HANOI URBAN RAILWAY CONSTRUCTION PROJECT LINE 2 (I) OPERATIONS AND MAINTENANCE SUPPORT CONTRACT

HANOI METROPOLITAN RAILWAY TRANSPORT PROJECT BOARD OPERATIONS AND MAINTENANCE SUPPORT SERVICES 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 2012

HANOI URBAN RAILWAY CONSTRUCTION PROJECT LINE 2 (I) OPERATIONS AND MAINTENANCE SUPPORT CONTRACT

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 2.2 2.3 2.4 2.5 NATURE AND OBJECTIVE OF THE CONTRACT.....................................................9 GENERAL RESPONSIBILITIES.....................................................................9 WARRANTIES....................................................................................9 EXCLUSIVITY....................................................................................9 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 Draft-Ops&Maint Support Services
2 15th March 2012

HANOI URBAN RAILWAY CONSTRUCTION PROJECT LINE 2 (I) OPERATIONS AND MAINTENANCE SUPPORT CONTRACT 16. DISPUTE RESOLUTION...................................................................13 16.1 PANEL.......................................................................................13 16.2 REFERENCE TO ARBITRATION................................................................14 16.3 ARBITRATION................................................................................14 17. LANGUAGE....................................................................................14 1. SCOPE OF SERVICES.......................................................................16 2. CONTRACTORS CONTRACT TASKS RELATED TO OPERATION AND MAINTENANCE....................................................................................18 2.1 2.2 2.3 2.4 2.5 PREPARATION OF PARTICULAR MANAGEMENT PLANS..........................................18 PREPARATION OF STANDARD OPERATIONS PROCEDURES (SOPS)............................18 CO-OPERATION WITH EMPLOYER IN THE EXECUTION OF OVERSEAS TRAINING MODULES......18 TRAINING AND TRANSFER OF KNOWLEDGE/SKILLS............................................19 OTHER KEY TASKS...........................................................................20

1. CONTRACT PRICE, PAYMENT AND PAYMENT BREAKDOWN:...............21 1.1 CONTRACT PRICE .............................................................................21 PAYMENT...........................................................................................21 2.1 PAYMENT STATEMENTS........................................................................21 2.1.1 INTERIM STATEMENTS...............................................................................................21 2.1.2 CERTIFICATION FOR INTERIM PAYMENT...........................................................................21 2.1.3 RETENTIONS..........................................................................................................21 3. PAYMENT OF ADDITIONAL SERVICES ..............................................23 THE CONTRACTORS ORGANISATION STRUCTURE.................................24

Draft-Ops&Maint Support Services

15th March 2012

THIS CONTRACT is made the BETWEEN:

(1)

day of

2016

Operations and Maintenance Company a company established under the laws of Vietnam whose principal office is at [ ] Hanoi Vietnam (the OMC); and [ [ [
WHEREAS

(2)

], a company established under the laws of whose principal office is at ] (the Contractor).

(A)

(B)

(C)

(D)

(E)

(F)

The Hanoi Metropolitan Railway Transport Project Board (HRB) was established under the Hanoi People Committee (HPC) for the design, manufacture, supply, installation, testing and commissioning of the Hanoi City Urban Railway Construction Project (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 Section CPA003 with three (3) Elevated Stations and all Building Services; the E&M Core Railway Systems CPA004; and a Maintenance Contract for the maintenance of the E&M System and the Depot CPA005 including all M&E Building and Maintenance Equipment (the Railway Systems) under the said Prime Contracts; 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 Contract CPA004 [E&M core Systems]; Pursuant to the OMCs obligations for the Operations and maintenance of the Railway System the OMC requires the support of an experienced M&E Equipment suppliers and/or operations with additional experience in developing, implementing and supervising training of unskilled personnel in the pursuance of operations and maintenance; The Contractor purports to have the skills and resource to support the OMCs railway operations the respective resources to perform operations obligations and develop, perform and supervise the training of the OMCs unskilled personnel (hereinafter referred to, collectively, as the Services) and has offered to perform the Services in accordance with HRBs invitation to bid and the Election specified therein; 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 has agreed to award the Services as further described herein to the Contractor pursuant to this Contract; The OMC has entered into Maintenance Contract with E&M Systems Contractor who is solely responsible to the OMC for the performance of he Maintenance of the E&M Systems 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

Contract

Civil Infrastructure Contract(s)

Civil Works

Infrastructure

Commercial Operations Date (COD)

Contract Spares

Designated Contracts

Designated Contractor

Employer Employers Requirements

E&M Systems

which shall be provided by the Contractor on request by the OMC; 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 of this Contract shall prevail; means each of the completed Civil Infrastructure Works by Prime Contract CPA001 [Underground Section with three (3) Stations, Lifts and Escalators, Building Services, Environmental Control System, Tunnel Ventilation and Shafts and completed interface 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 Shafts and completed interface requirements with the E&M Prime Contract Works], Civil Prime Contract CPA003 [Elevated Section with three (3) Stations, Lifts and Escalators, Building Services and completed interface requirements with the E&M Prime Contract Works], Civil Prime Contract CPA005 [Depot with all Buildings, Lifts, Maintenance Workshop, and ancillary buildings, Building Services and completed interface requirements with the E&M Prime Contract Works]. Each of the above, including the E&M Prime Contract CPA004 are referred to as the Designated Contracts and the Designated Contractors therefore; means all of the works designed and constructed by the Designated Contractors CPA001, CPA002, CPA003 and CPA005; means the date stated in the Notice of No Objection by the Transit Authority (or the Vietnamese National Railway Authority (VNRA) as the case may be) to Revenue Services to provide service to the fare paying public over the whole of the Railway System; means the set of spares procured by the OMC, from selected Designated Contractors under the terms of an agreed Supply Agreement, and made available to the Maintenance Contractor under the Maintenance Contract; means the contracts between the Employer and each of the Designated 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]; means either or all of the Designated Contractors their joint venture and/or consortium responsible to the Employer for the performance of the Designated Contract and the completion of the Project Works as defined in the respective Contracts; means the Hanoi Metropolitan Railway Transport Project Board, its successors and assigns; Means the Volume 3 to the Designated Contracts that sets-out the specific requirements of the Employer for the design, manufacture, supply, construction, commission, test and integration tests for the Project Works and the operations and maintenance of the Railway System; means all Systems and/or Sub-systems and equipment designed, manufactured, supplied, installed, tested and commissioned

under the Designated Contract CPA004 and includes Rolling Stock, Signalling, Communications Based Train Control (CBTC), and Communication equipment, Power Supply, (inclusive of Traction Power System (TPS), Overhead Catenary System (OCS) and SCADA), Automatic Fare Collection, Platform Screen Doors, Supervisory Control and Data Acquisition, Control Centre equipment, software, Depot Maintenance Equipment and special tools but excluding the Escalators and Elevators, and Station Building Services forming part of the M&E Equipment; Fee means the fees payable to the Contractor as described in Schedule 1; Force Majeure Means, as provided in Clause 23, any event the happening or pernicious results of which could not be prevented even though a person against whom it happened or threatened to happen were to take such appropriate care as may be expected from a person in his position or situation; Integrated System means a series of tests and a period of test running to combine Testing and integrate the various systems within the E&M Systems and the M&E Equipment under the Civil Infrastructure Contracts; M&E Equipment means all Station building facilities and Underground Tunnel Environmental Control System, Tunnel Ventilation Shafts and systems designed, manufactured, supplied, installed, tested and commissioned under the Designated Contracts CPA001, CPA002, CPA003 and CPA005 Depot (including all Building Services buildings for the Administration Building and other ancillary buildings, Station Lifts and Escalators, and Building Services, Environmental Control System, Tunnel Ventilation and Shafts); Maintenance means tools, jigs, fixtures, depot plant and machinery, vehicles, Equipment testing and other special equipment provided under the Designated Contracts CPA001, CPA002, CPA003, CPA004 and CPA005 and handed over by the OMC to the Contractor, as may be required from time to time, for use in the performance of the Services; Maintenance Services means the Services relating to the maintenance of the Railway System to be provided by the Maintenance Contractor pursuant to the maintenance Contract; Maintenance Services means the plan developed by the Maintenance Contractor, from Plan the Designated Contractors Maintenance Plan; Maintenance Support Means the services offered (as an Election) by the Designated Services Contractors to the Employer or OMC to ensure the operations and maintenance of the M&E Building Services, Environment Control, Tunnel Ventilation and Shafts are supported, as the OMC may require, for a period of two (2) years following date of Taking-Over of the Designated Contract(s) Works and whereby the Employer or OMC have accepted the Designated Contractors offer and entered into a separate Maintenance Support Services Contract (hereinafter referred to as Support Services Contract), as defined in the Employers Requirements Appendix 15 and 16. Such Maintenance Support Services are divisible to the Designated Contractors Defect Notification obligation under the Designated Contract; Notice of No Objection means a notice issued by the Transport Authority or the to Revenue Service Employer to the OMC evidencing that the Employer under the Designated Contracts has completed the Designated Contract

Works and there has no objection to the commencement of Revenue 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 time by the OMC under Clause 15; Operations and Designated Contractors operations and maintenance manuals Maintenance Manuals provides all relevant instruction manuals and special directions or recommendations from the relevant Designated Contractors Subcontractors, manufacturers and Suppliers of any E&M Systems and M&E Equipment or parts thereof so as to provide the Employer and the OMC (Railway Operator) with such detail and information as is necessary for use by the OMC, the Maintenance 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 Subsystems as a complete Railway System; Operating Procedures means a set of controlled documentation developed by the Designated Contractors in accordance with the Employers Requirements Appendix 15 Clause 2.3 that are made available by the Employer to the OMC for use by the OMCs personnel engaged on the operation of the Railway System. Such will include certain standard operating procedures (SOP); Project Works means the whole of the Hanoi City Urban Railway Construction Project Line 2 (I) Works (Nam Thang Long-Tran Hung Dao Section) as designed, supplied, constructed, installed, tested, commissioned and integrated with each Designated Contract Works therefore making up the whole of the Railway System. Provisional Acceptance means the acceptance of the E&M Works and each of the Designated Contractors Civil Infrastructure Works are complete, except for minor omissions that: a) do not prevent the Project Works from being reasonably capable of being used for their intended purpose, and b) in relation to which the Engineer has determined that the Project Works fulfils the requirements of the Designated Contracts, and c) rectification of the minor omissions will not prejudice the Employers convenient use of the Project Works, and d) the Integration Systems Test, that are required by the Designated Contracts, have been passed and the Project Works can be handed over to the Employer for the purpose of the Employers Trial Run; and that will allow the Trial Run to commence; Railway COD means the date on which the first Stage of the Railway System commences to provide revenue operations; Railway System means the Employers Railway System, consisting of the Civil Infrastructure Works, the whole of the M&E Equipment, the E&M Systems the Depot Administration Building, Workshop and all Trackwork for the Depot Stabling of Trains and the Elevated 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 Km 7+215 encompassing three (3) Underground Stations (C4, C5 C6), 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

Revenue Service

Rule Book

Scheduled Service

Services

Spares Supplementary Spares

Support Service Trackwork Trial Run

Working Timetable Works

required to be periodically repaired by the Maintenance Contractor so as to maintain the E&M Systems and M&E Equipment in normal operating condition; means the placement in service of the entire Railway System for public use for which carriage at the published fare rates in accordance with the Vietnamese law and regulative Authorities that govern the OMC under the Shareholders Agreement; means the general safety instructions and code of behaviour set down 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 the contents are understood and will be obeyed at all times; means the provision of a Revenue Service according to a predetermined Working Timetable between the hours of 05:00 and midnight including a morning peak period from 06:00 to 09:00 and an evening peak period from 16:30 to 20:30; means the operations and maintenance support Services under this Contract, the Additional Services and all preparations necessary thereto including the hiring and training of personnel and the assistance to the OMC and/or the Maintenance Contractor; means all spare and replacement parts and consumable items required for the E&M Systems and M&E Equipment including Contract Spares and Supplementary Spares. means those spares and consumables procured by the Maintenance Contractor to supplement the OMC Spares in order to perform the Maintenance Services as deemed necessary by the Maintenance Contractor; means the Contractor engaged by OMC to support the OMC with its operations and/or maintenance under this Contract; means the complete works carried out by the E&M Designated Contractor for Trackwork including all track slab, rail, sleepers, turnouts, crossings, fastenings, ballast, and plinths; means the operation of the Railway System to simulate operation and emergency procedures in public service, with the exception that fare-paying passengers are not carried. The period of Trial Run will commence upon the Employers notice that Provisional Acceptance has been provided to the E&M Designated Contractor and therefore verifying the Integrated Systems Test are complete and ready to commence Trial Run. The Trial Run will be a period of not less than three-months from the date of Provisional Acceptance; means the train timetable used by the OMC to provide timing and details of train movements which is not available to the general public; means the whole of the Civil Infrastructure Works, the M&E Equipment and the E&M Systems as installed and integrated by each Designated Contractors.

1.2
i) ii) iii)

INTERPRETATION
In the interpretation of this Contract, unless the context otherwise requires:references to particular Clauses, Sub-clauses or Schedules are to Clauses, Sub-clauses or Schedules of or to this Contract; day shall include public holidays, Saturdays and Sundays; person includes a company or a partnership;

iv) v) vi)

the singular includes the plural and vice versa; words importing any gender include every gender; the headings are inserted for convenience only and are to be ignored for the purposes of construction; and vii) the word including shall be construed without limitation.

2. 2.1

SUPPORT CONTRACTORS OBLIGATIONS NATURE AND OBJECTIVE OF THE CONTRACT

The obligation of the Contractor under this Contract is to ensure it understands the requirements of the OMC and the OMCs Maintenance Contractor respective to Operations, Maintenance and Training obligations expressed as the Contractors obligations for: (a) the collation, checking of the Operation, Maintenance and Training Plans including all documentations as provided by the Designated Contractors for the successful operation and maintenance of the Railway System which includes but not limited to Operations and Maintenance Manuals, operating procedures, AsBuilt Drawings etc.; (b) support to Designated Contractors to fulfil their obligations with respect to the completion of the Designated Contract Works Integrated Testing and the Trial Running that allows the OMC to receive the Notice of No Objection for Revenue Service from the Transit Authority for Revenue Service and as defined herein; (c) to provide all required documentation on organisational structure and resources in accordance with the requirements to carry out the selection, designation and training of appropriate personnel in the required times subject to the satisfaction of the OMC and hired by the OMC for the operation and maintenance of the Railway 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 ignited Taking-Over of the Civil Infrastructure Works of each Designated Contract, as expressed in the Designated Contracts; (e) to advise on other matters connected with the M&E Equipment as may be deemed necessary 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 the Works the Contractor shall undertake the performance of this Contract from the date hereof until fulfilment of its obligations as expressed Clause 2.1 item (d).

2.3

WARRANTIES
The 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 engineer in the operations and maintenance of the M&E Equipment. The Contractor shall carry out the Services for the OMC at such times and at such locations 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 terms and conditions of this Contract. During the term of this Contract (or such other term as may be agreed by the parties hereto) the Contractor shall not provide any services relating to the Railway System to any third party, directly or indirectly, separately or in combination with others, in the development or execution of the Railway System.

2.5

CONTRACTORS REPRESENTATIVE
The Contractor shall designate a representative who will act as the prime contact and interface point with the OMC. The designation of such representative shall be subject to the written approval of the OMC. The Contractor shall make no change to its representative without the prior written consent of the OMC whose consent shall not be unreasonably withheld. Any replacement shall be of equivalent standing, experience and qualifications.

3 PAYMENT FOR THE SERVICES 3.1 In consideration for the performance of the Services, the OMC shall pay the Contract
Price to the Contractor. The Contract Price is a lump sum fee which shall constitute the Contractors sole remuneration in connection with this Contract and the Contractor agrees that it has satisfied itself completely that the Contract Price shall cover any and all of the Contractors costs and expenses including accommodation expenses and air fares, obligations and liabilities, incurred in the performance of the Services. The Contractor shall be responsible for the payment of any and all duties, charges or taxes incurred in or outside Vietnam by the Contractor, its personnel, its consultants and subcontractors their personnel in relation to the performance of the Services. At the end of each month that entitles the Contractor to payment, the Contractor shall prepare and issue to the OMC an invoice amounting to sum stated in the Interim Payment Schedule indicated in Annex 2. Payment shall be made within sixty (60) days of 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 withholding

3.2 3.3

tax, deduction, levy or retention required by law. 4. TERMINATION 4.1 Without limitation the OMC may by notice in writing immediately terminate this
i) Contract if: (a) the Contractor: has abandoned the Contract; ii) failed to commence the Services in accordance with the Conditions of this Contract; iii) is in breach of any of the terms of this that, in the case of a breach capable of remedy, shall not have been remedied by the Contractor within fourteen (14) days of receipt by the Contractor of a written notice from the OMC specifying the breach and requiring its remedy; iv) be incompetent, guilty of gross misconduct and/or any serious or persistent negligence in the performance of the Services; v) fail or refuse after written warning to perform the Services with due diligence and properly required of him hereunder; or (b) the OMC terminates this Contract. 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 the OMC: i) all rights in information produced by or on behalf of the Contractor pursuant to this Contract (the Deliverables); and ii) all documents and materials including software of whatever kind in its possession 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;

4.2

4.3

4.4

any payment due to the Contractor shall be reduced by, and subject to the OMC right to set-off against such payment, any loss or damage suffered or incurred by the OMC as a result of the Contractors breach; and (c) the restrictions upon the Contractor referred to in Clause 2.4 shall continue for one (1) year from the date of termination. 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 all further 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. The Contractor shall submit to the OMC an invoice detailing the substantiated performance of the Services up to the date of termination and the nature of any associated disbursements. The termination of this Contract shall not prejudice or affect the continued rights and obligations or claims and liabilities of the Parties accrued prior to termination.

(b)

5. SUSPENSION 5.1 The OMC shall have the right, by written notice to the Contractor to suspend the 5.2
Services forthwith. In the case of a suspension of the Services for whatever cause that continues for more than two- months, the Contract may be terminated upon written notice of any party hereto.

6. CONFIDENTIAL INFORMATION 6.1 In this Contract "Information" shall mean all commercial, financial, technical, operational
or other information appertaining in any way to the Railway System as has been or may be disclosed or otherwise made available by the OMC to the Contractor or to any person on the 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 being referred 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 evidenced by the written records of the Contractor, and which the Contractor was entitled to use; or (b) at the time of disclosure is in the public domain other than by reason of a breach of duty of this Contract; or (c) after disclosure becomes generally available to third parties by publication or otherwise, other than by reason of a breach of duty or of this Contract. Any disclosure of Information shall be solely for the purpose of assisting the Contractor to 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. 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 the Services) unless the prior written consent of the OMC has been obtained in relation to such disclosure. Save only to the extent that the Contractor or any third party has pre-existing rights in any Information, it shall remain the absolute property of the OMC and all documents, tapes, discs, films, photographs, models and other media embodying Information shall be returned to the OMC by the Contractor on demand together with all copies of it. The Contractor shall not make any copies of or duplicate in any way in whole or in part any Information without the prior written agreement of the OMC and where such copies or reproductions are permitted in accordance with this Clause the Contractor shall treat them strictly in accordance with the provisions of this Contract and comply with the

6.2
6.3

6.4

6.5

6.6

6.7

6.8

instructions of the OMC with regard to the protection and disposal of them. The Contractor shall return the originals and all copies to the OMC promptly upon the request of the OMC. The Contractor shall ensure that any director, representative, employee, officer, agent or other person to whom Information has been disclosed by, or otherwise as a result of disclosure to, the Contractor shall maintain the confidential nature of the Information as if he or she had entered into an agreement with the OMC in respect of it on the same terms mutatis mutandis as the terms contained in this Contract. Nothing in this Contract shall be construed or interpreted as obliging the OMC to furnish any Information to the Contractor or to furnish Information in any form nor granting to the Contractor any right or licence under or in relation to any Information. The obligations contained in this Clause 6 shall be in addition to and not in substitution for any duties at law. The said obligations shall continue in full force and effect for five-years following the termination or expiry of this Contract, notwithstanding that all or part of the documents, materials or other things embodying Information shall have been returned to the OMC or that the purpose for which Information 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 its obligations in a timely manner or from any of its liabilities or obligations in respect of the Services.

8.

FORCE MAJEURE
Any party hereto shall be relieved from liability under or in connection with this Contract to the extent that its failure to perform any or all of its obligations has been caused 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 or labour disputes.

9.

INSURANCE
Without limiting the Contractors obligations, responsibilities, and liabilities under this Contract, the Contractor shall effect and maintain at its own expense for a period of not less than ten (10) years from the date hereof Professional Indemnity Insurance with a sum insured of no less than USD 10,000,000. This insurance shall be required only for the 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 shall be in writing and shall be served by sending the same by registered post or recorded delivery 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 any such 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 document executed in connection herewith is found by any court of law with the jurisdiction over

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

13. ASSIGNMENT
The Contractor shall not assign its rights or obligations arising under this Contract without the prior written consent of OMC.

13. AMENDMENT
No amendment of, or addition to this Contract shall be effective unless in writing and signed 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 with any 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 other party. 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 of Vietnam 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 certify or make payment shall be subject to the right of the Maintenance Contractor to apply under this Clause for review by a group of three people acting as a panel (the Panel). The provisions of this Clause 16.1 shall govern the appointment and conduct of the Panel. 16.1.2 The OMC and the Maintenance Contractor shall each appoint one member of the Panel and shall jointly appoint the third member. The decisions of the Panel shall be unanimous between all three members. 16.1.3 The Panel shall, within twenty-eight (28) days of a reference to it, endeavour to facilitate agreement between the parties, or failing this, shall submit a written decision. 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. If requested by either party the Panel shall confirm in writing that there are no circumstances likely to give rise to any justified doubts as to his impartiality or independence. 16.1.5 The Panel shall be deemed not to act as an arbitrator and is not obliged to follow any particular 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 disbursements commensurate 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, the Maintenance Contractor shall continue to proceed with the Services in accordance with the Contract and both parties shall promptly give effect to every decision of the Panel unless and until it shall be revised in an amicable settlement or an arbitral award as 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

received the Panel's decision, then the decision shall become final and binding upon both parties. 16.1.9 If either party is dissatisfied with the Panel's decision, then either party may, within twenty-eight (28) days after receiving the decision, give notice of arbitration to the other party of its dissatisfaction. If the Panel fails to give its decision within twentyeight (28) days after receiving the initial reference, then either party may, within twenty-eight (28) days after the first period of twenty-eight (28) days has expired, give notice of arbitration to the other party. 16.1.10 Where notice of arbitration has been given under Clause 16.1.9, both parties shall attempt to settle the dispute amicably before the commencement of arbitration in accordance 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 in Clause 16.3. 16.1.12 The OMC and the Maintenance Contractor undertake to each other and to the Panel that the Panel shall not, except as otherwise agreed in writing by the OMC and the Maintenance 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 purported discharge of the Panel's functions, unless the act or omission is shown to have been in bad faith.

16.2 REFERENCE TO 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 in accordance with Clause 16.1 shall be subject to arbitration in Vietnam. Such arbitration shall take place in the English language. The arbitration shall be conducted by three arbitrators, one appointed by the OMC, one appointed by the Maintenance Contractor and the third appointed jointly by the OMC and the Maintenance Contractor or, in default of agreement, appointed by the president for the time being of the London Court of International Arbitration. Such arbitration shall be carried out in accordance with the UNCITRAL Rules, shall apply the substantive and procedural laws of Vietnam and shall 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 Parties are 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. The arbitration award shall be binding on the Parties. The place of arbitration shall be Geneva, the language of the proceedings shall be in English.

17. LANGUAGE
The English language shall be the governing language of the Contract. All correspondence, notices or other documents required or permitted hereunder shall be drawn up in the English language and drawings and diagrams shall be annotated in English. 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 and notices to passengers and staff shall be provided both in the English language, and,

except when expressly provided to the contrary in the Specification, in the Thai language.

IN WITNESS WHEREOF the parties have caused this Contract to be executed by their
duly authorised representatives as follows, in three (3) original copies, each party receiving one (1) original.

For and on behalf of OMC Name __________________________ Position Signature __________________________

For and on behalf of Name ___________________________ Position Signature __________________________

For and on behalf of Name ____________________________ Position Signature ___________________________ Name ____________________________ Position Signature___________________________

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 [], the OMCs Letter of Acceptance and the OMCs Letter of Award. In case of conflict between these documents the OMCs Letter of Acceptance shall take precedence.
1.2 In support of the above this Annex 1 details the specified support tasks to the OMC related to the Hanoi City Urban Railway Project Nam Thang Long-Tran Hung Dao Section (the Project Line 2 (Phase I)) that ensures a smooth transfer of the Project Works from the Employers Provisional Acceptance to the OMC (Project Line 2 Operating Company); following the completion of a certified Trial Running period. The Employers General Consultant will provide supporting plans to assist this smooth transition as well as to obtain the Railway Operations Certificate from the Vietnamese National Railway Authority (VNRA). The Contractors support to the Employer according to the above resulted from its offer to the Employer, by means of a Bid Election, to perform certain operations and Maintenance services for the OMCs consideration and the possible negotiation of a Support Services Contract with the OMC. Therefore, the Contractor will, in cooperation with the Employer, offer (refer to the Election in the Bidding DocumentsInstructions to Bidders Part 4) specific technical experience to transfer technology, skills, training and support to the OMC related to the operations and maintenance of all Civil Infrastructure Works and the M&E Equipment supplied and installed by the Designated Contractors under the Designated Contracts.. Such requirements were specified in Volume 3 [Employers Requirements] Appendix 15 and Appendix 16. 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 requires the Contractor to provide a separate obligation, in addition to its Defects Notification Liability, to undertake operations and/or maintenance services under two distinct activities, as defined below: Execution Body and Period The Contractor For two-years: 1. Period one relates to the Maintenance of the Environmental Control System 2. The Operations and Maintenance Support Services General scope of the Contractors Services The Contractor will be responsible under period 1 for the maintenance of the Environmental Control System from the date of the Employers Taking-Over of the same until COD. Under period 2 the Contractor shall be responsible for operations and Maintenance support to OMC Objectives to be applied Environmental Control System for underground Stations and Tunnel specified in sub-clause 22.1.2, Volume 4 Outline Design Specifications as well as the M&E Equipment. Spares for the correction of the Designated Contractors Defects shall remain the Designated Contractors obligation.

1.3

1.4

Type of Execution Type-A

Type of Execution Type-B

Execution Body and Period OMC For two-years after issuing the TakingOver Certificate

General scope of the Contractors Services The Contractor will provide supervisory staff to support the OMCs operations and maintenance works carried out by OMCs Maintenance Contractor.

Objectives to be applied All Civil/architectural works and Station Building Service works except Environmental Control System during Type-A maintenance period

1.5

1.6

The Designated Contractors will retain their obligation for the Defect Notification Period 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) months prior to the Employers issuance of the Contract Works Taking-Over Certificate. The negotiations 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 2 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 and maintain the Railway System but only related to the Civil Infrastructure Works and the M&E Equipment forming part of the same: 1) To prepare following particular management plans; 2) 3) Spares and consumable Management Plan; Defect Liability Management Plan; Maintenance Management Plan (including Health and Safety);

To assist the OMC and the Employers General Consultant in the execution of overseas training; To transfer knowledge and skills, under this Contract, that is necessary for the actual operation and maintenance of the Railway System to the OMCs operation and maintenance staff; In accordance with this Contract, to support the OMC with the procurement of all Spares and consumable schedule on a just-in-time basis; necessary for the operations and maintenance of the Railway System. Such includes civil, architectural and Station Building Services; please refer to Clause 1.3 above and the Volume 3 [Employers Requirements-Appendix 16] (incorporated herein by specific reference) to the Designated Contracts. Any conflict between the Appendix 15 and this Contract the provisions of this Contract shall prevail. To carry out operations and maintenance support Services during a term specified in Clause 1.3 above and the Employers Requirements Appendix 16. To co-operate with the OMCs Operations and Maintenance representatives and/or other agencies concerned in the execution of operation and maintenance. To ensure the Designated Contractor(s) duly performs its/their obligations to rectify notified defects during the Defects Notification Period.

4)

5) 6) 7) 1.7

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

2. 2.1

CONTRACTORS CONTRACT TASKS RELATED TO OPERATION AND MAINTENANCE PREPARATION OF 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 for their 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 and submit to the OMCs Representative not later than three-months prior to issuing the Employers Taking-Over Certificate for the Designated Contract Works or the latter of the same. 2) Training and Knowledge/Skill Transfer Plan The Contractor shall develop its Training, Knowledge and Skill Transfer Plan required in 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 Knowledge and Skills Transfer will be provided to the Employers and the OMCs nominated training representatives prior the Designated Contractors Systems and Sub-systems Integration Test.

2.2

PREPARATION OF STANDARD OPERATIONS PROCEDURES (SOPS)

The Designated Contractors shall prepare SoPs for the operation E&M Systems and the M&E Systems; Building Services installed and commissioned under the Contract. The SoPs should cover all necessary plans and procedures necessary for the operation of the E&M Systems and Sub-systems and M&E Equipment in normal condition and in emergency case. The SoPs will include preventive maintenance procedures to reduce the maintenance requirements and diagnostic/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 of submissions is addressed in Volume 3 [Employers Requirements] Appendix 16 and 17. The same are incorporated herein by specific reference. The submissions include, but are not limited to: 1) Operation manual for Environmental Control System for Underground Stations and Tunnels (ventilation/air conditioning system for Stations and Tunnels including smoke control system) Operation manual for Station water supply, plumbing and drainage system Operation manual for electrical works Operation manual for fire prevention and fighting system Passenger evacuation manual for station accident and trouble Fire prevention and fighting manual for station fire accident Standard Operating Procedures for Railway Operations

2) 3) 4) 5) 6) 9)

2.3

CO-OPERATION WITH EMPLOYER IN THE EXECUTION OF OVERSEAS TRAINING MODULES

The Contractor shall assist the OMC and the Employers General Consultant and the in the planning of the overseas training modules, as may be required, and the execution of the training 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

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) 2) 3) 4) 5) 6) 7) 8) Standard Operating Procedures Provisional information regarding possible field visitation sites e.g. Japanese Project sites, factories and training centres; Recommendation and/or proposal on the training modules considering particularity and characteristics of the systems installed and Commissioned under this Contract; Support the field visits; Support classroom lessons and necessary presentations; Preparation of training documentation and technical lecture material on the system procured under the Designated Contracts; Provision of technical information as required by the OMC, HPC or HRB; and Other works necessary for smooth and meaningful implementation of the training modules.

2.4

TRAINING AND TRANSFER OF KNOWLEDGE/SKILLS

The Contractor assist in all necessary training and transfer of Knowledge/Skill necessary for actual operation of all equipment, facilities and plant procured and installed under the Designated Contracts, to the personnel appointed by the Employer and/or OMC based on the Designated Contractors Operation and Maintenance Manuals. The Contractor shall prepare the following maintenance management plans and submit them to 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 and shall be submitted to Engineer not later than nine-months prior to issuing the TakingOver Certificate. 2) Spare Parts and Consumable Management Plan This plan shall show the recommended spare parts and consumables together with manufacturer's name/type/model number, possible procurements routes (and lead time), price (based on the five (5) year Maintenance requirement), recommended minimum quantity and other supporting information that is necessary for the OMC to establish its Maintenance Control structure, equipment, necessary stores facilities for Maintenance Spares and Consumables. The plan shall specify special tools and testing equipment necessary for the maintenance works. The Spare Parts and Consumable Management Plan shall be submitted to Engineer at the same time as submission of the Operations and Maintenance Manuals. 3) Maintenance Management Plan for the Maintenance Period The Contractor shall prepare an outline plan for the management of the maintenance function in accordance with requirements shown in the Appendix 15 to the Employers Requirements and shows the recommended Maintenance Organisation Team for execution of the maintenance works. The Maintenance Management Plan shall be submitted 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 normal condition and in abnormal condition or emergency case.

The manuals shall be submitted to Engineer for his review and consent at least six-months prior to the date for Designated Contract Works Completion and shall, but not limited to, include following documents: 1) 2) 3) 4) Maintenance manuals for civil works Maintenance manual for architectural works Maintenance manual for Environmental Control System Maintenance manuals for underground Station Building Services other than environmental control system Applied maintenance standard and criteria Inspection regulation including inspection method and frequency Inspection management plan including document control Testing requirements Method for repair works Preventive measures against possible troubles Trouble shooting and recovery measures

The manuals should, but not limited to, the following contents. 1) 2) 3) 4) 5) 6) 7)

2.5 OTHER KEY TASKS Review and Implement Designated Contractors o the OMC Operating Plans as described
in 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/or the VNRA for the development of Operation rulebooks and procedures for all modes of M&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 OMCs Operating 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 receipt of 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 of Revenue Service.

ANNEX 2 1. 1.1 CONTRACT PRICE, PAYMENT AND PAYMENT BREAKDOWN: CONTRACT PRICE

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

The schedule should be broken down into categories of the Services starting with the Key Personnel identified in Annex 3 and listing all personnel detailed in the Resource Schedule 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 an interim payment in relation to the preceding month. Each such application shall state: a) the amount claimed to be payable in accordance with the Interim Payment Schedule; and b) any other amount claimed to be payable pursuant to agreed Additional Services aa determined by the Engineer; and c) whether and, if so, the extent to which the amount claimed to be payable for Additional Services comprise rates under this Annex 1. 2) As a condition precedent to the Engineers consideration of any sums due to the Contractor each such application shall be accompanied by the Contractors Monthly Resource Schedule detailing each of the personnels activities during the preceding month. 2.1.2 CERTIFICATION FOR INTERIM PAYMENT 1) The Engineer shall issue to the Employer, with a copy to the Contractor, an Interim Payment Certificate showing the amount payable by the Employer to the Contractor within 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 RETENTIONS 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 the Contract Price. 2) The Retention Monies retained in accordance with Sub-clause 2.1.3 1) shall be held by the 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 of issue of the Certificate of Completion for the whole of the Works or, in the event that Certificates of Completion are issued for parts of the Works, on the date of issue of the Certificate of Completion for the last part of the Works. 4) Retention Monies will be retained and released in such specified foreign currency in accordance 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 this Contract is not extended by the agreement of the parties.

6)

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

insert payment schedule Please break down the Election into Part A and Part Services

3.

PAYMENT OF ADDITIONAL SERVICES

Should OMC require the Contractor to provide additional work beyond that set out in the scope 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

ANNEX 3 THE CONTRACTORS ORGANISATION STRUCTURE The Contractor shall provide its organisation and responsibilities chart and identify the period of each person performing part of the Services. The latter shall be in a form of Resource Schedule.