Op Services Subcont_Contract-March 2012

7/31/2019 Op Services Subcont_Contract-March 2012

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HANOI URBAN RAILWAY CONSTRUCTION PROJECT LINE 2 (I)

OPERATIONS AND MAINTENANCE SUPPORT CONTRACT

HANOI METROPOLITAN RAILWAY TRANSPORTPROJECT BOARD

OPERATIONS AND MAINTENANCE SUPPORTSERVICES CONTRACT

For

THE MAINTENANCE FOR THE HANOI LINE 2 (I)SYSTEM

(Nam Thang Long- Tran Hung Dao)

MARCH 2012

Draft-Ops&Maint Support Services 15th March 20121


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Table of Contents

MARCH 2012 ........................................................................................ 1

TABLE OF CONTENTS ............................................................................ 2

1. DEFINITIONS AND INTERPRETATION .................................................. 4

1.2 INTERPRETATION................................................................................. 8

2. SUPPORT CONTRACTORS OBLIGATIONS ............................................ 9

2.1 NATUREANDOBJECTIVEOFTHE CONTRACT..................................................... 92.2 GENERAL RESPONSIBILITIES..................................................................... 9

2.3 WARRANTIES.................................................................................... 92.4 EXCLUSIVITY.................................................................................... 92.5 CONTRACTORS REPRESENTATIVE.............................................................. 10

3 PAYMENT FOR THE SERVICES ........................................................... 10

4. TERMINATION .................................................................................10

5. SUSPENSION ...................................................................................11

6. CONFIDENTIAL INFORMATION ......................................................... 11

7. LIABILITY ........................................................................................12

8. FORCE MAJEURE ............................................................................. 12

9. INSURANCE ....................................................................................12

10. NOTICE .........................................................................................12

11. ENTIRE AGREEMENT ..................................................................... 12

12. SEVERABILITY ...............................................................................12

13. ASSIGNMENT ................................................................................13

13. AMENDMENT ................................................................................ 13

14. NO WAIVER ...................................................................................13

15. GOVERNING LAW .......................................................................... 13



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16. DISPUTE RESOLUTION ................................................................... 13

16.1 PANEL....................................................................................... 1316.2 REFERENCETO ARBITRATION................................................................ 14

16.3 ARBITRATION................................................................................ 14

17. LANGUAGE ....................................................................................14

1. SCOPE OF SERVICES ....................................................................... 16

2. CONTRACTORS CONTRACT TASKS RELATED TO OPERATION ANDMAINTENANCE ....................................................................................18

2.1 PREPARATIONOF PARTICULAR MANAGEMENT PLANS.......................................... 182.2 PREPARATIONOF STANDARD OPERATIONS PROCEDURES (SOPS) ............................ 182.3 CO-OPERATIONWITH EMPLOYERINTHE EXECUTIONOF OVERSEAS TRAINING MODULES.. .... 18

2.4 TRAININGAND TRANSFEROF KNOWLEDGE/SKILLS............................................ 192.5 OTHER KEYTASKS........................................................................... 20

1. CONTRACT PRICE, PAYMENT AND PAYMENT BREAKDOWN: ............... 21

1.1 CONTRACT PRICE ............................................................................. 21

PAYMENT ...........................................................................................21

2.1 PAYMENT STATEMENTS........................................................................ 212.1.1 INTERIM STATEMENTS............................................................................................... 21

2.1.2 CERTIFICATIONFOR INTERIM PAYMENT...........................................................................21

2.1.3 RETENTIONS.......................................................................................................... 21

3. PAYMENT OF ADDITIONAL SERVICES .............................................. 23

THE CONTRACTORS ORGANISATION STRUCTURE ................................. 24



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THIS CONTRACT is made the day of 2016

BETWEEN:

(1) Operations and Maintenance Company a company established under the

laws of Vietnam whose principal office is at [ ] Hanoi Vietnam (theOMC); and

(2) [ ], a company established under the laws of

[ ] whose principal office is at

[ ] (the Contractor).

WHEREAS

(A) The Hanoi Metropolitan Railway Transport Project Board (HRB) was establishedunder the Hanoi People Committee (HPC) for the design, manufacture, supply,installation, testing and commissioning of the Hanoi City Urban Railway ConstructionProject (Nam Thang Long-Tran Hung Dao Line (2) (I) (the Project Works) under five(5) Prime Contracts: the Underground Sections CPA001 and CPA002 that includes three(3) and four (4) Stations respectively, and all Building Services; the Elevated SectionCPA003 with three (3) Elevated Stations and all Building Services; the E&M CoreRailway Systems CPA004; and a Maintenance Contract for the maintenance of theE&M System and the Depot CPA005 including all M&E Building and MaintenanceEquipment (the Railway Systems) under the said Prime Contracts;

(B) HRB awarded civil infrastructure Works Contract namely: Prime Contract CPA001[Underground Section No.1] Prime Contract CPA002 [Underground Section No.2]Prime Contract CPA003 [Elevated Section] and Prime Contract CPA005 [Depot], as

further defined in Clause 1, for the supply, manufacture, construction, installation,testing, commissioning and integration of the M&E Equipment with the Prime ContractCPA004 [E&M core Systems];

(C) Pursuant to the OMCs obligations for the Operations and maintenance of the RailwaySystem the OMC requires the support of an experienced M&E Equipment suppliersand/or operations with additional experience in developing, implementing andsupervising training of unskilled personnel in the pursuance of operations andmaintenance;

(D) The Contractor purports to have the skills and resource to support the OMCs railwayoperations the respective resources to perform operations obligations and develop,

perform and supervise the training of the OMCs unskilled personnel (hereinafterreferred to, collectively, as the Services) and has offered to perform the Services in

accordance with HRBs invitation to bid and the Election specified therein;(E) The OMC entered into negotiations with the Contractor respective to the said bid and

pursuant to the agreed amendments accepts the Contractors amended bid and hasagreed to award the Services as further described herein to the Contractor pursuant tothis Contract;

(F) The OMC has entered into Maintenance Contract with E&M Systems Contractor who issolely responsible to the OMC for the performance of he Maintenance of the E&MSystems and the M&E Equipment.

IT IS AGREED as follows:-

1. DEFINITIONS AND INTERPRETATION

In this Contract, the following expressions shall have the following meanings: -Additional Services means services of the kind described in Schedule 2 in Part II


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which shall be provided by the Contractor on request by theOMC;

Contract means this contract, including all written Schedules now or hereafter made a part of it. In the event of any inconsistency

between any of the Schedules and this Contract, the terms ofthis Contract shall prevail;

Civil InfrastructureContract(s)

means each of the completed Civil Infrastructure Works byPrime Contract CPA001 [Underground Section with three (3)Stations, Lifts and Escalators, Building Services, EnvironmentalControl System, Tunnel Ventilation and Shafts and completedinterface requirements with the E&M Prime Contract Works],Civil Prime Contract CPA002 [Underground Section with four(4) Stations, Lifts and Escalators, Building Services,Environmental Control System, Tunnel Ventilation and Shaftsand completed interface requirements with the E&M PrimeContract Works], Civil Prime Contract CPA003 [ElevatedSection with three (3) Stations, Lifts and Escalators, BuildingServices and completed interface requirements with the E&M

Prime Contract Works], Civil Prime Contract CPA005 [Depotwith all Buildings, Lifts, Maintenance Workshop, and ancillary

buildings, Building Services and completed interfacerequirements with the E&M Prime Contract Works]. Each ofthe above, including the E&M Prime Contract CPA004 arereferred to as the Designated Contracts and the DesignatedContractors therefore;

Civil InfrastructureWorks

means all of the works designed and constructed by theDesignated Contractors CPA001, CPA002, CPA003 andCPA005;

Commercial OperationsDate (COD)

means the date stated in the Notice of No Objection by theTransit Authority (or the Vietnamese National Railway

Authority (VNRA) as the case may be) to Revenue Services toprovide service to the fare paying public over the whole of theRailway System;

Contract Spares means the set of spares procured by the OMC, from selectedDesignated Contractors under the terms of an agreed SupplyAgreement, and made available to the Maintenance Contractorunder the Maintenance Contract;

Designated Contracts means the contracts between the Employer and each of theDesignated Contractors: Civil Prime Contractor CPA001[Underground Section No.1], Civil Prime Contractor CPA002[Underground Section No.2], Civil Prime Contractor CPA003[Elevated Section], E&M Systems Prime Contractor CPA0004

and Civil Prime Contractor CPA005 [Depot];Designated Contractor means either or all of the Designated Contractors their joint

venture and/or consortium responsible to the Employer for theperformance of the Designated Contract and the completion ofthe Project Works as defined in the respective Contracts;

Employer means the Hanoi Metropolitan Railway Transport ProjectBoard, its successors and assigns;

EmployersRequirements

Means the Volume 3 to the Designated Contracts that sets-outthe specific requirements of the Employer for the design,manufacture, supply, construction, commission, test andintegration tests for the Project Works and the operations andmaintenance of the Railway System;

E&M Systems means all Systems and/or Sub-systems and equipment designed,manufactured, supplied, installed, tested and commissioned


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under the Designated Contract CPA004 and includes RollingStock, Signalling, Communications Based Train Control(CBTC), and Communication equipment, Power Supply,(inclusive of Traction Power System (TPS), Overhead CatenarySystem (OCS) and SCADA), Automatic Fare Collection,Platform Screen Doors, Supervisory Control and Data

Acquisition, Control Centre equipment, software, DepotMaintenance Equipment and special tools but excluding theEscalators and Elevators, and Station Building Services forming

part of the M&E Equipment;

Fee means the fees payable to the Contractor as described inSchedule 1;

Force Majeure Means, as provided in Clause 23, any event the happening or pernicious results of which could not be prevented even thougha person against whom it happened or threatened to happenwere to take such appropriate care as may be expected from a

person in his position or situation;

Integrated System

Testing

means a series of tests and a period of test running to combine

and integrate the various systems within the E&M Systems andthe M&E Equipment under the Civil Infrastructure Contracts;

M&E Equipment means all Station building facilities and Underground TunnelEnvironmental Control System, Tunnel Ventilation Shafts andsystems designed, manufactured, supplied, installed, tested andcommissioned under the Designated Contracts CPA001,CPA002, CPA003 and CPA005 Depot (including all BuildingServices buildings for the Administration Building and otherancillary buildings, Station Lifts and Escalators, and BuildingServices, Environmental Control System, Tunnel Ventilationand Shafts);

Maintenance

Equipment

means tools, jigs, fixtures, depot plant and machinery, vehicles,

testing and other special equipment provided under theDesignated Contracts CPA001, CPA002, CPA003, CPA004and CPA005 and handed over by the OMC to the Contractor, asmay be required from time to time, for use in the performance ofthe Services;

Maintenance Services means the Services relating to the maintenance of the RailwaySystem to be provided by the Maintenance Contractor pursuantto the maintenance Contract;

Maintenance ServicesPlan

means the plan developed by the Maintenance Contractor, fromthe Designated Contractors Maintenance Plan;

Maintenance SupportServices

Means the services offered (as an Election) by the DesignatedContractors to the Employer or OMC to ensure the operations

and maintenance of the M&E Building Services, EnvironmentControl, Tunnel Ventilation and Shafts are supported, as theOMC may require, for a period of two (2) years following dateof Taking-Over of the Designated Contract(s) Works andwhereby the Employer or OMC have accepted the DesignatedContractors offer and entered into a separate MaintenanceSupport Services Contract (hereinafter referred to as SupportServices Contract), as defined in the Employers RequirementsAppendix 15 and 16. Such Maintenance Support Services aredivisible to the Designated Contractors Defect Notificationobligation under the Designated Contract;

Notice of No Objection

to Revenue Service

means a notice issued by the Transport Authority or the

Employer to the OMC evidencing that the Employer under theDesignated Contracts has completed the Designated Contract


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Works and there has no objection to the commencement ofRevenue Service;

Notice to Proceed means an notice issued by the OMC pursuant to Clause 4;

OMC's Representative means the person, firm or company appointed from time to timeby the OMC under Clause 15;

Operations andMaintenance Manuals

Designated Contractors operations and maintenance manualsprovides all relevant instruction manuals and special directionsor recommendations from the relevant Designated ContractorsSubcontractors, manufacturers and Suppliers of any E&MSystems and M&E Equipment or parts thereof so as to providethe Employer and the OMC (Railway Operator) with such detailand information as is necessary for use by the OMC, theMaintenance Contractor and/or the Contractor to operate,maintain, dismantle, reassemble, adjust, upkeep and uphold all

parts of the M&E Equipment and E&M Systems and Sub-systems as a complete Railway System;

Operating Procedures means a set of controlled documentation developed by theDesignated Contractors in accordance with the EmployersRequirements Appendix 15 Clause 2.3 that are made available

by the Employer to the OMC for use by the OMCs personnelengaged on the operation of the Railway System. Such willinclude certain standard operating procedures (SOP);

Project Works means the whole of the Hanoi City Urban Railway ConstructionProject Line 2 (I) Works (Nam Thang Long-Tran Hung DaoSection) as designed, supplied, constructed, installed, tested,commissioned and integrated with each Designated ContractWorks therefore making up the whole of the Railway System.

Provisional Acceptance means the acceptance of the E&M Works and each of theDesignated Contractors Civil Infrastructure Works arecomplete, except for minor omissions that:

a) do not prevent the Project Works from being reasonablycapable of being used for their intended purpose, and

b) in relation to which the Engineer has determined that theProject Works fulfils the requirements of the DesignatedContracts, and

c) rectification of the minor omissions will not prejudice theEmployers convenient use of the Project Works, and

d) the Integration Systems Test, that are required by theDesignated Contracts, have been passed and the ProjectWorks can be handed over to the Employer for the purposeof the Employers Trial Run; and that will allow the TrialRun to commence;

Railway COD means the date on which the first Stage of the Railway Systemcommences to provide revenue operations;

Railway System means the Employers Railway System, consisting of the CivilInfrastructure Works, the whole of the M&E Equipment, theE&M Systems the Depot Administration Building, Workshopand all Trackwork for the Depot Stabling of Trains and theElevated Section with three (3) Elevated Stations (C1 to C3),interconnected by tunnels complete with Tunnel Ventilation,and Ventilation Shafts, running from Km 2+232 through to Km7+215 encompassing three (3) Underground Stations (C4, C5C6), and from Km 7+215 with Underground Station (C7, C8,C9) and beyond the boundary at Underground Station C10 Km

11+134;Repairable Spares means parts not classified as Consumable Spares that are


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required to be periodically repaired by the MaintenanceContractor so as to maintain the E&M Systems and M&EEquipment in normal operating condition;

Revenue Service means the placement in service of the entire Railway System forpublic use for which carriage at the published fare rates inaccordance with the Vietnamese law and regulative Authoritiesthat govern the OMC under the Shareholders Agreement;

Rule Book means the general safety instructions and code of behaviour setdown in the OMCs handbook that will be issued to every

person working on the Railway System in Revenue Service.Each such person shall be required to sign to confirm that thecontents are understood and will be obeyed at all times;

Scheduled Service means the provision of a Revenue Service according to apredetermined Working Timetable between the hours of 05:00and midnight including a morning peak period from 06:00 to09:00 and an evening peak period from 16:30 to 20:30;

Services means the operations and maintenance support Services under this Contract, the Additional Services and all preparationsnecessary thereto including the hiring and training of personneland the assistance to the OMC and/or the MaintenanceContractor;

Spares means all spare and replacement parts and consumable itemsrequired for the E&M Systems and M&E Equipment includingContract Spares and Supplementary Spares.

Supplementary Spares means those spares and consumables procured by theMaintenance Contractor to supplement the OMC Spares inorder to perform the Maintenance Services as deemed necessary

by the Maintenance Contractor;

Support Service means the Contractor engaged by OMC to support the OMCwith its operations and/or maintenance under this Contract;

Trackwork means the complete works carried out by the E&M DesignatedContractor for Trackwork including all track slab, rail, sleepers,turnouts, crossings, fastenings, ballast, and plinths;

Trial Run means the operation of the Railway System to simulateoperation and emergency procedures in public service, with theexception that fare-paying passengers are not carried. The

period of Trial Run will commence upon the Employers noticethat Provisional Acceptance has been provided to the E&MDesignated Contractor and therefore verifying the IntegratedSystems Test are complete and ready to commence Trial Run.The Trial Run will be a period of not less than three-monthsfrom the date of Provisional Acceptance;

Working Timetable means the train timetable used by the OMC to provide timingand details of train movements which is not available to thegeneral public;

Works means the whole of the Civil Infrastructure Works, the M&EEquipment and the E&M Systems as installed and integrated byeach Designated Contractors.

1.2 INTERPRETATION

In the interpretation of this Contract, unless the context otherwise requires:-i) references to particular Clauses, Sub-clauses or Schedules are to Clauses, Sub-clauses

or Schedules of or to this Contract;

ii) day shall include public holidays, Saturdays and Sundays;

iii) person includes a company or a partnership;


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iv) the singular includes the plural and vice versa;

v) words importing any gender include every gender;

vi) the headings are inserted for convenience only and are to be ignored for the purposes ofconstruction; and

vii) the word including shall be construed without limitation.

2. SUPPORT CONTRACTORS OBLIGATIONS

2.1 NATUREANDOBJECTIVEOFTHE CONTRACT

The obligation of the Contractor under this Contract is to ensure it understands therequirements of the OMC and the OMCs Maintenance Contractor respective toOperations, Maintenance and Training obligations expressed as the Contractorsobligations for:

(a) the collation, checking of the Operation, Maintenance and Training Plansincluding all documentations as provided by the Designated Contractors for thesuccessful operation and maintenance of the Railway System which includes butnot limited to Operations and Maintenance Manuals, operating procedures, As-

Built Drawings etc.;

(b) support to Designated Contractors to fulfil their obligations with respect to thecompletion of the Designated Contract Works Integrated Testing and the TrialRunning that allows the OMC to receive the Notice of No Objection for RevenueService from the Transit Authority for Revenue Service and as defined herein;

(c) to provide all required documentation on organisational structure and resources inaccordance with the requirements to carry out the selection, designation andtraining of appropriate personnel in the required times subject to the satisfactionof the OMC and hired by the OMC for the operation and maintenance of theRailway System;

(d) to provide support services in relation to the operation and maintenance (including

safety) of the M&E Equipment for a period of two (2) years after the ignitedTaking-Over of the Civil Infrastructure Works of each Designated Contract, asexpressed in the Designated Contracts;

(e) to advise on other matters connected with the M&E Equipment as may be deemednecessary and instructed by the OMC;

Key tasks and deliverables are specified more in detail in Annex 1 hereto.

2.2 GENERAL RESPONSIBILITIES

With acceptance of the obligations of this Contract, and all liabilities, respective to theWorks the Contractor shall undertake the performance of this Contract from the datehereof until fulfilment of its obligations as expressed Clause 2.1 item (d).

2.3 WARRANTIESThe Contractor shall carry out the Services with all necessary care and skill and to the

best of his ability to be expected from appropriately qualified and experienced engineerin the operations and maintenance of the M&E Equipment.

The Contractor shall carry out the Services for the OMC at such times and at suchlocations as the OMC and the Contractor may agree from time to time.

2.4 EXCLUSIVITY

The Contractor agrees to perform the Services exclusively for the OMC under the termsand conditions of this Contract. During the term of this Contract (or such other term asmay be agreed by the parties hereto) the Contractor shall not provide any servicesrelating to the Railway System to any third party, directly or indirectly, separately or incombination with others, in the development or execution of the Railway System.


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2.5 CONTRACTORS REPRESENTATIVE

The Contractor shall designate a representative who will act as the prime contact andinterface point with the OMC. The designation of such representative shall be subject tothe written approval of the OMC. The Contractor shall make no change to itsrepresentative without the prior written consent of the OMC whose consent shall not be

unreasonably withheld. Any replacement shall be of equivalent standing, experienceand qualifications.

3 PAYMENT FOR THE SERVICES

3.1 In consideration for the performance of the Services, the OMC shall pay the ContractPrice to the Contractor. The Contract Price is a lump sum fee which shall constitute theContractors sole remuneration in connection with this Contract and the Contractoragrees that it has satisfied itself completely that the Contract Price shall cover any andall of the Contractors costs and expenses including accommodation expenses and airfares, obligations and liabilities, incurred in the performance of the Services.

3.2 The Contractor shall be responsible for the payment of any and all duties, charges ortaxes incurred in or outside Vietnam by the Contractor, its personnel, its consultants

and subcontractors their personnel in relation to the performance of the Services.

3.3 At the end of each month that entitles the Contractor to payment, the Contractor shallprepare and issue to the OMC an invoice amounting to sum stated in the InterimPayment Schedule indicated in Annex 2. Payment shall be made within sixty (60) daysof receipt of the Contractors invoice. Notwithstanding the provisions of Clause 3.2, the

OMC may with hold from its payment to the Contractor any and all withholdingtax, deduction, levy or retention required by law.

4. TERMINATION

4.1 Without limitation the OMC may by notice in writing immediately terminate thisContract if:

(a) the Contractor:i) has abandoned the Contract;

ii) failed to commence the Services in accordance with the Conditions of thisContract;

iii) is in breach of any of the terms of this that, in the case of a breach capableof remedy, shall not have been remedied by the Contractor within fourteen(14) days of receipt by the Contractor of a written notice from the OMCspecifying the breach and requiring its remedy;

iv) be incompetent, guilty of gross misconduct and/or any serious or persistentnegligence in the performance of the Services;

v) fail or refuse after written warning to perform the Services with duediligence and properly required of him hereunder; or

(b) the OMC terminates this Contract.

4.2 If the Contract is terminated for any reason set out in Clause 4.1(a),

(a) the Contractor shall immediately cease all further Services and deliver to theOMC:

i) all rights in information produced by or on behalf of the Contractorpursuant to this Contract (the Deliverables); and

ii) all documents and materials including software of whatever kind in itspossession which relate to the Works except for those documents,materials or software which prior to the date of this Contract are under

licence or in respect of which there is pre-existing copyright or patent;


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(b) any payment due to the Contractor shall be reduced by, and subject to theOMC right to set-off against such payment, any loss or damage suffered orincurred by the OMC as a result of the Contractors breach; and

(c) the restrictions upon the Contractor referred to in Clause 2.4 shall continuefor one (1) year from the date of termination.

4.3 If the Contract is terminated for any reason other than as set out in Clause 4.1(a) above,included but not limited to convenience, the Contractor shall immediately cease allfurther work, and deliver to the OMC all things mentioned in Clause 4.2 (a) above.

The OMC shall pay to the Contractor all amounts due up to the date of termination. TheContractor shall submit to the OMC an invoice detailing the substantiated performanceof the Services up to the date of termination and the nature of any associateddisbursements.

4.4 The termination of this Contract shall not prejudice or affect the continued rights andobligations or claims and liabilities of the Parties accrued prior to termination.

5. SUSPENSION

5.1 The OMC shall have the right, by written notice to the Contractor to suspend theServices forthwith.

5.2 In the case of a suspension of the Services for whatever cause that continues for morethan two- months, the Contract may be terminated upon written notice of any partyhereto.

6. CONFIDENTIAL INFORMATION

6.1 In this Contract "Information" shall mean all commercial, financial, technical, operationalor other information appertaining in any way to the Railway System as has been or may bedisclosed or otherwise made available by the OMC to the Contractor or to any person onthe Contractors behalf or to which the Contractor or any person on the Contractors behalf

has been granted access (any such disclosure, availability or granting of access beingreferred to in this Contract as "disclosure"), but shall exclude any such information which:-

(a) prior to disclosure was in the possession of the Contractor, as properly evidencedby the written records of the Contractor, and which the Contractor was entitledto use; or

(b) at the time of disclosure is in the public domain other than by reason of a breachof duty of this Contract; or

(c) after disclosure becomes generally available to third parties by publication orotherwise, other than by reason of a breach of duty or of this Contract.

6.2 Any disclosure of Information shall be solely for the purpose of assisting the Contractorto perform the Services and the Contractor shall not use nor permit nor cause others to

use Information for any other purpose without the prior written consent of the OMC.6.3 The Contractor undertakes to treat all Information as strictly confidential and not to

disclose any part of it to any third party (save as necessary to the Contractors directors,representatives, employees, officers and agents for the purpose of performing theServices) unless the prior written consent of the OMC has been obtained in relation tosuch disclosure.

6.4 Save only to the extent that the Contractor or any third party has pre-existing rights inany Information, it shall remain the absolute property of the OMC and all documents,tapes, discs, films, photographs, models and other media embodying Information shall bereturned to the OMC by the Contractor on demand together with all copies of it.

6.5 The Contractor shall not make any copies of or duplicate in any way in whole or in partany Information without the prior written agreement of the OMC and where such copiesor reproductions are permitted in accordance with this Clause the Contractor shall treatthem strictly in accordance with the provisions of this Contract and comply with the


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instructions of the OMC with regard to the protection and disposal of them. TheContractor shall return the originals and all copies to the OMC promptly upon therequest of the OMC.

6.6 The Contractor shall ensure that any director, representative, employee, officer, agent orother person to whom Information has been disclosed by, or otherwise as a result ofdisclosure to, the Contractor shall maintain the confidential nature of the Information asif he or she had entered into an agreement with the OMC in respect of it on the sameterms mutatis mutandis as the terms contained in this Contract.

6.7 Nothing in this Contract shall be construed or interpreted as obliging the OMC to furnishany Information to the Contractor or to furnish Information in any form nor granting tothe Contractor any right or licence under or in relation to any Information.

6.8 The obligations contained in this Clause 6 shall be in addition to and not insubstitution for any duties at law. The said obligations shall continue in full force andeffect for five-years following the termination or expiry of this Contract,notwithstanding that all or part of the documents, materials or other things embodyingInformation shall have been returned to the OMC or that the purpose for whichInformation was disclosed has been abandoned, completed or has otherwise lapsed or

ceased to apply.

7. LIABILITY

Nothing in this Contract shall relieve the Contractor from the performance itsobligations in a timely manner or from any of its liabilities or obligations in respect ofthe Services.

8. FORCE MAJEURE

Any party hereto shall be relieved from liability under or in connection with thisContract to the extent that its failure to perform any or all of its obligations has beencaused by or contributed to by any event or circumstances beyond its reasonable control

including Act of God, war, civil disturbance, government action, strikes, lock outs orlabour disputes.

9. INSURANCE

Without limiting the Contractors obligations, responsibilities, and liabilities under thisContract, the Contractor shall effect and maintain at its own expense for a period of notless than ten (10) years from the date hereof Professional Indemnity Insurance with asum insured of no less than USD 10,000,000. This insurance shall be required only forthe benefit of the Contractor. The Contractor shall provide the OMC with a copy of an

endorsement or certificate of said insurance and any renewal or modification thereof.

10. NOTICE

Any notice required by this Contract to be given by any party to another or others shallbe in writing and shall be served by sending the same by registered post or recordeddelivery to the last known address of the other party(ies) and any receipt issued by the

postal authorities shall be conclusive evidence of the fact and date of posting of anysuch notice.

11. ENTIRE AGREEMENT

This Contract sets out the entire agreement of the parties and supersedes all prior

agreements and understandings relating to its subject matter.

12. SEVERABILITY

If any one or more of the provisions contained in this Contract or any documentexecuted in connection herewith is found by any court of law with the jurisdiction over


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the matter to be invalid, illegal or unenforceable in any respect, the validity, legality andenforceability of the remaining provisions contained herein shall not be affected orimpaired in any way.

13. ASSIGNMENT

The Contractor shall not assign its rights or obligations arising under this Contractwithout the prior written consent of OMC.

13. AMENDMENT

No amendment of, or addition to this Contract shall be effective unless in writing andsigned by or on behalf of all parties hereto.

14. NO WAIVER

The failure of any of the parties hereto to assert or enforce any right in connection withany provision of this Contract shall not constitute in any circumstance a waiver or

precedent in respect of that or any other provision at any other time or by any otherparty. Nor will any waiver be implied from the acceptance of any payment or service.

15. GOVERNING LAW

This Contract shall be governed by and construed in accordance with the laws ofVietnam and the Parties agree to submit to the jurisdiction of the Vietnamese courts.

16. DISPUTE RESOLUTION

16.1 PANEL

16.1.1 All matters under this Contract involving certification or decisions or failure to certifyor make payment shall be subject to the right of the Maintenance Contractor to applyunder this Clause for review by a group of three people acting as a panel (thePanel). The provisions of this Clause 16.1 shall govern the appointment andconduct of the Panel.

16.1.2 The OMC and the Maintenance Contractor shall each appoint one member of thePanel and shall jointly appoint the third member. The decisions of the Panel shall beunanimous between all three members.

16.1.3 The Panel shall, within twenty-eight (28) days of a reference to it, endeavour tofacilitate agreement between the parties, or failing this, shall submit a writtendecision. This period can be extended by agreement of both parties.

16.1.4 All communications with the Panel must be in writing and copied to the other party. Ifrequested by either party the Panel shall confirm in writing that there are nocircumstances likely to give rise to any justified doubts as to his impartiality orindependence.

16.1.5 The Panel shall be deemed not to act as an arbitrator and is not obliged to follow anyparticular procedure or observe any requirements of due process or natural justice(unless required by Vietnamese law).

16.1.6 The Panel shall be entitled to charge reasonable fees and disbursementscommensurate with its function that shall be paid as directed by the Panel.

16.1.7 Unless this Contract has already been abandoned, repudiated or terminated, theMaintenance Contractor shall continue to proceed with the Services in accordancewith the Contract and both parties shall promptly give effect to every decision of thePanel unless and until it shall be revised in an amicable settlement or an arbitral awardas described below.

16.1.8 If the Panel has given its decision on a matter submitted to it, and no notice of

arbitration has been given by either party within twenty-eight (28) days after it


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received the Panel's decision, then the decision shall become final and binding uponboth parties.

16.1.9 If either party is dissatisfied with the Panel's decision, then either party may, withintwenty-eight (28) days after receiving the decision, give notice of arbitration to theother party of its dissatisfaction. If the Panel fails to give its decision within twenty-eight (28) days after receiving the initial reference, then either party may, withintwenty-eight (28) days after the first period of twenty-eight (28) days has expired, givenotice of arbitration to the other party.

16.1.10 Where notice of arbitration has been given under Clause 16.1.9, both parties shallattempt to settle the dispute amicably before the commencement of arbitration inaccordance with Clause 16.3.

16.1.11 Unless settled amicably, any dispute in respect of which the Panel's decision (if any)has not become final and binding shall be finally settled by arbitration as provided inClause 16.3.

16.1.12 The OMC and the Maintenance Contractor undertake to each other and to the Panelthat the Panel shall not, except as otherwise agreed in writing by the OMC and theMaintenance Contractor:

i) be appointed as an arbitrator in any arbitration under the Contract;

ii) be called as a witness to give evidence concerning any dispute before arbitrator(s)appointed for any arbitration under the Contract; or

iii) be liable for any claims for anything done or omitted in the discharge or purporteddischarge of the Panel's functions, unless the act or omission is shown to have been in

bad faith.

16.2 R EFERENCETO ARBITRATION

If a dispute is not settled by agreement either party may refer the dispute to arbitration,subject to Clause 16.3

16.3 ARBITRATION

Any disputes arising out of or in connection with this Contract that cannot be settled inaccordance with Clause 16.1 shall be subject to arbitration in Vietnam. Such arbitrationshall take place in the English language. The arbitration shall be conducted by threearbitrators, one appointed by the OMC, one appointed by the Maintenance Contractorand the third appointed jointly by the OMC and the Maintenance Contractor or, indefault of agreement, appointed by the president for the time being of the London Courtof International Arbitration. Such arbitration shall be carried out in accordance with theUNCITRAL Rules, shall apply the substantive and procedural laws of Vietnam andshall be final and binding.

In the event of a dispute between the Parties hereto in connection with this Contract(including any dispute as to its validity, meaning, effect, or termination) that the Partiesare unable to settle amicably, the dispute shall be referred to arbitration by either Party

under the rules of arbitration of the International Chamber of Commerce. Thearbitration award shall be binding on the Parties.

The place of arbitration shall be Geneva, the language of the proceedings shall be inEnglish.

17. LANGUAGE

The English language shall be the governing language of the Contract. Allcorrespondence, notices or other documents required or permitted hereunder shall bedrawn up in the English language and drawings and diagrams shall be annotated inEnglish.

All operating and maintenance instructions and other written or printed matter which is

required for the operation and servicing of the Railway System, and all instructions andnotices to passengers and staff shall be provided both in the English language, and,


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except when expressly provided to the contrary in the Specification, in the Thailanguage.

IN WITNESS WHEREOF the parties have caused this Contract to be executed by theirduly authorised representatives as follows, in three (3) original copies, each party receiving

one (1) original.For and on behalf of

OMC

For and on behalf of

Name __________________________ Name ___________________________Position Position

Signature __________________________ Signature __________________________

For and on behalf of

Name ____________________________ Name ____________________________Position Position

Signature ___________________________ Signature___________________________


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ANNEX 1

1. SCOPE OF SERVICES

1.1 The scope of the Services Works shall be as set out in the Contractors Proposal

dated [], subsequent letters from the Contractor to the OMC dated [], theOMCs Letter of Acceptance and the OMCs Letter of Award. In case of conflict

between these documents the OMCs Letter of Acceptance shall takeprecedence.

1.2 In support of the above this Annex 1 details the specified support tasks to the OMCrelated to the Hanoi City Urban Railway Project Nam Thang Long-Tran Hung DaoSection (the Project Line 2 (Phase I)) that ensures a smooth transfer of the ProjectWorks from the Employers Provisional Acceptance to the OMC (Project Line 2Operating Company); following the completion of a certified Trial Running period.The Employers General Consultant will provide supporting plans to assist this smoothtransition as well as to obtain the Railway Operations Certificate from the Vietnamese

National Railway Authority (VNRA).

1.3 The Contractors support to the Employer according to the above resulted from its offerto the Employer, by means of a Bid Election, to perform certain operations andMaintenance services for the OMCs consideration and the possible negotiation of aSupport Services Contract with the OMC. Therefore, the Contractor will, in co-operation with the Employer, offer (refer to the Election in the Bidding Documents-Instructions to Bidders Part 4) specific technical experience to transfer technology,skills, training and support to the OMC related to the operations and maintenance of allCivil Infrastructure Works and the M&E Equipment supplied and installed by theDesignated Contractors under the Designated Contracts.. Such requirements werespecified in Volume 3 [Employers Requirements] Appendix 15 and Appendix 16.

1.4 As detailed in 1.3 above and notwithstanding the Contractor has an obligation to bring

the Contract Works to completion, as expressed in the Contract, the Employer requiresthe Contractor to provide a separate obligation, in addition to its Defects NotificationLiability, to undertake operations and/or maintenance services under two distinctactivities, as defined below:

Type ofExecution

Execution Bodyand Period

General scope of theContractors Services

Objectives to be applied

Type-A The ContractorFor two-years:1. Period one

relates to the

Maintenance oftheEnvironmentalControl System

2. The OperationsandMaintenanceSupportServices

The Contractor will beresponsible under period 1for the maintenance of theEnvironmental Control

System from the date of theEmployers Taking-Over ofthe same until COD.

Under period 2 theContractor shall beresponsible for operationsand Maintenance support toOMC

Environmental ControlSystem for undergroundStations and Tunnelspecified in sub-clause

22.1.2, Volume 4 OutlineDesign Specifications aswell as the M&EEquipment.

Spares for the correction ofthe Designated ContractorsDefects shall remain theDesignated Contractorsobligation.


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Type ofExecution

Execution Bodyand Period

General scope of theContractors Services

Objectives to be applied

Type-B OMC

For two-years after

issuing the Taking-Over Certificate

The Contractor will providesupervisory staff to support

the OMCs operations andmaintenance works carriedout by OMCs MaintenanceContractor.

All Civil/architecturalworks and Station Building

Service works exceptEnvironmental ControlSystem during Type-Amaintenance period

1.5 The Designated Contractors will retain their obligation for the Defect NotificationPeriod and the Supply of Spares to the OMC under a separate Supply Agreement for a

period of not less than five-years from the Provisional Acceptance of the Works.

The OMC intends to finalise and execute the Supply Agreement at least nine (9) monthsprior to the Employers issuance of the Contract Works Taking-Over Certificate. Thenegotiations of rates for the Contractors Services will be based on the rates offered,and agreed between the OMC and the Contractor, as the OMCs acceptance of the

Contractors Bid Election, are as detailed in Annex 21.6 The Contractors Services related to operations and maintenance support includes, in

addition to its obligations under this Contract, which may mirror those specified below,and anything that may be reasonably necessary for the OMC to fully operate andmaintain the Railway System but only related to the Civil Infrastructure Works and theM&E Equipment forming part of the same:

1) To prepare following particular management plans;

- Spares and consumable Management Plan;

- Defect Liability Management Plan;

- Maintenance Management Plan (including Health and Safety);

2) To assist the OMC and the Employers General Consultant in the execution ofoverseas training;

3) To transfer knowledge and skills, under this Contract, that is necessary for theactual operation and maintenance of the Railway System to the OMCsoperation and maintenance staff;

4) In accordance with this Contract, to support the OMC with the procurement ofall Spares and consumable schedule on a just-in-time basis; necessary for theoperations and maintenance of the Railway System. Such includes civil,architectural and Station Building Services; please refer to Clause 1.3 above andthe Volume 3 [Employers Requirements-Appendix 16] (incorporated herein byspecific reference) to the Designated Contracts. Any conflict between theAppendix 15 and this Contract the provisions of this Contract shall prevail.

5) To carry out operations and maintenance support Services during a termspecified in Clause 1.3 above and the Employers Requirements Appendix 16.

6) To co-operate with the OMCs Operations and Maintenance representativesand/or other agencies concerned in the execution of operation and maintenance.

7) To ensure the Designated Contractor(s) duly performs its/their obligations torectify notified defects during the Defects Notification Period.

1.7 All expenditures and cost necessary to perform above tasks are deemed to be includedin the agreed Contract Price.


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2. CONTRACTORS CONTRACT TASKS RELATED TO OPERATION

AND MAINTENANCE

2.1 PREPARATIONOF PARTICULAR MANAGEMENT PLANS

The Contractor shall prepare, in accordance with the its obligations under this Contract, the

following operation management plans and submit them to the OMCs Representatives fortheir review, consent and implementation.

1) Operation and Maintenance Manual for Underground Station Building Services

Such shall show the outline of the manuals required in Sub-Clause 2.2 below andsubmit to the OMCs Representative not later than three-months prior to issuing theEmployers Taking-Over Certificate for the Designated Contract Works or the latter ofthe same.

2) Training and Knowledge/Skill Transfer Plan

The Contractor shall develop its Training, Knowledge and Skill Transfer Plan requiredin the Sub-Cause 2.4 below. The plan shall be submitted to the OMCs Representative

not later than three-months prior to the commencement of training. Further Knowledgeand Skills Transfer will be provided to the Employers and the OMCs nominatedtraining representatives prior the Designated Contractors Systems and Sub-systemsIntegration Test.

2.2 PREPARATIONOF STANDARD OPERATIONS PROCEDURES (SOPS)

The Designated Contractors shall prepare SoPs for the operation E&M Systems and the M&ESystems; Building Services installed and commissioned under the Contract. The SoPs shouldcover all necessary plans and procedures necessary for the operation of the E&M Systems andSub-systems and M&E Equipment in normal condition and in emergency case. The SoPs willinclude preventive maintenance procedures to reduce the maintenance requirements anddiagnostic/investigative measures for the trouble shootings.

The SoPs are to be submitted to the Engineer for his/her review and approval at least six (6)months prior to the date for Completion of the Designated Contract Works. The number ofsubmissions is addressed in Volume 3 [Employers Requirements] Appendix 16 and 17. Thesame are incorporated herein by specific reference.

The submissions include, but are not limited to:

1) Operation manual for Environmental Control System for Underground Stations andTunnels (ventilation/air conditioning system for Stations and Tunnels including smokecontrol system)

2) Operation manual for Station water supply, plumbing and drainage system

3) Operation manual for electrical works

4) Operation manual for fire prevention and fighting system

5) Passenger evacuation manual for station accident and trouble

6) Fire prevention and fighting manual for station fire accident

9) Standard Operating Procedures for Railway Operations

2.3 CO-OPERATIONWITH EMPLOYERINTHE EXECUTIONOF OVERSEAS TRAINING MODULES

The Contractor shall assist the OMC and the Employers General Consultant and the in theplanning of the overseas training modules, as may be required, and the execution of thetraining modules. The Employer or the OMC will be responsible for the preparation,execution of overseas training and the cost therefore under a separate contract for the OMCs

personnels development and capacity; to perform Railway Systems operation and


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maintenance. The training will be carried out mainly by means of field visits outside Vietnam,classroom lessons and on-the-job training.

The Contractor will be required therefore to provide:

1) Standard Operating Procedures

2) Provisional information regarding possible field visitation sites e.g. Japanese Projectsites, factories and training centres;

3) Recommendation and/or proposal on the training modules considering particularity andcharacteristics of the systems installed and Commissioned under this Contract;

4) Support the field visits;

5) Support classroom lessons and necessary presentations;

6) Preparation of training documentation and technical lecture material on the systemprocured under the Designated Contracts;

7) Provision of technical information as required by the OMC, HPC or HRB; and

8) Other works necessary for smooth and meaningful implementation of the trainingmodules.

2.4 TRAININGAND TRANSFEROF KNOWLEDGE/SKILLS

The Contractor assist in all necessary training and transfer of Knowledge/Skill necessary foractual operation of all equipment, facilities and plant procured and installed under theDesignated Contracts, to the personnel appointed by the Employer and/or OMC based on theDesignated Contractors Operation and Maintenance Manuals.

The Contractor shall prepare the following maintenance management plans and submit themto Engineer for review and consent.

1) Maintenance Manual Plan

This plan shall show the outline of the manuals required in Sub-Clause 3.2 below andshall be submitted to Engineer not later than nine-months prior to issuing the Taking-Over Certificate.

2) Spare Parts and Consumable Management Plan

This plan shall show the recommended spare parts and consumables together withmanufacturer's name/type/model number, possible procurements routes (and lead time),

price (based on the five (5) year Maintenance requirement), recommended minimumquantity and other supporting information that is necessary for the OMC to establish itsMaintenance Control structure, equipment, necessary stores facilities for MaintenanceSpares and Consumables. The plan shall specify special tools and testing equipmentnecessary for the maintenance works. The Spare Parts and Consumable Management

Plan shall be submitted to Engineer at the same time as submission of the Operationsand Maintenance Manuals.

3) Maintenance Management Plan for the Maintenance Period

The Contractor shall prepare an outline plan for the management of the maintenancefunction in accordance with requirements shown in the Appendix 15 to the EmployersRequirements and shows the recommended Maintenance Organisation Team forexecution of the maintenance works. The Maintenance Management Plan shall besubmitted six-months before the date for Contract Works Completion.

The Contractor should prepare maintenance manuals for the maintenance of all structures,equipment, facilities and plant constructed and/or procured and installed under this Contract.The manuals should cover all necessary works and procedures for the maintenance in normalcondition and in abnormal condition or emergency case.


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The manuals shall be submitted to Engineer for his review and consent at least six-monthsprior to the date for Designated Contract Works Completion and shall, but not limited to,include following documents:

1) Maintenance manuals for civil works

2) Maintenance manual for architectural works

3) Maintenance manual for Environmental Control System

4) Maintenance manuals for underground Station Building Services other thanenvironmental control system

The manuals should, but not limited to, the following contents.

1) Applied maintenance standard and criteria

2) Inspection regulation including inspection method and frequency

3) Inspection management plan including document control

4) Testing requirements

5) Method for repair works

6) Preventive measures against possible troubles

7) Trouble shooting and recovery measures

2.5 OTHER KEY TASKS

Review and Implement Designated Contractors o the OMC Operating Plans as describedin the Designated Contract M&E Equipment Specifications;

Review and assist the OMC with finalising Station Operating Plans;

Co-ordinated with the Maintenance Contractor, the OMC and the Transit Authority and/orthe VNRA for the development of Operation rulebooks and procedures for all modes ofM&E Equipment and E&M Systems operation;

Assist the OMC with the planning and organisation of the OMC; Define operations administrative organisation and staffing requirements; Carry out screening and recruitment of staff;

Plan, prepare and perform comprehensive training, on Site and off Site for the OMCsOperating Staff;

Monitor the M&E Equipment and E&M Systems Integrated Testing; Assist the OMC and/or the Employer with Trial Running, as defined in the Employers

Requirements after satisfactory completion of the System Integrated Testing, until receiptof Notice of No Objection to Commencement of Revenue Service from Transit Authority;

Provide support services to the OMC during the first two-years after Commencement ofRevenue Service.


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ANNEX 2

1. CONTRACT PRICE, PAYMENT AND PAYMENT BREAKDOWN:

1.1 CONTRACT PRICE

OMC shall pay the Contractor as Contract Price a fixed lump sum amount of [] with thefollowing payment schedule:

The schedule should be broken down into categories of the Services starting with theKey Personnel identified in Annex 3 and listing all personnel detailed in the ResourceSchedule of Annex 3.

PAYMENT

2.1 PAYMENT STATEMENTS

2.1.1 INTERIM STATEMENTS

1) At the beginning of each calendar month the Contractor may apply to the OMC for aninterim payment in relation to the preceding month. Each such application shall state:

a) the amount claimed to be payable in accordance with the Interim PaymentSchedule; and

b) any other amount claimed to be payable pursuant to agreed Additional Servicesaa determined by the Engineer; and

c) whether and, if so, the extent to which the amount claimed to be payable forAdditional Services comprise rates under this Annex 1.

2) As a condition precedent to the Engineers consideration of any sums due to theContractor each such application shall be accompanied by the Contractors MonthlyResource Schedule detailing each of the personnels activities during the precedingmonth.

2.1.2 CERTIFICATIONFORINTERIM PAYMENT

1) The Engineer shall issue to the Employer, with a copy to the Contractor, an InterimPayment Certificate showing the amount payable by the Employer to the Contractorwithin twenty-one (21) days following the date of the Interim Payment Certificate:

a) Retention Monies as provided in Sub-clause 2.1.3 below; and

b) any amounts certified for payment on certificates previously issued; and

c) any amounts recoverable from the Contractor in accordance with this Contract.

2.1.3 R ETENTIONS

1) Retention Monies equal to ten percentile (10%) of the amount due to the Contractor

from time to time will be retained until the Employer holds five percentile (5%) of theContract Price.

2) The Retention Monies retained in accordance with Sub-clause 2.1.3 1) shall be held bythe Employer without obligation to invest them or account for interest thereon or to

place them in a designated account.

3) One half of the Retention Monies shall become due to the Contractor on the date ofissue of the Certificate of Completion for the whole of the Works or, in the event thatCertificates of Completion are issued for parts of the Works, on the date of issue of theCertificate of Completion for the last part of the Works.

4) Retention Monies will be retained and released in such specified foreign currency inaccordance with the foregoing provisions of this Sub-clause 2.1.3 5); and

5) At the completion of two year anniversary of the Services, save that the term of thisContract is not extended by the agreement of the parties.


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6) Notwithstanding the foregoing provisions of this Clause the Contractor may request forthe payment of the amount retained by submitting to the Employer a bank guarantee inthe sum equal to the amount of Retention Monies retained. The said bank guaranteemust by issued by a local bank in Hanoi Vietnam Bangkok in a form acceptable to theEmployer. The Employer shall return the bank guarantee to the Contractor within forty-five (45) days after the completion of the Services, as defined in Sub-clause 2.1.3 5).

insert payment schedulePlease break down the Election into Part A and Part Services


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3. PAYMENT OF ADDITIONAL SERVICES

Should OMC require the Contractor to provide additional work beyond that set out in thescope of the Services, staff time will be reimbursed at the following rates, which shall remain

effective up to [insert the date]:

Daily Rates for Additional Services

Support Team Position Daily Rate


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ANNEX 3

THE CONTRACTORS ORGANISATION STRUCTURE

The Contractor shall provide its organisation and responsibilities chart andidentify the period of each person performing part of the Services. The lattershall be in a form of Resource Schedule.

Op Services Subcont_Contract-March 2012

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Transcript of Op Services Subcont_Contract-March 2012