Exhibit 10.2
Execution Copy
Confidential
Materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote omissions.
New Ticketing Solution
Project Agreement
Transport Ticketing Authority
Keane
The Clayton Utz contact for this document is
Steven Klimt on + 61 2 9353 4000
Clayton Utz
Lawyers
Levels 22-35 No. 1 O’Connell Street Sydney NSW 2000 Australia
PO Box H3 Australia Square Sydney NSW 1215
T + 61 2 9353 4000 F + 61 2 8220 6700
www.claytonutz.com
Our reference 133/11068/80003545
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viii
New Ticketing Solution Project Agreement made at Melbourne on July 26, 2005
Parties Public Transport Ticketing Body trading as Transport Ticketing Authority ABN 73 595 242 024 of Level 38, 55 Collins Street, Melbourne, Victoria (“Principal”)
Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600 of Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria (“Contractor”)
Recitals
A. This agreement sets out the relationship between, and the rights and obligations of, the Principal and the Contractor for establishing a world’s best practice operating company for a smartcard based ticketing and payment solution, in a high quality, timely and efficient manner as described in the Requirements Document and the Solution Documentation.
B. The smartcard based ticketing and payment solution will meet the Principal’s objectives and requirements including:
• high levels of performance;
• timely delivery and smooth transition;
• flexibility for the system to evolve over time;
• value for money; and
• maintaining the Principal’s ability to develop future commercial or government applications.
C. The Principal has selected the Contractor to design, develop, integrate, install, test and implement the Solution and to develop, test and provide the Initial Services and the Core Services.
D. The Principal and the Contractor have agreed to undertake the Project on the terms and conditions set out in this agreement.
The parties agree
In this agreement unless the context otherwise requires:
“Access” means access to or use of Access Providers’ Property or Bus Property reasonably required by the Contractor to enable it to perform its obligations under this agreement.
“Acceleration Costs” means the reasonable direct incremental costs plus a margin of [**]% incurred by the Contractor reasonably involved in accelerating Delivery to overcome or minimise the extent and effects of some or all of a delay.
“Acceleration Direction” means a direction issued by the Principal to the Contractor to accelerate Solution implementation.
“Access Charges” means the access charges and training charges which have been paid to an Access Provider by the Contractor in accordance with an Access Coordination Agreement but
1
does not include any part of the access charges attributable to access required by the Contractor additional to that set out in an Access Plan which is not Alternative Access (as that term is defined in the relevant Access Coordination Agreement).
“Access Coordination Agreement” means any agreement of that or similar name, between all of the Contractor, the Principal, and an Access Provider in relation to access and which is expressed in its terms to be an access coordination agreement for the purposes of this agreement.
“Access Delay” means a delay which will prevent the Contractor from achieving Completion of a Phase by the relevant Phase Date caused by one or more Access Events but only to the extent to which it is not attributable to:
(a) the Contractor failing to act in a timely and efficient way;
(b) the Contractor failing to do all things reasonably expected of a prudent and experienced contractor undertaking the Work; or
(c) a breach of any Project Document by the Contractor.
“Access Event” means an event or circumstance which unreasonably delays or prevents the Contractor from obtaining Access under this agreement or an Access Coordination Agreement, including:
(a) a failure to provide, or a delay in providing Access or Alternative Access (as that term is defined in and applies to the Proforma Access Coordination Agreement or an Access Coordination Agreement) in accordance with clauses 9.3(c) or 9.7(a) of this agreement, clause 7.1(a) of the Proforma Access Coordination Agreement or the equivalent clause of an Access Coordination Agreement;
(b) a direction from the Principal to amend an Access Plan or the Bus Access Plan other than a direction to amend an Access Plan or the Bus Access Plan to reflect agreed Access or Alternative Access (as that term is defined in an Access Coordination Agreement or the Proforma Access Coordination Agreement);
(c) a failure to agree within a reasonable period on, or an unreasonable delay in agreeing, an Access Plan, a Bus Access Plan, an amendment to an Access Plan or a Bus Access Plan, or Alternative Access (as that term is defined in an Access Coordination Agreement or the Proforma Access Coordination Agreement); or
(d) a breach of this agreement by the Principal or a breach of an Access Coordination Agreement by the Access Provider.
“Access Plan” means each access plan for an Access Provider, as developed and amended from time to time pursuant to this agreement or the relevant Access Coordination Agreement.
“Access Principles” means the principles and conditions of access for each Access Provider, including those set out in Part B of Schedule 24 and those developed in accordance with this agreement, as amended from time to time by agreement between the Principal, the Contractor and the relevant Access Providers.
“Access Providers” means the organisations listed in Parts B and C of Schedule 17, as amended by notice in writing to the Contractor.
“Access Providers’ Property” means:
(a) all property owned, leased or used by each Access Provider (and information and drawings relating to such property including wiring diagrams) including the rolling
2
stock, stops, terminals, stations, vehicles, depots, interchanges, computer systems and other facilities, systems and power supplies of each Access Provider; and
(b) personnel involved in the operation or use of the property referred to in paragraph (a), including the employees of the Access Provider.
“Act of Prevention” means any one of:
(a) a breach of this agreement by the Principal;
(b) any other act or omission of the Principal or the Principal’s Representative (but not an act or omission of the Principal or the Principal’s Representative acting in good faith and in the proper exercise of a right under this agreement or any other Project Document);
(c) a Variation Order issued by the Principal in accordance with this agreement;
(d) the occurrence of Access Delay;
(e) industrial action, to the extent that it directly affects the Project and the Contractor is able to demonstrate that the industrial action directly results from an act or omission of the Principal or of any employee of the Principal employed to work on the Project, and the act or omission occurs while acting in that capacity.
“AFC Equipment” has the same meaning as the defined term “Equipment” in the Consolidated Service Contract.
“AFC Software” has the same meaning as the defined term “Software” in the Consolidated Service Contract.
“AFC System” has the same meaning as the defined term “AFC System” in the Consolidated Service Contract.
“AFC System Compensation Payments” has the same meaning as the defined term “Non-Availability Payments” in the Consolidated Service Contract.
“AFC System Performance Levels” means the “Approved Performance Standards” and the “Maximum CDA Standards” each as defined in the Consolidated Service Contract.
“AFC Transition Plan” has the same meaning as the defined term “Transition Plan” in the Transition Deed.
“AFSL” means an Australian Financial Services Licence as that term is defined in the Corporations Act 2001.
“A-IFRS” means Australian Equivalents to International Financial Reporting Standards.
“A.M. Best” means the ratings agency A.M. Best Company, Inc., and its successors and assigns.
“Application Management Services” means the services specified as such in the Requirements Document.
“Approval” means all approvals, authorisations, permits, consents, licences, exemptions and the like which are required to be issued by or obtained from any Authority in connection with the Project or the performance by the Contractor of its obligations under this agreement.
“APRA” means the Australian Prudential Regulation Authority.
3
“Arbitrator” means the person agreed and appointed by the parties to act as an arbitrator for the purposes of and in accordance with clause 49.6.
“Ascom” means Ascom (Switzerland) Limited Swiss Company Number CH 035.3.000.058-6.
“Australian Payments System” means the Australian payments system, including the cheque system, direct debit schemes, direct credit schemes, BPay and debit card and credit card schemes (including the Visa, MasterCard, American Express and Diners Club payment schemes).
“Authority” means any government department, local government council, government or statutory authority, or any other body, which has a right to impose a requirement or whose consent is required in connection with the Work or the performance by the Contractor of its obligations under this agreement.
“Bank Bill Rate” in relation to a day means:
(a) the rate (which is expressed as a yield per centum per annum to maturity) which is the buying rate for bank accepted bills quoted at approximately 10:10 am (Melbourne time) on page ”BBSY” of the Reuters Monitor System on that day, having a term of 1 month; or
(b) if that rate is no longer available or if, in the reasonable opinion of the Principal, that rate becomes an inappropriate rate to benchmark the Overdue Rate for the purposes of this agreement or becomes incapable of application, the Bank Bill Rate means the rate reasonably determined by the Principal to be the appropriate equivalent rate, having regard to prevailing market conditions.
“Banking Charges” means only those fees and charges set out in Part A of Schedule 40.
“Bill of Materials” means the specification for materials, equipment and software which the Contractor will provide as part of the Solution which is set out in Exhibit 2A.
“Bond Security Account” means an 11am call/money market account or similar account at an Australian bank or other Australian Financial Institution with a credit rating of no less than A- (S&P) maintained by the Principal to which the only signatories are representatives of the Principal.
“Brand” means all goodwill associated with the Solution including:
(a) all registered and unregistered trade marks (other than those trade marks of a Contractor Stakeholder or a subcontractor of the Contractor which are used in their business generally and are applied by them to the Devices they supply, but which do not include, directly or indirectly, any brands which are created or developed in connection with, the Solution or any part of the Solution);
(b) all names including business names, domain names and company names; and
(c) all telephone numbers, email addresses and all other addresses used by the general public, Operators and Stakeholders in relation to the Solution to make contact using a telecommunication network.
“Bus Access Plan” means the Design Document which includes the times of access to the Bus Property to be developed by the Contractor and approved by the Principal in accordance with this agreement and, in particular, the Bus Access Principles.
4
“Bus Access Principles” means the principles and conditions of access set out in Part A of Schedule 19 as amended from time to time by agreement between the Principal and the Contractor.
“Bus Access Rates” means the rates set out in the Bus Access Principles.
“Bus Operators” means the organisations listed in Part A of Schedule 17 as amended by notice in writing to the Contractor.
“Bus Property” means:
(a) all property owned, leased or used by each Bus Operator (and information and drawings relating to such property including wiring diagrams) including the rolling stock, stops, terminals, stations, vehicles, computer systems and other facilities, systems and power supplies of each Bus Operator; and
(b) personnel involved in the operation or use of the property referred to in paragraph (a), including the employees of the Bus Operators,
of each Bus Operator in respect of which the Contractor reasonably requires access in order to carry out the Work.
“Business Continuity Plan” means the plan entitled “Business Continuity Plan” prepared by the Contractor in accordance with this agreement and based on the outline set out in Schedule 28.
“Business Day” means a day on which banks are open for business in Melbourne but not a Saturday or Sunday.
“Business Requirements Document” means the document entitled “Business Requirements Document” set out in the NTS Requirements Document.
“Capital Price” means the amount identified as the Total Capital Price in the Payment Schedule as varied pursuant to clause 11, clause 20 and clause 21.6, to be paid to the Contractor pursuant to clause 21.
“Cardholder” means a person to whom a Smartcard has been issued.
“Cardholder Support Services” means the serviced specified as such in the Requirements Document.
“Cash Collection Services” means the services specified as such in the Requirements Document.
“Category 1 Matters” means the matters referred to in Part A of Schedule 37.
“Category 2 Matters” means the matters referred to in Part B of Schedule 37.
“Category 3 Matters” means the matters referred to in Part C of Schedule 37.
“Certificate of Completion” means a certificate given by the Principal’s Representative under clause 17.2 substantially in the form of Schedule 4.
“Change in Law” has the meaning given to that expression in clause 5.1.
“Chief Executive Officers” means the chief executive officer of the Principal and the chief executive officer of the Contractor.
5
“Civil Works” means all required pre-installation civil work for the Solution on all rail stations, superstops and bus interchanges.
“Chubb” means Chubb Security Australia Pty Ltd ABN 99 003 605 098.
“Claim” means any claim or action:
(a) under, arising out of, or in connection with this agreement;
(b) arising out of, or in connection with the Project;
(c) otherwise at law or in equity including:
(i) by statute;
(ii) in tort for negligence or otherwise, including negligent misrepresentation; and
(iii) in restitution, including restitution based on unjust enrichment.
“CMM” means the Capability Maturity Model administered by the Software Engineering Institute of the United States of America.
“Code of Practice” means a code of practice defined in, and approved under, the Information Privacy Act 2000 (Vic).
“Commencement Date” means the date of this agreement.
“Commonwealth” means the Commonwealth of Australia.
“Completion” means, in respect of a Phase, when:
(a) the Phase has been completed in accordance with this agreement, including the Requirements Document, except for minor Defects in that Phase:
(i) which do not prevent the Phase from being capable of being used for its intended purpose;
(ii) in relation to which the Contractor has reasonable grounds for not promptly rectifying them; and
(iii) rectification of which will not prejudice the convenient use of the Phase; and
(b) all conditions precedent to completion of the relevant Phase including those set out in Schedule 3 have been satisfied in accordance with this agreement, including the Requirements Document.
“Completion Date” means, in respect of a Phase, the actual date of Completion of the Phase as certified in a Certificate of Completion.
“Configuration Data” means all data and expressions of data that are transmitted, received or stored within or created by the Solution that enable Devices, computers and Smartcards to function correctly as part of the Solution or that enable applications to be loaded onto Smartcards including system security keys.
6
“Consolidated Service Contract” means the agreement dated 24 May 1994 between Public Transport Corporation and OLT as amended and restated by the Deed of Amendment and Restatement and as amended by the Transition Deed.
“Constitution” means the replaceable rules, constitution or combination of both as those terms are used in section 134 of the Corporations Act.
“Contractor’s Primary Response” means:
(a) the documents which form Exhibit 2A to this agreement, including the Response Matrices and the Bill of Materials;
(b) Exhibit 4 (the Phase Deliverables); and
(c) the Project Timeline.
“Contractor’s Privacy Plan” means the plan provided by the Contractor and reviewed and approved by the Principal that sets out the privacy procedures the Contractor will adopt.
“Contractor’s Representative” means the person appointed by the Contractor in accordance with clause 7.3.
“Contractor’s Response” means:
(a) the Contractor’s Primary Response; and
(b) the Contractor’s Secondary Response.
“Contractor’s Secondary Response” means the documents which form Exhibit 2B to this agreement.
“Contractor Stakeholders” means:
(a) the Contractor’s Related Bodies Corporate; and
(b) the Contractor’s shareholders, Ascom, Headstrong, G&D and ERG and their Related Bodies Corporate,
as at the Commencement Date and at any time thereafter.
“Controller” means, in relation to a change in control of the Contractor, the person or body corporate to whom control will pass.
“Core Services” means the Core Services specified as such in the Requirements Document, and any Variations, changes or additions to the foregoing, supplied by the Contractor.
“Core Services Performance Requirements” means the performance requirements relating to Core Services developed in accordance with this agreement and to be set out in Schedule 29.
“Core Services Term” means the period commencing on the Completion Date of the NTS Regional and Metropolitan Implementation Completion Phase and, subject to earlier expiration or termination under provisions of this agreement, ending on the date which is the 10 year anniversary of the final day of the calendar month immediately preceding the calendar month in which the Completion Date of the NTS Regional and Metropolitan Implementation Completion Phase falls, as extended or reduced pursuant to this agreement.
“Corporations Act” means the Corporations Act 2001 (Cth).
7
“Customer Performance Requirements” means the performance requirements developed in accordance with this agreement and to be set out in Schedule 31.
“Deed of Amendment and Restatement” means the deed of that name dated 21 October 2002 between Public Transport Corporation, OLT and others.
“Defect” means any part of a Phase or the Solution which is not in accordance with the requirements of this agreement, including the Requirements Document and the Solution Documentation.
“Defects Liability Period” means the period 24 months from the Solution Completion Date as extended in accordance with clause 19(e).
“Delay Costs” means the reasonable direct incremental costs (excluding off-site overheads and any element of profit) incurred by the Contractor reasonably involved with an event or circumstance delaying the Contractor in achieving Completion of a Phase by the relevant Phase Date, plus:
(a) in relation to the first 60 days of delays in respect of which the Contractor is granted an extension of time under clause 18.7, a margin of [**]%;
(b) in relation to any period of delay after the first 60 days of delays in respect of which the Contractor is granted an extension of time under clause 18.7, a margin of [**]%.
“Delay Security Account” means an 11 am call/money market account or similar account at an Australian bank or other Australian Financial Institution with a credit rating of no less than A- (S&P) maintained by the Principal to which the only signatories are representatives of the Principal.
“Delivery” means the design, development, integration, installation, testing and implementation of the Solution (but does not include the provision of the Services).
“Delivery Services” means any part of the Initial Services or Core Services which are required in order to support the Solution, or any part of the Solution which is operating during the Delivery Services Term.
“Delivery Services Charge” means the charge to be paid to the Contractor during the Delivery Services Term in accordance with clause 27.
“Delivery Services Term” means the period commencing on the Commencement Date and ending on the day prior to the Completion Date of the NTS Regional and Metropolitan Implementation Completion Phase.
“Design Documents” means the design documents and design analysis documents prepared in accordance with this agreement, including the Requirements Document, and include each document listed in Schedule 38 as that list is amended and finalised in accordance with clause 11.7.
“Developed Intellectual Property” means:
(a) all Intellectual Property in any matter developed or created by, or on behalf of, the Contractor, a Related Body Corporate, a Contractor Stakeholder (other than G&D) or any other subcontractor, for the purposes of this agreement;
(b) all manuals and documentation specifically developed by G&D for the purposes of this agreement but not including modifications or changes to G&D’s business processes; and
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(c) to the extent that it does not fall within (a) or (b), the Victorian Smartcard Application,
but does not include, for the avoidance of doubt, Intellectual Property, existing at the time of execution of this agreement, of the Contractor, any Related Body Corporate, the Contractor Stakeholders or any other subcontractor.
“Device” means the equipment delivered and forming part of the Solution.
“Device Management Services” means the services specified as such in the Requirements Document.
“Direct Agreement” means each direct agreement entered into pursuant to clause 10.3(c).
“Direct Costs” means the sum of:
(a) the reasonable direct incremental costs incurred by the Contractor for work reasonably involved in effecting:
(excluding any element of margin which accrues to the Contractor, any Related Body Corporate or any consortium partner other than pursuant to an arms length arrangement); and
(b) [**]% of the direct cost referred to in paragraph (a).
“Direct Savings” means the sum of:
(a) the reasonable direct cost savings to the Contractor in respect of Device and other equipment, Software and labour and any other work by the Contractor in carrying out a Variation which is in whole or in part an omission or deletion of Work (excluding any element of margin which accrues to the Contractor, any Related Body Corporate or any consortium partner other than pursuant to an arms length arrangement); and
(b) [**]% of the direct saving referred to in paragraph (a).
“Dispute Panel” means a panel comprising the Principal’s Representative and the Contractor’s Representative.
“Dispute Resolution Procedures” means the procedures set out in clause 49.
“Distribution Services” means the services specified as such in the Requirements Document.
“Due Diligence material” means the documents and information:
(a) contained on the on-line information site and/or in the physical data room (including any additional materials subsequently added to the data room, materials marked in the data room index including supplementals and any supplementary information provided to a tenderer);
(b) provided in presentations by the Principal and any site visits or meetings;
(c) provided through the request for information process; or
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(d) otherwise provided by the Principal or its advisers to a tenderer during the tender process, including written or oral communications transmitted to tenderers.
“Emergency” means a circumstance where there is a risk of a potential and immediate threat to:
(a) public interest or safety on or relating to the Work; or
(b) the structural integrity or safety of any site on which the Work takes place or the Solution is located,
or a circumstance exists where it may be necessary for the Principal to take immediate action to discharge its statutory duties or powers.
“E-Purse” means an application in a Smartcard able to store and manipulate electronic value according to a standardised set of rules comprising the various data elements, algorithms, systems and back end operations required to support a highly secure electronic value payment mechanism suitable for delivery via contactless or contact technology with security suitable for banking purposes.
“Equipment IP” means Intellectual Property in all and part of:
(a) the Device;
(b) computer programs supplied as a component of, embedded in or forming part of the Device and without which such tangible items cannot operate, such as Software, Firmware and Software in Devices; and
(c) related operating and maintenance Software, manuals and instructions,
but excluding any Intellectual Property which is:
(d) owned by the Contractor;
(e) owned by any Contractor Stakeholder and which is listed in Schedule 41; and
(f) Developed Intellectual Property.
“Equivalent Incident Units” means the units allocated to each event of Vandalism which falls within a Vandalism Category, as set out in the table in Schedule 35.
“ERG” means ERG Transit Systems Ltd ABN 51 008 895 047.
“Escrow Agent” means the escrow agent nominated by the Principal by written notice to the Contractor.
“Escrow Agreement” means the agreement between the Principal, the Contractor and the Escrow Agent substantially in the form of Schedule 16.
“Escrow Material” means:
(a) all the source code for the Software, contained or to be contained in the Solution other than Software contained in or used to operate the Developed Intellectual Property or Software referred to in paragraphs (c) or (d);
(b) except for documentation referred to in paragraphs (c) or (d), all documentation necessary for the Principal, or that a person in the Principal’s position would otherwise require, to modify, maintain, test, further develop or regenerate the
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Software contained in the Solution or otherwise exercise any rights or ownership given to the Principal under clause 30 and Software tools necessary for the Principal, or that a person in the Principal’s position would otherwise require to modify, maintain, test, further develop or regenerate the bespoke components of the Solution, that has not been and is not required to be provided to the Principal other than pursuant to clause 30.6 or 30.8(a);
(c) a complete set of Ascom’s drawings, specifications, source code, and a listing of key third party components and suppliers, necessary to manufacture Devices supplied by Ascom, together with source code for any Software supplied by Ascom for the management or operation of those Devices;
(d) a complete set of Wayfarer’s drawings, specifications, source code, and a listing of key third party components and suppliers, necessary to manufacture Devices supplied by Wayfarer, together with source code for any Software supplied by Wayfarer for the management or operation of those Devices; and
(e) a complete set of drawings and specifications for the Devices supplied by Gunnebo, necessary to manufacture those Devices,
irrespective of whether or not it has been especially customised or developed for the purposes of this agreement or developed by the Contractor but does not include source code, documentation and Software tools referred to in paragraphs (a) and (b) to the extent it includes Third Party Software or Equipment IP except to the extent that the Contractor has access to and utilises source code, documentation, and Software tools for the purpose of performing the Work and for which the Contractor has, after using best endeavours to do so, secured the consent of the third party for the delivery of that Third Party Software or Equipment IP into escrow in accordance with this agreement.
“Event of Default” means an event of default set out in clause 42.1.
“Event of Insolvency” means, in relation to a person, any of the following events:
(a) a receiver, manager, receiver and manager, trustee, administrator, controller (as defined in section 9 of the Corporations Act) or similar officer is appointed in respect of a person or any asset of a person;
(b) a liquidator or provisional liquidator is appointed in respect of a corporation;
(c) any application (not being an application withdrawn or dismissed within 7 days) is made to a court for an order, or an order is made, or a meeting is convened, or a resolution is passed, for the purpose of:
(i) appointing a person referred to in paragraphs (a) or (b);
(ii) winding up a corporation; or
(iii) proposing or implementing a scheme of arrangement or composition in respect of the company other than for a solvent reconstruction of the company;
(d) a moratorium of any debts of the company or an official assignment or a composition or an arrangement (formal or informal) with the company’s creditors or any similar proceeding or arrangement by which the assets of the company are subjected conditionally or unconditionally to the control of the company’s creditors is ordered, declared or agreed to, or is applied for and the application is not withdrawn or dismissed within 7 days;
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(e) a person becomes, admits in writing that it is, is declared to be, or is deemed under any applicable law to be, insolvent or unable to pay its debts;
(f) a company ceases, or threatens to cease, to carry on its business or payment of its debts generally;
(g) any writ of execution, garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied, issued or enforced against or in relation to any asset of the company.
“Expert” means the person appointed by the parties, or an independent expert otherwise appointed pursuant to clause 2.3(f) or clause 49.5(d), to act as an expert for the purposes of and in accordance with clause 49.5.
“Expert Deed” means the deed so entitled in the form of Schedule 14, appointing the Expert to resolve disputes and perform such other functions specified in this agreement.
“Expiry Date” means the expiry date for each Option as set out in Schedule 34.
“Final Bus Access Plan” means the version of the Bus Access Plan finalised in accordance with clause 12.4(k).
“Financial Institution” means a financial institution satisfactory to the Principal that is and remains the holder of a current licence issued by APRA or, if the financial institution has not been required to obtain, and has not sought, a licence from APRA, it has and retains a current long-term foreign currency credit rating of at least A minus issued by S&P, or the equivalent credit rating issued by another generally-recognised international credit rating agency.
“Financial Management Services” means the services specified as such in the Requirements Document.
“Firmware” means a set of coded instructions embedded within a device or component of a device that performs functions or provides data to enable the device to operate in a specified manner.
“Fit For Solution Purposes” means:
(a) the Solution meets and will continue to meet the requirements referred to in this agreement, including the Requirements Document, the Performance Requirements, Industry Practice and open architecture;
(b) the Solution is fit for the purposes of use as a Smartcard based transport ticketing system;
(c) the Solution will comply with and operate in accordance with all relevant requirements, policies, procedures, practices and business rules of the Principal, the Government, Governmental Agencies, Operators and Stakeholders:
(i) which are identified pursuant to clauses 11.1 and 11.7;
(ii) of which the Contractor is aware or which a prudent, competent and experienced contractor should have been aware if it had done those things which the Contractor is required to do under clauses 11.1 and 11.7; and
(iii) in the case of a Variation, which are the subject of that Variation,
(“the Victorian Requirements”).
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(d) the Solution complies with World’s Best Practice:
(i) as it stands at the Completion Date of the NTS Solution Requirements Phase; or
(ii) as it stands at the Completion Date of the NTS Front Office Design and Hardware FAT Phase for any changes to World’s Best Practice that are reasonably foreseeable at the Completion Date of the NTS Solution Requirements Phase,
applied to meet the Victorian Requirements.
(e) the Solution is sufficiently flexible, extensible, scaleable and upgradeable to respond to all changes to, or any further, relevant requirements, policies, procedures, practices and business rules of the Principal, the Government, Governmental Agencies, Operators or Stakeholders that are reasonably foreseeable by the Contractor as at the Completion Date of the NTS Solution Requirements Phase;
(f) the Solution is able to be upgraded to be used as a payment system, to support a multipurpose payment instrument which can be used for retail or other payments at the outlets or devices of several service providers for a range of purposes that are reasonably foreseeable by the Contractor (or that would be reasonably foreseeable to a prudent, competent and experienced contractor) as at the Completion Date of the NTS Solution Requirements Phase.
“Float” means the quantum of money represented by any unredeemed value resident on the E-Purse.
“Force Majeure” means:
(a) lightning, earthquake, fire, explosion, cyclone, riots, industry wide industrial action which is not specific to, or attributable to the action of, the Contractor or any of its Related Bodies Corporate or subcontractors and is not industrial action which falls within paragraph (e) of the definition of Act of Prevention, civil commotion, natural disaster, sabotage, act of a public enemy, act of God (excluding storm and tempest), war (declared or undeclared), revolution, radioactive contamination, flood or an outbreak of an infectious disease which results in the Government, a Governmental Agency or a government having jurisdiction over the person claiming force majeure relief, issuing a general prohibition against persons entering the State of Victoria; and
(b) a failure by an Access Provider to provide access in accordance with an Access Coordination Agreement where such failure is caused by an event for which the relevant Access Provider has claimed relief under the force majeure regime in such Access Coordination Agreement,
but only if the Contractor could not have prevented the effects of the event by taking those steps which a prudent, experienced and competent contractor or operator would have taken.
“G&D” means Giesecke & Devrient Australasia Pty Ltd ACN 075 066 166.
“Government” means the government of the State of Victoria.
“Governmental Agency” means any Government or semi-Governmental entity or authority, body politic, Government department or statutory authority of the State of Victoria.
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“Gunnebo” means Gunnebo Entrance Control AB, Swedish registration number 556086-5403.
“Headstrong” means Headstrong Australia Pty Ltd ABN 71 061 818 906.
“HP” means Hewlett-Packard Australia Pty Ltd ABN 74 004 394 763.
“Industrial Relations Plan” means the plan entitled “Industrial Relations Plan” prepared by the Contractor in accordance with this agreement and based on the outline set out in Schedule 22.
“Industry Practice” means design, development, installation and operation works and practices which are carried out:
(a) in a sound and workmanlike manner with due care and skill and applying world’s best practice in the relevant field;
(b) with due expedition and without unreasonable or unnecessary delay;
(c) in a manner which facilitates best practice, efficient operation and continuous improvement; and
(d) with the use of high quality equipment and materials of merchantable quality which are fit for their intended purpose.
“Initial Services” means the Initial Services specified as such in the Requirements Document, and any Variations, changes or additions to the foregoing, supplied by the Contractor.
“Initial Services Performance Requirements” means the performance requirements relating to Initial Services developed in accordance with this agreement and to be set out in Schedule 30.
“Initial Services Term” means the period commencing on the Completion Date of the NTS Regional and Metropolitan Implementation Completion Phase and, subject to earlier termination under provisions of this agreement, ending on the date which is the 2 year anniversary of the final day of the calendar month immediately preceding the calendar month in which the Completion Date of the NTS Regional and Metropolitan Implementation Completion Phase falls, as extended pursuant to this agreement.
“Integrated Test Facility” means the integrated test facility to be developed by the Contractor in accordance with this agreement, including the Requirements Document and the Solution Documentation, which will replicate the various components of the Solution and will enable testing of the Solution and Services to be carried out.
“Intellectual Property” includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trade marks (including service marks), registered designs confidential information (including trade secrets and know-how), circuit layouts and all other rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields.
“KAMCO Board of Experts” means the KAMCO Board of Experts referred to in this agreement, which is an internal working group of the Contractor. For the avoidance of doubt the parties agree that the review, approval, comment, input, decision or action of such working group does not affect or fetter in any way any right, action or discretion of the Principal under this agreement.
“Keane Inc” means Keane, Inc., US federal identification number 042437166.
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“Key Contract” means:
(a) each contract entered into between the Contractor and a party named in Schedule 9 in relation to the Project; and
(b) any other contract nominated by the Principal in accordance with clause 10.3.
“Law” means:
(a) common law; and
(b) Commonwealth, Victorian or local government legislation, regulations, by-laws and other subordinate regulations.
“Licensed Intellectual Property” means all Intellectual Property comprised in:
(a) all and any part of the Solution;
(b) Software which is otherwise used or to be used by, or on behalf of, the Contractor to interface the Initial Services or the Core Services with the Solution; and
(c) to the extent that it is not included in (a) or (b), the Intellectual Property comprised in the Escrow Material,
excluding the Developed Intellectual Property, Third Party Software and the Equipment IP.
“Liquidated Damages Limitation” means $10,000,000.
“List of Software” means a list of each item of Software used or to be used by the Contractor or any other entity in performing the Work which specifies in relation to each item of Software:
(a) name and release version of the Software;
(b) owner and distributor of the Software and, if relevant, the licensor and the licensee of that Software;
(c) whether the Software is Third Party Software;
(d) the duration of any licence and maintenance agreements; and
(e) the licence and maintenance fees and similar fees.
“Monthly Invoice” means the invoice submitted by the Contractor pursuant to clause 27.3.
“Moody’s” means the ratings agency Moody’s Investors Service Pty Limited ACN 003 399 657, and its successors and assigns.
“Moral Rights” means any of the rights identified as moral rights in the Copyright Act 1968 (Cth) or any other law of the Commonwealth.
“NTS Demonstration Suite” means the set of Devices and Software to be developed by the Contractor in accordance with this agreement, including the Requirements Document and the Solution Documentation and delivered to the Principal for use as a marketing and communication tool and to provide customers with a hands-on experience of Smartcard technology.
“NTS Final Back Office Release Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
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“NTS Front Office Design and Hardware FAT Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“NTS Front Office Implementation 1 Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“NTS Front Office Implementation 2 Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“NTS Front Office Software FAT and Back Office Release 1 and 2 Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“NTS Front Office User Acceptance Test Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“NTS Mobilisation Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“NTS Operational Proving Phase” means the phase specified as such in the Requirements Document.
“NTS Release 0 and Prototyping Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“NTS Regional and Metropolitan Implementation Completion Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“NTS Requirements Document” means the documents which comprise Exhibit 1 to this agreement, including the Business Requirements Document, the Project Requirements Document and the Open Architecture Requirements Document.
“NTS Requirements Specification” means the document prepared by the Contractor and submitted to the Principal in accordance with this agreement, including the Requirements Document, in which the Contractor specifies all requirements and associated business rules of the Principal, the Operators, the Government, the Governmental Agencies and Stakeholders in relation to the Solution.
“NTS Solution Requirements Payment” means $8,543,000, as referred to in clause 11.6.
“NTS Solution Requirements Phase” means the phase specified as such in the Requirements Document.
“NTS Transition” means any activities relating to the transition from the AFC System to the Solution but does not include any activities relating to disengagement of the AFC System where those activities are not required for the implementation of the Solution.
“NTS Transition Plan” means the transition plan, which is a Design Document, prepared by the Contractor outlining activities to be undertaken by the Contractor in installing and implementing the Solution.
“NTS User Acceptance Test Phase” means the phase specified as such in this agreement and, in particular, Exhibit 4.
“OH&S Act” means the Occupational Health and Safety Act 2004 (Vic).
“OH&S Plan” means the plan entitled “OH&S Plan” prepared by the Contractor in accordance with this agreement and based on the outline plan set out in Schedule 23.
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“OLT” means Onelink Transit Systems Pty Limited ABN 47 059 733 443.
“Open Architecture Requirements Document” means the document entitled “Open Architecture Requirements Document” set out in Exhibit 1.
“Open Architecture Specification” means the document based upon the Open Architecture Requirements Document prepared by the Contractor and submitted to the Principal in accordance with this agreement.
“Operational Quality Assurance Plan” means the plan entitled “Operational Quality Assurance Plan” to be prepared by the Contractor in accordance with this agreement, including the Requirements Document.
“Operational Support Services” means the services specified as such in the Requirements Document.
“Operators” means the Bus Operators and the Other Operators.
“Option” means each of the defined work packages identified as such and set out in Schedule 34.
“Option Price” means each of the prices for an Option set out in Schedule 34.
“Optus” means Singtel Optus Pty Limited ABN 90 052 833 208.
“Other Operators” means those organisations listed in Part B of Schedule 17, as amended by notice in writing to the Contractor.
“Other Services” means the services in relation to the Solution not provided by the Contractor (either directly or through its sub-contractors) under this agreement.
“Overdue Rate” means 2% per annum above the Bank Bill Rate.
“Parent Company Guarantee” means the indemnity and guarantee provided by Keane Inc in the form of Schedule 15.
“Payment Milestone” means the milestones described in the Payment Schedule.
“Payment Schedule” means the payment schedule set out in Schedule 8.
“Performance Requirements” means the levels of performance and services the Solution and the Initial Services or Core Services must meet, as described in the Requirements Document, the Initial Services Performance Requirements, the Core Services Performance Requirements and the Customer Performance Requirements.
“Personal Data” means data or expressions of data in respect of a Cardholder that are generated or stored:
(a) within the Solution; or
(b) by or on behalf of the Contractor for the purpose of complying with this agreement,
other than data which is owned by third parties (except the Contractor or its Related Body Corporate).
“Personal Information” means that term as defined in the Information Privacy Act 2000 (Vic).
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“Phase” means any one of the NTS Mobilisation Phase, the NTS Solution Requirements Phase, the NTS Release 0 and Prototyping Phase, the NTS Front Office Design and Hardware FAT Phase, the NTS Front Office Software FAT and Back Office Release 1 and 2 Phase, the NTS Final Back Office Release Phase, the NTS Front Office User Acceptance Test Phase, the NTS User Acceptance Test Phase, the NTS Front Office Implementation 1 Phase, the NTS Front Office Implementation 2 Phase, the NTS Regional and Metropolitan Implementation Completion Phase, and the NTS Operational Proving Phase as the context requires and “Phases” means any 2 or more of the abovenamed Phases.
“Phase Date” means each of the dates for completion specified in Schedule 1 applying to each Phase, as extended (if at all) under clause 18.7.
“Pilot Trial” means the trial of the Solution to be agreed and documented during the NTS Solution Requirements Phase in accordance with clause 11.1(b)(vi).
“PMMM” means the Project Management Maturity Model administered by Project Management Solutions, Inc.
“Principal’s Representative” means the person appointed by the Principal in accordance with clause 7.4.
“Privacy Obligations” means:
(a) obligations imposed on public sector agencies under the Information Privacy Act 2000 (Vic);
(b) any privacy obligations generally imposed on Government Agencies or contractors of Government Agencies by the Government notified to the Contractor by the Principal from time to time prior to the Completion Date of the NTS Solution Requirements Phase;
(c) obligations imposed on private sector organisations not exempt from regulation by the Privacy Act 1988 (Cth) (as amended by the Privacy (Private Sector) Amendment Act 2000);
(d) any privacy obligations generally imposed on non-Government entities by the Government notified to the Contractor by the Principal from time to time prior to the Completion Date of the NTS Solution Requirements Phase;
(e) any privacy obligation accepted by the Principal and notified to the Contractor by the Principal from time to time prior to the Completion Date of the NTS Solution Requirements Phase; and
(f) any privacy codes of conduct or similar instruments in relation to privacy protection which are industry standards and applicable to the Solution or the Initial Services or the Core Services notified to the Contractor by the Principal from time to time prior to the Completion Date of the NTS Solution Requirements Phase.
If there is or arises any inconsistency, ambiguity or discrepancy between any of the obligations referred to in paragraphs (a), (b), (c), (d), (e) and (f) then the following order of precedence will apply unless the Principal gives a direction to the contrary:
(a) paragraph (a);
(b) paragraph (b);
(c) paragraph (c);
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(d) paragraph (d);
(e) paragraph (e); and
(f) paragraph (f).
“Product” includes any instrument (whether in electronic form or not) which gives an entitlement to a service provided by an Operator but does not include the E-Purse.
“Product Management Services” means the services specified as such in the Requirements Document.
“Proforma Access Coordination Agreement” means the agreement set out in Part A of Schedule 24.
“Project” means the design, development, integration, installation, testing and implementation of the Solution and the development, testing and provision of the Initial Services and the Core Services.
“Project Control Group” means the project control group established under clause 7.1.
“Project Director” means the person referred to in Schedule 2 that has been nominated and engaged by the Contractor in accordance with clause 7.2.
“Project Documents” means:
(a) this agreement, including the Requirements Document;
(b) the Variation Orders;
(c) the Escrow Agreement;
(d) the Expert Deed;
(e) the Parent Company Guarantee;
(f) the Access Coordination Agreements;
(g) the Direct Agreements; and
(h) the Key Contracts.
“Project Manager” means the person referred to in Schedule 2 that has been nominated and engaged by the Contractor in accordance with clause 7.2.
“Project Master Schedule” means the detailed plan entitled the “Project Master Schedule” which is Exhibit 3A to this document prepared by the Contractor and based on the Project Timeline as amended from time to time in accordance with this agreement.
“Project Quality Assurance Plan” means the plan entitled “Project Quality Assurance Plan” to be prepared by the Contractor in accordance with this agreement, including the Requirements Document.
“Project Requirements Document” means the document entitled “Project Requirements Document” set out in Exhibit 1.
“Project Timeline” means the document which is Exhibit 3 to this agreement.
“Proof of Design” means demonstrating the functionality of the whole or part of the Solution.
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“Prototype” means a simulator which replicates the proposed system architecture of the Solution.
“Public Information Act” means the Public Records Act 1973 (Vic), Freedom of Information Act 1982 (Vic), Whistleblowers Protection Act 2001 (Vic), Financial Management Act 1994 (Vic), Audit Act 1994 (Vic) and Ombudsman Act 1973 (Vic).
“Quality Management System” means the quality management system to be implemented by the Contractor in accordance with this agreement, including the Requirements Document.
“Related Body Corporate” has the same meaning as in the Corporations Act.
“Reported Vandalism” means Vandalism set out in a Monthly Invoice in accordance with clause 23.9.
“Reports Data” means all data and expressions of data comprising reports generated or prepared by or on behalf of the Contractor for the purpose of complying with this agreement.
“Requirements Document” means the NTS Requirements Document and the Contractor’s Response.
“Response Matrices” means those parts of the Contractor’s Primary Response which are tables which respond to the NTS Requirements Document and are identified as “Response Matrix”.
“S&P” means the ratings agency Standard and Poor’s (Australia) Pty Limited, ACN 007 324 852, and its successors and assigns.
“Security Bonds” means the unconditional, on demand and irrevocable undertakings from a Financial Institution in favour of the Principal in the form set out in Schedule 20, and which specifies a location within Melbourne where demand is given and payment made, without further confirmation from the Financial Institution.
“Services” means the Initial Services, the Core Services and the Other Services and any Variations, changes or additions to the foregoing.
“Services Charge” means the charge to be paid to the Contractor during the Core Services Term and during the Initial Services Term in accordance with clause 27.
“Services Documentation” means the documentation referred to in clause 24.1(a) including those parts of the Design Documents which fall within the documentation referred to in clause 24.1(a).
“Smartcard” means a stored value card issued by a card issuer on which the Victorian Smartcard Application is resident which can be used in the Solution.
“Smartcard Base Management Services” means the services specified as such in the Requirements Document.
“Software” means a set of coded instructions that performs functions or provides working data or parameters to enable a device or system to operate in a specified manner, and be loaded into a system or device dynamically by a user and includes all Firmware and operating systems required by a system or subsystem to perform in a specified manner.
“Solution” means the ticketing and payment system designed, and to be provided by the Contractor as described in this agreement, including the Requirements Document, including all Solution Documentation, Device, computer software, computer hardware, Smartcards issued by or on behalf of the Principal, technical and system architecture, the Prototype and any
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Variations, changes or additions to the foregoing supplied by the Contractor (and excluding provision of the Services).
“Solution Completion Date” means the date specified in the Certificate of Completion in respect of the NTS Operational Proving Phase issued by the Principal in accordance with clause 17.2.
“Solution Documentation” means all drawings, plans, manuals, Software designs, reports, computer records, specifications and any other documents (whether in hard copy or electronic form) prepared or required to be prepared or used or referred to by or on behalf of the Contractor in performing the Work including the Design Documents and the Services Documentation.
“Spate” means Vandalism designated as “Spate” in accordance with clause 23.9(d).
“Stakeholders” means all parties with an interest in the Project, including a governmental, financial, operational, management or other interest.
“System Data” means all Usage Data, Configuration Data, Reports Data and Personal Data.
“Tax Act” means the Income Tax Assessment Act 1936 of Australia and associated regulations and, where applicable, any replacement legislation including, but not limited to, the Income Tax Assessment Act 1997 of Australia.
“Technical Support Services” means the services specified as such in the Requirements Document.
“Term” means the period commencing on the Commencement Date and, subject to earlier termination, expiring on the date which is the date on which the Core Services Term expires.
“Territory” means:
(a) Australia and New Zealand; and
(b) outside Australia and New Zealand for the purpose of facilitating the operation, replacement, maintenance, modification, adaption or upgrade of the Solution in Australia or New Zealand.
“Test Data” means a set of test inputs, execution conditions and expected results developed for a particular objective, such as to exercise a particular program path or to verify compliance with a specific requirement.
“Test Documents” means the detailed test plans and procedures prepared by the Contractor and submitted to the Principal in accordance with this agreement, including the Requirements Document.
“Test Plan” means the plan entitled “Test Plan” which is prepared by the Contractor in accordance with this agreement and based on the requirements and the Test Strategy set out in Schedule 39.
“Test Strategy” means the strategy for testing set out in Schedule 39.
“Third Party Licences” means all licences, maintenance and similar contracts for the Third Party Software.
“Third Party Software” means commercial off the shelf Software and Firmware owned by any entity other than the Contractor or its Related Body Corporate which is:
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(a) comprised in all or any part of the Solution; or
(b) otherwise used or to be used by, or on behalf of, the Contractor in performing the Initial Services or the Core Services; or
(c) Software tools necessary for the Principal, or that a person in the Principal’s position, would otherwise require to modify, maintain, test, further develop or regenerate the bespoke Software contained in the Solution or otherwise exercise any rights or ownership given to the Principal under clause 30,
and is identified as such in the List of Software and any information provided under clause 30.8(e), but excludes the Software embodying the Equipment IP.
“Total Bus Access” means the total access to the Bus Property as set out in the Final Bus Access Plan.
“Transfer” means, subject to clause 30.10, the transfer of:
(a) the Solution; and
(b) to the extent it is not part of the Solution, all infrastructure used in the provision of the Initial Services or Core Services, (except to the extent that it is infrastructure of an entity other than the Contractor which is also used by that entity to provide a material level of services not related to the Initial Services or Core Services and which the Contractor, using reasonable endeavours, is not able to transfer),
including, subject to clause 30.10, the Integrated Test Facility, to the Principal or a third party (as the case may be) in a manner which includes enabling the Principal or a third party to:
(i) take over the operation of the Solution and the provision of the Initial Services and Core Services as a going concern; or
(ii) replace the Solution with another system.
“Transfer Plan” means the plan entitled “Transfer Plan” to be developed by the Contractor in accordance with this agreement and the Transfer Principles.
“Transfer Principles” means the principles governing Transfer set out in Schedule 13.
“Transit Purposes” means all fare payment, ticketing and fare collection activities of, or connected with, the Operators.
“Transition Deed” means the deed titled New Ticketing Solution Transition Amendment Deed dated 12 May 2005 between the Principal, OLT and others.
“TTA’s Privacy Management Plan and Policy” means the Principal’s own privacy management plan and policy as notified to the Contractor by the Principal from time to time prior to the Completion Date of the NTS Solution Requirements Phase.
“Usage Data” means all data and all expressions of that data resulting from or in respect of transactions generated or processed by the Solution other than data which is owned by third parties (except the Contractor or its Related Body Corporate) including, any data or expression of data on a Smartcard that represents stored value which may be redeemed for services provided by any Operator.
“Value” includes rights associated with any Product.
“Vandalism” means a deliberate and unauthorised third party act against a Device which:
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but does not include:
“Vandalism Cap” means a total of 10,000 Equivalent Incident Units of Reported Vandalism.
“Vandalism Category” means the categories of Vandalism set out in Schedule 35.
“Vandalism Costs” means the direct incremental costs incurred by the Contractor for work and equipment reasonably required for the rectification, repair or replacement (as appropriate) of a Device (excluding any element of margin which accrues to the Contractor, any Related Body Corporate or any consortium partner other than pursuant to an arms length arrangement).
“Vandalism Year” means a one year period, with the first Vandalism Year commencing on the Completion Date for the Pilot Trial and each subsequent Vandalism Year commencing on the annual anniversary of that date.
“Variation” means an alteration or addition to, or reduction in, the Work, the Solution or the Initial Services or the Core Services.
“Variation Notice” means a notice proposing a Variation issued by the Principal’s Representative to the Contractor under clause 20.1(a).
“Variation Order” means an order in the form set out in Schedule 5 and issued under and in accordance with clause 20.3.
“Vehicle” includes coaches, buses, trains, trams and other vehicles.
“Version” means a new edition of any Software which contains substantial new functionality or incorporates substantial restructuring of the Software.
“Victorian Industry Participation Plan” means the plan entitled “Victorian Industry Participation Plan” which is Exhibit 5 to this agreement.
“Victorian Smartcard Application” means:
(a) the electronic records that comprise the E-Purse;
(b) the electronic records that comprise Product (if any);
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(c) the electronic records representing any entitlement to concessionary-travel or free travel recognised by one or more of the Operators;
(d) the electronic records that define the interaction of the medium upon which the above three electronic records are resident with any part of the Solution;
(e) the electronic records that contain data concerning a limited number of the most recent previous add-value and fare payment transactions;
(f) the data formats and definitions of the electronic record listed above;
(g) the identity uniquely associated with the electronic records listed above;
(h) the data base schema that uniquely identifies the association of the electronic records listed above with other data residing within any part of the Solution;
(i) the executable components and associated descriptive documentation by which the electronic records listed above are created, read or modified when the medium on which the electronic records listed above resident interacts with a Device;
(j) the executable components and associated descriptive documentation by which the ability to create, read and modify the electronic records listed above is implemented between the medium on which the electronic records are resident and a device which is part of the Solution; and
(k) the Configuration Data, executable components and associated descriptive documentation by which any interaction which creates, reads or modifies the electronic records listed above is authenticated and kept secure.
“Wayfarer” means Wayfarer Transit Systems Limited English Registered No. 1232487.
“Work” means any work required to be performed by the Contractor pursuant to this agreement including Delivery and provision of the Initial Services and the Core Services.
“World’s Best Practice” means the highest standards and practices achieved anywhere in the world in relation to any aspect of, or activity associated with, the Solution.
In this agreement:
and unless the context indicates a contrary intention:
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In the interpretation of this agreement, no rule of construction applies to the disadvantage of one party on the basis that that party put forward or drafted this agreement or any provision in it.
the following order of precedence will apply:
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the Contractor must notify the Principal’s Representative, or the Principal’s Representative may notify the Contractor, in writing within 10 Business Days of becoming aware of any such inconsistency, ambiguity or discrepancy. The Principal’s Representative must determine the intention of the parties and notify the Contractor of the resolution of the inconsistency, ambiguity or discrepancy within 20 Business Days of the Principal’s Representative being so notified. No direction by the Principal’s Representative under this clause 1.4 will constitute a Variation.
the preferred standard or outcome within each of clauses 1.4(c)(i), (ii) or (iii), as determined by the Principal’s Representative, will prevail.
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Omission of details of the Work in the Project Documents or the misdescription of details generally acknowledged to be customary and/or necessary to carry out the Work or which the Contractor knew or reasonably should have known and should have included in the Solution Documentation will not relieve the Contractor from performing such omitted or misdescribed Work, and they must be performed as if fully and correctly set forth and described in the Project Documents, without entitlement to a Variation under this agreement.
The Principal may from time to time issue practice notes to the Contractor in relation to any provision of the Project Documents and may at any time vary or revoke any such practice note. The parties agree that practice notes are intended to facilitate the administration of the Project Documents but do not have contractual force and are not contractually binding on the Principal or the Contractor.
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This clause 2.1 records the intention of the parties that, prior to the Principal executing and dating this agreement and each other of the Project Documents referred to in clause 2.1 to which it is a party:
Upon these conditions having been so satisfied, or so waived, the Principal is entitled to and will execute and date this agreement and those Project Documents referred to in this clause 2.1 to which it is a party.
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except that any determination of the Expert will be final and binding on each party and clauses 49.5(l) and 49.5(m) will not apply.
The payment of the Milestone Payment due after the Completion Date for the NTS Mobilisation Phase is subject to the Principal’s Representative being reasonably satisfied that the following conditions have been met:
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The Contractor must notify the Principal’s Representative in writing as and when it considers that each condition precedent in clause 2.3 has been satisfied.
The Contractor must take all reasonable steps to satisfy the conditions precedent in clause 2.3 by:
If the conditions precedent in clause 2.3 are not satisfied or waived by the relevant date under clause 2.6, then:
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The Contractor must design, develop, integrate, install, test and implement the Solution, conduct other testing and develop, test and provide the Initial Services and the Core Services in accordance with, and in compliance with, the following:
The Contractor warrants that prior to the date of this agreement:
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in compliance with all Approvals, all requirements of any Authority and all laws and industry codes, including all applicable banking, funds transfer, deposit holding, privacy and related laws, regulations and directives, from time to time applicable to the operation of the Solution.
The Contractor must provide all reasonable assistance to enable the Principal, the Bus Operators and the Access Providers to comply with all Approvals, requirements of any Authority and all laws and industry codes, including all banking, funds transfer, deposit holding, privacy and related laws, regulations and directives, from time to time applicable to the Principal, the Bus Operators or the Access Providers in relation to any matter dealt with in or connected with this agreement. The cost to the Contractor of providing such assistance will be relevant to, and will be taken into account in, determining whether it is reasonable in a particular instance for the Contractor to provide assistance under this clause.
Where a Response Matrix in the column headed Minimum Requirement Compliance Level is marked:
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A change in law means:
which:
and which:
or
and with which the Contractor is legally obliged or required by the Principal to comply and for the avoidance of doubt, excludes a change in an existing Law or a new Law in respect of:
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Nothing in, or contemplated by, the Project Documents will be construed or interpreted as constituting a relationship between the Principal and the Operators on the one hand and the Contractor on the other hand as that of partners, joint venturers, fiduciaries, employer and employee, principal and agent or any other fiduciary relationship.
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and the existence of such obligation, right or entitlement and the existence and amount of such Claim is to be assessed assuming clauses 6.2(a) and (b) do not apply.
Notwithstanding any other provision of this agreement:
will not relieve the Contractor of its responsibility for such material, document or information or of its obligations or liabilities under this agreement. A failure by the Principal or any of the Principal’s advisers to notify the Contractor of any defect in or concern associated with any such material, document or information or following any such inspection will not relieve the Contractor of its liabilities, or constitute a waiver of any of the Principal’s rights, under this agreement, including the Requirements Document and the NTS Requirements Specification.
The Contractor acknowledges and warrants that it is aware that the Principal has relied upon the warranties contained in this agreement in entering into this agreement.
The Contractor acknowledges:
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The Contractor warrants, for the benefit of the Principal, that as at the date of this agreement the pricing under this agreement, including the pricing of components of the Solution, is the same or lower than pricing offered by the Contractor for similar products or services anywhere in the world when determined on a like for like basis and taking into account the supply of the Solution and the Services in Australia.
The persons referred to in clause 7.1(a)(ii) may appoint delegates to attend Project Control Group meetings in their absence and to otherwise discharge their responsibilities in relation to the Project Control Group.
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39
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the Contractor must advise the Principal’s Representative in writing of such inconsistency, ambiguity or uncertainty. Within 10 Business Days of receiving notice of the inconsistency, ambiguity or uncertainty, the Principal’s Representative must notify the Contractor in writing which direction to follow and the Contractor must comply with that notice.
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43
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the Contractor must:
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47
provided that such amendment cannot reduce the Total Bus Access.
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49
In these circumstances Delay Costs will be adjusted accordingly.
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for the Contractor to carry out the obligations set out in clauses 11.1(a) and 11.1(b), taking into account any relevant information provided to the Contractor about limitations in relation to access to any Site.
The Contractor will be responsible for:
unless:
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the Principal’s Representative may nominate the subcontract or proposed subcontract or supply contract or proposed supply contract as a Key Contract by notifying the Contractor in writing.
in respect of any Key Contract nominated by the Principal under clause 10.3(a) and must procure that all other parties to the Key Contract enter into that Direct Agreement. The Contractor’s obligations under this clause 10.3(c) will only apply in respect of each Key Contract to which Wayfarer and Gunnebo are party to the extent required pursuant to clause 10.3(h).
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in each case being in connection with the Project or the undertaking of the Work, the Initial Services or the Core Services.
The Contractor must comply with the Victorian Industry Participation Plan.
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The Contractor warrants that the NTS Requirements Specification will identify and contain all of the requirements of the Government, Governmental Agencies, the Principal, the Operators and Stakeholders in relation to the Project and the Solution:
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The Contractor:
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reimburse the Contractor for the amount set out in the notice in relation to the payment made to the subcontractor and pay to the Contractor the direct costs set out in the notice plus a [**]% margin on those direct costs of administration, except that where the Principal disputes any amount set out in the notice from the Contractor:
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the Contractor will be entitled to claim an extension of time in accordance with clause 18.7 and the Principal will pay the Contractor the Daily Cost for each day for which the Contractor is not authorised to undertake any further Work under clause 11.6(c) in the period between the Completion Date for the NTS Solution Requirements Phase and the day 40 Business Days after that day.
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in each case:
then on the Phase Date for the NTS Solution Requirements Phase or such earlier date in the case of the OH&S Plan, the Industrial Relations Plan or the Business Continuity Plan (as the case may be) or such later date as has been agreed, or in the event that a later date cannot be agreed, on the Phase Date for the NTS Solution Requirements Phase, those Category 3 Matters which have not been agreed may be referred by either party to the Expert for determination in accordance with clause 49.5 taking into account:
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except that any determination of the Expert will be final and binding on each party and clauses 49.5(l) and 49.5(m) will not apply.
The Contractor must design the Solution in accordance with:
The Contractor warrants that:
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The Contractor must prepare the Design Documents in accordance with this agreement, including the Requirements Document.
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65
The Contractor must develop, install and deliver the Prototype in accordance with this agreement, including the Requirements Document at a premises nominated by the Principal.
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to determine a fair and reasonable recompense to the Principal for the Contractor not remedying such non-compliance. After this determination is made the greater of the amounts determined by the Principal under clauses 12.7(c)(i), 12.7(c)(ii) or 12.7(c)(iii) will be a debt due and payable by the Contractor to the Principal within 30 days.
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The Contractor will provide objective traceability from each requirement in the Requirements Document or the NTS Requirements Specification to relevant parts of the Design Documents, including:
The Contractor must implement the Solution in accordance with the NTS Requirements Specification and this agreement, including the Requirements Document and Project Timeline.
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submit to the Principal’s Representative updates of the Project Master Schedule which must nonetheless comply with the Project Timeline and the Phase Dates.
The Contractor must, within 2 Business Days after the end of each calendar month, submit to the Principal’s Representative a monthly progress report in accordance with this agreement, including the Requirements Document, which provides such information that the Principal may from time to time request in order to fully inform the Principal about the progress of Delivery.
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The Contractor must develop, integrate and install the Solution:
The Contractor warrants that:
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to determine a fair and reasonable recompense to the Principal for the Contractor not remedying such non-compliance. After this determination is made the greater of the amounts determined by the Principal under clauses 14.3(g)(i), (ii) or (iii) will be a debt due and payable by the Contractor to the Principal within 30 days.
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The Contractor must include in its Test Plan and Test Documents for each test to be performed, the testing interface with the Other Services and the Initial Services and the Core Services in such a way as to ensure the Services comply with the Solution Documentation and this agreement, including the Requirements Document.
The Contractor must conduct testing and inspection in accordance with this agreement, including the Requirements Document and the Test Plan and Test Documents.
All Test Data and results must be submitted by the Contractor to the Principal’s Representative within 5 Business Days after the relevant testing is completed.
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to determine a fair and reasonable recompense to the Principal for the Contractor not remedying such non-compliance. After this determination is made the greater of the amounts determined by the Principal under clauses 15.8(c)(i), (ii) or (iii) will be a debt due and payable by the Contractor to the Principal within 30 days.
The Principal may at any time inspect any of the Work after giving the Contractor reasonable prior notice, being at least 24 hours. Any inspection of the Work carried out on the premises of subcontractors will be with the prior agreement of the Contractor.
The Contractor acknowledges that the Principal owes no duty to the Contractor to:
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The Contractor will provide objective traceability from each requirement in the Requirements Document or the Solution Documentation (as the case may be) to relevant parts of the Test Documents, including:
The Contractor must not, without the prior written approval of the Principal’s Representative, commence the further installation and implementation of any Device which may affect the public other than the installation or implementation of any Devices which was scheduled to be completed prior to the date for completion of the NTS User Acceptance Test Phase, as set out in the Project Master Schedule, until after the Principal’s Representative issues the Certificate of Completion for the NTS User Acceptance Test Phase.
The Contractor must not, without the prior written approval of the Principal’s Representative, commence any further installation and implementation of any Device which may affect the public other than the installation or implementation of any Devices which was scheduled to be completed prior to the date for completion of the Pilot Trial, as set out in the Project Master
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Schedule, until after the Principal’s Representative issues the Certificate of Completion for the Pilot Trial.
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Subject to clause 17.1, where Completion has occurred, the Principal’s Representative must issue to the Contractor a Certificate of Completion within the time required by clause 17.1 certifying that Completion of the Phase has taken place and the date this occurred.
Any Certificate of Completion issued under this clause 17 is not an approval by the Principal of the Contractor’s performance of its obligations under this agreement or that all or any part of the Solution or the Works is in accordance with this agreement.
Clause 17.1 to 17.3 will apply in relation to the Pilot Trial as if it were a Phase, with the conditions precedent referred to in clause 17.1 being the conditions which must be met for completion, referred to in clause 11.1(b)(vi)D and documented in accordance with that clause 11.1(b)(vi).
The Contractor must:
If the Contractor falls behind or becomes aware of any matter which will, or is likely to, cause it to fall behind, in:
the Contractor must:
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and the Principal may require rescheduling of the Project Timeline and Project Master Schedule as it sees fit without waiving any rights that the Principal has against the Contractor because the Contractor has fallen behind in the performance of the Work as indicated in the Project Timeline and Project Master Schedule.
Except as otherwise provided in this agreement, the Contractor will bear the risk of all delays to Delivery and all costs, losses, liabilities, expenses, payments, outgoings and damages arising from such delay.
If Completion of a Phase does not occur by the relevant Phase Date, the Contractor will provide the Principal’s Representative with written details of its proposed program of work to complete the Phase and thereafter diligently carry out such program to ensure that the Phase is completed as soon as possible.
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but this does not limit any other right or action the Principal may have whether under this agreement or at Law, arising out of or in connection with that delay.
Amount Payable = (DL × $50,000) – PLD
Where:
DL is the number of days from the relevant Phase Date to the Completion Date for that Phase.
PLD is the amount (if any) already held on account by the Principal as a result of payments previously made by the Contractor under this clause in
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relation to a failure to Complete a previous Phase by its Phase Date.
Where the result of the application of the formula is a negative number, then such amount shall be refunded by the Principal to the Contractor.
will be paid to the Contractor by the Principal as part of the payment due for the Completion of the NTS Operational Proving Phase.
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which gives detailed particulars of the delay (to the extent then known to the Contractor having made all reasonable enquiries or which the Contractor, having made all reasonable enquiries, should reasonably have known by that time) and the effect this will have on the Project Timeline and Project Master Schedule and (if possible) states the number of days extension of time claimed;
and where the cause of the delay is the occurrence of Access Delay, the delay must be in relation to a critical path and the Contractor must have
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provided a draft of the relevant Access Plan or Bus Access Plan to overcome the effect of the delay.
If at any time during a Defects Liability Period there are any Defects in a Phase, or the Solution, then:
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a proposed Variation.
If the Principal’s Representative does not withdraw or confirm the Variation Notice within the time required by this clause 20.1(c), it will be deemed to have withdrawn the Variation Notice unless otherwise agreed between the parties.
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substantiated by detailed particulars (including design information), and any other information requested by the Variation Notice;
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other than as specified by the Contractor in accordance with clause 20.2(a)(v);
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after completion of the Variation in accordance with the Variation Order to the reasonable satisfaction of the Principal.
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Except where and as expressly provided for under this clause 20, the Principal will not (insofar as it is possible to exclude such liability) be liable to the Contractor or any subcontractor, whether for costs, losses, expenses, damages, liabilities, payments, outgoings, extensions of time or otherwise upon any claim arising out of or in connection with any Variation, Variation Notice, Variation Order, Acceleration Direction or any delay arising out of or in connection with any Variation.
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the Contractor must perform its obligations under this agreement in accordance with the approved Variation.
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The Contractor must provide to the Principal’s Representative promptly following implementation of a Variation copies of all documentation used to implement the Variation. The Contractor must amend, and deliver to the Principal’s Representative, the Solution Documentation and Services Documentation to reflect any changes resulting from a Variation.
(a) The Principal may require the Contractor to carry out an Option by issuing a written order at any time up to the Expiry Date for that Option and the Contractor shall not be entitled to any extension of time as a result of carrying out an Option under this clause 20A.1.
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(b) If the Principal requires an Option to be carried out after its Expiry Date the Contractor shall carry out the work as a Variation in accordance with clause 20 and clauses 20A.2, 20A.3 and 20A.4 shall not apply.
(a) The cost of an Option carried out pursuant to a notice issued by the Principal under clause 20A.1(a) shall be the corresponding Option Price to that Option set out in Schedule 34.
(ii) Without derogating from clause 20A.2(b)(i), the Option Price is deemed to cover:
A all labour, materials, on and off-site overheads and profit required to perform all work the subject of the Option and comply with the Contractor’s obligations under this agreement; and
B. all costs and expenses which will be incurred by the Contractor arising out of or in connection with the Option delaying the Contractor.
(a) The Principal shall pay the Contractor the Option Price of an Option carried out pursuant to a notice issued by the Principal under clause 20A.1(a) at the time that payment is due in respect of the Phase to which the Option relates.
(b) If the effect of an Option carried out pursuant to a notice issued by the Principal under clause 20A.1(a) is to reduce the cost of the Project, the relevant components of the amounts payable by the Principal to the Contractor under this agreement will be decreased.
Except where and as expressly provided for under this clause 20A, the Principal will not (insofar as it is possible to exclude such liability) be liable to the Contractor, whether for costs, losses, expenses, damages, liabilities, payments, outgoings, extensions of time or otherwise upon any Claim arising out of the execution or carrying out of any Option pursuant to a notice by the Principal under clause 20A.1(a) or any delay arising out of or in connection with such Option.
Subject to the terms of this agreement and any right of set-off which the Principal may have, the Principal must pay to the Contractor the Capital Price in accordance with the Payment Schedule.
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If, at the time the Contractor purports to submit a payment claim under clause 21.3(a), the Contractor has not:
then:
any amount included in the payment notice until the Contractor has rectified the circumstances referred to in paragraphs (a) to (e) above.
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in accordance with this clause 21.
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21A.1 Provision of Delivery Services
Subject to clause 21A.3, the Contractor must provide the Delivery Services in accordance with this agreement, including the Requirements Document, the Solution Documentation and the Project Documents throughout the Delivery Services Term.
which are required at any time during the Delivery Services Term to support the Solution or any part of the Solution which is operating at that time.
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21A.3 Discontinuance of Delivery Services
The Contractor will provide the Initial Services in accordance with this agreement, including the Requirements Document, the Initial Services Performance Requirements, the Solution Documentation and the Project Documents throughout the Initial Services Term.
in accordance with this agreement.
Subject to clause 5, in providing the Initial Services, the Contractor must comply with all applicable banking, funds transfer, deposit holding, privacy and related laws, regulations, directives, industry codes, and Solution rules from time to time applicable to the provision of the Initial Services, including the Privacy Obligations.
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All policy decisions regarding the Initial Services will rest with the Principal. Such matters as the stations or facilities to be serviced, hours of service, levels of service, public and media information, and interfacing with the public at large will be determined as provided in the Project Documents or as otherwise directed by the Principal.
The Contractor warrants that:
The Contractor must:
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within 10 Business Days of the expiration or earlier termination of the Initial Services Term.
The Contractor will provide the Core Services in accordance with this agreement, including the Requirements Document, the Core Services Performance Requirements, the Solution Documentation and the Project Documents throughout the Core Services Term.
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in accordance with this agreement.
Subject to clause 5, in providing the Core Services, the Contractor must comply with all applicable banking, funds transfer, deposit holding, privacy and related laws, regulations, directives, industry codes, and Solution rules from time to time applicable to the provision of the Core Services, including the Privacy Obligations.
All policy decisions regarding the Core Services will rest with the Principal. Such matters as the stations or facilities to be serviced, hours of service, levels of service, public and media information, and interfacing with the public at large will be determined as provided in the Project Documents or as otherwise directed by the Principal.
The Contractor warrants that:
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The Contractor must:
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within 10 Business Days of the expiration or earlier termination of the Core Services Term.
and the total Equivalent Incident Units for the relevant month.
at the Contractor’s cost.
If the Contractor reasonably considers that such acts of Vandalism have occurred, it will refer the specified acts to the Principal. If the Principal agrees that such acts of Vandalism have occurred such acts of Vandalism will be designated “Spate”. If the Principal does not agree that such acts of Vandalism have occurred, the Contractor
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may refer the matter to the Expert to make a determination as to whether such acts of Vandalism have occurred. If the Expert determines that such acts of Vandalism have occurred such acts of Vandalism will be designated as “Spate”.
in accordance with this agreement, including the Requirements Document and the Performance Requirements.
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the Contractor must replace the components of the Solution in accordance with the Period Replacement Program agreed under clause 23.10(c) or as determined under clause 23.10(d).
in accordance with this clause and clauses 27.4 and 27.5.
Notwithstanding any other provision of this agreement, the Principal is not obliged to pay the Contractor for any amount claimed under this clause 23.10 unless the Monthly Invoice complies with this clause 23.10(g).
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The Contractor must as part of the Core Services provide Software support in respect of the Solution including:
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The Contractor warrants that:
the Contractor must notify the Principal’s Representative within 30 Business Days of becoming aware, giving full details and its anticipated benefits.
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require the Contractor to utilise the technological development or improved means of providing the Initial Services and the Core Services as notified under this clause 25. The parties agree to meet and negotiate in good faith and cooperatively to implement any technological developments or improved means of providing the Initial Services and the Core Services, including the sharing of any costs savings arising from any new developments notified to the other party under this clause 25.
Subject to the other provisions of this agreement, the Principal will:
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as adjusted in accordance with the other provisions of this agreement, including as adjusted in accordance with a Variation Order made under clause 20 and in accordance with the provisions of this clause 27 and clause 28.2 where relevant.
The Contractor and its servants and agents must not, without the prior written approval of the Principal, impose fees and charges or conditions of use in connection with the issuing of Smartcards, the use of Smartcards or other provision of the Services or Delivery Services upon:
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pay to the Contractor exit costs calculated in accordance with Part B of Schedule 21.
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Where the Contractor fails to comply with its obligations under clause 28.1, the Contractor must promptly provide to the Principal for its approval, a written corrective action plan providing details of how it intends to rectify such failures in the future. If in the Principal’s opinion the corrective action plan does not satisfactorily address the failure, the Principal may require the Contractor to provide a further more detailed plan. The Contractor must promptly implement any such corrective action plan which is approved by the Principal.
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The Principal will own the Float. The Float must be held in a bank account owned by the Principal.
The Contractor must ensure that all contractual relationships in relation to the Solution reflect this clause 29.
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If any stored value on a Victorian Smartcard Application is subject to the Unclaimed Moneys Act 1962 (Vic) as amended by the Unclaimed Moneys (Amendment) Act 2004 (Vic), the Contractor agrees to:
In addition to meeting the requirements imposed by this agreement including the Requirements Document, the Contractor must implement and maintain appropriate system capabilities to log and preserve an audit trail for all material events occurring as part of transactions involving Cardholders. The Contractor will provide a record of those audit events relating to the Initial Services and Core Services to the Principal’s Representative in a mutually agreed format on a monthly basis.
To the extent that during the Core Services Term there are reconciliation discrepancies in the Solution:
excluding reconciliation discrepancies arising as a result of services not provided by the Contractor or a person providing services on behalf of the Contractor, the Contractor:
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The Contractor represents and warrants that:
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except to the extent that such claim is caused by a breach of this agreement by the Principal.
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Notwithstanding clauses 30.1 and 30.2, if as a result of any alleged infringement or threatened infringement of Intellectual Property rights the Principal, Operator, Contractor, or any other entity performing Work is stopped (whether by court order or otherwise) from exercising Intellectual Property it had been exercising or was proposing to exercise to perform the Work, the Contractor, at the Contractor’s sole cost and expense must:
If the amount of time necessary to proceed with one of these options is deemed excessive by the Principal, the Principal may direct the Contractor to select another option and the Contractor must comply with that direction.
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however if the Principal makes the payment referred to in clause 30.5(b), that licence arises in respect of all the Licensed Intellectual Property which:
as it stands at that date (provided that, for the avoidance of doubt, the release of such Escrow Material will remain governed by clause 30.6);
in which case the remaining [**]% of that Developed Intellectual Property vests in the Principal.
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except to the extent that such claim is caused by a breach of this agreement by the Principal.
Where a written request is made under clause 30.6(b)(iii), the Principal is only entitled to be provided with that part of the Escrow Material which is the subject of the written request.
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the Principal will be entitled upon giving written notice to the Contractor, at no cost to the Principal to be provided with that part of the material referred to in paragraph (c) of the definition of Escrow Material.
(ca) Subject to paragraph (e), if any or all of the Devices supplied by Wayfarer are no longer manufactured by or on behalf of Wayfarer and:
the Principal will be entitled upon giving written notice to the Contractor, at no cost to the Principal to be provided with that part of the material referred to in paragraph (d) of the definition of Escrow Material.
(cb) Subject to paragraph (e) if any or all of the Devices supplied by Gunnebo are no longer manufactured by or on behalf of Gunnebo and:
the Principal will be entitled upon giving written notice to the Contractor, at no cost to the Principal to be provided with that part of the material referred to in paragraph (e) of the definition of Escrow Material.
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The Contractor must indemnify those indemnified against all Claims which arise in relation to an infringement of Moral Rights resulting from the use, operation, maintenance or modification of the Solution or any part of it. Those indemnified for the purpose of this clause 30.7 are the Principal, anyone receiving a right through the Principal to exercise any Intellectual Property assigned, granted or licensed to the Principal under this agreement and any of their officers, employees, agents and contractors.
as the Principal reasonably requests to enable it to fully exercise its ownership and rights under this agreement. The following provisions of this clause 30.8 do not limit the generality of this clause 30.8(a).
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Notwithstanding any other provision of this agreement, this agreement does not exclude or limit, or have the effect of excluding or limiting, the operation of subsection 47B(3) or sections 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) or Part II, Division 3 of the Circuit Layout Act 1989 (Cth).
This clause will be of no application to the extent that it affects Third Party Software that is required by the Contractor to perform its obligations under this agreement and the Principal is unable to obtain for the Contractor necessary rights to continue to use such Third Party Software.
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The parties agree that ownership of the Equipment IP does not vest in the Principal pursuant to clause 32. The Contractor must ensure, however, that at the time ownership of tangible items (including computer hardware) forming part of the Solution vests in the Principal pursuant to clause 32, the Principal has such perpetual, royalty free transferable licences of the Equipment IP as will enable the Principal to fully and effectively use and deal with the tangible items as owner of the tangible items, and to permit others to use those tangible items (including computer hardware) under contract with the Principal.
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including all Intellectual Property in these matters.
This ownership vests in the Principal upon payment by the Principal of the amount payable at the end of the Phase in which that matter is required to be delivered pursuant to this agreement or upon the creation of the matter (whichever is the later).
If any component of any Intellectual Property which is licensed or assigned under this agreement expires through the effluxion of time or is or becomes invalid, then, without limiting the Principal’s rights in respect of that expiry or invalidity, that component will, to that extent only, be deemed to be excluded from the Intellectual Property licensed or assigned under this agreement and this agreement will otherwise continue in full force and effect.
The Contractor must ensure that all of its contracts in relation to this agreement reflect the rights and obligations set out in this clause 30 and must make such contracts available to the Principal for inspection upon request.
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but does not include any exercise of the Licensed Intellectual Property outside the Territory.
Subject to clause 30, ownership of that part of the Solution which is the subject of a Completion Certificate will vest in the Principal free of encumbrances upon payment by the Principal for the relevant Phase. Ownership of the Solution vests in the Principal free of encumbrances upon the payment in accordance with clause 21.3 of the payment due after Completion of the NTS Regional and Metropolitan Implementation Completion Phase.
Subject to clause 30, if the Contractor replaces any material, Device, or Software when carrying out its obligations under this agreement, ownership of the replacement material, Device or Software will vest in the Principal.
The Contractor must indemnify the Principal against all costs, losses, liabilities, damages, expenses, payments, or outgoings the Principal may suffer or incur arising out of or in connection with a failure by the Contractor to ensure that the Principal has unencumbered ownership as required by this clause.
The Contractor must ensure that any sub-contracts or supply contracts relating to the Solution do not include any retention of ownership clauses or any clauses under which the sub-contractor or supplier retains any security or other interest in any item which will become part of the Solution which would prevent ownership of those items passing to the Principal in accordance with clause 32.1.
Nothing in this clause imposes an additional obligation on the Contractor to ensure that any part of the Solution (including any material, Device or Software replaced in the Solution) which is attached to or installed on any property in undertaking the Work in accordance with the Contractor’s obligations under this agreement does not become a fixture on such property.
Certain materials, equipment and Software to be incorporated in the Work have been specified in the Contractor’s Response by reference to trade names or the names of manufacturers and relevant catalogue information. The Contractor, in implementing the Solution, will provide all materials, equipment and software in accordance with the specification for those materials, equipment and Software in the Contractor’s Response, and will not change those materials, equipment or Software without the approval of the Principal which will not be unreasonably withheld if the Contractor has demonstrated to the reasonable satisfaction of the Principal that:
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32B. Government Purchasing Power
Except as otherwise provided in this agreement including clause 23.9:
during the Term.
If any part of the Solution for which the Contractor is responsible is damaged or destroyed the Contractor must (without limiting its obligations under this clause):
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unless the Principal determines that there is no repair and replacement activities to be undertaken, in which case the Contractor must pay the Principal the amount which it would have incurred in carrying out any repair and replacement activities.
The Contractor is responsible for all discrepancies that result from fraud, misrepresentation, criminal or other wrongful act, theft or default by the Contractor, its officers, employees, subcontractors or agents or any Related Body Corporate and will indemnify the Principal against any liability, cost, charge, expense or damages it suffers or incurs as a result of such fraud, misrepresentation, criminal or other wrongful act, theft or default.
The Contractor must, on the date of this agreement, provide to the Principal, for the purposes of ensuring the due and proper performance of its obligations under this agreement, Security Bonds with an expiry date no earlier than 3 years from the date of this agreement in a form and substance satisfactory to the Principal for the following amounts:
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the Principal shall release any money in the Bond Security Account which exceeds the total amount for Bond 2, to the Contractor. On the date 12 months after the expiration of the Term or earlier termination of this agreement and due compliance by the Contractor of all of its obligations to the Principal, the Principal shall release the money in the Bond Security Account to the Contractor.
Without in any way limiting the Principal’s rights to demand, receive, or use the proceeds of the Security Bonds, the Principal will be entitled to demand, receive, and use the proceeds of the Security Bonds or use any money deposited into the Bond Security Account whenever it asserts a right to the payment of moneys by the Contractor under, arising out of or in connection with this agreement or otherwise at Law relating to the Solution.
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The Contractor must not take any steps to injunct or otherwise restrain:
The Contractor will provide the Security Bonds to the Principal under clause 34.1 as a condition precedent to this agreement.
The Principal will release the Security Bonds to the Contractor as follows:
the Principal must release the balance of Bond 1 then held to the Contractor;
In no event will the existence of the Security Bonds or the stated amount of them be construed to limit the amount of damages payable by the Contractor under or in accordance with this agreement.
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arising out of or in connection with the Work or the Solution including arising out of or in connection with rail risks, both for a sum insured of not less than $[**] for any one claim and in the aggregate (public
138
liability) and for all claims in the aggregate, any one period of insurance (product liability);
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Insurances which the Contractor is required to effect under this agreement must contain terms such that:
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provided that if the Contractor directly
receives any proceeds from the insurances specified in
clause 36.1(a)(i) it will pay all such proceeds to the Principal or to
such account as the Principal may require and paragraph (ii) of this
clause 36.3 will then apply.
The Principal acknowledges that some insurance policies required to be effected by the Contractor under this clause 36 will have deductibles greater than $[**] but not more than US$[**] (or such other amount notified to the Principal in accordance with this clause). Where the Government or Governmental Agencies having an insurable interest according to the Project Documents (in this paragraph the “Other Insured Parties”) or the Principal under the insurances required to be effected and maintained under this clause 36 has paid or incurred, or is required to pay or incur, any deductible in respect of a claim made or to be made or which, but for the size of the deductible, would have been made under an insurance policy which is required to be effected by the Contractor under this clause 36 and such deductible is greater than $[**], or where the Principal or any Other Insured Party could, but for the size of the applicable deductible have made a claim under such an insurance policy, [**] under and in accordance with clause 12 of the Parent Company Guarantee [**] by the Principal or any Other Insured Party [**]. The Principal will [**]. If the deductible under the Keane Inc. global insurance policy is proposed to be increased above US$[**] at any time during which the Contractor’s obligations to effect and maintain insurance under this clause 36 are being met under the Keane Inc. global insurance policy, the Contractor will give written notice to the Principal of any such increase in the deductible taking effect.
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as soon as it receives them from the insurer.
If any default is made by the Contractor in effecting or maintaining an insurance policy required by this agreement in accordance with this agreement or if any such insurance policy becomes void or voidable, the Principal may (but is not obliged to) effect or maintain said insurance policy at the cost of the Contractor.
The Contractor will do all things reasonably necessary and provide all documents, evidence and information necessary to enable the Principal to collect or recover any moneys due or to become due to the Principal in respect of any insurance policy required by this agreement.
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on commercially reasonable terms in the international insurance market place from insurers meeting the requirements of clause 36.2(a)(i). If the Contractor has obtained any relief from its insurance obligations pursuant to this clause 36.7(d), the Contractor must, at the same time that it provides the Principal with its detailed financial forecasts under clause 47.2(b)(i)B, give to the Principal written confirmation that the relevant insurance cover remains unavailable as described in this clause 36.7(d).
The parties must meet within 5 Business Days of service of a notice of a Force Majeure event to determine:
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The Contractor must update its security procedures and must procure that the parties with whom the Principal has Direct Agreements update their security procedures as technology and security threats evolve to provide commercially reasonable security capabilities at all times in accordance with Industry Practice and this agreement, including the Requirements Document and the Solution Documentation.
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The Contractor must:
to the Principal as soon as practicable and in any event within 48 hours of becoming aware of the attempted or threatened breach or unauthorised access;
to the Principal as soon as practicable and in any event within 12 hours of becoming aware of the relevant breach or unauthorised access;
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The Contractor makes the following continuing representations and warranties for the benefit of the Principal:
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and will not do so without the prior written approval of the Principal (which approval the Principal may withhold in its absolute discretion).
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Subject to clause 40.3(b), the Contractor indemnifies and keeps indemnified on demand and by way of continuing indemnity, defends, and saves harmless the Principal, the Government, Governmental Agencies, the Bus Operators and the Access Providers, including the Operators, their members, directors, officers, employees, agents and subcontractors (each an “Indemnified Party”) from and against all liabilities, damages, losses, penalties, demands, suits, costs, payments, outgoings, expenses (including reasonable solicitor’s fees and expenses) and proceedings of any nature whatsoever for:
to the extent to which they arise out of or as a consequence of:
except to the extent that such loss, damage, injury or death is attributable to the negligent or wilful act or omission of the Indemnified Party, the failure of the Indemnified Party to take reasonable steps to mitigate loss or damage suffered, or the breach by the Principal of its obligations under this agreement. In the event such loss, damage, injury or death results from
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the joint or concurrent act or omission of the parties, the Contractor will be liable under this indemnity in proportion to its relative degree of fault.
Subject to clauses 40.3(a) and 40.4(b), the Contractor indemnifies and keeps indemnified on demand and by way of continuing indemnity, defends, and saves harmless the Principal from and against:
to the extent to which such losses arise as a consequence of:
except to the extent that such losses are attributable to:
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In the event that any such loss results from the joint or concurrent act or omission of the parties, the Contractor will be liable under this indemnity in proportion to its relative degree of fault.
whether such liability arises under contract, tort (including negligence) or for any other cause of action.
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then the Principal is entitled to take any steps required to remedy the situation and, without prejudice to any of its other remedies and at the Principal’s discretion, where the Principal has stepped in under clause 41.1(a)(i) or (ii), the Contractor must pay to the Principal on demand the cost of carrying out such steps (taking into account any amounts which would otherwise be payable by the Principal to the Contractor in respect of the Work which has been remedied by the Principal under
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this clause) provided that in circumstances where it is reasonable to do so, the Principal has given the Contractor 5 Business Days written notice of its intention to remedy the situation and the Contractor has failed to remedy the situation within such a notice period. Where the Principal has stepped in because there is an Emergency, unless the Emergency was caused by an Event of Default or a failure by the Contractor to perform its obligations under this agreement, the Principal will pay its own costs of carrying out such steps.
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the Principal may, by notice to the Contractor, stop or suspend all or any portion of the Work for such period as the Principal deems necessary. The Contractor must comply immediately with the notice of the Principal to suspend the Work wholly or in part.
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It is an Event of Default if:
in accordance with its obligations under this agreement (other than as a result of a Force Majeure in relation to which some or all of the Contractor’s obligations under this agreement have been suspended, or an Act of Prevention to the extent that the
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Contractor has been given relief from compliance with this agreement under clause 28.2) and does not cure such failure within 10 Business Days of receiving written notice from the Principal to do so;
pursuant to a Key Contract between the Contractor and a subcontractor which is, or ought to be, a party to a Direct Agreement, or pursuant to a Key Contract to which Wayfarer or Gunnebo is party;
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During the [**] period, the Contractor will have the right to remedy the event.
The fact that either party requires a matter to be resolved in accordance with the Dispute Resolution Procedures or that a dispute has been referred to the Dispute Resolution Procedures will not affect the Principal’s rights under this clause 42.
Any termination of this agreement by the Principal under this clause 42 will:
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Immediately upon receipt of a notice of termination, the Contractor must:
If the Principal gives a direction under clause 42.5(d)(i) but has not already paid the Contractor for the value of some or all of the items which are the subject of that direction, the Contractor must immediately provide the Principal with the relevant information necessary to demonstrate to the Principal’s satisfaction the items for which the Principal has not already paid, and the cost price payable by the Contractor for those items, and which the Principal must pay to the Contractor if the Principal desires the transfer of title to and the delivery of those items to it (the “Price”). The Principal may request, and the Contractor must immediately provide, such additional information as the Principal may from time to time reasonably require to establish the Price. The Principal will pay the Contractor the Price upon transfer of title to and the delivery of those items by the Contractor to the Principal.
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If the Principal exercises its rights under clause 43.1, it must:
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160
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The Contractor warrants that the obligations set out in this clause will be sufficient and adequate to enable the Principal or a new contractor to replace the Solution with another system and/or provide the Initial Services and the Core Services, provided the Principal or the new contractor have the necessary experience and expertise of a service provider skilled in providing similar services.
Subject to clause 45.3, the Contractor must not assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the Principal.
to any person which has the capacity to carry out the obligations of the Principal under this agreement except for a Contractor competitor. The Contractor will execute any document required by the Principal and do such things as and when requested by the Principal to give effect to such assignment, novation or transfer.
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such notification will constitute a Variation Order for the purposes of this agreement and the Contractor’s obligations under this agreement will be varied in accordance with, and the Contractor must comply with, the matters notified by the Principal.
The Contractor must immediately notify the Principal of the following:
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are available to the Principal or any person nominated by the Principal at all reasonable times for examination, audit, inspection, transcription and copying, provided however that the Principal must keep any information obtained by it under this clause confidential.
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and such additional relevant asset and inventory information with respect to it, the Solution or the Project as the Principal may from time to time reasonably require.
and such additional relevant asset and inventory information with respect to the Contractor, the Solution or the Project as the Principal may from time to time reasonably require.
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Notwithstanding anything in this agreement or a Direct Agreement, the Contractor is not required to give the Principal information or access to books of accounts or other records of the Contractor or any of its independent sub-contractors which are publicly listed entities for the period during which the Contractor or a sub-contractor (as the case may be) is in a trading blackout period under applicable rules, regulations or policies of, the US Securities and Exchange Commission, the New York Stock Exchange or another exchange or regulatory authority to which the Contractor or any of its sub-contractors (as the case may be) is subject.
The Contractor acknowledges that:
If a request is made of the Contractor in accordance with clause 48.1(c), the Contractor will:
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172
then:
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then either party may immediately refer the dispute to the Chief Executive Officers.
then either party may refer the dispute to the Expert for determination in accordance with clause 49.5.
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175
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All communications (including notices, consents, approvals, requests and demands) under or in connection with this agreement:
Contractor
Name: Keane Australia Micropayment Consortium Pty Ltd
Address: Level 50, Bourke Place, 600 Bourke Street, Melbourne
Fax: +61 3 9643 5999
For the attention of: Gary Constable, c/- C. Lim, Partner, Mallesons Stephen Jaques
Principal
Name: Transport Ticketing Authority
Address: Level 38, 55 Collins Street, Melbourne, Victoria
Fax: +61 3 9651 7578
For the attention of: Principal’s Representative
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The Contractor:
This agreement is governed by and will be construed according to the law applying in Victoria.
Subject to clause 49, each party irrevocably:
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Without limiting the generality of any other provision of this agreement, any exercise by the Principal of any rights under this agreement will not relieve the Contractor of any of its obligations under this agreement.
In any case where pursuant to this agreement the doing or executing of any act, matter or thing by the Contractor is dependent upon the approval or consent of the Principal such approval or consent may be given or withheld, or may be given subject to any conditions, by the Principal in its absolute discretion unless this agreement expressly provides otherwise.
All measurements of physical quantities will be in Australian legal units of measurements in accordance with the National Measurement Act 1960 (Cth).
This agreement may only be varied by a document signed by or on behalf of each party.
Each party must promptly do and perform all further acts and sign, execute and complete all additional documents which may be necessary to effect, perfect, or complete the provisions of this agreement and the transactions to which it relates.
This agreement may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes an original of this agreement, and all together constitute one agreement.
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing, performing and amending this agreement.
If any part of this agreement is or becomes illegal, invalid or unenforceable in any relevant jurisdiction, the legality, validity or enforceability of the remainder of this agreement will not be affected and this agreement will be read as if the part had been deleted in that jurisdiction only.
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To the extent permitted by law, in relation to its subject matter, this agreement:
Each representation and warranty in this agreement is a continuing representation and warranty and will be repeated on each day while any obligation under this agreement remains outstanding, with reference to the facts and circumstances then subsisting.
To the extent that the obligations, undertakings, warranties, indemnities or liabilities of the Contractor under this agreement are given in respect of, or expressed to be in favour of, any Government, Governmental Agency, Access Provider, Stakeholder or other third party, the Principal holds the benefit of such obligations, undertakings, warranties, indemnities and liabilities on trust for each of those parties as from the date of this agreement.
None of the terms or conditions of this agreement nor any act, matter or thing done under or by virtue of or in connection with this agreement will operate as a merger of any of the rights and remedies of the parties in or under this agreement all of which will continue in full force and effect until the respective rights and obligations of the parties under this agreement have been fully performed and satisfied.
whether under this agreement or otherwise at law relating to the Work.
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whether under this agreement or otherwise at law relating to the Work.
The
parties respective rights under clauses 1, 6, 14.2, 19, 22.5, 23.5, 24.2,
30, 32, 36 to the extent required by
clause 36.1(c), 40, 42, 43.2, 44, 46.1, 46.2, 50.1, 50.2, 50.3, 50.4, 50.5,
50.6, 50.7, 50.9, 50.10, 50.13, 50.14, 50.15, 50.16, 50.17, 50.18, 50.19 and
this clause 50.20 survive the termination or expiry of this agreement on any
basis other than to the extent required or specifically contemplated under the
provisions of those clauses.
Any payment or reimbursement required to be made under this agreement that is calculated by reference to a cost, expense, or other amount paid or incurred will be limited to the total cost, expense or amount less the amount of any input tax credit to which an entity is entitled for the acquisition to which the cost, expense or amount relates.
If the GST payable in relation to a supply made under or in connection with this agreement varies from the additional amount paid by the Recipient under clause 50.21(c)(i)
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in relation to that supply then the Supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient. Any payment, credit or refund under this clause is deemed to be a payment, credit or refund of the additional amount payable under clause 50.21(c)(i).
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The Contractor must, at its own cost, provide all reasonable assistance requested by the Principal in relation to any marketing activities or public communications that the Principal undertakes or wishes to undertake in relation to or in connection with the Project, the Solution or the Services.
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Signed as an agreement.
The Official Seal of Transport Ticketing |
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Michael Pryles |
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Vivian Miners |
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Witness: |
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Witness: |
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/s/ Michael Pryles |
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/s/ Vivian Miners |
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Name: |
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Name: |
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Signed for and on behalf of Keane
Australia Micropayment Consortium Pty Ltd by its |
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2005 and the Attorney declares that the Attorney |
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/s/ Gary Constable |
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has not received any notice of the revocation of |
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such Power of Attorney, in the presence of: |
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Signature |
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Chena Lee Lim |
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Signature of Witness |
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/s/ Chena Lee Lim |
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Name of Witness in full |
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Schedule 1
Phases
(Clause 1.1)
A. Phases
Phase |
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Phase Date |
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NTS Mobilisation Phase |
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CD + 25 WD |
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NTS Solution Requirements Phase |
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CD + 103 WD |
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NTS Release 0 and Prototyping Phase |
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CD + 105 WD |
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NTS Front Office Design and Hardware FAT Phase |
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CD + 169 WD |
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NTS Front Office Software FAT and Back Office Release 1 and 2 Phase |
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CD + 278 WD |
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NTS Final Back Office Release Phase |
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CD + 322 WD |
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NTS Front Office User Acceptance Test Phase |
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CD + 344 WD |
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NTS User Acceptance Test Phase |
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CD + 452 WD |
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NTS Front Office Implementation 1 Phase |
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CD + 409 WD |
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NTS Front Office Implementation 2 Phase |
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CD + 474 WD |
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NTS Regional and Metropolitan Implementation Completion Phase |
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CD + 518 WD |
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NTS Operational Proving Phase |
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CD + 649 WD |
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Key
“CD” means Commencement Date as defined in the Project Agreement
“WD” means work days, being any Monday to Friday including Public Holidays.
Schedule 2
Key Personnel
(Clause 7)
B. Part A
Role |
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Responsibilities |
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Name |
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Period |
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Kamco CEO and Project Director |
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Delivery of business outcomes to the TTA |
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Gary Constable |
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The Term of the Agreement |
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Delivery Project Director |
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Delivery of the NTS to the Kamco |
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Lil Bianchi |
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Commencement Date to the end of the NTS Operational Proving Phase |
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Solution Architect |
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Solution design and development authority |
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Jurek Krasnodebski |
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Commencement Date to the end of the NTS Operational Proving Phase |
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Project Manager |
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Project plan |
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Steve Zammit |
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Commencement Date to the end of the NTS Operational Proving Phase |
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Integration Manager |
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Delivery of integrated solution |
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Lawrie Martin |
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Commencement Date to the end of the NTS Operational Proving Phase |
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Contract Manager |
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Compliance |
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Mike Duncombe |
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The Term of the Agreement |
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Acceptance/Operations Manager |
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NTS acceptance and operations |
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Adam Casey |
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The Term of the Agreement |
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Technical Services Manager |
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Installation and maintenance |
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Adrian Burling |
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The Term of the Agreement |
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Settlement Manager |
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Delivery of settlement modules |
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Frank Faulkner |
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Commencement Date to the end of the NTS Operational Proving Phase |
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Device Architect |
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Design and development |
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Andrew Sear |
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Commencement Date to the end of the NTS Operational Proving Phase |
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Device Project Manager |
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Delivery of devices |
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Jill Hatttersley Patrick Tillein |
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Commencement Date to the end of the NTS Operational Proving Phase |
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Maintenance |
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Device availability |
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Mike Gamage |
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The Term of the Agreement |
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Financial Accounting and Records Manager |
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Provide financial accounting and reporting for Kamco |
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[To be appointed] |
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The Term of the Agreement |
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Fixed Assets Manager |
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Kamco Asset Manager |
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[To be appointed] |
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The Term of the Agreement |
Role |
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Responsibilities |
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Name |
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Period |
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Clearing & Settlements Manager |
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Responsible for the processing of all financial transactions |
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[To be appointed] |
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The Term of the Agreement |
C. Part B
Role |
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Minimum qualifications & experience |
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Fixed Assets Manager |
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• Must hold a recognised Australian accounting qualification at tertiary level, and be a member of an Australian accounting professional body; |
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• Must be knowledgeable in AGAAP (Australian Generally Accepted Accounting Principles) and IFRS (Australian Adoption of International Financial Reporting Standards); and |
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• Must have at least 3-4 years post-graduate experience, preferably including exposure to managing a substantial asset register on behalf of another owner. |
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Clearing & Settlements Manager |
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• Will preferably hold a recognised Australian accounting qualification at tertiary level, and be a member of an Australian accounting professional body; |
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• Must have at least 3-5 years settlement experience in a substantial back office environment (preferably Australian); and |
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• Must have a sound working knowledge of and experience in Australia’s regulatory environment. |
Schedule 3
Completion Pre-Conditions
(Clause 1.1 and 17)
Completion Process
The Completion Pre-Conditions - General and the Completion Pre-Conditions for the following Phases will be incorporated into this Schedule 3 prior to the Principal executing the agreement:
• NTS Mobilisation Phase;
• NTS Solution Requirements Phase;
• NTS Regional and Metropolitan Implementation Completion Phase; and
• NTS Operational Proving Phase.
The Principal and the Contractor will also seek to agree the Completion Pre-Conditions for all other Phases prior to the Principal executing the agreement. If the Completion Pre-Conditions for any of the following Phases required for this Schedule 3 have not been agreed and completed prior to the Principal executing the agreement:
• NTS Release 0 and Prototyping Phase;
• NTS Front Office Design and Hardware FAT Phase;
• NTS Front Office Software FAT and Back Office Release 1 and 2 Phase;
• NTS Final Back Office Release Phase;
• NTS Front office User Acceptance Test Phase;
• NTS User Acceptance Phase;
• NTS Front Office Implementation 1 Phase; and
• NTS Front Office Implementation 2 Phase,
then the following process will be used to determine the Completion Pre-Conditions for the relevant Phases prior to the Phase Date for the NTS Mobilisation Phase:
• the Principal will provide the Contractor with a draft of the Completion Pre-Conditions for the relevant Phases, within 10 Business Days after the Commencement Date, based on the description of phase deliverables set out in Exhibit 4;
• the Contractor must, within 5 Business Days of receipt of the draft Completion Pre-Conditions, advise the Principal whether or not it considers such Completion Pre-Conditions to be acceptable or to provide its comments (if any);
• if the Contractor provides comments in relation to the draft Completion Pre-Conditions, the Principal must, within 5 Business Days of receipt of the Contractor’s comments, provide a revised draft of the Completion Pre-Conditions to the Contractor having considered any comments of the Contractor;
• if the Contractor does not accept the revised draft Completion Pre-Conditions, then either party may refer the matter for resolution in accordance with clause 2.2(e) of the agreement; and
• subject to the outcome of any such dispute resolution process, the Completion Pre-Conditions, as determined by the Principal’s Representative, will be incorporated into Schedule 3 as the Completion Pre-Conditions for the relevant Phases as set out above.
General
The following are the minimum conditions precedent to the completion of each Phase, which may be reasonably added to by the Principal for any or all Phases, in order to ensure that the Phase deliverables and the requirements of the agreement are complied with in relation to each Phase:
1. The Contractor has completed all work and deliverables for the relevant Phase, including all work and deliverables as set out in the Description of Phase Deliverables – Exhibit 4.
2. Completion of all testing required to be carried out in the relevant Phase and achievement of the required test results.
3. All minor Defects identified in respect of a previous Phase have been rectified in accordance with the agreement or, at the sole discretion of the Principal; have been scheduled to be rectified by the Phase Date for a subsequent Phase.
4. All relevant Approvals and licences required to be obtained by the Contractor have been obtained and each of the relevant conditions to such Approvals and licences have been satisfied.
5. All insurances required to be effected and maintained have been effected pursuant to this Agreement.
6. The Contractor has provided to the Principal the warranties available to the Contractor from all of its subcontractors and suppliers directly in favour of the Principal.
7. Written confirmation from the Contractor that all its subcontractors and suppliers have been paid all amounts due and payable to them.
8. Written confirmation from the Contractor that ownership of all materials which should be passed to the TTA will be passed, in accordance with clauses 30 and 32 of the agreement, upon payment in respect of that Phase.
9. The Contractor has procured from all relevant sub-contractors and suppliers, and provided written confirmation to the Principal, that all relevant sub-contractors and suppliers have no continuing interest in any materials which will be owned by the Principal upon payment by the Principal of the relevant Payment Milestone.
10. Written confirmation from the Contractor that the Solution Documentation prepared by the Contractor complies with the requirements of the agreement and all relevant approvals, and that the Phase and Solution has been constructed or completed (as appropriate) in accordance with such documentation.
11. The Contractor has provided to the Principal all Design Documents and any other Solution Documentation required to be provided as pat of the relevant Phase.
12. The Contractor has deposited in escrow all Escrow Material required to be deposited in escrow in accordance with the agreement as part of the relevant Phase.
13. The Contractor has provided to the Principal a list of all material placed in escrow since completion of the previous Phase.
14. Completion of all previous Phases has occurred.
NTS Mobilisation Phase - Completion Pre-Conditions
In addition to the general Completion Pre-conditions, the following are conditions precedent to the completion of the NTS Mobilisation Phase:
15. Agreement by the Principal of those Category 2 Matters set out in Part B of Schedule 37.
16. Delivery to the Principal of completed versions of the documents, plans and reports detailed in the Description of Deliverables for the NTS Mobilisation Phase (Exhibit 4).
17. Evidence satisfactory to the Principal that the required Contractor resources are available in Melbourne, including Key Personnel, to commence the NTS Solution Requirements Phase and the NTS Release 0 and Prototyping Phase in accordance with the Project Timeline (Exhibit 3).
NTS Solution Requirements Phase - Completion Pre-Conditions
In addition to the general Completion Pre-conditions, the following are conditions precedent to the completion of the NTS Solution Requirements Phase:
18. Agreement by the Principal of those Category 3 Matters set out in Part C of Schedule 37.
19. Delivery to the Principal of the completed NTS Requirements Specification developed in accordance with clause 11.3.
20. The Contractor has obtained written confirmation from the Operators that all of the outcomes, requirements, policies, procedures, practices and business rules of the Operators have been documented in the NTS Requirements Specification in accordance with clause 11.1(b)(i) of the agreement. However if the Contractor has used best endeavours to obtain such confirmation from an Operator, and has demonstrated to the satisfaction of the Principal that they have in fact documented all the requirements, policies, procedures, practices and business rules of that Operator, then the Principal will not require confirmation from that Operator.
21. Completion of the Contractor’s obligations in regard to the NTS Solution Requirements Phase in accordance with the agreement.
22. Delivery to the Principal of the required versions or releases of the documents, plans and reports detailed in the Description of Deliverables for the NTS Solution Requirements Phase (Exhibit 4) and as detailed in the Design Document list prepared in accordance with Schedule 38.
23. Delivery to the Principal of the document which sets out any proposed reduction in the Capital Price or the Service Charges or both, or which does not propose any such reduction, in accordance with clause 11.4(b) of the agreement.
24. A description of the Work which will comprise an Interim Phase (if any) and the Phase Dates and Completion Pre-Conditions of each Interim Phase, in accordance with clause 11.8 of the agreement.
25. Delivery to the Principal of evidence that the NTS Requirements and outcomes, requirements, business processes and business rules identified during the NTS Solution Requirements Phase have been documented in the NTS Requirements Specification, including the requirements of clause 11.1(b)(iii) of the agreement.
26. Provision of completed documentation in relation to the Principal’s requirements for the Pilot Trial as required by clause 11.1(b)(vi) of the agreement.
27. Approval by the Principal of the completed Design Document list developed in accordance with clause 11.7 and Schedule 38 Part B.
28. Acceptance by the Principal of the completed Test Plan developed in accordance with clause 11.7 and Schedule 39.
29. Delivery to the Principal of the completed Project Quality Assurance Plan.
30. Payment in full of all liquidated damages due and payable by the Contractor in accordance with clause 18.6 (prepayment of Liquidated Damages).
31. Delivery to the Principal of a customisation document describing the extent of work the Contractor must undertake to its existing equipment and system in order to meet the Principal’s requirements, as required by clause 11.1(b)(iii) of the agreement.
32. Delivery to the Principal of all audit reports relating to CMM and or ISO, electronic data processing or system security, undertaken either by the relevant administering organisation or by or on behalf of the Contractor, since the Commencement Date.
NTS Release 0 and Prototyping Phase - Completion Pre-Conditions
In addition to the general Completion Pre-conditions, the following are conditions precedent to the completion of the NTS System Prototyping Phase:
1. Evidence of the Contractor having placing orders for the procurement of long lead time items (purchase orders) in accordance with the Bill of Materials for long lead time items.
NTS Regional and Metropolitan Implementation Completion Phase - Completion Pre-Conditions
In addition to the general Completion Pre-Conditions, the following are conditions precedent to the completion of the NTS Regional and Metropolitan Implementation Completion Phase:
1. Demonstration to the reasonable satisfaction of the Principal, who will make appropriate resources available, that all components of the Solution have been correctly designed, manufactured, produced, supplied, installed, connected, integrated, completed and tested so that the Solution can meet all requirements of the agreement, including the performance requirements as detailed in Schedules 29, 30 and 31.
2. Delivery to the Principal of all Test Plan reports and data that demonstrates that all tests conducted in accordance with the Test Plan, Test Documents and any additional testing performed by the Principal in accordance with clause 15.7, have obtained a ‘Pass’ rating as described in the Test Plan.
3. Delivery to the Principal of all final software, hardware and business systems required for the operation the Solution.
4. Delivery to the Principal of all stored test data and testing software.
5. Delivery to the Principal of the completed final versions or releases of the documents, plans and reports as detailed in the Design Document list prepared in accordance with Schedule 38.
6. Evidence satisfactory to the Principal that all non-compliances identified through the Contractor’s Quality Management System and the Project Quality Assurance System, have been rectified.
7. Delivery to the Principal of the final and completed documents, plans and reports detailed in the Description of Deliverables for the NTS Regional and Metropolitan Implementation Completion Phase (Exhibit 4).
8. Completion of all training required in accordance with the Training Programme Plan and the agreement, to the satisfaction of the Principal.
9. Verification that all redundant equipment, devices and infrastructure has been removed and made good to the satisfaction of the Principal.
10. Payment in full of all liquidated damages due and payable by the Contractor in accordance with clause 18.6 (prepayment of Liquidated Damages).
11. Delivery to the Principal of all audit reports relating to the Project Quality Assurance Plan, CMM and or ISO reports, electronic data processing or system security, undertaken either by the relevant administering organisation or by or on behalf of the Contractor, that have not been previously provided to the Principal since the Commencement Date.
NTS Operational Proving Phase - Completion Pre-Conditions
In addition to the general Completion Pre-conditions, the following are conditions precedent to the completion of the NTS Operational Proving Phase:
1. Verification to the satisfaction of the Principal that all components of the Solution and the Solution as a whole is operating in accordance with the requirements of the agreement, including the performance requirements as detailed in Schedules 29, 30 and 31.
2. Verification to the satisfaction of the Principal that the Solution has operated for the final three months of the NTS Operational Proving Phase without incurring any more than 1500 Service Points and $1,500 of Payment Reductions (the threshold amounts) in accordance with the performance requirements set out in Schedules 29, 30 and 31.
3. Verification to the satisfaction of the Principal that all tests required to achieve Completion of the NTS Regional and Metropolitan Implementation Completion Phase have been repeated during this Phase.
4. Delivery to the Principal of all Test Plan reports and data that demonstrates that all tests conducted during this Phase in accordance with the Test Plan, Test Documents and any additional testing performed by the Principal in accordance with clause 15.7, have obtained a ‘Pass’ rating as described in the Test Plan.
5. Delivery to the Principal of the completed final versions or releases of all documents, plans and reports as detailed in the Design Document list prepared in accordance with Schedule 38.
6. Evidence satisfactory to the Principal that all non-compliances identified through the Contractor’s Quality Management System and the Project Quality Assurance System, have been rectified.
7. Delivery to the Principal of the final and completed documents, plans or reports detailed under the Description of Deliverables for the NTS Operational Proving Phase (Exhibit 4).
8. Verification to the satisfaction of the Principal that all transition activities have been completed in accordance with the Transition Plan.
9. Payment in full of all liquidated damages due and payable by the Contractor in accordance with clause 18.6 (prepayment of Liquidated Damages).
10. Delivery to the Principal of all audit reports relating to the Project Quality Assurance Plan, CMM and or ISO, electronic data processing or system security, undertaken either by the relevant administering organisation or by or on behalf of the Contractor, that have not been previously provided to the Principal since the Commencement Date.
Schedule 4
Certificate of Completion
(Clause 17)
Given pursuant to clause 17 of the Transport Ticketing Solution Project Agreement (“agreement”) dated [ ] between Public Transport Ticketing Body trading as Transport Ticketing Authority (“Principal”) and Keane Australia Micropayment Consortium Pty Ltd (“Contractor”).
To: Contractor
1. Pursuant to and for the purposes of the agreement the Principal hereby certifies that [specify Phase] achieved Completion on [ ].
2. This certificate is copied to:
(a) [ ]; and
(b) [ ].
3. Terms defined in the agreement have the same meaning where used in this certificate.
4. This certificate may only be relied on by the parties to the agreement.
5. This certificate is issued on [ ].
SIGNED for and on behalf of |
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the Principal by |
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[ ] in the presence of: |
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for and on behalf of the Principal |
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(Signature of Witness) |
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(Name of Witness in full) |
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Schedule 5
Variation Order
(Clause 20)
(To the Contractor)
In accordance with clause 20 of the New Ticketing Solution Project Agreement (“agreement”), you are directed to carry out the following works as a Variation:
[the Principal to insert details]
Subject to clause 20.4 of the agreement the value of the Variation is as follows:
(a) |
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Direct Costs (if any) |
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(b) |
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Direct Savings (if any) |
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(c) |
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Delay Costs (if any) |
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(d) |
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Acceleration Costs (if any) |
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(e) |
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Extension of Time (if any) |
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Date for Completion of Phase [ ] |
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Principal’s Representative |
Schedule 6
Acceleration Direction
(Clause 20)
(To the Contractor)
In accordance with clause 20.3 of the New Ticketing Solution Project Agreement (“agreement”), you are directed to accelerate the Delivery by taking those measures which are necessary to overcome or minimise the extent of any delay caused by:
[INSERT DETAILS]
in order to achieve Completion of Phase [ ] by [ ].
The Acceleration Costs are payable as follows:
[SET OUT DETAILS OF INSTALMENTS]
Terms defined in the agreement have the same meaning where used in this direction.
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Principal’s Representative |
Schedule 7
Schedule of Rates
and Prices for Variations
(Clause 20)
The rates and prices in this schedule are divided between:
• equipment pricing by device and by vehicle, in Part 1 and Part 2 respectively;
• ongoing device maintenance costs, Part 3;
• capital and ongoing operating costs relating to Core work packages, Part 4;
• labour rates, Part 5; and
• transaction volume increases, Part 6.
In addition, Part 7 sets out the maximum lead times between the order and delivery of devices.
The following items will be finalised by the Principal and the Contractor as Category 3 Matters prior to the Completion of the NTS Solution Requirements Phase:
• installation and de-installation hours and costs in Part 1 and Part 2;
• cost of Hand-Held Device - Selling Equipment in Part 1;
• device maintenance charges in Part 3;
• the labour rate for ERG - Installation Technician in Part 5; and
• part 6 of this Schedule.
The finalisation of these items by the Principal and the Contractor will be based upon, and will involve no more cost to the Principal than, the rates and prices currently set out in this schedule.
1. Equipment
The hours and costs relating to installation and de-installation will be finalised as a Category 3 Matter prior to the Completion of the NTS Solution Requirements Phase in accordance with this agreement and the process and principles set out at the beginning of this schedule.
Hand-held devices – selling equipment costs will be finalised as a Category 3 Matter prior to the Completion of the NTS Solution Requirements Phase in accordance with this agreement and the process and principles set out at the beginning of this schedule.
Prices are stated as at 9 May 2005, to be escalated annually for CPI in accordance with Schedule 11. All prices in Australian Dollars.
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Equipment Cost(1) – By Order
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Installation Hours – Per Unit |
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Other |
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Work |
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Equipment(1A) |
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Equipment |
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1 – 5 |
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6 – 20 |
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More |
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Installation(2) |
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De-installation(3) |
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Tram |
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Tram Driver Console Primary incl. Mounting Bracket (TDC Primary) |
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Tram Driver Console Secondary (TDC Secondary) |
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Combined Card Vending / Add-Value Machine (CVM/AVM – Mobile) |
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(CVM/AVM – Mobile) |
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Fare Payment Device (FPD Mobile) |
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Combined Card Vending / Add-Value Machine – Superstop (CVM/AVM) |
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Bus |
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Bus Driver Console (BDC) |
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Fare Payment Device (FPD Mobile) |
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Head Office Requirement – Bus (HOB) |
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Equipment Cost(1) – By Order
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Installation Hours – Per Unit |
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Other |
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Combined Card Vending / Add-Value Machine – Interchange (CVM/AVM) |
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(CVM/AVM) |
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Station Requirement (SR) |
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Add-Value Machines – standalone (AVM) |
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Mobile (TOT-m) |
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Electronic Gate |
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Station Fare Payment Device (FPD – Platform) |
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Metropolitan Primary Agent Terminal (MPAT) |
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Primary V/Line Agent Terminal (VPAT) |
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Secondary Agent Terminal (SAT) |
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Depot Requirement (DR-H) |
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Hand-Held Device (HHD-s) – Selling |
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Tram Driver Console (TDC) |
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Combined Card Vending / Add-Value Machine (CVM/AVM) |
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Fare Payment Device (FPD) |
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Depot Requirement – Tram (DR – T) |
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Combined Card Vending / Add-Value Machine – Superstop (CVM/AVM) |
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Equipment Cost(1) – By Order
Size |
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Installation Hours – Per Unit |
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Other |
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Work |
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Equipment(1A) |
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Equipment |
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1 – 5 |
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6 – 20 |
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More |
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Installation(2) |
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De-installation(3) |
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Per |
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Bus Driver Console (BDC) |
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Fare Payment Device (FPD) |
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Head Office Requirement – Bus (HOB) |
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Depot Requirement Bus (DB) – Small Depot |
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Depot Requirement Bus (DB) – Medium Depot |
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Depot Requirement Bus (DB) – Large Depot |
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Combined Card Vending / Add-Value Machine – Interchange (CVM/AVM) |
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Transfer a train device/requirement |
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Station Requirement (SR) |
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[**] |
|
[**] |
|
|
|
|
|
Ticket Office Terminal (TOT) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Rail Combined Card Vending / Add-Value Machine (CVM/AVM) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Add-Value Machines – standalone (AVM) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Mobile (TOT-m) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Electronic Gates (EG) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Gate Attendant Control (GAC) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Station Fare Payment Device (FPD) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Transfer a retail agent device/requirement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
Metropolitan Primary Agent Terminal (MPAT) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Primary V/Line Agent Terminal (VPAT) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Secondary Agent Terminal (SAT) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Remove a tram device/ requirement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
Tram Driver Console (TDC) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Combined Card Vending / Add-Value Machine (CVM/AVM) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Fare Payment Device (FPD) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Depot Requirement – Tram (DR – T) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
Equipment Cost(1) – By Order
Size |
|
Installation Hours – Per Unit |
|
Other |
|
||||||
Work |
|
Equipment(1A) |
|
Equipment |
|
1 – 5 |
|
6 – 20 |
|
More |
|
Installation(2) |
|
De-installation(3) |
|
Per |
|
|
|
Combined Card Vending / Add-Value Machine – Superstop (CVM/AVM) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Remove a bus device/requirement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
Bus Driver Console (BDC) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Fare Payment Device (FPD) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Head Office Requirement – Bus (HOB) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Depot Requirement Bus (DB) – Small Depot |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Depot Requirement Bus (DB) – Medium Depot |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Depot Requirement Bus (DB) – Large Depot |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Combined Card Vending / Add-Value Machine – Interchange (CVM/AVM) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Remove a train device/requirement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
Station Requirement (SR) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Ticket Office Terminal (TOT) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Mobile (TOT-m) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Electronic Gates (EG) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Rail Combined Card Vending / Add-Value Machine (CVM/AVM) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Add-Value Machines – standalone (AVM) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Gate Attendant Control (GAC) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Station Fare Payment Device (FPD) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Remove a retail agent device/requirement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
Metropolitan Primary Agent Terminal (MPAT) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Primary V/Line Agent Terminal (VPAT) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
Secondary Agent Terminal (SAT) |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
(1A) Devices represent the same devices as delivered, or required to be delivered, as part of the original equipment supply under the Project Agreement and as described in the BOM and Requirements Document.
(1) Costs for Ascom supplies are FCA Bern or FCA Poole, as applicable. FCA is a defined INCOTERM meaning that the goods will be handed over to the carrier at the designated place, cleared for export. Keane will charge freight costs from Bern or Poole to Melbourne at cost plus a margin of [**]%. Freight costs include shipping, freight handling and freight insurance. Costs exclude duty which is assumed to be zero. At the Principal’s discretion, Keane will be required to obtain a minimum of [**]competitive quotes to support these costs.
(2) Installation Cost includes all direct costs to install equipment, including delivery to site, testing and commissioning and safety requirements. That is, the cost, inclusive of those direct costs, will be determined by multiplying the number of hours in the column by the applicable hourly rate for “Installation Technician” from ERG, as set out in Part 5 of this Schedule.
(3) De-installation Cost includes all direct costs associated with de-installing/ decommissioning equipment from a site/ vehicle, removing to depot or alternative site and making the existing site safe. That is, the cost, inclusive of those direct costs, will be determined by multiplying the number of hours in the column by the applicable hourly rate for “Installation Technician” from ERG, as set out in Part 5 of this Schedule.
(4) Other Costs include all non-labour and equipment costs (eg, accessories, miscellaneous materials).
2. Vehicle packages
The hours and costs relating to installation and de-installation will be finalised as a Category 3 Matter prior to the Completion of the NTS Solution Requirements Phase in accordance with this agreement and the process and principles set out at the beginning of this schedule.
Prices are stated as at 9 May 2005, to be escalated annually in accordance with Schedule 11. All prices in Australian Dollars.
|
|
Device Description |
|
|
|
|
|
|
|
||||||||||||||||
|
|
Driver Consoles(5A) |
|
Fare Payment Device(5A) |
|
CVM/AVM(5A) |
|
|
|
|
|
|
|
|
|
|
|
||||||||
|
|
|
|
No of |
|
|
|
No. of |
|
|
|
No. of |
|
Equipment Cost – By |
|
Installation Hours – Per |
|
Other |
|
||||||
|
|
|
|
Devices |
|
|
|
Devices |
|
|
|
Devices |
|
Order Size (Units)(5) |
|
Unit |
|
Costs |
|
||||||
Vehicle Type |
|
Equipment |
|
Per |
|
Equipment |
|
Per |
|
Equipment |
|
Per |
|
1 – 5 |
|
More than |
|
|
|
De– |
|
Per |
|
||
Work Package |
|
Code |
|
Vehicle |
|
Code |
|
Vehicle |
|
Code |
|
Vehicle |
|
Vehicles |
|
5 vehicles |
|
Installation(6) |
|
Installation(7) |
|
Unit(8) |
|
||
Tram |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
W Class |
|
TDC Primary (1) & TDC Secondary (1) |
|
2 |
|
TDC P and TDC S |
|
8 |
|
(CVM/ AVM – Mobile) |
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Z Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
A Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
B Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Combino (3) |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Combino (5) |
|
|
|
2 |
|
|
|
16 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Citadis |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Bus |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 Door |
|
|
|
1 |
|
|
|
2 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
2 Door |
|
|
|
1 |
|
|
|
4 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Reticulated |
|
|
|
1 |
|
|
|
6 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Transfer a Tram |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
W Class |
|
|
|
2 |
|
|
|
8 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Device Description |
|
|
|
|
|
|
|
||||||||||||||||
|
|
Driver Consoles(5A) |
|
Fare Payment Device(5A) |
|
CVM/AVM(5A) |
|
|
|
|
|
|
|
|
|
|
|
||||||||
|
|
|
|
No of |
|
|
|
No. of |
|
|
|
No. of |
|
Equipment Cost – By |
|
Installation Hours – Per |
|
Other |
|
||||||
|
|
|
|
Devices |
|
|
|
Devices |
|
|
|
Devices |
|
Order Size (Units)(5) |
|
Unit |
|
Costs |
|
||||||
Vehicle Type |
|
Equipment |
|
Per |
|
Equipment |
|
Per |
|
Equipment |
|
Per |
|
1 – 5 |
|
More than |
|
|
|
De– |
|
Per |
|
||
Work Package |
|
Code |
|
Vehicle |
|
Code |
|
Vehicle |
|
Code |
|
Vehicle |
|
Vehicles |
|
5 vehicles |
|
Installation(6) |
|
Installation(7) |
|
Unit(8) |
|
||
|
|
Z Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
A Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
B Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Combino (3) |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Combino (5) |
|
|
|
2 |
|
|
|
16 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Citadis |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Transfer a bus |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
1 Door |
|
|
|
1 |
|
|
|
2 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
2 Door |
|
|
|
1 |
|
|
|
4 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Reticulated |
|
|
|
1 |
|
|
|
6 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Remove a Tram |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
W Class |
|
|
|
2 |
|
|
|
8 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Z Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
A Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
B Class |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Combino (3) |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Combino (5) |
|
|
|
2 |
|
|
|
16 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Citadis |
|
|
|
2 |
|
|
|
12 |
|
|
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Remove a bus |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
1 Door |
|
|
|
1 |
|
|
|
2 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
2 Door |
|
|
|
1 |
|
|
|
4 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
|
|
Reticulated |
|
|
|
1 |
|
|
|
6 |
|
|
|
n/a |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
(5A) Devices represent the same devices as delivered, or required to be delivered, as part of the original equipment supply under the Project Agreement and as described in the BOM and Requirements Document.
(5) Costs for Ascom supplies are FCA Bern or FCA Poole, as applicable. FCA is a defined INCOTERM meaning that the goods will be handed over to the carrier at the designated place, cleared for export. Keane will charge freight costs from Bern or Poole to Melbourne at cost plus a margin of [**]%. Freight costs include shipping, freight handling and freight insurance. Costs exclude duty which is assumed to be zero. At the Principal’s discretion, Keane will be required to obtain a minimum of [**] competitive quotes to support these costs.
(6) Installation Cost includes all direct costs to install equipment, including delivery to site, testing and commissioning and safety requirements. That is, the cost, inclusive of those direct costs, will be determined by multiplying the number of hours in the column by the applicable hourly rate for “Installation Technician” from ERG, as set out in Part 5 of this Schedule.
(7) De-installation Cost includes all direct costs associated with de-installing/ decommissioning equipment from a site/ vehicle, removing to depot or alternative site and making the existing site safe. That is, the cost, inclusive of those direct costs, will be determined by multiplying the number of hours in the column by the applicable hourly rate for “Installation Technician” from ERG, as set out in Part 5 of this Schedule.
(8) Other Costs include all non-labour and equipment costs (eg, accessories, miscellaneous materials).
3. Device maintenance and other costs
Device maintenance charges in this Part 3 will be finalised as a Category 3 Matter prior to the Completion of the NTS Solution Requirements Phase in accordance with this agreement and the process and principles set out at the beginning of this schedule.
The rates contained in this table will be indexed in accordance with Schedule 11. Prices are stated as at 9 May 2005. The equipment which the maintenance and other costs relate to are as set out in Part 1 and 2 of this Schedule 7. All prices are in Australian Dollars.
The rates are to apply as an increase to the services charges (where the overall number of units being maintained and operated has increased) and as a decrease to the services charges (where the overall number of units being maintained and operated has decreased).
Work |
|
Equipment |
|
Device |
|
Other Core |
|
Initial
Services |
|
Tram |
|
|
|
|
|
|
|
|
|
|
|
Tram Driver Console (TDC Primary) |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Tram Driver Console (TDC Secondary) |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Combined Card Vending / Add-Value Machine (CVM/AVM) |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Fare Payment Device (FPD) |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Depot Requirement – Tram (DR – T) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Combined Card Vending / Add-Value Machine – Superstop (CVM/AVM) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
W Class Tram |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Z Class Tram |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
A Class Tram |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
B Class Tram |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Combino (3) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Combino (5) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Citadis |
|
$[**] |
|
[**] |
|
[**] |
|
Bus |
|
|
|
|
|
|
|
|
|
|
|
Bus Driver Console (BDC) |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Fare Payment Device (FPD) |
|
$[**] |
|
|
|
[**] |
|
|
|
Head Office Requirement – Bus (HOB) |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Depot Requirement Bus (DB) – Small Depot |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Depot Requirement Bus (DB) – Medium Depot |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Depot Requirement Bus (DB) – Large Depot |
|
$[**] |
|
$[**] |
|
[**] |
|
Work |
|
Equipment |
|
Device |
|
Other Core |
|
Initial
Services |
|
|
|
Combined Card Vending / Add-Value Machine – Interchange (CVM/AVM) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
1 Door |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
2 Door Bus |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Reticulated Bus |
|
$[**] |
|
[**] |
|
[**] |
|
Train |
|
|
|
|
|
|
|
|
|
|
|
Station Requirement (SR) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Ticket Office Terminal (TOT) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Rail Combined Card Vending / Add-Value Machine (CVM/AVM) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Add-Value Machines – standalone (AVM) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Mobile (TOT-m) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Electronic Gates (EG) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Gate Attendant Control (GAC) |
|
$[**] |
|
[**] |
|
[**] |
|
|
|
Station Fare Payment Device (FPD) |
|
$[**] |
|
[**] |
|
[**] |
|
Retail Agent |
|
|
|
|
|
|
|
|
|
|
|
Metropolitan Primary Agent Terminal (MPAT) |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Primary V/Line Agent Terminal (VPAT) |
|
$[**] |
|
$[**] |
|
[**] |
|
|
|
Secondary Agent Terminal (SAT) |
|
$[**] |
|
$[**] |
|
[**] |
|
(9) Device Management charges includes all incremental labour and materials costs associated with preventative, line 1, line 2 and line 3 maintenance activities (including an allowance for the cost of vandalism).
(10) Other Service charges includes all incremental labour and materials costs associated other Core Services (except Device Management Services) activities.
(11) Initial Services charges include all incremental costs associated with each of Cardholder Support Services, Distribution Services or Cash Collection.
4. Core work packages
The rates contained in this table will be indexed in accordance with Schedule 11. Prices are stated as at 9 May 2005.
|
|
One-off development cost |
|
Ongoing
Core |
|
Ongoing |
|
||||
Description |
|
Hardware |
|
Software |
|
Implemen-tation |
|
Annum) |
|
annum) |
|
Make a simple fare change(1) |
|
Nil |
|
Nil |
|
Nil |
|
Nil |
|
Nil |
|
Make a moderate fare change(2) |
|
Nil |
|
5 days at Software Programmer Rate (see Part 5 – Labour Rates) |
|
Nil |
|
Nil |
|
Nil |
|
Make a complex fare change(3) |
|
Nil |
|
In accordance with clause 20.4(a)(ii)B |
|
Nil |
|
Nil |
|
Nil |
|
(1) |
|
Simple Fare Change: |
|
A change involving an update to one fare table, or one simple (20 or fewer stops) route table, or one stage/zone table, or any other parameters, and which requires no change to any source code and involves only user testing. Changes of this nature will not constitute a Variation. |
|
|
|
|
The Principal undertakes to be reasonable in the frequency or volume of requests. |
|
|
|
|
The Principal undertakes not to unreasonably attempt to break Moderate or Complex Fare Changes into parts to meet the Simple Fare Change definition. |
|
|
|
|
|
(2) |
|
Moderate Fare Change: |
|
A change involving updates to a maximum of 5 fare tables, or one complex route table (greater than 20 stops), or up to 5 stage/zone tables, and which requires no change to any source code and involves only user testing. |
|
|
|
|
A change involving the implementation of a new route. |
|
|
|
|
The Principal undertakes to be reasonable in the frequency or volume of requests. |
|
|
|
|
The Principal undertakes not to unreasonably attempt to break Complex Fare Changes into parts to meet the Simple Fare Change definition. |
|
|
|
|
|
(3) |
|
Complex Fare Change: |
|
A change involving source code changes, or database architectural changes. |
|
|
|
|
A Change from a zonal to a fare stage tariff system. |
|
|
|
|
Since the upper limit of the complexity of the Fare change has not been defined, it is not possible to offer a firm price for this change. |
5. Labour rates
The labour rate for ERG – Installation Technician will be finalised as a Category 3 Matter prior to the Completion of the NTS Solution Requirements Phase in accordance with this agreement and the process and principles set out at the beginning of this schedule.
The daily rates in this table are quoted on the basis of a 7.5 hour working day.
The rates contained in this table will be indexed annually in accordance with Schedule 11. Prices are stated as at 9 May 2005. All prices in Australian Dollars.
Prices excluding Travel, Accommodation & Subsistence
Labour Category |
|
Ascom |
|
Ascom |
|
ERG(1) |
|
Keane |
|
Keane |
|
Keane |
|
Keane |
|
Accountant |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Administrator – Office |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Commercial Manager |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Draftsperson |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Electronics Engineer |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Engineering Manager |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Engineering Team Leader |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Hardware Manager |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Installation Supervisor |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Installation Technician |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
Maintenance Technician |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Mechanical Engineer |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
Production Engineer |
|
[**] |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
Programme Manager |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Programme Planner |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Project Director |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Software Architect |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Software Engineer Jnr |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Software Engineer Snr |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Software Manager |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Software Programmer |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Solution Architect |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Technical Architect |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Technical Writer |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Technician |
|
[**] |
|
[**] |
|
|
|
|
|
|
|
|
|
|
|
Programme Director |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Business Architect |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Development Project Manager |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Senior Business Analyst |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Labour Category |
|
Ascom |
|
Ascom |
|
ERG(1) |
|
Keane |
|
Keane |
|
Keane |
|
Keane |
|
Business Analyst |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Senior Programmer |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Programmer |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Team Leader |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Test Manager |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Senior Tester |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Tester |
|
[**] |
|
[**] |
|
|
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
(1) Travel and accommodation costs are in addition to the above rates and will be charged at cost. Travel will be reimbursed on the basis of economy flights for journeys with a scheduled flying time up to 12 hours duration and business class flights for journeys with a scheduled flying time of greater than 12 hours duration. All flight bookings will be made by Keane. Other expenses (eg. Accommodation, food, etc) will be capped at $A[**] per day for trips (measured from home location to home location) up to 10 days duration and $A[**] per day for durations greater than 10 days duration.
The Principal and Contractor will agree the most efficient allocation of tasks associated with a Variation taking into consideration the necessary required expertise for that Variation. Unless otherwise agreed to by the Principal, the Contractor will allocate work for which the labour rates set out in this Part will apply on the following basis:
• Keane Australia will undertake impact analysis, client facing tasks, requirements specification design (Keane Australia rates will apply);
• Keane India will undertake software development, testing and maintenance (Keane India rates will apply); and
• Keane UK/US will provide specialist expertise from Keane’s practices (Keane Inc/Ltd rates will apply).
6. Transaction volumes increase
This schedule has not been agreed by the parties. This schedule, including the circumstances in which it will apply, will be completed as a Category 3 Matter prior to the Completion of the NTS Solution Requirements Phase in accordance with this agreement and the process and principles set out at the beginning of this schedule. The parties agree that there will no increase Services Charges if there is an increase in transaction volumes which is solely due to an increase in the level of Victorian transit ticketing transactions where there is no change to the Solution.
No additional Service Charges will be paid in relation to Cardholder Support Services and Distribution Services as the Payments for these services contain a variable component which will take account of changes in transaction volumes. Cash Collection Initial Service Payments variations will be valued in accordance with clause 20.4. (a)(ii)B
Increases in Core Services Payments due to transaction volume increases shall be calculated by reference to the following table. When the Increase Percentage falls into one of the bands shown in the first column (other than [**]%, which will not constitute a Varation), an Increase Event is deemed to have occurred. When an Increase Event occurs, the Core Services Base Charge shall be increased to an amount calculated using the formula shown in the second column. The increased payment will be payable from the beginning of the calendar month following the month in which the Increase Event occurs.
Percentage increase in |
|
Core
Services Payment |
|
[**]%[**]% |
|
[**] |
|
[**]%[**]%[**] |
|
[**] |
|
[**]%[**]% |
|
[**] |
|
[**]%[**]% |
|
[**] |
|
Keane’s current estimate is a Base Transaction Volume of 3,000,000 per day
Definitions:
“Base Charge” |
|
The total of all the payments making up the Core Services Payment for the TTA Financial Year in which the Increase Event occurs. |
|
|
|
“Increase Event” |
|
An Increase Event will occur when the average number of Transaction Events (that is the sum of all Transaction Events for the previous 3 calendar months divided by the number of days in that period) exceeds the Base Transaction Volume by the specified percentages (other than increases in the range of [**]%). The Increase Event will be deemed to have occurred on the last day of the relevant period of 3 calendar months. |
“Base Transaction Volume” |
|
The Base Transaction Volume will be calculated as the average number of transactions in the three calendar months following the date on which the last milestone payment becomes due (that is, at the end of the Operational Proving Phase). The average number of transactions shall be calculated as the sum of Transaction Events in the period divided by the number of days in the period. |
|
|
|
“Transaction Event” |
|
The use of a smart card or disposable card to pay for a journey. |
|
|
|
“Increase Percentage” |
|
Average number of Transaction Events (that is the sum of all Transaction Events for the previous 3 calendar months divided by the number of days in that period) minus the Base Transaction Volume, all divided by the Base Transaction Volume. |
7. Device delivery lead times
The following table sets out the lead times required by the Contractor between the order and delivery of each device set out in Part 1.
Devices |
|
Maximum Lead Times |
|
||
Tram |
|
|
|
|
|
|
|
Tram Driver Console (TDC) |
|
[**] |
|
|
|
Combined Card Vending / Add-Value Machine (CVM/AVM) |
|
[**] |
|
|
|
Fare Payment Device (FPD) |
|
[**] |
|
|
|
Depot Requirement – Tram (DR – T) |
|
[**] |
|
|
|
Combined Card Vending / Add-Value Machine – Superstop (CVM/AVM) |
|
[**] |
|
Bus |
|
|
|
|
|
|
|
Bus Driver Console (BDC) |
|
[**] |
|
|
|
Fare Payment Device (FPD) |
|
[**] |
|
|
|
Head Office Requirement – Bus (HOB) |
|
|
|
|
|
Depot Requirement Bus (DB) – Small Depot |
|
[**] |
|
|
|
Depot Requirement Bus (DB) – Medium Depot |
|
[**] |
|
|
|
Depot Requirement Bus (DB) – Large Depot |
|
[**] |
|
|
|
Combined Card Vending / Add-Value Machine – Interchange (CVM/AVM) |
|
[**] |
|
Train |
|
|
|
|
|
|
|
Station Requirement (SR) |
|
|
|
|
|
Rail Combined Card Vending / Add-Value Machine (CVM/AVM) |
|
[**] |
|
|
|
Add-Value Machines – standalone (AVM) |
|
[**] |
|
|
|
Ticket Office Terminal (TOT) |
|
[**] |
|
|
|
Mobile (TOT-m) |
|
[**] |
|
|
|
Reader Kit for Gate |
|
[**] |
|
|
|
Gate Attendant Control (GAC) |
|
[**] |
|
|
|
Station Fare Payment Device (FPD) |
|
[**] |
|
Retail Agent |
|
|
|
|
|
|
|
Metropolitan Primary Agent Terminal (MPAT) |
|
[**] |
|
|
|
Primary V/Line Agent Terminal (VPAT) |
|
[**] |
|
|
|
Secondary Agent Terminal (SAT) |
|
[**] |
|
Hand Held |
|
|
|
|
|
|
|
Depot Requirement (DR-H) |
|
|
|
|
|
Hand-Held Devices – selling (HHD-s) |
|
[**] |
|
Schedule 8
Payment Schedule
(Clause 21)
Payment
Milestones |
|
Payment |
|
NTS Mobilisation Phase |
|
[**] |
|
NTS Solution Requirements Phase |
|
[**] |
|
NTS Release 0 and Prototyping Phase |
|
[**] |
|
NTS Front Office Software FAT and Back Office Release 1 and 2 Phase |
|
[**] |
|
NTS Final Back Office Release Phase |
|
[**] |
|
NTS Front Office Implementation 1 Phase |
|
[**] |
|
NTS Front Office Implementation 2 Phase |
|
[**] |
|
NTS Regional and Metropolitan Implementation Completion Phase |
|
[**] |
|
NTS Operational Proving Phase |
|
[**] |
|
|
|
|
|
Total Capital Price |
|
[**] |
|
Schedule 9
Subcontractors and Suppliers
(Clause 10.2)
Part A
Subcontractors
Organisational |
|
Key
Contact |
|
Organisational Contact Details |
|
Description
of work |
Ascom |
|
Chris Franzen |
|
Belpstrasse 37 |
|
Device provider |
ERG |
|
Alan Sullivan |
|
247 Balcatta
Road |
|
Installation and maintenance provider |
G&D |
|
Jim Calrow |
|
Giesecke &
Devrient |
|
Card management and customer support provider |
Headstrong |
|
Paul Kidmen |
|
Headstrong
Australia Pty Ltd |
|
Clearing and Issuer Processing Modules |
Wayfarer (sub– subcontractor) |
|
Tony McNamara |
|
Wayfarer
Transit Systems Limited |
|
Bus driver and tram driver consul provider |
Gunnebo |
|
Leo Detassis |
|
ITALY
Gunnebo Entrance Control SpA |
|
Gate Provider |
Part B
Suppliers
Organisational |
|
Key
Contact |
|
Organisational Contact Details |
|
Description
of |
HP |
|
Andy Katz |
|
Hewlett-Packard Australia Pty Ltd |
|
Data centre provider |
SPT |
|
Paul Weston |
|
SPT Telecommunications |
|
Networking provider |
Schedule 10
Service
Charges
(Clause 27)
Completion Process
A. Card Drafting
The Smartcard procurement and payment principles below have been agreed by the parties and will be drafted for incorporation into the Project Agreement as a Category 2 Matter.
• Prior to each Smartcard order by the Contractor, the Principal will meet with the Contractor to discuss Smartcard procurement for the coming period and provide information in respect of its marketing (including special editions) and other requirements which may impact demand for Smartcards and/or mix of Smartcard types required (including the Smartcard type, printing, Personalisation and design features required for the Smartcards).
• The Contractor will then determine the requirements for all Smartcard types and seek relevant pricing and delivery information from its suppliers in light of the Principal’s requirements discussed under the previous point. Prior to confirming any order with its suppliers, the Contractor must seek the Principal’s approval of the details of its proposed order including details of volume, pricing and projected monthly issue profile for each type of Smartcard.
• The Principal may either approve the order (subject to requiring potential variation of proposed delivery program, ie. the Principal may require the Contractor to hold greater or less volumes of stock than planned or to vary the order to ensure it reflects the Principal’s requirements with respect to marketing, Smartcard type, Smartcard features and Smartcard mix) or seek a deal for better terms and conditions in the market (the Contractor must assist the Principal with this procurement process and then adopt the resulting supply arrangement).
• The Principal will pay the Contractor based on volume of Smartcards issued (on a first in first out basis) multiplied by the lower of the “capped rate” (being the amounts set out in this schedule) and “actual Smartcard cost plus agreed margin” in accordance with the margin set out in Schedule 10I).
• The issue of a Smartcard is defined to be the point of time at which Smartcards have been issued to the end user of the Smartcard (ie. the customer). For clarity the following table summarises the point of issue for each Smartcard under the various possible scenarios in the NTS:
|
|
Point of Issue |
AVM/CVM |
|
When Smartcard is issued from machine to customer |
Agent sales |
|
When Smartcard is issued from agent to customer |
Principal individual sales |
|
When Smartcard is sent from Principal to customer |
Operator sales |
|
When Smartcard is issued from operator to customer |
Conductor (regional)/ bus driver sales |
|
When Smartcard is issued from conductor/driver to customer |
A definition of Issued will be inserted as part of the drafting to be completed as a Category 2 Matter.
• The Contractor will be paid for all stock of Smartcards (ie. relating to agreed order volumes) held at the time of expiry of the Initial Services Term (where service is not renewed) or early termination at the relevant rate. In addition the Principal will support any contract for future supply of agreed order volumes (per the process above).
• The Contractor will be required to minimise distribution costs by optimising batch delivery arrangements.
In addition, the drafting of Schedule 10 will be refined to provide greater clarity in respect of how Schedules 10C to 10I interact in light of the Smartcard procurement and payment principles set out above.
It is also noted that Schedule 10 and 32 both currently contain separate Smartcard pricing and payment schedules. The consolidation of the Smartcard pricing and payment provisions of these schedules will be considered during the above legal drafting process.
1. Principal Formula
1.1 The Service Charge for each month of the Core Services Term will be calculated as follows:
where:
SC is the Service Charge payable in that month;
CSP is the Core Services Payment for the month as determined in accordance with paragraph 2; and
ISP is the Initial Services Payment for the month as determined in accordance with paragraph 3.
2. Core Services Payment
2.1 The Core Services Payment for the month is the amount set out against the relevant month in the Core Services Payment Table in Schedule 10A, subject to clause 4.1 of this schedule.
3. Initial Services Payment
3.1 The Initial Services Payment for the month will be calculated as follows:
where:
ISP is the Initial Service Payment payable in that month;
DSP is the Distribution Services Payment for the month as determined in accordance with paragraph 3.2;
CCP is the Cash Collection Services Payment for the month as determined in accordance with paragraph 3.3; and
CSSP is the Cardholder Support Services Payment for the month as determined in accordance with paragraph 3.4.
In the event that at any time during the Initial Services Term the Contractor is no longer providing one or more of the Distribution Services, Cash Collection Services or Cardholder Support Services, the Contractor will no longer be entitled to the corresponding payment and the Initial Services Payment will be calculated excluding the relevant payments.
3.2 The Distribution Services Payment for each month will be calculated as follows:
where:
DSP is the Distribution Services Payment payable in that month;
FDSP is the Fixed Distribution Services Payment for the month calculated as the amount set out against the relevant month in the Initial Services Payment Table in Schedule 10B, subject to clause 4.1 of this schedule;
VD is the volume of Disposable Smartcards (as defined in the Glossary which forms part of the NTS Requirements Document) Issued in the month;
UPD is the unit price per Disposable Smartcard as determined by the relevant Smartcard features as set out in Schedule 10C, 10D and 10E, subject to the operation of clause 27.8;
VR is the volume of Re-Loadable Smartcards Issued in the month;
UPR is the unit price per Re-Loadable Smartcard as determined by the relevant Smartcard features as set out in Schedule 10C, 10D and 10E, subject to the operation of clause 27.8;
VSE is the volume of Special Edition Smartcards Issued in the month;
UPSE is the unit price per Special Edition Smartcard as determined by the relevant Smartcard features as set out in Schedule 10C, 10D and 10E, subject to the operation of clause 27.8;
CDI is the volume of Disposable Smartcard and Re-Loadable Smartcards which were individually delivered in the month;
UPI is the unit price per individual Smartcard delivered as set out in Schedule 10F;
CDB is the volume batches of Disposable Smartcard and Re-Loadable Smartcards which were batched delivered in the month;
UPB is the unit price per batched Smartcard delivered as set out in Schedule 10F;
DO is the monthly payment associated with distributing materials, other than Smartcards, as agreed between the Contractor and Principal;
CP is the volume of Disposable Smartcard and Re-Loadable Smartcards which were Personalised (as described in note 1 in Schedule 10G) in the month;
UPP is the unit price per Smartcard Personalised as set out in Schedule 10G;
CDH is number of design hours undertaking agreed Smartcard feature/ design changes in the month;
UPH is price per hour for Smartcard design services as set out in Schedule 10H;
CDC is number of agreed Smartcard design changes in the month; and
UPCD is unit price per design change as set out in Schedule 10H.
3.3 The Cash Collection Services Payment for the month is the amount set out against the relevant month in the Initial Services Payment Table in Schedule 10B, subject to clause 4.1 of this schedule.
3.4 The Cardholder Support Services Payment for each month will be calculated as follows:
where:
CSSP is the Cardholder Support Services Payment payable in that month;
FCSSP is the Fixed Cardholder Support Services Payment for the month calculated as the amount set out against the relevant month in the Initial Services Payment Table in Schedule 10B, subject to clause 4.1 of this schedule;
VC is the volume of calls per month exceeding the minimum call volume set out in the Cardholder Support Variable Service Charge Table in Schedule 10J; and
UPC is the unit price for each call exceeding the minimum call volume set out in the Cardholder Support Variable Service Charge Table in Schedule 10J.
4. Pro Rata
4.1 If the period during which the Initial Services and Core Services are being provided and in respect of which Services Charges are being paid is less than a full calendar month, the Core Services Payment and the Fixed Distribution Services Payments, Cash Collection Services Payments and Fixed Cardholder Support Services Payment set out in Schedules 10A and 10B respectively will be pro rated by multiplying the relevant amount by:
where:
APD is the actual number of days in the period; and
CMD is the number of days in the calendar month in which the payment relates.
Schedule 10A
Core Services Payment Table
Core |
|
Core |
|
Core |
|
Core |
|
Core |
|
Core |
|
Core |
|
Core |
|
1 |
|
[**] |
|
37 |
|
[**] |
|
73 |
|
[**] |
|
109 |
|
[**] |
|
2 |
|
[**] |
|
38 |
|
[**] |
|
74 |
|
[**] |
|
110 |
|
[**] |
|
3 |
|
[**] |
|
39 |
|
[**] |
|
75 |
|
[**] |
|
111 |
|
[**] |
|
4 |
|
[**] |
|
40 |
|
[**] |
|
76 |
|
[**] |
|
112 |
|
[**] |
|
5 |
|
[**] |
|
41 |
|
[**] |
|
77 |
|
[**] |
|
113 |
|
[**] |
|
6 |
|
[**] |
|
42 |
|
[**] |
|
78 |
|
[**] |
|
114 |
|
[**] |
|
7 |
|
[**] |
|
43 |
|
[**] |
|
79 |
|
[**] |
|
115 |
|
[**] |
|
8 |
|
[**] |
|
44 |
|
[**] |
|
80 |
|
[**] |
|
116 |
|
[**] |
|
9 |
|
[**] |
|
45 |
|
[**] |
|
81 |
|
[**] |
|
117 |
|
[**] |
|
10 |
|
[**] |
|
46 |
|
[**] |
|
82 |
|
[**] |
|
118 |
|
[**] |
|
11 |
|
[**] |
|
47 |
|
[**] |
|
83 |
|
[**] |
|
119 |
|
[**] |
|
12 |
|
[**] |
|
48 |
|
[**] |
|
84 |
|
[**] |
|
120 |
|
[**] |
|
13 |
|
[**] |
|
49 |
|
[**] |
|
85 |
|
[**] |
|
121 |
|
[**] |
|
14 |
|
[**] |
|
50 |
|
[**] |
|
86 |
|
[**] |
|
122 |
|
[**] |
|
15 |
|
[**] |
|
51 |
|
[**] |
|
87 |
|
[**] |
|
123 |
|
[**] |
|
16 |
|
[**] |
|
52 |
|
[**] |
|
88 |
|
[**] |
|
124 |
|
[**] |
|
17 |
|
[**] |
|
53 |
|
[**] |
|
89 |
|
[**] |
|
125 |
|
[**] |
|
18 |
|
[**] |
|
54 |
|
[**] |
|
90 |
|
[**] |
|
126 |
|
[**] |
|
19 |
|
[**] |
|
55 |
|
[**] |
|
91 |
|
[**] |
|
127 |
|
[**] |
|
20 |
|
[**] |
|
56 |
|
[**] |
|
92 |
|
[**] |
|
128 |
|
[**] |
|
21 |
|
[**] |
|
57 |
|
[**] |
|
93 |
|
[**] |
|
129 |
|
[**] |
|
22 |
|
[**] |
|
58 |
|
[**] |
|
94 |
|
[**] |
|
130 |
|
[**] |
|
23 |
|
[**] |
|
59 |
|
[**] |
|
95 |
|
[**] |
|
131 |
|
[**] |
|
24 |
|
[**] |
|
60 |
|
[**] |
|
96 |
|
[**] |
|
132 |
|
[**] |
|
25 |
|
[**] |
|
61 |
|
[**] |
|
97 |
|
[**] |
|
133 |
|
[**] |
|
26 |
|
[**] |
|
62 |
|
[**] |
|
98 |
|
[**] |
|
134 |
|
[**] |
|
27 |
|
[**] |
|
63 |
|
[**] |
|
99 |
|
[**] |
|
135 |
|
[**] |
|
28 |
|
[**] |
|
64 |
|
[**] |
|
100 |
|
[**] |
|
136 |
|
[**] |
|
29 |
|
[**] |
|
65 |
|
[**] |
|
101 |
|
[**] |
|
137 |
|
[**] |
|
30 |
|
[**] |
|
66 |
|
[**] |
|
102 |
|
[**] |
|
138 |
|
[**] |
|
31 |
|
[**] |
|
67 |
|
[**] |
|
103 |
|
[**] |
|
139 |
|
[**] |
|
32 |
|
[**] |
|
68 |
|
[**] |
|
104 |
|
[**] |
|
140 |
|
[**] |
|
33 |
|
[**] |
|
69 |
|
[**] |
|
105 |
|
[**] |
|
141 |
|
[**] |
|
34 |
|
[**] |
|
70 |
|
[**] |
|
106 |
|
[**] |
|
142 |
|
[**] |
|
35 |
|
[**] |
|
71 |
|
[**] |
|
107 |
|
[**] |
|
143 |
|
[**] |
|
36 |
|
[**] |
|
72 |
|
[**] |
|
108 |
|
[**] |
|
144 |
|
[**] |
|
(1) Represents the relevant calendar month end from commencement of the Core Services Term. If commencement of the Core Services Term is not the first day of the month, the first month will be pro-rated in accordance with 4.1 of Schedule 10.
Schedule 10B
Initial Services Payment Table
Initial |
|
Fixed |
|
Cash |
|
Fixed |
|
Initial |
|
Fixed |
|
Cash |
|
Fixed |
|
1 |
|
[**] |
|
[**] |
|
[**] |
|
34 |
|
[**] |
|
[**] |
|
[**] |
|
2 |
|
[**] |
|
[**] |
|
[**] |
|
35 |
|
[**] |
|
[**] |
|
[**] |
|
3 |
|
[**] |
|
[**] |
|
[**] |
|
36 |
|
[**] |
|
[**] |
|
[**] |
|
4 |
|
[**] |
|
[**] |
|
[**] |
|
37 |
|
[**] |
|
[**] |
|
[**] |
|
5 |
|
[**] |
|
[**] |
|
[**] |
|
38 |
|
[**] |
|
[**] |
|
[**] |
|
6 |
|
[**] |
|
[**] |
|
[**] |
|
39 |
|
[**] |
|
[**] |
|
[**] |
|
7 |
|
[**] |
|
[**] |
|
[**] |
|
40 |
|
[**] |
|
[**] |
|
[**] |
|
8 |
|
[**] |
|
[**] |
|
[**] |
|
41 |
|
[**] |
|
[**] |
|
[**] |
|
9 |
|
[**] |
|
[**] |
|
[**] |
|
42 |
|
[**] |
|
[**] |
|
[**] |
|
10 |
|
[**] |
|
[**] |
|
[**] |
|
43 |
|
[**] |
|
[**] |
|
[**] |
|
11 |
|
[**] |
|
[**] |
|
[**] |
|
44 |
|
[**] |
|
[**] |
|
[**] |
|
12 |
|
[**] |
|
[**] |
|
[**] |
|
45 |
|
[**] |
|
[**] |
|
[**] |
|
13 |
|
[**] |
|
[**] |
|
[**] |
|
46 |
|
[**] |
|
[**] |
|
[**] |
|
14 |
|
[**] |
|
[**] |
|
[**] |
|
47 |
|
[**] |
|
[**] |
|
[**] |
|
15 |
|
[**] |
|
[**] |
|
[**] |
|
48 |
|
[**] |
|
[**] |
|
[**] |
|
16 |
|
[**] |
|
[**] |
|
[**] |
|
49 |
|
[**] |
|
[**] |
|
[**] |
|
17 |
|
[**] |
|
[**] |
|
[**] |
|
50 |
|
[**] |
|
[**] |
|
[**] |
|
18 |
|
[**] |
|
[**] |
|
[**] |
|
51 |
|
[**] |
|
[**] |
|
[**] |
|
19 |
|
[**] |
|
[**] |
|
[**] |
|
52 |
|
[**] |
|
[**] |
|
[**] |
|
20 |
|
[**] |
|
[**] |
|
[**] |
|
53 |
|
[**] |
|
[**] |
|
[**] |
|
21 |
|
[**] |
|
[**] |
|
[**] |
|
54 |
|
[**] |
|
[**] |
|
[**] |
|
22 |
|
[**] |
|
[**] |
|
[**] |
|
55 |
|
[**] |
|
[**] |
|
[**] |
|
23 |
|
[**] |
|
[**] |
|
[**] |
|
56 |
|
[**] |
|
[**] |
|
[**] |
|
24 |
|
[**] |
|
[**] |
|
[**] |
|
57 |
|
[**] |
|
[**] |
|
[**] |
|
25 |
|
[**] |
|
[**] |
|
[**] |
|
58 |
|
[**] |
|
[**] |
|
[**] |
|
26 |
|
[**] |
|
[**] |
|
[**] |
|
59 |
|
[**] |
|
[**] |
|
[**] |
|
27 |
|
[**] |
|
[**] |
|
[**] |
|
60 |
|
[**] |
|
[**] |
|
[**] |
|
28 |
|
[**] |
|
[**] |
|
[**] |
|
61 |
|
[**] |
|
[**] |
|
[**] |
|
29 |
|
[**] |
|
[**] |
|
[**] |
|
62 |
|
[**] |
|
[**] |
|
[**] |
|
30 |
|
[**] |
|
[**] |
|
[**] |
|
63 |
|
[**] |
|
[**] |
|
[**] |
|
31 |
|
[**] |
|
[**] |
|
[**] |
|
64 |
|
[**] |
|
[**] |
|
[**] |
|
32 |
|
[**] |
|
[**] |
|
[**] |
|
65 |
|
[**] |
|
[**] |
|
[**] |
|
33 |
|
[**] |
|
[**] |
|
[**] |
|
66 |
|
[**] |
|
[**] |
|
[**] |
|
(1) Represents the relevant calendar month end from commencement of the Initial Services Term. If commencement of the Initial Services Term is not the first day of the month, the first month will be pro-rated in accordance with 4.1 of Schedule 10.
Schedule 10C
Unit Price – Cards Issued Table
Unit Price – Raw Card Unit Cost Table
The unit prices below are inclusive of all initialisation costs and costs of unique serial numbers.
Card Type(1) |
|
Unit Price – Smartcard ($)(2) |
|
||||||||||||||||||||||||||||||||||||||||
|
|
Band 1 |
|
Band 2 |
|
Band 3 |
|
||||||||||||||||||||||||||||||||||||
Year ending |
|
2007 |
|
2008 |
|
2009 |
|
2010 |
|
2011 |
|
2012 |
|
2013 |
|
2007 |
|
2008 |
|
2009 |
|
2010 |
|
2011 |
|
2012 |
|
2013 |
|
2007 |
|
2008 |
|
2009 |
|
2010 |
|
2011 |
|
2012 |
|
2013 |
|
A |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
B |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
C |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
D |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
E |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Note
There will be no additional costs to the Principal for issuing any of the types of Smartcard listed in Schedule 10C, provided that no new Smartcard data definition is required and no other on-Smartcard applications are required. Should the Principal wish to introduce new services to customers and Operators which require interventions at the Smartcard level, such interventions will be Variations.
(1) Per Smartcard description table below. The Smartcard types required will be determined in accordance with the Smartcard procurement process set out in [reference to procurement process to be inserted when that process has been drafted and inserted into the agreement.]
(2) Four colour, two sided printing is included in the base cost of the Smartcard as set out in this schedule, for both Disposable and Re-loadable Smartcards.
D. Card Type Description
|
|
IC Card |
|
Usage |
|
Technology |
|
Interface |
|
Memory |
|
Comments |
A |
|
Contactless |
|
Disposable |
|
EEPROM read/write memory |
|
Contactless |
|
256 bit |
|
Wired Logic card capable of meeting ISO 14443 parts 2 and 3 type A or B and supporting a one-time-bit capability of at least 10 bits |
B |
|
Contactless |
|
Disposable |
|
EEPROM read/write memory |
|
Contactless |
|
512 bit |
|
ISO 14443 Type B card |
C |
|
Contactless |
|
Re-Loadable/ Disposable |
|
EEPROM read/write memory |
|
Contactless |
|
1Kb |
|
ISO 14443 Type B card |
D |
|
Contactless |
|
Re-Loadable |
|
EEPROM read/write memory |
|
Contactless |
|
4Kb |
|
ISO 14443 Type B card |
E |
|
Contactless |
|
Re-Loadable |
|
EEPROM read/write memory |
|
Contactless and Contact |
|
4Kb |
|
3DES capable ISO 14443 type A or B cards complying with the commands defined by part 4 of ISO 7816 and supporting a Credit/Debit capability |
Schedule 10D
Unit Price – Initialisation
The Initialisation Cost set out in this schedule are to be paid only where the Principal sources Smartcards from a third party supplier and provides those Smartcards to the Contractor for Initialisation of the Smartcard (and no Personalisation is required to be provided by the Contractor).
The “raw card cost” for Card Types C, D & E includes initialisation. At the time of purchase, the Smartcard is printed in 4 colours both sides. Electronically, the Smartcard is encoded only with the unique manufacturer’s number and is accessible using the “transport keys”. Initialisation consists of opening and reading the Smartcard, changing the “transport keys” for “scheme keys” and loading the basic “application” onto the Smartcard. For Smartcards which are to be initialised only, the price for initialisation is included in the raw card cost for each Smartcard set out in Schedule 10C.
Personalisation includes Initialisation, the encoding of personal information and the printing of personal information on the Smartcard (see Schedule 10G). So Smartcards which are to be Personalised do not require a separate Initialisation process and the cost of Initialisation for Smartcards which are Personalised is included in the costs set out in Schedule 10G.
For Disposable Cards, Initialisation (including loading the application) is undertaken as part of the Smartcard manufacturing process for Smartcards sourced by the Contractor. In the event that the Principal wishes to procure Disposable Smartcards from an alternative supplier, then the Contractor recommends that the Principal procures the Initialisation at the same time.
Should Principal procure Smartcards (Smartcard types C, D or E) from a third party, then the Contractor must Initialise them or Personalise them as required by the Principal at the prices set out below, provided that:
1. the Principal procures Smartcards tested for conformance to the relevant parts of ISO 14443 as shown in the table entitled “Card Type Description” in Schedule 10C;
2. the Principal procures PVC Smartcards;
3. the Principal procures that the Smartcards are shrink wrapped in boxes of 400 Smartcards; and
4. the Contractor is able to test the quality of each delivered batch of Smartcards by sampling a statistically significant number of Smartcards, and reject the entire delivery, if the Contractor reasonably concludes that the sample does not meet the Contractor’s standards for surface irregularities, physical damage, contamination and electrical performance. The Contractor shall not be liable for any delay caused by the rejection of a delivery of Smartcards provided it is acting reasonably in concluding that the Smartcards do not meet its standards.
|
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Year ending 30 June |
|
2007 |
|
2008 |
|
2009 |
|
2010 |
|
2011 |
|
2012 |
|
2013 |
|
Initialisation Cost(1) |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
(1) For Smartcard types C, D and D as described in Schedule 10C only.
Schedule 10E
Unit Price – Printing
The following prices are to be added to the base Smartcard price in Schedule 10C for over-printing of each Smartcard (over and above the base printing features included in Schedule 10C) or where the Principal sources Smartcards from a third party supplier and provides it to the Contractor for printing.
Printing |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Year ending 30 June |
|
2007 |
|
2008 |
|
2009 |
|
2010 |
|
2011 |
|
2012 |
|
2013 |
|
Printing(1),(2) |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Add Cardholder
service |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Add Signature Panel(2) |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Add Unique
Serial Number (if not included in base Smartcard |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
(1) Printing is for full colour double sided printing.
(2) The unit price per Smartcard for these printing features is capped at $[**] in total if one or more of these features is required to be provided at the same time or [**] if requested at the same time as Personalisation (in accordance with Schedule 10G).
Schedule 10F
Unit Price – Card Distribution
The following prices are to be paid depending on the delivery method chosen.
Card distribution |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Year ending |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
Individual Issue (1) |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Batch Issue (pack 400 Smartcards) |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Batch Issue (per roll of 2,000 Disposable Smartcards) |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Note
The Contractor must minimise distribution costs by optimising batch delivery arrangements.
(1) The cost of postage to the home of the cardholder for personalised Smartcards is included in the cost of Personalisation.
Schedule 10G
Unit Price – Personalisation
The following prices are to be paid depending on the type of Personalisation chosen by the Principal.
Plastic Personalisation Services(1) |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Unit |
|
Year ending |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
Add Card Holder Details (Text – eg Name, Address)(2) |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
Add Card Holder Photo(2) |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
[**] |
|
(1) Personalisation includes Initialisation, the encoding of personal information and the printing of personal information on the Smartcard and the despatch of each Personalised Smartcard by post. As such, Smartcards which are to be Personalised do not require a separate Initialisation process.
(2) The unit price per Smartcard for these personalisation features is capped at $[**] in total if one or more of these features are required to be provided at the same time.
Schedule 10H
Unit Price – Card Design
The following prices are to be used for each agreed design change.
Card design services(1) |
|
Hourly |
|
Hourly |
|
Hourly |
|
Hourly |
|
Hourly |
|
Hourly |
|
Hourly |
|
|||||||
Year ending 30 June |
|
2007 |
|
2008 |
|
2009 |
|
2010 |
|
2011 |
|
2012 |
|
2013 |
|
|||||||
Card design services |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
Card design change(1) |
|
Design |
|
Design |
|
Design |
|
Design |
|
Design |
|
Design |
|
Design |
|
|||||||
Year ending 30 June |
|
2005 |
|
2006 |
|
2007 |
|
2010 |
|
2011 |
|
2012 |
|
2013 |
|
|||||||
Card design change |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
$ |
[**] |
|
(1) In the case that the Principal provides the Contractor with the artwork, the Contractor will provide one design change per annum free of charge, provided the Principal provides artwork in the format required by the Smartcard printer.
Schedule 10I
Margin
Margins set out in the table below will only apply when the unit price for Smartcards is based on the actual cost (as per clause 27.8).
Distribution Service Component |
|
Margin (%) |
|
|
Card Buying |
|
[**] |
% |
|
Card Personalisation |
|
[**] |
% |
|
Card Design |
|
[**] |
|
|
Other Distribution |
|
[**] |
% |
|
Schedule 10J
Cardholder Support Variable Service Charge Table
Year ending 30 June |
|
Minimum Call Volumes |
|
Price ($) per call in excess of |
|
2007 |
|
[**] |
|
$ [**] |
|
2008 |
|
[**] |
|
$ [**] |
|
2009 |
|
[**] |
|
$ [**] |
|
2010 |
|
[**] |
|
$ [**] |
|
2011 |
|
[**] |
|
$ [**] |
|
2012 |
|
[**] |
|
$ [**] |
|
2013 |
|
[**] |
|
$ [**] |
|
Schedule 11
CPI Adjustment
(Schedule 7)
References to amounts to be indexed in accordance with CPI are references to such amounts multiplied by an adjustment factor. The adjustment factor shall be calculated as shown in the formula below:
where
“CPI1” is the CPI for the quarter ending 31 December in the preceding calendar year to the relevant calculation date; and
“CPI2” is the CPI for the quarter ending 30 June 2005.
“Consumer Price Index” or “CPI” means:
(a) the “All Groups Consumer Price Index Weighted Average of Eight Capital Cities” published quarterly by the Australian Bureau of Statistics, as long as there is no change in the coverage, periodicity or reference base from those applying at the date of this agreement;
(b) if there is a change in the coverage of the All Groups Consumer Price Index Weighted Average of Eight Capital Cities from that applying at the date of this agreement and the new All Groups Consumer Price Index Weighted Average of Eight Capital Cities is linked to previous All Groups Consumer Price Indexes, CPI is the All Group Consumer Price Index Weighted Average of Eight Capital Cities;
(c) if there is a change in the reference base of the All Groups Consumer Price Index Weighted Average of Eight Capital Cities from that applying at the date of this agreement and the Australian Bureau of Statistics provides a conversion factor, that conversion factor will be applied to calculate revised CPI figures for the purpose of this agreement, in terms of the new reference base;
(d) if there is a change in the reference base of the All Groups Consumer Price Index Weighted Average of Eight Capital Cities from that applying at the date of this agreement and the Australian Bureau of Statistics does not provide a conversion factor, the parties will request the President of the Institute of Actuaries (or his nominee) to calculate revised CPIs for the purposes of this agreement, and his determination is final and binds the parties;
(e) if the All Groups Consumer Price Index Weighted Average of Eight Capital Cities is published and:
(i) there is a change in its coverage and it is not linked to previous All Groups Consumer Price Indexes; or
(ii) there is a change in its periodicity,
the parties must request the President of the Institute of Actuaries (or his nominee) to determine:
A. whether the new All Groups Consumer Price Index Weighted Average of Eight Capital Cities is appropriate as a general indicator of the rate of price change for consumer goods and services; or
B. if it is not, what other index should be used as a substitute index for the purpose of this agreement,
and his determination is final and binds the parties;
(f) if the All Groups Consumer Price Index Weighted Average of Eight Capital Cities is not published and the Australian Bureau of Statistics publishes another index which is:
(i) a replacement of the All Groups Consumer Price Index Weighted Average of Eight Capital Cities; and
(ii) linked to the All Groups Consumer Price Index Weighted Average of Eight Capital Cities,
all CPIs relevant to this agreement must be re-calculated to the same reference base as the replacement index;
(g) if the All Groups Consumer Price Index Weighted Average of Eight Capital Cities is not published and the Australian Bureau of Statistics publishes another index which is not linked to the All Groups Consumer Price Index Weighted Average of Eight Capital Cities, the parties must request the President of the Institute of Actuaries (or his nominee) to calculate the revised CPIs for the purposes of this agreement, and his calculation is final and binds the parties; or
(h) if the All Groups Consumer Price Index Weighted Average of Eight Capital Cities is not published and the Australian Bureau of Statistics does not publish another index in replacement of the All Groups Consumer Price Index Weighted Average of Eight Capital Cities, the parties must request the President of the Institute of Actuaries (or his nominee) to determine an appropriate index which is a general indicator of the rate of price change for consumer goods and services, and his determination is final and binds the parties.
Schedule 12
Invoice Substantiation Data and Format
Part A – Payments of Capital Price
(Clause 21)
The format of the invoice for any claim by the Contractor in respect of a Payment Milestone invoice to be submitted under clause 21.3(a) and clause 21.3(b) is set out in Schedule 12A. In accordance with clause 21.3, the invoice for any claim with respect to a Payment Milestone must be accompanied by, at a minimum, the following information and substantiation data:
(a) a copy of the relevant Certificate of Completion issued by the TTA in accordance with clause 17 for completion of the relevant Phase;
(b) a copy of all Variation Orders issued by the Principal to the Contractor since the date of the last claim with respect to a Payment Milestone setting out the value and scope of the Variation and the amended Schedule 8 and Schedule 8A to the Project Agreement;
(c) a copy of all Variation Orders issued by the Principal to the Contractor for which payment is due at the end of the relevant Phase to which the invoice relates;
(d) detail of the nature and amounts to be capitalised and expensed in accordance with A-IFRS;
(e) the relevant extract(s) of the detailed fixed asset register and spares inventory in the detail as set out in clause 47.4 and a full reconciliation of the invoice to the additions to fixed asset register and spares inventory. The invoice, reconciliation, fixed asset register extracts and spares inventory extracts must provide sufficient detail to readily support the reconciliation, and to enable TTA to meet the requirements of its auditors in this regard;
(f) any other adjustments or payments due to or to be made by either party in accordance with this Project Agreement including any adjustment relating to certificates or notices issued by the TTA; and
(g) any other information reasonably requested by the Principal.
Part B – Delivery Services Charges
(Clause 21A)
The format of the Monthly Invoice to be submitted during the Delivery Services Term, in accordance with clause 27.3, is set out in Schedule 12B. In accordance with clause 27.3, any Monthly Invoice for any Delivery Services Charge claim must be accompanied by, at a minimum, the following information and substantiation data:
(a) The dates of the relevant month of the Delivery Services Term to which the invoice relates.
(b) Either:
I. where a Variation Order amends the Services to be delivered during the Delivery Services Term and the Variation Order:
(i) has been issued since the last Monthly Invoice; or
(ii) where the current invoice is the first Monthly Invoice;
then a copy of:
1. each Variation Order issued by the Principal to the Contractor since the last Monthly Invoice (or if the first Monthly Invoice, all Variation orders) setting out the value and scope of the Variation; and
2. the amended Schedule 32 to the Project Agreement; or
II. where no variation order has been issued since the date of the last Monthly Invoice, a copy of Schedule 32 to the Project Agreement used as substantiation in the last Monthly Invoice; or
III. where no Variation Order has been issued and the current invoice is the first Monthly Invoice, a copy of Schedule 32 included in the Project Agreement at execution.
(c) Full calculations of the monthly Delivery Services Charge in accordance with Schedule 32, including where applicable:
I. the relevant base data and payable amounts calculated for Cardholder Support Services, Distribution Services and Cash Collection, including the:
(i) applicable Fixed Cardholder Support Delivery Services Payment;
(ii) volume of calls of the month;
(iii) unit price for each call;
(iv) Fixed Distribution Services Payment;
(v) volume of Disposable Smartcards Issued in the month;
(vi) unit price per Disposable Smartcard;
(vii) volume of Re-Loadable Smartcards Issued in the month;
(viii) unit price per Re-Loadable Smartcard;
(ix) volume of Special Edition Smartcards Issued in the month;
(x) unit price per Special Edition Smartcard;
(xi) volume of Disposable Smartcard and Re-Loadable Smartcards which were individually delivered in the month;
(xii) unit price per individual card delivered;
(xiii) volume batches of Disposable Smartcard and Re-Loadable Smartcards which were batched delivered in the month;
(xiv) unit price per batched card delivered;
(xv) monthly payment associated with distributing materials, other than cards;
(xvi) volume of Disposable Smartcard and Re-Loadable Smartcards which were Personalised in the month;
(xvii) unit price per card Personalised;
(xviii) number of design hours undertaking agreed smartcard feature / design changes in the month; and
(xix) price per hour for card design;
II. for substantiation of Fixed Delivery Services charge for all other Delivery Services, a copy of each relevant Certificate of Completion issued by the TTA in accordance with clause 17 for the completion of all Phases occurring before the payment date.
(d) Any other adjustments or payments due to or to be made by either party in accordance with this Project Agreement including any adjustment relating to certificates or notices issued by the TTA.
(e) Copies of invoices for the pass through of banking charges in accordance with clause 27.9.
(f) Detail of the nature and amounts to be capitalised and expensed in accordance with the prevailing accounting principles and practices for the Victorian State Government (A-IFRS).
(g) Any other information reasonably requested by the Principal.
Part C – Service Charges
(Clause 27)
The format of the Monthly Invoice to be submitted during the Core Services Term in accordance with clause 27.3 is set out in Schedule 12C. In accordance with clause 27.3, an invoice for any Services Charges claim must be accompanied by, at a minimum, the following information and substantiation data:
(a) The dates of the relevant month of the Core Services Term to which the invoice relates.
(b) Either:
I. where a Variation Order amends the Services to be delivered during the Core Services Term and the Variation Order:
(i) has been issued since the date of the last Monthly Invoice; or
(ii) where the current invoice is the first Monthly Invoice,
then a copy of:
1. each Variation Order issued by the Principal to the Contractor since the last Monthly Invoice (or if it is the first Monthly Invoice, all Variation orders); and
2. the amended Schedule 10 to the Project Agreement;
II. where no Variation Order has been issued since the date of the last Monthly Invoice, then a copy of Schedule 10 of the Project Agreement used as substantiation in the last Monthly Invoice; or
III. where the current invoice is the first Monthly Invoice, a copy of Schedule 10 included in the Project Agreement at execution.
(c) Full calculations of the monthly Service Charges according to Schedule 10, to a sufficient level of detail to enable verification of the invoice amount, including:
I. the Core Services Payment for the relevant month;
II. the relevant base data and payable amounts calculated for any Initial Services Payment for the month, including:
(i) the Fixed Distribution Services Payment;
(ii) the actual cost plus margin calculation of the Distribution Service Payment, where applicable;
(iii) the volume of Disposable Smartcards Issued in the month;
(iv) the unit price per Disposable Smartcard;
(v) the volume of Re-Loadable Smartcards Issued in the month;
(vi) the unit price per Re-Loadable Smartcard;
(vii) the volume of Special Edition Smartcards Issued in the month;
(viii) the unit price per Special Edition Smartcard;
(ix) the volume of Disposable Smartcard and Re-Loadable Smartcards which were individually delivered in the month;
(x) the unit price per individual card delivered;
(xi) the volume batches of Disposable Smartcard and Re-Loadable Smartcards which were batched delivered in the month;
(xii) the unit price per batched card delivered;
(xiii) the monthly payment associated with distributing materials, other than cards;
(xiv) the volume of Re-Loadable Smartcards which were Personalised in the month;
(xv) the unit price per card Personalised;
(xvi) the number of design hours undertaking agreed smartcard feature / design changes in the month;
(xvii) the price per hour for card design;
(xviii) the Cash Collection Services Payment for the relevant month;
(xix) the Fixed Cardholder Support Services Payment for the month;
(xx) the volume of calls per month, including the calculation of the calls that exceed the minimum call volume; and
(xxi) the unit price for each call exceeding the minimum call volume;
III. the calculation of any adjustment to the Service Charge, where the payment period is less than a full calendar month.
(d) In accordance with Schedule 31 the full calculations of any Adjustment Amount that the Services Charge will be reduced by in the month, including relevant base data and calculation of the Services KPI Performance Amount, Entry / Exit Point Performance Amount, Entry / Exit Device Performance Amount, and the Distribution / Selling Device Performance Amount supported by an electronic Excel spreadsheet containing active formulae and base data for the calculation of the Adjustment Amount.
(e) In accordance with Schedule 31 the full calculations of any Half Yearly Service Bonus, Monthly Service Charge Bonus, Smartcard activation and use Bonuses, or Farebox growth bonuses, as applicable, payable to the Contractor, supported by an electronic Excel spreadsheet containing active formulae and base data for the calculation of any bonuses.
(f) The amount of any capital variation that is due and payable in the month to which the Monthly Invoice relates, including a copy of the relevant Variation Orders issued by the Principal to the Contractor.
(g) The calculation of any amount payable relating to replacement and refurbishment in accordance with clause 23.10 and Schedule 33 to the Project Agreement. The Monthly Invoice should contain details of:
I. the specific component replaced (including type of component and its location);
II. the component which was installed as a replacement;
III. the date and time that the replacement took place; and
IV. the price of the replacement, in accordance with Schedule 33.
(h) In accordance with clause 23.9, the Contractor must set out in each Monthly Invoice, any act of Vandalism and, in relation to each act of Vandalism:
I. the Device affected;
II. the Vandalism Category which the Vandalism falls into and substantiation of the vandalism act;
III. the Vandalism Costs for those vandalism acts above the agreed cap;
IV. information and documents to substantiate the Vandalism Costs above the agreed cap;
V. the Equivalent Incident units; and
VI. the total Equivalent Units for the relevant month.
(i) Details of all spare parts procured by the Contractor during the month, relating to either the Initial Services spares inventory (clause 22.9) or Core Services spares inventory (clause 23.8).
(j) The relevant extract(s) of the detailed fixed asset register and spares inventory in the detail as set out in clause 47.4 and a reconciliation (where applicable) of the invoice to the additions to the fixed asset register and / or spares inventory. The reconciliation, fixed asset register extracts and spares inventory extracts must provide sufficient detail to enable TTA to meet the requirements of its auditors in this regard.
(k) Detail of the nature and amounts to be capitalised and expensed in accordance with the prevailing accounting principles and practices for the Victorian State Government (A-IFRS).
(l) Any other adjustments or payments due to or to be made by either party in accordance with this Project Agreement including any adjustment relating to certificates or notices issued by the TTA.
(m) Copies of invoices for any pass through of banking charges in accordance with clause 27.9.
(n) Any other information reasonably requested by the Principal.
Schedule 12A
Format of invoice – Payments of Capital Price
A. |
Invoice relating to the completion of the following Phase
Substantiated by the information under Part A a) |
|
B. |
The amount of the Mobilisation Payment, exclusive of GST
As set out in Schedule 8 or 8A (as relevant) of the Project Agreement |
$ |
C. |
Total Capital Price less Mobilisation Payment, exclusive of GST
As set out in Schedule 8 or 8A (as relevant) of the Project Agreement |
$ |
D. |
Cumulative percentage milestone payments to end of the Phase to which the invoice relates
Sum of percentages up to completed Phase as set out in Schedule 8 or 8A (as relevant) |
% |
E. |
Cumulative capital payments payable at the end of the Phase to which the invoice relates
(Item C x Item D) + Item B |
$ |
F. |
Cumulative capital payments made to date |
$ |
G. |
Capital payment due under this invoice
Item E – Item F |
$ |
H. |
Any variation amount due and payable at the end of the Phase to which the invoice relates (provided not already included in Schedule 8 or Schedule 8A)
Amounts to be substantiated with information required under Part A c) |
$ |
I. |
Any other payments to be made by Principal to the Contractor
Amounts to be substantiated with information required under Part A f) |
$ |
J. |
Any other receipts due to Principal by Contractor
Amounts to be substantiated with information required under Part A f) |
$ |
K. |
Amount of this invoice, exclusive of GST
Item G + Item H + Item I + Item J |
$ |
L. |
GST
10% of Item K |
$ |
M. |
Amount of this invoice, inclusive of GST
Item K + Item L |
$ |
N. |
Full breakdown of the amounts within Item K to be capitalised and expensed
Amounts to be substantiated by the information under Part A d) |
$ |
Schedule 12B
Format of invoice – Delivery Services Charges
A. |
Date of the relevant month of the Delivery Services Term to which the invoice relates
Substantiated by the information under Part B a) |
|
B. |
The total amount of the Initial Services Delivery Charge for Cash Collection payable for the month, exclusive of GST
Substantiated by the information under Part B c) |
$ |
C. |
The total amount of the Initial Services Delivery Charge for Cardholder Support Services, exclusive of GST
Substantiated by the information under Part B c) |
$ |
D. |
The total amount of the Initial Services Delivery Charge for Distribution Services, exclusive of GST
Substantiated by the information under Part B c) |
$ |
E. |
The total amount of the Fixed Delivery Charge payable for the month, exclusive of GST
Substantiated by the information under Part B c) |
$ |
F. |
Any other payments or adjustments due or to be made by either party (with payments by the Principal to the Contractor to be expressed as positive amounts)
Amounts to be substantiated with information required under Part B d) |
$ |
G. |
Amounts of banking charges passed through in accordance with clause 27.9
Amounts to be substantiated with information required under Part B e) |
$ |
H. |
Amount of this invoice, exclusive of GST
Item B +Item C + Item D + Item E + Item F + Item G |
$ |
I. |
GST
10% of Item H |
$ |
J. |
Amount of this invoice, inclusive of GST
Item H + Item I |
$ |
K. |
Full breakdown of the amounts within Item H to be capitalised and expensed
Amounts to be substantiated by the information under Part B f) |
$ |
Schedule 12C
Format of invoice – Service Charges
A. |
Date of the relevant month of the Core Services Term to which the invoice relates
Substantiated by the information under Part C a) |
|
B. |
The total amount of the Core Services Payment payable for the month, exclusive of GST
Substantiated by the information under Part C c) |
$ |
C. |
The total amount of the Cash Collection Services Payment payable for the month, exclusive of GST
Substantiated by the information under Part C c) |
$ |
D. |
The total amount of the Cardholder Support Services Payment payable for the month, exclusive of GST
Substantiated by the information under Part C c) |
$ |
E. |
The total amount of the Distribution Services Payment payable for the month, exclusive of GST
Substantiated by the information under Part C c) |
$ |
F. |
Any applicable Adjustment Amount to the Service Charge for the relevant month (to be expressed in negative values)
Substantiated by the information under Part C d) |
$ |
G. |
Any applicable bonus due and payable to the Contractor for the relevant month
Substantiated by the information under Part C e) |
$ |
H. |
Any applicable capital variation amount due and payable to the Contractor for the relevant month
Substantiated by the information under Part C f) |
$ |
I. |
Any applicable amount due and payable to the Contractor as a result of replacement and refurbishment in accordance with clause 23.10 and Schedule 33 to the Project Agreement
Substantiated by the information under Part C g) |
$ |
J. |
50% of any Vandalism Costs for those vandalism acts above the agreed cap
Amounts to be substantiated with information required under Part C h) |
$ |
K. |
Any other payments or adjustments due or to be made by either party (with payments by the Principal to the Contractor to be expressed as positive amounts)
Amounts to be substantiated with information required under Part C l) |
$ |
L. |
Amounts of any banking charges passed through in accordance with clause 27.9
Amounts to be substantiated with information required under Part C m) |
$ |
M. |
Amount of this invoice, exclusive of GST
Item B + Item C + Item D + Item E - Item F + Item G + Item H + Item I + Item J + Item K + Item L |
$ |
N. |
GST
10% of Item M |
$ |
O. |
Amount of this invoice, inclusive of GST
Item N + Item O |
$ |
K. |
Full breakdown of the amounts within Item M to be capitalised and expensed
Amounts to be substantiated by the information under Part C k) |
$ |
Schedule 13
Transfer Principles
(Clause 44)
1. Transfer must take place in a manner which:
(a) minimises disruptions to the businesses of the Principal, Access Providers, Bus Operators and Stakeholders;
(b) minimises disruptions to the public;
(c) minimises costs for the Principal, Access Providers, Bus Operators and Stakeholders;
(d) minimises the start up and ongoing costs for the Principal or any third party that
(i) takes over the operation of the Solution; or
(ii) is operating a system that replaces the Solution; or
(iii) takes over the provision of any of the Services;
(e) occurs in the most expeditious and efficient manner possible;
(f) where the Solution is being replaced by a new system, provides for the concurrent operation of the Solution and the new system and gradual decommissioning of the Solution.
2. The Contractor must as part of the Transfer or facilitation of the Transfer to the Principal or a third party, at a minimum:
(a) peaceably surrender and transfer to the Principal or a third party the Solution in a fully functional condition which complies with this agreement, including the Requirements Document and the Solution Documentation;
(b) deliver to the Principal all Devices, documentation and material in relation to the Solution which is necessary to enable the Principal or a third party to operate the Solution and/or replace the Solution with another system and/or provide the Services including any of the following which have not previously been provided to the Principal in their current form:
(i) electronic and hard copy versions of the Solution Documentation including each of the Design Documents;
(ii) all data associated with the Solution, including System Data and Test Data;
(iii) all manufacturers’ warranties and guarantees relating to Devices and materials to be delivered to the Principal or a third party;
(iv) documentation, information, books, records and other materials (current at the time of delivery and reflecting current business and other processes) relating to the Solution and the Services; and
(v) all Software, Devices and other equipment required to operate and maintain the Solution or provide the Services (other than infrastructure used in the provision of the Initial Services or Core Services to the extent
that it is infrastructure of an entity other than the Contractor which is also used by that entity to provide a material level of services not related to the Initial Services or Core Services and which the Contractor, using reasonable endeavours, is not able to transfer);
(c) prior to the Transfer, provide to the Principal or a third party authorised by the Principal, access to:
(i) any part of the Solution; and
(ii) any of the items referred to in section 2(b) of this schedule;
(d) upon notice from the Principal, transfer, or facilitate the transfer, by way of novation or otherwise, of:
(i) all premises owned, leased or operated by the Contractor or any subcontractor;
(ii) all Key Contracts, agreements and other contracts (including supply contracts) entered into by the Contractor and its subcontractors;
(iii) all Approvals obtained by the Contractor and its subcontractors;
in relation to the Solution which are necessary for the ongoing operation of the Solution and the continued provision of the Services or the replacement of the Solution with another system.
(e) do all other reasonable acts and things to enable the Principal or a third party to operate the Solution and provide the Services at a level at least equal to that in effect immediately before the termination of this agreement without interruption.
Schedule 14
Expert
Deed
(Clause 49.5)
[Note: To be finalised by the Principal.]
DEED OF APPOINTMENT OF EXPERT made at Melbourne on
Parties Public Transport Ticketing Body trading as Transport Ticketing Authority of Level 38, 55 Collins Street, Melbourne, Victoria (the “Principal”)
Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600, of Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria (the “Contractor”)
[INSERT NAME] of [insert address] (“Expert”)
Recitals
A. The Principal and the Contractor have entered into an agreement dated [ ] entitled “New Ticketing Solution Project Agreement” (“Project Agreement”).
B. The Expert has been appointed by the Principal and the Contractor to determine disputes or differences in relation to the Project Agreement under the procedure described in the Project Agreement.
This Deed witnesses
1. Interpretation
Unless the contrary intention appears, words and phrases used in this Deed shall have the same meaning as attributed to such words in the Project Agreement.
2. Decide on disputes
The Expert shall be required to determine disputes or differences referred to the Expert in accordance with the procedures set out in the Project Agreement and shall, in discharging the Expert’s obligations under this Deed, abide and be bound by the provisions of the Project Agreement.
3. Meeting
Within 5 Business Days of a dispute being referred to the Expert, the Expert shall meet with the Principal and the Contractor to determine a procedure to resolve the dispute or difference.
4. Expert release
The parties release and indemnify the Expert from and against all claims, except in the case of fraud on the part of the Expert, which may be made against him or her by any person in respect of the Expert’s appointment to determine the dispute.
5. Expert’s powers
5.1 General powers
The Expert will in discharging the Expert’s obligations under this Deed:
(a) act as an expert and not as an arbitrator;
(b) proceed in such manner as the Expert thinks fit without being bound to observe the rules of evidence;
(c) take into consideration all documents, information, and other written and oral material that the parties place before the Expert including documents, information, and material relating to the facts in dispute and to arguments and submissions upon the matters in dispute;
(d) not be expected or required to obtain or refer to any other documents, information, or material but may do so if the Expert so desires;
(e) act in good faith and with expedition with a view to making a decision within the time period required by the Project Agreement;
(f) give his or her determination in writing (including a statement of the value of the determination) and give written reasons for the determination.
5.2 Advisors and consultants
(a) The Expert may, with prior written approval from both the Contractor and the Principal, commission his or her own advisers or consultants, including lawyers, accountants, bankers, engineers, surveyors, transport consultants or other technical consultants, to provide information to assist the Expert in his or her decision.
(b) The Expert must appoint any advisors or consultants nominated in writing by both the Principal and the Contractor to provide information to assist the Expert in his or her decisions.
6. Meet with parties
The Expert may as a part of the procedure to be determined under clause 3 further meet with the parties to discuss the dispute or difference and at and in connection with any such meeting:
(a) neither party may be accompanied by their legal representative; and
(b) the parties agree to be bound by such procedural directions as may be given by the Expert both in preparation for and during the course of the meeting.
The parties agree that any such meeting or meetings shall not in any way be regarded as a formal hearing.
7. Decision binding
Subject to clause 49.5(l) of the Project Agreement, the Expert’s decision shall be final and binding.
8. Remuneration
In consideration of the Expert performing the Expert’s obligations under this Deed, the Principal and the Contractor shall jointly pay to the Expert the amount set out in the Schedule or such other amount as is agreed between all parties to this Deed.
9. Confidentiality
The Expert shall not, at any time, whether before or after the expiration or sooner determination of this Deed, without the consent of the Principal and the Contractor divulge to any person any details concerning:
(a) the subject matter of any dispute or difference referred to the Expert under this Deed;
(b) any of the contents of the Project Agreement or this Deed or any other agreements collateral or supplemental to the Project Agreement or this Deed;
(c) any of the commercial bases of the Project Agreement or any information relating to the negotiations concerning the same or any information which may have come to the Expert’s knowledge in the course of such negotiations; or
(d) the operations, dealings, transactions, contracts, commercial, or financial arrangements, or affairs of the Principal and the Contractor as contemplated by the Project Agreement.
10. Nature of Expert’s role
(a) The Expert shall be independent from the Principal and the Contractor and (without limitation) the Expert warrants that he or she has no conflict of interest in acting under this Deed. Nothing in this Deed shall be deemed to make the Expert an agent, employee, or partner of the Principal or the Contractor.
(b) The Expert shall assume full responsibility and liability for the payment of all taxes due on moneys received by the Expert under this Deed.
11. Term
This Deed will expire on [Note: To be inserted.]
12. Termination
(a) This Deed may be terminated by either the Principal or the Contractor by giving the other parties 10 days written notice upon the occurrence of any of the following events:
(i) the Expert being declared of unsound mind or mentally ill;
(ii) the death of the Expert;
(iii) the Expert being declared bankrupt;
(iv) the Expert committing any proven act of dishonesty or, by wilful act or omission or by gross neglect, behaving in a fashion clearly prejudicial to the interests of the Principal or the Contractor;
(v) the Expert being prevented by prolonged illness or incapacity from performing the Expert’s obligations under this Deed.
(b) This Deed may be terminated by 10 days written notice to the Expert from both the Principal and the Contractor for any reason.
13. Insurance
The Expert shall hold professional indemnity insurance as required by the Principal and the Contractor.
14. Notices
All notices to be given to the Expert under this Deed shall be properly given if hand delivered to the Expert or if sent by certified or registered mail to the Expert’s address shown in this Deed or to such other address as the Expert may from time to time advise by notice in writing.
15. Governing law
This Deed will be governed by the laws of Victoria.
THE SCHEDULE
Expert’s Remuneration
[Note: To be inserted.]
EXECUTED as a deed.
Schedule 15
Parent Company Guarantee
(Clause 2.1)
DEED OF GUARANTEE AND INDEMNITY made on 2005
Parties
Public Transport Ticketing Body trading as Transport Ticketing Authority, ABN 73 595 242 024 (“Beneficiary”)
Keane, Inc. US federal identification number 042437166 (“Guarantor”)
Recitals
A. At the request of the Contractor and in consideration of the Beneficiary entering into and being bound by the Project Agreement, the Guarantor has agreed to grant a guarantee and indemnity on the terms of this deed.
B. The Guarantor considers that by providing the guarantee and indemnity on the terms of this deed there will be a commercial benefit flowing to the Guarantor.
This deed provides
1. Definitions and Interpretation
1.1 Definitions
In this deed:
“Contractor” means Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600.
“Encumbrance” means a mortgage, charge, pledge, lien, hypothecation, guarantee (including this deed), indemnity, letter of credit, letter of comfort, performance bond, or other avoidance against loss which secures any obligation which is or may be or becomes owing by any other Relevant Person to the Guarantor.
“Government Authority” means any government or any governmental or semi-governmental entity, authority, agency, commission, corporation or body (including those constituted or formed under any Statute), local government authority, stock exchange, administrative or judicial body or tribunal.
“Guarantee” means the guarantee and indemnity provided for in this deed.
“Guaranteed Money” means all money the payment or repayment of which from time to time forms part of the Obligations including all moneys payable by way of interest, fees, costs, charges, duties, Taxes or expense or payable by way of indemnity or as damages under or in relation to, or as a consequence of, any breach or default of the Project Agreement or any other Project Document.
“Material Adverse Effect” means a material adverse effect on:
(a) the business, assets, or financial condition of the Contractor and the Guarantor (taken as a whole); or
(b) the ability of the Contractor and the Guarantor (taken as a whole) to perform their obligations under any Project Document.
“Obligations” means all the liabilities and obligations of the Contractor to the Beneficiary pursuant to or in connection with the Project Agreement and each other Project Document and includes any liabilities or obligations which:
(a) are liquidated or unliquidated;
(b) are present, prospective or contingent;
(c) are in existence before or come into existence on or after the date of this deed;
(d) relate to the payment of money or the performance or omission of any act;
(e) sound in damages only; or
(f) accrue as a result of any Event of Default,
and irrespective of:
(g) whether the Contractor is liable or obligated solely, or jointly, or jointly and severally with another person;
(h) the circumstances in which the Beneficiary comes to be owed each liability or obligation and in which each liability or obligation comes to be the subject of the Guarantee, including any assignment of any liability or obligation or of this deed; or
(i) the capacity in which the Contractor and the Beneficiary comes to owe or be owed such liability or obligation.
“Project Agreement” means the agreement entitled “New Ticketing Solution Project Agreement” dated on or about the date of this deed between the Beneficiary and the Contractor.
“Relevant Person” means the Contractor and any person who has executed a Security in favour of the Beneficiary.
“Security” means a mortgage, charge, pledge, lien, hypothecation, guarantee (including this deed), indemnity, letter of credit, letter of comfort, performance bond, or other assurance against loss which secures any of the Obligations (including the payment of the Guaranteed Money) and whether existing at the date of this deed or at any time in the future.
“Statute” means any legislation of the Parliament of the Commonwealth of Australia or of any State or Territory of the Commonwealth of Australia in force at any time, and any rule, regulation, ordinance, by-law, statutory instrument, order or notice at any time made under that legislation.
“Tax” means any present or future tax, levy, impost, deduction, charge, duty, compulsory loan, or withholding (together with any related interest, penalty, fine, and expense in connection with any of them) levied or imposed by any Government Authority, other than any imposed on overall net income.
1.2 The Project Agreement
Except where the context requires otherwise, words and expressions used in this deed which are not otherwise defined shall have the meaning given to them in the Project Agreement.
1.3 Interpretation
In this deed:
(a) headings are for convenience only and do not affect interpretation,
and unless the context indicates a contrary intention:
(b) an obligation or a liability assumed by, or a right conferred on, 2 or more persons binds or benefits them jointly and severally;
(c) “person” includes an individual, the estate of an individual, a corporation, a Government Authority, an association or a joint venture (whether incorporated or unincorporated), a partnership, and a trust;
(d) a reference to any party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation;
(e) a reference to any document (including this deed) is to that document as varied, novated, ratified or replaced from time to time;
(f) a reference to a Statute includes its delegated legislation and a reference to a Statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
(g) a word importing the singular includes the plural (and vice versa), and a word importing a gender includes every other gender;
(h) a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment and annexure to or of this deed, and a reference to this deed includes all, schedules, exhibits, attachments and annexures to it;
(i) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(j) “includes” in any form is not a word of limitation; and
(k) a reference to “$” or “dollar” is to Australian currency.
1.4 Rule of construction excluded
No term or provision of this deed shall be construed against a party on the basis that the deed or the term or provision in question was put forward or drafted by that party.
2. Guarantee
2.1 Guarantee
The Guarantor unconditionally and irrevocably guarantees to the Beneficiary the due and punctual performance and satisfaction by the Contractor of all of the Obligations including the payment in full of the Guaranteed Money.
2.2 Payment of Guaranteed Money
If the Contractor does not pay the Guaranteed Money when due, the Guarantor must, on demand being made pursuant to clause 2.4, pay to the Beneficiary the Guaranteed Money which is then due and payable, subject only to the limitation in clause 4.3.
2.3 Perform Obligations
If the Contractor defaults in the performance or observance of any of the Obligations, the Guarantor shall, in addition to its obligations under clause 2.2, and subject only to the limitation in clause 4.3, on demand from time to time by the Beneficiary pursuant to clause 2.4, immediately perform or procure the performance by the Contractor of any of the Obligations then required to be performed by the Contractor in the same manner as the Contractor is required to perform the Obligations.
2.4 Demand
The Beneficiary will:
(a) prior to making demand on the Guarantor under clause 2.2 or 2.3, make demand on the Contractor to pay the Guaranteed Money or perform the Obligation then outstanding;
(b) on the same day, give a copy of the demand under clause 2.4(a) to the Guarantor; and
(c) be entitled to make demand on the Guarantor for payment of the Guaranteed Money or performance of the Obligation if a demand made under clause 2.4(a) remains outstanding at the end of 5 Business Days from the date of that demand,
and the Guarantor must make the relevant payment or perform or procure performance of the relevant Obligation pursuant to that demand without reference to the Contractor and notwithstanding any dispute by the Contractor as to its liability to the Principal to make that payment or perform that Obligation, but subject to clause 4.5.
3. Indemnity
As a covenant separate and distinct from that contained in clause 2, the Guarantor irrevocably agrees, subject only to the limitation in clause 4.3, to indemnify the Beneficiary and at all times to keep the Beneficiary indemnified against any loss or damage suffered by the Beneficiary arising out of or in connection with:
(a) any failure by the Contractor to observe or perform any of the Obligations including any failure by the Contractor to pay the Guaranteed Money duly and punctually; or
(b) any Project Document being wholly or partly void, voidable, or unenforceable against the Contractor as a result of any act or omission by or on behalf of the Contractor or other Relevant Person, with the effect, in any such case, that:
(i) sums which would (but for the voidness, voidability, or unenforceability) have been Guaranteed Money are not recoverable by the Beneficiary under clause 2.2; or
(ii) any other obligations which would (but for the voidness, voidability, or unenforceability) have been Obligations are not guaranteed under clause 2.3; or
(c) a disclaimer of any contract or property (including the Project Agreement) made by a liquidator of the Contractor,
provided however that the Guarantor shall not indemnify the Beneficiary for losses to the extent that they result from the gross negligence of the Beneficiary or breach by the Beneficiary of its obligations under the Project Documents.
4. Nature and Preservation of Liability
4.1 Absolute liability
The liability of the Guarantor under this deed arises immediately on execution and delivery of this deed by the Guarantor, and:
(a) arises notwithstanding that any person expressed to be a party to this deed does not execute and deliver this deed, that there is any invalidity, forgery or irregularity in the execution or purported execution of this deed by any person, or that this deed is or becomes unenforceable against any such person for any reason; and
(b) is not conditional on the entering into by any other person of any other document or agreement which might benefit (directly or indirectly) the Guarantor, or on the satisfaction of any other condition.
4.2 Unconditional liability
The liability of the Guarantor under this deed will not be affected by any act, omission, matter or thing which but for this clause 4.2, might operate in law or in equity to release the Guarantor from that liability or to reduce the Guarantor’s liability under this deed including, any of the following:
(a) (Invalidity etc.): any Security or any Project Document being terminated or discharged (whether by any party thereto or by operation of law) or being or becoming void, voidable, or unenforceable for any reason;
(b) (Other Securities): the Beneficiary accepting or declining to accept any Security from any person;
(c) (Time or indulgence): the Beneficiary granting or agreeing with the Guarantor, the Contractor or other Relevant Person to grant time, waiver, or other indulgence or concession to, or making any composition or compromise with any person whether or not pursuant to any Project Document;
(d) (Forbearance): the Beneficiary not exercising or delaying in the exercise of any remedy or right it has at any time to terminate or enforce its rights under this deed, any Project Document, or any Security;
(e) (Variation): any variation, novation or alteration to or substitution of this deed, any Project Document or any Security, if that variation, novation or alteration permits or results in a change in the Obligations, including amount of the Guaranteed Money or a change in the date by which it must be paid, or a change in the identity of the Contractor or other Relevant Person;
(f) (Release): the partial or conditional release or discharge by the Beneficiary or by operation of law of any Relevant Person from its obligations under any Project Document or any Security;
(g) (Securities): the Beneficiary enforcing, releasing, disposing of, surrendering, wasting, impairing, destroying, abandoning, prejudicing, or failing or delaying to perfect, maintain, preserve, realise, or enforce any Project Document, any Security, whether negligently or otherwise;
(h) (Accounts): the opening or operation of any new account with the Beneficiary by the Contractor or other Relevant Person;
(i) (Change of constitution): any change for any reason in the name or manner in which the Beneficiary or any Relevant Person carries on business, including any change in any partnership, firm, or association of which the Beneficiary or any Relevant Person is a member;
(j) (Disclosure): any failure by the Beneficiary to disclose to the Guarantor any material or unusual fact, circumstance, event, or thing known by, or which ought to have been known by, the Beneficiary relating to or affecting any Relevant Person before or at any time after the date of this deed;
(k) (Prejudicial Conduct): any breach by the Beneficiary of any term of any Project Document or Security or any other act or omission (negligent or otherwise) of the Beneficiary with regard to any Project Document, any Security, or any Relevant Person which is prejudicial to the interests of the Guarantor;
(l) (Preference): any claim by any person that a payment to, receipt by, or other transaction in favour of the Beneficiary in or towards satisfaction of the Obligations, including the payment of the Guaranteed Money is void, voidable, or capable of being set aside under any law relating to bankruptcy, insolvency, or liquidation being upheld, conceded, or compromised;
(m) (Assignment): the transfer, assignment, or novation by the Beneficiary or any Relevant Person of all or any of its rights or obligations under any Project Document or Security to which it is a party;
(n) (Administration): the provisions of section 440J of the Corporations Act so operating as to prevent or delay;
(i) the enforcement of this deed against any Guarantor other than a Guarantor in respect of whose liability the section applies; and/or
(ii) any claim for contribution against any Guarantor;
(o) (Disclaimer): a disclaimer of any contract or property (including the Project Agreement) made by a liquidator of the Contractor or other Relevant Person;
(p) (Event of Insolvency): the occurrence before, on or at any time after the date of this deed, of any Event of Insolvency in relation to any Relevant Person;
(q) (Distribution): the receipt by the Beneficiary of any payment, dividend or distribution under any Insolvency Provision in relation to any Relevant Person;
(r) (Event of Default): the occurrence of any Event of Default;
(s) (Acquiescence or other omission): any laches, acquiescence or other act, neglect, default, omission or mistake by the Beneficiary;
(t) (Repudiation): the determination, rescission, repudiation or termination, or the acceptance of any of the foregoing, by the Beneficiary or any Relevant Person of any Project Document or any Obligation;
(u) (Security property): the release of any property from any Security or the substitution of any property in place of any other property the subject of a Security;
(v) (Loss of Securities): the failure to obtain any Security or the loss or impairment of any Security by operation of law or otherwise, whether or not the same is in breach of any express or implied condition to obtain or preserve that Security, or is in breach of any equitable duty which might otherwise have been imposed on the Beneficiary; or
(w) (Priority of Securities): the Beneficiary agreeing to the postponement or loss of any priority attaching to any Security.
4.3 Limitation of Liability
(a) Except in respect of clause 12, subject to clause 4.3(b), the aggregate liability of the Guarantor under this Deed, whether for the Guarantor’s obligations, indemnifications or otherwise, shall not be greater than and falls within the same monetary limitations as are imposed on the liability of the Contractor to the Beneficiary:
(b) To the extent that the Contractor satisfies a liability to the Principal which is subject to the monetary limitation on liability of the Contractor under clause 40.2 of the Project Agreement, the maximum liability amount of the Guarantor to the Principal under this Deed will be reduced accordingly.
4.4 Claim on the Guarantor
Subject to clause 2.4, the Beneficiary is not required to make any claim or demand on the Contractor or on any other Relevant Person, or to take any steps to enforce its rights under any Project Document or any Security before making any demand or claim on, or otherwise enforcing its rights against, the Guarantor under this deed.
4.5 No set off, counterclaim etc.
The liability of the Guarantor under this deed will not be reduced or avoided by any defence, set off, or counterclaim available to the Contractor against the Beneficiary except that the Guarantor will be entitled to raise any defence of the Contractor, where the Contractor has a bona fide dispute with the Principal as to its liability for the particular payment of Guaranteed Moneys or performance of the Obligation to which the demand on the Guarantor relates, provided however that the dispute does not relate to any claim that any Project Document is wholly or partly void, voidable or unenforceable against the Contractor.
4.6 No marshalling
The Beneficiary is under no obligation to marshal or appropriate in favour of the Guarantor or to exercise, apply, transfer, or recover in favour of any Guarantor, any Security or any funds or assets that the Beneficiary holds, has a claim on, or is entitled to receive.
4.7 No representation by Beneficiary
The Guarantor acknowledges that in entering into this deed it has not relied upon any representation, warranty, statement, information or data made or provided to it by the Beneficiary, the Government, any Government Agencies, the Access Providers or any Stakeholder.
4.8 Void or voidable transactions
If:
(a) the Beneficiary has at any time released or discharged:
(i) the Guarantor from its obligations under this deed or any Security executed by the Guarantor; or
(ii) any assets of the Guarantor from a Security,
in either case in reliance on a payment, receipt, or other transaction to or in favour of the Beneficiary;
(b) that payment, receipt, or other transaction is subsequently claimed by any person to be void, voidable, or capable of being set aside for any reason, including under an Insolvency Provision; and
(c) that claim is upheld, conceded, or compromised, which results in such payment, receipt or other transaction being rescinded, repaid or disgorged,
then:
(d) (Restitution of rights): the Beneficiary will immediately become entitled against the Guarantor to all such rights (including under any Security) as it had immediately before that release or discharge;
(e) (Restore Beneficiary’s position): the Guarantor must immediately do all things and execute all documents as the Beneficiary may require to restore the Beneficiary all those rights; and
(f) (Indemnity): the Guarantor must indemnify and keep the Beneficiary indemnified against costs, losses, and expenses suffered or incurred by the Beneficiary as a result of the upholding, concession, or compromise of the claim.
4.9 No double proof
This deed constitutes a guarantee of the whole of the Obligations, even if the Beneficiary and the Guarantor have agreed or agree at any time that the Guarantor’s liability under this deed will be limited to a maximum amount under clause 4.3. Accordingly, subject to clause 4.10, the Guarantor is not entitled to lodge any proof of debt in the winding up of the Contractor or other Relevant Person with respect to any claim arising as a result of the Guarantor making a payment under this deed, unless and until the Obligations have been satisfied in full and the Guaranteed Money has been paid to, or recovered by, the Beneficiary in full and no claim
referred to in 4.8(b) is threatened, pending, upheld, conceded or compromised in relation to that payment or other transaction relied on by the Beneficiary as the basis for any discharge.
4.10 Proof of debt in competition with Beneficiary
(a) The Guarantor must prove in the winding-up of any Relevant Person in respect of any claim it has against that Relevant Person other than a claim arising as a result of the Guarantor making a payment under this deed, and agrees to hold any dividend received in respect of that proof on trust for the Beneficiary in or towards satisfaction of the Guarantor’s obligations under this deed.
(b) The Guarantor irrevocably appoints the Beneficiary its attorney for the purposes of lodging a proof in the Guarantor’s name, and authorises the Beneficiary to retain and to carry to a suspense account and appropriate at the discretion of the Beneficiary any amounts received in respect of that proof until, after taking the amount into account, the Beneficiary has recovered an amount equal to all of the Guaranteed Money.
4.11 Waiver of rights
The Guarantor:
(a) must not exercise any right to contribution, indemnity or subrogation (including being entitled to the benefit of any Security held by the Beneficiary) which it might otherwise be entitled to claim and enforce against any Relevant Person on account of the Obligations; and
(b) will not be entitled to the benefit of, nor seek the transfer to it, any Security held by the Beneficiary,
until all the Obligations have been satisfied and Guaranteed Money has been paid to, discharged or recovered by the Beneficiary in full and no claim referred to in 4.7(b) is threatened, pending, upheld, conceded or compromised in relation to that payment or other transaction relied on by the Beneficiary as the basis for any discharge.
4.12 Restriction on Guarantor’s dealings
The Guarantor must not without the Beneficiary’s prior written consent to those matters in clause 4.12(a) to (c):
(a) (No proceedings): institute any proceedings against the Contractor;
(b) (No demand): in relation to the Project Document make any demand for, or accept any money in or towards satisfaction of any liability on any account of the Contractor other than for a liability arising out of the supply of goods or services by the Guarantor to the Contractor in the ordinary course of that Guarantor’s ordinary business, and on arm’s length terms;
(c) (No Encumbrances): create or permit to exist any Encumbrance as security for any obligation which is or may be or become owing by the Contractor to the Guarantor. The Guarantor agrees to hold the benefit of any Encumbrance created or existing in breach of this clause 4.12 and the proceeds of its realisation on trust for the Beneficiary to be applied in or towards satisfaction of the Guarantor’s liability under this deed; or
(d) (administrator): appoint an administrator to the Contractor or other Relevant Person without prior written notice to the Beneficiary.
4.13 Suspense account
The Beneficiary may retain and carry to a suspense account and appropriate at the discretion of the Beneficiary any dividend received by the Beneficiary in the winding-up of any Relevant Person, plus any other sums received by the Beneficiary on account of the Guaranteed Money, until the Beneficiary has received the full amount of the Guaranteed Money.
4.14 Exercise of subrogation rights
The Guarantor will not seek the transfer to it of any Security which is subject to an agreed order of priority in the Beneficiary’s hands under any right of subrogation, unless and until it has entered into a deed under which it undertakes to be bound by the priority affecting that Security with the other parties to that agreed order or priority.
5. Corporate Representations and Warranties
5.1 Representations and Warranties
The Guarantor represents and warrants to the Beneficiary that:
(a) (Constitution): the execution, delivery, and performance of this deed does not violate its Constitution or any other document, agreement, law, or rules by which it is bound;
(b) (Corporate power): it has taken all action required to enter into this deed and to authorise the execution and delivery of this deed and the performance of its obligations under this deed;
(c) (Filings): it has filed all material notices and effected all registrations with the United States Securities and Exchange Commission or similar office in its jurisdiction of incorporation and in any other jurisdiction as required by law which could have an effect upon the enforceability or validity of any Project Document or the ability of the Guarantor to perform its obligations under any Project Document, and those filings and registrations are current, complete, and accurate;
(d) (Corporate Benefit): the execution of this deed is in the best commercial interests of the Guarantor;
(e) (Consideration): this deed is executed for valuable consideration, the receipt and adequacy of which the Guarantor acknowledges;
(f) (Status): no Event of Insolvency has occurred or subsists in respect of the Contractor or the Guarantor and no matter relating to the Contractor or the Guarantor is the subject of a direction under, or having effect as if it were a direction under, section 14 of the Australian Securities and Investment Commission Act 2001, or the subject of an investigation under, or taken to be under, that Act;
(g) (Ownership of property): it has full legal capacity and power to own its property and assets and carry on its business as it is now being conducted;
(h) (Ranking of obligations): this deed constitutes a valid and legally binding obligation, enforceable in accordance with its terms, to rank at all times at least equally with all of its other present and future unsecured payment obligations (including, without limitation, contingent obligations), other than those which are mandatorily preferred by law and that the Guarantor has taken all action required to ensure that its obligations under this deed so rank and will continue to so rank;
(i) (No litigation): no litigation, arbitration, or administrative proceedings are taking place, pending or, to the knowledge of any of its officers, threatened against it or any of its subsidiaries or any of its or their property which, if adversely determined, would be likely to have a Material Adverse Effect;
(j) (Financial statements): its financial statements have been prepared and will from time to time be prepared in accordance with Guarantor’s Constitution, any applicable Statute, and all accounting principles and practices generally accepted in its place of incorporation consistently applied, and give a true and fair view of the financial condition of it and its subsidiaries as at the date to which they are made up, and of the results of operations for the financial year then ended, and there has been no change since that date having a Material Adverse Effect;
(k) (Other information): the written information and reports (if any) which it has given to the Beneficiary in connection with the negotiation and preparation of this deed:
(i) was, when given, true and accurate in all material respects and not misleading, whether by omission or otherwise; and
(ii) contain forecasts and opinions all of which were made or formed after due and careful consideration on the part of its relevant officers based on the best information available to it and were in the bona fide opinion of the Guarantor fair and reasonable when made or formed; and
(l) (No filings or Taxes): it is not necessary or desirable to ensure the legality, validity, enforceability, or admissibility in evidence of this deed that this deed or any other instrument be filed or registered with any Government Authority or that any Taxes be paid.
5.2 Representations and Warranties Repeated
While Obligations remain to be performed or satisfied or any or the Guaranteed Money remains outstanding (whether or not then due for payment) the Guarantor will:
(a) give to the Beneficiary a report on each anniversary of the date of this deed, signed by a director and secretary of the Guarantor giving details of all litigation, arbitration or administrative proceedings taking place, pending, or to the knowledge of its officers, threatened against the Guarantor or any of its subsidiaries or any of their property which, if adversely determined, would be likely to have Material Adverse Effect; and
(b) promptly upon becoming aware, advise the Beneficiary if any Event of Insolvency occurs or subsists in respect of the Contractor or the Guarantor.
5.3 Reliance on Representations and Warranties
The Guarantor acknowledges that the Beneficiary has entered into the Project Agreement and each other Project Document in reliance on the representations and warranties in this Clause 5.
5.4 No Representations to Guarantor
The Guarantor confirms that, except as provided herein and any Project Document, it has not executed this deed as a result of or in reliance upon any promise, representation, statement, or information of any kind or nature whatever given or offered to it by or on behalf of the Beneficiary whether in answer to any inquiry by or on behalf of the Guarantor or not.
6. Payments
6.1 On demand
All money payable by the Guarantor under this deed must be paid on demand by the Beneficiary, in immediately available funds to the account of, and in the manner notified to the Guarantor from time to time by, the Beneficiary.
6.2 Payment in gross
All money received or recovered by the Beneficiary on account of the Guaranteed Money will be treated as payments in gross.
6.3 Interest
As a liability separate and distinct from the Guarantor’s liability under clauses 2 and 3, the Guarantor must on demand by the Beneficiary pay interest on all amounts due and payable by it and unpaid under or in respect of this deed. Interest will accrue on those amounts from day to day from the due date up to the date of actual payment, before and (as a separate and independent obligation) after judgment, at the Overdue Rate for successive 60 day interest periods commencing on the date of default and, if not paid when due, will itself bear interest in accordance with this clause 6.3.
6.4 Merger
If the liability of the Guarantor to pay to the Beneficiary any money under this deed becomes merged in any judgment or order, then, as an independent obligation, the Guarantor will pay interest on the amount of that money at the rate which is the higher of that payable under clause 6.3 and that fixed by or payable under the judgment or order.
6.5 Appropriation of payments
The Beneficiary may appropriate any money received by it under or in respect of this deed, any Project Document, or any Security in the manner and order and at all times as the Beneficiary in its absolute discretion determines.
6.6 No set-off or deduction
All payments by the Guarantor under this deed will be free of any set-off or counterclaim and without deduction or withholding for any present or future Taxes unless the Guarantor is compelled by law to make any deduction or withholding and if this is the case, the Guarantor must pay to the Beneficiary any additional amounts as are necessary to enable the Beneficiary to receive, after all those deductions and withholdings, a net amount equal to the full amount which would otherwise have been payable had no deduction or withholding been required to be made.
7. Expenses and Stamp Duty
7.1 Expenses
The Guarantor must on demand indemnify and keep the Beneficiary indemnified against all expenses including legal fees, costs, and disbursements (on a solicitor and own client basis or on a full indemnity basis, whichever is the higher), incurred by the Beneficiary in connection with the enforcement, attempted enforcement, or preservation of any rights under this deed.
7.2 Stamp duties
The Guarantor must:
(a) (Payment of all duties): pay all stamp duties, registration, and similar Taxes, including fines and penalties, financial institutions duty, and debits tax in connection with the execution, delivery, performance, enforcement, or attempted enforcement of this deed or any payment or other transaction under or contemplated in this deed; and
(b) (Indemnity): indemnify and keep the Beneficiary indemnified against any loss or liability incurred or suffered by it as a result of the delay or failure by the Guarantor to pay Taxes.
8. GST
8.1 Interpretation
(a) Except where the context suggests otherwise, terms used in this clause 8 have the meanings given to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time).
(b) Unless stated to the contrary, any amount, payment or consideration referred to under or in connection with this deed is exclusive of GST. Any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 8.
(c) Any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 8.
8.2 Reimbursements and similar payments
Any payment or reimbursement required to be made under this deed that is calculated by reference to a cost, expense, or other amount paid or incurred will be limited to the total cost, expense or amount less the amount of any input tax credit to which an entity (or its representative member) is entitled for the acquisition to which the cost, expense or amount relates.
8.3 GST payable
If GST is payable in relation to a supply made under or in connection with this deed then:
(a) any party (“Recipient”) that is required to provide consideration to another party (“Supplier”) for that supply must pay an additional amount to the Supplier equal to the amount of that GST; and
(b) the additional amount is payable at the same time as any other consideration is to be first provided for that supply or, if later, within 14 days after the day on which the Supplier provides the Recipient with a tax invoice for the supply.
8.4 Variation of GST
If the GST payable in relation to a supply made under or in connection with this deed varies from the additional amount paid by the Recipient under clause 8.3 such that a further amount of GST is payable in relation to the supply or a refund or credit of GST is obtained in relation to the supply, then the Supplier will provide a corresponding refund or credit to, or will be
entitled to receive the amount of that variation from, the Recipient. Any payment, credit or refund under this clause 8.4 is deemed to be a payment, credit or refund of the additional amount payable under clause 8.3.
9. Assignments
The Beneficiary may at any time assign or otherwise transfer all or any part of its rights under this deed to a person to whom the Beneficiary has assigned or otherwise transferred its rights under, and in accordance with, the Project Agreement and may disclose to a proposed assignee or transferee any information in the possession of the Beneficiary relating to the Guarantor.
10. Governing Law and Jurisdiction
10.1 Governing law
This deed is governed by and will be construed according to the law applying in Victoria.
10.2 Jurisdiction
(a) (Acceptance of jurisdiction): The Guarantor irrevocably submits to, acknowledges and accepts, generally and unconditionally, the exclusive personal and subject matter jurisdiction of the courts and appellate courts of Victoria with respect to any legal action or proceedings which may be brought at any time relating in any way to this deed, subject to clause 10.2(c)(ii).
(b) (No objection to inconvenient forum): The Guarantor irrevocably waives any objection it may now or in the future have to the venue of any action or proceeding, and any Claim it may now or in the future have that any action or proceeding has been brought in an inconvenient forum.
(c) (Enforcement of Victorian judgment): The Guarantor agrees that a judgment or order of a Victorian court in connection with this deed:
(i) is conclusive and binding on the Guarantor, subject to any rights of appeal which the Guarantor may have in Victoria or to the High Court of Australia; and
(ii) may be enforced, and the Guarantor consents to the enforcement of such a judgment or order, against the Guarantor in the courts of any other jurisdiction, including the state and federal courts of the Commonwealth of Massachusetts, in the United States of America.
11. Miscellaneous
11.1 Certificate of Beneficiary
A certificate in writing of the Beneficiary certifying the amount payable by the Guarantor to the Beneficiary or stating any other act, matter, or thing relating to this deed, any Project Document or any Security will be prima facie evidence of that amount, act, matter or thing in the absence of manifest error on the face of the certificate.
11.2 Notices
All communications (including notices, consents, approvals, requests and demands under or in connection with this deed:
(a) must be in writing;
(b) must be addressed as follows (or as otherwise notified by that party to each other party from time to time):
Guarantor
Name: Keane Inc.
Address: 100 City Square, Boston, Massachusetts 02129, United States of America
Fax: +1 617 241 8032
For the attention of: Chief Financial Officer
Beneficiary
Name: Transport Ticketing Authority
Address: Level 38, 55 Collins Street, Melbourne, Victoria
Fax: +61 3 9651 7578
For the attention of: Principal’s Representative
(c) must be signed by the party making the communication or (on its behalf) by the solicitor for, or any attorney, chief executive officer, director, secretary of that party or other senior officer authorised to make such communications by written notice from time to time by that party to the other party;
(d) must be delivered or posted by prepaid post to the address, or sent by fax to the number, of the addressee, in accordance with this clause; and
are taken to be received by the addressee:
(i) in the case of prepaid post, on the Business Day that is the third Business Day after the date of posting to an address within Australia, and on the fifth Business Day after the date of posting by airmail to an address outside Australia;
(ii) in the case of fax, at the local time (in the place of receipt of that fax) which then equates to the time that fax is sent as shown on the transmission report produced by the machine from which that fax is sent confirming transmission of that fax in its entirety, unless that local time is not on a Business Day, or is after 5.00 pm on a Business Day, when that communication is taken to be received at 9.00 am on the next Business Day; and
(iii) in the case of delivery by hand, on delivery at the address of the addressee as provided in this clause, unless that delivery is made on a day that is not a Business Day, or after 5.00 pm on a Business Day, when that communication is taken to be received at 9.00 am on the next Business Day.
11.3 Continuing obligation
This deed will be a continuing obligation notwithstanding any termination by the Guarantor, settlement of account, intervening payment, a disclaimer of any contract or property (including
any Project Document) made by a liquidator of the Contractor, express or implied revocation, or any other matter or thing and continues to entitle the Beneficiary to the benefit of this deed as regards the performance and satisfaction of all the Obligations including due and punctual payment of any of the Guaranteed Money which becomes due or owing or is incurred after termination, settlement of account, payment, revocation, or other matter or thing until a final discharge has been given to the Guarantor.
11.4 Further assurance
The Guarantor will upon request (given in accordance with clause 11.2) by the Beneficiary and at the entire cost and expense of the Guarantor, perform all things and execute all agreements, assurances, and other documents as the Beneficiary reasonably requires, to perfect or give effect to the rights and powers of the Beneficiary created, or intended to be created, by this deed.
11.5 Form of Demand
At a minimum, a demand on the Guarantor for the performance of the Obligations or the payment of the Guaranteed Money must be made in accordance with clause 11.2 and may contain any information as the Beneficiary determines.
11.6 Severability of provisions
Any provision of this deed which is illegal, void, or unenforceable will be ineffective to the extent only of that illegality, voidness, or unenforceability without invalidating the remaining provisions.
11.7 Remedies cumulative
The rights and remedies conferred by this deed on the Beneficiary are cumulative and in addition to all other rights or remedies available to the Beneficiary by law or by virtue of any Project Document or any Security.
11.8 Waiver
(a) Failure to exercise or enforce, or a delay in exercising or enforcing or the partial exercise or enforcement of a right, power or remedy provided by law or under this deed by any party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this deed.
(b) No waiver of a breach of any term of this deed will operate as a waiver of another breach of that term or of a breach of any other term of this deed.
11.9 Consents and approvals
Where under this deed the consent or approval of the Beneficiary is required to any act or thing, then unless expressly provided otherwise in this deed, that consent or approval may be reasonably given or withheld.
11.10 Written waiver, consent and approval
Any waiver, consent, or approval given by the Beneficiary under this deed will only be effective and will only bind the Beneficiary if it is given in writing.
11.11 Moratorium legislation
To the fullest extent permitted by law, the provisions of all legislation whether existing now or in the future, operating directly or indirectly:
(a) to lessen or otherwise to vary or affect in favour of the Guarantor any obligation under this deed; or
(b) to delay or otherwise prevent or prejudicially affect the exercise of any rights or remedies conferred on the Beneficiary under this deed,
are expressly waived and excluded.
11.12 Debit accounts and set-off
The Beneficiary may without prior notice to the Guarantor set-off any amount which or may become owing, actually or contingently and on any account whatsoever by the Beneficiary to the Guarantor against any liability actual or contingent of the Guarantor to the Beneficiary under this deed. The rights of the Beneficiary under this clause 11.12 are without prejudice and in addition to any other right or remedy to which it is at any time entitled.
11.13 Counterparts
This deed may be executed in any number of counterparts and by the different parties on different counterparts, each of which constitutes an original of this deed, and all of which together constitute one and the same instrument.
11.14 Execution by less than all parties
This deed binds each of the persons executing it notwithstanding:
(a) that one or more of the persons named in this deed as a Guarantor may not execute or may not become or may cease to be bound by this deed; or
(b) that the Beneficiary may not execute or may only subsequently execute this deed.
11.15 Resolution of Disputes Binding
The settlement or the resolution of any dispute arising under or in connection with the Project Agreement whether by express or implied agreement between the parties in the Project Agreement, in accordance with the procedures provided for in the Project Agreement or otherwise will be binding on each of the Guarantors and a Guarantor will not reopen, revisit or otherwise dispute that settlement or resolution and the subject matter of that settlement or resolution.
11.16 No Right to be Heard
The Guarantor waives and expressly disclaims any right to be heard at or appear in any procedure (whether judicial, arbitral, administrative, or of any other nature) which is conducted, inter alia, for purposes connected with settling or resolving or attempting to settle or resolve any dispute referred to in clause 11.15 or otherwise to be involved in the settlement or resolution of any such dispute.
11.17 Agent for Service
The Guarantor irrevocably agrees that service of process in any proceedings in the courts of Victoria relating to this deed will be sufficiently served on it by service (in any manner
permitted by law) on Mallesons Stephen Jaques, Solicitors at Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria, or at another address, as the Guarantor last notified the Beneficiary before that service to be the current address for service on Mallesons Stephen Jaques or at an address where Mallesons Stephen Jaques conduct business in the State of Victoria.
This clause does not affect service of process on the Guarantor in any other manner permitted by law.
12. Payment by the Guarantor
12.1 Separate payment obligation
As a covenant separate and distinct from that contained in clauses 2 and 3, the Guarantor irrevocably agrees to pay to the Beneficiary on demand from time to time any amount required to be paid in accordance with clause 12.2. The obligations of the Guarantor under this clause 12 are not subject in any way to the limitations set out in clause 4.3.
12.2 Amounts payable
Where the Beneficiary, the Government and Governmental Agencies to the extent of their insurable interest according to the Project Documents (in this clause 12, the “Other Insured Parties”) has paid or incurred, or is required to pay or incur, any deductible in respect of a claim made or to be made or which, but for the size of the deductible, would have been made under such an insurance policy and such deductible is greater than $[**], or where the Beneficiary or any Other Insured Party could, but for the size of the applicable deductible have made a claim under such an insurance policy, [**], by the Beneficiary or any Other Insured Party an amount equal to the difference between the amount of the deductible (where a claim is or will be made) or the loss or liability suffered (where, but for the size of the applicable deductible a claim could have been made) and $[**].
12.3 Hold on Trust
The Beneficiary will hold a payment made by the Guarantor in accordance with this clause 12 on trust to the extent that the amount paid by the Guarantor is in respect of an amount paid or a loss or liability suffered by any Other Insured Party.
12.4 Increase in deductible
The Guarantor confirms to the Beneficiary that as at the date of this deed, no deductible in respect of the insurances required to be effected and maintained by the Contractor under clause 36 of the Project Agreement exceeds US$[**]. If the deductible under the Guarantor’s global insurance policy is proposed to be increased above US$[**] at any time during which the Contractor’s obligations to effect and maintain insurance under clause 36 of the Project Agreement are being met under the Guarantor’s global insurance policy, the Guarantor will notify the Beneficiary.
EXECUTED as a deed.
Executed and delivered
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Signature of Witness |
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Signature of Brian T. Keane |
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C. Whitney Pedersen, Assistant Secretary |
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Name of Witness in full |
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The Official Seal
of Transport Ticketing |
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Name: |
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Schedule 16
Escrow
Agreement
(Clause 30)
ESCROW AGREEMENT made at Melbourne on
Parties [Escrow Agent] of [ ] (“Escrow Agent”)
Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600 of Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria (“Contractor”)
Public Transport Ticketing Body trading as Transport Ticketing Authority of Level 38, 55 Collins Street, Melbourne, Victoria (“Principal”)
Recitals
A. The Principal and the Contractor have entered into an agreement dated [ ] entitled “New Ticketing Solution Project Agreement” (the “Project Agreement”).
B. The Escrow Agent has been appointed by the Principal and the Contractor to hold the Material in escrow.
1. Definitions and Interpretation
1.1 Definitions
In this Agreement:
“Business Day” means a day which banks are open for business in Melbourne other than a Saturday or Sunday.
“Commencement Date” means the date of this agreement.
“Container” means an air tight, moisture free container approved by the Principal.
“Dispute Resolution Procedures” has the meaning given to that expression in the Project Agreement.
“Escrow Fee” means [ ].
“Escrow Material” has the meaning given to that expression in the Project Agreement.
“Material” means the data and material provided by the Contractor to the Escrow Agent as varied, added to or replaced from time to time.
“Prescribed Form” means [Note: insert information as to the form of the register the Escrow Agent is required to maintain as agreed by the Principal, the Contractor and the Escrow Agent].
“Term” has the meaning given to that expression in the Project Agreement.
1.2 Interpretation
In this agreement:
(a) headings are for convenience only and do not affect interpretation;
and unless the context indicates a contrary intention:
(b) “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership, a trust and governmental agencies;
(c) a reference to any party includes that party’s executors, administrators, successors, substitutes and assigns, including any person taking by way of novation
(d) a reference to this agreement or to any other deed, agreement or document includes, respectively, this agreement or other such deed, agreement or document as amended, novated, supplemented, varied or replaced from time to time;
(e) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
(f) words importing the singular including the plural (and vice versa) and words denoting a given gender include all other genders;
(g) a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all recitals, schedules, exhibits, attachments and annexures to it;
(h) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(i) “includes” in any form is not a word of limitation; and
(j) references to currency unless otherwise specifically provided are references to Australian currency.
2. Purpose of Agreement
Subject to the terms and conditions of this agreement, to secure the interests of the Principal under the Project Agreement:
(a) the Contractor must deposit the Escrow Material the Contractor is required to deposit pursuant to the Project Agreement with the Escrow Agent in Melbourne; and
(b) the Escrow Agent must act as escrowee of the Material.
3. Term of Agreement
This agreement commences on the Commencement Date and will remain in force until all Material is released in accordance with this agreement or this agreement is otherwise terminated.
4. Deposit of Material
4.1 Deposit of Material
The Contractor shall deposit Material with the Escrow Agent from time to time as required by the Project Agreement and the Escrow Agent must accept custody of the Material.
4.2 Confirmation of Receipt
The Escrow Agent must give the Contractor and the Principal written confirmation of receipt of all Material referred to in clause 4.1 immediately it is received.
4.3 Storage of Material
The Escrow Agent must store the Material in the following manner (“Prescribed Manner”):
(a) place the Material in a Container; and
(b) store the Container in a safe and secure place at the Escrow Agent’s premises in Melbourne.
4.4 Material Register
The Escrow Agent must maintain a register of Material deposited, stored and released under this agreement in the Prescribed Form.
4.5 Information and Inspection Requests
(a) The Escrow Agent must promptly comply with a request of the Principal or the Contractor to inspect and be furnished with a copy of the register referred to in clause 4.4 and to be furnished with information about storage, safety and security procedures relating to the Material.
(b) The reasonable costs of the Escrow Agent complying with a request in this clause 4.5 will be borne by the Contractor. The Principal shall promptly reimburse the Contractor for the costs of the Escrow Agent borne by the Contractor arising from a request by the Principal under this clause 4.5.
(c) The Escrow Agent must release the Material to the Principal’s auditor upon presentation of a notice issued by the Principal under clause 30.6 of the Project Agreement. The Principal’s auditor will conduct the audit at the Escrow Agent’s premises or, if the Escrow Agent does not have the required equipment or facilities, at the Contractor’s Premises.
5. Access to Material
The Escrow Agent must authorise the relevant personnel to perform maintenance, security or supervisory activities relating to the Material’s storage facilities or to the Escrow Agent’s premises generally. Subject to this agreement and unless required by law, no other person shall have access to the Material unless the Escrow Agent has been notified in advance in writing by the Contractor.
6. Loss of Material
6.1 Loss of Material
If the Material or any medium containing the Material is lost, destroyed or damaged while in the possession, custody or control of the Escrow Agent:
(a) the Escrow Agent must promptly notify the Contractor and Principal;
(b) the Contractor must within 7 Business Days replace the lost, damaged or destroyed Material; at:
(i) the Escrow Agent’s costs if the loss, damage or destruction was caused by the Escrow Agent’s negligence, recklessness, act or omission or breach of this Agreement; or
(ii) the Contractor’s and the Principal’s cost in all other circumstance.
6.2 Specific performance
Without derogating from any other right to obtain specific performance, the Contractor acknowledges that the Principal is entitled to specific performance of the Contractor’s obligations in clause 6.1.
7. Insurance by Escrow Agent
During this agreement the Escrow Agent must keep the Material insured in favour of the Principal and the Contractor for their respective interests under this agreement against loss of or damage to the Material due to any cause and the Escrow Agent must provide both the Principal and the Contractor with a copy of the insurance policy upon request by either of them.
8. Release of Material
The Escrow Agent shall immediately release the Material to any person nominated by a notice in writing signed by both the Principal and the Contractor.
9. Release of Material to Principal
9.1 Release
The Escrow Agent must release the Material (except the material referred to in paragraphs (c), (d) and (e) of the definition of “Escrow Material” in the Project Agreement) to the Principal immediately after the expiration of 10 Business Days’ notice in writing by the Principal if:
(a) the Principal terminates the Project Agreement as provided under clause 42 of the Project Agreement;
(b) the Term of the Project Agreement expires (after all and any extensions pursuant to clause 26 of the Project Agreement);
(c) the Principal gives the Contractor a written request for Escrow Material in accordance with clause 30.6 of the Project Agreement and in this case the Escrow Agent must only release that part of the Material the subject of such request; or
(d) the Principal terminates the Project Agreement as provided in clause 43 of the Project Agreement after payment by the Principal of the amount due under the Project Agreement as a consequence of the Principal issuing a Certificate of Completion in respect of the NTS Operational Proving Phase (as each of those terms are defined in the Project Agreement).
9.2 Release Required
The Escrow Agent must release any part of the Material referred to in paragraphs (c), (d) and (e) of the definition of “Escrow Material” to the Project Agreement that is the subject of a written notice from the Principal under clause 30.6(c), (ca) or (cb) (as applicable) immediately after the expiration of 10 Business Days’ notice in writing by the Principal.
9.3 Objection by Contractor
Immediately on giving the Escrow Agent notice under clause 9.1 or clause 9.2, the Principal must give a copy of the notice to the Contractor. The Contractor may then object to the release of the whole or part of the Material to the Principal by notice in writing to the Escrow Agent and the Principal given before the expiration of the 10 Business Days period referred in clause 9.1. If the Contractor makes such an objection within the time specified, the Escrow Agent must not release to the Principal any part of the Material the subject of such objection.
9.4 Disputes
If the Contractor gives notice to the Principal under clause 9.3 and the Contractor and the Principal are unable to resolve their dispute within 5 Business Days, this dispute must be dealt with in accordance with the Dispute Resolution Procedures in the Project Agreement.
10. Release of Material to new Escrow Agent
(a) Subject to clause 10(b) in the event that this agreement terminates or the Escrow Agent:
(i) becomes, threatens to become or is in jeopardy of becoming subject to any form of insolvency administration; or
(ii) is in breach of this Agreement,
then the Escrow Agent shall immediately release the Material to a new escrow agent nominated by notice in writing by the Principal and agreed by the Contractor.
(b) If a new escrow agent has not been appointed the Escrow Agent will release the Material to a third party as agreed by the Contractor and the Principal and notified to the Escrow Agent in writing. If the Principal and the Contractor are unable to agree on a third party within 2 Business Days of any communication between the Parties relating to this clause, the Escrow Agent will release the Material to the Expert referred to in the Project Agreement immediately upon written notice from the Principal.
11. Escrow fees and charges
11.1 Payment
During the Term, the Contractor will pay the Escrow Fee to the Escrow Agent without demand on the Commencement Date and on each anniversary of the Commencement Date. After the
Term, the Principal will pay the Escrow Fee to the Escrow Agent annually upon receipt of a notice from the Escrow Agent requesting payment.
11.2 Increases
[Note: Provision for increases to the Escrow Fee will be inserted following discussion with preferred Escrow Agent.]
11.3 Late Payments
(a) The Escrow Agent shall notify the Principal within a reasonable period if the Contractor fails to make any payment to the Escrow Agent by the due date. On receipt of such notice, the Principal may pay to the Escrow Agent all amounts for which the Contractor is in arrears, in which case the Escrow Agent shall release the Material to the Principal pending resolution of any payment issue or dispute.
(b) The Principal may deduct amounts paid or incurred under this clause by the Principal from any moneys otherwise due from the Principal to the Contractor or recover such amounts from the Contractor as a debt.
11.4 Other Charges
The Escrow Fee is inclusive of all taxes, duties, fees or other government charges which may be imposed on the storage of the Material under this agreement or otherwise.
12. GST
12.1 Interpretation
(a) Except where the context suggests otherwise, terms used in this clause 12 have the meanings given to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time).
(b) Unless stated to the contrary, any amount, payment or consideration referred to under or in connection with this agreement is exclusive of GST. Any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 12.
(c) Any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 12.
12.2 Reimbursements and similar payments
Any payment or reimbursement required to be made under this agreement that is calculated by reference to a cost, expense, or other amount paid or incurred will be limited to the total cost, expense or amount less the amount of any input tax credit to which an entity (or its representative member) is entitled for the acquisition to which the cost, expense or amount relates.
12.3 GST payable
If GST is payable in relation to a supply made under or in connection with this agreement then:
(a) any party (“Recipient”) that is required to provide consideration to another party (“Supplier”) for that supply must pay an additional amount to the Supplier equal to the amount of that GST; and
(b) the additional amount is payable at the same time as any other consideration is to be first provided for that supply or, if later, within 14 days after the day on which the Supplier provides the Recipient with a tax invoice for the supply.
12.4 Variation of GST
If the GST payable in relation to a supply made under or in connection with this agreement varies from the additional amount paid by the Recipient under clause 12.3 such that a further amount of GST is payable in relation to the supply or a refund or credit of GST is obtained in relation to the supply, then the Supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient. Any payment, credit or refund under this clause 12.4 is deemed to be a payment, credit or refund of the additional amount payable under clause 12.3.
13. Confidentiality
13.1 Confidentiality of Material
The Escrow Agent acknowledges that the Material is the property of the Contractor or the Principal and accordingly must treat the Material which comes into its possession, control or custody, under this agreement as confidential.
13.2 Prohibited Acts
The Escrow Agent must not copy, reproduce, deal with or in any way use the Material or disclose it to any person without the written permission of both the Contractor and the Principal.
13.3 Access by Other Persons
The Escrow Agent must ensure that persons granted access to the Material pursuant to this agreement or otherwise will, if requested by the Contractor or the Principal, execute an agreement with the Contractor or the Principal undertaking the same obligations as are imposed on the Escrow Agent under this clause 13.
13.4 After Termination
The obligations under this clause 13 survive the termination of this agreement or the release of all Material.
14. Escrow Agent’s further obligations
The Escrow Agent must:
(a) retain the Material in a safe and secure manner and in an environment that minimises degradation of the Material;
(b) subject to clause 6.1(b) bear the costs of any loss or destruction of or damage to the Material whilst in its possession or control;
(c) ensure the Material remains in the same condition it was in at the time of deposit with the Escrow Agent.
15. Termination Of Agreement
15.1 Terminating Events
This agreement will immediately terminate if both the Contractor and the Principal give 10 Business Days’ notice of such termination.
15.2 Release of Material
On termination of this agreement for whatever cause the Escrow Agent must immediately release the Material in accordance with clause 10.
16. Assignment
16.1 Assignment by Contractor or Escrow Agent
The benefit of this Agreement will not be dealt with in any way by the Contractor or the Escrow Agent (whether by assignment or otherwise) without the prior consent of all other parties.
16.2 Assignment by Principal
The Principal may at any time assign, novate or otherwise transfer all or any part of its rights or liabilities under this Agreement to any person upon the Principal assigning its rights under the Project Agreement under clause 45 of the Project Agreement.
17. Sub-contracts
The Escrow Agent must not subcontract or otherwise arrange for another person to perform any part of this agreement or to discharge any of its obligations under this agreement without the prior written consent of the Principal.
18. Waiver
18.1 Notice in Writing
No right under this agreement will be deemed to be waived except by notice in writing signed by each party.
18.2 Subsequent Breaches
No waiver by a party under clause 18.1 will prejudice its rights in respect of any subsequent breach of this agreement by another party.
18.3 Actions Not Constituting Waiver
Subject to clause 18.1, no failure by a party to enforce any clause of this agreement or any forbearance, delay or indulgence granted by that party to another party will be construed as a waiver of its rights under this agreement.
19. Severability
Each party acknowledges that the covenants, obligations and restrictions herein contained are reasonable and each and every one of the covenants, obligations and restrictions in whole or in part is deemed to be severable and independent. Any provision of this agreement which is
determined to be unreasonable will be ineffective to the extent only of such unreasonableness, without invalidating the remaining provisions hereof.
20. Governing Law
This agreement will be governed by and construed and taken into effect in accordance with the laws of Victoria and the parties irrevocably submit to the jurisdiction of the Courts of Victoria and Courts entitled to hear appeals therefrom.
21. Notices
All communications (including notices, consents, approvals, requests and demands) under or in connection with this agreement:
(a) must be in writing;
(b) must be addressed as follows (or as otherwise notified by that party to each other party from time to time):
Principal
Name: |
Transport Ticketing Authority |
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Address: |
Level 38, 55 Collins Street, Melbourne, Victoria |
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Fax: |
+61 3 9651 7578 |
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For the attention of: |
Principal’s Representative |
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Contractor |
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Name: |
Keane Australia Micropayment Consortium Pty Ltd |
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Address: |
Level 50, Bourke Place, 600 Bourke Street, Melbourne |
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Fax: |
+61 3 9643 5999 |
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For the attention of: |
Gary Constable, C/- C. Lim, Partner, Mallesons Stephen Jaques |
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Escrow Agent |
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Name: |
[ ] |
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Address: |
[ ] |
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Fax: |
[ ] |
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For the attention of: |
[ ] |
(c) must be signed by the party making the communication or (on its behalf) by the solicitor for, or any attorney, director, secretary or authorised agent of, that party;
(d) must be delivered or posted or prepaid post to the address, or sent by fax to the number, of the addressee, in accordance with clause 21.1(b); and
(e) are taken to be received by the addressee:
(i) in case of prepaid post on the Business Day that is the third Business Day after the date of posting to an address within Australia, and on the fifth Business Day after the date of posting by airmail to an address outside Australia.
(ii) in the case of fax at the local time (in the place of receipt of that fax) which then equates to the time that fax is sent as shown on the transmission report produced by the machine from which that fax is sent confirming transmission of that fax in its entirety, unless that local time is not on a Business Day, or is after 5.00 pm on a Business Day, when that communication is taken to be received at 9.00 am on the next Business Day; and
(iii) in the case of delivery by hand on delivery at the address of the addressee as provided in clause 21.1(b), unless that delivery is made on a day that is not a Business Day, or after 5.00 pm on a Business Day, when that communication is taken to be received at 9.00 am on the next Business Day.
22. Principal’s rights
Any express statement of a right of the Principal under this agreement is without prejudice to any other statement of a right of the Principal under this agreement or at law.
23. Entire Agreement
This agreement constitutes the entire agreement between the parties for the subject matter referred to in clause 2. Any prior arrangements, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this agreement will be valid unless in writing signed by each party.
SIGNED as an agreement.
[Note: Execution clauses to be inserted]
Schedule 17
Access Providers and Bus Operators
(Clause 9)
Part A - Bus Operators
Metropolitan
Bacchus Marsh Coaches P/L
Broadmeadows Bus Service P/L
Bryant Motors P/L (for Diamond Coaches)
Croydon Bus Service P/L (for InvictaBus)
Donric P/L (for Sunbury Bus Service)
Driver Group P/L (for Driver Bus Lines)
Kefford Corporation (for Eastrans, Westrans, Altona Buslines P/L, Footscray/Yarraville Bus Service P/L, Eastern Suburbs Omnibus Service P/L, W Sinclair & Sons P/L, North Sunshine Bus Service P/L, Sitch Bus Service, St Albans Bus Service, West Transit Bus Lines P/L, Pt Cook/Werribee Passenger Service)
Grenda Corporation (for Grendas, Cardinia Transit, Moorabbin Transit, Peninsula Bus Lines, Portsea Passenger Service)
Hurstbridge Bus & Coach P/L
Ivanhoe Bus Co P/L
Kastoria Bus Lines
LC Dysons Bus Services P/L
McKenzies Tourist Service P/L
Mees Bus Lines P/L
Melbourne Bus Link P/L (owned in partnership by Reservoir Bus Co & L C Dysons)
Mountjoy Public Transport P/L (for Martyrs Bus Service)
Moonee Valley Bus Lines P/L
Moreland Bus Lines P/L
Northern Bus Lines P/L
Pulfran Transit P/L (for US Bus Lines, Cranbourne Transit)
Reservoir Bus Co (Vic) P/L (for Reservoir Bus Company and East West Bus Company - owned in partnership with LC Dysons)
Ryan Bros Bus Service P/L
Sangold P/L (for Chris’s Coaches and Hope Street Bus Line)
Sita Bus Lines P/L (for Sita Buslines and SunBus)
SkyBus P/L
Tullamarine Bus Lines P/L
Ventura Group (for National Bus Co, Ventura Motors P/L, Mt Dandenong Passenger Service, Ventura Bus Lines P/L)
Regional
Ballarat Coachlines
BM Walkers Bus Service P/L
Christians Bus Company (for W Christian Terang P/L, B & G Christian P/L,)
Coaches-R-Us
Donric P/L (for Clockworld P/L, Sunbury Bus Service)
Firefly Coaches P/L
Fords Bus P/L
Grenda Corporation P/L
Hollands Bus Lines P/L
KR Little P/L
Kefford Corporation (for Benders Geelong, H A Davis Motor Service P/L, Pivot Bus Service)
Latrobe Valley Bus Lines
LC Dysons Bus Services P/L
McHarry’s Buslines P/L
McKenzie’s Tourist Service
Mees Bus Lines P/L
Moreland Bus Lines P/L
Mylon Motorways P/L
Parkinson Bus Service
South Western Roadways P/L (for Warrnambool Bus & Motor P/L, Sunraysia Bus Lines P/L)
Swan Hill Bus Lines P/L
The Dineen Group (for Westernport Road Lines)
Wangaratta Bus Lines
Part B - Other Operators
B1 Regional Rail Services
B1-1. V/Line Passenger Corporation is a statutory corporation under Government ownership governed by an independent board of directors. V/Line Passenger Pty Ltd (V/Line) is owned by V/Line Passenger Corporation and operates Regional rail and coach services under franchise.
Franchise period from October 2003 to October 2006 with an option for extension by the Director of Public Transport (DPT).
B2 Metropolitan Rail Services
B2-1. Connex Melbourne Pty Ltd operates Metropolitan Rail services under Franchise, trading as “Connex Trains”.
Franchise period from April 2004 to November 2008, with an option for extension by the DPT up to not later than May, 2010. In April 2004, Connex assumed responsibility for the operations of the former Bayside Trains franchise marketed under the M>Train brand.
B3 Tram Services
B3-1. MetroLink Victoria Pty Ltd is a joint venture partnership between an Australian company (Transfield Services) and a European transport operator (Transdev). The company operates Metropolitan Tram services under Franchise, trading as “Yarra Trams”. Franchise period from April 2004 to November 2008 with an option for extension by the DPT to not later than May 2010. In April 2004, Yarra assumed responsibility for the operations of the former Swanston Trams franchise marketed under the M>Tram brand.
Part C - Other Access Providers
C1-1. Spencer Street Station Authority (SSSA) manages the Spencer Street Station (SSS) re-development project. SSSA will operate the Station for the period prior to completion of the project.
C1-2. Civic Nexus is the contractor for the SSS re-development project, and will operate SSS following completion of the project. The Civic Nexus consortium is financed and led by ABN Amro Australia, and includes Leighton Contractors, Honeywell and Delaware North Australia.
C1-3. Victorian Rail Track (VicTrack) owns all land and infrastructure in Victoria used for the purposes of public train and tram based transport. It leases these assets to the private transport operators through the DPT, however retains some residual interests not specifically related to transport operations.
C1-4. Pacific National Pty Ltd (PN) operates the regional rail network (but not stations) leased from the DPT. V/Line operates rail services over certain of PN’s rail network pursuant to an access agreement (regional stations are leased by V/Line directly from the DPT).
C1-5. - Rail Corporation of NSW operates Albury Station and associated NSW rail infrastructure operated over by V/Line.
Schedule 18
Early Termination Amount
(Clause 43)
The Early Termination Amount payable to the Contractor will be the aggregate of the following costs that the Contractor has used its best endeavours to minimise:
(a) the unpaid value of all Work completed in accordance with this agreement prior to the date of termination;
(b) the cost of goods, services and materials ordered by the Contractor and for which it is legally bound to pay and for which the TTA will take delivery and ownership;
(c) the reasonable cost of removing its property from any property where Work is being carried out;
(d) the reasonable cost of return to their place of recruitment of the Contractor’s employees engaged in the work under this agreement at the date of termination including any amounts payable at Law upon termination of employment; and
(e) [**]% of the outstanding unpaid amounts (if any) of the Contract Price (less amounts paid under (a) to (d) of this schedule). For the purposes of this schedule only the Contract Price is defined as the sum of the Capital Price plus services charges assuming 2 years of Initial Services and 10 years of Core Services.
No double-counting of costs will be allowed. That is, an amount claimed by the Contractor to be payable under one of paragraphs (a) to (e) cannot be claimed and is not payable under any other of the paragraphs.
Schedule 19
Bus Access
(Clause 9)
Part A
Bus Access Principles
1. Time of access
Satellite NTS Bus equipment installation stations will be set up at selected Private Bus Operator (PBO) depots to operate up to 24 hours per day, 7 days per week, to ensure that the equipment for the NTS is installed as efficiently as possible.
Bus Association Victoria (BAV) will arrange and negotiate with PBOs which PBO depots will be used as installation stations and provide details of each location and the facilities available at each site to TTA and the Contractor. The Contractor will work with the BAV during this process to ensure that the needs of both the PBOs and the Contractor are fairly balanced. An installation station must have sufficient area to locate a portable office and workshop facility eg. Container space to support the installation of the NTS equipment. Any area occupied by a Contractor will be returned to a PBO in a clean and tidy state. Access charges for space occupied by the installation stations may apply and will be negotiated with each PBO.
Out-of-pocket costs may be payable to the BAV in respect of the arrangements for the PBOs.
BAV and the Contractor will arrange and negotiate the schedule for each PBO vehicle to be fitted with NTS equipment in consultation with the TTA.
The Contractor will negotiate with the BAV where changes to the agreed schedule are required. Where an individual PBO may experience difficulties in adhering to an agreed schedule, the BAV will negotiate amendments to the schedule with the Contractor, as required, to ensure that the installation process is not delayed.
The PBOs will assist in delivering their vehicles to an installation station in a manner that facilitates installation according to the agreed schedule whilst minimising the cost to the Contractor. A delivery charge of $50 per hour and $2.20 per kilometre will apply.
Any changes or installation of equipment or components at major bus stops will be managed by the Contractor, in association with the PBOs servicing these routes. Access to the agreed sites will be procured by the Contractor in conjunction with TTA and BAV as required to ensure that the equipment for the NTS is installed in an efficient manner.
Any changes or installation of equipment or components required to be made at Bus Interchanges, including shopping centres and railway station interchanges, would be managed by the Contractor in association with the Department of Infrastructure (DOI) and TTA. Access to these venues will be provided as required to ensure that the equipment for the NTS is installed as soon as possible.
1.1 Access to Bus Operator’s Property
The Metropolitan PBOs and selected Regional PBOs agree that the NTS will be installed at the PBOs sites and on the PBOs vehicles approved by the DOI under the DOI/PBO transport services arrangements.
Access to the maintenance pits or vehicle hoists will be provided according to the agreed schedule.
Access to vehicles will be provided as required to ensure that the equipment for the NTS is installed in an efficient manner that facilitates the equipment for the NTS is installed according to the agreed schedule. Further the Contractor is required to comply with all conditions and rules of access as defined in Section 3 Conditions and Rules of Access.
The Contractor will negotiate with the BAV where changes to the agreed schedule are required. Where an individual PBO may experience difficulties in adhering to an agreed schedule, the BAV will negotiate amendments to the schedule as required to ensure that the installation process is not delayed.
1.2 Access to information
PBOs agree to make available information, such as reports, drawings, maps, diagrams, or sketches which are reasonably required by TTA or the Contractor, to facilitate the installation of equipment for the NTS in an efficient manner.
1.3 Access to Bus Operator staff
PBOs agree to make available those of their employees, agents and contractors which are reasonably required by TTA or the Contractor to attend and complete appropriate training in the NTS.
A charge of $45 per hour will be incurred to access staff for training purposes. The number of staff requiring training is approximately 3,000.
PBOs agree to make available those of their employees, agents and contractors which are reasonably required by TTA or the Contractor, to supply any information required to facilitate the installation of equipment for the NTS in an efficient manner.
PBOs agree to make available staff which are reasonably required by TTA or the Contractor, to test the installation of NTS equipment. A checklist that will define the test criteria will be developed in consultation with the BPO, TWU, TTA and the Contractor.
A charge of $45 per person per hour will be incurred to cover the cost of testing personnel.
A charge of $75 per hour will be incurred for an after hours supervisor if required by the PBO to provide access to facilities or information to the Contractor outside of normal business operating times This supervisor may also provide vehicle moving services as required by the Contractor.
2. Services
2.1 To be provided by a PBO
The PBOs are required to make available to the Contractor or their contractors:
(a) Supply power to operate the NTS;
(b) Supply power for the successful contractor to be able to operate the equipment necessary for the installation of the NTS to vehicles and Back Office / Head Office;
(c) Supply of water to or close by the installation area;
(d) Access to change rooms and mess rooms (tea and coffee making facilities) if required;
(e) Site amenities; and
(f) Site safety rules and OHS Act 2004, its regulations and amendments.
2.2 To be provided by the Contractor
The Contractor will be responsible for the supply and installation of the NTS system, accessories and components, including cable ducting on buses and at PBO sites as required for the NTS. These will be both workman like, aesthetically pleasing and approved by the PBO and TTA.
Any storage or office space requirements will be provided by the Contractor. Any mobile buildings will be sited in consultation with the PBO.
It is envisaged that the installation of the Back Office / Head Office equipment would be fitted at an agreed time with the PBO.
3. Conditions and Rules of Access
The Contractor and/or their contractors will adhere to all the following conditions and rules outlined below when operating on a PBO’s site.
3.1 Bus Operator’s Property
(a) Safety
(i) Conform to the Occupational Health & Safety requirements that are in place at the PBO’s site.
(ii) Conform to Safe Working environment requirements.
(iii) Conform to Safety and Protective equipment requirements.
(iv) Maintain a zero blood alcohol reading.
(v) Conform to any other requirements that are applicable to that site.
(b) Security
(i) The Contractor and/or their contractors will be responsible for the security of their equipment while working at the PBOs site.
(ii) The Contractor will be responsible for Asset Insurance on NTS equipment while on site.
(c) Training
(i) BAV will provide details of safe working environment standards and training requirements.
(ii) BAV will provide internal training capabilities detailing the number of staff by category to be trained, average hourly costs of staff and proposed methodology of training.
(d) Miscellaneous conditions and rules
(i) Be responsible for removal of all rubbish created by the installation of the NTS at the PBO’s site.
(ii) PBOs agree to use their best endeavours to assist the NTS team to install the NTS equipment within the scheduled time frames.
(iii) The Contractor will be required to complete all installation works in accordance with applicable Australian Standards and provide formal certification of all works prior to the return of the vehicle.
(iv) The Contractor will agree to use all endeavours to minimise the disruption to the PBO’s normal operations and their requirement to provide services under DOI contracts.
(v) The Contractor will remove all existing ATS equipment and make good repairs to the satisfaction of the PBO and the TTA.
(vi) The Contractor will set up a service support hotline for operators from 5.00 am – 11.00 pm (7 days per week).
(vii) Removal of old ATS equipment and make good repairs if necessary.
4. Schedule of Charges
The following charges will be imposed in the following scenarios.
4.1 Vehicle Delivery Charge
A delivery charge of $50 per driver hour and $2.20 per vehicle kilometre will apply.
(a) The driver charge will be incurred from the time a driver leaves the ‘Home’ depot with the vehicle to when the driver returns the vehicle to the ‘Home’ depot. The kilometre charge will be incurred from the distance a vehicle will travel from the ‘Home’ depot with the vehicle to when the driver returns the vehicle to the ‘Home’ depot. A set standard charge will apply from each ‘Home’ depot to the installation station nominated. This standard charge will be established by BAV in consultation with the PBO and TTA.
(b) Where a vehicle is being fitted at its ‘Home’ depot no vehicle delivery charges will be incurred.
(c) Where a driver is required by a PBO at a ‘Home’ depot being utilised as an Installation Station to move vehicles, for the Contractor, no vehicle delivery charges for this service will be incurred.
4.2 Training Charge
An estimated charge of $45 per hour will be incurred to access staff for training purposes via the existing EBA arrangements. This cost will vary according to various conditions outlined within the EBA.
4.3 After Hours Supervision Charge
A charge of $75 per hour will be incurred for an after hours supervisor.
Where a driver is required by a PBO at a ‘Home’ depot being utilised as an Installation Station to move vehicles, for the Contractor, or where access to PBO facilities are required after 5.00 pm and before 5.00 am, an after hours supervision charge will apply.
4.4 Installation Station Occupation Charge
An occupation charge of $200 per week is payable to reimburse a PBO for the following costs:
(a) additional power used by the Contractor while on site; and
(b) purchase replacement of tea, coffee and biscuits stock used by Contractor.
4.5 Testing Charge
A charge of $45 per person per hour will be incurred for testing personnel.
This cost will cover all PBO staff who are involved in testing NTS equipment as part of the sign off process to authorise the release of each vehicle to an operation ready status. A standard fee will be developed to address each part of the sign off process by BAV in consultation with the PBO and TTA.
Schedule 20
Security Bonds
(Clause 34)
Security Bond
In favour of: Public Transport Ticketing Body trading as Transport Ticketing Authority (“Principal”)
Given by: |
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(“Financial Institution”) |
Recitals
A. The Principal and the Contractor have entered into the New Ticketing Solution Project Agreement dated [insert date of Project Agreement] (the “Project Agreement”).
B. Under the Project Agreement, the Contractor has agreed, amongst other things, to carry out certain works.
C. Under the Project Agreement, the Contractor is required to provide this undertaking to the Principal to secure performance of certain aspects of the works to be performed by the Contractor under the Project Agreement.
Operative
1. In consideration of the Principal accepting this undertaking, the Financial Institution unconditionally undertakes and covenants to pay to the Principal on written demand without reference to the Contractor, and notwithstanding any notice given by the Contractor to the Financial Institution not to do so, any sum or sums which may from time to time be demanded in writing by the Principal to a maximum aggregate sum of $[amount required in accordance with clause [ ] of the Project Agreement].
2. The liability of the Financial Institution under this undertaking will not be discharged or impaired by reason of any variation or variations in any of the terms of the Project Agreement, any breach or breaches of the Project Agreement by the Contractor or the Principal, or any extensions of time or other forbearance by the Principal or the Contractor under the Project Agreement.
3. The Financial Institution’s liability under this undertaking will be a continuing liability and will continue until the first of the following events occurs:
(a) the Principal notifies the Financial Institution in writing that the undertaking is no longer required;
(b) the Financial Institution has paid the maximum aggregate sum to the Principal; and
(c) the [expiry date].
4. Neither the Bank nor the Principal may transfer or assign any of its rights or obligations under this undertaking.
5. This undertaking will be governed by and construed in accordance with the laws for the time being of Victoria.
Signed as a deed poll this day of 20
Signed sealed
and delivered for and on behalf |
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Signature of Attorney |
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Signature of Witness |
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Details of Power of Attorney |
Schedule 21
Exit Costs
(Clause 27.7)
Part A – Initial Services
The following exit costs will be paid to the Contractor by the Principal for each Initial Service at the expiry of the Initial Service Term for that Initial Service.
Number of Completed |
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Exit Cost |
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Years of Initial |
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Card Distribution |
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Cash Collection |
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Cardholder |
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2 |
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$[**] |
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$[**] |
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$[**] |
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3 |
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$[**] |
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$[**] |
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$[**] |
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4 |
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$[**] |
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$[**] |
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$[**] |
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5 |
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$[**] |
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$[**] |
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$[**] |
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Part B – Core Services
The following exit costs will be paid to the Contractor by the Principal:
• upon early termination of the Core Services Term under clause 23.7; or
• upon termination of the Core Services under clause 26(d).
The amount paid will be referrable to the number of years of the Core Services Term that has been completed.
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Core Services Exit Cost |
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5 |
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$[**] |
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10 |
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$[**] |
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11 |
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$[**] |
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12 |
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$[**] |
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Schedule 22
Industrial Relations Plan
Completion Process
The document included in this Schedule 22 is incomplete and represents an outline of the Industrial Relations Plan that the Contractor must prepare and implement in accordance with clause 8.1 of the agreement. The finalisation of the Industrial Relations Plan is a Category 3 matter.
The Contractor must undertake the following process to complete the Industrial Relations Plan, prior to the Phase Date for the NTS Solution Requirements Phase, to the reasonable satisfaction of the Principal:
• the Contractor must develop an Industrial Relations Plan, based on the outline document included in this Schedule 22, which is compliant with any and all employment and industrial relations obligations, including without limitation, any obligations arising under the Workplace Relations Act 1996 (Cth) and which takes into account the requirements of clause 8.1(c) of the agreement;
• the Contractor must prepare and submit its proposed Industrial Relations Plan to the Principal for its approval within 40 Business Days after the Commencement Date; and
• the Principal may, within 10 Business Days of receipt of the Contractor’s proposed Industrial Relations Plan, advise the Contractor whether or not it considers such plan to be in accordance with this agreement, including the Requirements Document and the Solution Documentation, or reject it and provide its comments (if any). If the proposed Industrial Relations Plan is rejected, the Contractor must promptly, and in any event within 5 Business Days, submit to the Principal a redraft of the plan and such redraft will be dealt with by the Principal as if it were the initial draft submitted. The Contractor must take into account any comments of the Principal in finalising the Industrial Relations Plan.
Schedule 23
OH&S Plan
Completion Process
The document included in this Schedule 23 is incomplete and represents an outline of the OH&S Plan that the Contractor must prepare and implement in accordance with clause 8.2 of the agreement. Finalisation of the OH&S Plan is a Category 3 matter.
The Contractor must undertake the following process to complete the OH&S Plan, prior to the Phase Date for the NTS Solution Requirements Phase, to the reasonable satisfaction of the Principal:
• the Contractor must develop an OH&S Plan, based on the outline document included in this Schedule 23, which is compliant with the applicable occupational health and safety obligations, including obligations under the OH&S Act and associated regulations;
• the Contractor must prepare and submit its proposed OH&S Plan to the Principal for its approval within 20 Business Days after the Commencement Date; and
• the Principal may, within 10 Business Days of receipt of the Contractor’s proposed OH&S Plan, advise the Contractor whether or not it considers such plan to be in accordance with this agreement, including the Requirements Document and the Solution Documentation, or reject it and provide its comments (if any). If the proposed OH&S Plan is rejected, the Contractor must promptly, and in any event within 5 Business Days, submit to the Principal a redraft of the plan and such redraft will be dealt with by the Principal as if it were the initial draft submitted. The Contractor must take into account any comments of the Principal in finalising the OH&S Plan.
Schedule 24
Access
1. Connex Access Principles
1.1 Access Principles
1.1.1 Time of Access
Details concerning available access times are listed below:
• Connex grants the Contractor the right to access Connex Property excluding the following hours (daily):
• 06.00 to 09.30;
• 15.00 to 18.30; and
• 00.00 to 05.00.
Connex can provide access to stations between 8.00 pm and 5.00 am daily, except during special events, project works and planned and unplanned maintenance and subject to the availability of Connex and the Franchise Entities’ employees.
• Regarding access to Stony Point vehicles, Connex is able to provide access at Frankston Station between approximately 11.05 and 12.15 each Monday, Wednesday and Thursday. If this access is insufficient, access at times outside these periods will need to be considered and agreed by Connex once the Contractor’s requirements are known in more detail.
• Access at times outside the periods above to be agreed on a case by case basis in accordance with the Connex Access Coordination Agreement.
1.1.2 Services
The following service arrangements apply:
• Where Connex supplied power facilities are available, the Contractor is to arrange access with local Station staff for temporary use of power supplies during installation of NTS equipment (including power for the Contractor’s work equipment). The Contractor must reimburse Connex for the cost of any power used by the Contractor during the installation of the NTS equipment. If Connex is unable to provide power supplies to the Contractor, the Contractor must arrange its own direct power supply at its own cost.
• For permanent power supply to NTS equipment, the Contractor must arrange, at its own cost, direct power connection and wiring to the NTS equipment at each station.
• For telecommunication services to the NTS equipment during the installation and ongoing operation of the NTS equipment, the Contractor must arrange its own telecommunication services directly with VicTrack or with another provider. The Contractor will be responsible for the cost of arranging the telecommunication services for the NTS equipment and for the installation and ongoing costs of the telecommunication services.
• Where Connex supplied water supplies are available, the Contractor is to make local arrangements with Station staff (area manager) for temporary use. The Contractor must reimburse Connex for the cost of any water used by the Contractor. If Connex is unable to provide water supplies to the Contractor, the Contractor must arrange its own direct water supply at its own cost.
• The Contractor is to provide its own change and mess sheds at its own cost.
• The Contractor is to provide its own storage at its own cost.
• The Contractor is to make local arrangements with Station staff (area manager) for access to toilets / amenities or provide its own at its own cost.
1.1.3 Conditions and Rules of Access
1.1.3.1 Supervision
Connex may elect at its sole discretion to supervise the Contractor’s access in circumstances where the Contractor’s access may:
• impact on Connex’s business and the provision of services to customer; or
• impact on the safety of people or property on Connex Property.
The Contractor may reasonably expect that Connex will elect to supervise the Contractor’s access in all circumstances meeting one or both of the criteria above.
If Connex elects to supervise the Contractor’s access, the Contractor must not access any Connex Property at the specified location until representatives of Connex or MainCo are present.
Where Connex elects to supervise the Contractor’s access, it will:
• provide reasonable notice of the supervision to the Contractor; and
• provide a minimum of two staff members to undertake supervision.
The Contractor acknowledges that any supervision by Connex or MainCo does not release the Contractor from any of its obligations under the Connex Access Coordination Agreement.
If Connex or MainCo’s personnel elect to supervise the Contractor’s access, the Contractor must pay Connex the charges set out in Schedule 3 Section 1.
1.1.3.2 Safety
The access principles and arrangements for access to land / property contained in the following documents must be complied with by the Contractor:
• “Safety and Environmental Requirements for Contractors Working on MainCo Premises”.
MainCo is contracted by Connex to perform infrastructure and existing rolling stock maintenance.
1.1.3.3 Security
Additional property access and supervision issues that have not already been listed above are listed below:
• The Contractor must at all times comply with the respective Station Visitor policy “Visitor Control Procedure” at each Station. This procedure details the Visitor access requirements. In circumstances where a Contractor requires access to a site, the Contractor may be requested to obtain keys from a controlling station for an unstaffed station. In this circumstance the Contractor prior to entering an unstaffed station must call the security centre advising of entry and call again upon departure – returning the keys back to the controlling station. The Contractor should be assigned security keys for their own personal use. However they will still be required to call security when entering/departing. Where the Contractor requires access to a City Loop station the Contractor will be requested to complete the “Induction Checklist for Contractors Visiting the City Loop”.
• The Contractor must ensure that all external doors and access areas to the Stations as well as any rooms or other areas which are not open to the public, are at all times kept locked, except at the times that the Contractor is entering or exiting the Station or such rooms or other areas, and during the hours when the Stations are open to the public in relation to all external doors and access areas to the Stations.
• The Contractor must ensure that if any unauthorised person is observed at any of the Stations between the hours of 00.00 and 05.00 am, the Contractor must contact a member of Connex personnel and provide information of the observation. The Contractor’s officers, employees, subcontractors and agents (Contractor’s Personnel) must leave the Station and not enter or remain on the Station premises without the presence of the police or appropriate Connex personnel.
• The Contractor must reimburse Connex for any cost or expense incurred as a result of any Contractor Personnel accidentally, intentionally, carelessly or negligently setting off security alarms, fire alarms or other alarms.
• The Contractor must not make any copies of any keys, alarm codes or any other material provided for access to the Stations (Connex Security Material) without the prior written consent of Connex and on the conditions imposed by Connex.
• The Contractor must only permit access to areas of the Stations which are not open to the public to the Contractor’s Personnel authorised by it to carry out the Connex Work and who have successfully completed any training required under Section 4.5.
• The Contractor must take all necessary precautions to ensure the security of any Connex Security Material issued by Connex to the Contractor is maintained in a manner which is satisfactory to Connex.
• The Contractor must adequately safeguard and comply with any specific requirements of Connex in respect of any Connex Security Material.
• The Contractor must if any Connex Security Material is misplaced, lost or stolen by the Contractor or the Contractor’s Personnel, immediately notify Connex and provide Connex with full particulars of how the incident occurred via
an incident report. Any Connex Security Material which is lost or misplaced by or that is stolen from the Contractor or the Contractor’s Personnel must be replaced at the Contractor’s cost and where reasonably required by Connex taking into account the safety of Connex’s property, business and rail network, the Contractor must pay for the replacement of any locks resulting from the loss or misplacement of any Connex Security Material.
• The Contractor will employ reasonable endeavours to bring to the attention of the Superintendent’s Representative (or other nominated officer of Connex) any matter that in the Contractor’s opinion lessens the security or safety of any or any part of Connex Property, including the Stations or any equipment, materials or other property at the Stations and any trains.
1.1.3.4 Emergencies
Emergency plans for each of the three underground stations and Flinders Street Station, describing the facilities, environment, services and other features must be complied with by the Contractor. These are contained in the following documents:
• “Flagstaff Stations Emergency Plan”;
• “Melbourne Central Emergency Plan”; and
• “Parliament Stations Emergency Plan”.
Emergency plans for all other stations on the network must also be complied with by the Contractor.
1.1.3.5 Education and Training
(a) The Contractor must ensure that the Contractor Personnel’s have successfully completed the following training before accessing any Connex Property:
• an induction course for each station if required by Connex. This induction course need only be completed once per station for each of the Contractor’s Personnel; and
• Train Track Safety Awareness training (at course level 1, 2 or 3 as appropriate) in all instances where the Contractor’s Work takes place within three metres of rail track. Current training charges are detailed in Schedule 4, “Training Charge”, but may be subject to change without notice.
(b) Connex requires evidence that each of the Contractor’s Personnel has successfully completed the Train Track Safety Awareness training where applicable prior to the authorisation of access.
(c) Access to Access Provider staff for education and training of the NTS from Contractor:
As a general rule, Connex’s staff will be available between the hours of 9.00 am and 3.00 pm on weekdays.
Any additional limitations or restrictions on staff availability, including timing issues are listed below:
• Restrictions on staff availability for training will apply to all operational staff, for example, drivers, maintenance staff and other operational staff.
• Training of station staff and authorised officers will need to be conducted during off-peak hours from Mondays to Fridays (ie. outside of 06.00 to 09.30 and 15.00 to 18.30).
• It should also be noted that training may need to be conducted at several non-CBD work sites dispersed across the suburban areas.
• 325 of the Authorised Officers will be based at 4 main depots plus 8 additional satellite depots across the network.
1.1.3.6 Miscellaneous Conditions and Rules
The Contractor must comply with all applicable building codes and regulations at all times and the Contractor will provide Connex with access to “as-built” drawings to enable Connex to undertake any maintenance required at stations to non-NTS equipment areas / services.
Connex will be required to provide information to its customers, sublessees, licensees and to Connex and the Franchise Entities’ officers, employees, subcontractors and agents (Interested Parties) (for example, by signage, posters or flyers) on the NTS installation works. Connex will be responsible for specifying the nature and extent of the information that is required to be provided to the Interested Parties and the Contractor must reimburse Connex for any costs incurred by Connex in advising the Interested Parties of the NTS installation works.
1.1.4 Operations Principles
1.1.4.1 Cash Collection Principles
The Contractor must ensure that the following access times / limitations and special procedures relating to access for cash collection and replenishment purposes are complied with:
• cash collections must occur outside the peaks Mondays to Fridays (ie. outside of the hours 06.00 to 09.30 and 15.00 to 18.30);
• Special Events will require additional and increased frequency of cash collection and equipment servicing, depending on the particular event;
• the process of cash transferral must be timely and efficient so as not to disrupt the operation of the station to the extent that lengthy delays result in ticketing purchases being reduced; and
• cash collection includes both collection from all ticket machinery including booking office machines.
1.1.4.2 Cleaning Principles
Access times, limitations and special procedures for scheduled basic cleaning services of NTS equipment are as per requirements for cash collection.
Attachments
• MainCo Melbourne Third Party Access Agreement.
• “Safety and Environmental Requirements for Contractors Working on Mainco Premises” and associated forms:
• “Site Safety Plan for Minor Works Contractors”; and
• “Minor Works Project Induction”.
• “Flagstaff Stations Emergency Plan”.
• “Melbourne Central Emergency Plan”.
• “Parliament Stations Emergency Plan”.
1.2 Access Charge
If supervision is required per Schedule 1, Section 4.1 the Contractor will be required to pay Connex at the hourly rate of $75 (in July 2004 prices) for each employee of Connex or the Franchise Entities.
Where any of Connex or the Franchise Entities’ staff are made available to the Contractor for training, Connex will be paid the following rates in addition to the Access Charge. The table below outlines the staff categories and hourly costs. Staff numbers are for information only.
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Drivers |
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650 |
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47 |
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Authorised Officers |
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325 |
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36 |
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Station staff |
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625 |
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32 |
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Other operational |
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300 |
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44 |
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Maintenance staff |
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650 |
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44 |
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Administration/Head Office |
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100 |
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53 |
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1.3 Training Charge
For information purposes, the estimated cost of each level of the Train Track Safety Awareness training is as follows:
(a) level 1 Train Track Safety Awareness – $80 per person plus GST (basic training to work within 3 metres of track);
(b) level 2 Train Track Safety Awareness – $140 per person plus GST (for training flagmen); and
(c) level 3 Train Track Safety Awareness – $320 per person plus GST (for supervision of flagmen and co-ordination).
Form 1
Site Safety Plan for Minor Works Contractors
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1. Safety Training/Induction
All personnel having business on the site shall be inducted to enable their necessary duties to be performed in a manner that is safe and without risk to health.
Train Track Safety Awareness training is to be undertaken by all persons carrying out or intending to carry out works on or near train tracks, who do not have a current Certificate of Competency to perform the task to be undertaken.
2. Workplace Safety – Risk assessment
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3. Plant Safety – Plant and equipment used to deliver the contract
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4. Accident/Incident Reporting Procedure
All accidents, incidents and near misses must be reported to MAINCO as soon as practical. In case of emergency:
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5. Emergency Procedures
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6. Dangerous Goods/Hazardous Substances
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7. Protective Clothing and Protective Equipment (PPE)
Detail the personal protective clothing to be used on site.
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8. Site Map
Where possible, provide a site map indicating the location of various risks identified in item 2 of this form.
MAINCO Representative Name:
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Contractor Representative Signature: |
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MainCo
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MINOR WORKS PROJECT INDUCTION Project Number H
Please tick off each item as it is discussed by the person conducting this induction.
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• Company OH&S and Environmental Policies (copy to be given to Contractor). |
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MainCo Melbourne general site OH&S Rules includes the following: |
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• A Zero Blood Alcohol Policy is practised by MainCo Melbourne, and as such ALL contractors and their employees shall abide by this rule at all times when working on or at a MainCo Melbourne site or premises. |
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• MainCo Melbourne has a No Smoking policy in place which prohibits smoking in all buildings and enclosed areas. |
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• All precautions must be taken to reduce the incidence of pollution to the environment including air, water, noise and land situations. |
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• All waste generated by the contractor must be removed from the site and disposed of appropriately, in accordance with regulatory requirements. |
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• Ensure safe working procedures are in place (as applicable) for the following: |
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Electrical equipment safety and isolations |
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• Site orientation (if required or necessary). |
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The preceding items have been explained, shown and understood by me, and shall be adhered to by all personnel participating in this project, operation or task: |
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2. V/Line Access Principles
2.1 Access Principles
2.1.1 General Site Access
Contractor and TTA staff requiring station access must:
• complete appropriate Level 1 Track Safety Awareness (including medical) and Induction courses; and
• by law, have a zero blood alcohol level and not impaired by drugs whilst on duty.
All Contractor and TTA staff must wear safety footwear, protective clothing and high visibility safety clothing (Australian Standard AS/NZS 4602 Class D/N for day and Night use) printed front and back with “NTS CONTRACTOR” (or equivalent as agreed with V/Line) to identify Contractor and TTA staff working on or near the track.
When working in and around station buildings, Contractor and TTA staff must at least be identified by a project badge in an agreed format.
2.1.2 Times of Access
2.1.2.1 General
V/Line grants reasonable site access at the locations and times provided in Table 1 (attached) to all stations, excluding the hours of 7.00 am-9.00 am at the following stations:
• Geelong;
• Ballarat; and
• Bendigo.
For operational reasons, these arrangements may change without notice. Prior to commencing work, the Contractor must liaise with each station’s officer or representative (“Officer in Charge”). V/Line will provide to the Contractor the contact details of the Officer in Charge for each station.
2.1.2.2 Spencer Street
Hours of access at SSS shall exclude:
• 06.00 to 09.30 (morning peak); and
• 15.00 to 18.30 (afternoon peak).
Any other times as agreed with Civic Nexus (operator of SSS).
2.1.2.3 Special Events
Site access restrictions may apply for special events. Events and access restriction details will be advised closer to the event. V/Line, the Contractor and the TTA will work co-operatively to ensure that restrictions are confirmed as early as possible and their effects on the NTS implementation are minimised.
2.1.3 Services
2.1.3.1 Site and Building Plans
V/Line will make available to the Contractor (where available) existing site and building plans. V/Line does not warrant that these plans are up-to-date.
The Contractor will provide copies of ‘as-built’ drawings to allow for future V/Line maintenance at stations and buildings to non-NTS equipment areas / services appropriate level of information to V/Line or 3rd party to enable existing site and building plans to be updated with new works.
2.1.3.2 Power
V/Line will reasonably endeavour to provide temporary use of power supplies during installation of NTS equipment (including power for the Contractor’s work equipment). The Contractor is to arrange access with the Officer in Charge where power facilities are available. If V/Line is unable to provide power supplies to the Contractor, the Contractor is to arrange its own direct power supply at its own cost.
For permanent power supply to NTS equipment, the Contractor must arrange, at its own cost, direct power connection and wiring to the NTS equipment at each station.
2.1.3.3 Water
The Contractor is to make local arrangements with station staff (via the Officer in Charge) where water supplies are available. If V/Line is unable to provide water supplies to the Contractor, the Contractor must arrange their own direct water supply at its own cost.
2.1.3.4 Cleaning and Removal of Rubbish
The Contractor is to, at its own cost; remove all NTS works related rubbish from the site at the completion of each station installation.
Temporary storage of rubbish is permitted but must not interfere with the safe operation of trains or movement of passengers. The Contractor should agree with the Officer in Charge the temporary arrangements prior to commencing work.
2.1.3.5 Toilets & Other Amenities (Changing and Mess Sheds)
The Contractor is to make local arrangements with station staff (via the Officer in Charge) for access to toilets/amenities or provide its own (at its own cost).
2.1.4 Third Party Access
The Contractor must arrange 3rd party sites land / property access through nominated site owners listed below:
(i) Pacific National – contact and telephone number TBA;
(ii) VicTrack – contact and telephone number TBA;
(iii) SSSA – contact and telephone number TBA; and
(iv) Civic Nexus – contact and telephone number TBA.
Following discussions with V/Line, V/Line is to provide contact details of other third parties, together with a list of the sites controlled by these parties to which it is reasonably expected that that the Contractor will require access.
Where the Contractor experiences difficulty in obtaining third party Access, on request from the Contractor V/Line must assist in facilitating access.
The Contractor is to ensure compliance with requirement for all 3rd party access, including OH&S.
2.1.5 Conditions and Rules of Access
2.1.5.1 Site Checklist
Prior to work commencing the Contractor will be in possession of (or provide to) the Officer in Charge a completed site access check list. The checklist shall be agreed between V/Line, the Contractor and the TTA.
2.1.5.2 Supervision
Prior to entering either a staffed or unstaffed station, the Contractor must first obtain the correct authority, keys, security access codes from the appropriate owner, franchise or station master (or Officer in Charge) and on completion of each installation ensure the site is secure, alarms set and notification provided, and the keys are returned immediately to the building owner, franchisee or station master (or Officer in Charge).
Option: Post site survey phase only:
A V/Line staff representative is to accompany the Contractor (and/or TTA) on all site surveys (eg. civil works and equipment location surveys). Costs associated with staff supplied by V/Line shall be calculated in accordance with Schedule 1.
Option: Post site survey phase:
If a Contractor staff member is Safety Accredited (ie. has completed a Certified Supervisor course – Level 3 Track Safety Awareness) and requires access to the track then they may work unaccompanied ie. without supervision of a V/Line safety-accredited personnel and also supervise Level 1 accredited Contractor personnel.
2.1.5.3 Tools and Equipment
Contractor tools and equipment are to be tagged. In addition, the Contractor must comply with all State and Federal Electrical Safety Regulations.
2.1.5.4 Contractor work, emergency and OH&S plans
The Contractor will provide V/Line with work, emergency and OH&S plans in advance of work commencing.
2.1.6 Education and Training
2.1.6.1 Track Safety and Awareness
All Contractors and TTA staff requiring access to the V/Line network must complete a Level 1 Track Safety Awareness course (duration approx 2½ hours).
At the successful completion of this session participants will be able to demonstrate and explain the safety precautions and procedures to be followed when on or about the track, interacting with other workgroups and using High Visibility garments.
This also includes the requirement for a Level 4 Health Assessment (for those contractors who are required to attend a Track Safety Awareness Course) at the cost of the Contractor.
Indicative costs associated with these qualifications are set out in Schedule 3.
Training is to be arranged by the Contractor at its own cost. The Contractor should liaise with V/Line regarding the appointment of the training supplier.
Training of TTA staff is to be managed and funded separately by the TTA, however the TTA will use best endeavours to ensure the TTA and Contractor staff training is conducted concurrently.
Contractors and TTA staff will require proof of certification in the form of an identify card. The card must be carried at all times and be produced on request by a V/Line staff member when working on or visiting rail infrastructure.
Course content will be supplied and delivered initially by V/Line, at the costs set out in Schedule 4. V/Line and the Contractor will work co-operatively to agree future training arrangements for V/Line, with the option of ‘Train the Trainer’ to be explored.
2.1.6.2 Local Site Induction Training
The Contractor shall report to the Officer in Charge prior to commencing work at any station (or group of stations). The Contractor will be required to attend a local site induction carried out by the Officer. The Contractor and V/Line will work co-operatively to ensure that the induction process is carried out as efficiently as possible so that disruptions to both the NTS implementation and V/Line operations are minimised.
2.1.7 Safety Procedures, References and Policies
As a minimum, the Contractor needs to be aware of, and comply with, the following policies, procedures, registers and regulations:
• V/Line Induction Training;
• V/Line Local Site Induction;
• SAPO 001 Alcohol and Drug Free Workplace Policy;
• SAPO 004 Policy Statement on Health & Safety;
• SAPR 004 Alcohol and Other Drugs Management;
• SAPR 014 Reporting OH&S Incidents Procedure;
• SAPR 012 V/Line Asbestos Register;
• SAPR 017 Major Incident Report; and
• HRPR 006 Medical Examination Procedures.
These documents are available from V/Line.
Other reference sources to be aware of include:
• Occupational Health & Safety (Incident Notification) Regulations 1997;
• SAB. No. 2004-06: Dept. of Infrastructure- Public Transport Safety Advisory Bulletin- Occurrence Reporting & Investigation;
• Equipment (Public Safety)(Incident Notification) Regulations 1997;
• Electrical Safety (Network Assets) Regulations 1997;
• Occupational Health and Safety Act 1985;
• Australian Standard AS 4292.1 – 1995 Railway Safety Management;
• Electronic OHS Incident Reporting Work Instruction (SAWI:005);
• Victorian Heritage Act (1995);
• Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), its Regulations and Amendments; and
• Historical Building Act
The Contractor shall comply with all relevant State and Federal Regulations and Policies.
2.1.8 Training of V/Line staff
The TTA, the Contractor and V/Line will work co-operatively to ensure that appropriate training programs are developed for V/Line staff and are delivered as efficiently as possible to minimise the disruption to V/Line’s operations.
The Contractor will manage, at its own cost, all relevant NTS training. Associated out-of costs will also be met by the Contractor, whilst V/Line staff costs will be re-imbursed at the rates set out in Schedule 4. Further information on the nature and quantum of training to be provided to staff members is also provided at Schedule 4.
2.1.9 Security (Building Access, Key Management and Security Alarms)
The Contractor shall ensure that all external doors and access areas to the stations and buildings, as well as any rooms or other areas which are not open to the public, are at all times kept locked. The only exception is times when the Contractor is entering or exiting the station or buildings or such rooms or other areas, and during the hours when the stations are open to the public in relation to all external doors and access areas to the stations.
The Contractor shall reimburse V/Line for any cost or expenses incurred as a result of any Contractor staff accidentally, intentionally, carelessly or negligently setting off security alarms.
The Contractor must not make any copies of any keys, alarm codes or any other material provided for access to the stations or building.
The Contractor must bring to the attention of V/Line’s Access Representative any matter that, in the Contractor’s opinion, lessens the security of any or any part of the stations, equipment, materials or other property at the Stations, including trains.
2.1.10 V/Line System Access
V/Line will provide reasonable access to relevant V/Line staff to provide such advice, within the knowledge or control of V/Line, to the Contractor as is reasonably required for NTS system integration.
The Contractor will be provided access to the V/Line’s IT Network system, in accordance with an agreed operations transition plan, to allow for NTS implementation.
The Contractor must provide documentation showing clear roles and responsibilities of all V/Line IT system interfaces prior to completion of design phase. End-to-end integration of the NTS to V/Line’s systems is at the Contractor’s cost.
The NTS must have an interface with V/Line’s General Ledger System. The cost of the interface (including consulting with Oakton (V/Line’s Great Plains consultant) or equivalent) must be included as part of the project.
2.1.11 Cash Handling
Access time/limitations and other procedures related to access for cash collection are highlighted below:
• V/Line’s general requirement is that cash collections occur outside the morning peaks Mondays to Fridays (ie. outside of the hours 06.00 to 09.30).
• Special Events will require additional and increased frequency of cash collection and equipment servicing, depending on the particular event.
• The process of cash transferral must be timely and efficient so as not to disrupt the operation of the station to the extent that lengthy delays result for customers wanting to purchase tickets.
• Cash collection includes both collection and replenishment of all ticket machinery including ticket office terminals.
The following should also be noted:
• V/Line is working on a Cash Handling documentation project at present to determine best practice in relation to staffed stations cash collection.
• The scope of this project includes optimal delivery times & optimal cash balances, and summarise individual station security capacities (ie. CCTV, safes etc.). It planned to have this project completed by end June 2005.
• Some remote agents have indicated their resistance to daily banking of sales receipts.
• V/Line future interest in the retail agent’s cash handling will be dependant on its final regional retail agent strategy.
2.2 Access Charge
If supervision is required the Contractor will be required to pay V/Line at the hourly rate of $100.00 plus GST.
The table below outlines the staff categories identified for the purpose of NTS education and training requirements, including number of staff and indicative hourly costs.
Category A |
|
Estimated |
|
Category B |
|
Estimated |
|
Category C |
|
Estimated |
|
Station Staff General |
|
117 |
|
Platform Supervisors |
|
24 |
|
Drivers |
|
249 |
|
Conductors |
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147 |
|
Station Masters (SS) |
|
4 |
|
Shunters |
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24 |
|
Booking Office (SS) |
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18 |
|
|
|
|
|
Other Staff |
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100 |
|
Finance Ops |
|
9 |
|
|
|
|
|
|
|
|
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Commercial |
|
6 |
|
|
|
|
|
|
|
|
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Customer Services |
|
6 |
|
|
|
|
|
|
|
|
|
Marketing |
|
6 |
|
|
|
|
|
|
|
|
|
Regional Management |
|
4 |
|
|
|
|
|
|
|
|
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Total |
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313 |
|
|
|
28 |
|
|
|
373 |
|
Note: These are estimate figures only and may vary by 10-15%.
Category A: Front Line Training: These are people who will have to directly “use” the system, ie. sell /check tickets or be involved “toping up existing tickets /cards. These will include Booking Office, conductors, coach operators etc.
Category B: Customer Advice / Service Personnel. These people are involved in providing advice or handling enquiry’s face to face or over the phone to the general public. These include such areas as Stakeholder relations customer service personnel, Senior Station staff, platform staff etc.
Category C: General Awareness. These are people who do not directly interface with customers. This is general high level understanding and overview of the NTS system.
2.3 Training Charge
The Contractor/TTA will be required to attend as a minimum the following V/Line courses:
• V/Line general induction training (cost per session TBC); and
• V/Line local site induction training at each station (cost per hour TBC).
H.
3. Yarra Access Principles
3.1 Access Principles
3.1.1 Time of Access
Details concerning available access times are listed below.
Yarra Trams grants the Contractor the right to access the Depots and trams during the following hours (daily):
(Access at times outside the periods above to be agreed on a case by case basis in accordance with the Yarra Trams Access Coordination Agreement.)
Tram Depot Access (Office and Depot Computer Equipment)
|
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Weekdays |
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Weekend |
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Special Event |
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Installation |
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10.00 am – 3.00 pm |
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No Access |
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No Access |
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Planned Maintenance (Preventive and Remedial) |
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10.00 am – 3.00 pm |
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No Access |
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No Access |
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Emergency Curative Maintenance |
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5.30 am – 1.00 am |
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|
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Cash Collection |
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See Tram Access |
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Cleaning |
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10.00 am – 3.00 pm |
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No Access |
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No Access |
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Tram Stops and Superstops Access
|
|
Weekdays |
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Weekend |
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Special Event |
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Installation |
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7.00 pm – 6.00 am |
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7.00 pm – 6.00 am |
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No Access |
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Planned Maintenance (Preventive and Remedial) |
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7.00 pm – 6.00 am |
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7.00 pm – 6.00 am |
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No Access |
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Emergency Curative Maintenance |
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24 hours / 7 days |
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|
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|
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Cash Collection |
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7.00 pm – 6.00 am |
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7.00 pm – 6.00 am |
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7.00 pm – 6.00 am |
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Cleaning |
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7.00 pm – 6.00 am |
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7.00 pm – 6.00 am |
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7.00 pm – 6.00 am |
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Tram Access
|
|
Weekdays |
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Weekend |
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Special Event |
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Installation |
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8.00 pm – 5.00 am 8.00 pm-10.00 pm 10.00 pm-12.00 am 12.00 am-5.00 am |
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8.00 pm – 5.00 am 8.00 pm-10.00 pm 10.00 pm-12.00 am 12.00 am-5.00 am |
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No Access |
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Planned Maintenance (Preventive and Remedial) |
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8.00 pm –12.00 am |
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8.00 pm – 12.00 am |
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No Access |
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Emergency Corrective Maintenance |
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During working hours: To be arranged through Fleet Operation Centre: 3 Meeting points proposed for boarding, Continuing Operations cannot be slowed down In the depots from 5.30 am – 1.00 am |
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Cash Collection |
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8.00 pm – 1.00 am in the depots if TVM on-board or until last trams return to depot around 1.30 am) |
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8.00 pm – 1.00 am in the depots if TVM on-board or until last trams return to depot around 1.30 am) |
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8.00 pm – 1.00 am in the depots if TVM on-board or until last trams return to depot around 1.30 am) |
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Cleaning |
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8.00 pm – 12.00 am 4 trams between 8.00-10.00 pm, 10 trams 10.00 pm-12.00 am in each depot |
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8.00 pm – 12.00 am 4 trams between 8.00 –10.00 pm, 10 trams 10.00 pm-12.00 am in each depot |
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8.00 pm – 12.00 am 4 trams between 8.00-10.00 pm, 10 trams 10.00 pm-12.00 am in each depot |
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3.1.2 Services
The following service arrangements apply:
• For temporary use of power supplies (240v) during installation of NTS equipment (including power for the Contractor’s work equipment), the Contractor is to arrange access with local Depot Manager, who will provide access to power supply as long as it does not disturb operations.
• For site water supplies, the Contractor is to make local arrangements with the Depot Manger. All Depots have access to water supply which will be provided by Yarra Trams.
• The Contractor is to provide their own change and mess sheds at its own cost.
• The Contractor is to provide their own storage at its own cost.
• The Contractor is to make local arrangements with the Depot Manager for access to toilets / amenities, access to which will be provided by Yarra Trams.
The following principles should be noted:
• Contractors are responsible for cleaning and removal of rubbish after work.
• Contractors are responsible for parking their cars as such facility will not be provided by Yarra Trams.
• Occupational health and safety requirements for site access as per Yarra Trams’ accreditation must be adhered to.
• Contractors must comply with all statutory requirements, in relation to compliance with safe working environment requirements, including rail safety.
• High visibility vests and safety shoes.
• Compliance with Yarra Trams’ Zero Drug and Alcohol Policy (PTSD requirements for rail safety workers. Refer PTSD web site).
• Standard work site warning signs.
• Further details are provided in the attached “Worker Competence Induction” document (sections 1, 2, 3.2, 3.3 and 4).
3.1.3 Conditions and Rules of Access
3.1.3.1 Supervision
Work Supervision is not required provided the following safe working environment training is completed.
Details and associated cost regarding safe working environment training, etc required by the Contractor prior to accessing sites and equipment are described and listed below:
Training Required |
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Reason |
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Approximate |
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Cost |
Depot Induction Training |
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To enable staff to work unsupervised in the Depot environment. |
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1 hour per Depot |
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$100 per training session (15 staff per session) |
Open, “turn on” and close trams |
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To enable staff to access and work in trams unsupervised |
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1/2 hour per tram class |
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$50 per training session (1 tram class and 10 staff per session) |
Tram Track and Overhead Awareness Training |
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To enable staff to safely access trams in an operating environment eg. On Superstops |
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2 hours |
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$200 per training session. This includes the issue of a competency card. (12 staff per session) |
All the above training is to be supplied by Yarra Trams personnel.
Yarra Trams will provide one authorised officer to provide access to the Tram Depot during the hours of 1.00 am to 5.00 am when the Depot would normally be closed.
The authorised officer is there to facilitate access and provide such level of supervision as may be required by Yarra Trams.
The rate of charge for the authorised officer will be $344 per Depot per night, for each night that access is required by the Contractor to a Depot after 1.00 am.
3.1.3.2 OH&S
The Contractor shall comply with all OH&S requirements which from time to time may be applicable.
Prior to any work, the Contractor shall provide Job Safety Assessment and request its approval by Yarra Trams.
Contractor staff is required to wear appropriate Personal Protective Equipment.
3.1.3.3 Security
The Contractor shall comply with all Yarra Trams security requirements and measures which may be form time to time be in force.
In particular, any access to Yarra Trams offices and depots requires a preliminary Sign-On Process by the Yarra Trams designated starter staff.
3.1.3.4 Emergencies
Emergency plans for each of the eight Tram Depots, describing the facilities environment, services and other features must be complied with by the Contractor. These are contained in the Yarra Trams Emergency Plan for each Depot.
3.1.3.5 Limitations
Limited tram key availability may require Yarra Trams staff attendance for turning on power, especially on D-Class trams.
Power will not be turned on for all trams at the same time.
3.1.4 Education and Training
Access to Access Provider staff for education and training from Contractor:
• As a general rule, staff will be available between the hours of 9.00 am and 5.00 pm on weekdays.
• Training of drivers will conducted by the YT Tram trainers (4 to 5 per depot) at each of the eight Tram Depots. Only 2 Tram drivers will be trained per depot per day. At least 3 Tram Trainer training sessions will be conducted at a Tram Depot or other site provided by Yarra Trams.
• Restrictions on staff availability for training will particularly apply to maintenance staff and other operational staff. In particular, training of Depot staff, Authorised Officers, Customer Service and Tram Attendants will need to be conducted during off-peak hours from Mondays to Fridays (ie. outside of 06.00 to 09.30 and 15.00 to 18.30).
• 115 Tram Authorised Officers and 100 Tram Attendants will be conducted at a Tram Depot or other site provided by Yarra Trams.
3.1.5 Cash Collection Principles
See Access Times.
3.1.6 Cleaning Principles
See Access Times.
3.2 Access Charges
Where access is required between 1.00 am and 5.00 am at a Depot an Access Charge will apply. The Contractor will be required to pay Yarra Trams $344 per Depot per night.
3.3 Training Charges
The table below outlines the staff categories identified for the purpose of NTS education and training requirements, including number of staff and [average indicative] incremental hourly cost:
Role |
|
Number |
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Average Indicative |
|
|
Drivers |
|
1,070 |
|
$ |
37.22 |
|
Tram Attendant |
|
102 |
|
$ |
37.22 |
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Revenue Protection |
|
114 |
|
$ |
43.00 |
|
Tram Fleet Maintenance |
|
123 |
|
$ |
48.00 |
|
Other Operational (Line officers, Control Centre Operator, Depot Starters) |
|
120 |
|
$ |
43.00 |
|
Management / Administration |
|
70 |
|
$ |
55.00 |
|
Qualified Train the Trainers |
|
38 |
|
$ |
43.00 |
|
Pro forma Access Coordination Agreement
Transport Ticketing Authority
Principal
Keane Australia Micropayment Consortium Pty Ltd
Contractor
[ ]
Access Provider
Table of contents
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Schedule 2 [ ] Access Plan |
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Schedule 3 Access Charge |
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Schedule 4 Training Charge |
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Schedule 5 Monthly Invoice |
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Schedule 8 Expert Deed |
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iii
Pro forma Access Coordination Agreement made at on
Parties Transport Ticketing Authority ABN [ ] of [ ]
(“Principal”)
[insert details], [ABN] of [ ]
(“Contractor”)
[insert details], [ABN] of [ ]
(“Access Provider”)
Background
A. The Principal and the Contractor have or will enter into the New Ticketing System Project Agreement (the “Project Agreement”) under which the Contractor will carry out the Project.
B. In order to carry out its obligations under the Project Agreement, the Contractor requires access to third party property, information and staff.
C. This Agreement facilitates the provision of access by the Access Provider to the Contractor.
Operative provisions
In this Agreement:
“Access” means access to [and use of] the Access Provider’s Property reasonably required by the Contractor to perform its obligations under the Project Agreement.
“Access Charge” means the charge for the provision of access based on the Access Provider Rates and calculated in accordance with Schedule 3.
“Access Coordination Meeting” means meetings between the Principal, the Contractor, access providers or their authorised representatives and other interested parties to facilitate the overall coordination of access for the Project.
“Access Provider Rates” means the rates set out in Schedule 3.
“Access Representatives” means each of the Contractor’s Access Representative, the Principal’s Access Representative and the [ ]’s Representative.
“Alternative Access” means access not provided for in the version of the [ ] Access Plan finalised in accordance with clause 6.2(h), and required as a result of the Access Provider failing to provide access in accordance with the Access Plan.
“[Note: Insert name of Access Provider] Access Plan” means the document set out in Schedule 2, as developed and amended in accordance with this Agreement.
“[Note: Insert name of Access Provider] Access Principles” means the principles, obligations and conditions of access set out in Schedule 1.
4
“[Note: Insert name of Access Provider] Property” means:
(a) all property owned, leased or used by the Access Provider (and information and drawings relating to such property including wiring diagrams) including any rolling stock, stops, terminals, stations, vehicles, depots, interchanges, computer systems and other facilities, systems, power supplies of the Access Provider other than the Solution; and
(b) personnel involved in the operation or use of the property referred to in paragraph (a) including employees of the Access Provider.
“[ ]’s Representative” means the person appointed by the Access Provider in accordance with clause 5.2.
“[Note: Insert name of Access Provider] Work” means that part of the Work which affects the [ ] Property.
“Business Day” means a day on which banks are open for business in Melbourne but not a Saturday or Sunday
“Business Hours” means between 9.00 am and 5.00 pm on a Business Day.
“Chief Executive Officers” means the chief executive officer of the Principal, the chief executive officer of the Contractor, and the chief executive officer of the Access Provider.
“Commencement Date” means the date this Agreement is validly executed by the Parties, to the satisfaction of the Principal.
“Contractor’s Access Representative” means the person appointed by the Contractor in accordance with clause 5.1.
“Core Services” means the core services described and provided by the Contractor under the Project Agreement.
“Cure Plan” means a proposal that the Contractor or the Access Provider submits to the Principal pursuant to clause 15(a) which details the steps to be taken and the dates by which those steps must be satisfactorily performed in order to rectify a default.
“Dispute Resolution Procedures” means the procedures established under clause 20.
“Expert” means the party appointed by the Principal and the Contractor pursuant to clause 49.5 of the Project Agreement to act as an expert or such other party appointed pursuant to clause 18.5(k).
“Force Majeure” means lightning, earthquake, fire explosion, cyclone, riots, industry wide, industrial action which is not specific to, or attributable to the action of, the Contractor or any of its Related Bodies Corporate or subcontractors and is not industrial action which falls within paragraph (f) of the definition of Act of Prevention, civil commotion, natural disaster, sabotage, act of a public enemy, act of God (excluding storm and tempest), war (declared or undeclared), revolution, radioactive contamination, flood or an outbreak of an infectious disease which results in the Government, a Governmental Agency or a government having jurisdiction over the person claiming force majeure relief issuing general prohibition against any persons entering the State of Victoria, but only if the party claiming the relief could not
5
have prevented the effects of the event by taking those steps which a prudent, experienced and competent contractor or operator (as the case may be) would have taken.
“Government Agency” means any government or semi-governmental entity or authority, body politic, government department or statutory authority of the State of Victoria.
“Initial Services” means the initial services described and to be provided by the Contractor under the Project Agreement.
“Law” means:
(a) common law;
(b) Commonwealth, Victorian or local government legislation, regulations, by-laws and other subordinate regulations; and
(c) all building codes and regulations relevant to carrying out the [ ] Work.
“Monthly Invoice” means the invoice referred to in clause 13, in the form set out in Schedule 5.
“Novation Deed” means the deed substantially in the form annexed to this Agreement as Schedule 7.
“Novation Notice” means a notice issued by the Principal pursuant to clause 22.4 of this Agreement.
“PA Novation Deed” means the deed substantially in the form annexed to this Agreement as Schedule 6.
“PA Novation Notice” means a notice issued by the Principal pursuant to clause 22.1 of this Agreement.
“Party” means each of the Principal, the Contractor and the Access Provider and “Parties” means all of them.
“Principal’s Access Representative” means the person appointed by the Principal in accordance with clause 5.3.
“Principal’s Nominee” means the Principal or any party nominated by the Principal.
“Project” means the design, development, integration, installation, testing and implementation of the Solution and the development, testing and provision of the Services.
“Project Documents” means:
“Project Master Schedule” means the detailed plan titled the “Project Master Schedule” prepared by the Contractor (and updated from time to time), in accordance with the Project Agreement.
“Project Timeline” means the document which is titled the “Project Timeline” prepared by the Contractor (and updated from time to time) in accordance with the Project Agreement.
“Related Body Corporate” has the same meaning as in the Corporations Act.
“Services” means the Initial Services and the Core Services.
“Solution” means the ticketing and payment system designed, and to be provided by the Contractor, as described in the Project Agreement.
“Training Charge” means the charge for the provision of training calculated in accordance with Schedule 3.
“Urgent Action” means action required to be taken to avoid an immediate threat to a member of the public or the property of the Principal or the Access Provider.
“Work” means any work required to be performed by the Contractor pursuant to the Project Agreement.
In this Agreement:
and unless the context indicates a contrary intention:
7
In the interpretation of this Agreement, no rule of construction applies to the disadvantage of one Party on the basis that that Party put forward or drafted this Agreement or any provision in it.
the following order of precedence will apply:
the Contractor or the Access Provider must notify the Principal, or the Principal’s Access Representative may notify the Contractor and the Access Provider, in writing within 10 Business Days of becoming aware of any such inconsistency, ambiguity or discrepancy. The Principal’s Access Representative must determine the intention of the Parties and notify the Contractor and the Access Provider of the resolution of the inconsistency, ambiguity or discrepancy within 20 Business Days of the Principal’s Access Representative being so notified.
The Contractor and the Access Provider must perform all their respective obligations under this Agreement in accordance with the requirements of Law.
8
unless the Principal gives a PA Novation Notice under clause 22.
9
10
11
12
13
The Contractor acknowledges and warrants that:
14
For the avoidance of doubt, the Contractor must:
other than as provided in this Agreement, including the Access Principles and [ ] Access Plan.
15
The Access Provider has the right to be present when any [ ] Work is being performed.
The Access Provider acknowledges and agrees that any part of the Solution installed on the [ ] Property:
Notwithstanding the [ ] Access Plan, the Access Principles and the notice requirements in clause 9(a), if requested by the Access Provider or the Principal or if agreed between the Contractor and the Access Provider, the Contractor may be granted emergency access to the [ ] Property in order to undertake or complete urgent maintenance or repairs. Such emergency access shall (where possible) be in accordance with the [ ] Access Principles or on such terms as the Contractor and the Access Provider may agree from time to time.
16
17
18
the Principal will pay the money to the Access Provider. The amount of any money paid by the Principal to the Access Provider under this clause will be a debt due and payable by the Contractor to the Principal within 20 Business Days of demand by the Principal.
The Access Provider will not be entitled to the Access Charge for the provision of Alternative Access. For the avoidance of doubt, Alternative Access does not include additional access required where the Access Provider has failed to provide access in accordance with the Access Plan solely as a consequence of the Contractor not having complied with the Access Plan or the Access Principles.
19
Notwithstanding any other clause in this Agreement or the Project Agreement, the Contractor will be liable for any part of the Access Charge attributable to any additional access sought under clause 6.3(a) by the Contractor or notified to the Principal under clause 6.3(h) and will not be entitled to any reimbursement from the Principal in relation to such part of the Access Charge where that additional access is due to the act or omission of the Contractor.
20
to the extent to which they arise out of or as a consequence of:
except to the extent that such loss, damage, injury or death is attributable to the negligent or wilful act or omission of the Access Provider or the Principal or the breach by the Access Provider or the Principal of its obligations under this Agreement. In the event such loss, damage, injury or death results from the joint or concurrent act or omission of the Parties, the Contractor will be liable under this indemnity in proportion to its relative degree of fault.
as a result of a Party’s failure to perform its obligations in accordance with this Agreement or otherwise in connection with this Agreement, whether such claim is in breach of contract, any tort (including negligence) or on any other basis whatsoever.
21
The limitation in clause 14.2 does not apply to:
whichever is the higher amount.
22
and the Contractor or the Access Provider (as the case may be) must immediately comply with the terms and conditions set out in the Cure Plan or the modified Cure Plan (as the case may be).
in respect of any damage, expense, loss or liability the Principal or the Access Provider suffers or incurs arising out of such action provided that such action was taken to avoid an immediate threat to a member of the public or the property of the Principal or the Access Provider which arose out of or was a consequence of the Contractor’s performance of its obligations under this Agreement or the Project Agreement.
The Contractor acknowledges that it is liable for damage or loss to the [ ] Property to the extent caused by the Contractor or the Contractor’s officers, employees, subcontractors or agents in performing any [ ] Work carried out on the [ ] Property.
23
When requested to do so by the Principal’s Access Representative, the Contractor and the Access Provider must promptly give the Principal’s Access Representative any information in respect of the [ ] Works or the provision of access under this Agreement which it reasonably requires.
Without limiting the generality of clause 17.1, the Contractor must keep the Principal’s Access Representative regularly informed of the progress of the [ ] Works and notify the Access Provider and the representative immediately of any matter that may threaten or is likely to threaten the safety or operational capacity or efficiency of the [ ] Property due to the carrying out the [ ] Works.
[Note: Additional reporting obligations may be required and inserted here].
The Contractor acknowledges that it is required to effect and maintain the following insurances in accordance with the Project Agreement:
arising out of or in connection with the Work or the Solution including arising out of or in connection with rail risks, both for a sum insured of not less than $[ ] for any one claim (public liability) and for all claims in the aggregate, any one period of insurance (product liability);
24
[Note: Details to be inserted and clause to be reviewed upon finalisation of the Project Agreement to ensure consistency.]
25
then any Party may immediately refer the dispute to the Chief Executive Officers.
then any Party may refer the dispute to the Expert for determination in accordance with clause 19.4.
26
27
The Parties must meet within 5 Business Days of service of a notice of a Force Majeure event to determine:
Where there is a remedy, the Contractor must and the Principal must use its best endeavours to procure the Access Provider to use reasonable endeavours to remedy the effects of a Force Majeure promptly, including making any reasonable expenditure of funds which may mitigate or avoid the effect of the Force Majeure.
28
to any person to whom the Principal has assigned corresponding rights under the Project Agreement and which has the capacity to carry out the obligations of the Principal under this Agreement. The Access Provider and Contractor will execute any document required by the Principal and do such things as and when requested by the Principal to give effect to such assignment, novation or transfer.
If the Project Agreement has been terminated, or the Contractors’ rights and obligations with respect to any part of the Services under the Project Agreement have been terminated, and if the Principal gives written notice to the Access Provider and the Contractor of its intention to exercise its rights under this clause 22.1, then as from the date of the PA Novation Notice:
29
Clause 22.1 will not operate to:
The Principal and the Access Provider agree that no right of set off or counterclaim may be exercised against the Principal’s Nominee in relation to this Agreement if:
If
the Principal will give written notice to the Access Provider and the Contractor that the Principal will exercise its rights and obligations under this clause 22.4, and then as from the date of that Novation Notice:
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Clause 22.4 will not operate to:
The Contractor and the Principal agree that no right of set off or counterclaim may be exercised against the Principal’s Nominee in relation to this Agreement if:
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All communications (including notices, consents, approvals, requests and demands) under or in connection with this Agreement:
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Access Provider
Name: |
[Insert name for service on Party] |
Address: |
[Insert address for service on Party] |
Fax: |
[Insert fax number for service on Party] |
For the attention of: |
[Insert person’s name to whom correspondence is directed] |
|
|
Contractor |
|
|
|
Name: |
[Insert name for service on Party] |
Address: |
[Insert address for service on Party] |
Fax: |
[Insert fax number for service on Party] |
For the attention of: |
[Insert person’s name to whom correspondence is directed] |
|
|
Principal |
|
|
|
Name: |
[Insert name for service on Party] |
Address: |
[Insert address for service on Party] |
Fax: |
[Insert fax number for service on Party] |
For the attention of: |
[Insert person’s name to whom correspondence is directed] |
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The Contractor:
This agreement is governed by and will be construed according to the law applying in Victoria.
Each Party irrevocably:
[Note: If the Contractor or Access Provider, or their parent, is not an Australian company, additional service and enforcement clauses will be required.]
Without limiting the generality of any other provision of this Agreement, any exercise by the Principal of any rights under this Agreement will not relieve the Contractor or the Access Provider of any of its obligations under this Agreement.
In any case where pursuant to this Agreement the doing or executing of any act matter or thing by the Contractor or the Access Provider is dependent upon the approval or consent of the Principal such approval or consent may be given or withheld, or may be given subject to any conditions, by the Principal in its absolute discretion unless this Agreement expressly provides otherwise.
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All measurements of physical quantities will be in Australian legal units of measurements in accordance with the National Measurement Act 1960 (Cth).
This Agreement may only be varied by a document signed by or on behalf of each Party.
Each Party must promptly do and perform all further acts and sign, execute and complete all additional documents which may be necessary to effect, perfect, or complete the provisions of this Agreement and the transactions to which it relates.
This Agreement may be executed in any number of counterparts and by the Parties on separate counterparts. Each counterpart constitutes an original of this Agreement, and all together constitute one agreement.
Except as otherwise provided in this Agreement, each Party must pay its own costs and expenses in connection with negotiating, preparing, executing, performing and amending this Agreement.
If any part of this Agreement is or becomes illegal, invalid, or unenforceable in any relevant jurisdiction, the legality, validity, or enforceability of the remainder of the agreement will not be affected and this Agreement will be read as if the part had been deleted in that jurisdiction only.
To the extent permitted by law, in relation to its subject matter, this Agreement and the Project Agreement (as between the Principal and the Contractor):
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None of the terms or conditions of this Agreement nor any act, matter or thing done under or by virtue of or in connection with this Agreement will operate as a merger of any of the rights and remedies of the Parties in or under this Agreement all of which will continue in full force and effect until the respective rights and obligations of the Parties under this Agreement have been fully performed and satisfied.
whether under this Agreement or otherwise at law relating to the Project.
whether under this Agreement or otherwise at law relating to the Project.
The Parties respective rights under clauses [Note: To be inserted] survive the termination or expiry of this Agreement on any basis other than to the extent required or specifically contemplated under the provisions of those clauses.
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Any payment or reimbursement required to be made under this Agreement that is calculated by reference to a cost, expense, or other amount paid or incurred will be limited to the total cost, expense or amount less the amount of any input tax credit to which an entity (or its representative member) is entitled for the acquisition to which the cost, expense or amount relates.
If GST is payable in relation to a supply made under or in connection with this Agreement then:
If the GST payable in relation to a supply made under or in connection with this Agreement varies from the additional amount paid by the Recipient under clause 25.3 such that a further amount of GST is payable in relation to the supply or a refund or credit of GST is obtained in relation to the supply, then the Supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient. Any payment, credit or refund under this clause 25.4 is deemed to be a payment, credit or refund of the additional amount payable under clause 25.3.
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Schedule 25
Pro-Forma Direct Agreement
(Clause 10.3)
Direct Agreement
Public Transport Ticketing Body trading as Transport Ticketing Authority
73 595 242 024
Principal
Keane Australia Micropayment Consortium Pty Ltd
ACN 114 334 600
Contractor
[Insert name of subcontractor / supplier]
[Insert ABN of subcontractor/supplier]
Subcontractor
The Clayton Utz contact for this document is
Brad Vann on + 61 3 9286 6000
Clayton Utz
Lawyers
Level 18 333 Collins Street Melbourne VIC 3000 Australia
T + 61 3 9286 6000 F + 61 3 9629 8488
www.claytonutz.com
Our reference 155/80003545
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Tripartite deed made on
Parties Public Transport Ticketing Body trading as Transport Ticketing Authority ABN 73 595 242 024 of Level 38, 55 Collins Street, Melbourne, Victoria (“Principal”)
Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600 of Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria (“Contractor”)
[Insert name of subcontractor/supplier] ABN [Insert ABN of subcontractor/supplier] of [insert address] (“Subcontractor”)
Background
A. The Contractor and the Principal have entered into the Project Agreement pursuant to which the Contractor agrees to, among other things, design, develop, integrate, install, test and implement the Solution and provide the Initial Services and Core Services.
B. The Contractor has engaged the Subcontractor pursuant to the Subcontract to provide certain services and/or products to assist in meeting its obligations under the Project Agreement.
C. The Subcontractor has agreed to undertake its obligations under the Subcontract on the terms and conditions set out below.
Operative provisions
1. Definitions and Interpretation
1.1 Project Agreement
Any word, expression, reference or term used in this Deed which is defined in the Project Agreement and is not specifically defined in this Deed will, unless the context otherwise requires, have in this Deed the same meaning as in the Project Agreement.
[Note: Alternatively, the relevant definitions will be inserted. ]
1.2 Definitions
In this Deed, unless the context otherwise requires:
“Authorised Representative” means:
(a) in respect of the Subcontractor, any person from time to time nominated as an authorised representative of the Subcontractor for the purposes of this Deed by notice in writing to the Principal, such notice to be accompanied by the specimen signatures of any person so nominated;
(b) in respect of the Principal, the Principal’s Representative; and
(c) in respect of the Contractor, the person nominated under clause 7.3 of the Project Agreement from time to time.
“Default Event” means a default under, or the breach of, the Subcontract by the Contractor, or the occurrence or subsistence of any event, as a result or consequence of which the Subcontractor is or becomes entitled (whether upon the giving of notice or lapse of time or otherwise):
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(a) to terminate, rescind or accept the repudiation of the Subcontract; or
(b) to suspend performance of any of its obligations under the Subcontract or to otherwise not do a thing or things (whether temporarily or otherwise) which it would otherwise be obliged to do under the Subcontract, where such suspension or inaction has, or will have, a material adverse effect on the ability of the Contractor to perform its obligations under the Project Agreement.
“Grace Period” means, in relation to a Default Event, the period (if any) within which the Contractor may (under the Subcontract) remedy the Default Event or otherwise take steps the taking of which would prevent the exercise by the Subcontractor of any Right it might have as a result or consequence of the Default Event.
“Novation Notice” means a notice issued by the Principal pursuant to clause 3.1 of this Deed.
“Project Agreement” means the New Ticketing Solution Project Agreement entered into between the Principal and the Contractor on [insert date] relating to the supply of a Smartcard based ticketing and payment solution.
“Rights” include authorities, benefits, powers, privileges, entitlements, remedies and causes of action.
“Security Interest” includes any mortgage, pledge, hypothecation, lien or charge or any security or preferential interest or arrangement of any kind, or any other right or arrangement with any creditor to have its claims satisfied prior to other creditors with, or from the proceeds of, any asset (including retention of title and any deposit of money by way of security).
“Services” means the services the Subcontractor is required to perform for the Contractor under the Subcontract. [Note: This definition will be amended if the Subcontract is for the supply of products]
“Subcontract” means the [insert name of Key Contract] entered into between the Contractor and the Subcontractor on [insert date] relating to [insert details].
“Subcontractor Default Event” means a default under, or the breach of, the Subcontract by the Subcontractor, or the occurrence or subsistence of any event, as a result or consequence of which the Contractor is or becomes entitled (whether upon the giving of notice or lapse of time or otherwise):
(a) to terminate, rescind or accept the repudiation of the Subcontract; or
(b) to suspend performance of any of its obligations under the Subcontract or to otherwise not do a thing or things (whether temporarily or otherwise) which it would otherwise be obliged to do under the Subcontract, where such suspension or inaction has, or will have, a material adverse effect on the ability of the Contractor to perform its obligations under the Project Agreement.
“Subcontractor Grace Period” means, in relation to a Subcontractor Default Event, the period (if any) within which the Subcontractor may (under the Subcontract) remedy the Subcontractor Default Event or otherwise take steps the taking of which would prevent the exercise by the Contractor of any Right it might have as a result or consequence of the Subcontractor Default Event.
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1.3 Interpretation
In this Deed:
(a) headings are for convenience only and will not affect the interpretation;
and unless the context indicates a contrary intention:
(b) “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership, a trust and Governmental Agencies;
(c) a reference to party includes that party’s executors, administrators, successors, permitted substitutes and assigns, including persons taking by way of novation;
(d) a reference to a document (including this Deed) is to that document as varied, novated, ratified or replaced from time to time;
(e) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
(f) words importing the singular will include the plural (and vice versa) and words denoting a given gender will include all other genders;
(g) a reference to a clause or Schedule is a reference to a clause of or Schedule to this Deed, and references to paragraphs are references to paragraphs within the clause of this Deed in which they are situated, in each clause unless expressly stated otherwise;
(h) a reference to a “day” is a reference to a calendar day (and includes weekends and public holidays);
(i) where any word or phrase is given a defined meaning any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning;
(j) the word “including” or any other grammatical form of that word is not a word of limitation; and
(k) a reference to “$” or “dollar” is to Australian currency.
1.4 Business Day
Where the day on or by which anything is to be done under this Deed is not a Business Day it shall be done on the next Business Day.
1.5 Inconsistencies
If there is any inconsistency between the provisions of this Deed and the Subcontract, the provisions of this Deed will prevail to the extent of the inconsistency.
2. Default Events
2.1 The Contractor’s obligations
The Contractor shall use its best endeavours to ensure that no Default Event occurs. If, however, notwithstanding this undertaking, a Default Event does occur, the Contractor shall ensure that if the consequences of it for the Subcontractor are:
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(a) capable of remedy, those consequences are remedied promptly and, in any event, within any relevant Grace Period; and
(b) not capable of remedy, but those consequences can be adequately compensated for by the payment of money, money is paid to the Subcontractor which adequately compensates for those consequences promptly and, in any event, within any relevant Grace Period.
2.2 Notice
The Subcontractor will notify the Principal promptly of any Default Event. Any such notice must:
(a) include reasonable details of the particular Default Event;
(b) specify the paragraph of clause 2.3 which applies to the particular Default Event;
(c) if the paragraph so specified is paragraph (a), specify the steps which the Subcontractor considers need to be taken in order to remedy the particular Default Event; and
(d) if the paragraph so specified is paragraph (b), specify the amount of monetary compensation for the particular Default Event which the Subcontractor considers to be adequate.
2.3 Exercise of Rights
If a Default Event occurs, the Subcontractor shall not exercise any Right it might have as a result or consequence of the Default Event unless it has given the Principal notice of the Default Event in accordance with clause 2.2 and where the consequences for the Subcontractor of the Default Event are:
(a) capable of remedy, those consequences have not been remedied (whether by the Contractor, the Principal or any other person) within a reasonable time (being, in any event, not less than 20 Business Days from the date of the later of expiry of the relevant Grace Period and receipt by the Principal of the relevant notice);
(b) not capable of remedy and clause 2.3(c) does not apply, monetary compensation which is adequate having regard to those consequences has not been paid (whether by the Contractor, the Principal or any other person) to the Subcontractor within 20 Business Days of the later of expiry of the relevant Grace Period and the Principal’s receipt of the relevant notice; and
(c) not capable of remedy and the payment of money to the Subcontractor would not adequately compensate the Subcontractor for those consequences, 20 Business Days have expired since the later of expiry of the relevant Grace Period and the Principal’s receipt of the relevant notice,
provided that if the Default Event is:
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2.4 Principal action
(a) If a Default Event occurs, each party agrees that the Principal may (but will not be obliged to) take such action and make such payments as in the reasonable opinion of the Principal is necessary to take or make in order to prevent or reduce the risk of the Subcontractor exercising any Right it might have as a result or consequence of the Default Event.
(b) The Principal’s rights under paragraph (a) may (but need not) entail the Principal taking the steps or paying the compensation specified in the relevant notice under clause 2.2.
2.5 Remedial action not novation
The taking of any action or the making of any payment by the Principal under clause 2.4 will not be construed as an assumption by the Principal of any obligations of the Contractor under or in relation to the Subcontract.
2.6 Indemnity for costs
If the Principal takes action or makes any payment under clause 2.4, the Contractor indemnifies the Principal (and will pay, on demand by the Principal) against all reasonable costs, losses, expenses or liabilities incurred or payable by the Principal as a result of its having taken the relevant action or made the relevant payment.
3. Novation on Termination
3.1 Novation
If the Project Agreement has been terminated, or the Contractors’ rights and obligations with respect to any part of the Services under the Project Agreement have been terminated, and if the Principal gives written notice to the Subcontractor of its intention to exercise its rights under this clause 3.1, then as from the date of the Novation Notice:
(a) except in respect of any rights of the Contractor that arise out of a breach of the Subcontract or other liability on the part of the Subcontractor under the Subcontract occurring or arising prior to the date of the Novation Notice the Contractor releases the Subcontractor from its obligations under the Subcontract and the Subcontractor shall perform for, and owe to the Principal, or the Principal’s nominee, all its obligations under the Subcontract;
(b) except in respect of the rights of the Contractor referred to in paragraph (a), the Principal, or the Principal’s nominee, shall be entitled to exercise all of the rights and, subject to clause 3.2, shall assume all of the obligations, of the Contractor under the Subcontract;
(c) subject to clause 3.2, the Subcontractor shall have the same rights against the Principal, or the Principal’s nominee, as it had against the Contractor in respect of obligations so assumed; and
(d) any party to this Deed requested by the Principal to do so will:
(i) enter into a deed in a form the same as or substantially similar to that annexed to this Deed in Annexure A reflecting the novation of the Subcontract to the Principal or the Principal’s nominee; and
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(ii) take such other action as is required to vest in the Principal or the Principal’s nominee full legal and equitable title to any retention account, bank guarantee, performance bond, letter of credit or other security held by the Contractor to secure obligations of the Subcontractor under the Subcontract.
3.2 Obligations prior to novation
Clause 3.1 will not operate to:
(a) require the Principal, or the Principal’s nominee, to assume any obligations under the Subcontract which relate to the period or arise prior to the date of the Novation Notice or which relate to any breach or failure to perform in that period;
(b) vest in any person any rights against the Principal, or the Principal’s nominee, in respect of obligations which the Principal is not required to assume; or
(c) release the Subcontractor or the Contractor in respect of its obligations under the Subcontract or liability for any breach of the Subcontract or other liability on the part of the Subcontractor or the Contractor under the Subcontract which relates to the period prior to the date of the Novation Notice.
3.3 Set off
The Subcontractor agrees no right of set off or counterclaim may be exercised against the Principal in relation to the Subcontract if:
(a) the Subcontract is novated to the Principal, or the Principal’s nominee; and
(b) the right relates to a circumstance, event, breach or failure occurring or arising prior to the date of the Novation Notice.
3.4 No liability unless novation
The Subcontractor acknowledges and agrees that, to the maximum extent permitted by law, the Principal has no liability to the Subcontractor (whether by way of indemnity, damages or otherwise), arising out of or in connection with the Project or any Project Document, except if the Principal exercises its rights under clause 3.1, and then, subject to clauses 3.2 and 3.3, only in respect of the obligations assumed by the Principal under the Subcontract and on the terms of the Subcontract.
4. Subcontractor Default Event
4.1 The Subcontractor’s obligations
The Subcontractor shall use its best endeavours to ensure that no Subcontractor Default Event occurs. If, however, notwithstanding this undertaking, a Subcontractor Default Event does occur, the Subcontractor shall ensure that if the consequences of it for the Contractor are:
(a) capable of remedy, those consequences are remedied promptly and, in any event, within any relevant Subcontractor Grace Period; and
(b) not capable of remedy, but those consequences can be adequately compensated for by the payment of money, money is paid to the Contractor which adequately compensates for those consequences promptly and, in any event, within any relevant Subcontractor Grace Period.
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4.2 Notice
The Contractor will notify the Principal promptly of any Subcontractor Default Event. Any such notice must:
(a) include reasonable details of the particular Subcontractor Default Event;
(b) specify the paragraph of clause 4.3 which applies to the particular Subcontractor Default Event;
(c) if the paragraph so specified is paragraph (a), specify the steps which the Contractor considers need to be taken in order to remedy the particular Subcontractor Default Event; and
(d) if the paragraph so specified is paragraph (b), specify the amount of monetary compensation for the particular Subcontractor Default Event which the Contractor considers to be adequate.
4.3 Exercise of Rights
If a Subcontractor Default Event occurs, the Contractor shall not exercise any Right it might have as a result or consequence of the Subcontractor Default Event unless it has given the Principal notice of the Subcontractor Default Event in accordance with clause 4.2 and where the consequences for the Contractor of the Subcontractor Default Event are:
(a) capable of remedy, those consequences have not been remedied (whether by the Subcontractor, the Principal or any other person) within a reasonable time (being, in any event, not less than 20 Business Days from the date of the later of expiry of the relevant Subcontractor Grace Period and receipt by the Principal of the relevant notice);
(b) not capable of remedy and clause 4.3(c) does not apply, monetary compensation which is adequate having regard to those consequences has not been paid (whether by the Subcontractor, the Principal or any other person) to the Contractor within 20 Business Days of the later of expiry of the relevant Subcontractor Grace Period and the Principal’s receipt of the relevant notice; and
(c) not capable of remedy and the payment of money to the Contractor would not adequately compensate the Contractor for those consequences, 20 Business Days have expired since the later of expiry of the relevant Subcontractor Grace Period and the Principal’s receipt of the relevant notice,
provided that if the Default Event is:
4.4 Principal action
(a) If a Subcontractor Default Event occurs, each party agrees that the Principal may (but will not be obliged to) take such action and make such payments as in the reasonable opinion of the Principal is necessary to take or make in order to prevent
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or reduce the risk of the Contractor exercising any Right it might have as a result or consequence of the Subcontractor Default Event.
(b) The Principal’s rights under paragraph (a) may (but need not) entail the Principal taking the steps or paying the compensation specified in the relevant notice under clause 4.2.
4.5 Remedial action not novation
The taking of any action or the making of any payment by the Principal under clause 4.4 will not be construed as an assumption by the Principal of any obligations of the Subcontractor under or in relation to the Subcontract.
4.6 Indemnity for costs
If the Principal takes action or makes any payment under clause 4.4, the Subcontractor indemnifies the Principal (and will pay, on demand by the Principal) against all reasonable costs, losses, expenses or liabilities incurred or payable by the Principal as a result of its having taken the relevant action or made the relevant payment.
5. Temporary Step-In and other Principal Rights
5.1 Rights of the Principal
The Subcontractor acknowledges the Rights of the Principal:
(a) in respect to access and inspection under clauses 9.10 and 15.9 of the Project Agreement;
(b) to step in under clause 41.1 of the Project Agreement;
(c) to suspend the Work under clause 41.2 of the Project Agreement; and
(d) to conduct audits under clause 8.4(f) of the Project Agreement.
5.2 Subcontractor to facilitate
The Subcontractor agrees with the Principal that it will exercise its rights under the Subcontract in a way which facilitates the effective exercise by the Principal of the Rights referred to in clause 5.1.
5.3 Subcontractor’s continued performance
During the period in which the Principal is exercising a Right:
and the Subcontractor agrees that it will comply with such directions, and with all other reasonable directions of the Principal in relation to the performance of the Subcontract by the Subcontractor during such period, provided that such directions are not inconsistent with the Subcontract and are not inconsistent with a direction given by the Principal under the Project Agreement.
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5.4 Principal not liable
The requirement of the Principal that the Subcontractor suspend or continue to perform its obligations under the Subcontract and the giving of any direction under clause 5.3(a) by the Principal will not be construed as an assumption by the Principal of any obligations of the Contractor under or in relation to the Subcontract.
6. Other Undertakings by Subcontractor
6.1 Subcontract
The Subcontractor undertakes that:
(a) it will duly and punctually perform and observe all its obligations under the Subcontract; and
(b) that it has the skill and experience to properly perform and observe all of its obligations under the Subcontract.
6.2 Access to books and records
6.3 Intellectual Property
[Note: Under clause 30.10 of the Project Agreement the Contractor is obliged to secure IP rights for the Principle in relation to Third Party Licences. Where appropriate, those provisions, as they apply to the subcontractor, will be reflected here.]
6.4 No Retention of Ownership
The Subcontractor confirms and undertakes that the Subcontract does not and will not include, and will ensure that its sub-contracts or supply contracts do not and will not include, any retention of ownership clauses or any clauses under which the Subcontractor or the Subcontractor’s subcontractor or supplier retains any security or other interest in any item which will become part of the Solution which would prevent ownership of those items passing to the Principal in accordance with clause 32.1 of the Project Agreement.
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7. Undertakings by the Contractor and Subcontractor
7.1 Amendments
Each of the Subcontractor and the Contractor undertake to the Principal that it will not consent to, or make any material amendment to, or materially supplement any provision of the Subcontract without the prior written consent of the Principal.
7.2 Waiver
Each of the Subcontractor and the Contractor undertake to the Principal that it will not expressly or impliedly waive, or extend or grant time or indulgence in respect of, any material provision of or material obligation under the Subcontract without the prior written consent of the Principal (such consent not to be unreasonably withheld).
7.3 Disposal or rights
Each of the Subcontractor and the Contractor undertake to the Principal that other than as provided for under clause 3 of this Deed, it will not transfer, assign, novate or otherwise dispose of any of its rights, obligations under or interest in the Subcontract without the prior written consent of the Principal.
7.4 Termination and release
Notwithstanding any other provision of this Deed, each of the Subcontractor and the Contractor undertake to the Principal that, it will not:
(a) avoid, release, surrender, terminate, rescind, discharge (other than by performance) or accept the repudiation of; or
(b) suspend the performance of any of its obligations under,
the Subcontract without the prior written consent of the Principal.
7.5 Restriction on dealings
Each of the Subcontractor and the Contractor undertakes to the Principal that it will not grant, permit to be created or allow to subsist any Security Interest on or affecting its interest in the Subcontract without the prior written consent of the Principal which consent will not be unreasonably withheld or delayed.
8. Warranties of Subcontractor and Contractor
Each of the Subcontractor and the Contractor makes the following continuing warranties for the benefit of the Principal:
(a) no Default Event subsists;
(b) no Subcontractor Default Event subsists; and
(c) the Subcontract (and the documents referred to therein) sets out all the terms and conditions of the agreement between the Contractor and the Subcontractor in respect of the Project.
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9. Dispute Resolution, Equitable Relief and Liability
9.1 Expert determination
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9.2 Arbitration
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9.3 Equitable Relief
(a) Each party to this Deed acknowledges that damages may not be an adequate remedy for any breach of, or failure by it to comply with, this Deed.
(b) Each party to this Deed agrees that, without limiting any other right, remedy or action it has in connection with any actual or threatened breach of, or failure to comply with, this Deed by the other party, it is entitled to seek equitable relief (including specific performance or injunctive or declaratory relief) to restrain any actual or threatened breach of, or failure to comply with, this Deed by the other party and the other party must not oppose the granting of such relief on the basis that the party seeking such relief has not or will not sustain any actual loss or damage.
9.4 Liability
Despite any other provision of this Deed, the maximum aggregate liability of the Subcontractor under this Deed and the Subcontract will be no greater than the liability of the Subcontractor under the Subcontract.
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10. Stamp Duty and expenses
10.1 Stamp Duty
The Contractor:
(a) must pay all stamp duties and any related fines and penalties in respect of this agreement, the performance of this agreement and each transaction effected by or made under or pursuant to this agreement;
(b) must indemnify each other party against any liability arising from failure to comply with clause 10.1(a); and
(c) is authorised to make any application for and retain the proceeds of any refund due in respect of stamp duty paid under this clause.
10.2 Expenses
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing, performing and amending this agreement.
11. GST
(a) In addition to any other consideration, the recipient of a Taxable Supply made under or in connection with this Deed (the “Recipient”) must pay to the party making the Taxable Supply (the “Supplier”) the amount of GST in respect of the Taxable Supply. This subclause does not apply if the consideration specified for the Taxable Supply is expressly agreed to be GST inclusive.
(b) If the amount paid by the Recipient to the Supplier in respect of GST (whether because of an Adjustment or otherwise):
(i) is more than the GST on the Taxable Supply, then the Supplier shall refund the excess to the Recipient;
(ii) is less than the GST on the Taxable Supply, then the Recipient shall pay the deficiency to the Supplier.
(c) The Recipient is not obliged to pay any amount in respect of GST to the Supplier unless and until the Supplier issues a Tax Invoice to the Recipient in respect of the Taxable Supply. If an Adjustment has occurred, the Supplier must issue an Adjustment Note to the Recipient.
(d) The amount of a party’s entitlement under this Deed to recovery or compensation for any of its costs, expenses or liabilities is reduced by the Input Tax Credits to which that party (or the Representative Member of a GST Group of which the party is a member) is entitled in respect of such costs, expenses or liabilities.
(e) In this Deed, amounts which are calculated by reference to revenue or profits are calculated on the GST-exclusive component of that revenue or those profits unless expressly provided to the contrary.
(f) For the purposes of this clause:
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(i) “GST Law” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999;
(ii) “Adjustment”, “Adjustment Note”, “GST”, “GST Group”, “Input Tax Credits”, “Representative Member” and “Tax Invoice” have the meanings given to them in the GST Law; and
(iii) “Taxable Supply” has the meaning given to it in the GST Law, excluding section 84-5 of A New Tax System (Goods and Services Tax) Act 1999.
12. Notices
All notices, requests, demands, consents, approvals, agreements or other communications to or by a party to this Deed shall:
(a) be in writing addressed to the address of the recipient shown in the Schedule or to such other address as it may have notified the sender;
(b) be signed by an Authorised Representative of the sender; and
(c) be taken to be received by the addressee:
(i) in case of prepaid post, on the Business Day that is the third Business Day after the date of posting to an address within Australia, and on the fifth Business Day after the date of posting by airmail to an address outside Australia;
(ii) in the case of fax, at the local time (in the place of receipt of that fax) which then equates to the time that fax is sent as shown on the transmission report produced by the machine from which that fax is sent confirming transmission of that fax in its entirety, unless that local time is not on a Business Day, or is after 5.00 pm on a Business Day, when that communication is taken to be received at 9.00 am on the next Business Day; and
(iii) in the case of delivery by hand, on delivery at the address of the addressee as provided in clause 12(a), unless that delivery is made on a day that is not a Business Day, or after 5.00 pm on a Business Day, when that communication is taken to be received at 9.00 am on the next Business Day.
13. Governing Law and Jurisdiction
13.1 Governing Law
This agreement is governed by and will be construed according to the laws applying in the State of Victoria.
13.2 Jurisdiction
Subject to clause 9.2, each party irrevocably:
(a) submits to the non-exclusive jurisdiction of the courts of Victoria, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to this Deed; and
53
(b) waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, where that venue falls within clause 13.2(a).
13.3 Enforcement
The Subcontractor agrees that, subject to any rights of appeal which the Subcontractor may have in Victoria or to the High Court of Australia, a judgment or order of a Victorian court in connection with this Deed:
(a) is conclusive and binding on the Subcontractor; and
(b) may be enforced against the Subcontractor in the courts of any other jurisdiction.
13.4 Agent for Service
The Subcontractor agrees that service of process in any proceedings in the courts of Victoria relating to this Deed will be sufficiently served on it by service (in any manner permitted by law) on [ ] at [ ], Victoria, or at another address or on another agent for service at the address in Victoria, as the Subcontractor last notified the other parties before that service to be its agent for service (or to be the current address for service on that agent).
This clause does not affect service of process on the Subcontractor in any other manner permitted by law.
14. Assignment
(a) The Principal may assign or transfer all or any of its rights or obligations under this Deed to any person to whom the Principal has assigned or transferred all or any of its rights or obligations under, and in accordance with, the Project Agreement.
(b) The Contractor and Subcontractor may not assign or transfer all or any of their rights or obligations under this Deed without the prior written consent of the Principal.
(c) The Contractor and Subcontractor will provide all assistance reasonably required by the Principal (including entering into agreements), in order for the Principal to exercise its rights under paragraph (a) of this clause.
15. Attorneys
Each attorney executing this Deed states that it has no notice of the revocation of the power under which the attorney executes this Deed.
16. Counterparts
This Deed may be executed in any number of counterparts and all such counterparts taken together will be deemed to constitute one and the same instrument.
Executed as a deed.
[Appropriate execution clauses to be inserted]
54
The Schedule – Details for Notices (clause 12)
Insert address for delivery for each party
Name: |
Principal’s Representative, Transport Ticketing Authority |
|
|
Address: |
Level 38, 55 Collins Street, Melbourne, Victoria |
|
|
Fax: |
+61 3 9651 7578 |
|
|
Name: |
[Contractor] |
|
|
Address: |
[ ] |
|
|
Fax: |
[ ] |
|
|
Name: |
[Subcontractor/Supplier] |
|
|
Address: |
[ ] |
|
|
Fax: |
[ ] |
55
|
Annexure A – Deed of Novation (clause 3.1(d)(i)) |
Novation Deed
Keane Australia Micropayment Consortium Pty Ltd
ACN 114 334 600
Original Contractor
Public Transport Ticketing Body trading as Transport Ticketing Authority
73 595 242 024
Substituted Contractor
[Insert name of subcontractor/supplier]
[Insert ABN of subcontractor /supplier]
Subcontractor
56
Novation Deed made at on
Parties Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600 of Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria (“Original Contractor”)
Public Transport Ticketing Body trading as Transport Ticketing Authority ABN 73 595 242 024 of Level 38, 55 Collins Street, Melbourne, Victoria (“Substituted Contractor”)
[Insert name of subcontractor/supplier] ABN [Insert ABN of subcontractor/supplier] of [insert address] (“Continuing Sub-contractor”)
Recitals
A. The Original Contractor and the Continuing Sub-contractor are parties to a Subcontract dated [insert date] (“Subcontract”).
B. The Original Contractor, the Substituted Contractor and the Continuing Sub-contractor are parties to the Direct Agreement dated [insert date] (“Deed of Covenant”).
C. Clause 3.1 of the Direct Agreement envisages that the Substituted Contractor may, on the occurrence of certain events, at the option to the Substituted Contractor, replace the Original Contractor as a party to the Subcontract.
D. The Original Contractor has agreed to enter into this Deed for substitution of the Substituted Contractor for the Original Contractor as a party to the Subcontract on the terms and conditions contained in this Deed, in consideration of the Substituted Contractor accepting in all respects the obligations of the Original Contractor under the Subcontract from the Effective Date.
This deed provides
1. Definitions and interpretation
1.1 Definitions
In this Deed:
“Effective Date” means [insert date] [Note: the date of the Novation Notice will be inserted].
1.2 Interpretation
In this Deed:
(a) headings are for convenience only and will not affect the interpretation;
and unless the context indicates a contrary intention:
(b) “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership, a trust and Governmental Agencies;
(c) a reference to party includes that party’s executors, administrators, successors, permitted substitutes and assigns, including persons taking by way of novation;
57
(d) a reference to a document (including this Deed) is to that document as varied, novated, ratified or replaced from time to time;
(e) a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
(f) words importing the singular will include the plural (and vice versa) and words denoting a given gender will include all other genders;
(g) a reference to a clause or Schedule is a reference to a clause of or Schedule to this Deed, and references to paragraphs are references to paragraphs within the clause of this Deed in which they are situated, in each clause unless expressly stated otherwise;
(h) a reference to a “day” is a reference to a calendar day (and includes weekends and public holidays);
(i) where any word or phrase is given a defined meaning any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning;
(j) the word “including” or any other grammatical form of that word is not a word of limitation; and
(k) a reference to “$” or “dollar” is to Australian currency.
2. Novation
2.1 Subcontract
Subject to clause 2.2 and with effect from the Effective Date:
(a) the Substituted Contractor is substituted for the Original Contractor as a party to the Subcontract and will perform the terms and conditions of the Subcontract;
(b) the Substituted Contractor will be bound by the Subcontract and be entitled to the benefit thereof as if the Substituted Contractor was a party to the Subcontract in lieu of the Original Contractor; but will not be entitled to the benefit of, or to exercise any rights of the Original Contractor that arise out of a breach of the Subcontract or other liability on the part of the Continuing Sub-contractor under the Subcontract occurring or arising prior to the Effective Date; and
(c) the Original Contractor is released and discharged from all obligations and liabilities, and from all claims (whether for costs, damages, fees, expenses or otherwise), arising under the Subcontract.
2.2 Liability before Effective Date
Notwithstanding clause 2.1, the Original Contractor is not released, relieved or discharged from liability for and the Substituted Contractor will not assume any liability accrued under the Subcontract before the Effective Date, for any breach which the Original Contractor may have committed before the Effective Date of any provision of the Subcontract.
58
3. Affirmation of the Subcontract
The Subcontract will be read and construed subject to this Deed, and in all other respects the provisions of the Subcontract are ratified and confirmed, and, subject to the variation and novation contained in this Deed, the Subcontract will continue in full force and effect.
4. Stamp duty and costs
The Original Contractor:
(a) must pay all stamp duties and any related fines and penalties in respect of this agreement, the performance of this agreement and each transaction effected by or made under or pursuant to this agreement;
(b) must indemnify each other party against any liability arising from failure to comply with clause 4.1(a); and
(c) is authorised to make any application for and retain the proceeds of any refund due in respect of stamp duty paid under this clause.
5. Further acts
Each party will promptly do and perform all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that party) required by law or reasonably requested by any other party to give effect to this Deed.
6. Jurisdiction
6.1 Governing Law
This agreement is governed by and will be construed according to the law applying in Victoria.
6.2 Jurisdiction
Each party irrevocably:
(a) submits to the non-exclusive jurisdiction of the courts of Victoria, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to this Deed; and
(b) waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, where that venue falls within clause 6.2(a).
6.3 Enforcement
The Continuing Sub-contractor agrees that, subject to any rights of appeal which the Continuing Sub-contractor may have in Victoria or to the High Court of Australia, a judgment or order of a Victorian court in connection with this deed:
(a) is conclusive and binding on the Continuing Sub-contractor; and
(b) may be enforced against the Continuing Sub-contractor in the courts of any other jurisdiction.
59
6.4 Agent for Service
The Continuing Sub-contractor agrees that service of process in any proceedings in the courts of Victoria relating to this deed will be sufficiently served on it by service (in any manner permitted by law) on [ ] at [ ], Victoria, or at another address or on another agent for service at the address in Victoria, as the Continuing Sub-contractor last notified the other parties before that service to be its agent for service (or to be the current address for service on that agent).
This clause does not affect service of process on the Continuing Sub-contractor in any other manner permitted by law.
7. Counterparts
This Deed may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes an original of this Deed, all of which together constitute one deed.
Executed as a deed.
60
Schedule 26
Repricing Schedule
The following schedule sets out the items of Work, for which the Contractor must give to the Principal, as a condition precedent to the Completion of the NTS Solution Requirements Phase, any proposed reduction to the Capital Contract Price and the Service Charges where relevant in accordance with Clause 11.4.
Item of Work |
|
Pricing Template |
|
Amount reflected in |
|
Amount reflected in |
|
Amount reflected |
|
Amount reflected |
|
Pre-Implementation Costs |
|
Capital – Initial (Metro): row 50 |
|
$[**] |
|
[**] |
|
[**] |
|
[**] |
|
Equipment Pricing |
|
|
|
|
|
|
|
|
|
|
|
• Ticket Office Terminal (TOT) |
|
Capital – Initial (Metro): row 232 |
|
$[**] |
|
[**] |
|
[**] |
|
[**] |
|
• Ticket Office Terminal mobile (TOT-m) |
|
Capital – Initial (Metro): row 241 |
|
$[**] |
|
[**] |
|
[**] |
|
[**] |
|
• Secondary Agent Terminals |
|
Capital – Initial (Metro): row 743 |
|
$[**] |
|
[**] |
|
[**] |
|
[**] |
|
• Metropolitan Primary Agent Terminal (MPAT) |
|
Capital – Initial (Metro): row 725 |
|
$[**] |
|
[**] |
|
[**] |
|
[**] |
|
• Primary V/Line Agent Terminal (VPAT) |
|
Capital – Initial (Metro): row 734 |
|
$[**] |
|
[**] |
|
[**] |
|
[**] |
|
• Handheld Devices |
|
Capital – Initial (Metro): row 691 |
|
$[**] |
|
[**] |
|
[**] |
|
[**] |
|
Device Installation Costs |
|
Capital – Initial |
|
$[**] |
|
[**] |
|
[**] |
|
[**] |
|
Device Maintenance |
|
Services –Operations (Metro) row: 304 |
|
[**] |
|
$[**] |
|
[**] |
|
[**] |
|
Hosting/DR |
|
Services-Operations (Metro Row:58 Services-Delivery (Metro) Row:46 |
|
[**] |
|
$[**] |
|
$[**] |
|
[**] |
|
Cash Collection |
|
Services –Operations (Metro) row: 382 |
|
[**] |
|
[**] |
|
[**] |
|
Year ended 30 June[**]2007 – $[**]2008 – $[**]2009 – $[**]2010 – $[**]2011 – $[**]2012 – $[**] |
|
Cardholder Support Services |
|
Services – Operations (Metro) row: 388 |
|
[**] |
|
[**] |
|
[**] |
|
Year ended 30 June: 2007 – $[**]2008 – $[**]2009 – $[**]2010 – $[**]2011 – $[**]2012 – $[**] |
|
Long Term Variations |
|
|
|
|
|
|
|
|
|
[**] |
|
61
Schedule 27
Deed of Assurance
(Clause 30.17)
THIS DEED is made the day of 2005
BETWEEN [Insert details of the owner of the Licensed Intellectual Property] (the “Licensed IP Owner”)
AND Public Transport Ticketing Body trading as Transport Ticketing Authority ABN 73 595 242 024 of Level 38, 55 Collins Street, Melbourne, Victoria (the “Principal”)
AND Keane Australia Micropayment Consortium Pty Ltd ACN 114 334 600 of Level 50, Bourke Place, 600 Bourke Street, Melbourne, Victoria (the “Contractor”)
RECITALS
A. The Principal has entered into, or may in future enter into the New Ticketing Solution Project Agreement (the “Project Agreement”) with the Contractor.
B. Part of the Contractor’s obligations under the Project Agreement include the licensing of the Intellectual Property described in Schedule 1 (all and every part of which is referred to as the “Licensed Intellectual Property”) to the Principal, with the right to sublicense (the “Project Agreement Licence”).
C. The Licensed IP Owner owns all Intellectual Property in the Licensed Intellectual Property, and has authorised the Contractor to grant the Project Agreement Licence to the Principal.
D. By this Deed, the Licensed IP Owner assures the Principal that the Principal may continue exercising its rights under the Project Agreement Licence, notwithstanding any change affecting the Licensed IP Owner’s direct or indirect relationship with the Contractor.
THIS DEED PROVIDES
1. The Licensed IP Owner warrants that it owns all Intellectual Property in the Licensed Intellectual Property and is entitled to enter into this Deed.
2. If any circumstances occur whereby the Licensed IP Owner’s direct or indirect relationship with the Contractor concerning the Licensed Intellectual Property changes, or is likely to change, then:
62
(a) the Licensed IP Owner and the Contractor shall immediately notify the Principal in writing, which notice shall describe, with a reasonable level of detail, the nature of those circumstances and their effect or likely effect on the Principal; and
(b) notwithstanding those circumstances, the Principal may continue exercising its rights under the Project Agreement Licence as if such circumstances do not occur, or as the case requires, had not occurred.
Such circumstances include termination of any licensing arrangement or circumstances involving an inability to pay debts.
3. The Licensed IP Owner shall ensure that any entity which succeeds to, is assigned or otherwise becomes the owner of, any of the Intellectual Property in respect of the Licensed Intellectual Property agrees to be bound by the terms of this Deed as if it were named in this Deed as the Licensed IP Owner.
4. The Licensed IP Owner shall at its cost and expense immediately, on demand by the Principal, perform all acts and execute all agreements, assurances and other documents and instruments as the Principal reasonably requests to perfect or give effect to the rights and powers of the Principal created or intended to be created by this Deed.
5. This Deed shall be governed by the laws in force in the State of Victoria, Australia.
6. The Licensed IP Owner irrevocably submits to and accepts, generally and unconditionally, the non-exclusive jurisdiction of the courts and appellate courts of Victoria with respect to any legal action or proceedings which may be brought at any time relating in any way to this Deed.
7. The Licensed IP Owner irrevocably waives any objection it may now or in the future have to the venue of any action or proceeding, and any claim it may now or in the future have that any action or proceeding has been brought in any inconvenient forum.
8. The Licensed IP Owner agrees that, subject to any rights of appeal which the Licensed IP Owner may have in Victoria or to the High Court of Australia, a judgment or order of a Victorian court in connection with this Deed is conclusive and binding on the Licensed IP Owner and may be enforced against the Licensed IP Owner in the courts of any other jurisdiction.
9. The Licensed IP Owner irrevocably appoints the Contractor as its agent to receive service of process or other documents in any action in connection with this Deed and irrevocably agrees that service on the Contractor as agent will be sufficient service on it. [This paragraph may be deleted if the Licensed IP Owner has its registered office in Australia.]
10. Each warranty in this Deed is a continuing warranty for the benefit of the Principal.
11. The Principal may at any time assign or otherwise transfer all or any part of its rights under this Deed to the entity the Principal assigns its rights under the Project Agreement to, under clause 45 of the Project Agreement.
12. For the purposes of this Deed “Intellectual Property” means all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trade marks (including service marks), registered designs, confidential information (including trade secrets and know-how), circuit layouts and all other rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields.
EXECUTED as a Deed
[Insert appropriate execution clauses]
63
SCHEDULE 1:
[insert a description of the component of the Licensed Intellectual Property (as defined in the Project Agreement) in which the Licensed IP Owner owns the Intellectual Property]
64
Schedule 28
Business Continuity Plan
I. Completion Process
The business continuity strategy document included in this Schedule 28 is incomplete and represents an outline of the Business Continuity Plan that the Contractor must prepare and implement in accordance with clause 38.4 of the agreement.
The Contractor must undertake the following process to complete a draft of the Business Continuity Plan, prior to the Phase Date for the NTS Solution Requirements Phase, to the reasonable satisfaction of the Principal:
• the Contractor must develop a Business Continuity Plan which must be consistent with any business continuity plan of the Principal and reasonably acceptable to the Principal.
• the Contractor must prepare and submit its proposed draft Business Continuity Plan to the Principal for its approval within 60 Business Days after the Commencement Date; and
• the Principal may, within 10 Business Days of receipt of the Contractor’s proposed draft Business Continuity Plan, advise the Contractor whether or not it considers such plan to be in accordance with this agreement, including the Requirements Document and the Solutions Documentation, or reject it and provide its comments (if any). If the proposed draft Business Continuity Plan is rejected, the Contractor must promptly, and in any event within 10 Business Days, submit to the Principal a redraft of the plan and such draft will be dealt with by the Principal as if it were the initial draft submitted. The Contractor must take into account any comments of the Principal in finalising the Business Continuity Plan.
65
Schedule 29
Core Services Performance Requirements
(Clause 28)
1. Completion Process
1.1 Generally
Except where expressly specified otherwise, the Contractor and the Principal have agreed that the principles and requirements set out in Schedules 29, 30 and 31 and the annexure to those schedules (the Performance Principles Document and Schedule 42 - Design Targets) are the minimum position with respect to the performance regime and design target regime to be completed during the NTS Solution Requirements Phase. In particular:
• the Contractor and the Principal have agreed that the final regime will be no worse than the regime currently represented by the principles and requirements set out in Schedules 29, 30 and 31 (including the annexure to those schedules); and
• in the event that the performance regime has not been completed by the Principal and the Contractor or, if referred to the Expert, determined by the Expert by the time any of the Services to which the regime applies are first provided by the Contractor or any Devices are first put into revenue service (as defined in Part 1 of Schedule 31) then the performance requirements currently set out in Schedules 29, 30 and 31 (including the annexure to those schedules), and in particular the Performance Indicators (“PIs”) for the Initial Services and Core Services set out in sections 2 and 3 of the Performance Principles Document and the agreed PIs for Customer Performance, being the availability benchmarks set out in section 2.14 of Schedule 31, will apply until such time as the regime is agreed or determined.
Schedule 29 and Schedule 30 will be completed as a Category 3 matter based on:
1. the Performance Indicators (PIs) that will apply to the performance of the Core Services by the Contractor (Core Services Performance) and the performance of the Initial Services by the Contractor (Initial Service Performance) as set out in sections 2 and 3 of the Performance Principles document annexed to this schedule, subject to the process set out below;
2. the process and principles set out below; and
3. where relevant, Schedule 31.
Amendments to the Project Agreement will also be made to reflect that the Services Charges will be subject to adjustments in accordance with the final form of this Schedule 29 and Schedule 30.
In completing Schedule 29 and Schedule 30 the following principles shall apply:
• The Principal and the Contractor have agreed that the performance of the Core Services and Initial Services shall be subject to a points based measurement system. This system has been designed to encourage the Contractor to provide the Initial Services and Core Services at high levels of performance, while identifying the relative importance of each measurable PI.
66
• Each PI will accrue points as specified where that PI has not been met, as set out in sections 2 and 3 of the Performance Principles. These points accrue to an aggregate number of points for the Core Services and Initial Services on a monthly basis. The aggregate points accrued across both the Initial Services and the Core Services above the Points Threshold Amount will be used to calculate the adjustment to the Service Charges that are payable. The total points are converted by the Points Conversion Factor in order to calculate the adjustment to the Service Charges. The Points Conversion Factor equals: 1.00 (i.e. 1 point is equal to AUD $1.00) Subject to Section 1.2 below, the Points Threshold Amount (for both Core Services Performance and Initial Services Performance) will be 500 points ($500), reset on a monthly basis.
1.2 Specific Process
At Risk Amounts (amount by which the Services Charges may be adjusted) relating to the performance regime will initially be [**]% for Customer Performance (device availability and Core Services supporting device availability) regime (schedule 31) and [**]% for Initial Services Performance and Core Services Performance (other than those supporting device availability) of the average Services Charges (as further set out in section 2.7(d) of Schedule 31), subject to the following paragraph and the bullet points set out in the rest of this section.
Prior to the Phase Date for the NTS Solution Requirements Phase the Principal or the Contractor may agree to further refine Schedule 29, Schedule 30 and Schedule 31 (required as changes to 29 & 30 may impact on 31, however only insofar as creating additional PIs for insertion into Schedule 31), by proposing amendments in relation to the performance regime. Amendments to Schedule 29, Schedule 30 and Schedule 31 may be proposed as follows:
Schedule 31 contains agreed principles between the Principal and the Contractor. If, as a result of changes to Schedules 29 and 30 arising from the process set out below, changes are proposed to Schedule 31, the Principal may consider these changes but is not bound or obliged in any way to accept such changes. The Contractor acknowledges that the principles set out in Schedule 31 are agreed between the parties and it is not the intention of either party to change those principles as a result of the process set out below, except to insert additional PIs which do not alter the existing PIs contained within Schedule 31.
• Performance matrices that support the business outcomes will be developed during the NTS Solution Requirements Phase by the Contractor, in conjunction with the TTA. The steps include:
1. the starting point for the development of Schedules 29 and 30 are the PIs set out in Sections 2 and 3 of the Performance Principles;
2. the Contractor may in the course of its role in the development of the performance matrices refer to its own Board of Experts (Kamco Board of Experts);
3. the matrices will be provided to the Principal for comment prior to the Kamco Board of Experts consulting in relation to the performance matrices;
4. the Contractor after consulting with the Kamco Board of Experts will then propose appropriate changes to the PIs to be inserted into Schedules 29, 30 and 31, where the Contractor considers that, as a result of this process, a more appropriate Performance Indicator or measure has been identified;
5. the Principal will assess the proposed amendments in light of the relevant business outcomes and the overall performance regime (including the PIs set
67
out in the Performance Principles) and either agree amendments to the PIs or not agree the amendments and refer to the Expert for determination in accordance with clause 49.5 of this agreement, except that the determination of the Expert will be final and binding upon each party and clauses 49.5(l) and 49.5(m) shall not apply. The Principal will not be bound in anyway to accept or reject the proposed amendments of the Kamco Board of Experts; and
6. upon agreement or determination of the amendments by the Expert, the At Risk Amount for Initial Services Performance and Core Services Performance will increase to [**]%.
The intention of this clause is not to reduce the total aggregate value of currently identified PI’s rather it is to allow for performance matrices to be developed by the Contractor and amendments to the performance regime proposed by the Contractor for the Principal’s consideration in light of the business outcomes identified and confirmed during the NTS Solution Requirements Phase of the NTS Project.
• As part of the process discussed above, either the Contractor or the Principal may propose amendments to the performance measures including:
• measurement levels;
• Payment Reductions, such as removal, increase or decrease;
• removal of existing performance measures (PIs) or creation of new performance measures; and
• changing the structure of the PIs based on business outcomes or continuous improvement.
Such proposals for amendment will be considered and agreed where it is demonstrated that all relevant and required PIs (including the PIs currently set out in the Performance Principles) are at least actively monitored, and the existing financial and performance outcomes for the PIs in aggregate are maintained.
2. Performance Principles
• Core Services Performance and Initial Services Performance will apply as follows:
• During the period commencing on the date of the first provision of Delivery Services to the Completion Date for NTS Operational Proving Phase, the Core Services Performance PIs and Initial Service Performance PIs will apply. During this period, the Points Threshold Amount of 500 points per month, which applies to adjustments to the Services Charges arising from Initial Services Performance and Core Services Performance in aggregate, will be increased by a factor of 100% to 1,000 points per month. Adjustments during this period will be made to the Delivery Services Charges or Services Charges, depending on which is being paid at the relevant point in time.
• After the Completion Date for NTS Operational Proving Phase, Core Services Performance and Initial Services Performance will apply and the Threshold level will revert to 500 points per month.
• The Contractor and the Principal have agreed that the following principles are fundamental to the Principal and must as a minimum form part of the final performance regime which is agreed between the parties:
68
• the Contractor is responsible for the collection and processing of all data available for collection for the operating day;
• all available data must be delivered to the central processing system each day by the agreed cut-off time and must be processed in the appropriate Settlement window;
• all available data received by the central processing system must be 100% accurate and 100% complete;
• any data exceptions identified are to be reported, investigated and if appropriate, actioned, within 24 hours of receipt by the central processing system;
• cash reconciliation will occur on the next business day;
• all cash received shall be counted (processed) and banked by the next business day in accordance with TTA requirements. The Contractor must ensure all collected cash is banked accordingly;
• change floats must be replenished according to the operational needs of the Operator and in accordance with the Operator’s delivery schedule and the Contractor must ensure that change floats for booking office are never out of cash if ordered in accordance with the Operator’s delivery schedule;
• Network Availability – industry standard of 99.999%; and
• Disaster Recovery – the Contractor must ensure that the NTS has an expeditious ‘return to service’ (i.e. cutover to back up central processing system) in the order of 15 minutes. The Contractor must ensure that its Service Level Agreement with its Data Centre services supplier allows for an expeditious ‘return to service’ (i.e., cutover to back up central processing system) in the order of 15 minutes.
• Proposals where there is a change in risk allocation may have a financial impact to the parties. In such cases, agreement to the proposed amendment will be conditional on the parties agreeing the price changes (if any) resulting from the proposed amendments.
• Any proposed amendments to PIs and Device performance measures offered by the Contractor must be capable of measurement. The Principal and the Contractor shall cooperate to ensure that all performance measures are able to be measured in a manner that will provide transparent analysis and data relating to the performance of the Solution.
• From the time that the Customer Performance (device availability) PIs in Schedule 31 apply, the Contractor will monitor and track individual device performance and identify and if appropriate, replace any devices or components of such devices, that fail to achieve consistent availability performance.
• Entry / Exit Points (“EEPs”) performance is critical to customer service. Accordingly the return to service of EEPs is paramount to the Principal. Set out below are target times relating to EEP return to service.
69
Target Entry/Exit Points (EEP) Return to Service Time
Location |
|
Return to Service |
|
Return to Service |
|
Return to Service |
CBD and High Usage Locations |
|
30 minutes |
|
45 minutes |
|
60 minutes |
Metro and Regional Town Centres (Bus/V/Line) |
|
30 minutes |
|
45 minutes |
|
60 minutes |
Regional Coach V/Line Remainder |
|
30 minutes |
|
45 minutes |
|
60 minutes |
• For individual devices (not EEPs), there is an implied aggregate effort (in terms of time and resources) required to meet PIs 26 to 41 of the Performance Principles (which specifically relate to response and repair times of devices). That aggregate will be used as the base for the calibration and finalisation of the return to service times in the following table. In particular, the implied amount of effort required to meet the response times in the final form of the table must be equivalent to the implied effort required to meet current PIs 26 to 41. Prior to the finalisation of the final form of the table, the times within this table will be considered as targets:
Target Individual Device Return to Service Time
Location |
|
Return to Service |
|
Return to Service |
|
Return to Service |
CBD and High Usage Locations |
|
30 minutes |
|
60 minutes |
|
90 minutes |
Metro and Regional Town Centres (Bus/V/Line) |
|
60 minutes |
|
90 minutes |
|
120 minutes |
Regional Coach V/Line Remainder |
|
90 minutes |
|
120 minutes |
|
180 minutes |
The calibration and application of the above table shall exclude those remote locations which are not regional centres. The parties will agree as a separate matter response times for remote locations which are not regional centres.
• For the purposes of the Performance Regime exclusively, the concept of a transit service day will be introduced to recognize the operational reality that there are periods of time, generally after midnight and prior to 4am, when there are no operational services across the Solution. The term transit service day refers to the time in which transport services are operational. It is noted that this term may vary according to the location and transport mode. The definition of transit service day will be determined during the NTS Solution Requirements Phase and may be amended by the Principal for each mode, as and when required.
Periods of time outside the transit service day will not incur a performance adjustment by the Contractor. For example only:
70
Transit Service Day |
|
Outside Transit Service Day |
|
Next Transit Service |
Return to service concept applies |
|
Penalty free period |
|
Return to Service concept applies |
In the above example, if a device goes out of service at 10pm of an evening at a Regional Coach location (and say for instance that 2 hours is the allowed Return to Service time for that location)) the Contractor effectively has until the commencement of the next transit service day to return the device to operational service. These principles apply to Schedules 29, 30 and 31.
• The principles within Schedules 29, 30 and 31 are premised on access being available and granted to the Contractor in a timely manner.
The Performance Principles document is annexed to Schedule 31.
71
Schedule 30
Initial Services Performance Requirements
This schedule will be completed in accordance with the completion process set out in schedule 29.
72
Schedule 31
Customer Performance Requirements
(Clause 28)
1. Completion Process
Except where expressly specified otherwise, the Contractor and the Principal have agreed that the principles and requirements set out in Schedules 29, 30 and 31 and the annexure to those schedules (the Performance Principles Document, CDA and Schedule 42 - Design Targets) are the minimum position with respect to the performance regime and design target regime to be completed during the NTS Solution Requirements Phase. In particular:
• the Contractor and the Principal have agreed that the final regime will be no worse than the regime currently represented by the principles and requirements set out in Schedules 29, 30 and 31 (including the annexures to those schedules); and
• in the event that the performance regime has not been completed by the Principal and the Contractor or, if referred to the Expert, determined by the Expert by the time any of the Services to which the regime applies are first provided by the Contractor or any Devices are first put into revenue service (as defined below) then the performance requirements currently set out in Schedules 29, 30 and 31 (including the annexure to those schedules) and in particular the Performance Indicators (“PIs”) for the Initial Services and Core Services set out in parts 2 and 3 of the Performance Principles document and the agreed PIs for Customer Performance, being the availability benchmarks set out in section 2.14 of this schedule, will apply until such time as the regime is agreed or determined.
The performance regime that will apply to the operation of the Solution and to the provision of the Initial and Core Services will be completed as a Category 3 matter. Schedules 29 and 30, relating to the Initial Services Performance Requirements and Core Services Performance Requirements, will be completed in accordance with the process set out in Schedule 29, recognising that changes to those Schedules may result in changes to this Schedule 31. Changes to Schedule 31 will be limited to the creation of PIs additional to those existing PIs within Schedule 31.
This Schedule sets out the process and principles which will apply to the completion of the performance regime and design targets generally including with respect to the Customer Performance PIs (the device availability benchmarks set out in part 2.14 of this schedule).
Part 2 of this schedule sets out the principles which have been agreed between the Principal and the Contractor with respect to the performance regime which will be completed and documented (both by way of completion of schedules 29, 30 and 31, amendments to the Project Agreement and any other documentation required) during the NTS Solution Requirements Phase. In completing and documenting the performance regime, including this Schedule 31, the following additional principles shall also apply:
• Customer Performance (device availability) will apply as follows:
• During the period commencing on the first date that an NTS Solution Device is placed in revenue service in the existing automated ticketing system operated by Onelink Transit Systems Pty Limited (“AFC System”) and ending on the date that the NTS Device is placed in Smartcard transit revenue service in the NTS Solution, the performance of such Devices as part of the AFC System shall be required as a minimum to meet the Customer Defined Availability (CDA) levels of the current ticketing system, as set out in the Service Contract between the TTA and Onelink Transit
Systems Pty Ltd as amended and restated on 21 October 2002 and as further amended or varied since that time up to the date of this agreement. The CDA levels of the AFC System as at the date of this agreement are set out in Annexure 2. Revenue service means the point where equipment or services related to the Solution are used operationally or for operational purposes either in the AFC System or in the Solution.
• During the period commencing on the first date that a NTS Device is placed in Smartcard transit revenue service in the Solution to the Completion Date of the NTS Operational Proving Phase, the Customer Performance PIs will apply to such Devices as they are in transit revenue service.
• During the period commencing on the first date that an NTS Solution Device is placed in revenue service in the AFC System and ending on the Completion Date of the NTS Operational Proving Phase , the Threshold Level of $[**] per month will be increased by a factor of [**]% to $[**] per month. Adjustments will be made to the Delivery Services Charge or Services Charge depending on which is being paid at the relevant time.
• After the Completion Date of NTS Operational Proving Phase, the Customer Performance PIs will apply and the Threshold Level will revert to $[**] per month.
• Undetected Faults - If a deviation in transaction volume for any device varies by [**]% for a given period the Contractor will:
• identify if the deviation is due to a undetected fault. If so standard Customer Performance availability calculations will apply; and
• if no fault is present, advise the Principal of the change in device usage pattern.
• Based on the principles in this schedule, specific additional areas to be drafted into final form for this schedule and other parts of this agreement include (but are not limited to):
• all drafting required to reflect the matters set out in Part 2 of this Schedule;
• minimum obligation of the Contractor to perform better than current ticketing device equivalent availability performance in the AFC System, by a margin of a minimum [**]% reduction in downtime from the current AFC System CDA performance figures as specified in Annexure 2;
• formulae relating to the adjustment of Services Charges based on the Contractor’s performance measured against the Initial Services Performance Requirements, Core Services Performance Requirements and Customer Performance Requirements;
• definition of transit service day by mode to be agreed between the parties; and
• design targets – the Design Targets set out in the Schedule 42 annexed to this schedule 31 provide key indicators around device interactions that the Principal believes to be critical. The Contractor will be required to demonstrate for all phases up to and including NTS Solution Final Back Office Release Phase that the Devices can meet these Design Targets and will be required to achieve these Design Targets during testing. Obligations with respect to these requirements will be inserted into the agreement, including that the design targets will form part of the Phase Deliverables for relevant Phases.
Prior to the Completion Date of the NTS Solution Requirements Phase the Principal and the Contractor agree to adjust the design targets set out in Schedule 42 where the Contractor can clearly demonstrate that the operating environment identified during the NTS Solution Requirements Phase is materially different to the operating environment which the Contractor reasonably anticipated would apply to the Solution as at the date of this agreement and, that solely as a result of the difference in the operating environment, it is practically impossible to reach certain design targets.
2. Agreed Performance Principles [Schedules 29, 30 & 31]
2.1 Obligations to Maintain Performance Levels
The Contractor must maintain the performance levels set out in this schedule and schedules 29 and 30 (as they are finally completed). In order for this to be measured, the Contractor must provide a robust and reliable means of monitoring and reporting to the Principal in relation to the Performance Requirements, and illustrate its understanding of these measurement requirements.
The Contractor must provide a detailed plan that describes the methodology of capturing and processing the data to be used to measure the Initial Services Performance Requirements, Core Services Performance Requirements and Customer Performance Requirements. This plan is subject to review and approval by the Principal. The Contractor may add Devices or increase system redundancy levels such as back-up data servers or additional Distribution Devices in order to meet or exceed Customer Performance requirements. Such Devices must be provided at no additional cost to the Principal.
In the event that Solution Devices do not meet these requirements, the Contractor must identify and implement remedial action, including, as necessary, modification of the Devices, on-site engineering services, on-site technical services, or other related action at no additional cost to the Principal. The Contractor will be required to prepare various annual reporting plans in accordance with the Requirements Document.
These annual plans are in addition to the reporting requirements for measuring performance contained in this document.
2.2 At Risk Amount
Subject to the process set out in Schedule 29, the Contractor agrees that the At Risk Amount is calculated in accordance with clause 2.7(d) and is subject to the Monthly Cap calculated in accordance with clause 2.7(d). As discussed below, the Principal may withhold the monthly payment where the performance reduction amounts exceed the Monthly Cap.
2.3 Service Charges
As discussed below, where the adjustment to the Services Charges for a particular month reaches the maximum At Risk Amount of the Monthly Cap, the Principal may withhold the adjusted monthly Service Charges (the Service Charges less the adjustments in the amount of the Monthly Cap) until the Contractor has provided and complied with the Corrective Action Plan submitted in accordance with the Project Agreement, and in any event until the payment date for the following monthly Service Charges after the Contractor has complied with the Corrective Action Plan. Where the payment of the adjusted monthly Service Charges is withheld and the Contractor subsequently complies with the Corrective Action Plan (in other words restores performance to a level which does not cause the At Risk Amount to be exceeded), the adjusted Service Charges withheld will be paid.
2.4 Threshold Amounts
Subject to Part 1 of this Schedule, for Customer Performance (Device) there is a threshold amount of $500 per month. Subject to Schedule 29, for Services Performance (Core Services and Initial Services), the Threshold level is 500 points per month, reset each month.
2.5 Bonuses
The Principal wishes to encourage consistent achievement of the Performance Requirements, including the Customer Performance device availability regime and the Core Services Performance Requirements and Initial Services Performance Requirements. The Principal considers this measure better correlates to the Contactor’s control, as opposed to historical bonus measures such as transport growth, which is primarily influenced by a number of factors outside of the Contractor’s control.
In acknowledging this the following bonuses will be available to the Contractor in recognition of certain NTS targets being achieved:
1. Smartcard activation and use bonus – scalable up to $[**][**][**] may be accrued based on targets achieved;
2. farebox growth bonus – $[**] lump sum where [**]% real growth in Farebox revenue is achieved during the Implementation phases; and
3. performance bonus – up to $[**] each operating year where both Customer Performance PIs and the Core Service and Initial Service PIs are met consistently.
The way in which these bonuses will operate is set out in more detail in the remainder of this section:
(a) Performance Bonus
The Contractor’s performance will be monitored monthly. Where the Contractor has achieved the performance levels required for the highest level of Services Charge (ie. there are no adjustments to the Services Charges either as a result of the availability of Devices or Services Performance), for a period of six (6) consecutive months, the Contractor will receive a consistency based bonus of $[**]. From that point the bonus will be paid as a monthly performance bonus of $[**] for as long as the required performance levels are maintained. Accordingly the Contractor has the potential to receive $[**][**][**] in consistency bonuses each year. The bonus is in nominal dollars (that is, it will not be adjusted for CPI).
Where the Contractor is receiving the monthly bonus, and fails to meet the performance levels required for the highest level of Service Charges in a subsequent month, the mechanism is reset such that the Contractor must achieve a further six (6) consecutive months of the required performance levels (and receive the bonus) before becoming entitled to the rolling monthly bonus.
(b) Smartcards Activation and Use Bonus
The Principal has recognised that the Contractor will not completely control the uptake / issue of Smartcards by Customers. However the Contractor’s performance of services such as Smartcard Base Management Services, Distribution Services and Cardholder Support Services will materially influence the level of Smartcard issuance. On this basis the Principal is incentivising the Contractor during the Implementation by way of a once off bonus. This material influence is of major
importance to the Principal. The Principal may independently verify the quantum of cards on issue.
The calculation of Smartcard issuance will exclude Operators’ staff and free passes. Issuance will encompass both activation and having been used at least once.
(i) NTS Regional and Metropolitan Implementation Completion Phase- Regional
The Contractor will be incentivised to assist the Principal in maximising the number of cards on issue during the year following the commencement of NTS Regional and Metropolitan Implementation Completion Phase. If the number of Smartcards issued in regional areas up to the end of 12 months immediately following the period 15 months from the commencement of this agreement, is less than [**] then no incentive will be paid. Alternatively, on an aggregate basis, where the Contractor has issued cards in excess of [**] in regional areas, a bonus will be paid at $[**] per card over and above this number.
The bonus is limited to a maximum amount of $[**] payable in relation to the 12 months immediately following the period 15 months from the commencement of this agreement and will be payable at the end of those 12 months. Smartcards issued for regional areas and counted towards the Regional Bonus will not be counted for metropolitan areas below.
(ii) NTS Regional and Metropolitan Implementation Completion Phase - Metropolitan
The Contractor will be incentivised to assist the Principal in maximising the number of cards on issue during the year following the commencement of NTS Regional and Metropolitan Implementation Completion Phase. If the number of Smartcards issued in metropolitan areas up to the end of 12 months immediately following the period 15 months from the commencement of this agreement is less than [**] then no incentive will be paid. If the number issued in metropolitan areas exceeds [**], the bonus will be paid at $[**] per card for each card over and above this number.
The bonus is limited to a maximum amount of $[**] payable in relation to the 12 months immediately following the period 15 months from the commencement of this agreement, and will be payable at the end of those 12 months. Smartcards issued for metropolitan areas will not be counted for regional areas above.
(c) Farebox Incentive (Once Only)
The Contractor will receive an incentive based on the total farebox for metropolitan services. The Contractor will receive a bonus of $[**] if the farebox growth remains at or above the long term real growth level of [**]% per annum. This bonus will be a lump sum payable based on 12 calendar months commencing from the period 15 months from the commencement of this agreement. This incentive is to reward the Contractor for minimising the Customer affects of NTS Regional and Metropolitan Implementation Completion Phase. The definition of farebox revenue for metropolitan areas and the method of calculation for determining the real growth level will be specified by the Principal. The Principal will determine whether the real farebox growth remains at or above [**]% per annum.
73
2.6 Monitoring Methods
The Contractor’s performance of the Core and Initial Services will be monitored by a number of different methods. The following table summarises and classifies the common methods referred to in this document, but is not exhaustive and unique monitoring methods may apply to certain PI measurement.
Monitoring |
|
Description |
Type 1 |
|
Contractor self monitoring. |
Type 2 |
|
Review by Principal. The review may be conducted by the Principal or representatives of the Principal. |
Type 3 |
|
Operator Reports. The transit operators will provide various feedback for some of the Services where appropriate |
Type 4 |
|
Third party audit. This will be an independent process by a party or statutory body. |
2.7 General Assumptions
(a) Weighting
In line with the customer focused approach the Principal has removed all weighting relating to Packages, days of the week and location. The Principal believe that each of these parameters should be treated as equal and any weighting would create an unnecessary bias.
(b) Time Periods
The Principal has calculated Device availability across a 24 hour day for a period of 365 days – representing a calendar year. The Principal believes that this is a true representation of the Solution Operating requirement. The Principal and the Contractor agree to develop this principle further to reflect revenue service of the Devices.
It is recognised, for the Core Services, the current Operators’ business day commences at approximately 4am and concludes at approximately 2am the next day, but the proposed Solution must have the ability to perform in a continuous business day.
(c) Reporting
The Principal requires all performance measures to be collected daily and reported to the Principal on a monthly basis. The monthly report will be used as the basis of calculation for any adjustment payments due.
(d) Methodology of Adjustment Caps
Subject to Schedule 29, the adjustment to the Services Charges as a result of adjustment points accruing in respect of the Initial Services PIs and Core Services PIs will be subject to a monthly cap based on [**]% of the Services Charge. The
adjustment cap for Device availability (Customer Performance) will be set at [**]% of the Services Charge. Based on this, the Principal notes that the combined effect of these two caps produces an overall cap of [**]% of the Services Charge for adjustments.
The Service Charge fluctuates from year to year during the Delivery Services Term and the Core Services Term. The Principal will use Schedules 32 and 10 respectively to calculate the Average Monthly Delivery Services Charge and the Average Monthly Services Charge. The Monthly Cap during the Delivery Services Term will be [**]% of the Average Monthly Delivery Services Charge. The Monthly Cap during the Core Services Term will be [**]% of the Average Monthly Services Charge.
Where some or all of the Initial Services are contracted to be performed by a party other than the Contractor or its Subcontractors, then the overall adjustment cap will progressively reduce and will be recalculated by the Principal as Variations to Schedules 32 and 10 are agreed.
2.8 Withholding Payment
The Contractor and Principal agree that the maximum reduction to the Service Charge will be capped at the Monthly Cap referred to in clause 2.7. This Monthly Cap applies to total reductions for both Customer Performance and Services Performance.
Where the Monthly Cap (noting that reductions will be those amounts above the Threshold Amounts described above) is reached and applied to reduce the Service Charge, the Principal may withhold the adjusted Service Charge subject to successful corrective action.
The Corrective action will be considered successful where the Contractor improves performance to a level where the maximum Monthly Cap will no longer be deducted in the following performance month.
Accordingly, the Contractor has clarity around what is required for the Principal to release withheld Service Charge payments.
In a given month, the Contractor may believe that the monthly At Risk amount will be exceeded as a result of poor performance. In this circumstance, and prior to the Principal deciding what portion of the adjusted Service Charges to withhold, the Contractor may request a meeting with the Chief Executive Officer of the Principal to discuss the circumstances of the poor performance.
2.9 Device Availability Assumptions & Principles
(a) Customer Performance Benchmark
The Principal has derived a Customer Performance indicator that takes into account:
• Corrective Maintenance: as a function of the Raw Availability;
• Preventative Maintenance: as an estimated monthly duration;
• Vandalism: As an estimated monthly duration. Note that this does not include “spate” or in the case of a TVM, CVM or gate, this does not account for major acts of vandalism that would require the removal of the device; and
• Revenue Collection: Where applicable the Principal has incorporated estimation for cash collection.
(b) Device Out of Service
The Principal reiterates this principle to define a Device that is either in service or out of service. There are only two outcomes, for instance a device cannot be partly out of service.
A Device will be considered out of service (and therefore unavailable) where it fails to provide the level of functionality for that Device as required by the Requirements Document. In addition, a Device will be considered out of service where it fails to meet the Design Targets set out in Schedule 42 (as it is finally completed).
In most cases, Devices will have alerts and alarms where key functionality has failed. In other cases, other sources of information may be used to determine out of service.
As set out above, the Device benchmarks are inclusive of all scheduled downtime, and all unscheduled downtime (refer above).
(c) Availability Time Calculation
Actual performance will be compared to the benchmarks. The calculation of device type benchmarks will initially be based on the actual transit service day as defined for each mode. The term transit service day refers to the time in which transport services are operational. It is noted that this term may vary according to the location and transport mode. For example in relation to Rail (including V/Line) the definition could vary on a station by station basis recognising the variability of the first service and last service across this mode of transport. The parties will also agree mechanisms for defining the transit service day for Tram, Bus, Hand-Held and Retail services.
It is recognised that within the NTS there is a concept of a 24 hour operating day, however exclusively for the purposes of the Performance Regime the transit service day has been introduced to recognise the operational reality that there are periods of time, generally after midnight and prior to 4am, when there are no operational services across the system. As a result the definition of transit service day may be amended by the, Principal for each mode, as and when required.
Over the term of this agreement, there will be no entitlement to increased Service Charge payments to the Contractor resulting from changes in the period of time for the definition of transit service days.
The Principal has used the following time assumptions to generate its Performance model:
Days in a year |
|
Implied Minutes/year |
|
Min in a Month |
365 |
|
525600 |
|
43800 |
Raw % Availability |
|
Implied Minutes |
|
Implied Minutes |
99.900% |
|
526 |
|
43.8 |
99.990% |
|
53 |
|
4.4 |
99.999% |
|
5.3 |
|
0.44 |
Ave Response Time |
|
Average Mean Time To |
|
Mean Time To Restore |
60 |
|
15 |
|
75 |
(d) Entry/Exit Points
The Principal has defined the concept of entry/exit points to reflect the customer view of the system. The following definition has been applied to entry/exit points:
• Entry / Exit Points are any physical exit or entry point to any of the public transport services operated by the Operators (including points of exit or entry on train station platforms or station subways, tram doors and bus doors) which consists of 2 or greater Fare Payment Devices or Gates and are considered to carry the most critical functionality for the NTS. The Principal has rated these devices as being twice as important as other devices.
• Raw availability for entry/exit points is considered to be 99.9995%.
The Contractor agrees to meet this benchmark for each entry/exit point within the Solution.
2.10 Device Performance Calculations (Schedule 31)
2.11 Minimum Obligation
The Contractor agrees that Device availability of the NTS will be an improvement from the availability (known as Customer Defined Availability or CDA) of device types in the current ticketing system. For instance, the average availability performance of NTS CVMs will be better than the average of current TVM device types. In particular, the Contractor has committed to achieving a minimum [**]% reduction in downtime from the current AFC System CDA levels as set out in Annexure 2.
This will apply across all device types of the NTS.
The following process will be used in order for raw NTS Device performance data to be compared to CDA reported availability to determine whether the Contractor has met its obligation to improve Device availability levels:
1. the Contractor provides raw NTS device performance data to the Principal;
2. the Principal identifies those formulae and adjustments that are applied to the raw availability data of the current ticketing system to derive the CDA reported availability;
3. the Principal applies those formulae and adjustments (as identified above) to the raw NTS device performance to arrive at adjusted NTS device performance;
4. the adjusted NTS device performance is then compared to CDA reported availability to determine if the Contractor has met the minimum performance obligations; and
5. subject to agreement with the Contractor, the Principal may during the term of this agreement provide the software relating to the formulae and adjustments to the Contractor so that the Contractor can calculate and report the comparison of adjusted NTS and CDA data to the Principal.
2.12 Specific Principles
Performance shall be calculated by as an average over each device type population.
The exception to this is Entry/ Exit Points, which will be calculated on an individual Entry/Exit Point basis.
Reduction in the Service Charges will apply on an hourly basis, where the monthly availability of that device type falls below its agreed benchmark. In other words, a device benchmark may imply an average 90 minutes of downtime, and each hour over and above that (or part thereof) for each device will attract a reduction at an hourly rate, as described below.
The Reductions in relation to Customer Performance will remain capped at [**]% of the monthly Services Charge.
Benchmarks have been agreed by device type (and are set out in section 2.14 below).
There are three device categories being:
1. availability of Exit / Entry Points within the NTS (EEP);
2. availability of devices types within Exit Entry Points within the NTS (device entry exit or DEE); and
3. availability of other device types within the NTS, whose function is distribution / selling device (DSD).
The ramification of failing to meet the benchmark for these categories is as follows:
Type |
|
Reduction per hour |
|
Maximum Reduction per month |
EEP |
|
$[**] per EEP |
|
[**]% Service Charge |
DEE |
|
$[**] per device* |
|
[**]% Service Charge |
DSD |
|
$[**] per device* |
|
[**]% Service Charge |
Where the device population benchmark is not met, the actual Customer Performance percentage will be converted to a number of hours in excess of the benchmark, for that whole device type population. The number of hours will attract a payment reduction of $[**] per hour as set out above. For instance, if CVM (rail) performance implies that there were a total 300 hours in excess of the benchmark across the CVM (rail) population, then the monthly payment reduction for that PI shall be:
$[**] * [**] = $[**]
The intention of the above mechanism is to have an increased impact where an entire EEP is out of service. This is very important to the Principal.
The maximum reduction of [**]% of Services Charge applies to the sum of reductions across all Device types. This amount will remain for the Term.
Where the calculated reduction exceeds [**]% of Services Charge, the reduction is capped at [**]% of Service Charge.
2.13 Device Performance Calculation After One Year of NTS Operations
After the first year from the Solution Completion Date the 3 types of Customer Performance (EEP, DEE and DSD) will continue to be measured by the relevant benchmarks. In addition to this Entry/Exit Points (EEP) and device types at those Entry/Exit Points (DEE) will be weighted according to scan on and scan off transactions. The data used for a day will compare the average of the same day of the previous week, and data 52 weeks prior on the same day.
This average will represent a fraction or percentage of total transactions on that measurement day.
For distribution and or selling devices (DSD), the same approach will apply as per above, however revenue will be used.
The total weighting impact within the categories will have the same impact in aggregate as the mechanisms described above.
For instance, there may be around 15,400 validation type devices (DEE). If each one was down for 5 minutes more than the benchmark allowed in a month, the reduction in the first year, using no weightings might be:
15,400 times $[**], then apply a time factor of 5/60 minutes = $[**] in that month.
The Principal’s use of NTS data will ensure that the aggregate impact of the calculated weightings will be neutral to the total reduction calculated.
Specifically, for fare payment device types (DEE) the calculation weighting will be:
This calculation produces the same $[**] result assuming all FPDs are down for 5 minutes as above.
2.14 Device Availability Benchmark
The Contractor has agreed that the benchmark for the availability of all Entry/Exit Points is 99.9995% (EEP).
The Contractor has also agreed that the benchmarks for availability of individual Device types will be the percentages set out in the Customer Performance Indicator column in the following table. The other information in the table has only been included as background information.
PI# |
|
Device |
|
Category |
|
Raw |
|
Preventative |
|
Corrective |
|
Vandalism |
|
Revenue |
|
Min Per |
|
Customer |
|
1 |
|
FPD-Tram |
|
DEE (Entire Device Population over month) |
|
99.990 |
% |
10 |
|
4.4 |
|
20 |
|
0 |
|
34.38 |
|
99.92 |
% |
2 |
|
Tram Driver Console |
|
DEE (Entire Device Population over month) |
|
99.990 |
% |
10 |
|
4.4 |
|
20 |
|
0 |
|
34.38 |
|
99.92 |
% |
3 |
|
FPD - Rail |
|
DEE (Entire Device Population over month) |
|
99.990 |
% |
10 |
|
4.4 |
|
20 |
|
0 |
|
34.38 |
|
99.92 |
% |
4 |
|
Gate Array |
|
DEE (Entire Device Population over month) |
|
99.990 |
% |
20 |
|
4.4 |
|
40 |
|
0 |
|
64.38 |
|
99.85 |
% |
5 |
|
FPD - Bus |
|
DEE (Entire Device Population over month) |
|
99.990 |
% |
10 |
|
4.4 |
|
20 |
|
0 |
|
34.38 |
|
99.92 |
% |
6 |
|
Bus Driver Console |
|
DSD/DEE (Entire Device Population over month) |
|
99.990 |
% |
10 |
|
4.4 |
|
20 |
|
0 |
|
34.38 |
|
99.92 |
% |
7 |
|
|
|
Not Required |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8 |
|
CVM - Tram |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
20 |
|
56.3 |
|
40 |
|
60 |
|
176.43 |
|
99.60 |
% |
9 |
|
CVM – Inter/ Superstops |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
20 |
|
43.8 |
|
60 |
|
60 |
|
183.83 |
|
99.58 |
% |
PI# |
|
Device |
|
Category |
|
Raw |
|
Preventative |
|
Corrective |
|
Vandalism |
|
Revenue |
|
Min Per |
|
Customer |
|
10 |
|
SA Enquiry Device - Interchanges & Superstops |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
10 |
|
43.8 |
|
60 |
|
0 |
|
113.83 |
|
99.74 |
% |
11 |
|
AVM - Interchanges and Super Stops |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
20 |
|
43.8 |
|
60 |
|
60 |
|
183.83 |
|
99.58 |
% |
12 |
|
CVM - Rail |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
20 |
|
43.8 |
|
60 |
|
60 |
|
183.83 |
|
99.58 |
% |
13 |
|
AVM - Rail |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
20 |
|
43.8 |
|
60 |
|
60 |
|
183.83 |
|
99.58 |
% |
14 |
|
TOT - Rail |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
20 |
|
43.8 |
|
0 |
|
60 |
|
123.83 |
|
99.72 |
% |
15 |
|
Gate Attendant Controller |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
20 |
|
43.8 |
|
0 |
|
0 |
|
63.83 |
|
99.85 |
% |
16 |
|
Stand Alone Enquiry Device – Rail |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
20 |
|
43.8 |
|
40 |
|
0 |
|
103.83 |
|
99.76 |
% |
17 |
|
SAT |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
10 |
|
43.8 |
|
0 |
|
0 |
|
53.83 |
|
99.88 |
% |
18 |
|
PAT |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
10 |
|
43.8 |
|
0 |
|
0 |
|
53.83 |
|
99.88 |
% |
19 |
|
Handhelds |
|
DSD (Entire Device Population over month) |
|
99.900 |
% |
10 |
|
43.8 |
|
0 |
|
0 |
|
53.83 |
|
99.88 |
% |
20 |
|
Handhelds |
|
Not Required |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3. Annexures
The Performance Principles document is annexed as Annexure 1 to this schedule. The CDA levels of the AFC System referred to in this schedule are set out as Annexure 2 to this schedule. Schedule 42 in relation to Design Targets is annexed as Annexure 3 to this schedule.
Schedule 32
Delivery Services
(Clause 21A and 27)
Completion Process
A. Card Drafting
The Smartcard procurement and payment principles below have been agreed by the parties and will be drafted for incorporation into the Project Agreement as a Category 2 Matter.
• Prior to each Smartcard order by the Contractor, the Principal will meet with the Contractor to discuss Smartcard procurement for the coming period and provide information in respect of its marketing (including special editions) and other requirements which may impact demand for Smartcards and/or mix of Smartcard types required (including the Smartcard type, printing, Personalisation and design features required for the Smartcards).
• The Contractor will then determine the requirements for all Smartcard types and seek relevant pricing and delivery information from its suppliers in light of the Principal’s requirements discussed under the previous point. Prior to confirming any order with its suppliers, the Contractor must seek the Principal’s approval of the details of its proposed order including details of volume, pricing and projected monthly issue profile for each type of Smartcard.
• The Principal may either approve the order (subject to requiring potential variation of proposed delivery program, ie. the Principal may require the Contractor to hold greater or less volumes of stock than planned or to vary the order to ensure it reflects the Principal’s requirements with respect to marketing, Smartcard type and Smartcard mix) or seek a deal for better terms and conditions in the market (the Contractor must assist the Principal with this procurement process and then adopt the resulting supply arrangement).
• The Principal will pay the Contractor based on volume of Smartcards issued (on a first in first out basis) multiplied by the lower of the “capped rate” (being the amounts set out in this Schedule) and “actual Smartcard cost plus agreed margin” (in accordance with the margins set out in Schedule 10I).
• The issue of a Smartcard is defined to be the point of time at which Smartcards have been issued to the end user of the Smartcard (ie. the customer). For clarity the following table summarises the point of issue for each Smartcard under the various possible scenarios in the NTS:
Schedule 33
Replacement and Refurbishment
Year ended 30 June 2007
Not applicable
Year ended 30 June 2008
Not applicable
Year ended 30 June 2009
Work |
|
Description of Device, |
|
Description of replacement |
|
Quantity of |
|
Price per unit |
|
Cost of |
|
Rail |
|
Head Office and Station Computing Equipment |
|
Head Office Server (all replaced) |
|
2
142 |
|
[**] |
|
[**] |
|
Bus |
|
Head Office and Depot Computing Equipment |
|
Head Office Server (all replaced) |
|
32
26 |
|
[**] |
|
[**] |
|
Tram (including Stony Point) |
|
Head Office and Depot Computing Equipment |
|
Head Office Server (all replaced) |
|
2
8 |
|
[**] |
|
[**] |
|
Total Cost |
|
|
|
|
|
|
|
|
|
$[**] |
|
Year ended 30 June 2010
Not applicable
Year ended 30 June 2011
Not applicable
Year ended 30 June 2012
Not applicable
Schedule 34
Options
(Clause 20A)
The following will be considered as Category 3 Matters:
• Keane to revise expiry date of options in light of actual ordering process;
• Keane is required to price the SmartBus functionality option in the table below: and
• Keane and TTA will work together to clarify and document Keane’s proposal in respect of the VLP reservation system.
Schedule 35
Vandalism
(Clause 23.9)
Codes |
|
Vandalism Category |
|
Equivalent Incident Units |
|
VA |
|
Foreign Matter in Ticket Slot |
|
[**] |
|
VC |
|
Foreign Matter in Note Slot |
|
[**] |
|
VD |
|
Foreign Matter in EFTPOS |
|
[**] |
|
VE |
|
Graffiti |
|
[**] |
|
VF |
|
Damage |
|
[**] |
|
VQ |
|
Liquid Damage causing less than $1,000 damage to an individual Device |
|
[**] |
|
VO |
|
Liquid Damage causing at least $1,000 damage to an individual Device |
|
[**] |
|
VB |
|
Foreign Matter in Coin Slot |
|
[**] |
|
VX |
|
Theft Attempts not Break-Ins (Paper Loop) |
|
[**] |
|
VK |
|
Attempt/Successful Break-ins |
|
[**] |
|
Schedule 36
Capital Price Adjustments
Device(1) |
|
Minimum |
|
Expected |
|
Device and |
|
Rail |
|
|
|
|
|
|
|
Rail Head Office Requirement (HOR) |
|
2 |
|
2 |
|
[**] |
|
Station Requirement (SR) |
|
214 |
|
283 |
|
[**] |
|
Rail Card Vending Machine/ Add Value Machine (CVM/AVM) |
|
240 |
|
432 |
|
[**] |
|
Add-Value Machines (AVM) |
|
37 |
|
40 |
|
[**] |
|
Ticket Office Terminal (TOT) |
|
88 |
|
123 |
|
[**] |
|
Mobile |
|
5 |
|
10 |
|
[**] |
|
Electronic Gates (EG) |
|
208 |
|
253 |
|
[**] |
|
Gate Attendant Control (GAC) |
|
16 |
|
23 |
|
[**] |
|
Station Fare Payment Device (FPD) |
|
945 |
|
1,070 |
|
[**] |
|
Interchanges and Superstops |
|
|
|
|
|
|
|
Rail Card Vending Machine/ Add Value Machine (CVM/AVM)- Interchanges |
|
20 |
|
52 |
|
[**] |
|
Rail Card Vending Machine/ Add Value Machine (CVM/AVM) - Superstops |
|
10 |
|
20 |
|
[**] |
|
Smartcard Service Office |
|
|
|
|
|
|
|
Smartcard Service Office Requirement |
|
5 |
|
10 |
|
[**] |
|
Smartcard Service Office Terminal |
|
5 |
|
10 |
|
[**] |
|
Enquiry Device |
|
|
|
|
|
|
|
Standalone Enquiry Machine (SEM) |
|
142 |
|
403 |
|
[**] |
|
Bus |
|
|
|
|
|
|
|
Head Office Requirement - Bus (HOB) |
|
29 |
|
32 |
|
[**] |
|
Depot Requirement Bus (DB) - Small Depot |
|
22 |
|
26 |
|
[**] |
|
Depot Requirement Bus (DB) - Medium Depot |
|
13 |
|
15 |
|
[**] |
|
Depot Requirement Bus (DB) - Large Depot |
|
10 |
|
10 |
|
[**] |
|
Bus Driver Console (BDC) |
|
1,500 |
|
1,650 |
|
[**] |
|
Fare Payment Device (FPD) |
|
1,500 |
|
6,240 |
|
[**] |
|
Tram |
|
|
|
|
|
|
|
Head Office Requirement - Tram (HOT) |
|
1 |
|
1 |
|
[**] |
|
Depot Requirement - Tram (DR - T) |
|
8 |
|
8 |
|
[**] |
|
Tram Driver Console (TDC) - Primary |
|
450 |
|
480 |
|
[**] |
|
Device(1) |
|
Minimum |
|
Expected |
|
Device and |
|
Tram Driver Console (TDC) - Secondary |
|
450 |
|
480 |
|
[**] |
|
Rail Card Vending Machine/ Add Value Machine (CVM/AVM) |
|
450 |
|
480 |
|
[**] |
|
Fare Payment Device (FPD) |
|
2,500 |
|
5,648 |
|
[**] |
|
Stony Point |
|
|
|
|
|
|
|
Stony Point Business Requirements |
|
0 |
|
1 |
|
[**] |
|
Carriage Console |
|
4 |
|
4 |
|
[**] |
|
Rail Card Vending Machine/ Add Value Machine (CVM/AVM) |
|
4 |
|
4 |
|
[**] |
|
Fare Payment Device (FPD) |
|
16 |
|
16 |
|
[**] |
|
Hand-Held |
|
|
|
|
|
|
|
Depot Requirement - Hand-Held (DR-H) |
|
15 |
|
37 |
|
[**] |
|
Hand-Held Device (HHD-s) - Selling |
|
532 |
|
566 |
|
[**] |
|
Retail |
|
|
|
|
|
|
|
Metropolitan Primary Agent Terminal (MPAT) |
|
50 |
|
80 |
|
[**] |
|
Primary V/Line Agent Terminal (VPAT) |
|
50 |
|
80 |
|
[**] |
|
Secondary Agent Terminal (SAT) |
|
400 |
|
800 |
|
[**] |
|
(1) Devices represent the devices as described in the BOM and Requirements Document.
Schedule 37
Category 1, 2 and 3 Matters
(Clauses 2.1, 2.2 and 11.7)
Completion Process
The matters contained in this Schedule 37 have not been agreed or completed as at the time of execution of the agreement by the Contractor, and are to be resolved in accordance with the applicable timeframes and processes set out below.
PART A – Category 1 Matters
The following items will be agreed and/or completed and the agreement amended and updated accordingly, prior to execution of the agreement by the Principal:
1. Finalisation of Schedule 41 of the agreement.
PART B – Category 2 Matters
The following items will be agreed and/or completed prior to the Phase Date for the NTS Mobilisation Phase in accordance with clause 2.2 of the agreement:
1. The Completion Pre-Conditions completed in accordance with the process described in Schedule 3 for the NTS Release 0 and Prototyping Phase, NTS Front Office Design and Hardware FAT Phase, NTS Front Office Software FAT and Back Office Release 1 and 2 Phase, NTS Final Back Office Release Phase, NTS Front Office User Acceptance Test Phase, NTS User Acceptance Test Phase, NTS Front Office Implementation 1 Phase, NTS Front Office Implementation 2 Phase.
2. Incorporation of ACICA Rules to replace the ACDC rules contained in clause 49 (dispute resolution) of the agreement if the ACICA Rules have been finalised prior to the Phase Date for the NTS Mobilisation Phase.
3. The process for ordering Smartcards and the Smartcard pricing mechanism to be incorporated into Schedule 10 and Schedule 32.
4. The Glossary to the RFT is to be reviewed by the Principal and the Contractor and will be amended to be consistent with the defined terms used in the agreement. The Glossary to the RFT, as so amended, will be the glossary for the Requirements Document. This process will be undertaken through discussion with the Contractor. The RFT means the Request for Tender relating to the Solution released by the Principal on 30 July 2004 as supplemented and varied by Errata, Addenda and the Revised Offer Brief released by the Principal on 20 December 2004.
5. All Category 1 Matters deemed to be Category 2 Matters under clause 2.1(b) of the agreement, to be agreed in accordance with the principles and processes described in Part A of this Schedule 37 for the relevant item.
Agreement of the items set out in this Part B will be a Completion Pre-Condition for the NTS Mobilisation Phase (refer to Schedule 3).
PART C – Category 3 Matters
The following items will be agreed and/or completed prior to the Phase Date for the NTS Solution Requirements Phase:
1. The Design Documents list and contents to be developed in accordance with the completion process described in Schedule 38.
2. Exhibit 2B is to be reviewed by the Principal and the Contractor for the purpose of deleting redundant or superseded documents. Only those documents that assist in describing or clarifying the Contractor’s Response will remain as part of Exhibit 2B. This process will be undertaken through discussion with the Contractor.
3. The Test Plan, to be prepared and finalised in accordance with the completion process described in Schedule 39.
4. The Industrial Relations Plan to be prepared in accordance with the completion process described in Schedule 22.
5. The OH&S Plan to be prepared in accordance with the completion process described in Schedule 23.
6. The draft Business Continuity Plan to be prepared in accordance with the completion process described in Schedule 28.
7. Provision of the draft Access Plans in accordance with and as required by Schedule 24.
8. The Transfer Plan developed in accordance with the Transfer Principles.
9. The completion of Schedule 7 in regard to Part 1 - Hand Held Device Selling Equipment, Part 3 - Device maintenance charges, Part 5 - the labour rate for ERG – Installation Technician, Part 6 - Transaction Volume Increases and Parts 1 and 2 - installation and de-installation hours and costs required to complete Parts 1 and 2.
10. The contractual mechanism and extent of ownership of Intellectual Property (“IP”) in the Solution incorporating the following principles:
a. The Principal to own the Developed IP within the Territory;
b. The Principal to own Contractor Licensed IP in the Solution within the Territory;
c. The Principal to have rights akin to ownership for Headstrong IP in the Solution within the Territory through a broad licensing regime;
d. Identification of Licensed IP in the Solution to remain outside (a) and (b) (e.g. Ascom IP);
e. The Contractor to own the Developed IP in the Solution outside the Territory.
11. Completion of Schedules 29, 30 and 31 will be based on the Performance Principles and the process set out in Schedules 29 to 31 as at the Commencement Date. Similarly, completion of Schedule 42 in relation to design targets and drafting of obligations with respect to those design targets will be based on the principles set out in schedule 31 and the form of Schedule 42 which is annexed to Schedule 31 as at the Commencement Date. It is expected that consequential changes will need to be made to the agreement to reflect the final agreement in regards to performance and design targets.
12. The insurance policy terms and conditions, individual claim limits, aggregate claim limits and exclusions remain subject to review and approval by the Principal.
13. The wording of clause 29.7 to be agreed in accordance with the following principles:
The Contractor shall take responsibility for shortfalls arising out of errors in reconciliation, subject to:
a. the cause of the error in reconciliation being determined through a root cause analysis process;
b. the errors being true errors in reconciliation;
c. the issue of whether or not there is an error in reconciliation is to be determined over a period of time and not on a daily basis; and
d. the Contractor’s liability for shortfalls does not cut across other relief which the Contractor has under the agreement, and in particular is subject to the liability cap to the Principal.
14. Amendment of Schedule 12 (Invoice Substantiation) in light of agreement reached on Schedules 10, 29-31, 32 etc.
15. The completion of Schedule 34 in regard to:
a. the expiry dates of Options;
b. the pricing of Smartbus functionality; and
c. clarification and documentation of the VLP reservation system.
16. All Category 2 Matters deemed to be Category 3 Matters under clause 2.4(b) of the agreement, to be agreed in accordance with the principles and processes described in Part B of this Schedule 37 for the relevant item.
Agreement of the items set out in this Part C will be a Completion Pre-Condition for the NTS Solution Requirements Phase (refer to Schedule 3).
Schedule 38
Design Documents
Part A
1. Architecture Definition (Modelling Tool)
2. Business Architecture (Modelling Tool)
3. usiness Process Model (Modelling Tool)
4. Workflow Description (Modelling Tool)
5. Application Architecture (Modelling Tool)
6. Logical Data Model (Modelling Tool)
7. Distributed System Architecture (Modelling Tool)
8. User Interface Definition (Modelling Tool)
9. Business Rules Orchestration (Modelling Tool)
10. Technical Architecture (Modelling Tool)
11. Physical Data Design (Modelling Tool)
12. System Design (Modelling Tool)
13. Network and Communications Plan (Document)
14. Performance and Load Test Plans (Test Director)
15. Front Office Functional Specification (Document)
16. Front Office Technical Specification (Document)
17. Device Configuration Specifications (Document)
18. Equipment SW Specification document (Modelling Tool)
19. Equipment HW Specification document (Document)
20. NTS Requirements Specification
21. Open Architecture Specification
22. Bus Access Plan
23. Access Plans
24. Asset Management Plan
25. Business Change Management Plan
26. Business Continuity Plan
27. Cardholder and Operator Website Plan
28. Cardholder Management Plan
29. Cardholder Support Services Plan
30. Cash Collection and Management Plan
31. Civil Works Management Plan
32. Communications Plan
33. Configuration Management Plan
34. Corrective Maintenance Plan
35. Device Management Plan
36. Distribution Management Plan
37. Environmental Management Plan
38. Facilities Management Plan
39. Fraud Management Plan
40. Hardware Development Plan
41. Implementation Plan
42. Industrial Relations Plan
43. Issues Management Plan
44. Key Management Plan
45. Local Industry Participation Plan (VIPP)
46. Occupational Health, Safety and Rehabilitation Plan
47. OH&S and Rehabilitation Plan
48. Operational Quality Assurance Plan
49. Operations Plan
50. Overall Inspection and Test Plan
51. Preventative Maintenance Plan
52. Contractor’s Privacy Plan
53. Progress Reporting Plan
54. Project Management Plan
55. Project Quality Assurance Plan
56. Repair and Maintenance Plan
57. Required Manuals Plan
58. Resource Management Plan
59. NTS Transition Plan
60. Risk Management Plan
61. Security Analysis Plan
62. Service Management Plan
63. Smartcard Base Management Services Plan
64. Software Development Plan
65. System development Plan
66. System Integration Plan
67. System Management and Administration Plan
68. System Performance Plan
69. Technical Support and Maintenance Plan
70. Technical Support and Management Plan
71. Test Plan
72. The Test Documents
73. Training Programme Plan
74. Transfer Plan (in accordance with clause 44.3 of PA)
75. Transition Plan
76. Website Management Plan
77. Bus Work Package Development Plan
78. Central Body Operation Development Plan
79. Central Body System Development Plan
80. Handheld Devices Work Package Development Plan
81. Rail Work Package Development Plan
82. Third Party Retail Work Package Development Plan
83. Tram Work Package Development Plan
84. Central System Maintenance Procedures
85. Electronic Gate and Attendant Controller Maintenance Procedures
86. Headquarters Computers Maintenance Procedures
87. Station Control Computer Maintenance Procedures
88. System Architecture Policy and Procedures
89. Rail Solution Equipment Maintenance Procedures
90. Interchanges & Super stops Equipment Maintenance Procedures
91. Bus Solution Equipment Maintenance Procedures
92. Tram Solution (Including Stony Point Solution) Equipment Maintenance Procedures
93. Hand-Held Device Solution Equipment Maintenance Procedures
94. Third Party Agents Solution Equipment Maintenance Procedures
95. Bus Solution Business Requirements Specification
96. Front Office Devices Civil Works Design Requirements Document
97. Hand-Held Device Solution Business Requirements Specification
98. Interchanges & Super stops Business Requirements Specification
99. Rail Solution Business Requirements Specification
100. Third Party Agents Solution Business Requirements Specification
101. Tram Solution (Including Stony Point Solution) Business Requirements Specification
102. Bus Solution Equipment HW Specification document
103. Bus Solution Equipment SW Specification document
104. Clearing House Services and Functions Specification
105. Data Architecture and Definitions Specification
106. Distributor Report Formats Specification
107. EFT Payment Services Specification
108. Front Office Devices Device Configuration Specifications Document
109. Front Office Devices Functional Specification Document
110. Front Office Devices Technical Specification Document
111. Hand-Held Device Solution Equipment HW Specification document
112. Hand-Held Device Solution Equipment SW Specification document
113. Interchanges & Super stops Equipment HW Specification document
114. Interchanges & Super stops Equipment SW Specification document
115. Interfaces Specification
116. NTS Business Architecture Specification
117. Operator Report Formats Specification
118. Principal Report Formats Specification
119. Rail Solution Equipment HW Specification document
120. Rail Solution Equipment SW Specification document
121. Reporting System Specification
122. Smartcard and Transit Issuance Specification
123. Smartcard Specification
124. System Technical and Software Architecture Specification
125. Technical Architecture Specification
126. Third Party Agents Solution Equipment HW Specification document
127. Third Party Agents Solution Equipment SW Specification document
128. Tram Solution (Including Stony Point Solution) Equipment HW Specification document
129. Tram Solution (Including Stony Point Solution) Equipment SW Specification document
130. Central Systems Operations Specification
131. Depot Operation & FLM of Depot Computer & WDTS Specification
132. Services Operations Specifications
133. System Administration Operations Specification
134. Rail Solution Operations Specification
135. Interchanges & Super stops Operations Specification
136. Bus Solution Operations Specification
137. Tram Solution (Including Stony Point Solution) Operations Specification
138. Hand-Held Device Solution Operations Specification
139. Third Party Agents Solution Operations Specification
Part B
Completion Process
The Design Documents to be developed in accordance with clause 12.4 will be based on the Principal’s indicative list of minimum design documents included in Part A of this Schedule 38. The Design Documents need not be the precise documents referred to in Part A of this Schedule 38 but must cover the subject matter implied by the name of those documents.
The Contractor shall ensure that its proposed Design Document list prepared in accordance with this Schedule 38 reflects the Contractor’s design, development and delivery methodology for the Solution and its obligations in the previous paragraph.
The Contractor must provide to the Principal a list of all Design Documents that are required to be developed in accordance with the agreement, prior to the Phase Date for the NTS Solution Requirements Phase.
The Design Document list must include the following details:
• the type and name of each document;
• a description of the content and purpose of the document;
• the proposed author of the document;
• cross-referencing of the document with any other Design Document;
• the Phase in which the document will be delivered to the Principal;
• the proposed versions/releases to be provided to the Principal and indicative timing;
• the proposed Contractor internal review process in relation to the development of each document; and
• a version control descriptor for each document.
Approval by the Principal of the Design Document list will be a Completion Pre-Condition to the NTS Solution Requirements Phase (refer to Schedule 3).
This completion process does not apply to the Industrial Relations Plan (refer to Schedule 22), the OH&S Plan (refer to Schedule 23), the Business Continuity Plan (refer to Schedule 28) or the Test Plan (refer to Schedule 39).
Schedule 39
Test Plan
(Clause 15.1)
Completion Process
The Contractor must prepare and implement, in accordance with clause 15.1 of the agreement, the Test Plan based on the test strategy document included in this Schedule 39.
The Contractor must undertake the following process to develop and complete the Test Plan:
• The Contractor must develop a Test Plan, based on the strategy document included in this Schedule 39, which describes and documents the tests required to prove that the Solution complies with the requirements of the agreement including the Requirements Document.
• The Test Plan will provide for sub-component testing, component and Device testing, system testing, integration testing and overall Solution testing and will include:
• a list of all tests to be undertaken by the Contractor;
• a detailed description of each test including the objectives for each test;
• a test schedule including tests to be conducted by the Principal in accordance with clause 15.7(a);
• testing protocols and procedures;
• proposed testing techniques for each test;
• resource and facility requirements;
• test monitoring requirements for each test;
• pass / fail criteria including the definition of test success for each test; and
• test reporting requirements for each test.
• The Contractor’s Test Plan will include integration of the Device testing regime by subcontractors so that the test results will demonstrate the complete seamless integration of all Device components, including hardware, software and supportive infrastructure, with other components/systems comprising the Solution.
• The Contractor must prepare and finalise the Test Plan in accordance with clause 12.4, except that reference to the Project Master Schedule shall be taken to mean by not later than the Phase Date for the NTS Solution Requirements Phase.
Acceptance of the Test Plan by the Principal will be a Completion Pre-Condition for the NTS Solution Requirements Phase.
Schedule 40
Banking Arrangements
(Clause 27.9)
Part A
• Fees or charges imposed on the Principal for transactions, including fees and charges for disputed and dishonoured transactions, fees for the depositing of cash and any taxes, in respect of the Principal’s use of the Australian Payments System in relation to the Solution.
• Chargebacks and related fees payable by the Principal under any agreement in relation to its activities as a member of any payment scheme within the Australian Payments System.
• Any periodic account keeping fee howsoever described imposed on the Principal for the bank account or accounts in which the Float is held.
Part B
• Financial Management
• Data communication services
• EFTPOS terminal and target specification
• EFTPOS terminal and target vendor selection
• EFTPOS terminal and target funding
• EFTPOS terminal and target software development costs
• EFTPOS terminal and target certification costs
• EFTPOS terminal and target installation and training
• EFTPOS terminal and target support (1st & 2nd level)
• Operation of Interactive Voice Recognition and internet payment services (excluding fees and charges set out in Part A)
• Cash handling fee
• Reasonable costs of tender for acquiring bank (compilation & selection)
Schedule 42
Design Targets
This schedule will be completed in accordance with the completion process set out in Schedule 31.
List of Exhibits
Exhibit 1
NTS Requirements Document
Exhibit 2A
Contractor's Primary Response
Exhibit 2B
Contractor's Secondary Response
Exhibit 3
Project Timeline
Project 3A
Project Master Schedule
Exhibit 4
Description of Phase Deliverables
Exhibit 5
Victorian Industry Participation