AGREEMENT FOR SUB-CONSULTANT ENGAGEMENT

BETWEEN:

Bagak Technical & Services Sdn Bhd. (BAGAK TECHNICAL)

AND:

PNA Risk Management Sdn Bhd (PNA)

(SUB-CONSULTANT)

PROJECT:

PROJECT LOCATION:

Provision to Conduct the Process Related

Specialised Studies for the Detailed
Environmental Impact Assessment (DEIA) for
the Petrochemical and Waste Management and
Handling Facility for the Proposed Refinery and
Petrochemical Integrated Development (RAPID)
Project in West Pengerang, Johor

West Pengerang, Johor, Malaysia

SCOPE & NATURE OF THE SERVICES:

-

As generally required by the Agreement signed between BAGAK TECHNICAL and

AECOM Malaysia Sdn. Bhd. (AECOM, the Employer under the Main Contract) AECOM
Project No. KULD 13133.

Scope of services covering:

Assessment of all available documentation relevant to the Project;
An analysis of all aspects of the proposed industrial processes and
identification of sensitive receptors;
Development of a terms-of-reference (ToR) for each specialist study for
inclusion in the overall ToR for the main DEIA;
Assessment of the scope and severity of potential impacts for the aspect studied,
i.e. Quantitative Risk Assessment (QRA), this includes computer-generated
modelling and mapping to show the potential magnitude of effect at the site
boundary as well as on sensitive receptors;
Identification of mitigation measures for each potentially significant impact;
Provision of content to the nominated DEIA Consultant to inform the
development of the new DEIA reports for each individual facility within the
RAPID site;
Assessment of the cumulative impacts (for each aspect studied) for the entire
RAPID development;
Active support of the public engagement portion of the approvals process for
each DEIA including attending public engagement sessions, and assistance in
responding to public feedback regarding each DEIA;
Support for engagement with DoE including attendance of presentation to the
EIA review panel; and
Provision of required reporting to PETRONAS including the inception report
and interim report for the study.

PROGRAMME FOR THE SERVICES:

-

Presentation for Technical Approach and Methodology June 12, 2013

Submission of Terms of Reference (TOR) June 14, 2013

Submission of Inception Report June 21, 2013

Sub-Consultancy Agreement

Page 1 of 5

Submission of Interim Report July 22, 2013

Completion of data gathering, modelling, assessment, and reporting to including cumulative

impact and proposed mitigation measures July 26, 2013

Result presentation to JV companies Aug 7, 2013

Submission of draft DEIA report Aug 12, 2013

Submission of final DEIA report Sept 2, 2013

Note: project deliverables will be submitted to AECOM.

FEES & MILESTONES:

-

Fees for the Quantitative Risk Assessment will be MYR 432,000.00 (Ringgit Malaysia Four
Hundred Thirty Two Thousand Only) for a total of 12 process units under the Batch 1 Scope
(RM 36,000.00 per process unit).

Fees presented above are All Inclusive

Payment milestones as below:

Acceptance of LOA 10%
Submission and acceptance of the TOR 5%
Submission and acceptance of the Inception Report 20%
Submission and acceptance of the Interim Report 20%
Submission of the DEIA Report to DOE 35%
Approval of the DEIA Study by DOE 10%

INFORMATION OR SERVICES TO BE PROVIDED BY BAGAK TECHNICAL:

-

All technical information required for the studies shall be provided by AECOM

Sub-Consultant shall receive and follow instructions from AECOM with regard to technical
matters and technical project deliverables.

Bagak Technical engages the Sub-Consultant to provide the services described above and the SubConsultant agrees to perform the services for the remuneration provided above. Both parties agree to
be bound by the provision of the attached Standard Terms for Sub-Consultant Engagement and any
variations noted below. Once signed, this agreement, together with the conditions and any
attachments, will replace all or any oral agreement previously reached between the parties.
VARIATIONS TO THE STANDARD TERMS FOR SUB-CONSULTANT ENGAGEMENT:
-

Should Sub-Consultant withdraw from the project due to issues arising from sub-consultant
firm/team affecting the delivery performance prior to full completion of all project
deliverables, Sub-Consultant shall be liable providing compensation to BAGAKTECHNICAL and
AECOM all expenses required for alternative delivery

BAGAK TECHNICAL & SERVICES SDN.

BHD. AUTHORISED SIGNATORY(IES):

PRINT NAME:
DATE:

Sub-Consultancy Agreement

PNA RISK MANAGEMENT SDN. BHD. (SUBCONSULTANT) AUTHORISED

SIGNATORY(IES):

PRINT NAME:
DATE:

Page 2 of 5

STANDARD TERMS FOR SUB-CONSULTANT ENGAGEMENT

1.

The Sub-Consultant shall provide to BAGAK TECHNICAL

the consulting services (the Services) described in the
attached documents together with such other services as
may be agreed from time to time.

2.

In providing the Services the Sub-Consultant shall exercise

the degree of skill, care and diligence normally expected of
a competent professional. The Sub-Consultant shall, without
additional remuneration and notwithstanding any review or
approval by BAGAK TECHNICAL, remedy any errors
or deficiencies in the Services to the satisfaction of
BAGAK TECHNICAL, and shall indemnify BAGAK
TECHNICAL against any costs or liabilities incurred as
a result thereof. The Sub-Consultant shall provide such
resources as are necessary to ensure that the work can
be completed in accordance with the Programme
agreed with BAGAK TECHNICAL.

3.

4.

9.

BAGAK TECHNICAL will supply to the

SubConsultant without charge and within reasonable time
necessary and relevant information in the possession
of
BAGAK TECHNICAL to
assist
the
SubConsultant
in
the performance of the Service. The
Sub-Consultant shall not, without
BAGAK
TECHNICALs
prior
consent,
use information
provided by BAGAK TECHNICAL for purposes
unrelated to the Services.

The Sub-Consultant shall be liable to BAGAK

TECHNICAL for any direct/indirect loss or damage
suffered by BAGAK TECHNICAL (including any liability
of BAGAK TECHNICAL under the Main Contract) as the
result of a breach by the Sub-Consultant of his or her
obligations under this Agreement. The Sub-Consultant shall
also maintain proper and adequate insurance in respect
of their staff employed in conduct of this assignment to
fully satisfy the relevant Labour Laws.

10.

The
Sub-Consultant
shall
obtain
a
thorough
understanding of the project background, project
constraints and the exact scope of work before signing of
this Agreement. The Sub- Consultant is not entitled to any
compensation or relief due to lack of understanding of
the constraints and exact requirements of the Project.

The Sub-Consultant shall be fully responsible for and shall

indemnify BAGAK TECHNICAL against all losses,
liabilities, claims, and costs arising directly or indirectly out
of or in connection with or as a result of, the death of
or personal injury to any Sub-Consultants personnel, and
loss or damage to the Sub-Consultants equipment or
other property
of the Sub-Consultant
or
SubConsultants personnel.

11.

BAGAK TECHNICAL may order variations to the Services

in writing or may request the Sub-Consultant to submit
proposals for variation to the Services.

5.

The Services provided by the Sub-Consultant shall not

infringe the patent or design or copyright or any other
intellectual property rights of any third party. In the case of
any claim or action brought against BAGAK TECHNICAL
alleging infringement of any patent or copyright or
intellectual property rights in respect of
the
Services provided, the Sub-Consultant shall undertake to
indemnify and keep indemnified BAGAK TECHNICAL
against all loss and damage, costs and expenses and to
defend or settle such claim or action at the expense of the
Sub-Consultant.

6.

On satisfactorily achieving the milestones by the SubConsultant, the Sub-Consultant

shall render their
accounts for payments. Unless otherwise agreed, payments
under the Agreement shall be subject to BAGAK
TECHNICAL having
first received the
relevant
payment from the Employer under the Main Contract.
The Sub-Consultants shall
not
be
entitled
to
payment
from
BAGAK TECHNICAL if the relevant
payment has not been received from the Employer even
after a reasonable time has elapsed. BAGAK TECHNICAL
shall not be responsible to Sub- Consultants for any
costs/interests arising from delayed payment which was
due to late receipt of the relevant payment from the
Employer to BAGAK TECHNICAL as the main
Consultant. BAGAK
TECHNICAL
shall
exert
reasonable and diligent efforts to collect prompt
payment from the Employer.

7.

8.

any fees, duties or taxes necessary for completion of this

Agreement. Where services are carried out on a time charge
basis, the Sub-Consultant may purchase such incidental
goods and/or Services as are reasonably required for the
Sub-Consultant to perform the Services. Prior notification
and approval from BAGAK TECHNICAL shall be obtained
before the purchase. The reasonable cost of obtaining such
incidental goods and/or Services will be reimbursed at cost
by
BAGAK
TECHNICAL. The Sub-Consultant shall
maintain and submit records which clearly identify time and
expenses incurred.

Prior to execution of this Agreement, the SubConsultant has brought to the attention of BAGAK
TECHNICAL any potential conflict of interest which may
occur as a result of the Sub-Consultants undertaking of the
Service. During the currency of the Agreement, the
Sub-Consultant shall continue to bring to the attention of
BAGAK TECHNICAL any matters which may have a
conflict of interest.
Where services are carried out under a lump sum fee, the
agreed fee shall include all staff costs and expenses and
shall include the provision of any necessary equipment,
materials, permits, licences or clearances and payment of

Sub-Consultancy Agreement

12. BAGAK TECHNICAL shall retain copyright of all

intellectual property prepared by the Sub-Consultant for the
Agreement whether or not the Services is completed in part
due to suspension/termination or in whole provided that the
Sub-Consultant has been paid for all properly completed
professional services in accordance with the terms of this
Agreement. BAGAK TECHNICAL shall be entitled to use
them or copy them for the Project and the purpose for which
they are intended. The ownership of data and factual
information collected by the Sub-Consultant and paid for by
BAGAK TECHNICAL shall, after payment by BAGAK
TECHNICAL, lie with BAGAK TECHNICAL. BAGAK
TECHNICAL may reproduce drawings, specifications and
other documents as reasonably required in connection with
the Project.
13.

BAGAK TECHNICAL may suspend all or part of the

Services or terminate the Agreement by notice to the SubConsultant who shall immediately make arrangements to
stop the Services and minimise further
expenditure.
Suspension or termination shall not prejudice or affect the
accrued rights or liabilities of the parties.

14.

BAGAK
TECHNICAL
may
terminate
their
obligations under this Agreement:
a)
in the event of substantial breach by the SubConsultant of his or her obligations hereunder , which
breach has not been remedied within 15 days of
written notice from BAGAK TECHNICAL requiring the
breach to be remedied; or
b)
upon giving the Sub-Consultant 30 days written
notice of their intention to do so.

15.

Neither party may assign, transfer or sublet any

obligations under this Agreement without the written
consent of the other. Unless stated in writing to
the contrary, no assignment, transfer or subletting
shall release the assignor from any obligation under this
agreement.

Page 3 of 5

16. Sub-Consultant shall:

(a) keep confidential the terms of this Agreement and all

Compliance with Laws:

17.1 No Party to this Agreement shall, directly
Or indirectly, undertake nor cause nor permit to
be undertaken any activity that:
(a) is illegal under any applicable laws
or regulations, or;
(b) would have the effect of causing BAGAK
TECHNICAL or its subsidiaries or affiliates
to be in violation of the applicable laws
or regulations, including, without limitation,
the U.S. Foreign Corrupt Practices Act or
UK Bribery Act.

17.6 The Sub-Consultant hereby covenants that neither it

nor any officer, director, owner, principal
shareholder, investor, agent, representative or
employee of the Consultant, or any family member
of such persons, is now or during the term hereof
will become an Official, political party official,
or candidate for political office. The Consultant
shall not employ any Official, political party
official, or candidate for political office during the
term of this Agreement. The Sub-Consultant
further covenants that no Official, political party
official, or candidate for political office is deriving
any benefit, directly or indirectly, from this
Agreement. The Sub-Consultant agrees to notify
BAGAK TECHNICAL immediately of any changes
to this covenant.

17.2

17.7

In no case shall BAGAK TECHNICAL be obligated

to take any action or make any payment to the SubConsultant or any other Consultant that would cause
BAGAK TECHNICAL to suffer a penalty or
contravene applicable laws or regulations, including
but not limited to the laws of the territories in which
work will be performed and those of the
United States (including, but not limited to, the
Foreign Corrupt Practices Act) and the United
Kingdom (including but not limited to, the UK
Bribery Act.).

17.8

If the Sub-Consultant breaches any of the covenants

contained in this section, BAGAK TECHNICAL
shall have the right to immediately terminate this
Agreement without penalty or further payment of
any sums due and owing or claimed by the
Sub- Consultant hereunder. In such instance, the
Sub- Consultant shall indemnify BAGAK
TECHNICAL for any penalties, losses and expenses
resulting from such breach of the provisions of this
section.

(b)

17.

17.5 The Sub-Consultant shall not subcontract any part

of the Services nor retain or engage a
Consultant to carry out sales or marketing
obligations in connection with the scope of this
Agreement
without
obtaining
BAGAK
TECHNICALs
prior
written consent. BAGAK
TECHNICAL reserves the right in its sole discretion
to reject a request to engage or retain any such
Consultant.

information, whether in written or any other

form, which has been disclosed to it by or on behalf
of the other party in confidence or which by its nature
ought to be regarded as confidential (including,
without limitation, any business information in
respect of the other party which is not directly
applicable
or relevant
to the
transactions
contemplated by this Agreement and information
from Employer of the Main Contract); and
procure that its officers, employees and
representatives keep secret and treat
as
confidential all such documentation and information.

17.3

17.4

In connection with this Agreement, no Party shall

give, offer, promise, or authorize, directly or
indirectly, anything of value to:
(a) an official, officer, employee or any
other person acting in an official capacity for
or on behalf of any government (including
any department, agency, or instrumentality
thereof),
state-owned
enterprise,
international
organization
or
any
subdivisions, agents or advisors thereto,
whether paid or unpaid (any such
person
referred
to collectively as Official),
including the government(s) of the territories
in which work
will be performed
hereunder;
(b) any person(s) or party(s) while knowing or
having reason to know that such thing of value
is to be given, offered or promised to an
Official in order to:
(i) influence any official act or decision,
or;
(ii) induce an Official to do or omit to do any
act in violation of his or her lawful duty,
or;
(iii) induce an Official to use his or
Her influence to affect or influence a
decision or act of any government,
instrumentality, or international
organization, or;
(iv) assist the Parties hereto or any
Other person in obtaining or retaining
business for or with, or in directing
business to the Parties or any other
person, or;
(v) to obtain or secure an unfair or improper
advantage for the Parties in any respect.

18.

Except as authorized by BAGAK TECHNICAL in this

Agreement, all communication between the Sub-Consultant
and the Employer, and any governmental authority or other
consultants related to this project shall be through BAGAK
TECHNICAL.

19.

The Sub-Consultant agrees and shall:

19.1 observe and comply with BAGAK TECHNICAL
Code of Conduct.
19.2

In connection with this Agreement, no Party shall

make a contribution or give, offer, promise
or authorize, directly or indirectly, anything of value
to any political party, official of a political party
or candidate for office on behalf of or associated
with the Parties or in connection with the purpose of
this Agreement.
In connection with this Agreement, no Party shall
engage in any acts of bribery, kickback or
other improper inducement, including bribery of a
person in the private sector. Without limiting the
generality of the foregoing, no Party shall give,
offer, promise or authorize, either directly or
indirectly, a financial or other advantage to any
person to induce a person to perform improperly a
relevant function or activity or to reward such
improper performance or where the Party knows
or believes that the acceptance of the advantage
in itself constitutes the improper performance of a
relevant function or activity.

Sub-Consultancy Agreement

maintain records related to the project/transactions

for a minimum of 4 years and BAGAK
TECHNICAL shall have the right to request for
information or audit the documents by giving a prior
reasonable notice.

19.3 authorize BAGAK TECHNICAL and its agents to

make enquiries and obtain information about
Sub- Consultant and/ or its sub-agents, if any,
from
references
they
supplied
BAGAK
TECHNICAL and any other source to verify the
information given to BAGAK TECHNICAL, to
determine reputation and credit standing, and for
other customary due diligence and compliance
purposes.
20.

Independent Contractor
20.1 The Sub-Consultant is an independent contractor
under this Agreement and shall assume all of
the rights, obligations and liabilities applicable to it
as such independent contractor. Any provisions in
this Agreement which may appear to give
BAGAK

Page 4 of 5

TECHNICAL the right to direct or exercise control over the SubConsultant as to the details of performing the Services shall be
construed to mean only that the Sub-Consultant shall follow
the directions of BAGAK TECHNICAL in the results desired of
the Services.
20.2

No action by BAGAK TECHNICAL to enforce any

provisions of this Agreement, including without
limitation any of its safety rules or regulations,
or BAGAK TECHNICALs right to review, approve
or confirm various Sub-Consultants acts or
documents shall be construed as retaining a right of
control over the Sub-Consultant or any part of the
Services, and such action by
BAGAK
TECHNICAL shall not be construed as an
exercise of any retained right of control.

20.3

The relationship of the Sub-Consultant to BAGAK

TECHNICAL shall be that of an independent
contractor and nothing herein shall create or be
interpreted to create a master-servant or principalagent relationship between the Sub-Consultant
and BAGAK TECHNICAL.

21.

Any dispute between the parties shall, in the first

instance be considered by the parties at the management
level and then, failing resolution at the management level,
shall be referred to the senior management level. Any
dispute that remains unresolved thirty (30) days after being
referred for resolution to the senior management level
shall, at the request of either party, exclusively be referred
to and finally resolved by arbitration in Kuala Lumpur in
accordance with the rules for arbitration of the Kuala
Lumpur Regional Centre for Arbitration for the time
being in force. The language of the arbitral proceedings
shall be English.

22.

This Agreement is governed by and construed in all respects

in accordance with the laws of Malaysia.

23.

The Agreement between BAGAK TECHNICAL and

Sub- Consultant shall comprise this Agreement, the
Annexure herein
and
communication
letters
accompanying this document and listed in the Annexure
and shall take effect according to its tenor superseding all
other prior instructions and transactions between the parties
to the Agreement.

24.

This Agreement is written in the English language and

executed in duplicate, each of which shall be deemed
an original.

Sub-Consultancy Agreement

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