWER PLANT
PRICING STRUCTURE: PRODUCT: AUTOMOTIVE GAS OIL QUANTITY PER MONTH, MT FOB A.G. Mean of "Gasoil" Platts (For Previous Month): Oct 2013 USD/MT FREIGHT CNF (USD/MT) MARINE INSURANCE (1.003*CNF*0.077%) WAR RISK (1.003*CNF*0.0275%) CIF KPA SHORE HANDLING (2.2 USD/MT+VAT) + 1.65USD IDF FEES (2.25% CIF) L/C FEES (1.2%CNF) CIFLW OCEAN LOSSES (0.5%*CIFLW) PREMIUM AND GROSS PROFIT MARGIN INSPECTION FEES AT (KSHS 6.5/MT+VAT) LANDING CHARGES (AT KSHS. 20000 PER SHIPMENT+VAT) TOTAL (USD/MT) Average Monthly CBK mean exchange rate: November 2013 TOTAL (KSHS/MT) Base cost Conversion Factor (MT to Litre) being Actual Calculated Weighted Average Density of the supply month (Use 1180 Litres to 1MT for evaluation purpose only) TOTAL (KSHS./CM) KOSF STORAGE FEES (KSH/CM) KPC TARRIF + VAT TOTAL (KSHS/CM) TOTAL KISUMU COST, (KSHS. PER LITRE) TAXES EXCISE DUTY PETROLEUM DEVELOPMENT LEVY ROAD MAINTENANCE LEVY SUSPENDED DUTY PETROLEUM REGULATORY LEVY MARINE SHIPPING SERVICES LEVY TOTAL TAXES SITE STORAGE, HANDLING COSTS LOCAL DELIVERY SUB TOTAL NET DELIVERED PRICE (KSHS./LITRE) MUHORONI 2,000
7.9440 0.4000 9.0000 0.3000 0.0400 0.0216
51
Section I: TENDER SUBMISSION FORM

To: Company Secretary Electricity Generating Company Limited Stima Plaza, Phase III, Kolobot Road: Parklands P.O. box 47936 00100, GPO NAIROBI, KENYA FAX: 254-2-248848
Dear Madam/Sir, We, the undersigned, offer to supply the required Fuel in accordance with your invitation to tender and we hereby submit our Tender Document. Our Tender is binding to us. We understand you are not bound to accept any tender you receive. We remain Yours sincerely,
Name of Tenderer . Address: Postal Code. Physical Location . Tel. Nos.. Fax Nos... Email Authorised Signature: Name and Title of Signatory Rubber Stamp
52
Section J: Tender Security Form

(To be on the Letterhead of the Bank) Whereas Tenderer) has submitted its tender date Gas Oil (hereinafter called the Tender). (hereinafter called the for the supply of Automotive
KNOW ALL PEOPLE by these presents that WE of Bank), are bound unto (hereinafter called the (hereinafter called the
Procuring Entity) in the sum for which payment well and truly to be made to the said Procuring Entity, the Bank binds itself, its successors, and assigns by these presents. Sealed with the Common Seal of the said Bank this day of 20
THE CONDITIONS of this obligation are: 1. If the Tenderer withdraws its Tender during the period of tender validity specified by the Tenderer on the Tender Form; or If the Tenderer, having been notified of the acceptance of its Tender by the Procuring Entity during the period of tender validity: (a) fails or refuses to execute the Contract Form, if required; or (b) fails or refuses to furnish the performance security, in accordance with the Instructions to Tenderers; We undertake to pay to the Procuring Entity up to the above amount upon receipt of its first written demand, without the Purchaser having to substantiate its demand, provided that in its demand the Procuring Entity will note that the amount claimed by it is due to it, owing to the occurrence of one or both of the two conditions, specifying the occurred condition or conditions. This guarantee will remain in force up to and including thirty (30) days after the period of tender validity, and any demand in respect thereof should reach the Bank not later than the above date.
2.
(Signature of the Bank)
53
Section K: Contract Form

THIS AGREEMENT made the day of 20-- between Kenya Electricity Generating Company Limited of Kenya (hereinafter called the Procuring Entity) of the one part and (hereinafter called the Contractor) of the other part: WHEREAS the Procuring Entity invited tenders for supply of Automotive Gas Oil (AGO) and has accepted a tender by the Contractor for the Supply of AGO in the sum of _(words) (figures] (hereinafter called the Contract Price).
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1.
In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Contract referred to. The following documents shall be deemed to form and be read and construed as part of this Agreement, viz.: The Tender Form and the Price Schedule submitted by the Tenderer; The Technical Specifications; (c) General and Special Conditions of Contracts The Procuring Entitys Notification of Award and Suppliers Acceptance thereof. In consideration of the payments to be made by the Procuring Entity to the Contractor as hereinafter mentioned, the Contractor hereby covenants with the Procuring Entity to supply the specified Automotive Gas Oil and provide services and to remedy defects therein in conformity in all respects with the provisions of the Contract The Procuring Entity hereby covenants to pay the Contractor in consideration of the supplied Supply of Automotive Gas Oil and services and the remedying of defects therein, the Contract Price or such other sum as may become payable under the provisions of the contract at the times and in the manner prescribed by the contract.
2. (a) (b) (d) 3.
4.
IN WITNESS whereof the parties hereto have caused this Agreement to be executed on the day and year first above written. Signed and sealed with the Common Seal Of the Purchaser in the presence of: COMPANY SECRETARY ) ) ) ) )
WITNESS Signed and sealed with the Common Seal Of the Supplier in the presence of: DIRECTOR
SECRETARY
) ) ) )
54
Section L: Performance Security Form

(Must be on the Letterhead of the Bank)
To: Kenya Electricity Generating Company Limited, Stima Plaza, Kolobot Road P.O Box 47936 - 00100, NAIROBI. Kenya. WHEREAS [name of Supplier] (hereinafter called the Supplier) has undertaken, in pursuance of the Bid dated 20 to supply specified Automotive Gas Oil (hereinafter called the Contract). AND WHEREAS it has been stipulated by you in the said Contract that the Supplier shall furnish you with a bank guarantee by a reputable bank for the sum specified therein as security for compliance with the Suppliers performance obligations in accordance with the Contract. AND WHEREAS we have agreed to give the Supplier a guarantee: THEREFORE WE hereby affirm that we are Guarantors and responsible to you, on behalf of the Supplier, up to a total of (words) (figures], and we undertake to pay you, upon your first written demand declaring the Supplier to be in default under the Contract and without cavil or argument, any sum or sums within the limits of as aforesaid, without your needing to prove or to show grounds or reasons for your demand or the sum specified therein. This guarantee is valid until the day of 20--.
Signature and seal of the Guarantors
[name of bank or financial institution]
[address]
[date]
55
SCHEDULE 1
Part 1 Invoice Format to be agreed upon after award of contract
Part 2 Oilgram Platts CBK Mean Rate Evaluated Fuel Prices Weighted Average Densities Fuel Consumption Schedules
56
SCHEDULE 2
METER READINGS METER NO. OPENING METER READING CLOSING METER READING CONSUMPTION (L)
BM1 CM1 BM2 CM2 BILLING METER VOLUME CHECK METER VOLUME DIFFERENCE BM1 = BILLING METER NO. 1 BM2 = BILLING METER NO. 2 CM1= CHECK METER NO. 1 CM2= CHECK METER NO. 2
MUHORONI 30MW CHARGEABLE CONSUMPTION FOR THE MONTH
VOLUME TO INVOICE WEIGHTED DENSITY MASS TEMPERATURE DENSITY CONVERSION FACTOR VOLUME @ 20C
L KG/L MT C KG/L L
57

Kgn-tpp-013-2013 Muhoroni 30mw Emergency Thermal Power Plant Automotive Gas Oil Tender 2014

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KENYA ELECTRICITY GENERATING COMPANY LIMITED

Section B Section C Section D Section E Section F Section G Section H Section I Section J

3 4-12 13-15 16-19 20-49 50 51 52 52 53 55 56 57

Section K CONTRACT FORM--------------------------------Section L PERFORMANCE SECURITY FORM-----------

Section B INVITATION TO TENDER KENYA ELECTRICITY GENERATING COMPANY LIMITED

SUPPLY CHAIN MANAGER

General Information Introduction

The Tender Document

form acceptable to the Procuring entity and valid for until 28

Opening and Evaluation of Tenders

Section D Instructions To Bidders

Section E General Conditions of Contract

DETERMINING QUALITY AND INSPECTION I.5 Independent Inspector

PRICE OF FUEL AND INVOICING 12.2 Price for Contracted Fuel

25. QUANTITIES OF FUEL TO BE DELIVERED - SCHEDULING a. Estimates for Future Deliveries

Section G: Specifications for Automotive Gas Oil

mgKOH/g max mgKOH/g max max

RCR on 10% Res %m

7.9440 0.4000 9.0000 0.3000 0.0400 0.0216

Section I: TENDER SUBMISSION FORM

Section J: Tender Security Form

(Signature of the Bank)

Section K: Contract Form

2. (a) (b) (d) 3.

Section L: Performance Security Form

Signature and seal of the Guarantors

[name of bank or financial institution]

MUHORONI 30MW CHARGEABLE CONSUMPTION FOR THE MONTH

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