Content Headings

Key Issues

Example clauses

Notes and References

Post-completion (Maintenance)

After completion of the construction of the facility, the authority needs to ensure that the infrastructure services is delivered to an acceptable standard and that the facility is maintained for the term of the concession.

Alternative 1

Concessionaire and the Authority shall, within [number] Business Days following the Actual Completion Date, [in accordance with the Final Commissioning Programme,] respectively undertake and complete Concessionaire's Post-Completion Commissioning and the Authority's Post Completion Commissioning, in accordance with the Final Commissioning Programme [for the relevant Phase]. Both parties shall, at all times, and in particular in the period between the Actual Completion Date and the Commissioning End Date, use reasonable endeavours to assist the other party to ensure compliance with the Final Commissioning Programme.

Information

Concessionaire shall ensure that the Authority's Representative is provided with all the information he may reasonably require in relation to Concessionaire's Post-Completion Commissioning and the Authority shall ensure that Concessionaire is provided with all information Concessionaire may reasonably require in relation to the Authority's Post Completion Commissioning.

If the Authority's Representative, acting reasonably, makes any comment in relation to the carrying out of Concessionaire's Post-Completion Commissioning, such comments shall be taken into account by Concessionaire and if Concessionaire, acting reasonably, makes any comment in relation to the carrying out of the Authority's Post Completion Commissioning, such comment shall be taken into account by the Authority.

[On the occurrence of [the] [each] Commissioning End Date the Independent Tester shall issue the Commissioning Completion Certificate]

Operational Manuals

With effect from the Commissioning End Date and throughout the remainder of the Project Term, [Within [number] Business Days after the completion of any Phase] Concessionaire shall at all reasonable times make available on the Site to the Authority's Representative all operation and maintenance manuals [the Authority to list any other manuals required].

Quality Plans and Systems

Concessionaire shall procure that all aspects of the Project Operations are the subject of quality management systems.

The quality management systems referred to in Clause [above] shall be reflected in appropriate quality plans, the standard of which shall [except in relation to Interim Services] be consistent with [standard] or any equivalent standard which is generally recognised as having replaced them (or either of them).

Without limitation to the generality of Clause [above], there shall be:

(a)  Design Quality Plan;

(b)  Construction Quality Plan; and

(c)  Services Quality Plan for each Service,

provided that the Design Quality Plan and the Construction Quality Plan may be incorporated into one document.

Concessionaire shall procure that the Project Operations are carried out in compliance with the Quality Plans. All Quality Plans shall be submitted to the Authority's Representative in accordance with Schedule [Review Procedure] and Concessionaire shall not be entitled to implement or procure the implementation of any Quality Plan unless Concessionaire is entitled to proceed with such implementation pursuant to Schedule [Review Procedure].

Concessionaire shall implement the quality management systems referred to in Clause [ref] and shall procure that:

(a)  the Contractor implements the Design Quality Plan;

(b)  the Contractor implements the Construction Quality Plan;

(c)  each Service Provider implements the relevant Services Quality Plan for each Service being provided by that Service Provider.

Where any aspect of the Project Operations is performed by more than one contractor or subcontractor, then the provisions of this clause (in so far as relevant or appropriate to the activities to be performed by such contractor or subcontractor) shall apply in respect of each of such contractors or subcontractors, and references in this clause to the "Contractor" or the "Service Provider" shall be construed accordingly.  To avoid doubt, this clause shall not be construed as requiring subcontractors of the Contractor or the Service Provider to have their own quality plans but only to comply with the Design Quality Plan and the Construction Quality Plan or the relevant aspects of the Services Quality Plan (as the case may be).

Concessionaire shall from time to time submit to the Authority's Representative in accordance with Schedule [Review Procedure] any changes to any of the Quality Plans required for such Quality Plan to continue to comply with the requirements set out in clause [ref].  The Authority's Representative may raise comments on any such proposed change only on the grounds set out in Schedule [Review Procedure].

In the event that any ambiguity, uncertainty, dispute or discrepancy arises in relation to the nature and scope of Concessionaire's obligations under this clause, wherever possible, the provisions of this clause shall be interpreted and construed in such a manner as to resolve the apparent ambiguity, uncertainty, dispute or discrepancy so that all the provisions of this clause may be given meaning and effect but, if such interpretation or construction is not possible, the provisions of this clause shall be given meaning and effect in the following order of precedence (in descending order):

(a)  the provisions and standards referred to in Clause [ref];

(b)  the Quality Plans referred to in Clause  [ref];

(c)  The Authority's Construction Requirements and/or the Authority's Service Requirements (as the case may be);

(d)  Concessionaire's Proposals and/or the Method Statements (as the case may be);

(e)  Concessionaire's and/or the Contractor's and/or any Service Provider's quality manuals and procedures; and

(f)  Good Industry Practice.

If there is no objection under Schedule [Review Procedure] to a change to any Quality Plan proposed pursuant to Clause [ref], the Quality Plan shall be amended to incorporate such change.

Quality Manuals and Procedures

If any Quality Plan refers to, relies on or incorporates any quality manual or procedure, then such quality manual or procedure or the relevant parts of it shall be submitted to the Authority's Representative at the time that the relevant Quality Plan or part of (or change to) a Quality Plan is submitted in accordance with Schedule [Review Procedure], and the contents of such quality manual or procedure shall be taken into account in the consideration of the relevant Quality Plan or part of (or change to) a Quality Plan in accordance with Schedule [Review Procedure].

Quality Management

Concessionaire shall maintain a quality management system which shall:

(a)  ensure the effective operation of the quality systems described in this clause;

(b)  cause an audit of the quality systems at regular intervals and the findings of such audit will be reported to the Authority's Representative;

(c)  require review of all quality systems at intervals agreed with the Authority's Representative to ensure their continued suitability and effectiveness;

(d)  require liaison with the Authority's Representative on all matters relating to quality management; and

(e)  require production of reports and their delivery to Concessionaire.

Quality Monitoring

The Authority's Representative may carry out audits of Concessionaire's quality management system (including all relevant Quality Plans and any quality manuals and procedures) to establish that compliance with Clauses [ref] is being maintained by Concessionaire.  The Authority's Representative may carry out such audits at approximate intervals of three (3) months and may carry out other periodic monitoring, spot checks and auditing of Concessionaire's quality management systems.  Concessionaire shall procure that the Authority's Representative shall have a like right in respect of the Contractor and Service Providers.  Concessionaire shall co-operate and shall procure that any Sub-Contractor co-operates with the Authority's Representative including providing him with all information and documentation which he reasonably requires in connection with his rights under this Clause.

The Services

General obligations

Throughout the Operational Term, Concessionaire shall provide (or procure the provision by the Service Providers of) the Services:

(a)  in accordance with the terms of this Agreement;

(b)  in accordance with the Method Statements; and

(c)  as an obligation independent from, and in addition to, Clause [ref], in such manner as ensures that the Service Level Specifications are met.

[In Schedule [Service Requirements] there is set out a description of the Services and in Schedule [Interim Service Requirements] a description of the Interim Services to be provided and the periods during which these are to be provided and Concessionaire shall from the times so specified, provide (or procure the provision by Service Providers of) the Services and the Interim Services:

(a)  in the case of the Services until the end of the Project Term:

(i)  in accordance with the terms of this Agreement;

(ii)  in accordance with the Method Statements; and

(iii)  as an obligation independent from and in addition to Clause [ref] in such a manner as ensures that the Service Level Specifications are met,

(b)  in the case of the Interim Services until the end of the relevant period specified in Schedule [Interim Service Requirements] in accordance with:

(i)  the provisions of Schedule [Interim Service Requirements];

(ii)  the other provisions of this Agreement; and

(iii)  the Method Statements and Interim Service Statements.]

Commencement and phase in of Services

[To be drafted on a project specific basis in line with the completion, commissioning, payment and performance provisions developed for the project.]

Concessionaire Services Changes

Concessionaire may at any time submit to the Authority's Representative in accordance with Schedule [Review Procedure] proposals for amendments to or substitution for the Method Statements [or the Interim Service Statement] or any part of them. If there is no comment on such proposed amendment or substitution (on the grounds set out in Review Procedure]), then the Method Statements [or Interim Service Statements] as so amended or substituted shall be the Method Statements [or Interim Service Statements] for the purposes of this Agreement, subject to any further amendment or substitution to which there has been no comment in accordance with Schedule [Review Procedure].

To avoid doubt, an amendment to or substitution for the Method Statements [or Interim Service Statements] proposed pursuant to Clause [ref] shall not be a Qualifying Variation entitling Concessionaire to any payment (or other compensation) or to any relief from the performance of its obligations under this Agreement.

No disruption

Concessionaire shall perform the Services so as to co-ordinate with the Authority's operations on the Site and/or in the Facilities and shall take all reasonable care to ensure that it does not interfere with the operations of the Authority or any Authority Party.

Programmed Maintenance Works

No later than [number] months prior to the Completion Dat oncessionaire shall submit to the Authority's Representative in accordance with Schedule [Review Procedure] a Schedule of Programmed Maintenance for the period from the Completion Date to the expiry of that Contract Year.

Not later than [number] months prior to the commencement of each subsequent anniversary of the Completion Date [the time prescribed in [specify the relevant place to be included in Schedule [Review Procedure]] Concessionaire shall submit to the Authority's Representative in accordance with Schedule [Review Procedure] a Schedule of Programmed Maintenance for the next succeeding Contract Year [for the period from the commencement of Services in respect of that Phase to the expiry of the Contract Year in which such date falls].

Each Schedule of Programmed Maintenance shall contain the following information (the "Programmed Maintenance Information"):

(a)   details of the proposed start and end dates for each period of Programmed Maintenance, the works to be carried out and the proposed hours of work; and

(b)   details of any effect of the Programmed Maintenance on the delivery of any of the Services and/or the activities of the Authority.

Not later than [number] Business Days prior to the commencement of any quarter (being a three month period commencing on 1 April, 1 July, 1 October or 1 January), Concessionaire may submit to the Authority's Representative for approval in accordance with Schedule [Review Procedure] a revision to the Schedule of Programmed Maintenance for the Contract Year in which the relevant quarter falls showing the effect of the proposed changes to the Programmed Maintenance Information.  If the Authority's Representative does not raise comments on such proposed revision in accordance with Schedule [Review Procedure], the Schedule of Programmed Maintenance as revised shall become the Schedule of Programmed Maintenance in respect of that quarter.

Where the Authority's Representative raises comments in respect of any Programmed Maintenance periods and/or hours of work shown in a Schedule of Programmed Maintenance in accordance with paragraph [ref] of Schedule [Review Procedure], he shall indicate whether, and if so when, the Programmed Maintenance can be re-scheduled and Concessionaire shall amend the relevant Schedule of Programmed Maintenance accordingly.

Programmed and Unprogrammed Maintenance

Concessionaire shall not carry out any Programmed Maintenance or Unprogrammed Maintenance Works save:

(a)  in accordance with a Schedule of Programmed Maintenance to which no objection has been made under Schedule [Review Procedure] or, where comment has been raised in respect of the Programmed Maintenance periods and/or time, the Schedule of Programmed Maintenance has been amended pursuant to Clause [ref];

(b)  in accordance with the procedures set out in Clause [ref]; or

(c)  in an emergency, in accordance with Clause [ref].

Notwithstanding that there has been no objection to a Schedule of Programmed Maintenance, the Authority's Representative may, at any time, require Concessionaire to accelerate or defer any Programmed Maintenance by giving written notice to Concessionaire, (unless otherwise agreed) not less than ten (10) Business Days prior to the scheduled date for carrying out such Programmed Maintenance, which notice shall set out the time and/or periods at or during which the Authority requires the Programmed Maintenance to be performed.  Concessionaire shall notify the Authority of the amount of any additional reasonable costs which it will incur as a direct consequence of such acceleration or deferment (the "Estimated Increased Maintenance Costs").  The Authority shall, within a further period of ten (10) Business Days following receipt by the Authority of notification of the amount of the Estimated Increased Maintenance Costs, at the Authority's option, either confirm or withdraw its request to accelerate or defer the Schedule of Programmed Maintenance.  If the Authority does not respond within this ten (10) Business Day period, the request shall be deemed to have been confirmed.  The Authority shall reimburse Concessionaire the direct and reasonable costs actually incurred by Concessionaire as a consequence of such acceleration or deferment up to, but not exceeding, the amount of the Estimated Increased Maintenance Costs.

If, in circumstances other than an emergency, the need arises for Maintenance Works (excluding any works of a de minimis nature in respect of which the parties have agreed this Clause shall not apply [and excluding works carried out for the purpose of Rectification, which shall take place in accordance with the provisions of Schedule [ref]), which are not scheduled to be carried out as part of the Programmed Maintenance ("Unprogrammed Maintenance Work"), Concessionaire shall not carry out any Unprogrammed Maintenance Work unless and until the Authority's Representative has approved the proposed commencement date, the proposed hours of work and estimated duration of the requisite Unprogrammed Maintenance Works in accordance with the provisions of paragraph [ref] of Schedule [Review Procedure].  Nothing in this Clause [ref] (including any approval of the Authority pursuant to Schedule [Review Procedure] shall prevent the Authority from making any deductions from the Service Payments pursuant to the Payment Mechanism.

If, as a result of an emergency, the need arises for Unprogrammed Maintenance Works, Concessionaire may carry out such Unprogrammed Maintenance Works provided that Concessionaire shall notify the Authority's Representative as soon as possible (and in any event within [  ] Business Days of the occurrence of the emergency) of the extent of the necessary Unprogrammed Maintenance Works and the reasons for them. Concessionaire shall take all reasonable steps to minimise the duration of such Unprogrammed Maintenance Works. Nothing in this Clause shall prevent the Authority from making any deductions from the Service Payments pursuant to the Payment Mechanism.

Where Programmed Maintenance scheduled to be carried out in accordance with the Schedule of Programmed Maintenance has been deferred by the Authority's Representative under Clause [ref], Concessionaire shall not be treated as having failed to perform the [indicate the relevant facilities service and/or Interim Service] on account of the condition of the Facilities or any part of them from the time the Programmed Maintenance was scheduled to have been completed until the time the deferred Programmed Maintenance was scheduled to have been completed, but not afterwards, provided always, to avoid doubt, that Concessionaire shall not be relieved from the consequences of any failure to maintain the Facilities in respect of any period prior to the period for performing the particular work according to the Schedule of Programmed Maintenance.

Year Maintenance Plan

Concessionaire shall deliver to the Authority's Representative not less than [number] Business Days prior to the commencement of each Contract Year the latest version of the 5 Year Maintenance Plan for the [indicate the relevant facilities service].

The Authority shall have a right to inspect the Facilities and the Maintenance Works to ensure that the Facilities are being maintained in accordance with the Service Level Specifications and that the Facilities comply with the Authority's Construction Requirements and Concessionaire's Proposals throughout the Project Term.  The Authority may appoint an independent third party for the purposes of carrying out any such inspection and shall make known the findings to Concessionaire and the Funders.  The parties shall then meet to discuss any implications of such findings and any steps that are necessary to remedy any failure to comply with such obligations.  Concessionaire shall (subject to Clause [Variation Procedure]) take into account such discussions in the next Schedule of Programmed Maintenance so that any failure to comply with such obligations shall be remedied.  

See SOPC Section 3.5 (in relation to quality management systems).

Alternative 1 adapted from Department of Health (UK), Standard Form Project Agreement Index reference A1 Folder 1.

Alternative 2

Operation and Maintenance Requirements 

The Concessionaire shall operate and maintain the Project/Project Facility in accordance with the O&M Requirements, by itself, or through a Contractor possessing the requisite technical, financial and managerial expertise/capability, but in either case, the Concessionaire shall remain solely responsible to meet the O&M Requirements.

Failure to meet O & M Requirements

In the event the Concessionaire has failed to operate and maintain the Project Facilit espite a notice to that effect issued by the Independent Engineer or the Authority ("Notice to Remedy"), the Authority may, without prejudice to any of its other rights/remedies under this Agreement, be entitled to cause the repair and maintenance of the Project Facility at the risk and cost of the Concessionaire. The Concessionaire shall reimburse all costs incurred by the Authority on account of such repair and maintenance within 7 days of receipt of the Authority's claim therefore. 

Material Breach of O&M Requirements 

The Concessionaire shall be deemed to be in material breach of O&M Requirements if the Independent Engineer acting reasonably and in accordance with the provisions of this Agreement, has determined that due to breach of its obligations by the Concessionaire:

(a)  there has been failure/undue delay in carrying out scheduled/planned maintenance or the scheduled/planned maintenance has not been carried out in accordance with the O&M Requirements; 

(b)  the riding quality of the Project Facility or any part thereof has deteriorated to a level which is below the acceptance level prescribed by the O&M Requirements; 

(c)  there has been a serious or persistent let up in adhering to safety requirements and standards and thereby the Project Facility or any part thereof is not safe for operations; 

(d)  Non-Availability (as hereinafter defined in clause [non-availability]) during any Availability Payment Period has exceeded _______lane kilometer hours; 

there has been persistent breach of O&M Requirements. 

For avoidance of doubt, persistent breach shall mean:

(e)  any breach of O&M Requirements by the Concessionaire which has not been remedied by the Concessionaire despite a Notice to Remedy in respect thereof issued by the Independent Engineer/the Authority; 

(f)  recurrence of a breach by the Concessionaire, during the pendency of Notice to Remedy by the Independent Engineer/ the Authority requiring the Concessionaire to remedy a breach; and 

(g)  repeated occurrence of a breach notwithstand- ing that earlier breaches have been remedied pursuant to Notice to Remedy or otherwise. 

The Authority's Rights 

Upon occurrence of a material breach of O&M Requirements, the Authority shall, without prejudice to and notwithstanding any other consequences provided therefore under this Agreement, be entitled to terminate this Agreement.

Priority of Traffic Flow

Notwithstanding the performance of any operation and maintenance referred to above, the Concessionaire shall ensure that the Carriageway remains open to traffic and that the traffic flow is safe at all times during Operations Period. The Concessionaire shall carry out its operation and maintenance in such manner as to ensure compliance with its above obligation.

Alternative 2 adapted from Concession Agreement for Colombo Kathunayake Expressway Project (note confidential), index reference A2, folder 1.