CP 3 vol 2 EN final

Tender Documents for Ho Chi Minh City Urban Railway Construction Project Ben Thanh - Suoi Tien Section (Line 1) CONTRACT PACKAGE-3: E&M, ROLLING STOCK, TRACKWORK, MAINTENANCE Volume General Conditions of Contract Particular Conditions of Contract Schedules January 2010 Management Authority for Urban Railways Ho Chi Minh City People’s Committee Final Tender Documents for Ho Chi Minh City Urban Railway Construction Project Ben Thanh - Suoi Tien Section (Line 1) CONTRACT PACKAGE-3: E&M, ROLLING STOCK, TRACKWORK, MAINTENANCE Composition of Documents Volume Notice of Invitation to Tender Instructions to Tenderers and Annexures Letter of Tender and Appendices Volume General Conditions of Contract Particular Conditions of Contract and Schedules Volume Employer's Requirements- General Specifications and Appendices Volume Employer’s Requirements – Particular Specifications Volume Employer’s Drawings Final Tender Documents for Ho Chi Minh City Urban Railway Construction Project Ben Thanh - Suoi Tien Section (Line 1) CONTRACT PACKAGE-3: E&M, ROLLING STOCK, TRACKWORK, MAINTENANCE VOLUME GENERAL CONDITIONS OF CONTRACT Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh - Suoi Tien Section (Line 1) General Conditions of Contract Package-3 E&M Rolling Stock Trackwork & Maintenance GENERAL CONDITIONS OF CONTRACT The General Conditions governing this Contract shall be the Conditions of Contract for EPC/Turnkey Projects, First Edition 1999 prepared by the Federation Internationale des Ingenieurs-Conseils (FIDIC) The General Conditions (GCC) are linked with the Particular Conditions of Contract (PCC) by the corresponding numbering of the Clauses, so that the GCC and the PCC together comprise the rights and obligations of the parties In the case of any discrepancy between the conditions contained in the GCC and the PCC, the conditions contained in the PCC shall prevail over the GCC A copy of the General Conditions will be attached prior to sale of the Tender Documents GCC Final Tender Documents for Ho Chi Minh City Urban Railway Construction Project Ben Thanh - Suoi Tien Section (Line 1) CONTRACT PACKAGE-3: E&M, ROLLING STOCK, TRACKWORK, MAINTENANCE VOLUME PARTICULAR CONDITIONS OF CONTRACT Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Particular Conditions of Contract Package – E&M, Rolling Stock, Trackwork, Maintenance PARTICULAR CONDITIONS OF CONTRACT TABLE OF CONTENTS GCC SubClause No Page 1.1 Definitions 1.4 Law and Languages 1.5 Priority of Documents 1.10 Employer’s use of Contractor’s Documents 1.13 Compliance with Laws 4.2 Performance Security 4.4 Subcontracts 4.8 Safety Measures 4.9 Quality Assurance 4.15 Access Route 4.18 Protection of the Environment 4.19 Electricity, Water and Gas 4.20 Employer’s Equipment and Free-issue Material 4.22 Security of the Site 4.23 Contractor’s Operations on Site 5.1 General Design Obligations 5.2 Contractor’s Documents 5.3 Contractor’s Undertaking 5.5 Training 6.5 Working hours 6.12 HIV Prevention Programme 7.1 Manner of Execution 8.3 Programme 8.3A Design Submission Programme 10 8.3B Three Months Rolling Programme 11 8.7 Delay Damages 11 11.2 Cost of Remedying Defects 11 11.9 Performance Certificate 11 11.12 Maintenance of the Works 11 11.13 Spares 12 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Particular Conditions of Contract Package – E&M, Rolling Stock, Trackwork, Maintenance 13.2 Value Engineering 12 13.3 Variation Procedure 12 13.3A Valuation of Variations 13 13.5 Provisional Sums 14 13.6 Daywork 14 13.8 Adjustments for Changes in Costs 14 13.9 Cost Centres 18 14.1 The Contract Price 18 14.2 Advance Payment 18 14.3 Application for Interim Certificates 19 14.6 Interim Payment 19 14.9 Payment of Retention Money 19 14.15 Currencies of Payment 19 14.16 Payment of Provisional Sums 19 18.1 General Requirements for Insurances 20 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Particular Conditions of Contract Package – E&M, Rolling Stock, Trackwork, Maintenance Particular Conditions of Contract These Particular Conditions of Contract add, amend, modify or delete Clauses contained in the General Conditions of Contract, and shall take precedence over those contained in the General Conditions of Contract GCC Sub-Clause No 1.1 Definitions Additional Sub- Clauses: Sub-Clause 1.1.1.6 “Schedules”, “Annexures” and “Annexes” means the documents entitled Schedules, Annexures and Annexes completed by the Contractor and submitted with the Tender and as included in the Contract Sub-Clause 1.1.1.7 “Design Data” means all specifications, plans, drawings, details, graphs, sketches, models, levels, setting-out dimensions, calculations duly checked by the Contractor and other documents relating to the design of the Works prepared or to be prepared by or on behalf of the Contractor Sub-Clause 1.1.1.8 “Drawings” means the Employer’s Drawings and the Drawings submitted by the Contractor and any modification of such drawings as may be required by the Design Review process Sub-Clause 1.1.1.9 “Interim Payment Schedule” means the schedule included for each Cost Centre in the Pricing Document and accepted by the Employer to be used for interim payments in relation to achievement of milestones under that Cost Centre, as the same may be revised from time to time in accordance with Clause 13 1.1.2.11 Insert new Sub-Clause “Author Supervision” means the supervision by the Designer, during the process of execution of building works aimed at ensuring that execution is correct in terms of the design Sub-Clause 1.1.3.1 “Base Date” means the day 28 days prior to the submittal of Tenders Sub-Clause 1.1.3.2 “Commencement Date” shall be the date given in the Employer’s “Notice to Proceed” which means the notice issued by the Employer to the Contractor communicating the date on which the Works are to be commenced Sub-Clause 1.1.3.3 “Time for Completion shall be 248 weeks after the Commencement Date, (with any extension under Sub-Clause 8.4 [Extension of Time for Completion]), Sub-Clause 1.1.3.7 Defects Notification Period means the period of 104 weeks for notifying defects in the Works or a Section (as the case may be) under Sub-Clause 11.1 [Completion of Outstanding Work and Remedying Defects], with any extension under Sub-Clause 11.3 [Extension of Defects Notification Period]), calculated from the date on which the Works or Section is completed as certified under Sub-Clause 10.1 [Taking Over of the Works and Sections] Sub-Clause 1.1.4.4 “Foreign Currency” shall mean Japanese Yen Sub-Clause 1.1 “Local currency” shall mean Vietnamese Dong Additional Sub-Clauses: Sub-Clause 1.1.7.1 “Schedule of Milestones” means the schedule included in each Cost Centre in the Pricing Document, describing the Milestones and stipulating dates by which the Milestones are to be achieved under that Cost Centre in order to maintain interim payments PCC 1/20 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Particular Conditions of Contract Package – E&M, Rolling Stock, Trackwork, Maintenance by the Employer to the Contractor in accordance with the Interim Payment Schedule for that Cost Centre, as the same may be revised from time to time in accordance with the Contract Sub-Clause 1.1.7.2 “Works Programme” means the programme showing the sequence, method and timing of investigations, design, issue of No Objection Notices, execution, manufacture, delivery to site, erection, installation, testing, commissioning of the Works (including Integrated Testing and Commissioning), and related activities in the form and content prescribed by the Employer’s Requirements, or any amended or varied version thereof, as submitted by the Contractor and for which the Employer’s Representative has issued a Notice of No Objection Sub-Clause 1.1.7.3 “Outline Environmental Plan” means the environmental plan forming part of the Tender, setting out in summary form, the Contractor’s proposed means of complying with his obligations in relation to environmental management as prescribed in the Employer’s Requirements Sub-Clause 1.1.7.4 “Outline Quality Plan" means the quality plan forming part of the Tender, setting out in summary form, the Contractor’s proposed means of complying with his obligations in relation to quality assurance as prescribed in the Employer’s Requirements Sub-Clause 1.1.7.5 “Outline Safety Plan” means the safety plan forming part of the Tender, setting out in summary form, the Contractor’s proposed means of complying with his obligations in relation to construction safety as prescribed in the Employer’s Requirements 1.4 Law and Languages Modify the Sub-Clause: The Law shall be that of Vietnam In addition, all the relevant regulations and decisions issued by the Ho Chi Minh City People’s Committee shall be applicable The Language of the Contract shall be English The Language for Communications shall be English and Vietnamese All Submissions shall be in English and translated into Vietnamese If there is discrepancy between English and Vietnamese or any other languages for communication and submission, English shall prevail 1.5 Priority of Documents 1.10 Employer’s use of Contractor’s Documents Insert a final paragraph to this Sub-Clause: The Form of Contract Agreement shall be in the format given in Schedule to these Particular Conditions of Contract Insert a final paragraph to this Sub-Clause: The Contractor shall at his own cost, for a period of ten years from the date of the issue of the Taking Over Certificate place into an agreeable and secure escrow account the source and executable codes, including all upgrades and developments, provided by the Contractor for the computer software developed and delivered under the Contract 1.13 Compliance with Laws Delete the first paragraph and replace with: The Contractor shall, in performing the Contract, comply with applicable Laws The Contractor is to note application of Decree 131/2006/ND-CP dated 09 November, 2006 and in particular Article – Basic principles of ODA Management and Utilisation – paragraph PCC 2/20 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) 4.2 Performance Security Particular Conditions of Contract Package – E&M, Rolling Stock, Trackwork, Maintenance Substitute the first sentence of the 2nd paragraph with the following: The Contractor shall deliver the Performance Security to the Employer within 28 days of receipt of the Notification of Contract Award and before the Contract Agreement becomes effective Insert the following Paragraphs after the second paragraph: Two Performance Securities shall be provided: The first Performance Security shall be for the performance of the Contracted Works from the Commencement Date to the issue of the Performance Certificate This shall be for the sum of ten percent (10%) of Contract Price stated in the Contract Agreement, and shall be expressed in the currencies and proportions in which the Contract Price is payable The Performance Security shall be forfeited if the Contractor refuses to execute the Contract after it becomes effective The second Performance Security shall be for the performance of the Maintenance Works from the date of Issue of the Taking Over Certificate until the Fifth anniversary of the issue of the Certificate This shall be for the sum of ten per cent (10%) of the Agreed Price for the Maintenance Works and shall be expressed in the currencies and proportions in which the Agreed Price is payable Insert further four paragraphs at the end of the Sub-Clause: Even if not described or stated in the Employer's Requirements and the Contractor's Technical Proposals, the Contractor shall carry out and complete the design of the Works, including the selection of specifications for the kind and standard of Plant, Materials and workmanship to be used therein The Contractor accepts entire responsibility for the Contractor's Technical Proposals, the Design Data, and for any mistake, inaccuracy, discrepancy or omission contained therein Nothing contained in the Contractor's Technical Proposals and the Design Data shall relieve the Contractor in any way from his obligations The Contractor warrants to the Employer that: (a) he has exercised and will continue to exercise in the design of the Works all the skill and care to be expected of a professionally qualified and competent designer experienced in work of similar nature and scope as the Works; (b) the Works will, when completed, comply in all respects with the Employer's Requirements, the Contractor’s Technical Proposals, the Design Data and the intended use of the Works; (c) the Works have been or will be designed, manufactured, installed and otherwise constructed and to the highest standards available using proven up-to-date good practice; (d) the Works will, when completed, comply with enactments and regulations relevant to the Works; (e) no Materials generally known to be deleterious or not in accordance with good engineering practice have been or will be specified or selected or incorporated in the Works, by the Contractor PCC 3/20 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance CONTRACTOR’S WARRANTY Brief Description of the Project: This is an Engineer, Procure and Construct Contract (EPC) for Construction of Contract Package of Line1 of the Ho Chi Minh City Urban Railway Construction Project The work comprises the design, construction, equipping, testing, commissioning (including Integrated Testing and Commissioning) for the Railway systems procurement contract including Railway E&M Systems for the entire Project, including Signalling System, Train Control System, Traction and Auxiliary Power Supply System and Substations, Telecommunications Systems and Operation Control Centre facilities, Track work, Depot Workshop and Equipment and Fare Collection System, etc., as well as the procurement of Rolling Stock These systems shall be installed in to the Underground section, from Ben Thanh Station (inclusive) to Ba Son Station (inclusive) on the south shore of Thi Nghe Creek (Contract Package 1), and the Elevated section from Ba Son Shipyard to Suoi Tien Depot (inclusive) and Depot (Contract Package 2) The Ba Son Station is the interface point for underground and elevated section The work includes the remedy any defect upon the terms and conditions contained in the Contract The Contract is a Fixed Price Lump Sum Contract By a Contract Package (E&M, Rolling Stock, Trackwork, Maintenance) dated [ ] ("the Contract") made between the Management Authority of Urban Railways ("the Employer") and the Contractor, the Contractor has agreed to perform the Works briefly described in the above Description Whereas at the request of the Employer and pursuant to the terms of the Contract the Contractor has agreed to enter into this Warranty The Employer and the Contractor agree as follows: The Contractor hereby warrants and undertakes that: (a) he will design, execute, complete, test and commission (including Integrated Testing and Commissioning) and remedy any defect in the Works in accordance with the terms of the Contract; and (b) he owes a duty of care to the Employer in relation to the performance of its duties under the Contract The liability of [the companies comprising the Contractor under this Warranty [shall be joint and several] and shall not be released, diminished or in any way affected by any independent inquiry or investigation into the Works or any matter related to the Contract whether carried out by or on behalf of the Employer or any liability or right of action which may arise out of such inquiry or investigation Insofar as the copyright or other intellectual property rights in any plans, calculations, drawings, documents, materials, plant, know-how and other information relating to the Works shall be vested in the Contractor, the Contractor grants to the Employer his successors and Sch4 2/3 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance assigns a royalty free, non-exclusive and irrevocable licence (carrying the right to grant sublicences) to use and reproduce any of the works designs or inventions incorporated and referred to in such documents or materials and any such know-how and information for all purposes relating to the Works including without limitation the design, manufacture, installation, completion, testing and commissioning (including Integrated Testing and Commissioning) reinstatement, extension and the remedy of any defect in the Works To the extent that beneficial ownership of any such copyright or other intellectual property rights is vested in anyone other than the Contractor, the Contractor shall use best endeavours to procure that the beneficial owner thereof shall grant a like licence to the Employer For the avoidance of doubt, any such licence granted shall not be determined if the Contractor shall for any reason cease to be employed in connection with the Works The provisions of this Warranty shall be without prejudice to and shall not be deemed or construed so as to limit or exclude any rights or remedies which the Employer may have against the Contractor, whether in tort or otherwise Nothing contained in this Warranty shall vary or affect the Contractor's rights and obligations under the Contract This Warranty shall be governed by and construed according to the laws for the time being in force in Vietnam Any dispute or difference of any kind whatsoever between the Employer and the Contractor arising under out of or in connection with this Warranty shall be referred to arbitration in accordance with the Conciliation and Arbitration rules set out in the General Conditions of Contract “Dispute” as defined in the Contract shall be deemed to include any such dispute or difference between the Employer and Contractor In Witness whereof the parties hereto have caused this Agreement to be executed the day and year first before written in accordance with their respective laws SIGNED by: _ SIGNED by: _ for and behalf of the Employer in the presence of for and on behalf of the Contractor in the presence of Witness: Witness: _ Name: Name: Address: Address: _ Date: Date: Sch4 3/3 _ _ Final Tender Documents for Ho Chi Minh City Urban Railway Construction Project Ben Thanh - Suoi Tien Section (Line 1) CONTRACT PACKAGE-3: E&M, ROLLING STOCK, TRACKWORK, MAINTENANCE VOLUME SCHEDULES TO THE CONDITIONS OF CONTRACT Schedule – Form of Warranty by System Integrator Sch5 1/5 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance FORM OF WARRANTY FOR SYSTEM INTEGRATOR Brief Description of the Project: This is an Engineer, Procure and Construct Contract (EPC) for Construction of Contract Package of Line1 of the Ho Chi Minh City Urban Railway Construction Project The work comprises the design, construction, equipping, testing, commissioning (including Integrated Testing and Commissioning) for the Railway systems procurement contract including Railway E&M Systems for the entire Project, including Signalling System, Train Control System, Traction and Auxiliary Power Supply System and Substations, Telecommunications Systems and Operation Control Centre facilities, Track work, Depot Workshop and Equipment and Fare Collection System, etc., as well as the procurement of Rolling Stock These systems shall be installed in to the Underground section, from Ben Thanh Station (inclusive) to Ba Son Station (inclusive) on the south shore of Thi Nghe Creek (Contract Package 1), and the Elevated section from Ba Son Shipyard to Suoi Tien Depot (inclusive) and Depot (Contract Package 2) The Ba Son Station is the interface point for underground and elevated section The work includes the remedy any defect upon the terms and conditions contained in the Contract The Contract is a Fixed Price Lump Sum Contract THIS AGREEMENT is made the day of BETWEEN: (1) [ and ] [whose registered office is at]/[of] [ (2) Management Authority for Urban Railways, (the Employer) ] ("the Designer"); 538 Ben Binh Dong Street, Ward 13, District Ho Chi Minh City Vietnam Whereas (a) By a Contract Package (E&M, Rolling Stock, Trackwork, Maintenance) dated [ ] ("the Contract") made between the Management Authority of Urban Railways ("the Employer") and the Contractor, the Contractor has agreed to perform the Works briefly described in the above Description (b) The System Integrator has had an opportunity of reading and noting the provisions of the Contract (other than details of the Contractor's prices and rates) (c) Pursuant to the Contract, the Contractor wishes to enter into an agreement with the System Integrator and the System Integrator agrees to the wishes of the Contractor (the Consultancy agreement) to carry out the Contractor's obligations under the Contract in relation to the design and functions ascribed to the System Integrator in the Contract Sch5 2/5 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance NOW IT IS HEREBY AGREED as follows: In consideration of the Employer not objecting to the Contractor and the System Integrator entering into the Consultancy Agreement, the System Integrator warrants and undertakes to the Employer that he has exercised and will continue to exercise all the skill and care to be expected of a professionally qualified and competent System Integrator experienced in work of similar nature and scope as the Works in carrying out the design of the temporary and Permanent Works and in performing the other duties and functions ascribed to him in the Contract The System Integrator agrees that, in the event of the termination of the Contract by the Employer, the System Integrator will, if so required by notice in writing given by the Employer, accept subject to Clause the instructions of the Employer or his appointee to the exclusion of the Contractor in respect of the carrying out and completion of the Works upon the terms and conditions of the Consultancy Agreement The System Integrator further agrees that he will not, without first giving the Employer not less than 21 days' previous notice in writing, exercise any rights it may have to terminate the Consultancy Agreement or to treat the same as having been as repudiated by the Contractor or to discontinue the performance of any duties to be performed by the System Integrator pursuant thereto The System Integrator's right to terminate the Consultancy Agreement or to treat the same as having been repudiated or to discontinue the performance thereof shall cease if, within such period of notice and subject to Clause 4, the Employer shall give notice in writing to the System Integrator requiring the System Integrator to accept the instructions of the Employer or his appointee to the exclusion of the Contractor in respect of the carrying out and completion of the Contract Works upon the terms and conditions of the Consultancy Agreement Any notice given by the Employer under Clause or shall state that the Employer or his appointee accepts liability for payment of the fees payable to the System Integrator under the Consultancy Agreement and for performance of the Contractor's obligations under the Consultancy Agreement, including payment of any fees outstanding at the date of such notice The Employer shall be entitled to assign the benefit of this Warranty at any time without the consent of the System Integrator being required All documents arising out of or in connection with this Warranty shall be served: (1) upon the Employer at his registered Office marked for the attention of the Chairman; (2) upon the System Integrator at [ ] The Employer and the System Integrator may change their respective nominated addresses for service of documents to another address in Ho Chi Minh City but only by prior written notice to each other All demands and notices must be in writing This Warranty shall be governed by and construed according to the laws for the time being in force in Vietnam Except to the extent (if any) expressly permitted by the Consultancy Agreement, the System Integrator shall not sub-contract any of the System Integrator's obligations under the Consultancy Agreement without the prior written consent of the Employer's Representative 10 Without prejudice to its obligations under this Warranty, the Contractor shall maintain with well established underwriters of repute and on terms and conditions reasonably acceptable to the Sch5 3/5 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance Employer, professional indemnity insurance (as per sub-clause 18.1 of the General Conditions of Contract) in respect of the Contractor and its sub-consultants for US Dollars Twenty-five million (US$ 25,000,000) in relation to the design of the Works for any one occurrence or series of occurrences arising out of any one event from the date of notification of acceptance until years after the issue of Performance Certificate for the whole of works The Contractor shall immediately inform the Employer if for any reason professional indemnity insurance is not maintained in accordance with this Warranty or becomes void or unenforceable 11 Insofar as the patent, copyright or other intellectual property rights in any Design Data (as defined in the Contract), plans, calculations, drawings, documents, materials, computer software, know-how and information relating to the Works shall be vested in the Contractor, the Contractor grants to the Employer his successors and assigns a royalty-free, nonexclusive and irrevocable licence (carrying the right to grant sub-licences) to use and reproduce any of the works designs or inventions incorporated and referred to in such documents or materials and any such know-how and information for all purposes relating to the Works (including without limitation the design, construction, reconstruction, completion, reinstatement, extension, repair and operation of the Works) To the extent beneficial ownership of any such patent, copyright or other intellectual property right is vested in anyone other than the Contractor, the Contractor shall use his best endeavours to procure that the beneficial owner thereof shall grant a like licence to the Employer Any such licence granted shall not be determined if the Contractor shall for any reason cease to be employed in connection with the Works 12 (1) Any dispute or difference of any kind whatsoever between the Employer and the System Integrator arising under out of or in connection with this Warranty shall be referred to arbitration in accordance with Clause 20 of GCC “Dispute” as defined in the Contract shall be deemed to include any such dispute or difference between the Employer and the Contractor (2) In the event that the Employer is of the opinion that the issues in such a dispute or difference will or may touch upon or concern a dispute or difference arising under out of or in connection with the Contract ("the Contract Dispute") then provided that an arbitrator has not already been appointed, the Employer may by notice in writing to the Contractor require and the Contractor shall be deemed to have consented to the referral of such dispute or difference to the arbitrator to whom the Contract Dispute has been or will be referred (3) Save as expressly otherwise provided, the arbitrator shall have full power to open up, review and revise any decision, opinion, instruction, notice, order, direction, withholding of approval or consent, statement of objection, determination, certificate, assessment or valuation by the Employer's Representative or the Contractor, relating to the dispute or difference Sch5 4/5 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance IN WITNESS whereof this Warranty has been executed as a deed on the date first before written THE COMMON SEAL of ) [Contractor ) ] was affixed hereto in ) the presence of:- ) Sch5 5/5 Final Tender Documents for Ho Chi Minh City Urban Railway Construction Project Ben Thanh - Suoi Tien Section (Line 1) CONTRACT PACKAGE-3: E&M, ROLLING STOCK, TRACKWORK, MAINTENANCE VOLUME SCHEDULES TO THE CONDIITONS OF CONTRACT Schedule 6– Form of Sub-Contractor’s Warranty Sch6 1/5 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance SUB-CONTRACTOR’S WARRANTY Brief Description of the Project: This is an Engineer, Procure and Construct Contract (EPC) for Construction of Contract Package of Line1 of the Ho Chi Minh City Urban Railway Construction Project The work comprises the design, construction, equipping, testing, commissioning (including Integrated Testing and Commissioning) for the Railway systems procurement contract including Railway E&M Systems for the entire Project, including Signalling System, Train Control System, Traction and Auxiliary Power Supply System and Substations, Telecommunications Systems and Operation Control Centre facilities, Track work, Depot Workshop and Equipment and Fare Collection System, etc., as well as the procurement of Rolling Stock These systems shall be installed in to the Underground section, from Ben Thanh Station (inclusive) to Ba Son Station (inclusive) on the south shore of Thi Nghe Creek (Contract Package 1), and the Elevated section from Ba Son Shipyard to Suoi Tien Depot (inclusive) and Depot (Contract Package 2) The Ba Son Station is the interface point for underground and elevated section The work includes the remedy any defect upon the terms and conditions contained in the Contract The Contract is a Fixed Price Lump Sum Contract THIS AGREEMENT is made the day of BETWEEN: (1) [ and ] [whose registered office is at]/[of] [ (2) Management Authority for Urban Railways, (the Employer) ] ("the Sub-Contractor"); 538 Ben Binh Dong Street, Ward 13, District Ho Chi Minh City Vietnam Whereas (a) By a Contract Package (E&M, Rolling Stock, Trackwork, Maintenance) dated [ ] ("the Contract") made between the Management Authority of Urban Railways ("the Employer") and the Contractor, the Contractor has agreed to perform the Works described briefly in the above Description (B) The Sub-contractor has had an opportunity of reading and noting the provisions of the Contract (other than details of the Contractor's prices and rates) (C) Pursuant to the Contract, the Contractor wishes to enter into an agreement with the Subcontractor ("the Sub-contract") for the Sub-contractor to carry out and complete a part of the Works as more particularly described in the Sub-contract ("the Sub-contract Works") (D) The Contract stipulates that the Contractor shall obtain the consent of the Employer's Representative before entering into the Sub-contract, and that the Contractor shall procure that the Sub-contractor executes a warranty agreement in favour of the Employer Sch6 2/5 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance NOW IT IS HEREBY AGREED as follows:1 In consideration of the Employer's Representative consenting to the Contractor and the Subcontractor entering into the Sub-contract, the Sub-contractor warrants and undertakes to the Employer that: (a) he will execute and complete the Sub-contract Works, and will carry out each and all of the obligations, duties and undertakings of the Sub-contractor under the Subcontract when and if such obligations, duties and undertakings shall become due and performable, in accordance with the terms of the Sub-contract (as the same may from time to time be varied or amended with the consent of the Employer); and b) he will supply to the Contractor and in specific cases wherever required to the Employer's Representative with all information as may be required from time to time in relation to progress of the Sub-contract Works The Sub-contractor undertakes to indemnify the Employer against each and every liability which the Employer may have to any person whatsoever and against any claims, demands, proceedings, loss, damages, costs and expenses sustained, incurred or payable by the Employer provided that the Sub-contractor shall have no greater liability to the Employer by virtue of this Warranty than the liability of the Contractor to the Employer under the Contract insofar as and to the extent that the same has arisen by reason of any breach by the Subcontractor of his obligations under the Sub-contract No allowance of time by the Employer hereunder or by the Contractor under the Sub-contract nor any forbearance or forgiveness in or in respect of any matter or thing concerning this Warranty or the Sub-contract on the part of the Employer or the Contractor, nor anything that the Employer or the Contractor may or omit or neglect to do, shall in any way release the Sub-contractor from any liability under this Warranty The Sub-contractor agrees that he will not without first giving the Employer not less than 21 day’s prior notice in writing exercise any right he may have to terminate the Sub-contract or treat the same as having been repudiated by the Contractor or withhold performance of its obligations under the Sub-contract (1) In the event that the Contract or the employment of the Contractor under the Contract is terminated for any reason whatsoever and if so requested by the Employer in writing within 21 days of such termination, the Sub-contractor shall carry out and complete his obligations under this Warranty and shall enter into a novation agreement with the Employer and the Contractor in which the Sub-contractor will undertake inter alia to perform the Sub-contract and be bound by its terms and conditions as if the Employer had originally been named as a contracting party in place of the Contractor The said novation agreement will be in such form as the Employer may reasonably require (2) In the event that the Employer does not require the Sub-contractor to enter into a novation agreement as required by Sub-clause 5(1), the Sub-contractor shall have no claim whatsoever against the Employer for any damage, loss or expense howsoever arising out of or in connection with this Warranty Insofar as the copyright or other intellectual property rights, in any plans, calculations, Sch6 3/5 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance drawings, documents, materials, know-how and information relating to the Sub-contract Works shall be vested in the Sub-contractor, the Sub-contractor grants to the Employer, his successors and assignees a royalty free, non-exclusive and irrevocable licence (carrying the right to grant sub-licences) to use and reproduce any of the works designs or inventions incorporated and referred to in such documents or materials and any such know-how and information for all purposes relating to the Works of the Urban Railway System – Line 1, without limitation the design, manufacture, installation, reconstruction, completion, reinstatement, extension, remedy of any defect of the Works To the extent beneficial ownership of any such copyright or other intellectual property right is vested in anyone other than the Sub-contractor, the Sub-contractor shall use best endeavours to procure that the beneficial owner thereof shall grant a like licence to the Employer For the avoidance of doubt, any such licence granted shall not be determined if the Sub-contractor shall for any reason cease to be employed in connection with the Sub-contract Works In the event of any ambiguity or conflict between the terms of the Sub-contract and this Warranty, the terms of this Warranty shall prevail The provisions of this Warranty shall be without prejudice to and shall not be deemed or construed so as to limit or exclude any rights or remedies which the Employer may have against the Sub-contractor whether in tort or otherwise Nothing contained in this Warranty shall vary or affect the Sub-contractor's rights and obligations under the Sub-contract 10 The Employer shall be entitled to assign the benefit of this Warranty at any time without the consent of the Sub-contractor being required 11 All documents arising out of or in connection with this Warranty shall be served: (1) upon the Employer at [ (2) upon the Sub-contractor, at [ ] , marked for the attention of [ ]; ] Japan 12 The Employer and the Sub-contractor may change their respective nominated addresses for service of documents to another address in Vietnam but only by prior written notice to each other All demands and notices must be in writing 13 This Warranty shall be governed by and construed according to the laws for the time being in force in Vietnam 14 (1) Any dispute or difference of any kind whatsoever between the Employer and the Subcontractor arising under out of or in connection with this Warranty shall be referred to arbitration in accordance with the Arbitration as described in the Contract (2) In the event that the Employer is of the opinion that the issues in such a dispute or difference will or may touch upon or concern a dispute or difference arising under out of or in connection with the Contract ("the Contract Dispute") then provided that an arbitrator has not already been appointed pursuant to Clause 14(1), the Employer may by notice in writing to the Sub-contractor require and the Sub-contractor shall be deemed to have consented to the referral of such dispute or difference to the arbitrator to whom the Contract Dispute has been or will be referred (3) Save as expressly otherwise provided, the arbitrator shall have full power to open up, Sch6 4/5 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance review and revise any decision, opinion, instruction, notice, order, direction, withholding of approval or consent, determination, certificate, statement of objection, assessment or valuation by the Employer's Representative or the Contractor relating to the dispute or difference IN WITNESS whereof this Warranty has been executed as a deed on the date first before written THE COMMON SEAL of [ ] ) ) was affixed hereto in ) Sch6 5/5 Final Tender Documents for Ho Chi Minh City Urban Railway Construction Project Ben Thanh - Suoi Tien Section (Line 1) CONTRACT PACKAGE-3: E&M, ROLLING STOCK, TRACKWORK, MAINTENANCE VOLUME SCHEDULES TO THE CONDITIONS OF CONTRACT Schedule – Form of Bank Guarantee for Advance Payments Sch7 1/3 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance FORM OF BANK GUARANTEE FOR ADVANCE PAYMENTS Brief Description of the Project: This is an Engineer, Procure and Construct Contract (EPC) for Construction of Contract Package of Line1 of the Ho Chi Minh City Urban Railway Construction Project The work comprises the design, construction, equipping, testing, commissioning (including Integrated Testing and Commissioning) for the Railway systems procurement contract including Railway E&M Systems for the entire Project, including Signalling System, Train Control System, Traction and Auxiliary Power Supply System and Substations, Telecommunications Systems and Operation Control Centre facilities, Track work, Depot Workshop and Equipment and Fare Collection System, etc., as well as the procurement of Rolling Stock These systems shall be installed in to the Underground section, from Ben Thanh Station (inclusive) to Ba Son Station (inclusive) on the south shore of Thi Nghe Creek (Contract Package 1), and the Elevated section from Ba Son Shipyard to Suoi Tien Depot (inclusive) and Depot (Contract Package 2) The Ba Son Station is the interface point for underground and elevated section The work includes the remedy any defect upon the terms and conditions contained in the Contract The Contract is a Fixed Price Lump Sum Contract Name and address of Beneficiary (whom the Contract defines as the Employer) We have been informed that _ (hereinafter called the “Principal”) is your contractor under such Contract and wishes to receive an advance payment, for which the Contract requires him to obtain a guarantee At the request of the Principal, we (name of bank) hereby irrevocably undertake to pay you, the Beneficiary/Employer, any sum or sums not exceeding in total the amount of _ (the “guaranteed amount”, say: ) upon receipt by us of your demand in writing and your written statement stating: (a) (b) that the Principal has failed to repay the advance payment in accordance with the conditions of the Contract, and the amount which he Principal has failed to repay This guarantee shall become effective upon receipt [of the first instalment] of the advance payment by the Principal Such guaranteed amount shall be reduced by the amounts of the advance payment repaid to you, as evidenced by your notices issued under sub-clause 14.6 of the conditions of the Contract Following receipt (from the Principal) of a copy of each purported notice, we shall promptly notify you of the revised guaranteed amount accordingly Sch7 2/3 Final Ho Chi Minh City Urban Railway Construction Project Ben Thanh – Suoi Tien Section (Line 1) Schedule to the Conditions of Contract Package-3: E&M, Rolling Stock, Trackwork, Maintenance Any demand for payment must contain your signature(s) which must be authenticated by your bankers or by a notary public The authenticated demand and statement must be received by us at this office on or before (the date 70 days after the expected expiry of the Time for Completion) _ (the “expiry date”), when this guarantee shall expire and shall be returned to us We have been informed that the Beneficiary may require the Principal to extend this guarantee if the advance payment has not been repaid by the date 28 days prior to such expiry date We undertake to pay you such guaranteed amount upon receipt by us, within such period of 28 days, of your demand in writing and your written statement that the advance payment has not been repaid and that this guarantee has not been extended This guarantee shall be governed by the laws of the Socialist Republic of Viet Nam and shall be subject to the Uniform Rules for Demand Guarantees, published as number 458 by the International Chamber of Commerce, except as stated above Date Signature(s) Sch7 3/3 Final ... Maintenance 13. 2 Value Engineering 12 13. 3 Variation Procedure 12 13. 3A Valuation of Variations 13 13. 5 Provisional Sums 14 13. 6 Daywork 14 13. 8 Adjustments for Changes in Costs 14 13. 9 Cost Centres... Environment 4.19 Electricity, Water and Gas 4 .20 Employer’s Equipment and Free-issue Material 4 .22 Security of the Site 4. 23 Contractor’s Operations on Site 5.1 General Design Obligations 5 .2. .. Schedules Volume Employer's Requirements- General Specifications and Appendices Volume Employer’s Requirements – Particular Specifications Volume Employer’s Drawings Final Tender Documents for