Transcript
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3
Directorate-General for Public Works and Water
Management (RWS)
DBFM AGREEMENT
Standard 2.0
Date 30 July 2009
Status
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Contents
1. DEFINITIONS...................................................................................... 6
2. KEY OBLIGATIONS AND TERM............................................................. 6
2.1 KEY OBLIGATIONS OF THE CONTRACTOR ......................................................... 6 2.2 KEY OBLIGATIONS OF THE CONTRACTING AUTHORITY .......................................... 7 2.3 TERM ................................................................................................ 7
3. FINANCING......................................................................................... 7
3.1 PROJECT FINANCING................................................................................ 7
3.2 FINANCIAL CLOSE GUARANTEE.................................................................... 7 3.3 FINANCIAL CLOSE .................................................................................. 8 3.4 PERFORMANCE BOND............................................................................... 9 3.5 REFINANCING ....................................................................................... 9 3.6 FINANCIAL MODEL.................................................................................10
4. RWS INFRASTRUCTURE..................................................................... 10
4.1 ISSUING THE COMMENCEMENT CERTIFICATE....................................................10 4.2 ACCESS.............................................................................................11 4.3 DESIGN AND CONSTRUCTION .....................................................................12 4.4 AVAILABILITY AND MAINTENANCE ................................................................12 4.5 ISSUING THE AVAILABILITY CERTIFICATE .......................................................13 4.6
ISSUING THE COMPLETION CERTIFICATE ........................................................14
5. THIRD-PARTY INFRASTRUCTURE...................................................... 14
5.1 ACCESS.............................................................................................14 5.2 DESIGN AND CONSTRUCTION .....................................................................14 5.3 AVAILABILITY AND MAINTENANCE ................................................................15 5.4 COMPLETION AGREEMENTS FOR THIRD-PARTY INFRASTRUCTURE .............................15 5.5 ISSUING OF THE PART COMPLETION CERTIFICATE FOR THE THIRD-PARTY INFRASTRUCTURE 15
6. CABLES AND THIRD-PARTY PIPELINES............................................. 16
6.1 UNDISTURBED LOCATIONS AND TEMPORARY PROTECTIVE MEASURES..........................16 6.2 THIRD-PARTY CABLES AND PIPELINES CATEGORY 1 ...........................................16 6.3 THIRD-PARTY CABLES AND PIPELINES CATEGORY 2 ...........................................16 6.4 THIRD-PARTY CABLES AND PIPELINES CATEGORY 3 ...........................................17
7. HAND BACK....................................................................................... 18
7.1 HAND BACK REQUIREMENTS......................................................................18 7.2 HAND BACK INSPECTIONS ........................................................................18 7.3 HAND BACK BANK GUARANTEE ..................................................................18 7.4 ISSUING THE HAND BACK CERTIFICATE .........................................................19
8. QUALITY ASSURANCE ....................................................................... 20
8.1 MANAGEMENT SYSTEM ............................................................................20 8.2 PERFORMANCE MEASUREMENT SYSTEM..........................................................20
8.3 INSPECTIONS ......................................................................................20
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17.6 USE AFTER EARLY TERMINATION ...............................................................38 17.7 PROVISION OF LICENCE TO CONTRACTOR FOR EXISTING INFRASTRUCTURE...............38
18. MISCELLANEOUS PROVISIONS....................................................... 39
18.1 REGULATIONS...................................................................................39 18.2 WORKING CONDITIONS AND OCCUPATIONAL HEALTH AND SAFETY..........................39 18.3 PERMITS .........................................................................................39 18.4 FEE LEVIED ON THE EXTRACTION OF SAND, GRAVEL AND SOIL ..............................40 18.5 (TRAFFIC) SAFETY ..............................................................................40 18.6 INCIDENT MANAGEMENT, WINTER MAINTENANCE, TRAFFIC ACCIDENTS AND NON-STANDARDTRANSPORT.................................................................................................40 18.7 [C OST OF MAINS SERVICES ] ...................................................................40
19. INDEXATION .................................................................................. 40
19.1 PRICE LEVEL .....................................................................................40 19.2 NON-INDEXED AMOUNTS .......................................................................40 19.3 INDEXING THE GROSS AVAILABILITY PAYMENT ..............................................41 19.4 INDEXATION OF OTHER AMOUNTS..............................................................41
20. EXCESS PROFITS............................................................................ 41
20.1 WEIGHTED AVERAGE RETURN ON EQUITY .....................................................41 20.2 SHARING OF EXCESS PROFITS .................................................................41 20.3 MAXIMIZATION ..................................................................................41 20.4 WEIGHTED AVERAGE COST OF CAPITAL ......................................................41
21. DISPUTE RESOLUTION................................................................... 42
21.1 DISPUTES........................................................................................42 21.2 EXPERT DETERMINATION.......................................................................42 21.3 JURISDICTION...................................................................................43 21.4 JURISDICTION IN CASE OF THIRD-PARTY PROCEEDINGS .....................................43
22. COMMUNICATION .......................................................................... 44
22.1 LANGUAGE.......................................................................................44 22.2 COMMUNICATION ...............................................................................44 22.3 NOTIFICATIONS AND APPROVALS ..............................................................44 22.4 REPRESENTATIVES..............................................................................44 22.5 REPRESENTATIONS..............................................................................45
23. CONFIDENTIALITY ......................................................................... 45 23.1 CONFIDENTIALITY...............................................................................45 23.2 EXCEPTIONS.....................................................................................45
24. FINAL STIPULATIONS .................................................................... 46
24.1 APPLICABLE LAW ................................................................................46 24.2 EXCLUSION......................................................................................46 24.3 TRANSFER OF RIGHTS ..........................................................................46 24.4 WAIVER..........................................................................................46 24.5 ENTIRE AGREEMENT.............................................................................47 24.6 CONTINUING OBLIGATIONS ....................................................................47 24.7 CONTRADICTION ................................................................................47
24.8 UNFORESEEN CIRCUMSTANCES ................................................................47
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24.9 NO THIRD-PARTY CLAUSES.....................................................................47
SCHEDULES ............................................................................................... 48
SCHEDULE 1 DEFINITIONS.............................................................................48 SCHEDULE 2 PAYMENT MECHANISM ...................................................................66 SCHEDULE 3 COMPENSATION FOR SUPERVENING EVENTS ...........................................82 SCHEDULE 4 COMPENSATION FOR EARLY TERMINATION .............................................88 SCHEDULE 5 CHANGES ...............................................................................95 SCHEDULE 6 DIRECT AGREEMENT................................................................... 101 SCHEDULE 7 MODELS............................................................................... 123 SCHEDULE 8 MANAGEMENT PLAN ................................................................... 131 SCHEDULE 9 PROGRAMME OF REQUIREMENTS.................................................... 132 SCHEDULE 10 FINANCIAL MODEL ADJUSTMENT GUIDELINE ..................................... 139
SCHEDULE 11 AGREEMENT GOVERNING INTELLECTUAL PROPERTY RIGHTS ..................... 152 SCHEDULE 12 INSURANCE .......................................................................... 155 SCHEDULE 13 INFORMATION FURNISHED .......................................................... 156 SCHEDULE 14 THIRD-PARTY CABLES AND PIPELINES ............................................. 157 SCHEDULE 15 RIGHTS OF THIRD PARTIES TO ACCESS THE RWS AND THIRD-PARTY AREAS
DURING THE DEVELOPMENT PERIOD.................................................................... 158
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This Agreement is dated [date of signature].
(1) THE STATE OF THE NETHERLANDS (Ministry of Transport, Public Works and Water
Management, Directorate-General for Public Works and Water Management, with its seat in The
Hague (the Contracting Authority), represented by [name of authorized representative];
(2) [NAME OF CONTRACTOR], with its registered office in [location of the registered office of
the Contractor] (the Contractor), represented by [name of authorized representative];
have agreed to the following:
1. DEFINITIONS
Capitalized terms in this Agreement have the meaning ascribed to them as set out in Schedule 1
(Definitions).
2. KEY OBLIGATIONS AND TERM
2.1 Key Obligations of the Contractor
(a) The Contractor must:
(i)
carry out all Work required to obtain the Commencement Certificate in
accordance with this Agreement;
(ii)
keep the RWS Infrastructure available during the Development Period in
accordance with this Agreement;
(iii)
carry out all Work required to obtain the Availability Certificate in accordance
with this Agreement;
(iv)
keep the RWS Infrastructure available during the Availability Period inaccordance with this Agreement;
(v)
carry out all Work required to obtain the Completion Certificate in accordance
with this Agreement;
(vi) carry out all Work in accordance with the Management System;
(vii) carry out all Work required to obtain the Hand Back Certificate in accordance
with this Agreement;
(viii)
do everything that is necessary to realise the above, insofar as this Agreement
does not specifically stipulate otherwise; and
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(ix)
fulfil all its other obligations pursuant to this Agreement.
(b) All costs incurred by the Contractor in order to fulfil the aforementioned obligations will
be borne by the Contractor, except to the extent that this Agreement specificallystipulates otherwise.
(c)
Regardless of circumstances or events that may arise during the execution of this
Agreement, the Contractor has:
(i)
no right to any payment from the Contracting Authority;
(ii) no right to a postponement or suspension of the performance of its obligations;
and
(iii) no right vis-à-vis the Contracting Authority with regard to a Contracting
Authority Default,
except to the extent that such rights are specifically stipulated in this Agreement or
result from public law.
2.2 Key Obligations of the Contracting Authority
The Contracting Authority must:
(a) pay the Net Availability Payment to the Contractor for the period from the
Commencement Date to the Expiry Date in accordance with Schedule 2 (Payment
Mechanism);
(b)
after the Completion Certificate has been issued, pay the Lump-Sum Completion
Payment to the Contractor in accordance with Schedule 2 (Payment Mechanism); and
(c) fulfil all its other obligations pursuant to this Agreement.
2.3 Term
This Agreement comes into effect on the Contract Date and ends, subject to Article 24.6
(Continuous obligations), on the Expiry Date unless it is terminated earlier in accordance with
Article 10 (Early Termination).
3. FINANCING
3.1 Project financing
The Contractor must finance the Work by means of Project financing.
3.2 Financial Close Guarantee
(a)
On the Contract Date, the Contractor must provide a Bank Guarantee in the amount of €
[ ] as guarantee for the fulfilment of its obligations under this Agreement in
accordance with the model provided in Schedule 7 (Models), Part 1 (the Financial Close
Guarantee).
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(b)
The Financial Close Guarantee must remain in effect for a period of three months after
the Contract Date. If the deadline for Financial Close specified in Article 3.3 (a) isextended as a result of a Supervening Event or a Disruption of Financial Markets, the
Contractor must ensure that the term of the Financial Close Guarantee is adequately
extended so that, as long as the Supervening Event or Disruption of Financial Markets
continues, the residual term of the Financial Close Guarantee will always be at least 1
month.
(c) Concurrent to issuing the Confirmation of Financial Close, the Contracting Authority
must notify the bank issuing the Financial Close Guarantee that the Financial Close
Guarantee shall cease to apply as at the date of the Confirmation of Financial Close, and
return the original of the Financial Close Guarantee to said institution.
3.3 Financial Close
(a)
Financial Close must occur within the three months following the Contract Date. If
Financial Close cannot occur within three months of the Contract Date due to a
Supervening Event or a Disruption of Financial Markets, the deadlines for attaining
Financial Close will be extended up to 10 Business Days after the day on which the
Supervening Event or Disruption of the Financial Markets no longer prevents the
attaining of Financial Close. If the deadline for attaining Financial Close is extended by
more than [180 Calendar Days] owing to the occurrence of the Supervening Event or
the Disruption of Financial Markets, either of the Parties has the right to terminate this
Agreement. Upon termination of the Agreement on these grounds, neither Party shallbe liable to compensate the other.
(b) The date of Financial Close must be established in consultation with the Contracting
Authority.
(c) On the date of Financial Close, the Contracting Authority and the Contractor must enter
into a Direct Agreement with the Security Agent.
(d)
On the date of Financial Close, the Contractor must hand over to the Contracting
Authority a Confirmation of Financial Close signed by the Facility Agent / Intercreditor
Agent in accordance with the model provided in Schedule 7 (Models), Part 4
(Confirmation of Financial Close).
(e) On the date of Financial Close, the Contracting Authority and the Contractor must
determine the Gross Availability Payment and the Weighted Average Cost of Capital in
accordance with the model provided in Part 5 (Confirmation of Gross Availability
Payment and Weighted Average Cost of Capital ) of Schedule 7 (Models).
(f)
Twenty Business Days after the date of Financial Close, the Contractor must hand over
to the Contracting Authority the entire Finance Agreements and the Junior Debt
Agreements (CD-ROM format accepted), in the form of copies certified by the
Contractor. Throughout the period from the Financial Close Date up to and including the
Expiry Date, the Contractor in the absence of prior consent from the Contracting
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Authority may only provide security interest on its rights under this Agreement vis-à-vis
the Contracting Authority as specified in the Finance Agreements on the date of the
Financial Close.
3.4 Performance Bond
(a)
On the Financial Close Date, the Contractor must provide a Bank Guarantee in the
amount of € [ ] as guarantee for the fulfilment of its obligations under this Agreement
in accordance with the model (Performance Bond ) provided in Part 2 (Performance
Bond ) of Schedule 7 (Models).
(b) The term of validity of the Performance Bond must extend to one month after the
Scheduled Availability Date. If the Scheduled Availability Date is postponed pursuant to
Article 9.2 (Delay Event ), the Contractor must ensure that the term of validity of the
Performance Bond is extended by an equal period at the very least.
(c)
Within 10 Business Days of receipt of a declaration from the Contractor’s chartered
accountant confirming that at least the amount outlined in Paragraph (a) of the
Performance Bond has been expended on components of objects listed with respect to
the Completion Date in Schedule 9, Table 1 (RWS Infrastructure Objects), the
Contracting Authority must inform the bank issuing the Performance Bond that the
Performance Bond shall cease to apply with effect from the date of the chartered
accountant’s declaration and return the original copy of the Performance Bond to said
bank, unless it notifies the Contractor that it disputes the accuracy of the declaration.
(d)
Concurrent to issuing the Availability Certificate, the Contracting Authority must notify
the bank issuing the Performance Bond that the Performance Bond ceases to apply asfrom the date of the Contracting Authority’s notification and return the original copy of
the Performance Bond to said bank, unless the Contracting Authority has already
notified said bank that the Performance Bond has ceased to apply.
3.5 Refinancing
(a)
The Contractor may not enter into a new Finance Agreement with any other party than
an existing Lender if any Grounds for Exclusion or Grounds for Refusal apply to the new
Lender.
(b) The Contractor must request the Contracting Authority’s consent prior to entering into a
new Finance Agreement with any party other than an existing Lender. This authorisation
must be given within [2 0 ] Business Days after the Contractor has demonstrated that
no Grounds for Exclusion apply to the new Lender, unless the Contracting Authority
demonstrates that a Ground for Refusal applies to the new Lender (or a (legal) entity of
which the new Lender is a subsidiary within the meaning of Article 2:24a of the Dutch
Civil Code or belongs to the same group as the Lender as referred to in Article 2:24b of
the Dutch Civil Code). If the Contracting Authority grants its authorisation, no Grounds
for Exclusion shall be deemed to apply to the new Lender pursuant to Paragraph (a).
(c)
The Contractor must inform the Contracting Authority in advance of any Refinancing
other than that referred to in Paragraph (b).
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(d) The Contractor must pay [ % ] of the Financial Benefit (before taxes) achieved through
the Refinancing to the Contracting Authority. This payment must be made on the basis
of a payment schedule that is established on the basis of the expected actual realisation
of that benefit under unchanged circumstances.
(e)
If there is to be Refinancing, the Parties must consult to determine the Financial Benefit
and the payment schedule referred to in Paragraph (d). This determination must be
based on a comparison between the payments that are expected to be made by the
Contractor to its Shareholders before and after the Refinancing based on the Updated
Financial Model. Upon determination of the Financial Benefit, any commissions,
penalties, breakage costs and other costs and expenses will be left out of consideration
insofar as these cannot be regarded as consistent with the market.
(f)
If the Contracting Authority and the Contractor cannot reach an agreement within 3
months regarding determination of the Financial Benefit and the payment schedulespecified in Paragraph (d), both items will be determined in accordance with Article 21
(Dispute Resolution).
3.6 Financial Model
(a) On the date of the Financial Close, the Contractor must furnish the Financial Model that
has been completed in accordance with Schedule 10 (Financial Model Adjustment
Guideline).
(b)
In determining the compensation to be paid pursuant to Articles 10 (Early Termination),
3.5 (Refinancing) or 20.2 (Sharing of excess profits), account must (also) be taken of
the Updated Financial Model. The compensation to be paid pursuant to Article 9.3(Compensation Event ) shall on the Contracting Authority’s request be determined in
accordance with the Updated Financial Model.
(c) The Contractor must furnish the Updated Financial Model together with a description of
adjustments made since the Original Financial Model, or where applicable, the most
recent copy of the Updated Financial Model.
(d)
At the request of the Contracting Authority, the Contractor must demonstrate, by means
of an affirmative declaration from an independent expert acceptable to the Contracting
Authority, that the Updated Financial Model is based on the Original Financial Model and
that the adjustments are in accordance with Schedule 10 (Financial Model Adjustment
Guideline).
4. RWS INFRASTRUCTURE
4.1 Issuing the Commencement Certificate
(a)
If the Contractor believes that the conditions for issuing the Commencement Certificate
referred to in the Certificate Plan have been fulfilled, the Contractor may demonstrate
such fulfilment by providing the Contracting Authority with the documents named in the
Certificate Plan. The Contractor may submit these documents to the Contracting
Authority in stages, according to the procedure described for that purpose in the
Management Plan.
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(b)
Within [ 2 0 ] Business Days of receiving a document as specified in Paragraph (a), the
Contracting Authority must inform the Contractor whether the Contractor has
demonstrated that the conditions for issuing the Commencement Certificate described
in this document have been fulfilled. After such notification, and prior to issuing the
Commencement Certificate, the Contracting Authority may verify whether or not this is
the case and may verify at all times whether such conditions for issuing the
Commencement Certificate described in previously submitted documents continue to be
met.
(c) The Contractor is entitled to amend a document and resubmit it to the Contracting
Authority in the event that the Contracting Authority determines that the conditions
described in said document have not been demonstrably fulfilled.
(d)
If the Contractor has demonstrated that all conditions for issuing the Commencement
Certificate are fulfilled, the Contracting Authority must issue the CommencementCertificate to the Contractor within [ 2 0 ] Business Days of receiving all documents that
demonstrate such fulfilment.
(e)
If the Contracting Authority refuses to issue the Commencement Certificate, it must
inform the Contractor of this refusal within the same period of [ 2 0 ] Business Days,
specifying its reasons.
4.2 Access
(a)
In the period commencing on the Commencement Date and ending on the Completion
Date , the Contracting Authority must provide access to the Contractor to perform the
Work to the RWS Area and the Third-Party Area [with the exception of the sectionsreferred to in Schedule [ ] to which the Contracting Authority is obliged to provide
access as from the date specified in this Schedule in respect of the relevant sections]1,
whereby:
(i)
the Contractor must have regard to the third-party rights of access to the RWS
Area and the Third-Party Area as referred to in Schedule 15 (Rights of third
parties to access the RWS Area and the Third-Party Area during the
Development Period ); and
(ii) insofar as the RWS Area and the Third-Party Area form part of the public road or
waterway, bus lane or rail infrastructure, access by the Contractor will be
subject to authorisation by the relevant authority in charge. Supplementary to
the provisions of point (i), the Contractor must take account of the fact that
third parties other than those referred to in Schedule 15 (Rights of third parties
to access the RWS Area and the Third-Party Area during the Development
Period) also have rights of access to the public road and waterway, bus lane or
rail infrastructure.
The Contractor’s Servants or Agents will also be afforded access in this regard.
1 Some sites have yet to be acquired and this is generally achieved within 4 weeks of the effective date of the Transport Infrastructure (Planning
Procedures) Decree. Access can then be made available to such areas.
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(b)
Throughout the period beginning on the day after the Completion Date and ending on
the Expiry Date, the Contracting Authority will grant access to the Contractor to the
RWS Area in order to perform the Work, whereby:
(i) the Contractor shall have regard to the rights of third parties to access the RWS
Area; and
(ii)
insofar as the RWS Area forms part of the public road or waterway, bus lane or
rail infrastructure, access by the Contractor will be subject to authorisation by
the relevant authority in charge.
( c ) P r io r t o t h e d a t e o n w h i ch t h e T r a n sp o r t I n f r a s t r u c t u r e ( P la n n i n g P r o ce d u r e s )
D e cr e e [ R o ad I m p r o v e m e n t D e c r e e] b e c o m e s i r r e v o ca b l e, t h e Co n t r a c t o r w i l l
n o t b e e n t i t l e d t o c a r r y o u t t h e f o l lo w i n g W o r k : [ ] ]
4.3 Design and construction
(a)
The Contractor must design and build the RWS Infrastructure in a manner that ensures
that on the Availability Date, the RWS Infrastructure shall:
(i) at least comprise of the objects listed in respect of the Availability Date in
Schedule 9, Table 1 (RWS Infrastructure Objects); and
(ii)
meet the Tender requirements.
(b)
The Contractor must design and build the RWS Infrastructure in a manner that ensures
that on the Completion Date, the RWS Infrastructure shall:
(i) at least comprise of the objects listed in respect of the Completion Date in
Schedule 9, Table 1 (RWS Infrastructure Objects); and
(ii) meet the Completion requirements.
4.4 Availability and maintenance
(a)
Throughout the period beginning on the Commencement Date and ending on the
Availability Date, the Contractor must ensure that the RWS Infrastructure:
(i) comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 1
(Traffic Lane definitions and availability requirements in the Development
Period );
(ii)
at least comprises of the objects listed in respect of the Commencement Date in
Schedule 9, Table 1 (RWS Infrastructure Objects); and
(iii)
is maintained in accordance with the Transition requirements.
(b) Throughout the period beginning on the Availability Date and ending on the Completion
Date, the Contractor must ensure that the RWS Infrastructure:
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(i)
comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 2
(Traffic Lane definitions and availability requirements in the Availability Period );
(ii)
at least comprises of the objects listed in respect of the Availability Date inSchedule 9, Table 1 (RWS Infrastructure Objects); and
(iii)
is maintained in accordance with the Tender requirements.
(c)
Throughout the period beginning on the day after the Completion Date and ending on
the Expiry Date, the Contractor must ensure that the RWS Infrastructure:
(i) comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 2
(Traffic Lane definitions and availability requirements in the Availability Period );
(ii) at least comprises of the objects listed in respect of the Completion Date in
Schedule 9, Table 1 (RWS Infrastructure Objects); and
(iii)
is maintained in accordance with the Completion requirements.
4.5 Issuing the Availability Certificate
(a) If the Contractor believes that the conditions for issuing the Availability Certificate
referred to in the Certificate Plan have been fulfilled, the Contractor may demonstrate
such fulfilment by providing the Contracting Authority with the documents referred to in
the Certificate Plan. The Contractor may submit these documents to the Contracting
Authority in stages, according to the procedure described for that purpose in the
Management Plan.
(b)
The Contracting Authority must inform the Contractor within [ 2 0 ] Business Days of
receiving a document as specified in Paragraph (a) whether the Contractor has
demonstrated that the conditions for issuing the Availability Certificate described in the
document have been fulfilled. The Contracting Authority may verify at all times whether
this is the case as well as whether the conditions for issuing the Availability Certificate
described in previously submitted documents continue to be met.
(c)
The Contractor is entitled to amend a document and resubmit it to the Contracting
Authority in the event that the Contracting Authority determines that the conditions
described in said document have not been demonstrably fulfilled.
(d) If the Contractor has demonstrated that all conditions for issuing the Availability
Certificate have been fulfilled the Contracting Authority must issue the Availability
Certificate to the Contractor within [ 2 0 ] Business Days of receiving the documents that
demonstrate such fulfilment.
(e)
If the Contracting Authority refuses to issue the Availability Certificate, it must inform
the Contractor of same within the same period of [ 2 0 ] Business Days, specifying its
reasons.
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4.6 Issuing the Completion Certificate
(a) If the Contractor believes that the conditions for issuing the Completion Certificate
referred to in the Certificate Plan have been fulfilled, the Contractor may demonstratesuch fulfilment by providing the Contracting Authority with the documents referred to in
the Certificate Plan. The Contractor may submit these documents to the Contracting
Authority in stages, according to the procedure described for that purpose in the
Management Plan.
(b)
Within [20] Business Days of receiving a document as specified in Paragraph (a), the
Contracting Authority must inform the Contractor whether the Contractor has
demonstrated that the conditions for issuing the Completion Certificate described in the
document have been fulfilled. The Contracting Authority may verify at all times whether
this is the case, as well as whether the conditions for issuing the Completion Certificate
described in previously submitted documents continue to be met.
(c)
The Contractor is entitled to amend a document and resubmit it to the Contracting
Authority in the event that the Contracting Authority determines that the conditions
described in said document have not been demonstrably fulfilled.
(d) If the Contractor has demonstrated that all conditions for the issuance of the Completion
Certificate have been fulfilled, the Contracting Authority must issue the Completion
Certificate to the Contractor within [ 2 0 ] Business Days after having received all
documents demonstrating such fulfilment.
(e)
If the Contracting Authority refuses to issue the Completion Certificate, it must inform
the Contractor of this refusal within the same period of [ 2 0 ] Business Days, specifyingits reasons.
5. THIRD-PARTY INFRASTRUCTURE
5.1 Access
Notwithstanding the provisions of Article 4.1 Paragraph (a), where a Part Completion Certificate
has been issued in respect of an object forming part of the Third-Party Infrastructure, the
Contracting Authority shall no longer be obliged to provide access to that part of the Third-Party
Area in which the relevant object is located.
5.2
Design and construction
The Contractor must design and construct the Third-Party Infrastructure in a manner that the
Third-Party Infrastructure:
(i)
at least comprises of the objects listed with respect to the date of issuing of the
Completion Certificate referred to in Schedule 9, Table 1 (Third-Party
Infrastructure Objects); and
(ii) meets the Completion requirements.
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5.3 Availability and maintenance
(a) Throughout the period beginning on the Commencement Date and ending on the
Completion Date, the Contractor must ensure that the Third-Party Infrastructure:
(i) at least comprises of the objects listed with respect to the Commencement Date
in Schedule 9, Table 1 (Third-Party Infrastructure Objects); and
(ii)
meets the Transition requirements.
(b)
Where a Part Completion Certificate has been issued in respect of an object forming part
of the Third-Party Infrastructure, the Contractor will no longer be obliged to comply with
the provisions of Article 5.3 Paragraph (a) with regard to the area in which the relevant
object is located.
5.4 Completion agreements for Third-Party Infrastructure
(a)
The Contractor is obliged, on behalf of the Contracting Authority and subject to the
Contracting Authority’s approval, to reach agreement on the handover by the
Contracting Authority to the relevant authority of objects forming part of the Third-Party
Infrastructure. The arrangements must be set down in a completion agreement to be
concluded between the Contracting Authority and the authority in charge of the relevant
object.
(b)
Such completion agreements at the very least must provide as follows:
(i)
As from the date of issuing of the Part Completion Certificate, the Contractorshall on behalf of the Contracting Authority for a period of 6 months thereafter
and forthwith at the request of the relevant authority ensure that the object in
question meets the Completion requirements, if it transpires that the object fails
to meet said requirements on account of a default on the Contractor’s part; and
(ii)
the relevant authority’s standard procedures regarding inspections and/or
handovers shall be complied with.
5.5 Issuing of the Part Completion Certificate for the Third-Party Infrastructure
(a)
If the Contractor believes that an object or objects having a mutually related function
and forming part of the Third-Party Infrastructure meet the conditions for issuing of aPart Completion Certificate referred to in the Certificate Plan, the Contractor may hand
over the documents referred to in the Certificate Plan and demonstrating such to the
Contracting Authority.
(b)
The Contracting Authority may verify if the conditions governing issuance of a Part
Completion Certificate have been met.
(c)
The Contractor is entitled to amend a document and resubmit it to the Contracting
Authority if the Contracting Authority determines that the conditions described in said
document have not been demonstrably fulfilled.
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(d)
Where the conditions governing issuance of a Part Completion Certificate have been
met, the Contracting Authority must issue the Part Completion Certificate to the
Contractor within [ 2 0 ] Business days of receipt of the documents referred to in
Paragraph (a).
(e)
If the Contracting Authority refuses to issue the Part Completion Certificate, it must
inform the Contractor of this refusal within the same period of [ 2 0 ] Business Days,
specifying its reasons.
(f)
If it transpires within a period of 6 months as from the date of issuance of a Part
Completion Certificate that the object provided for in the Part Completion Certificate
fails to meet the relevant Completion requirements owing to a Contractor Default, and
the Contracting Authority or the authority to which the relevant object has been
transferred in accordance with the provisions of Article 5.4 has raised this matter with
the Contractor within this period, the Contractor shall be obliged to ensure that theobject meets the relevant requirements as yet.
6. CABLES AND THIRD-PARTY PIPELINES
6.1 Undisturbed locations and temporary protective measures
(a) The Contractor must ensure that all Third-Party Cables and Pipelines remain undisturbed
during the performance of the Work, unless otherwise provided in a Project agreement.
(b)
Where a Third-Party Cable or Pipeline is damaged by the Contractor during the
performance of the Work, the Contractor must report this immediately to the relevant
authority in charge of the cable or pipeline and send a copy of this report without delayto the Contracting Authority.
(c) Where a Third-Party Cable or Pipeline requires temporary protection during the
performance of the Work, the Contractor must put the requisite measures in place to
ensure that the said Third-Party Cable or Pipeline is temporarily protected. Prior to
putting these measures in place, the Contractor must obtain permission from the
authority in charge of the cable or pipeline. A copy of the document outlining the
permission obtained from the authority in charge of the cable or pipeline shall be sent
without delay by the Contractor to the Contracting Authority.
6.2 Third-Party Cables and Pipelines Category 1
The location of the Third-Party Cables or Pipelines Category 1 must be retained.
6.3 Third-Party Cables and Pipelines Category 2
(a)
During the performance of the Work, the Contractor must abide by the provisions of the
Project Agreement that was concluded by the Contracting Authority in relation to the
rerouting, removal or permanent protection of Third-Party Cables and Pipelines
Category 2. Where necessary, the Contractor shall make additional arrangements with
the authorities in charge of the cables or pipelines.
(b)
The Contractor must arrange for the performance of the Work to be agreed wherenecessary with whomsoever is in charge of actually rerouting, removing or permanently
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protecting the Third-Party Cables and Pipelines Category 2 situated within the RWS and
the Third-Party Areas.
(c)
The Contracting Authority shall bear the costs of rerouting, removing or permanentlyprotecting the Third-Party Cables and Pipelines Category 2.
(d)
Where the Contractor arranges for a Third-Party Cable or Pipeline Category 2 to be
removed, rerouted, or afforded permanent protection in a manner that deviates from
the Project agreement, the Contractor shall bear the additional costs involved.
6.4 Third-Party Cables and Pipelines Category 3
(a)
Where the rerouting, removal or permanent protection of a Third-Party Cable or Pipeline
Category 3 is deemed necessary in connection with the Work, the Contractor on behalf
of the Contracting Authority shall send a Change Request to the authority in charge of
the cable or pipeline. The Change Request must be approved by the Contracting
Authority before it is sent to the authority in charge of the cable or pipeline.
(b)
If the Contracting Authority refuses to approve the Change Request, it must inform the
Contractor of this refusal within 15 Business Days of receipt of a full draft of the Change
Request. The Change Request may only be refused by the Contracting Authority if the
draft does not meet the Regulations governing Cables and Pipelines.
(c)
After submitting the Change Request to the authority in charge of the cable or pipeline,
the Contractor must reach agreement with the said authority in regard to the content of
the Project Agreement. The Project agreement must be in line with the Regulations
governing Cables and Pipelines. The agreement must be reached on behalf of theContracting Authority and is subject to the Contracting Authority’s approval.
(d) If the authority in charge of the cable or pipeline is unwilling to allow the Contractor to
check the estimated costs for the permanent protection, rerouting or removal of the
cable or pipeline, the Contracting Authority at the Contractor’s request will be obliged to
reach an agreement with the authority in charge of the cable or pipeline, subject to the
Regulations governing Cables and Pipelines, on the price to be paid.
(e)
The Project agreement must be signed by the Contracting Authority. If the Contracting
Authority refuses to sign a Project agreement, it must inform the Contractor of this
refusal within 15 Business Days of receipt of a full draft of the Project agreement
(including annexes) which has been agreed between the Contractor and the authority in
charge of the cable or pipeline. The Contracting Authority may only refuse to sign if the
Project agreement does not meet the Regulations governing Cables and Pipelines.
(f)
The final amount paid by the Contracting Authority under the Project agreement to the
authority in charge of the cable or pipeline in respect of a Third-Party Cable or Pipeline
Category 3 becomes payable by the Contractor, and the Contractor shall forward said
payment to the Contracting Authority on first request.
(g) No Work involving the rerouting, removal or permanent protection of Third-Party Cables
and Pipelines Category 3 may be commenced with by the Contractor unless provision is
made for such work in a Project agreement. In performing the said Work, the
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Contractor must abide by the arrangements provided for in the relevant Project
agreement.
(h)
The Contractor must arrange for the performance of the Work to be agreed wherenecessary with whomsoever is in charge of actually rerouting, removing or permanently
protecting the Third-Party Cables and Pipelines Category 3 situated within the RWS and
the Third-Party Areas.
7. HAND BACK
7.1 Hand Back Requirements
The Contractor must ensure that on the Expiry Date the RWS Infrastructure complies with the
conditions for issuing the Hand Back Certificate as specified in the Certificate Plan.
7.2 Hand Back Inspections
(a)
Under the provisions of Article 7.1 (Hand Back Requirements), the Parties must jointly
inspect the RWS Infrastructure.
(b)
The first inspection must take place no earlier than [●] months and no later than [●]
months before the Expiry Date. The last inspection must take place no earlier than [●]
months and no later than [●] months before the Expiry Date.
(c)
The inspections shall take place at the Contracting Authority’s request. The Contracting
Authority must make its request to the Contractor no later than [●] Business Days
before the inspection.
(d)
The Contractor shall organise the inspections.
(e) The inspections shall take place according to the provisions of Schedule 8 (Management
Plan). Within 15 Business Days after each inspection, the Contractor must provide the
Contracting Authority with a summary of the Work that must be performed in addition
to the Work included in the Subplans referred to in [] of the Management Plan in order
for the RWS Infrastructure to comply on the Expiry Date with the requirements laid
down in Article 7.1 (Hand Back Requirements). The Contractor must include plans for
the completion of this additional Work and a list of the associated costs to this review.
(f)
The Contracting Authority may verify if the review of the additional work, its planningand the statement of the costs involved are accurate and complete. If the Contracting
Authority determines that these documents are not accurate and complete, the
Contractor must revise these documents as soon as possible and resubmit them to the
Contracting Authority.
7.3 Hand Back Bank Guarantee
(a) No later than [] months prior to the Expiry Date, the Contractor must provide a Bank
Guarantee in the amount of € [ ] as a guarantee for the fulfilment of its obligations
under this Agreement in accordance with the model provided in Part 3 (Hand Back Bank
Guarantee) of Schedule 7 (Models).
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(b) The term of validity of the Hand Back Bank Guarantee must extend to [ ] months after
the Expiry Date.
(c)
If inspections reveal that the Contractor must take measures to ensure compliance ofthe RWS Infrastructure with the Hand Back Requirements on the Expiry Date and that
the cost of these measures is higher than the maximum amount of the Hand Back Bank
Guarantee, the Contractor within [] Business Days of sending the review specified in
Article 7.2 Paragraph (e) must provide an additional Bank Guarantee in an amount that
is equivalent to the difference
7.4 Issuing the Hand Back Certificate
(a) No later than [ 2 0 ] Business Days prior to the Expiry Date the Contractor must deliver
the documents listed in the Certificate Plan demonstrating that the RWS Infrastructure
will meet the requirements on the Expiry Date for issuing the Hand Back Certificate as
stated in the Certificate Plan. The Contractor may submit these documents to the
Contracting Authority in stages, according to the procedure described for that purpose
in the Management Plan.
(b)
Within [ 2 0 ] Business Days after receiving a document as specified in Paragraph (a),
the Contracting Authority must inform the Contractor whether the Contractor has
demonstrated that the conditions for issuing the Hand Back Certificate described in the
document have been fulfilled. The Contracting Authority may verify at all times whether
or not this is the case, as well as whether the conditions for issuing the Hand Back
Certificate described in previously submitted documents continue to be met.
(c)
The Contractor is entitled to amend a document and resubmit it to the ContractingAuthority in the event that the Contracting Authority determines that the conditions
described in said document have not been demonstrably fulfilled.
(d) If the Contractor has demonstrated that on the Expiry Date all conditions for the
issuance of the Hand Back Certificate have been fulfilled, the Contracting Authority
must issue the Hand Back Certificate to the Contractor on the Expiry Date and inform
the bank that issued the Hand Back Bank Guarantee that the Hand Back Bank
Guarantee shall cease to apply on the Expiry Date and return the original copy of the
Hand Back Bank Guarantee to said bank.
(e)
If the documents referred to in Paragraph (a) do not demonstrate that the RWS
Infrastructure meets the conditions set in Article 7.1 (Hand Back Requirements) on the
Expiry Date and the Contracting Authority therefore is unwilling to issue the Hand Back
Certificate, the Contracting Authority must notify the Contractor of same within [ 2 0 ]
Business Days of receiving all the documents referred to in Paragraph (a), specifying its
reasons. The Contracting Authority may not call in any payment under the Hand Back
Bank Guarantee for 40 Business Days after sending the aforementioned statement of
reasons to the Contractor.
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8. QUALITY ASSURANCE
8.1 Management System
(a)
The Contractor must prepare and maintain a Management System that applies to the
Work, including Work performed by the Contractor’s Agents.
(b)
The Management System must be described in the Management Plan. The Management
System and the description thereof in the Management Plan must be organised in
accordance and in conformity with the requirements of ISO 15288:2008 or a
replacement standard and meet the supplementary requirements provided for in the
Management Specifications.
(c) In performing the Work, the Contractor must follow the Management Specifications and
the plans provided for in Schedule 8, Part 1 (Basic Management Plan and Subplans
governing the Tender ).
(d)
In preparing the documents referred to in Schedule 8, Part 2 (Detailed Subplans), the
Contractor must duly observe the conditions and timeframes set out in Schedule 8, Part
1 (Basic Management Plan and Subplans governing the Tender ) and part 2 (Detailed
Subplans).
(e) Within 1 year of the Contract Date, the Contractor must be in possession of a Quality
System Certificate that conforms to the NEN-ISO 9001:2008 standard (or a
replacement standard) pertaining to the Management System.
(f)
Once in receipt of the certificate referred to in Paragraph (e), the Contractor mustcontinue to be in possession of said certificate for the remaining term of this
Agreement.
(g) The certificate referred to in Paragraph (e) must be issued by a certification body that is
recognised by a national accrediting body (in the Netherlands: de Dutch Accreditation
Council - RVA).
8.2 Performance Measurement System
(a)
The Contractor must design and build the Performance Measurement System in
accordance with the requirements set out in the Measurement Specifications.
(b)
Throughout the period beginning on [ t h e d a t e o f [ ] m o n t h s a f t e r ] the
Commencement Date and ending on the Expiry Date, the Contractor shall ensure that
the Performance Measurement System functions and is maintained in accordance with
the requirements set out in the Management Specifications.
8.3 Inspections
(a)
The Contracting Authority may at any time inspect or commission an inspection to
ensure that the Contractor fulfils its obligations under the Agreement. The Contracting
Authority must be given access by the Contractor to the locations and offices where the
Work is prepared and performed, for purposes of an inspection.
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(b)
At the Contracting Authority’s request, the Contractor must, within the shortest possible
time, provide the former with all the information that the Contracting Authority is
reasonably deemed to require to perform the inspection.
(c) In performing an inspection, the Contracting Authority will endeavour to impede the
performance of Work as little as possible.
(d)
The Contracting Authority must make information about the results of the inspection
available to the Contractor within a reasonable period.
(e) The Contracting Authority is not required to make use of its right to undertake
inspections.
8.4 Consequences of inspections and examination of documents
(a)
If the Contracting Authority conducts an inspection, it is not required to establish any
Contractor Defaults.
(b)
An inspection does not imply any approval of Work performance. The Contractor
remains responsible for fulfilling its obligations based on this Agreement.
(c) The fact that the Contracting Authority examines, tests, assesses or approves any
document does not in any way mean that the Contracting Authority assumes any
liability or responsibility for the content thereof or that the Contractor is discharged of
any responsibility based on this Agreement.
8.5
Obligation to correct
(a)
The Contractor must remedy any damage to the Infrastructure as soon as possible, but
in any case no later than the Correction Deadline, or if no Correction Deadline applies
with regard to the damage in question, within a reasonable period of time. In the latter
case, the Contractor must provide the Contracting Authority with a correction plan
specifying the reasonable period involved and requesting the Contracting Authority to
approve the said period provided for in the correction plan. If the Contracting Authority
cannot approve the said period provided for in the Correction Deadline, the Correction
Deadline will be determined subject to Article 21 (Dispute Resolution).
(b)
This obligation does not apply in regard to any damage that is the consequence of a
Force Majeure Event.
9. SUPERVENING EVENTS
9.1 Notification of a Supervening Event
(a)
If, as a consequence of a Force Majeure Event, the Contracting Authority cannot fulfil its
obligations pursuant to this Agreement or can only fulfil them at higher costs, it must
inform the Contractor as soon as possible of the following:
(i)
the events or circumstances that constitute the Force Majeure Event;
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(ii)
the obligations pursuant to this Agreement that inevitably cannot be fulfilled as
a result or can only be fulfilled at higher costs; and
(iii)
the expected duration of the inability to fulfil said obligations.
(b) If, due to a Supervening Event, the Contractor cannot fulfil its obligations pursuant to
this Agreement or can only fulfil them at a Financial Disadvantage, it must inform the
Contracting Authority as soon as possible of the following:
(i)
the events or circumstances that constitute the Supervening Event;
(ii) the obligations pursuant to this Agreement that inevitably cannot be fulfilled as
a result or can only be fulfilled at a Financial Disadvantage;
(iii) the expected duration of the inability to fulfil said obligations; and
(iv)
in the event of a Delay Event or a Postponed Completion Event, the expected
duration of the Critical Delay or Critical Delay in Completion caused by the
Supervening Event, with particulars thereof.
In the event of a Critical Delay or a Critical Delay in Completion, the Contractor must
inform the Contracting Authority within 10 Business Days after making the relevant
notification whether, and at what additional costs, it will be able to make up for the
Critical Delay or Critical Delay in Completion in part or in full.
(c)
Within 20 Business Days of sending the notification as stated in Paragraph (b) (i) to (iv),
the Contracting Authority must inform the Contractor of the following:
(i)
whether it does or does not accept that a Supervening Event has occurred;
(ii) whether it does or does not, to the extent that this is applicable, accept that a
Critical Delay or Critical Delay in Completion exists and whether it agrees with
the duration thereof as specified by the Contractor; or
(iii)
whether or not it requires more information in order to make a judgement.
If the Contracting Authority has not responded within 20 Business Days in one of the
ways referred to in this Paragraph, it will be assumed that the Contracting Authority
acknowledges the occurrence of a Supervening Event and agrees to the duration of theCritical Delay or Critical Delay in Completion specified by the Contractor.
(d) If the Contracting Authority requires further information as outlined in Paragraph(c)
under (iii), the Contractor must provide the Contracting Authority with said information
(to the extent that it is in its possession) as soon as possible but at the latest within 20
Business Days. Within 20 Business Days of receiving said information, the Contracting
Authority must make a notification to the Contractor as referred to in Paragraph (c).
(e)
If the Contracting Authority does not accept that a Supervening Event has occurred or
does not agree with the duration of the Critical Delay or Critical Delay in Completion
specified by the Contractor and the Contractor does not agree with this notification, the
Contractor must notify the Contracting Authority of same within [10] Business Days of
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receiving the notification, in which case either Party will be at liberty to commence
proceedings under Article 21 (Dispute Resolution). If the Contractor fails to inform the
Contracting Authority within the period specified that it cannot accept the Contracting
Authority’s notification, the Contractor shall be deemed to concur with said notification.
(f)
The Financial Disadvantage must be agreed where applicable by the Parties in
accordance with the provisions of Schedule 3 (Compensation for Supervening Events).
In determining the Financial Disadvantage, the Contracting Authority has the right to
have an investigation carried out by an independent expert. If the Parties have not been
able to reach agreement within 3 months of sending the notification regarding the
Financial Disadvantage as specified in Paragraph (b), the Financial Disadvantage must
be determined subject to Article 21 (Dispute Resolution).
9.2 Delay Event
(a)
If a Delay Event occurs, the Scheduled Availability Date will be extended by the addition
of a period equal to the duration of the Critical Delay, insofar as the Contractor is not
required to make up for this Critical Delay by applying Paragraph (b). The Contractor
must adapt the Project Planning accordingly.
(b) If, in the event of a Delay Event, the Contractor can make up for all or part of the
Critical Delay by incurring a Financial Disadvantage, the Contractor must do so at the
request of the Contracting Authority.
(c)
In the event of a Delay Event, the Contracting Authority must pay the Contractor
compensation in accordance with Section 1 (Delay Event) of Schedule 3 (Compensation
for Supervening Events). The previous sentence does not apply to a Delay Eventreferred to under (c) of the definition of a Delay Event.
9.3 Compensation Event
If a Compensation Event occurs, the Contracting Authority must indemnify the Contractor (or in
the event of a Contracting Authority Change, the Contractor may have to pay the Contracting
Authority) compensation in accordance with Section 2 (Compensation Event ) of Schedule 3
(Compensation for Supervening Events).
9.4 Force Majeure Event
(a)
If a Force Majeure Event occurs, the obligations that as a result thereof cannot be
fulfilled or that can only be fulfilled at a Financial Disadvantage shall be suspended for
the duration of such Force Majeure Event. If this Agreement is terminated pursuant to
Article 10.6 (Termination upon a Force Majeure Event ), these obligations shall be
deemed to have expired.
(b)
In the case of a Force Majeure Event:
(i) the Contractor must take all measures that are reasonably possible in order to
mitigate the negative consequences of the Force Majeure Event, without being
obliged to repair damage to the Infrastructure as a consequence of the Force
Majeure Event;
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(ii)
the Parties must consult about the possibilities of continuing this Agreement, in
amended form or otherwise; and
(iii)
the Contracting Authority must pay compensation to the Contractor inaccordance with Section 3 (Force Majeure Event) of Schedule 3 (Compensation
for Supervening Events).
(c)
Without prejudice to the payment obligations that may arise subject to Paragraph (b)
under (iii), the Parties shall not be liable towards each other for any damage as a
consequence of a Force Majeure Event. Any damage that is incurred remains entirely for
the account of the Party that has incurred the damage.
(d) In this Agreement, the Parties have set out an exhaustive regulation of the events and
circumstances pursuant to which a default cannot be attributed to a Party (within the
meaning of Article 6:75 of the Dutch Civil Code). A Party cannot therefore rely on this
provision in any situation other than these circumstances.
9.5 Postponed Completion Event
(a) If a Postponed Completion Event occurs, the Scheduled Completion Date will be
extended by a period equal to the duration of the Critical Delay in Completion, insofar
as the Contractor is not obliged to make up for said delay under Paragraph (b). The
Contractor must adapt the Project Planning accordingly.
(b)
If, in the event of a Postponed Completion Event, the Contractor can make up for all or
part of the Critical Delay in Completion by incurring a Financial Disadvantage, the
Contractor is obliged to do so at the request of the Contracting Authority.
(c)
In the event of a Postponed Completion Event, the Contracting Authority must pay the
Contractor compensation in accordance with Section 4 (Postponed Completion Event) of
Schedule 3 (Compensation for Supervening Events). The previous sentence does not
apply to a Postponed Completion Event as referred to under Paragraph (c) of the
definition of a Delay Event.
10. EARLY TERMINATION
10.1 Termination due to an Immediate Termination Event
(a)
The Contracting Authority may terminate this Agreement on a date of its choosing if an
Immediate Termination Event should arise.
(b) In the event of termination pursuant to Paragraph (a), the Contracting Authority must
pay compensation to the Contractor or as the case may be, the Contractor must pay
compensation to the Contracting Authority, in accordance with Section 1 (Termination
due to an Immediate Termination Event or Termination due to Contractor Default) of
Schedule 4 (Compensation for Early Termination).
10.2 Termination due to Contractor Default
(a)
The Contracting Authority may terminate this Agreement on a date that it specifies if a
Contractor Default exists and the Contractor does not remedy that situation within a
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reasonable period of time as specified in Article 11.1, Paragraphs (a) and (b), unless the
Contractor Default, in view of the situation’s extraordinary nature or minimal
significance, does not warrant termination with all of the associated consequences.
( b ) [ T h e Co n t r a c t in g A u t h o r i t y m a y n o t t e r m i n a t e t h is A g r ee m e n t p u r s u a n t t o
P a r a g r a p h ( a ) o n a c co u n t o f a Co n t r a c t o r D e f a u l t t h a t c o n s i st s o f a f a i l u r e t o
a d h e r e t o t h e A v a i la b i l i t y R e q u i r em e n t s , ex c e p t i f t h e im p l em e n t a t i o n o f
A v a i l a b i li t y c o r r e c t i o n s i n a c co r d a n c e w i t h S ch e d u l e 2 ( P a ym e n t M e c h a n i s m )
r e s u l t s in t h e N e t A v a i l a b i li t y P a ym e n t d u r i n g a c o n s e c u t i v e p e r i o d o f a t l e as t
[ 3 ] Q u a r t e r s b ei n g l e ss t h a n :
( i ) [ ] % o f t h e Gr o ss A v a i l a b i l i t y P a y m e n t f o r t h e Qu a r t e r s b e g i n n i n g
p r i o r t o t h e A v a i l a b i l i t y D a t e ; o r
( i i ) [ ] % o f t h e Gr o ss A v a i l a b i l i t y P a y m e n t f o r t h e Qu a r t e r s b e g i n n i n g
a f t e r t h e A v a i l a b i l i t y D a t e .
(c)
T h e Co n t r a c t i n g A u t h o r i t y m a y n o t t e r m i n a t e t h i s A g r e e m e n t p u r s u a n t t o
P a r ag r a p h ( a ) o n a c co u n t o f a n y o t h e r C o n t r a ct o r D e f a u l t t h a n t h e C o n t r a ct o r
D e f a u l t r e f e r r e d t o i n P a r a g r a p h ( b ) , u n l e s s t h e C o n t r a c t i n g A u t h o r i t y h a s
a l l o ca t e d p e n a l t y p o i n t s f o r ( t h e f a i l u r e t o c o r r e c t ) t h i s Co n t r a c t o r D e f a u l t
m o r e t h a n [ t w i ce ] . ]
(d) In the event of termination pursuant to Paragraph (a), the Contracting Authority must
pay compensation to the Contractor or as the case may be, the Contractor must pay
compensation to the Contracting Authority, in accordance with Section 1 (Termination
due to an Immediate Termination Event or Termination due to Contractor Default) ofSchedule 4 (Compensation for Early Termination).
10.3 Termination due to Contracting Authority Default
(a) The Contractor may terminate this Agreement on a date that it specifies if a situation of
Contracting Authority Default exists and the Contracting Authority does not remedy that
situation within a reasonable period of time as specified in Article 11.2, Paragraphs (a)
and (b), unless the Contracting Authority Default, in view of the situation’s
extraordinary nature or minimal significance, does not warrant termination with all of
the associated consequences.
(b)
In the event of termination pursuant to Paragraph (a), the Contracting Authority must
pay compensation to the Contractor in accordance with Section 2 (Termination due to
Contracting Authority Default or Discretionary Termination by the Contracting Authority)
of Schedule 4 (Compensation for Early Termination).
10.4 Discretionary termination by Contracting Authority
(a) The Contracting Authority may terminate this Agreement at any time on a date that it
specifies.
(b) If the fulfilment of this Agreement by the Contracting Authority or the contents of the
Contracting Authority Schedules are or come to be in conflict with Regulations, and this
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conflict cannot be corrected by a Contracting Authority Change, the Contracting
Authority must terminate this Agreement pursuant to Paragraph (a).
(c)
In the event of termination pursuant to Paragraph (a), the Contracting Authority mustpay compensation to the Contractor in accordance with Section 2 (Termination due to
Contracting Authority Default or Discretionary Termination by the Contracting Authority)
of Schedule 4 (Compensation for Early Termination).
10.5 Termination due to a prolonged Delay Event
(a) The Contractor may terminate this Agreement with immediate effect, where:
(i)
in the case of a Delay Event as referred to in paragraph (d) of the definition
thereof, the Critical Delay lasts longer or it is established that the Critical Delay
will last longer than [] year(s); or
(ii)
in the case of a Delay Event (not being a Compensation Event, a Force Majeure
Event or a Delay Event as referred to in Paragraphs (c) or (d) of the definition
thereof) the Critical Delay lasts longer or it is established that the Critical Delay
will last longer than 2 years.
(b) The Contracting Authority may terminate this Agreement with immediate effect, where:
(i) in the case of a Delay Event as referred to in paragraph (d) of the definition
thereof, the Critical Delay lasts longer or it is established that the Critical Delay
will last longer than [] year(s); or
(ii)
in the case of a Delay Event (not being a Force Majeure Event or a Delay Event
as referred to in Paragraph (d) of the definition thereof), the Critical Delay lasts
longer or it is established that the Critical Delay will last longer than 2 years.
(c) In the event of termination pursuant to Paragraphs (a) or (b), the Contracting Authority
must pay compensation to the Contractor in accordance with Section 3 (Termination
due to a Prolonged Delay Event) of Schedule 4 (Compensation for Early Termination).
In the event of termination pursuant to Paragraph (a) (i) or Paragraph (b) (i), the
compensation payable by the Contracting Authority to the Contractor as specified in the
previous sentence shall not exceed [].
10.6
Termination due to a Force Majeure Event
(a) If a Force Majeure Event continues for [ 1 8 0 ] Business Days and the Parties have not
reached an agreement concerning the continuation of this Agreement, or as much
earlier as it has been established that the Agreement shall not be continued as a
consequence of a Force Majeure Event, either of the Parties has the right to terminate
this Agreement with immediate effect.
(b)
In the event of termination pursuant to Paragraph (a), the Contracting Authority must
pay compensation to the Contractor in accordance with Section 4 (Termination due to a
Force Majeure Event) of Schedule 4 (Compensation for Early Termination).
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10.7 Direct Agreement
The rights pursuant to this Article can only be exercised subject to provisions of the Direct
Agreement.
11. DEFAULT
11.1 Contractor Default
(a) If a Contractor Default occurs, the Contracting Authority may inform the Contractor of
this and may set a reasonable deadline for the Contractor to correct the Contractor
Default.
(b)
If the Contractor believes that the deadline set by the Contracting Authority is not
reasonably sufficient for correction of the Contractor Default, the Contractor may inform
the Contracting Authority of this within 10 Business Days. The notification sent to the
Contracting Authority must be accompanied by a proposal for corrective measures to be
taken and a time schedule for the execution of the work. If the Contracting Authority
does not reject the deadline for correction referred to in this proposal within 10
Business Days of receiving it, this deadline shall be considered to have been accepted
by the Contracting Authority. If the Contracting Authority rejects the deadline referred
to in the proposal and the Contractor does not agree to this rejection, the Contractor
must commence proceedings concerning the dispute, pursuant to Article 21 (Dispute
Resolution), within 10 Business Days of receiving notice of the rejection.
(c)
If a Contractor Default occurs and the Contractor has failed to rectify this within the
deadline that applies pursuant to Paragraphs (a) or (b) of this Article, the ContractingAuthority shall be entitled to:
(i) file a claim for specific performance pursuant to Article 3:296 of the Dutch Civil
Code; or
(ii) rectify the Contractor Default, or arrange to have it rectified;
(iii)
take measures under Article 18.5 ((Traffic) Safety ) to the extent that these
measures need to be taken due to Contractor Default;
(iv)
suspend its obligations that are associated with the relevant Contractor Default;
or
(v) terminate the Agreement pursuant to Article 10.2.
(d) If, pursuant to Paragraph (c) under (ii), the Contracting Authority rectifies the
Contractor Default or arranges to have it rectified or takes measures pursuant to
Paragraph (c) under (iii), the Contractor must pay an amount to the Contracting
Authority equal to the costs paid by the Contracting Authority to third parties (in case of
the involvement of third parties) and the internal costs incurred by the Contracting
Authority as per its standard internal direct setting off costs (in case of measures taken
unilaterally) plus a surcharge of 10%.
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(e)
In the event of a Contractor Default or an Immediate Termination Event, the
Contracting Authority shall have no rights other than those expressly provided for in
this Agreement. For example the Contracting Authority may not, in that case:
(i) suspend its obligations based on the Agreement other than pursuant to
Paragraph (c) under (iv);
(ii)
claim damage from the Contractor; or
(iii)
demand dissolution of this Agreement.
11.2 Contracting Authority Default
(a)
If a Contracting Authority Default occurs, the Contractor may inform the Contracting
Authority of this and may set a reasonable deadline for the Contracting Authority to
correct the Contracting Authority Default.
(b)
If the Contracting Authority believes that the deadline set by the Contractor is not
reasonably sufficient for the correction of the Contracting Authority Default, the
Contracting Authority may inform the Contractor of this within 10 Business Days of
receiving notification from the Contractor. The notification from the Contracting
Authority must be accompanied by a proposal for the correction measures to be taken
and a time schedule for the implementation of this work. If the Contractor does not
reject the deadline for correction referred to in this proposal within 10 Business Days of
receiving it, the deadline will be deemed to be accepted by the Contractor. If the
Contractor rejects the deadline for correction referred to in the proposal and the
Contracting Authority does not agree to this rejection, the Contracting Authority mustinstitute proceedings pursuant to Article 21 (Dispute Resolution) within 10 Business
Days of receiving the rejection.
(c)
If a Contracting Authority Default occurs and the Contracting Authority has not corrected
this default after expiry of the deadline that applies pursuant to Paragraphs (a) or (b) of
this Article, the Contractor is entitled to exercise its right of termination specifically
afforded to it under this Agreement.
(d)
With regard to a Contracting Authority Default, the Contractor has no other rights than
those specifically provided for in this Agreement. For example, in such a case, the
Contractor shall not be at liberty to:
(i) suspend its obligations pursuant to this Agreement;
(ii)
claim damage from the Contracting Authority; or
(iii)
demand dissolution of this Agreement.
12. LIABILITY AND INDEMNITY
12.1 Contracting Authority Liability
(a) The Contracting Authority shall not be liable for any damage or damage sustained by the
Contractor, unless specific provision is made for same in this Agreement.
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(b)
For example, the Contracting Authority shall not be liable in respect of:
(i) damage or damage sustained by the Contractor due to the condition of the
Existing Infrastructure, the RWS Infrastructure or the Third-Party Infrastructureor due to conditions pertaining in, at or adjacent to the Existing Infrastructure,
RWS Infrastructure or Third-Party Infrastructure;
(ii)
the content of the Contractor Schedules or any inconsistency between the
Contractor Schedules and the other parts of the Agreement; or
(iii) the content of a document once said document has been examined, assessed or
agreed to by the Contracting Authority (tacitly or otherwise).
(c) The Contracting Authority shall indemnify the Contractor in regard to any damage for
which the Contracting Authority is liable in law (outside of this Agreement) vis-à-vis the
Contractor, including any damage that the Contractor may incur as a consequence of an
unlawful act on the part of the Contracting Authority.
12.2 Contracting Authority Indemnities
(a) Insofar as not due to a Contractor Default, the Contracting Authority must indemnify the
Contractor in respect of:
(i) third-party claims for compensation in respect of damage incurred due to an
unlawful act on the part of the Contracting Authority;
(ii)
third-party claims pursuant to an (alleged) infringement of Intellectual orIndustrial Property Rights during the performance of Work with respect to any
part of the Existing Infrastructure;
(iii)
third-party claims deriving from the Contractor’s compliance with the directions
and instructions of the Contracting Authority pursuant Article 18.6 Paragraph
(b) or Article 18.5 ((Traffic) Safety ), to the extent that such directions or
instructions do not necessarily result from a Contractor Default; and
(iv)
all third-party claims arising in connection with the performance of Work that
exceed the maximum amounts specified in Article 12.3 (Contractor
Indemnities), Paragraph (c).
(b) The Contracting Authority shall indemnify the Contractor against third-party claims
arising in connection with any damage incurred as a consequence of the unavailability
or decreased availability of the Infrastructure to public traffic.
(c)
The indemnity by the Contracting Authority does not apply to third-party claims that
arise pursuant to an agreement that these third parties have concluded with the
Contractor, to the extent that the Contractor would not be liable for this if the
agreement did not exist.
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12.3 Contractor Indemnities
(a) Insofar as not due to a Contracting Authority Default, the Contractor must indemnify the
Contracting Authority in respect of:
(i) third-party claims for compensation in respect of damage incurred by an
unlawful act on the part of the Contractor;
(ii)
third-party claims pursuant to an (alleged) infringement of intellectual or
industrial property rights while performing the Work (except insofar as such
infringement is prescribed by a Contracting Authority Schedule or involves an
(alleged) infringement as specified in Article 12.2 (Contracting Authority
Indemnities), Paragraph (a) under (ii));
(iii)
third-party claims relating to a Contractor Default with the exception of claims
by third parties arising in connection with damage sustained due to
unavailability or reduced availability of the Infrastructure to public traffic;
(iv)
all negative consequences of the failure of the Contracting Authority or
Contractor to fulfil Regulations applicable to working conditions and occupational
health and safety with respect to the performance of Work (except to the extent
that non-fulfilment is the consequence of an action or failure to act on the part
of the Contracting Authority); and
(v)
claims by authorities in charge of cables or pipelines in connection with the
performance of the Work.
(b) The indemnity by the Contractor does not apply to third-party claims pursuant to an
agreement that these third parties have concluded with the Contracting Authority, to
the extent that the Contracting Authority would not be liable in such instances if the
agreement did not exist.
(c) The liability of the Contractor vis-à-vis the Contracting Authority pursuant to this Article
is limited to the sum of:
(i)
€ [maximum] per claim (indexed in accordance with the preliminary figures for
total expenses in all categories of the Consumer Price Index as published by
Statistics Netherlands) during the Development Period;
(ii) € [maximum] per claim (indexed in accordance with the preliminary figures for
total expenses in all categories of the Consumer Price Index as published by
Statistics Netherlands) during the Availability Period;
(iii)
€ [maximum] in total (indexed in accordance with the preliminary figures for
total expenses in all categories of the Consumer Price Index as published by
Statistics Netherlands) during the Development and Availability Periods
together.
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13. CHANGES
13.1 Contracting Authority Change
(a)
The Contracting Authority may propose to amend Schedule 2 (Payment Mechanism),
Schedule 8 (Management Plan) or Schedule 9 (Programme of Requirements), or the
definitions for “Scheduled Availability Date” or “Expiry Date” (a Contracting Authority
Change).
(b)
If:
(i) a relevant Change in Law necessitates an amendment to this Agreement; or
(ii)
the wording of the Transport Infrastructure (Planning Procedures) Decree [Road
Improvement Decree] once it becomes irrevocable differs from the wording of
the Transport Infrastructure (Planning Procedures) Decree [Road Improvement
Decree] as at two weeks prior to [ d a t e o f D e f i n i t i v e Re g i s t r a t i o n ] and this
necessitates a change in this Agreement; or
(iii)
this Agreement (excepting the Contractor Schedules) mandates activity that
contravenes Regulations or infringes on the intellectual or industrial property
rights of a third party and such contravention or infringement can be corrected
by a Change in the
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