FIDIC Green Book std - Turks & Caicos National Insurance Board

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1 TURKS & CAICOS ISLANDS NATIONAL INSURANCE BOARD SHORT FORM OF CONTRACT FOR CONSTRUCTION DATE: 2013 CONTRACTOR: WORKS: RENOVATION AND REFURBISHMENT OF THE HON. L. HEADLEY DURHAM BUILDING, GRAND TURK. CONTRACT No. TENDER REFERENCE No.: NATIONAL INSURANCE BOARD WATERLOO PLAZA, WATERLOO ROAD GRAND TURK TURKS AND CAICOS ISLANDS BRITISH WEST INDIES AP/asb 07.07.2005 FIDIC Green Book Std. (3) 1

2 CONTENTS Page Agreement 3 Offer 3 Acceptance 4 Appendix 5 Particular Conditions 9 Performance Security 14 Advance Payment Guarantee 20 Attestation Clauses of Short Form of Contract for Construction 22 Certificate of Non-Collusion 23 AP/asb 07.07.2005 FIDIC Green Book Std. (3) 2

3 TURKS AND CAICOS ISLANDS NATIONAL INSURANCE BOARD SHORT FORM OF CONTRACT FOR CONSTRUCTION AGREEMENT The Employer is THE TURKS AND CAICOS ISLANDS NATIONAL INSURANCE BOARD of Waterloo Plaza, Waterloo Road, Grand Turk, Turks and Caicos Islands, British West Indies. The Contractor is of , Turks and Caicos Islands, British West Indies. The Employer desires the execution of certain Works known as RENOVATION AND REFURBISHMENT OF THE HON L. HEADLEY DURHAM BUILDING, GRAND TURK OFFER The Contractor has examined the documents listed in the Appendix which forms part of this Agreement, and offers to execute the Works in conformity with the Contract for the sum of (US$ ), or such other sum as may be ascertained under the Contract. This offer, of which the Contractor has submitted 3 (three) signed originals, may be accepted by the Employer by signing and returning one original of this document to the Contractor before 2013. The Contractor understands that the Employer is not bound to accept the lowest or any offer received for the Works. That the Contractor understands and agrees that their name, the Island on which the work is to be carried out, the project details, the start and completion date of the project and the contract amount will appear in the Gazette in accordance with the Tendering process for this project. The Contractor warrants that it has paid up to date all National Insurance Board Contributions. The Contractor understands and agrees that failure to pay the aforementioned will result in the payments for works done being withheld until proof of payment is supplied to the Director of National Insurance Board or the outstanding amount being deducted by the Board from any sum due to the Contractor or can alternatively result in the termination of the Agreement. Signature: Name: Date: ____________ Authorised to sign on behalf of: Capacity: AP/asb 07.07.2005 FIDIC Green Book Std. (3) 3

4 ACCEPTANCE The Employer has, by signing below, accepted the Contractors offer and agrees that in consideration of the execution of the Works by the Contractor, the Employer shall pay the Contractor in accordance with the Contract. This Agreement comes into effect on the date when the Contractor receives one original of this document signed by the Employer. Signature: Date: 2013 Name: Lillian Misick Authorised to sign on behalf of: Capacity: NIB Chairman THE TURKS AND CAICOS ISLANDS NATIONAL INSURANCE BOARD AP/asb 07.07.2005 FIDIC Green Book Std. (3) 4

5 APPENDIX This Appendix forms part of the Agreement. [NOTE: with the exception of the items for which the Employers requirements have been inserted, the Contractor shall complete the following information before submitting his offer.] Item Sub-Clause Data Documents forming the Contract listed in the order of priority (all of which are either annexed or have been signed in triplicate for identification purposes on behalf of the parties): 1.1.1 Document (delete if not applicable) Document Identification (a) The Agreement Annexed. (b) Particular Conditions Annexed. (c) General Conditions The General Conditions of the Fdration Internationale des Ingnieurs- Conseils (FIDIC) Short Form of Contract, First Edition 1999 ISBN 2-88432-024-5. (d) Specifications Schedule 1 (e) The Bill of Quantities Schedule 2 (f) Drawings Schedule 3 Time for Completion 1.1.9 To be agreed Law of the Contract 1.4 Law of the Country. Language 1.5 English. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 5

6 Provision of Site 2.1 On the Commencement Date. Authorised person 3.1 Colin Heartwell Name and address of 3.2 BCQS Limited Employers representative Performance security (if any): Amount 4.4 10% (Ten per cent.) of the Accepted Contract Amount, in the currencies and proportions in which the Contract Price is payable. Form 4.4 Annexed.* Contractors ultimate parent 4.4 N/A company (if any) Requirements for Contractors 5.1 Specification Clause design (if any) Nos: Programme: Time for submission 7.2 Within 2 (two) days* of the Commencement Date. Form of programme 7.2 MS Project Amount payable due to failure to 7.4 US $500.00 (five hundred complete the works within the United States dollars) per specified contract period. day up to a maximum of 10% (ten per cent.)* of the sum stated in the Agreement. Period for notifying defects 9.1 & 11.5 365 (Three Hundred and Sixty Five) days * calculated from the date AP/asb 07.07.2005 FIDIC Green Book Std. (3) 6

7 stated in the notice under Sub-Clause 8.2. Variation procedure: Daywork rates 10.2 Valuation of the Works: Lump sum Price 11.1 Lump sum price with 11.1 schedules of rates Lump sum price with bill of quantitities 11.1 Re-measurement with tender bill of quantities 11.1 Applicable Cost reimbursable 11.1 Total advance payment 11.1A 20% (Twenty per cent.) of the Accepted Contract Amount. Advance Payment guarantee 11.1A Required Number and timing of installments 11.1A 1 (One) Repayment amortization of 11.1A On a pro-rata basis as the Advance payment works proceed, with full repayment being no later than the date of Notice of Taking Over Percentage of value 11.2 Materials: 80% of Materials and Plant Plant: NA Percentage of retention 11.3 5% (five Per cent) Currency of payment 11.7 United States dollars. Rate of interest 11.8 3% (Three per cent.) per annum AP/asb 07.07.2005 FIDIC Green Book Std. (3) 7

8 Insurances: 14.1 To be supplied by Contractor (a) evidence of insurance 14.1 7 (Seven) days after receiving the signed contract. (b) relevant policies 14.1 7 (Seven) days after receiving the signed contract. Type of cover* Amount of cover* Exclusions* The Works, Materials, Plant The sum stated in the and fees Agreement plus 15% (fifteen per cent.). Contractors Equipment N/A. Third Party injury to persons US $1,000,000.00 and damage to property (One Million United States dollars). Workers US $1,000,000.00 (One Million United States dollars). Other cover* Arbitration: Rules 15.3 UNCITRAL Arbitration Rules as in force on the Commencement Date. Appointing authority 15.3 President of FIDIC or his nominee. Place of Arbitration 15.3 Grand Turk. * Employer to amend as appropriate. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 8

9 PARTICULAR CONDITIONS Sub Clause 1.1 Definitions Sub Clause 1.1.4 shall be deleted, and the following substituted: 1.1.4 Employer means the person named in the Agreement and the legal successors in title to this person, and his permitted assignees. Sub Clause 1.7 Confidentiality Add the following Sub Clause 1.7 after Sub Clause 1.6: The Contractor shall treat the details of the Contract as private and confidential, except to the extent necessary to carry out obligations under it or to comply with applicable laws. The Contractor shall not publish, permit to be published, or disclose any particulars of the Works in any trade or technical paper or elsewhere without the previous agreement of the Employer. Sub Clause 2.5 Assignment Add the following Sub Clause 2.5 after Sub Clause 2.4: The Employer may, without the consent of the Contractor, assign the benefit of the Contract after either the expiry of the period stated in the Appendix, or the remedying of notified defects, or the completion of outstanding work, all as referred to in Sub Clause 9.1, whichever is the later, or the termination of the Contract. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 9

10 Sub Clause 4.4 Performance Security Sub Clause 4.4 shall be deleted, and the following substituted: If stated in the Appendix, the Contractor shall deliver to the Employer within 14 (fourteen) days of the Commencement Date a performance security in a form and from a third party approved by the Employer, and a parent company guarantee from the Contractors ultimate parent company (if any) identified in the Appendix. In return for a suitable abatement in price, the Employer may in his sole discretion accept a parent company guarantee alone. The forms of performance security and parent company guarantee annexed shall be used, with such modifications as may be necessary properly to bind the guarantors and benefit the Employer. Sub Clause 7.4 Late Completion Sub Clause 7.4 shall be deleted, and the following substituted: If the Contractor fails to complete the Works within the Time for Completion, the Contractors only liability to the Employer for such failure shall be to pay the amount stated in the Appendix for each day for which he fails to complete the Works, but if the maximum of such amount (if any) stated in the Appendix is reached, the Employer may by notice terminate the Contract immediately. The Contractor shall then demobilize from the Site, leaving behind Materials and Plant and any Contractors Equipment which the Employer instructs in the notice is to be used until the completion of the Works. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 10

11 Sub Clause 11.1A Advance Payment Add the following Sub Clause 11.1A after Sub Clause 11.1: The Employer shall make an advance payment, as an interest-free loan for mobilization. If the Appendix states that an advance payment guarantee is required, the Employer shall not be required to make any advance payment until the Contractor submits such a guarantee in accordance with this Sub-Clause. The total advance payment, the number and timing of instalments (if more than one), and the applicable currencies and proportions, shall be as stated in the Appendix. Unless and until the Employer receives the advance payment guarantee (if required), or if the total advance payment is not stated in the Appendix, this Sub-Clause shall not apply. The Employer shall pay the Contractor the first instalment of the advance payment within 21 (twenty-one) days after receiving a statement in respect thereof (which the Contractor shall be entitled to submit under Sub-Clause 11.2) and after the Employer receives (i) the performance security and parent company guarantee in accordance with Sub-Clause 4.4 and (ii) a guarantee (if required) in amounts and currencies equal to the advance payment. This guarantee shall be issued by an entity and from within a country (or other jurisdiction) approved by the Employer, and shall be in the form annexed, with such modifications as may be necessary properly to bind the guarantor and benefit the Employer, or in another form approved by the Employer. The Contractor shall ensure that the guarantee is valid and enforceable until the advance payment has been repaid, but its amount may be progressively reduced by the amount repaid by the Contractor. If the terms of the guarantee specify its expiry date, and the advance payment has not been repaid by the date 28 (twenty-eight) days prior to the expiry date, the Contractor shall extend the validity of the guarantee until the advance payment has been repaid. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 11

12 The advance payment shall be repaid through percentage deductions from all gross payments due to the Contractor, at the percentage stated in the Appendix. If the advance payment has not been repaid prior to the issue by the Employer of a notice under Sub- Clause 8.2 or prior to termination under Sub-Clause 12.1 and 12.2 or 12.3 or 13.2 (as the case may be), the whole of the balance then outstanding shall immediately become due and payable by the Contractor to the Employer. Payments to the Contractor under Sub-Clauses 11.3, 11.4, 11.5, 11.6 and 11.7 shall be subject to this Sub Clause. Sub Clause 11.3 Interim Payments The second paragraph of Sub-Clause 11.3 shall be deleted, and the following substituted: The Employer may withhold interim payments until he receives the performance security and parent company guarantee under Sub-Clause 4.4 (if any). Sub - Clause 11.9 Taxes and Duties Add the following Sub Clause 11.9 after Sub Clause 11.8: No Turks and Caicos Islands Government taxes or duties (except Turks and Caicos Islands Government National Insurance contributions properly payable) are payable on works undertaken on behalf of the Turks and Caicos Islands Government. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 12

13 Sub Clause 12.1 Default by Contractor Add the following new first paragraph to Sub-Clause 12.1: If the Contractor has given (before or after the award of the Contract), or gives, or offers to give (directly or indirectly) to any person any bribe, gift, gratuity, commission or other thing of value, as an inducement or reward: (i) for doing or forbearing to do any action in relation to the Contract and/or its award, or (ii) for showing or forbearing to show favour or disfavour to any person in relation to the Contract and/or its award, or if any of the Contractors employees, agents or subcontractors has given (before or after the award of the Contract), or gives, or offers to give (directly or indirectly) to any person any such inducement or reward (however, lawful inducements and rewards to Contractors employees shall not entitle termination); or has misrepresented facts, or has used collusive practices, in order to influence the award of the Contract; then the Employer may by notice terminate the Contract immediately: and shall be entitled (in addition to any other rights of the Employer under the Contract or otherwise) to recover from the Contractor the amount or value of any such inducement or reward (if any). Upon the service of such notice, the Contractor shall demobilise from the Site, leaving behind Materials and Plant and any Contractors Equipment which the Employer instructs in the notice is to be used until the completion of the Works. At the beginning of the second (formerly first) paragraph of Sub-Clause 12.1, the word If shall be deleted, and the words Further, if substituted: AP/asb 07.07.2005 FIDIC Green Book Std. (3) 13

14 Sub Clause 12.4 Payment upon Termination Sub Clause 12.4 (c) shall be deleted, and the following substituted: (c) if the Employer has terminated under Sub Clause 7.4 or 12.1 or 12.3, the Employer shall be entitled to a sum equivalent to 20% (twenty per cent.) of the value of those parts of the Works not executed at the date of the termination, Sub Clause 15.1 Adjudication Add at the end of Sub Clause 15.1: Any Adjudicators Agreement shall provide: (a) that the Agreement shall be governed by the law of the Turks and Caicos Islands, and that all disputes which may arise under, out of, or in connection with, or in relation to, the Agreement shall be submitted to the jurisdiction of the courts of the Turks and Caicos Islands; and (b) that the language of the Agreement shall be English. Sub Clause 15.3 Arbitration Add at the end of Sub Clause 15.3: Subject to this Clause 15, all disputes shall be submitted to the jurisdiction of the courts of the Turks and Caicos Islands. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 14

15 PERFORMANCE SECURITY THIS GUARANTEE is made on the day of Two thousand and BETWEEN: (1) whose registered office is at (the Guarantor); and (2) THE TURKS & CAICOS NATIONAL INSURANCE BOARD of Waterloo Road, Grand Turk, Turks and Caicos Islands, British West Indies (the Employer, which term shall include its successors and assignees). WHEREAS by an Agreement (the Contract) dated 20 and made between the Employer of the one part and (the Contractor) of the other part, the Contractor undertook the execution of certain works (the Works) in accordance with the terms and conditions of the Contract. IT IS AGREED as follows:- 1 The Guarantor hereby absolutely irrevocably and unconditionally guarantees to the Employer the due and punctual performance by the Contractor of all the obligations on the part of the Contractor under or pursuant to the Contract (the Terms) and (as a separate stipulation and as primary obligor) agrees that if the Contractor shall in any respect commit any breach of or fail to fulfil any of the Terms, then the Guarantor will forthwith perform and fulfil in place of the Contractor each and every Term in respect of which the Contractor has defaulted or which is unfulfilled by the Contractor. The Guarantor shall be liable to the Employer for all losses, damages, expenses, liabilities, claims, costs or proceedings which the Employer may suffer or incur by reason of the said failure or breach. Provided: AP/asb 07.07.2005 FIDIC Green Book Std. (3) 15

16 1.1 that the total liability of the Guarantor shall not exceed US$ ( United States dollars); 1.2 that upon the taking - over of the Works by the Employer in accordance with Sub Clause 8.2 of the Contract, the total liability of the Guarantor stated above shall reduce by 50% (fifty per cent.)*; and 1.3 that any claim hereunder must be received by the Guarantor on or before the payment by the Employer to the Contractor of the second half of the retention in accordance with Sub Clause 11.5 of the Contract, when this Agreement shall expire.* 2 The Guarantor shall be, and continue to be, liable under this Agreement even if the Contract is or becomes not binding on, or unenforceable against, the Contractor, for any reason whatever. No alterations in the Contract, or in the Works, and no extension of time, forbearance or forgiveness, nor any act, matter or thing whatsoever except an express release by the Employer, shall in any way release or reduce any liability of the Guarantor hereunder. References to the Contract in this Agreement shall include all amendments, variations and additions to it, whether made before or after the date hereof. 3 This guarantee shall remain in full force and effect until performance in full of the Terms, notwithstanding: 3.1 the insolvency or liquidation of the Contractor, the Guarantor or any other person; 3.2 any disclaimer of the Contract by a liquidator of the Contractor; and/or any feature of the Contract, the negotiations prior to the Contractor and the Employer entering into the Contract, or the performance of the Contract, making it ineffective or unenforceable. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 16

17 4 Until the Terms have been unconditionally and irrevocably performed in full the Guarantor shall not by virtue of any performance or payment made by it or otherwise: 4.1 be subrogated to any rights, security or moneys held or received or receivable by the Employer; or 4.2 be entitled to exercise any right of contribution from any co-surety in respect of such performance and liabilities under any other guarantee, security or agreement; or 4.3 exercise any right of set-off or counterclaim against the Contractor or any such co-surety; or 4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from the Contractor or any such co-surety; or 4.5 unless so directed by the Employer (when the Guarantor will prove, and turn over any realisations to the Employer, in accordance with such directions) claim as a creditor of the Contractor or any such co-surety in competition with the Employer. 5 No delay or omission of the Employer in exercising any right, power or privilege hereunder shall impair such right, power or privilege or be construed as a waiver of such right, power or privilege nor shall any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of the Employer herein provided are cumulative and not exclusive of any rights or remedies provided by law. 6 A waiver given or consent granted by the Employer under this guarantee will be effective only if given in writing and then only in the instance and for the purpose for which it is given. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 17

18 7.1 If at any time any one or more of the provisions of this guarantee is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions hereof shall not be in any way affected or impaired thereby. 7.2 As a separate and alternative stipulation the Guarantor unconditionally and irrevocably agrees that any sum expressed to be payable by it or obligation to be performed by it under this guarantee but which is for any reason (whether or not now existing and whether or not now known or becoming known to the Guarantor) not recoverable from or enforceable against the Guarantor on the basis of a guarantee shall nevertheless be recoverable from or enforceable against the Guarantor as if the Guarantor were the sole principal debtor or obligor (where relevant). 8.1 Any notice, demand or other communication to be served under this guarantee may be served upon the Guarantor only by posting or delivering the same or sending the same by telex or facsimile transmission to the Guarantor at its address, or telex or facsimile number shown below: Address: Telex: Fax: or at such other address or number as the Guarantor may from time to time notify in writing to the Employer. 8.2 Any notice, demand or other communication to be served under this guarantee may be served upon the Employer only by posting or delivering the same or sending the same by telex or facsimile transmission to the Employer at its address, or telex or facsimile number shown below: AP/asb 07.07.2005 FIDIC Green Book Std. (3) 18

19 Address: Telex: Fax: or at such other address or number as the Employer may from time to time notify in writing to the Guarantor. 9 A notice or demand served by post shall be deemed duly served on the tenth business day after the date of posting and a notice or demand sent by telex or facsimile transmission shall be deemed to have been served at the time of transmission unless served after 5.00 p.m. in the place of intended receipt in which case it will be deemed served at 9.00 a.m. on the following business day. For the purposes of this clause business day means a day on which commercial banks are open for business in London, England. 10 In proving service of any notice it will be sufficient to prove, in the case of a letter, that such letter was properly stamped or franked, addressed and placed in the post and, in the case of telex or facsimile transmission, that such telex or facsimile was duly transmitted on a business day to a current telex or facsimile number of the addressee at the address referred to above. 11 The Employer shall be entitled to assign or transfer all or any of the Employers rights under this guarantee without the consent of the Guarantor. 12 The proper law of this guarantee shall be the law of the Turks and Caicos Islands, and all disputes which may arise under, out of, or in connection with, or in relation to, this guarantee shall be submitted to the jurisdiction of the courts of the Turks and Caicos Islands. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 19

20 IN WITNESS whereof the Guarantor has caused this guarantee to be executed as a Deed the day and year first before written in accordance with the law governing the constitution of the Guarantor. EXECUTED under Seal for and on behalf of in the presence of: ______________________________ DIRECTOR ___________________________ ______________________________ WITNESS DIRECTOR/SECRETARY * Employer to amend or delete as appropriate. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 20

21 PARENT COMPANY GUARANTEE THIS GUARANTEE is made on the day of Two thousand and BETWEEN: (1) whose registered office is at (the Guarantor); and (2) THE TURKS & CAICOS NATIONAL INSURANCE BOARD of Waterloo Road, Grand Turk, Turks and Caicos Islands, British West Indies (the Employer, which term shall include its successors and assignees). WHEREAS by an Agreement (the Contract) dated 20 and made between the Employer of the one part and (the Contractor) of the other part, the Contractor undertook the execution of certain works (the Works) in accordance with the terms and conditions of the Contract. IT IS AGREED as follows:- 1 The Guarantor hereby absolutely irrevocably and unconditionally guarantees to the Employer the due and punctual performance by the Contractor of all the obligations on the part of the Contractor under or pursuant to the Contract (the Terms) and (as a separate stipulation and as primary obligor) agrees that if the Contractor shall in any respect commit any breach of or fail to fulfil any of the Terms, then the Guarantor will forthwith perform and fulfil in place of the Contractor each and every Term in respect of which the Contractor has defaulted or which is unfulfilled by the Contractor. The Guarantor shall be liable to the Employer for all losses, damages, expenses, liabilities, claims, costs or proceedings which the Employer may suffer or incur by reason of the said failure or breach. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 21

22 2 The Guarantor shall be, and continue to be, liable under this Agreement even if the Contract is or becomes not binding on, or unenforceable against, the Contractor, for any reason whatever. No alterations in the Contract, or in the Works, and no extension of time, forbearance or forgiveness, nor any act, matter or thing whatsoever except an express release by the Employer, shall in any way release or reduce any liability of the Guarantor hereunder. References to the Contract in this Agreement shall include all amendments, variations and additions to it, whether made before or after the date hereof. 3 This guarantee shall remain in full force and effect until performance in full of the Terms, notwithstanding: 3.1 the insolvency or liquidation of the Contractor, the Guarantor or any other person; 3.2 any disclaimer of the Contract by a liquidator of the Contractor; and/or any feature of the Contract, the negotiations prior to the Contractor and the Employer entering into the Contract, or the performance of the Contract, making it ineffective or unenforceable. 4 Until the Terms have been unconditionally and irrevocably performed in full the Guarantor shall not by virtue of any performance or payment made by it or otherwise: 4.1 be subrogated to any rights, security or moneys held or received or receivable by the Employer; or 4.2 be entitled to exercise any right of contribution from any co-surety in respect of such performance and liabilities under any other guarantee, security or agreement; or 4.3 exercise any right of set-off or counterclaim against the Contractor or any such co-surety; or AP/asb 07.07.2005 FIDIC Green Book Std. (3) 22

23 4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from the Contractor or any such co-surety; or 4.5 unless so directed by the Employer (when the Guarantor will prove, and turn over any realisations to the Employer, in accordance with such directions) claim as a creditor of the Contractor or any such co-surety in competition with the Employer. 5 No delay or omission of the Employer in exercising any right, power or privilege hereunder shall impair such right, power or privilege or be construed as a waiver of such right, power or privilege nor shall any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of the Employer herein provided are cumulative and not exclusive of any rights or remedies provided by law. 6 A waiver given or consent granted by the Employer under this guarantee will be effective only if given in writing and then only in the instance and for the purpose for which it is given. 7.1 If at any time any one or more of the provisions of this guarantee is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions hereof shall not be in any way affected or impaired thereby. 7.2 As a separate and alternative stipulation the Guarantor unconditionally and irrevocably agrees that any sum expressed to be payable by it or obligation to be performed by it under this guarantee but which is for any reason (whether or not now existing and whether or not now known or becoming known to the Guarantor) not recoverable from or enforceable against the Guarantor on the basis of a guarantee shall nevertheless be recoverable from or enforceable against the Guarantor as if the Guarantor were the sole principal debtor or obligor (where relevant). AP/asb 07.07.2005 FIDIC Green Book Std. (3) 23

24 8.1 Any notice, demand or other communication to be served under this guarantee may be served upon the Guarantor only by posting or delivering the same or sending the same by telex or facsimile transmission to the Guarantor at its address, or telex or facsimile number shown below: Address: Telex: Fax: or at such other address or number as the Guarantor may from time to time notify in writing to the Employer. 8.2 Any notice, demand or other communication to be served under this guarantee may be served upon the Employer only by posting or delivering the same or sending the same by telex or facsimile transmission to the Employer at its address, or telex or facsimile number shown below: Address: Telex: Fax: or at such other address or number as the Employer may from time to time notify in writing to the Guarantor. 9 A notice or demand served by post shall be deemed duly served on the tenth business day after the date of posting and a notice or demand sent by telex or facsimile transmission shall be deemed to have been served at the time of transmission unless served after 5.00 p.m. in the place of intended receipt in which case it will be deemed served at 9.00 a.m. on the following business day. For the purposes of this clause business day means a day on which commercial banks are open for business in London, England. AP/asb 07.07.2005 FIDIC Green Book Std. (3) 24

25 10 In proving service of any notice it will be sufficient to prove, in the case of a letter, that such letter was properly stamped or franked, addressed and placed in the post and, in the case of telex or facsimile transmission, that such telex or facsimile was duly transmitted on a business day to a current telex or facsimile number of the addressee at the address referred to above. 11 The Employer shall be entitled to assign or transfer all or any of the Employers rights under this guarantee without the consent of the Guarantor. 12 The proper law of this guarantee shall be the law of the Turks and Caicos Islands, and all disputes which may arise under, out of, or in connection with, or in relation to, this guarantee shall be submitted to the jurisdiction of the courts of the Turks and Caicos Islands. IN WITNESS whereof the Guarantor has caused this guarantee to be executed as a Deed the day and year first before written in accordance with the law governing the constitution of the Guarantor. EXECUTED under Seal for and on behalf of in the presence of: _____________________________________ DIRECTOR __________________________________ _____________________________________ WITNESS DIRECTOR/SECRETARY AP/asb 07.07.2005 FIDIC Green Book Std. (3) 25

26 ADVANCE PAYMENT GUARANTEE To: THE TURKS & CAICOS NATIONAL INSURANCE BOARD of Waterloo Road, Grand Turk, Turks and Caicos Islands, British West Indies (hereinafter called the Employer). Re: Contract No: (the Contract). In accordance with the Conditions of Contract (Sub-Clause 11.1A (Advance Payment)) of the Contract, of (the Contractor) is required to provide the Employer with a guarantee in amounts and currencies equal to the advance payment, namely: US$ We, of , unconditionally and irrevocably guarantee to pay (as primary obligor and not as surety merely) to the Employer on his first demand without any right of objection whatsoever on our part and without any Employers first claim to the Contractor, amounts from time to time so demanded not exceeding the amount[s] stated above. We shall be, and continue to be, liable under this guarantee even if the Contract is or becomes not binding on, or unenforceable against, the Contractor, for any reason whatever. No alterations in the Contract, or in the Works described therein, and no extension of time, forbearance or forgiveness, nor any act, matter or thing whatsoever AP/asb 07.07.2005 FIDIC Green Book Std. (3) 26

27 except expiry in accordance with its terms or an express release by the Employer, shall in any way release or reduce our liability under this guarantee. References to the Contract in this guarantee shall include all amendments, variations and additions to it, whether made before or after the date hereof. We hereby waive notice of any such amendment, variation or addition. The amount of this guarantee shall be progressively reduced by the amount of the advance payment repaid by the Contractor in accordance with the Contract. This guarantee (as so progressively reduced) shall remain valid and in full effect until the Employer receives full repayment of the amount[s] stated above from the Contractor. The proper law of this guarantee shall be the law of the Turks and Caicos Islands, and all matters relating hereto shall be determined by the courts of the Turks and Caicos Islands. IN WITNESS whereof we have caused this guarantee to be executed as a Deed this day of 20 AP/asb 07.07.2005 FIDIC Green Book Std. (3) 27

28 THE COMMON SEAL of was hereunto affixed in the presence of: Director Secretary AP/asb 07.07.2005 FIDIC Green Book Std. (3) 28

29 ATTESTATION CLAUSES OF SHORT FORM OF CONTRACT FOR CONSTRUCTION EXECUTED under Seal for and on behalf of THE TURKS & CAICOS NATIONAL INSURANCE BOARD by _______________________________ LILLIAN MISICK CHAIRMAN TCI NATIONAL INSURANCE BOARD in the presence of: ___________________________________ WITNESS Name_____________________ EXECUTED under Seal for and on behalf of ___________________________________ DIRECTOR Name: __________________________ In the presence of: _____________________________ ____________________________________ WITNESS DIRECTOR/SECRETARY Name________________________ Name______________________________ AP/asb 07.07.2005 FIDIC Green Book Std. (3) 29

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