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CROSS ISRAEL HIGHWAY LTD.
THE LIGHT RAILWAY PROJECT IN THE HAIFA
METROPOLITAN AREA, BETWEEN HAIFA AND
NAZARETH
LRT CONSULTANT AGREEMENT
August 27, 2018
Volume II
Date of update Version
27.8.2018 1.
7.11.2018 2.
2
ATNEL OC FOBALBAT
1.DEFINITIONS AND INTERPRETATION 5
2.DURATION OF AGREEMENT 6
3.LRT CONSULTANT’S DECLARATIONS AND REPRESENTATIONS 8
4.LRT CONSULTANT’S OBLIGATIONS 10
5.COMPANY’S RIGHTS AND OBLIGATIONS 10
6.TEAM MEMBERS 11
7.THE SERVICES' CONCEPT, SCOPE AND SCHEDULE 15
8.PREROGATIVES OF THE COMPANY AND 16
9.LRT CONSULTANT’S LIABILITY 16
10.INSURANCE 17
11.PAYMENT 18
12.LIQUIDATED DAMAGES 20
13.CONFIDENTIALITY AND INTELLECTUAL PROPERTY 21
14.CONFLICT OF INTEREST 22
16.TERMINATION 23
3
LIST OF ANNEXES:
Annex A Definitions
Annex B The Services
Annex C Preliminary Schedule
Annex D Service Price
Annex E Affidavit with Respect to The Public Entities Transactions Law
Annex F Letter of Undertaking
Annex G Insurance
Annex H Team Members in the LRT Consultant
Annex I Performance Bond
4
This Agreement is made and entered into this ____ day of, ________ by and between
Cross Israel Highway Ltd. having its registered office at ________
(the "Company")
and
__________________, a [limited liability] company duly incorporated under the
Laws of [country/state of incorporation], certificate of incorporation number
___________, having its registered office at _____________________________
(“the LRT Consultant”).
(the Company and the LRT Consultant are each referred to as a "Party" and
collectively as the "Parties").
NOW THEREFORE, it is declared, covenanted and agreed between the parties as follows:
Whereas the Company issued the Tender Documents seeking competent Participants to provide
the Company with the Services (as defined below), in connection with the Light
Railway Project in the Haifa Metropolitan Area, between Haifa and Nazareth; and
Whereas the LRT Consultant was declared to be the Successful Participant pursuant to the
Tender Process; and
Whereas the LRT Consultant wishes to provide to the Company the Services in accordance
with the provisions of this Agreement.
5
1. DEFINITIONS AND INTERPRETATION
Definitions 1.1.
Capitalized terms used in this Agreement and not defined herein, shall
have the meaning ascribed to them in Annex A (Definitions).
capitalized terms not otherwise defined in this Agreement or in Annex
A (Definitions) shall have the meanings ascribed to such terms in the
Invitation.
Interpretations 1.2.
1.2.1. A term that is defined in any of the Agreement shall have the
same meaning in all the other documents of this Agreement,
unless the context requires otherwise.
1.2.2. This Agreement shall not be construed against its author, but
rather based on the meaning derived from the context, and the
provisions of Section 25(b)(1) of the Contracts Law (General
Part), 1973, shall not apply.
1.2.3. Unless specifically provided otherwise, any reference in the
Agreement to a statute, law, ordinance, regulation, order or
instruction shall be a reference to a statute, law, ordinance,
regulation, order or instruction (as the case may be) under
Israeli Law.
1.2.4. A specific statute or statutory provision includes any
consolidation, re-enactment, modification or replacement of the
same, any statute or statutory provision of which it is a
consolidation, re-enactment, modification or replacement and
any subordinate legislation in force under any of the same from
time to time
1.2.5. In this Agreement, unless inconsistent with the context:
1.2.5.1. words indicating one gender include all genders;
1.2.5.2. the singular includes the plural and vice versa;
1.2.5.3. persons shall include legal entities;
1.2.5.4. Provisions including the word “agree”, “agreed”,
“agreement” or “consent” require the agreement or
consent to be recorded in writing; and
1.2.5.5. “written” or “in writing” means hand-written, type-
written, printed or electronically made, and resulting
in a permanent record
1.2.6. The preamble and appendices of this Agreement constitute an
integral part hereof.
1.2.7. the headings of clauses are for reference purposes only and
shall not be used in the interpretation thereof; and
1.2.8. all monetary amounts exclude Tax, which Tax where applicable
shall be added to any amounts which become due and payable.
6
Order of Precedence 1.3.
1.3.1. The Agreement documents are to be taken as mutually
explanatory of one another, but in case of ambiguities the LRT
Consultant will be obligated to comply with the stricter
provision, to be determined by the Company at its sole
discretion. Any such conflict will be brought to the attention of
the Company immediately upon its discovery by the LRT
Consultant.
1.3.2. In the event of conflict between the provisions of the
Agreement and the provisions of any Law, the LRT Consultant
shall be obliged to comply with the stricter requirement, unless
otherwise determined by the Company. Any such conflict will
be brought to the attention of the Company immediately upon
its discovery by the LRT Consultant.
Agreement Documents 1.4.
The following, hereby incorporated into this Agreement or
incorporated herein by reference, including all appendices and addenda
attached thereto (“the Agreement"), shall constitute an integral part of
this Agreement:
Annex A Definitions
Annex B The Services
Annex C Preliminary Schedule
Annex D Service Price
Annex E Affidavit with Respect to The Public Entities
Transactions Law
Annex F Letter of Undertaking
Annex G Insurance
Annex H Team Members in the LRT Consultant
Annex I Performance Bond
2. DURATION OF AGREEMENT
Agreement Period. Unless expressly provided otherwise in the 2.1.
Agreement, all provisions of the Agreement and all the obligations of
the Parties thereunder shall enter into force and effect on the Signature
Date and shall remain so until the completion of the Services or, if the
Agreement is terminated in accordance with its terms, the date of the
termination of this Agreement ("the Agreement Period").
Signature Date. 2.2.
7
The Signature Date is the date on which each of the Company and the
LRT Consultant executed this Agreement.
Obligations prior to Signature Date. 2.3.
2.3.1. Without derogating from the foregoing, the LRT
Consultant shall complete within forty-five (45) days
following the date that the Company declared the LRT
Consultant as a Successful Participant, the following
conditions:
2.3.1.1. The LRT Consultant has provided the Company
with an affidavit in the form of Annex E
(Affidavit with Respect to The Public Entities
Transactions Law) and a valid approval, as
applicable and required pursuant to the
provisions of Section 2A of the Public Entities
Transactions (Enforcement of Bookkeeping,
Payment of Taxes, Legal Employment of
Foreign Workers and Minimum Wage) Law,
5736-1976.
2.3.1.2. The LRT Consultant has obtained the
Company’s approval for the Team Members
pursuant to the provisions of Section 6.3 below
2.3.1.3. The LRT Consultant furnished to the Company
all Insurance Policies, as required by the
provisions of Section 10 (Insurance), a copy of
which to be attached hereto as Exhibit 1.
2.3.1.4. The LRT Consultant has provided the Company
with the Performance Bond as required by the
provisions of Section 12 (Performance Bond).
Obligations Following Signature Date 2.4.
The LRT Consultant undertakes to carry out the following actions:
2.4.1. Obtainment of Approvals. By no later than thirty (30)
days following the Signature Date, the LRT Consultant
shall provide the Company with a declaration certifying
that the LRT Consultant has been granted all Approvals,
including Working Permits (if necessary), as required
under any Law for the provision of the Services by the LRT
Consultant and anyone acting on its behalf (including the
Team Leader and Team Members) for the six (6) month
period following the Signature Date, a copy of which to be
attached hereto as Exhibit 2 (LRT Consultant’s
Declaration).
2.4.2. By no later than sixty (60) days following the Signature
Date, the LRT Consultant shall procure that the Team
Leader will be relocated to and reside in Israel.
8
3. LRT CONSULTANT’S DECLARATIONS AND REPRESENTATIONS
The LRT Consultant hereby represents and declares towards the Company as
follows:
Authority Relative to this Agreement. The LRT Consultant has all 3.1.
necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations under this Agreement and to
consummate the Services contemplated hereby. The execution and
delivery of this Agreement have been duly and validly authorized by
all necessary action of the LRT Consultant, and no other corporate
proceedings on the part of the LRT Consultant are necessary to
authorize the entering into and execution of this Agreement. This
Agreement has been duly and validly executed and delivered by the
LRT Consultant and constitutes a valid, legal and binding obligation of
the LRT Consultant, enforceable against the LRT Consultant in
accordance with its terms.
No Conflict. No actual or potential conflict of interest or unfair 3.2.
competitive advantage exists with respect to the LRT Consultant’s
acting hereunder, and the LRT Consultant shall not engage in any
contractual relationship that may cause such conflict of interest or
unfair competitive advantage to exist.
No Litigation or Impediment. There is no (i) litigation that is 3.3.
currently in effect or threatened, against the LRT Consultant, which
would challenge the authority of the LRT Consultant to enter into this
Agreement or to carry out its obligations under this Agreement, or (ii)
impediment, whether legal or stemming from a prior or simultaneous
commitment made by the LRT Consultant, or any other impediment of
whatever nature, which might prevent the LRT Consultant from
entering into this Agreement or hinder the performance of any or all of
its obligations hereunder.
Capability. The LRT Consultant additionally represents and warrants 3.4.
that it has in the past performed similar tasks to those referred to in
Annex B (the Services), that it is fully capable of performing those
tasks in accordance with recognized professional standards, and that it
has the know-how, expertise, experience, adequate financial resources
and all that is required in connection with the undertaking of such
tasks.
Information. The LRT Consultant shall be deemed to have examined 3.5.
all information contained in the Agreement irrespective of any actual
examination and shall be bound by all information stated therein. The
LRT Consultant specifically acknowledges and agrees that the LRT
Consultant's reliance on the information provided by the Company,
including the information contained in the Tender Documents, is at the
LRT Consultant's own risk.
General Disclaimer. The LRT Consultant is satisfied, on the basis of 3.6.
its examinations, that the consideration pursuant to this Agreement
constitutes full and fair consideration for the performance of its
obligations pursuant to this Agreement, of any form and type, in their
9
entirety and on the dates stipulated herein, and the LRT Consultant
hereby waives any Claim, any demand and any action for any further
consideration, other than as explicitly specified in this Agreement. The
LRT Consultant shall not be allowed to make any pecuniary or other
Claims on the basis of a lack of knowledge of any of the terms and
conditions of the Agreement, of the provisions of all Laws, of the
implications and effect of such terms and conditions, on the basis of a
lack of knowledge of or lack of familiarity with any condition or
circumstance pertaining to the performance of its obligations pursuant
to this Agreement.
The LRT Consultant 3.7.
3.7.1. The LRT Consultant is a corporation duly organized and
validly existing under the Laws of ____________
[country/state of incorporation],
3.7.2. The LRT Consultant has all requisite power to own its
properties and assets and to carry out its business as now
conducted and as proposed to be conducted pursuant to this
Agreement.
3.7.3. The LRT Consultant's certificate of incorporation and
Articles of Association, certified copies of which are
attached to this Agreement as Exhibit 4 (LRT Consultant's
Certificate of Incorporation and Articles of Association),
are in effect as of the Signature Date, and shall remain in
effect throughout the Agreement Period.
3.7.4. The LRT Consultant's Articles of Association do not
contradict or conflict with any of the provisions of the
Agreement or prevent the LRT Consultant from performing
any of its obligations thereunder.
3.7.5. The LRT Consultant and anyone acting on its behalf
(including the Team Leader and the Team Members)
possess the necessary experience, knowledge, expertise,
and professional capabilities for the performance of the
Services in a timely manner and in accordance with this
Agreement.
3.7.6. Without derogating from any other provision in the
Agreement, the LRT Consultant represents that as of the
Signature Date all representations, warranties, information,
data and documents provided by the LRT Consultant or
anyone else, contained in any written statement or in any
other document delivered in the framework of the Tender
Process and/or in connection with the Agreement,
including the document setting forth the composition of the
Team members, the management and organizational
structure of the Team members, as approved by the
Company, are true, complete and accurate; and all such
documents have been furnished to the Company prior to the
Signature Date.
10
4. LRT CONSULTANT’S OBLIGATIONS
Provision of the Services. The LRT Consultant shall provide the 4.1.
Services in accordance with the provisions of this Agreement
(including, inter alia, Annex B (the Services)), pursuant to the
timetable specified therein.
Legal Requirements. The LRT Consultant shall abide by applicable 4.2.
Law.
The LRT Consultant shall bear the full and sole responsibility for
complying with all changes in applicable Laws as enacted from time to
time, and such compliance shall not entitle the LRT Consultant to any
relief under this Agreement, nor will it limit, change or otherwise
relieve the LRT Consultant's obligations under this Agreement other
than as specifically stated in this Agreement.
Standard of Care. In the performance of its obligations as set out in 4.3.
this Agreement, the LRT Consultant shall exercise all reasonable
professional skill, care and diligence to be expected of a qualified and
experienced LRT Consultant undertaking services on a project of a
similar scope and character to the Project. The LRT Consultant shall
comply with each of the provisions of ISO 9001: 2015 edition.
Undertaking. The LRT Consultant undertakes that the Services shall 4.4.
be performed faithfully, efficiently, expertly, with due diligence, to the
Company’s full satisfaction, at a high professional standard, in
accordance with accepted professional techniques and practices of a
LRT Consultant of a project of a similar scope and character to the
Project.
Certification, discretion. Where the Services to be provided by the 4.5.
LRT Consultant include the obligation to certify or to exercise
discretion or quasi-arbitrational functions in carrying out the Services,
the LRT Consultant shall be obliged to exercise such obligations,
discretions and functions in an independent professional manner acting
with the same reasonable skill, care and diligence (as detailed below)
and with regard to all the interests involved.
Material alterations. The LRT Consultant shall not make any material 4.6.
alteration, or addition to, or omission from the approved design without
the prior written consent of the Company, except when required to do
so by any applicable law. In such circumstances, the LRT Consultant
shall notify the Company (together with any other parties of which it is
aware that have an interest in so being notified) promptly on becoming
aware of the applicable law and in advance of the relevant alteration,
addition or omission.
Cooperation. The LRT Consultant shall cooperate in absolute good 4.7.
faith, comply with and accurately and in a timely manner adhere to all
reasonable requests made of it by the Company or any other party
involved in the Project.
5. COMPANY’S RIGHTS AND OBLIGATIONS
11
Information. The Company shall accurately and in a timely manner 5.1.
specify in writing (free of charge) its requirements and any other
relevant information in relation to the Project that it has (including
decisions and instructions to the LRT Consultant, insofar as these are
reasonably required for the provision of the Services by the LRT
Consultant).
Authorities. Except as otherwise provided in this Agreement, during 5.2.
the Agreement Period, the Company shall use reasonable efforts to
assist the LRT Consultant in its dealings with Relevant Authorities,
following the LRT Consultant's written request for such assistance and
to the extent permitted by the Law in connection with the provision of
the Services, provided, however, that the Company shall bear no
expenses for its efforts and liability whatsoever for any failure to obtain
any result.
Instructions. The Company may issue to the LRT Consultant at any 5.3.
time written instructions relating to the provision of the Services in
respect of the Project. The LRT Consultant shall only take instructions
from the Company (or the any representative designated thereby).
Decisions. On all matters reasonably referred to the Company by the 5.4.
LRT Consultant in respect of the Services to be provided under this
Agreement, the Company shall give its decision in writing.
Workstations. Upon completion of the LRT Consultant obligations 5.5.
according to Section 2.4 (Obligations Following Signature Date)
above, the Company shall provide the LRT Consultant and its Team
Members with one (1) office and six (6) open space workstations at the
Company's offices (“the Facilities”). the Facilities will be available to
the LRT Consultant and its Team Members throughout the Agreement
Period.
6. TEAM MEMBERS
Personnel 6.1.
6.1.1. The LRT Consultant will ensure, at all times, the
employment of sufficient, highly skilled and experienced
professionals in each category for the provision of the
Services. To the extent such employment requires prior
registration and Permit pursuant to all Laws, then the LRT
Consultant shall only employ such Person who is duly
registered, or who holds a Permit as aforesaid, as the case
may be.
6.1.2. The LRT Consultant shall bear all expenses in connection
with the recruitment and employment of the necessary
manpower for the execution of this Agreement, including
employees' wages, means of transportation for them,
housing requirements, issuance of visas, Working Permits,
all taxes and payments to the social insurance funds and
payments on their behalf to the National Insurance
Institute, the Income Tax Authority and all other relevant
12
authorities, Israeli or otherwise, according to any applicable
law. For the avoidance of doubt, it is hereby expressed that
the LRT Consultant shall withhold and deduct at source, as
required by applicable law, statutory tax and all the other
compulsory payments from any payments made by the
LRT Consultant in connection with the provision of the
Services, including to each of the Team members.
6.1.3. Without derogating from the provisions of Section 6.1.2
above, the LRT Consultant shall employ each of its
employees in compliance with the provisions of the
National Insurance Regulations (Collection of Insurance
Payments), 5714-1954, and the LRT Consultant shall
strictly ensure that its employees are employed in
compliance with the provisions of all Laws, including the
Employment Service Law, 5719-1959, Public Entities
Transactions (Enforcement of Bookkeeping, Payment of
Taxes, Legal Employment of Foreign Workers and
Minimum Wage) Law, 5736-1976, and the regulations
promulgated thereunder.
6.1.4. The Company may require the LRT Consultant to remove
or replace any Person (including any Team Member and
Team Leader Member) engaged in the provision of the
Services, if the Company considers such Person not to be
performing its duties in accordance with this Agreement or
in the best interests of the Project, or if the Company
considers the conduct of such Person to be unsatisfactory
under the circumstances.
6.1.5. The Company's approval of Team members shall not in any
way relieve the LRT Consultant from any of its
responsibilities, obligations or liabilities under this
Agreement.
Team Leader 6.2.
6.2.1. The LRT Consultant shall appoint the Systems Engineer or
the Track Engineer as the head of the Team Members (the
"Team Leader"). The Team Leader shall manage and
direct the execution of the Services, as specify in Annex B
(the Services).
6.2.2. For the avoidance of doubt, it is hereby clarified that the
Team Leader will be required to be fully dedicated and
available to the Company for the provisions of the Services
in Israel throughout the first five (5) years of the
Agreement Period.
Following the first five (5) years of the Agreement Period,
The the Team Leader will be required to be fully dedicated
and available to the Company for the provisions of the
Services in Israel throughout the Agreement Period, as
shall be required by the Company.
13
6.2.2.6.2.3. Without derogating from the LRT Consultant's obligations
to provide the Services by the Team Members, the LRT
Consultant is required to devote sufficient time and
dedicate sufficient personnel to perform the Services and to
ensure timely and efficient completion of its obligations
under this Agreement.
Team Members 6.3.
6.3.1. The LRT Consultant shall obtain the approval of the
Company for each Team Members (Save for the following
members who were approved within the Tender: Systems
Engineer; Operations and Maintenance Expert; Rolling
Stock Engineer and Track Engineer) prior to engagement
thereof and in accordance with the provisions of Annex H
(Team Members in the LRT Consultant).
6.3.2. Each candidate must comply and satisfy all of the
following requirements:
6.3.2.1. The candidate meets the professional experience
specified in Annex H (Team Members in the
LRT Consultant) for the applicable discipline
and/or category.
6.3.2.2. The candidate is not a resident or citizen of a
state which does not have diplomatic relations
with the State of Israel.
6.3.2.3. The candidate has not been convicted of an
Offence and no indictment (criminal charges)
with respect to an Offence has been filed
(submitted) against any of such.
6.3.3. The LRT Consultant will submit to the Company a detailed
request for approval with respect to each potential Team
Member, together with all the information and documents
with respect to each Team Member, including information
demonstrating the Team Members’ compliance with the
conditions set forth hereinabove and a Team Members'
Undertaking Letter duly signed by the potential team
members in the form attached hereto as Annex F (Letter of
Undertaking) (the “Request”). The LRT Consultant will
provide the Company with any additional information as
may be required by the Company during the evaluation of
the Request.
6.3.4. Save for those members approved within the Tender, the
Request with respect to each potential team member will be
submitted to the Company no later than ninety (90) days
prior to the date on which such member is designated to
commence the provision of the Services.
Replacement of Team members 6.4.
14
6.4.1. The Company may require the LRT Consultant to remove
or replace any Team Member, if the Company considers
such Team Member not to be performing its duties in
accordance with this Agreement or in the best interests of
the Project, or if the Company considers the conduct of
such Team Member to be unsatisfactory under the
circumstances.
6.4.2. The LRT Consultant shall not remove or replace any Team
members, unless the LRT Consultant has provided the
Company with a request supported by all relevant
documents as may be requested by the Company
(hereinafter in this Section 6.4 "Amendment Request")
and the Company has approved the Amendment Request,
all in accordance with the provisions of this Agreement.
6.4.3. An Amendment Request shall include the reason for the
request, as well as all the information with respect to the
candidate for team member, as specified in Sections 6.3.2-
6.3.3 above.
6.4.4. The LRT Consultant shall not submit an Amendment
Request and the Company shall not review any
Amendment Request which includes any of the following:
6.4.4.1. a request to change the identity of the Team
Leader;
6.4.4.2. a request to replace or remove a member of the
Team Members prior to the elapse of twenty four
(24) months from the appointment thereof;
unless such is submitted due to the occurrence of unique
justified circumstances, to be determined at the sole
discretion of the Company.
6.4.5. Subject to the provisions of Sections 6.4.2 and 6.4.4 above,
the Company shall review an Amendment Request and
shall either comment, approve, with or without conditions
precedent, or reject in writing such request within thirty
(30) days following the receipt thereof.
6.4.6. Where the Company has approved a replacement of a Team
Member, the LRT Consultant undertakes to perform an
orderly handover between the relevant personnel, at the
LRT Consultant's cost and without any Entitlement. The
LRT Consultant shall notify the Company, in writing,
immediately upon it becoming aware of any change or of
the likelihood of a change in the identity of a member of
the Team Members, including where a Team Members has
ceased, fully or in part, from performing, temporarily or
permanently, his/her obligations in connection with the
Services, or informed of his/her intention of the foregoing.
15
6.4.7. Without derogating from any of the Company's rights
under the Agreement, for any breach of this Section 6.4.6
the Company shall be entitled to Liquidated Damages, as
provided in Section 13 (Liquidated Damages) below.
7. THE SERVICES' CONCEPT, SCOPE AND SCHEDULE
General 7.1.
The LRT Consultant undertakes to provide the Services in compliance
with this Agreement and in accordance with all of the corresponding
instructions given by the Company.
Scope of Services 7.2.
7.2.1. The LRT Consultant shall perform the Services as provided
in Annex B (The Services) and all other services as
reasonably ancillary, related to or resulting from the
Services and as shall be instructed by the Company.
7.2.2. It is hereby clarified that the Scope of Services is not
exhaustive and may be amended, updated or replaced from
time to time during the Agreement Period, in accordance
with Section 8 (Prerogatives of The Company).
7.2.3. The LRT Consultant's Deliverables are to be prepared
based on necessary and appropriate research, surveys and
factual information from relevant data sources. The
Deliverables must comply with applicable Laws and must
give full consideration to the views and comments
expressed by the Company, its representatives and any
Relevant Authority. All such Deliverables shall be
provided to the Company and other professionals acting on
the Company's behalf for their review, comments and
consideration.
7.2.4. The LRT Consultant shall, without additional Entitlement:
7.2.4.1. respond to questions relating to the Services
including requests for information from the
Company or the Company's representatives;
7.2.4.2. correct any errors and deficiencies in the
Services its provided; and
7.2.4.3. maintain records to demonstrate to the
Company's satisfaction that the correction of
such errors or deficiencies has been carried out.
7.2.5. The LRT Consultant shall, at all times, keep the Company
fully informed of the performance of the Services and shall
provide the Company, from time to time, with all related
information as the Company may require.
Local Lahav Team 7.3.
16
The Company may appoint the Local Lahav Team Leader as its
representative for the execution of this Agreement. The Lahav Team
Leader role may include, inter alia, the management of the day-to-day
activities of the LRT Consultant, professional guidance, supervision
over the provisions of the Services by the LRT Consultant and any
additional tasks to be assigned by the Company to the Local Lahav
Team Leader.
8. PREROGATIVES OF THE COMPANY
Instruction. 8.1.
The Company, and any of its designated representatives, shall be
entitled, throughout the Agreement Period to provide the LRT
Consultant with written instructions with regards to the provision of the
Services (for the purpose of this Section 8, an "Instruction").
For the avoidance of doubt, an Instruction may include, among others,
any instruction related to the Project, including the preparation of
plans, designs and blueprints under this Agreement, and including with
respect to introduction of additional lines, a substantial change in the
routes of the Light Railway Project and any other related issue which
the Company finds the LRT Consultant to be suitable for executing.
Continuance of Obligations 8.2.
For the avoidance of doubt, it is hereby clarified that other than the
explicit approval by the Company within an Instruction, the issuance
by the Company of an Instruction shall not release the LRT Consultant
of any of its obligations or responsibilities under this Agreement.
Cooperation between the Parties and Obligations of the LRT 8.3.
Consultant
The LRT Consultant and the Company shall do their best efforts to try
and resolve amicably all differences between them concerning
Instructions, should such differences arise. However, in each event and
notwithstanding the foregoing, the LRT Consultant shall carry out each
determination of the Company and abide by an Instruction issued by
the Company.
No Double Compensation 8.4.
The LRT Consultant shall not be entitled to double compensation for
components which are included under this Section 8.
9. LRT CONSULTANT’S LIABILITY
Indemnity. Notwithstanding anything contained herein to the contrary, 9.1.
the LRT Consultant agrees to indemnify and hold harmless the
Company and its directors, officers and employees from and against all
taxes, losses, expenses, damages (whether direct, indirect or
consequential or otherwise) or loss to property of either the Company
or third parties, or injuries to or death of persons (including employees
of the LRT Consultant and third parties) of whatever kind caused by,
17
arising out of, incidental to or connected with the provision of the
Services or otherwise pursuant to this Agreement, arising directly or
indirectly from: (i) any negligent, reckless or intentionally wrongful
act; (ii) a determination of a competent court; or (iii) any breach of the
covenants in this Agreement.
Damages or loss. In the event that the Company is charged by a court 9.2.
of law to pay any amount to a third party for damages or loss for which
the LRT Consultant is responsible, as stated herein, the LRT
Consultant shall reimburse the Company or fully compensate the third
party directly (at the Company’s option) in respect of that amount,
together with any lose or expenses incurred by the Company in respect
thereof. The amount of any such reimbursement shall be regarded as a
debt due from the LRT Consultant to the Company under this
Agreement.
Third parties. The Company does not assume any liability to third 9.3.
parties, nor will it reimburse the LRT Consultant for its liability to third
parties (including but not limited to its use of sub-consultants, agents,
employees or representatives), with respect to loss or damage whether
due to death, bodily, mental or emotional injury, damage to property or
otherwise, resulting in any way (whether from the performance of the
Services or otherwise) in connection with this Agreement, and the LRT
Consultant alone shall bear the responsibility in any such case.
Limitation of liability. Notwithstanding anything to the contrary in 9.4.
this Agreement, the total aggregate liability of the LRT Consultant
under this Agreement arising out of, connected with, or resulting from
this Agreement including any claim, damage, loss and/or defect and/or
malfunction, of any kind, as detailed above, which were caused to the
Company and/or anyone acting on its behalf, shall be capped and in no
case exceed 100% (one hundred percent) of the Service Price to which
the LRT Consultant is entitled under this Agreement.
The limitations of liability above shall not apply to:
9.4.1. LRT Consultant’s liability to indemnify Company against
claims by third parties for death, injury of any third party, or for
damage to property of any third party caused as a result of the
negligence or willful misconduct or fraud of LRT Consultant or
its subcontractors or labor;
9.4.2. liability satisfied by the proceeds of insurance required to be
maintained pursuant to this Agreement and such proceeds shall
not be counted towards the liability cap set out in Section 9.4
above;
9.4.3. cases of willful misconduct, fraud or gross negligence of LRT
Consultant or its subcontractors or labor; and
9.4.4. compensation and indemnity pursuant to the provisions of
Section 9.1 above.
10. INSURANCE
18
General. Without derogating from any of the LRT Consultant’s 10.1.
responsibilities and liabilities hereunder and/or under any applicable
law, the LRT Consultant shall procure and maintain insurance at its
own expense at the level and of the type specify in Annex G
(Insurance).
Evidence. The LRT Consultant shall submit to the Company copies of 10.2.
the signed insurance certificates in accordance with the provisions of
Annex G (Insurance) at the dates detailed in Annex G (Insurance).
Cancellation of the insurance policies. The LRT Consultant shall 10.3.
refrain from canceling the insurance policies and/or from decreasing
their scope. The LRT Consultant further undertakes to notify the
Company of any situation of cancellation and/or expiration of any of
the insurance policies specified in this section, at least sixty (60) days
before the date of occurrence of such situation.
Increasing coverage. The Company may, acting reasonably, request in 10.4.
writing that the LRT Consultant increases the insurance coverage
above that required in this section or effects other insurances. The LRT
Consultant shall make all reasonable efforts to do so and on terms
acceptable to the Company.
Indemnification. The LRT Consultant undertakes to indemnify the 10.5.
Company for any amount incurred by the Company as a result of a
violation by the LRT Consultant (and/or any person or entity acting on
its behalf) of any of the conditions of its insurance policies.
Sub-contractors. The LRT Consultant shall be responsible to ensure 10.6.
that any entity or Person working on its behalf shall carry the same
insurance policies mentioned in this section, and that such policies
shall include the same waivers required from the LRT Consultant
towards the Company and/or anyone on its behalf.
11. PAYMENT
Payment. In consideration for the full and timely performance by the 11.1.
LRT Consultant of all of its obligations under this Agreement, the
Company shall pay the LRT Consultant the service price set forth in
accordance with Annex D (Service Price) at the times and in the
manner prescribed therein (the “Service Price”).
Total Amount. Except as otherwise expressly provided in this 11.2.
Agreement, the Service Price is the complete and full compensation
payable to the LRT Consultant for the full performance of this
Agreement and the provision of the Services and includes all travelling
expenses, living costs (including food and accommodation), labor
furnished by the LRT Consultant, the Team Members and any other
Person acting on behalf of the LRT Consultant or otherwise arising out
of the LRT Consultant's provision of the Services.
Set-off. The Company may set off any amount payable by the LRT 11.3.
Consultant to the Company (including, inter alia, Liquidate Damages),
against any amount payable by the Company to the LRT Consultant.
19
The LRT Consultant may not set off any amount payable by the
Company to the LRT Consultant pursuant to this Agreement, any other
agreement or pursuant to any Law, against any amount payable by the
LRT Consultant to the Company pursuant to this Agreement.
Tax. The Company shall be entitled to withhold and deduct all relevant 11.4.
Taxes from any amount payable to the LRT Consultant, unless the
LRT Consultant provides to the Company a tax exemption from such
withholding.
The Company right to recover. Nothing in this Section 11 affects the 11.5.
right of the Company to recover from the LRT Consultant the whole,
or any part, of any sum owing to the Company.
12. PERFORMANCE BOND
In order to secure the full and timely performance by the LRT 12.1.
Consultant of all of its obligations under this Agreement and as a
conditions precedent for paying any payment to the LRT Consultant by
the Company, the LRT Consultant shall procure that on or before the
Signature Date a Performance Bond in an amount of one hundred
thousand Euro (€100,000), in form attached as Annex I, is delivered to
the Company. The receipt by the Company of the Performance Bond
shall be a pre-condition to any payment to the LRT Consultant
("Performance Bond").
The Performance Bond will remain in full force and effect until the 12.2.
ending of the Agreement Period.
In the circumstances in which the Performance Bond or part thereof 12.3.
was exercised by the Company, the LRT Consultant shall, within thirty
(30) days from the date of exercise by the Company, restore the
amount of the Performance Bond to its required level as specified
under this Agreement, by providing the Company with a new
Performance Bond, and without any limitation on the amount or
number of times that the LRT Consultant will be required to do so
following exercise by the Company. If the LRT Consultant does not
provide the Company an additional Performance Bond in place of the
Performance Bond or part thereof that was exercised, without
derogating from the rights of the Company pursuant to the Agreement
and any law, the Company will be entitled to exercise the amount of
the Performance Bond that the LRT Consultant had to restore from the
amount of the Performance Bond it holds.
The LRT Consultant undertakes to extend the validity of the 12.4.
Performance Bond from time to time, without any entitlement to
additional consideration, until the date on which the Performance Bond
will return to it by the Company as specified in Section 12.2 above.
In order to ensure that the Performance Bond is in full force and effect 12.5.
for the relevant period of time provided for, the LRT Consultant shall
at least thirty (30) days prior to the expiry of the Performance Bond
procure an extension of the form of such bond. If the LRT Consultant
has not provided an extension or replacement Performance Bond as
20
provided for herein, before the expiration of such Performance Bond,
the Company may draw upon the Performance Bond for the full
amount and to hold the same as security for compliance by the LRT
Consultant with its obligations under this Agreement.
The Company may in its discretion exercise its rights under the 12.6.
Performance Bond and collect by virtue thereof any payment due to it
from the LRT Consultant in accordance with the terms of this
Agreement. The Company shall have the right to draw on from the
Performance Bond more than once up to the amount of the
Performance Bond.
Without derogating from the rights of the Company pursuant to this 12.7.
Agreement, the LRT Consultant shall be notified of the intention of the
Company to issue a demand for payment pursuant to the Performance
Bond, at least seven (7) days prior to the date of delivery of such
demand except for in the event of urgency in which in the opinion of
the Company such seven (7) days period may materially and adversely
affect the rights of the Company.
The Performance Bond pursuant to this Section 12 must be issued by 12.8.
an Approved Financial Institution.
The Performance Bond shall be an autonomous, unconditional and 12.9.
irrevocable bank guarantee in favor of the Company. It is agreed and
clarified that no provision in this Agreement shall affect the autonomy
of the Performance Bond.
The exercise by the company of the Performance Bond or any part 12.10.
thereof in accordance with the provisions of this section above will not
prejudice the right of the Company to obligate the LRT Consultant to
pay compensation or to enforce any relief granted to the Company
under this Agreement and any law.
13. LIQUIDATED DAMAGES
Liquidated Damages for Delay
In the event that the LRT Consultant fails to submit to the Company 13.1.
any report for which a binding submission date has been determined by
the Company, the LRT Consultant shall pay the Company an amount
equal to two hundred and fifty Euro (€ 250) for each day commencing
on the date for submission of the applicable report and ending on the
actual submission thereof (the “Liquidated Damages for Delay”).
If the delay in the submission of one or more of the reports specifies in
Section 13.1 occurs during Infra 2 Stage, then the LRT Consultant shall
pay the Company an amount equal to five hundred Euro (€ 500) for
each day and the rest the provisions of this section shall apply, mutatis
mutandis.
Liquidated Damages for Team Members
Member of the Team Members. If a member of the Team Members: 13.2.
(i) has not been appointed by the LRT Consultant to provide the
21
applicable Services by the applicable date pursuant to the provisions of
this Agreement; or (ii) ceased to act as a Team Member; or (iii) does
not provide the Services required thereby under the Agreement; or (iv)
was not granted with the applicable Working Permit or any other
Permit or Approval required for the provision of the Services; for any
reason whatsoever and without the Company's prior approval, the
Company may impose on the LRT Consultant agreed liquidated
damages in the amount of:
13.2.1. in respect of the Team Leader, two thousand Euro (€2,000)
per day;
13.2.2. in respect of any other Team Member, one thousand Euro
(€1,000) per day,
(the “Liquidated Damages for Team Members”)
the Liquidated Damages for Team Members and the Liquidated
Damages for Delay shall be referred jointly as the "Liquidated
Damages".
No penalty. The LRT Consultant acknowledges and confirms that the 13.3.
amounts of Liquidated Damages detailed above are reasonable and
have been determined after due consideration of the damages, losses
and costs the Parties anticipated on the Signature Date that the
Company is likely to incur as a result of such actions and therefore the
Liquidated Damages shall not be regarded as a penalty and shall not be
conditioned on the Company having to present evidence of any loss.
Reservation of rights. The impose by the company on the LRT 13.4.
Consultant to pay Liquidated Damages in accordance with the
provisions of this section above will not prejudice the right of the
Company to obligate the LRT Consultant to pay compensation or to
enforce any relief granted to the Company under this Agreement and
any law, and the obligation of the LRT Consultant to pay Liquidated
Damages shall not be construed as the consent of the Company for
delays of the performance of the Services, or lack of compliance by the
LRT Consultant with its undertakings under this agreement.
Payment of the Liquidated Damages. The Liquidated Damages in 13.5.
accordance with the provisions of this Section shall be paid by the LRT
Consultant within 7 (seven) Business Days from the end of each
calendar month.
14. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
Information. Both Parties shall keep all Confidential Information 14.1.
obtained by them in the context of this Agreement confidential and
shall not divulge it without the prior written approval of the other party.
Intellectual Property. All the materials and information collected and 14.2.
made by the LRT Consultant in the course of its provision of the
Services or in relation thereto and all Deliverables, plans, drawings,
blueprints, designs, models, etc. and any other materials and
information accumulated by the LRT Consultant in the course of
22
performing the Services including analysis, ideas and any other
conclusions or results gathered in relation to the Services shall
exclusively belong to the Company and the LRT Consultant and any
one on its behalf shall not have any Claim, Intellectual Property Rights,
moral rights or any other rights therein.
Ownership and assignment. With respect to Deliverables which are 14.3.
subject to pre-existing Intellectual Property Rights, the LRT Consultant
shall grant the Company with unrestricted and royalty free right to use
such Deliverables and shall cause all relevant personnel to act upon the
same.
Use by Company. The Company may use and exploit as it sees fit the 14.4.
results of the Services and/or any document or work provided by the
LRT Consultant pursuant to the terms of this Agreement, including
changing it and/or disclosing it to third parties, without any limitation.
The Company shall be entitled to use any information related to the
Services for the purpose of the further development of the mass
transportation network in the Haifa Metropolitan Area in general,
including the Light Rail Project.
Delivery upon completion or termination. Upon completion or 14.5.
termination of the Services, for any reason, the LRT Consultant shall
promptly submit and deliver to the Company without any cost all
documents, notes and other information or equipment furnished to the
LRT Consultant by the Company or prepared or designed by the LRT
Consultant specifically in connection to the Agreement.
Indemnity. The LRT Consultant shall hold harmless and indemnify 14.6.
the Company from and against all Claims, proceedings, damages,
costs, charges and expenses, including all legal expenses for or on
account of alleged infringement of any Intellectual Property Rights,
including, without limitation, patents, designs, trademarks, copyright
and knowhow in respect of the Services.
Implementation of the provision. The LRT Consultant shall ensure 14.7.
that provisions reflecting the aforesaid shall be incorporated in all
agreements made with Project Planer's Team Members, their
employees, subcontractors and suppliers
15. CONFLICT OF INTEREST
General. The LRT Consultant hereby declares that there is no, and 15.1.
there will not be, throughout the Agreement Period, conflict of interests
between any of its other activities or obligations or any of its
employees' (including the Team members) other activities or
obligations, and its obligations and undertakings under this Agreement.
The LRT Consultant shall cause all relevant personnel employees'
(including the Team members) to act upon the same.
The LRT Consultant hereby undertakes to refrain from, and shall cause
all relevant personnel to refrain from any action that may involve a
conflict of interest between performing its duties under this Agreement,
and performing any other duty or commitment of the LRT Consultant
23
or anyone on its behalf, including its employees, directly or indirectly,
and it hereby undertakes to inform the Company about any concern for
conflict of interest between its obligations or the obligations of its
employees under this Agreement and any of their other activities, and it
undertakes to act in accordance with the Company's instructions to
prevent such conflict of interest.
Without derogating from the generality of the foregoing and the
provisions of this Agreement, to the extent that the LRT Consultant
provides or intends to provide any supervision and controlling or
designing or planning services to a third party in connection with the
Project, the LRT Consultant shall provide to the Company with a prior
written notice of any such intension.
Non Conflict of Interest Undertaking. The LRT Consultant hereby 15.2.
undertakes to have its personnel which is employed or otherwise
engaged in the performance of the Services, execute a commitment of
non-conflict of interest, in the form of Annex F (Letter of
Undertaking). The LRT Consultant shall provide the Company with all
executed commitment letters, prior to the employment of each of its
employees. Such executed commitment letters shall be attached hereto
as Exhibit 6 (Executed Letters of Undertakings).
The provisions of this Section 15 will remain in full force and effect for 15.1.
an additional period of six (6) months following the termination of this
Agreement for any reason whatsoever, with respect to each and any
part of the Services performed by the LRT Consultant under this
Agreement, unless the Company directed otherwise in writing
following the LRT Consultant's prior written request, at the Company's
sole discretion.
16. TERMINATION
Termination by the Company 16.1.
Without derogating from all other rights and remedies available to it
under this Agreement or under Law, the Company may terminate this
Agreement, by issuing a Notice of Termination pursuant to Section
16.2 below, upon the occurrence of any one of the following events:
16.1.1. the LRT Consultant ceases to provide the Services for
reasons other than those permitted under this Agreement;
16.1.2. a court makes an order for the liquidation of the LRT
Consultant, or a resolution for a voluntary liquidation of the
LRT Consultant is passed, except for the purposes of
merger or reconstruction on terms approved in advance and
in writing by the Company;
16.1.3. liquidation, receiverships, or reorganization proceedings
shall have been commenced by or against the LRT
Consultant, unless such proceedings are discharged within
ninety (90) days;
24
16.1.4. the LRT Consultant becomes insolvent, or bankrupt or
seeks relief or reorganization under any bankruptcy or any
similar law that applies to it by its law of jurisdiction or by
the applicable laws, or does not pay its debts as they
become due, or admits in writing its inability to pay its
debts;
16.1.5. the LRT Consultant, or a member of the LRT Consultant's
Team Members engages in any conduct which the
Company considers to be prejudicial to the provision of the
Services or to the Project;
16.1.6. any representation or warranty made by the LRT
Consultant to the Company in the Tender Documents or the
Agreement or any certificate, schedule, instrument or other
document delivered by the LRT Consultant pursuant to the
Tender Documents or the Agreement shall have been false
or materially misleading when made;
16.1.7. the LRT Consultant is found to be in conflict of interests
with regard to this Agreement or the Services;
16.1.8. the LRT Consultant is in breach of any undertaking or
obligation provided in the Agreement for more than sixty
(60) days;
16.1.9. a member of the Team Members: (1) has stopped,
permanently or temporarily, to provide the Services; or (2)
does not fulfill his/her duties in accordance with the
provisions of the Agreement; or (3) is not present in Israel
at all times as required under this Agreement without the
Company’s approval; or (4) was substituted or replaced not
in accordance with the provisions of this Agreement;
16.1.10. the LRT Consultant is in a Material Breach of any
undertaking and obligation provided in any of the
Agreement;
(each of the above: an "Event of Default").
Notice of Termination by the Company 16.2.
16.2.1. Upon the occurrence of an Event of Default the Company
will issue a Notice of Termination, specifying the LRT
Consultant's Event of Default (and, if the Event of Default
is curable within the timeframe set for curing such Event of
Default in Section 16.1, requesting the LRT Consultant to
remedy such Event of Default within such period of time
but in any case not later than sixty (60) days following
receipt of such notice) (the "Initial Notice of Termination
by the Company" and the "Remedy Period",
respectively).
16.2.2. In the event that upon the elapse of the period of time
specified in the Initial Notice of Termination by the
Company, the Event of Default is still outstanding, the
25
Company will be entitled to issues a notice of termination
(“Notice of Termination by the Company”).
16.2.3. The Notice of Termination by the Company to the LRT
Consultant will be effective within seven (7) days
following the issuance of such notice if the Event of
Default is not remedied by the expiration of the Remedy
Period.
Termination for Convenience 16.3.
Without derogating from any right and remedy available to the Company
under this Agreement or under Law, the Company shall be entitled to
terminate this Agreement, at any time and for any reason at its sole
discretion, by giving notice of termination to the LRT Consultant. The
termination shall take effect ninety (90) days after the date in which the LRT
Consultant receives such notice.
Termination by the LRT Consultant 16.4.
The LRT Consultant shall have the right to terminate this Agreement,
by issuing a notice of termination pursuant to Section 16.5, only in an
event where the Company has failed to make payments due within
ninety (90) days of receipt of written notice from the LRT Consultant
that such payment is overdue and where such sums are not the subject
matter of a dispute in accordance with this Agreement, provided that
such notice shall not be issued by the LRT Consultant unless the sums
overdue exceed three million (3,000,000) NIS (not including VAT,
interest and linkage differentials, as applicable).
Notice of Termination by the LRT Consultant 16.5.
16.5.1. Prior to exercising its right to issue a notice of termination
(“Notice of Termination by the LRT Consultant”), the
LRT Consultant will issue a written notice to the Company,
specifying the Company's event of default and requesting
the Company to remedy the cause of such event of default
within sixty (60) days following receipt of such notice.
16.5.2. The LRT Consultant will be entitled to issue a Notice of
Termination by the LRT Consultant to the Company, which
shall be effective seven (7) days following issuance of such
notice, if such event of default is not remedied by the
expiration of the said sixty (60) days period.
Effects of Termination 16.6.
16.6.1. Within seven (7) days of the Notice of Termination the
LRT Consultant shall:
i) take all reasonable measures (or such measures as
may be directed by the Company) to preserve all
Deliverables and other materials related to the
production of Deliverables or the Services or the
Project, maintained by the LRT Consultant or by
anyone on behalf of the LRT Consultant;
26
ii) make all necessary arrangements and take all
necessary measures for the proper and orderly
cessation and transfer, as the Company may direct, of
the Services and the mitigation of any and all costs
related thereto; and
iii) return to the Company any documents, equipment,
instruments, and all other objects that have been
made available to the LRT Consultant.
16.6.2. Within thirty (30) days of the Notice of Termination, the
LRT Consultant shall deliver to the Company one (1) hard
copy and one (1) copy on a portable electronic medium of
all Deliverables (whether complete or incomplete)
produced by the LRT Consultant up to the Termination
Date.
16.6.3. In any event of termination, for any reason, the Company
may complete the Services or arrange for any other Person
to do so. the Company and such Person may use any
Deliverables and make use of any Services provided by the
LRT Consultant without any limitation and payment to the
LRT Consultant.
16.6.4. Within sixty (60) days from the Notice of Termination the
LRT Consultant shall submit to the Company a final
payment request invoice for all outstanding amounts
regarding Services performed by the LRT Consultant until
the Termination Date. Such payment request shall be paid
in accordance with the payment mechanism of Annex D
(Service Price).
16.6.5. The Company may deduct or set-off from the final payment
due to the LRT Consultant amounts direct costs, damages
and reasonable expenses incurred by Company as a result
of the termination of this Agreement.
16.6.6. If in the conclusion of the final payment amount, the
amounts payable by the LRT Consultant to the Company
exceed the certified final payment request invoice, then
upon the Company's first request the LRT Consultant shall
pay to the Company the balance amount and shall be
entitled to collect such amount, in any way under Law, at
the Company's sole discretion.
16.6.7. In any event of termination of this Agreement, the LRT
Consultant specifically, unconditionally and irrevocably
waives and relinquishes any right it might have to claim
enforcement, or any injunctions, decrees, writs, caveats or
any other procedure which may result in, directly or
indirectly, a disturbance to, or the suspension of the
implementation of the Services or the Project and the sole
remedy that may be available to the LRT Consultant shall
be limited to monetary compensation.
27
16.6.8. Payment of compensation pursuant to this Section will be
made within ninety (90) days following the conclusion by
the Company of the amount of the final payment requested
by the LRT Consultant.
Rights and Liabilities of Parties upon Termination 16.7.
16.7.1. Termination of this Agreement shall not prejudice or affect
the accrued rights or claims and liabilities of the Parties.
16.7.2. Following termination of this Agreement, the provisions of
Sections 11, 14, 15, 16 and 17 shall survive the termination
(for whatever reason) of this Agreement for a period of five
(5) years from the date of termination.
16.7.3. To the extent permitted by the Law, neither party shall be
required to indemnify or be liable to the other Party,
whether in contract or otherwise, for loss of anticipated
profits, loss of business opportunities, cost of money, loss
of use of capital or revenue, or for any indirect
consequential loss or damage of any nature, if such Party
causes loss or damage to the other Party.
17. MISCELLANEOUS
Entire Agreement. This Agreement, together with any documents 17.1.
referred to in it, constitutes the entire agreement between the Parties
with respect to its subject matter and supersedes and extinguishes any
prior drafts, agreements, undertakings, representations, warranties and
arrangements of any nature and may not be modified except by an
instrument in writing signed by the duly Authorized Representatives of
the Parties.
Language. The binding version of this Agreement shall be solely in 17.2.
English.
Any correspondence between the Company and the LRT Consultant, as
well as meetings and discussions between the Company and the LRT
Consultant shall solely be in English, unless the Company determines
otherwise.
Governing Law; Jurisdiction. This Agreement shall be deemed to be 17.3.
a contract made under the laws of the State of Israel, and for all
purposes shall be construed in accordance with the laws thereof,
without regard to principles of conflict of laws. Each of the Parties
consents to the exclusive jurisdiction of the competent court of Tel
Aviv-Jaffa district with respect to any action arising out of, or relating
to, this Agreement.
Counterparts. This Agreement may be executed in any number of 17.4.
counterparts, each of which shall be deemed an original and
enforceable against the Parties actually executing such counterpart, and
all of which together shall constitute one and the same instrument.
Severability of Provisions. If any part or parts of this Agreement will 17.5.
be declared or held invalid or unenforceable by competent courts, the
28
other parts hereof will not be affected or impaired, but shall remain in
full force and effect. Following any such holding, the Parties shall
negotiate in good faith new provisions to restore, as best as possible,
the original intent and effect of this Agreement
Waiver. In any case where a Party shall fail to exercise, or delays the 17.6.
exercise, of any or its rights under this Agreement, this shall not be
deemed a waiver, consent or admission of any kind on its part with
regard to such rights in the future.
Amendment. This Agreement may only be amended or modified by a 17.7.
written instrument signed by both Parties. The requirement for a
written instrument is a material and essential requirement, and any
amendments or modifications to this Agreement without a written
instrument signed by both Parties shall be null and void.
Assignment. The Company may at any time, in its absolute discretion, 17.8.
by written notice to the LRT Consultant, assign or transfer any (or all)
of its rights, privileges or obligations under this Agreement to the State
of Israel or any entity Controlled thereby.
The LRT Consultant shall not sell, assign or transfer in any way
whatsoever any obligation or right that it has pursuant to the
Agreement, whether in one transaction or in a series of transactions,
unless, subject to any and all applicable Laws, the Company has given
prior written express approval.
Notices. All notices and other communications required or permitted 17.9.
hereunder to be given to a Party to this Agreement shall be in writing
and shall be faxed, emailed, or mailed by registered or certified mail,
postage prepaid, or prepaid air courier, or otherwise delivered by hand
or by messenger, addressed to such Party's address as set forth below
(or at such other address as the Party shall have furnished to the other
Party in writing in accordance with this provision):
For the Company
For the LRT
Consultant
Address 65 Yigal Alon, Toyota Tower
(Tower A), 7th floor, Tel Aviv-
Yafo 6744316, Israel
_______________
E-mail Address: _______________ _______________
Facsimile No: _______________ _______________
With a copy to: _______________ _______________
Addresses:
_______________ _______________
Facsimile No: _______________ _______________
29
Any notice sent in accordance with this section shall be effective:
17.9.1. if mailed, seven (7) Days after mailing,
17.9.2. if by air courier two (2) Days after delivery to the courier
service,
17.9.3. if sent by messenger, upon delivery, and
17.9.4. if sent via fax or email, upon transmission and electronic
confirmation of receipt (or if transmitted and received on a
non-business Day, on the first business Day following
transmission and electronic confirmation of receipt),
provided, however, that any notice of change of address shall only be
valid upon receipt.
IN WITNESS WHEREOF each of the Parties hereto has caused this
Agreement to be executed on its behalf by its duly authorized officers, all as
of the day and year first above written.
Authorized signature(s) of the Company:
_______________________________________________
In the presence of:
Name:
________________________________________________
Signature:
________________________________________________
Address:
________________________________________________
Authorized signature(s) of the LRT Consultant:
________________________________________________
In the presence of:
Name:
________________________________________________
Signature:
________________________________________________
Address:
________________________________________________
ANNEX “A”
Definitions
1. All terms capitalized in this Agreement and its appendices, but not defined
therein, shall have the meaning ascribed thereto in this Annex A (Definitions).
2. Notwithstanding the above, in the event of any conflict between the definitions
herein and the definitions included in any part of volume II, the definitions herein
shall prevail, provided however, that in the event of doubt, the definition most
favorable to the Company or anyone on its behalf shall apply.
3. In the Agreement and its appendices, unless the context requires otherwise, any
reference to a term in the first column of the table below shall have the meaning
set forth opposite such term.
Agreement or LRT
Consultant
Agreement
Shall mean the agreement in Volume II of the Tender Documents
entered into between the LRT Consultant and the Company for the
supervision and control of the overall design of the Light Rail Train,
including all appendices and forms attached thereto, and all applicable
addenda and amendments.
Agreement Period Shall have the meaning ascribed thereto in Section 2.1. (Agreement
Period) of the Agreement.
Approvals Shall mean each of the approvals, permissions, permits, consents,
licenses, authorizations, registrations, grants, acknowledgements or
agreements of any type to be obtained and maintained from any
Relevant Authority under any Laws in order to provide the Services in
accordance with the provisions of the Agreement.
Approved Financial
Institution
Shall mean (i) A large Israeli commercial bank or an insurance
company that has a license to engage in insurance under the
Supervision of Financial Services (Insurance) Law, 5741-1981; or (ii)
with respect to an Entity registered outside the State of Israel – an
offshore commercial bank registered and incorporated in a country
having diplomatic relations with the State that has an "A" level or
equivalent credit rating according to one or more of Standard & Poor's
Financial Services LLC, Moody's Investors Service and Fitch Ratings
Inc., or such other reputable credit rating agency acceptable to the
Company.
Blueline The geographic boundaries of the Project, as specified under Annex B
(The Services) to the Agreement.
Business Day Shall mean a day (other than Friday or Saturday) on which banks are
open for domestic business in the State of Israel.
Claim Shall mean any claim, demand, allegation, petition, law suit or any
other action involving legal proceedings of any kind.
Page 2 of 52
Company Shall have the meaning ascribed thereto in the preamble of the
Agreement.
Confidential
Information
Shall mean any information, details and documents including any
idea, plan, invention or work in connection with the execution of the
Agreement, the Project and the Services, whether in writing or orally
or in any other manner, including a copy and / or reproduction and /
or any summary and / or processing of the foregoing, in any media,
which delivered or received by the LRT Consultant or any person on
its behalf during the performance of the Agreement.
Control Shall have the meaning ascribed thereto in Section 1 of the Securities
Law, 1968, as may be amended from time to time.
CPI means the Israeli consumer price index as published from time to time
by the Israeli Central Bureau of Statistics or by another body which
has been authorized by the Government to replace it.
Deliverables Shall mean each document, report, submission, written determination
or other work related to the Services, which are provided or required
to be provided (including but not limited to the preparation,
conception or development thereof) by or on behalf of the LRT
Consultant, in connection with the Services, as required in Annex B
(the services) and in other provisions of the Tender Documents and as
may be provided by the Company from time to time.
Entitlement Shall mean any privilege or right for:
(a) an extension of time;
(b) an adjustment to the Services Price or any other payment to
the LRT Consultant by the Company;
(c) a recovery of loss, costs, profit, fees, damages or expense of
any kind arising:
i. out of or in connection with the Agreement; or
ii. out of or in connection with the Services or the
performance of the Services; or
(d) any other remedy.
Event of Default Shall mean any of the events set out in Section 16.1. (Termination by
Company) of the Agreement.
Government or GoI Shall mean the Government of the State of Israel acting on behalf of
the State of Israel.
Haifa Metropolitan
Area
Shall have the meaning ascribed thereto in Annex B (The Services) to
the Agreement.
HICP Means the Harmonised Index of Consumer Prices (HICP), as
published from time to time by the Eurostat, the statistical office of
the European Union, or by another body which has been authorized
by the European Union to replace it.
Page 3 of 52
Initial Notice of
Termination by the
Company
Shall have the meaning ascribed thereto in Section 16.2.1 of the
Agreement.
Insurance Policies Shall mean the insurance policies required to be procured by the LRT
Consultant pursuant to Section 10 (Insurance) of the Agreement,
pursuant to applicable Law, and other insurance policies actually
procured by the LRT Consultant.
Intellectual
Property Rights
Shall mean all know how, patents, trademarks, service marks, designs,
business names, topographical or similar rights, copyrights and other
intellectual and industrial property rights and any interests (including
by way of license) in any of the foregoing (in each case whether
registered or not and including all applications for the same).
Invitation or ITB Shall mean the invitation to submit Proposals within the Tender, in
Volume I of the Tender Documents.
Law(s) Shall mean the laws in force in the State of Israel, including all
national and municipal laws, regulations, binding rulings, ordinances,
codes, instructions of any national or municipal or other authority, as
are or as shall be in force from time to time.
Liquidated
Damages
Shall mean each of the liquidated damages imposed on the LRT
Consultant under Section 13 of the Agreement.
Material Breach Shall mean a breach of the LRT Consultant's obligations under the
Tender Documents, and any other event that according to Sections 6
and 7 of the Contract Law (Remedies for Breach of Contract) of 1970,
may constitute a material breach.
National
Infrastructure
Program
Shall have the meaning ascribed thereto in Annex B (The Services) of
the Agreement.
Notice of
Termination
Shall mean a notice of termination of the Agreement, issued pursuant
to Sections 16.2. (Notice of Termination by the Company) or 16.3
(Termination for Convenience) or 16.5. (Notice of Termination by the
LRT Consultant) of the Agreement, and subject to the terms and
conditions thereof, as applicable.
Offence Shall mean a criminal offence, in Israel or abroad, which constitutes a
felony ( או "פשע" or any other criminal offence according to ,("עוון"
applicable Law, conviction of which resulted in a prison sentence of
at least one (1) year (or longer) and where such sentence was given
during the seven (7) years preceding the Submission Date.
Party or Parties Shall have the meaning ascribed thereto in the preamble of the
Agreement.
Page 4 of 52
Person Shall mean an individual or any body of persons, incorporated or
unincorporated.
Preliminary
Estimate
Shall have the meaning ascribed thereto in Section 1.5 of Annex D
(Service Price).
Preliminary
Schedule
Shall mean the schedule for providing the Services as detailed in
Annex C.
Price Proposal Shall mean the price proposal in Tender Form “D” (Price Proposal) to
the ITB.
LRT Consultant Shall have the meaning ascribed thereto in the preamble to the
Agreement.
Proposal(s) Shall mean the complete written proposal, based on the terms and
conditions contained in the Tender Documents and including all the
documents submitted by a Participant to the Company in accordance
with the provisions of the Tender Documents including all documents,
Tender Forms, drawings, and supplemental documents, all as called
for in the Tender Documents, as duly completed and signed by the
Participant, and as accepted by the Company pursuant to the Tender
Process.
Regulations Mandatory Tenders Regulations, 5753-1993.
Relevant Authority Any ministry, department, agency, authority or entity of the State of
Israel and any other public, regulatory or statutory authority, body,
entity or person having jurisdiction under all Laws with respect to the
LRT Consultant or to the Project or any part thereof or the provisions
of the Services and the deliverables provided hereunder.
Remedy Period Shall have the meaning ascribed thereto in Section 16.2.1 of the
Agreement.
Request Shall have the meaning ascribed thereto in Section 6.3.3. of the
Agreement.
Scope of Services Shall mean the scope of the Services as provided in Clause 7.2.
(Scope of Services) of the Agreement.
Services Shall have the meaning ascribed thereto in Section 1.2. (The Scope of
the Services) of the ITB.
Services Price Shall mean all the amounts payable to the LRT Consultant in
accordance with Section 1.1. of Annex “D” (Service Price).
Signature Date Shall have the meaning ascribed thereto in Section 2.2. (Signature
Date) of the Agreement.
State Shall mean the State of Israel.
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Submission Date Shall have the meaning ascribed thereto in Section 5.8.1 of the ITB.
Successful
Participant
Shall have the meaning ascribed thereto in Section 8.1. of the ITB.
Team Leader Shall have the meaning ascribed thereto in Section 6.2.1 of the
Agreement.
Team Members'
Undertaking Letter
Shall mean an undertaking letter duly executed by each of the LRT
Consultant's Team Members and submitted by the LRT Consultant to
the Company in the form of Annex F (Letter of Undertaking).
Tender Documents Shall have the meaning ascribed thereto in Section 2.4 (the Tender
Documents) of the ITB.
Termination Date Shall mean the date that the termination of the Agreement is in effect
in accordance with the provisions of any of Sub-Sections of Section
16 of the Agreement.
Working Permits Shall mean each of the Permits in relation to labor laws, working
visas and the employment of foreign workers, which the issuance,
obtainment and maintenance thereof are required for the provision of
the Services, under applicable Law.
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”B“Annex
Scope of Works -The Services
Page 7 of 52
Contents
1. Introduction and General Description of the Project 8
2. The Alignment of the Planned LRT 8
3. The Services of the LRT Consultant 10
4. LRT Consultancy Services 10
5. Quality Assurance and Safety Management Plan (QA&S Plan) 11
6. Operation and Maintenance 14
7. Design 16
8. Construction, Installation, Testing and Commissioning 19
9. Safety and Customer Service 19
10. Finance 20
11. Procurement Strategy; Tender Processes 20
12. General Consultancy Services 21
13. Personnel 23
14. Scope of Services of the Project Designer 24
Page 8 of 52
1. Introduction and General Description of the Project
1.1. On August 11th
, 2016, the Government of Israel issued Government
Resolution No. 1838, a multi-year investment plan for the development
of public transportation in metropolitan areas, including the
development of a mass transportation system in the Haifa metropolitan
area. Clause 3 of the said decision instructed the Ministry of Transport
and Road Safety to promote the construction and operation of a light
rail transit (LRT) line in the Haifa metropolitan area, between Haifa
and Nazareth, as described in more detail below (the "Project").
1.2. Cross Israel Highway Ltd. (the "Company") is a government-owned
company entrusted with advancing the design and implementation of
the mass transportation system project in the Haifa metropolitan area.
1.3. The planned route of the Project will consist of two (2) main sections:
an interurban section and an urban section.
1.4. The interurban section will start at the Haifa Bay Center, run through
Kiryat Ata, Shfar'am and Bir el Maksur, continue along Route 79 to the
Reina intersection and end at the entrance to Nazareth Illit.
1.5. The planned length of the interurban section is approximately 34
kilometers and will include eleven (11) stops.
1.6. The planned urban section is about 7 kilometers long, will pass through
the streets of the towns of Nazareth and Nazareth Illit and will include
eight (8) stops.
1.7. The overall planned route was approved as part of National
Infrastructure Plan No. 56. A certain segment of the route, north-east of
Kiryat Ata, is still under discussion and will be approved as part of
Preferred Housing Plan (תמ"ל) No. 1025.
1.8. Preferred Housing Plan No. 1025 also includes a segment of Road 781,
between Road 22 and Road 79. This segment is included in this Scope
of Works.
2. The Alignment of the Planned LRT
Page 9 of 52
2.1. The probable ridership is about three thousand eight hundred (3,800)
passengers per hour reaching Lev Hamifratz during morning peak
hours, from each branch linking to Haifa (PPHPD): About nine
hundred (900) leaving the Nazareth area, in the direction of Haifa and
increasing to about one thousand six hundred (1,600) when reaching
Gilam (the junction point of the two (2) branches linking to Haifa). The
figures are almost the same on the Bar Lev branch, with about seven
(700) leaving Bar Lev and about one thousand eight hundred (1,800)
reaching Gilam.
2.2. The proposed LRT line will be a combination of trains traveling in the
interurban areas at speeds of up to 100 km/h, with (mostly) segregated
right of way with train signaling and trams traveling in the urban areas
at speeds of up to 50 km/h, with partially segregated right of way and
crossing junctions at-grade with combined traffic lights for the LRT
and motor vehicle traffic. This dual mode characteristic is the reason
the Project is described as a “Tram-Train” project.
2.3. The proposed LRT alignment stretches from the Lev Hamifratz
transportation hub in Haifa, with an intermodal station inter-connecting
the Israel Railways station, the bus depot and the LRT station and with
close links to Road 75 to the east, the Road 25 intercity tunnel and
Roads 4 and 22 to the north.
2.4. The proposed LRT alignment follows Road 22 from the east and exits
to the east at Ata North Interchange to the median of Road 781, with
the proposed LRT depot and OCC facilities situated south of Ata South
Interchange. Further details concerning Road 781 may be obtained
from Preferred Housing Plan No. 1025, which is available on the
following website:
http://mavat.moin.gov.il/MavatPS/Forms/SV3.aspx?tid=3
2.5. The proposed alignment passes through Gilam Interchange (Roads
79/781) and travels to the median of Road 79, with grade separation
with all road crossings until Reina intersection, which marks the end of
the interurban section.
2.6. The proposed alignment continues into the Har Yona Industrial Zone at
the entrance to Nazareth Illit, then to Nazareth through Maale Yitzhak
St. and to Government City, ending at Taufik Zayed intersection.
2.7. The entire length of the proposed line is about 41 kilometers, with
eleven (11) stops in the interurban section and eight (8) stops in the
urban section (of Nazareth).
Page 10 of 52
2.8. All stations are at-grade, are generally to be referred to as stops and
will have platform ramps covered with canopies, except for the
Government City station, as it is planned to include a station building.
3. The Services of the LRT Consultant
3.1. The role of the LRT Consultant under this Annex B (The Services) is
to manage, administer, supervise and control the design, construction,
installation, testing, commissioning, operation and maintenance of the
planned LRT line and, more generally, to provide professional
assistance and advice to the Company in all LRT system disciplines, as
further detailed below.
3.2. The Company engages a team of local specialists in various fields of
expertise required for the implementation of transportation projects
(mainly highways and roads). The roles of the local team are to support
the Company with engineering consultancy, perform quality assurance
reviews of the designs, monitor implementation of the projects and
prepare guidelines and design criteria as needed. This team is called
“LAHAV”. The name LAHAV derives from the Hebrew initials for
Monitoring, Guidance and Review. The LRT Consultant shall perform
the services detailed herein as an extension of the LAHAV team and
under the auspices of the LAHAV team manager.
3.3. The LRT Consultant shall provide ongoing support services to the
Company and the LAHAV team with respect to the proposed LRT line.
The Company will issue work orders for these services as and when
required.
3.4. All services performed by the LRT Consultant under such work orders
shall be considered within the Scope of Works to be provided pursuant
hereto.
4. LRT Consultancy Services
4.1. The LRT Consultant shall (against issue of appropriate work orders)
perform the services specified in this Annex B (The Services), which
include but are not limited to the following:
4.1.1. Engineering consultancy focusing on railway systems, rolling
stock and operation and maintenance aspects of all LRT
system disciplines;
Page 11 of 52
4.1.2. Under the auspices of the LAHAV team manager, preparing
and implementing a written, structured, comprehensive,
integrated quality assurance management plan pursuant to
which the LAHAV team and the LRT Consultant, together
with the Company, shall be able properly to oversee and
advise on all commercial, financial and engineering aspects
and disciplines of the LRT systems, including, without
limitation, as such may apply to procurement and tender
processes, all as further set forth herein;
4.1.3. Under the auspices of the LAHAV team manager, preparing a
quality assurance program according to Quality Management
System ISO 9001:2015;
4.1.4. Reviewing the current specifications and design criteria and
suggesting suitable criteria for the Project;
4.1.5. Reviewing the specifications and design criteria suggested by
the Project Designer and approving them;
4.1.6. Providing assurance that the suggested design meets the
Company’s requirements and achieves all specified safety,
technical and quality standards; and
4.1.7. Carrying out technical assurance during all phases of the
Project, from design of the LRT line and associated
infrastructure to construction, operation and maintenance of
the LRT line.
5. Quality Assurance and Safety Management Plan (QA&S Plan)
5.1. The services include preparation of a QA&S Plan for the management
of quality assurance in respect of all stages and phases of the Project,
including in respect of the concept design stage, the preliminary design
stage, the final design stage, the detailed design stage, the Infra 1
Works tender stage, the Infra 2 Works tender stage, the construction,
testing and commissioning stage and the commercial operation stage.
5.2. The QA&S Plan shall cover and include, inter alia:
5.2.1. Relevant laws, regulations, codes and standards;
5.2.2. Specifications and criteria for design and safety;
Page 12 of 52
5.2.3. Responsibility definitions;
5.2.4. Quality indices;
5.2.5. Quality documents for every stage;
5.2.6. Gating procedure and checks;
5.2.7. Quality control and quality checks performed by designers,
project managers, planners, professional consultants, Infra 1
Works contractors and the Infra 2 Works concessionaire;
5.2.8. Request for Information (RFI) procedures;
5.2.9. Change order procedures;
5.2.10. Noncompliance procedures;
5.2.11. Preventive and corrective actions;
5.2.12. Documentation;
5.2.13. Handover processes; and
5.2.14. Quality assurance management system and programs.
5.3. The QA&S Plan shall include forms for the approval of the aforesaid
quality checks and controls; forms containing the classification of
comments for at least three (3) grades, the approval status, the date of
completion/implementation of comments, the signatories of the
approval from the control company, etc. The QA&S Plan shall also
include forms for the various types of approvals (such as: DRS design
approvals, CSD approval, FDR, CDR certification, PDR certification,
factory tests or FAT, SAT, etc.).
5.4. The QA&S Plan shall relate to the Project schedule and the quality
processes of each component of the Project.
Page 13 of 52
5.5. Within three (3) months after issuance of the applicable work order, the
LRT Consultant, together with the LAHAV team, shall prepare the
QA&S Plan. The QA&S Plan shall be submitted to the Company and,
after its approval by the Company, will constitute a guiding plan for the
continued work of the LRT Consultant’s quality control and quality
assurance team. The aforesaid three (3) month program may be
amended periodically as required by the Company.
5.6. The LRT Consultant shall review and carry out periodic audits of the
quality control systems of designers, project managers, planners,
professional consultants, contractors, the concessionaire and others
involved in the Project in order to ensure effective implementation of
and compliance with the Company’s policies and requirements,
including policies and requirements in respect of environmental and
sustainability issues.
5.7. The overall quality assurance management system shall define the
working methods for quality control and quality assurance. The
methods shall include the following:
5.7.1. Definitions of the design materials to be subjected to approval;
5.7.2. Program for the approval process.
5.7.3. A methodology to answer RFIs and design queries;
5.7.4. Preparation of a list of tasks for matters that are subject to
approval, review and/or audit, such as:
5.7.4.1. Study of the Project (meetings with the parties
involved in the Project, working meetings of the
quality control/assurance team(s), tours of the site,
consideration of documents, reviewing timetables,
etc.);
5.7.4.2. Analysis of the design process (examination of the
required procedures for the quality control stage:
statutory approval, approval of additional factors,
required standards, design guidelines, risk
assessment processes, etc);
5.7.4.3. Design analysis (plans, cross-sections, reports,
coordination between plans, specifications,
quantities and costs, stages, adaptation to overall
design, adaptation to other disciplines, etc.);
Page 14 of 52
5.7.4.4. Alternative design and value engineering (analysis
of alternative proposals, examination of
alternatives with the design team(s), considering
value engineering with regard to the Project life
cycle, etc.); and
5.7.4.5. Summary of the findings (coordination of the
reports of the quality control/assurance team(s),
preparation of a consolidated report on all
subjects, submission of the consolidated report,
rating comments to three (3) acceptable levels,
presenting the findings, receiving comments,
preparing a final report, etc).
5.7.5. The overall quality assurance management system shall define
subjects for examination at the various stages of the Project,
such as:
5.7.5.1. Analysis of the design processes;
5.7.5.2. Alternative checking processes;
5.7.5.3. Recommendation process for selected alternative;
5.7.5.4. The feasibility of implementation and stages of
implementation;
5.7.5.5. Adjustment to previous design stages;
5.7.5.6. Compliance with statutory plans, criteria,
standards, guidelines;
5.7.5.7. Coordination between the components of the
Project; and
5.7.5.8. Examination of plans, specifications, quantities,
estimations and coordination.
6. Operation and Maintenance
6.1. The services shall further include:
Page 15 of 52
6.1.1. Furnishing to the Company's “Systems and Operations
Division” technical information, advice and support, including
by way of professional opinions and memoranda regarding the
operational aspects of the design, construction, testing and
commissioning, operation and maintenance of the LRT
systems and the time schedule for their implementation;
6.1.2. Preparation of comments, opinions and memoranda regarding
the operational aspects of the LRT systems’ technical
specifications;
6.1.3. Submitting an initial assessment report on current operation
and maintenance documentation and procedures;
6.1.4. Conducting regular reviews of designs and plans, including
monitoring and taking action to ensure that all commercial
operation and maintenance targets established by the designers
are met;
6.1.5. Reviewing the operations-related roles and responsibilities of
operation and maintenance contractors and other contractors
involved in operation and maintenance aspects of the Project,
as well as all interfaces between such contractors and private
and public entities; and
6.1.6. Assisting in the approval of the operating plans of the LRT
line. In this regard, the LRT Consultant shall review the
operating plans for the LRT line taking into account all
intermediary stages for construction and operation and shall
help define all operation and maintenance requirements for the
LRT line (from the perspective of an operator/maintainer, i.e.
as a “shadow” operator/maintainer), including but not limited
to:
6.1.6.1. Operations and operational contingencies;
6.1.6.2. Performance and Key Performance Indicators
(KPIs);
6.1.6.3. Each of the parameters to be evaluated;
6.1.6.4. Sustainability;
6.1.6.5. Formulas to calculate each parameter;
6.1.6.6. Minimum levels to be achieved;
6.1.6.7. Timetables;
Page 16 of 52
6.1.6.8. Service quality;
6.1.6.9. Technical assurance;
6.1.6.10. Safety management;
6.1.6.11. Customer service;
6.1.6.12. Business continuity and emergency management;
6.1.6.13. Exceptional events management;
6.1.6.14. Fare collection and ticketing management;
6.1.6.15. Training plans;
6.1.6.16. Staffing (including job profiles); and
6.1.6.17. Detailed planning of tasks to be performed by the
selected operators prior to commencing
operational services.
7. Design
7.1. The services shall further include:
7.1.1. Defining specifications and design criteria for the Project,
reviewing the current specifications and design criteria and
suggesting suitable specifications and design criteria for the
Project;
7.1.2. Performing design reviews and preparing proposals for design
improvement for operational and other aspects of the LRT
line. In this regard, the LRT Consultant shall support and
assist the Company and other working groups throughout the
design period of the Project by providing comments and
proposing improvements to the designs, in accordance with
current applicable rules and regulations for LRT operations
and international best practice; and
7.1.3. Reviewing the design prepared for the Company by the
designers entrusted with the task of designing the LRT line (in
the preliminary, final and detailed design phases) in relation
to, inter alia, any issues that may affect the operational
capabilities of the LRT line, including but not limited to the
following design elements:
Page 17 of 52
7.1.3.1. Crossings;
7.1.3.2. Traffic and railway signaling;
7.1.3.3. Speed;
7.1.3.4. Operation of the energy system;
7.1.3.5. Switch points;
7.1.3.6. Curve radius;
7.1.3.7. Safety measures for stations, stops and platforms;
7.1.3.8. Interchanges with buses and other modes of
transportation;
7.1.3.9. Platform arrangements;
7.1.3.10. Depot design, including but not limited to vehicle
movements, equipment, space for activities,
storage, operations accessibility and OCC
distribution;
7.1.3.11. Construction phasing which will affect current or
future operation and maintenance;
7.1.3.12. Rolling stock;
7.1.3.13. Systems functions (including, inter alia, radio, PIS
and ticketing);
7.1.3.14. Station and stop equipment;
7.1.3.15. Proposing improvements to the design in order to
optimize operation and maintenance, such as:
7.1.3.15.1. Reducing the cost of operation and
maintenance;
7.1.3.15.2. Reducing investment in rolling
stock;
7.1.3.15.3. Improving the quality of service
(reliability and availability);
7.1.3.15.4. Improving system safety;
7.1.3.15.5. Increasing commercial speed;
Page 18 of 52
7.1.3.15.6. Reducing the time required for
performing changeovers (the
replacing or substituting of vehicles
(or any part thereof) or drivers
while also completing, inter alia,
safety, security and other
inspections) at the end of the
termini or at other points along the
LRT line; and
7.1.3.15.7. Minimizing disruptions of the LRT
line;
7.1.3.16. Performing quality control (in addition and/or
complimentary to any quality control which may
be undertaken by any contractor, the
concessionaire or any other party involved in the
project);
7.1.3.17. Assisting with choosing design alternatives during
the design process;
7.1.3.18. Examining the design of the concessionaire,
undertaking configuration management, preparing
supplementary designs for the various systems and
reviewing technical engineering material
submitted by the concessionaire;
7.1.3.19. Undertaking technical examinations of the
compliance of the designs with the applicable
codes and standards, the accepted criteria and
requirements, the statutory plans and applicable
laws and regulations, the design guidelines, the
general and technical specifications, the approved
budget, the timetable for the execution of the
Project, etc;
7.1.3.20. Considering and advising in respect of efficiency
of design solutions, creative design solutions,
optimal program response, choice of durable
solutions, use of appropriate materials and
products, flexibility of use of equivalent products,
value engineering, etc;
7.1.3.21. Assuring tender procurement processes and
procedures and contract administration meet the
Company’s requirements; and
7.1.3.22. Assuring design quality and that engineering
specifications achieve minimum agreed standards.
Page 19 of 52
8. Construction, Installation, Testing and Commissioning
8.1. The services shall further include:
8.1.1. Assisting in the approval of planning and supervising
programs for the delivery and completion of works, including
without limitation with respect to the execution of both Infra 1
Works and Infra 2 Works;
8.1.2. Assisting the Company during the testing and commissioning
of the LRT line, including the acceptance test, testing and
commissioning and test run phases, up to and including the
issuance of the permit(s) to operate;
8.1.3. Assuring construction and testing phases meet agreed
standards and ensuring integrity of the construction and testing
carried out at each stage of the Project and across all Project
deliverables;
8.1.4. Assuring operation and maintenance assurance plans comply
with the Company's requirements; and
8.1.5. Undertaking all site visits necessary for achieving and
implementing the abovementioned services.
9. Safety and Customer Service
9.1. The services shall further include:
9.1.1. Providing ongoing consultancy services regarding the safety
of LRT systems, including working in close contact with the
Company's Independent Safety Assessor (ISA);
9.1.2. Providing support and advice on the strategies for, inter alia,
safety, customer service, ticketing and fares;
9.1.3. Establishing and verifying train service and customer service
requirements; and
9.1.4. Establishing and verifying passenger service standards and
customer service strategies.
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10. Finance
10.1. The services shall further include reviewing financial models of
operation and maintenance for all operational scenarios of the LRT
line, including but not limited to the following:
10.1.1. Reviewing of financial models for operation and maintenance
for each possible operational model, in order to give a broad
estimate of operation and maintenance-related costs;
10.1.2. Reviewing possible target cost mechanisms and availability
payment matrices;
10.1.3. Providing financial analyses and comparisons of the various
operation models under consideration; and
10.1.4. Developing the operation and maintenance business plans.
11. Procurement Strategy; Tender Processes
11.1. The services shall further include reviewing and executing the
procurement strategy for operation and maintenance and other
contracts, including, at a minimum, the following:
11.1.1. Participating in negotiations with potential contractors, project
managers and the concessionaire, as well as public entities,
including, without limitation, by way of participating in
meetings;
11.1.2. Reviewing the list of potential bidders in tenders related to the
scope of LRT system disciplines and aspects;
11.1.3. Reviewing tender documents for coherency and consistency;
11.1.4. Reviewing tender evaluation criteria (such as experience in the
specific domain, availability and current workload, program,
design capacity, communications, materials, quality (QA, ISO,
quality certificates), price, payment terms, ability to adhere to
the schedule, recommendation, prior experience and
knowledge, services, financial status, safety, health, welfare,
environment management, market status, etc);
Page 21 of 52
11.1.5. Providing detailed comparison tables and tender reports for
tenders;
11.1.6. Reviewing tender evaluation reports and comparison tables
based on criteria approved by the Company, in order to
facilitate the proper selection of winning bids;
11.1.7. Assisting in the evaluation and scoring of tenderers’ bids;
11.1.8. Assisting in the requesting of additional information from
bidders, when necessary and as set forth in the relevant tender
documents;
11.1.9. Assisting with tender processes regarding technical
operational aspects;
11.1.10. Providing technical information and support, including
preparation of professional opinions and memoranda
regarding operation and maintenance and other aspects of
tender documents for the LRT line. In this regard, the LRT
Consultant shall assist in the review of all technical
documentation necessary to draft and publish tenders in
relation to all aspects and stages of the LRT line (including,
inter alia, the definition of the scope of work, general and
particular technical specifications and requirements, financial
and technical content of the bids excluding the contractual
sections);
11.1.11. Participation in the confirmation and approval of testing and
commissioning phases, including acceptance tests of the LRT
line; and
11.1.12. Assisting with the examining, testing and approving of the
RAMS specifications of the LRT line.
12. General Consultancy Services
12.1. The LRT Consultant shall, in addition, provide general supervision and
control services in all aspects and areas related to and/or connected
with the design, construction, operation and maintenance of the LRT
systems and sub-systems. This shall include, but not be limited to the
following tasks and disciplines:
12.1.1. Tasks:
Page 22 of 52
12.1.1.1. Reviewing systems and rolling stock
specifications and designs;
12.1.1.2. Assisting in the supervision of production and
assembly processes of LRT components, including
factory acceptance tests;
12.1.1.3. Ensuring the successful integration and interfacing
between the various components of the LRT
system;
12.1.1.4. Assisting with overseeing the procurement and
implementation of LRT-related contracts
(including, without limitation, with respect to
design, manufacturing, shipping, assembly,
construction and installation, QA, QC, etc.),
including assisting in the review and approval of
contractors, the completion of milestones and time
schedules;
12.1.1.5. Assisting in the review and approval of requests
for modifications or additions to the LRT line or
any part thereof; and
12.1.1.6. Assisting in the process for obtaining operating
certificates/permits to operate from the relevant
authorities.
12.1.2. Disciplines:
12.1.2.1. Operation and maintenance;
12.1.2.2. Sustainability
12.1.2.3. AVL system;
12.1.2.4. Rolling stock;
12.1.2.5. Operation Control Centre (OCC);
12.1.2.6. Operation plans;
12.1.2.7. Communications;
12.1.2.8. Fare collection;
12.1.2.9. Human factors
Page 23 of 52
12.1.2.10. Train signalling;
12.1.2.11. Traffic signalling;
12.1.2.12. LRT line integration;
12.1.2.13. Track work system;
12.1.2.14. Quality assurance and quality control;
12.1.2.15. Depot;
12.1.2.16. Stations/stops;
12.1.2.17. Energy system; and
12.1.2.18. RAMS.
13. Personnel
13.1. For the purpose of performing the aforesaid services, the LRT
Consultant shall, from time to time and as necessary, engage a team
(the “FC Team”) of dedicated LRT specialists in their respective
fields.
13.2. The resumes of such dedicated specialists shall be submitted to the
Company for prior approval, in accordance with the provisions of the
Agreement. The “Project Manager Engineer” shall be the head of the
FC Team and shall be engaged on a full-time basis.
13.3. Each member of the FC Team shall have experience in the particular
field of expertise, in accordance with the provisions of Section 6.3. of
the Agreement.no less than (twenty) 20 years’ experience following
qualification and at least (ten) 10 years' experience in the particular
field of expertise.
13.4. Where a unique candidate is proposed as a member of the FC Team
who possesses less than the required thresholds of experience, the
Company may, in its sole discretion, approve such candidate.
13.5. The LRT Consultant shall be based in the vicinity of the Company’s
offices for the duration the Project and shall make itself available at all
times as are necessary and required to perform the services properly,
competently, efficiently, timeously and professionally. Most aspects of
the services will be required to be provided on site in Israel, while
some aspects may be provided from offshore or at third party
installations. The performance of services at any such offshore and/or
third party locations shall be subject to the approval of the Company.
Page 24 of 52
14. Scope of Services of the Project Designer
14.1. The LRT Consultant shall ensure that it has considered and is familiar
with the contents of the Project Designer Agreement, in particular
Annex B (The Services) thereto and each of its Appendices.
14.2. Those documents may be downloaded from the Company's website, at:
http://www.hozeisrael.co.il/template/default.aspx?PageId=1621
Page 25 of 52
Project StagesQ1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4Q1Q2Q3Q4
Project Preliminary
& Final Design
Infra 1 Detail Design
Infra 1 Construction
Infra 2 design for
tender
Infra 2 Tender
Financial closing
Infra 2 Construction
Hand Over to O&M
YEAR 10 YEAR 4YEAR 5YEAR 6YEAR 7YEAR 8YEAR 9 YEAR 1YEAR 2YEAR 3
”C“Annex
Preliminary Schedule
Page 26 of 52
”D“nnex A
Service Price
1. Payments to the LRT Consultant
1.1 In consideration for the full and timely performance by the LRT Consultant of
all of its obligations under the Agreement, the Company shall pay the LRT
Consultant the service price set forth in the tables below, at the times and in
the manner prescribed herein (the “Service Price”).
The service price for the Non-Israeli Team Members will be as follows*:
Rank Description Hourly
Rate
(Euro)
Daily
Rate
(Euro)
Monthly
Rate
(Euro)
INT 1 Team Leader
INT 2 Engineer with more than fifteen (15)
years of experience
INT 3 Engineer with more than ten (10) years
of experience
INT 4 Engineer or person with other relevant
academic degree with five (5) to ten
(10) years of experience
* to be completed based on the Base Tariff for the Non-Israeli Team Members (as
such term is defined in the Tender Documents) with the discount or addition as
indicated in Tender Form D (Price Proposal) which submitted by the LRT
Consultant in the Tender process.
For the avoidance of doubt, the term “Month” shall mean: twenty-two (22)
working days in a calendar month, based on a calculation of five (5) ordinary
working days per week and eight and a half (8.5) working hours per day.
The service price for the Israeli Team Members will be as follows*:
Rank Description Hourly
Rate
(NIS)
Daily
Rate
(NIS)
Monthly
Rate *
(NIS)
L Team Leader 427.81 3,636.36 80,000
L2 Engineer with more than fifteen (15)
years of experience 331.55 2,818.18 62,000
L3 Engineer with more than ten (10) years
of experience 294.12 2,500.00 55,000
L4 Engineer or person with other relevant
academic degree with five (5) to ten
(10) years of experience
203.21 1,727.27 38,000
L5 Administrative position with relevant 106.95 909.09 20,000
Page 27 of 52
experience
* Fixed rates not adjusted based on the discount or addition indicated in the Price Proposal
submitted by the LRT Consultant in the Tender process
1.2 For the avoidance of doubt, it is hereby clarified that except for the Team
Leader, the Service Price payable to LRT Consultant for the services provided
by the LRT Consultant and its Team Members will be calculated based on the
hourly rates specified above, provided however that the maximum Service
Price payable for the services provided by an individual during a day shall not
exceed the applicable Daily Rate and the maximum Service Price payable for
the services provided by an individual during a calendar month shall not
exceed the applicable Monthly Rate, in accordance with the provision of
Section 1.1 above.
1.3 Notwithstanding the foregoing, for the services provided by the Team Leader
during the first five (5) years of the Agreement Period, the LRT Consultant
shall be entitled to receive for each month the applicable Monthly Rate as set
out in the Non-Israeli Team Members table above. The maximum service price
payable for the services provided by the Team Leader during a calendar month
shall not exceed the applicable Monthly Rate.
Following the first five (5) years of the Agreement Period, the service price
payable to LRT Consultant for the services provided by the Team Leader will
be calculated in accordance with the provisions of Section 1.2. above and
section 1.4 below.
1.4 Travelling and Accommodation
The LRT consultant shall be entitled to the following payments with respect to
the Non-Israeli Team Members only (except for the Team Leader to whom
only section 1.4.4. shall apply):
1.4.1 For a stay of less than twelve (12) consecutive days or twelve (12) days
in a calendar month in Israel, the Company will pay the LRT
consultant a sum of two hundred Euro (€ 200) per day.
1.4.2 For a continuous stay of more than twelve (12) consecutive days or
twelve (12) days in a calendar month in Israel, the Company will pay
the LRT Consultant a sum of ten thousand New Israeli Shekels (NIS
10,000) per month.
1.4.3 For each round-trip flights (flight to Israel and flight back from Israel),
the Company will pay the LRT consultant a fix sum of one thousand
Euro (€ 1000). It is hereby clarified that such amount also includes all
domestic travel.
1.4.4 A one-time transfer fee (mobilization fees) in the sum of ninety
thousand New Israeli Shekels (NIS 90,000) which include transfer fees,
visa payments and other taxes applicable to foreign workers in Israel. It
is hereby clarified that such one-time transfer fee will be payable to
LRT consultant, including to the Team Leader, for any foreign
consultants who relocate to Israel during the Agreement Period, subject
to the Company’s prior approval of the said relocation.
1.5 Payment Terms
Page 28 of 52
1.5.1 The LRT Consultant shall submit for the Company’s approval within
seven (7) days following receipt of a work order by the Company, an
estimate of the professional hours (divided into categories as specified
in the tables under Section 1.1 above) required for the provisions of the
services together with the expected travelling and stay in Israel of the
Non-Israeli Team Members and the time schedule associated therewith
(the "Preliminary Estimate").
1.5.2 The Company shall review the Preliminary Estimate and will be
entitled to require any additional information from the LRT Consultant
as it may deems necessary for its review and approval and to provide
comments to the Preliminary Estimate.
1.5.3 The LRT Consultant shall provide the information required by the
Company and amend the Preliminary Estimate based on Company’s
comments, until receipt of Company’s approval for the estimate (the
"Approved Estimate").
1.5.4 On or before the 10th
day of each calendar month, the LRT Consultant
shall furnish for the Company’s review a monthly report detailing its
progress according to the approved work orders and a detail breakdown
of all of the working hours during the preceding month including a
comparison of the said information to the Approved Estimate for such
services (the “Monthly Report”).
1.5.5 The Monthly Report will be prepared in accordance with the approved
work orders and will specify the inputs of each of the LRT consultant's
employees in each of the tasks at the daily level.
1.5.6 the Company shall review each Monthly Report and shall either
approve or comment the Monthly Report within fourteen (14) days as
of receipt thereof.
1.5.7 the LRT Consultant shall submit for the Company’s approval a revised
Monthly Report, accommodating Company’s comments (if any),
within seven (7) days as of receipt thereof.
1.5.8 the Company shall pay the amount set out in an approved Monthly
Report to the LRT Consultant within forty-five (45) days as of the date
of approval of the applicable Monthly Report, subject to the receipt of
a tax invoice issued by the LRT Consultant.
1.5.9 all payments to the Non-Israeli Team Members shall be made in Euro,
and all payments to the Israeli Team Members shall be made in NIS.
All payments shall be made with the addition of VAT (as shall be
applicable under law).
1.5.10 All components in foreign currency shall be linked to the European
Union HIPC as of the Submission Date and until the date of issuance of
each applicable invoice thereon. All components in NIS shall be linked
to the CPI as of the Submission Date and until the date of issuance of
each applicable invoice thereon.
1.6 General
Page 29 of 52
1.6.1 The LRT Consultant will provide the Company with an approval for
the proper management of books and a valid exemption from
withholding tax issued by the Israeli Tax Authority, in form and
substance reasonably acceptable to Company. If the LRT Consultant
does not provide to the Company a valid exemption from withholding
as aforesaid, the Company shall be entitled to withhold at source any
amount required to be withheld at source by it under applicable law
from any payment made hereunder. Any amount(s) so withheld at
source from any such payment shall be deemed for all purposes as
having been paid to the LRT Consultant.
1.6.2 Without derogating from the provisions of the Agreement, the LRT
Consultant undertakes to make sure that any tax, duty and compulsory
payment of any kind and type that apply to the Services under any
applicable law shall be paid by it on regular basis. In respect of any
demand that will be submitted to the Company by any Authority, the
Company shall be entitled to set off, at any time and at its sole
discretion, the amount(s) of such demand from any amount due to the
LRT Consultant under this Agreement.
1.6.3 The LRT Consultant shall provide to the Company or any person
acting on its behalf all books, records, files, correspondence and other
documents relating to the performance of the Services, including. Inter
alia, the records of working hours, and shall provide to the Company
written or oral explanations as may be required by the Company in
connection with the aforesaid documents.
Page 30 of 52
”E“Annex
Affidavit with Respect to The Public Entities Transactions
Law
(to be completed by the LRT Consultant insofar as the Public Entities Transactions Law (Enforcement
of Bookkeeping, Payment of Tax Duties and Minimum Wages and Lawful Employment of Foreign
Workers), 5736-1976, applies)
To:
Cross Israel Highway Company Ltd.
65 Yigal Alon (Toyota Tower), 6744316
Aviv-Tel
Re: Invitation for Selecting the LRT Consultant for the Light Railway Project in
the Haifa Metropolitan Area, between Haifa and Nazareth
(the “Invitation”)
I, the undersigned, ______________, identity card No*. ____________ [identity card
number] / holder of passport No*. _______________________ [passport number]
issued by _______________________ (name of country)bearer of ID No.
___________ after having been forewarned that I am to declare the truth and that I
will be subject to the penalties prescribed by law should I refrain from doing so,
hereby declare in writing as follows:
1. I make this affidavit in the name of _______________ (the "Declarer"), in
accordance with the provisions of the Agreement.
2. I serve as a _______________ in __________________________ (the “LRT
Consultant”) and I am duly authorized to provide this affidavit on its behalf.
Affidavit pursuant to Article 2b(2) of the Public Entities Transactions Law
(Enforcement of Bookkeeping, Payment of Tax Duties and Minimum Wages and
Lawful Employment of Foreign Workers), 5736 – 1976 (the “Law”)
3. I hereby declare, after inquiry and examination, that as of the Submission Date, the
LRT Consultant and any related party thereto [check the applicable]:
□ Alternative A – have not been convicted, in a peremptory rule, for more than
two (2) offenses under the Foreign Workers Law (Prohibition of unlawful
employment and assurance of fair conditions), 5751-1991 (“Foreign Workers
Page 31 of 52
Law”) and under the Minimum Wage Law, 5747-1987 (“Minimum Wage
Law”).
□ Alternative B – have been convicted, in a peremptory rule, for more than two
(2) offenses under the Foreign Workers Law and under the Minimum Wage
Law, however as of the Submission Date, at least one (1) year has been passed
from the date of the last conviction.
□ Alternative C – have been convicted, in a peremptory rule, for more than two
(2) offenses under the Foreign Workers Law and under the Minimum Wage
Law, as detailed in the table below, and as of the Submission Date, one year
(1) has not yet passed from the date of the last conviction.
Serial
number
Details of the offense
(name of law and Article number)
Date of conviction
1.
2.
The table above is for illustration only – the Declarer can add lines as needed.
For the purpose of this Section 3: “convicted”, “offense” and “related party” -
shall have the meaning ascribe to them in Article 2(b) of the law.
Affidavit pursuant to Article 2b1(a) of the Law
4. I hereby declare, after inquiry and examination, that as of the Submission Date, the
LRT Consultant and any related party thereto are in compliance with the following
[check the applicable]:
□ Alternative A – The provisions of Article 9 of the Equal Rights for People
with Disabilities Law, 5758-1998 (“Equal Rights Law”) do not apply to the
LRT Consultant.
□ Alternative B – The provisions of Article 9 of the Equal Rights Law apply to
the LRT Consultant and it is in compliance with them,
For an affidavit that marked Alternative B above - the relevant sub-alternatives
should continue to be marked [check the applicable]:
□ The LRT Consultant employ less than 100 employees;
□ The LRT Consultant employs at least 100 employees, and it declares
that [check the applicable]:
□ it will apply to the general manager of the Ministry of Labor,
Social Affairs and Social Services for the evaluation of its
compliance with its obligation under Article 9 of the Equal
Page 32 of 52
Rights Law, and if necessary – be provided with guidance for
their compliance; or
□ it had previously applied to the general manager of the Ministry
of Labor, Social Affairs and Social Services for the scrutiny of
its compliance with its obligation under Article 9 of the Equal
Rights Law, and it was provided with guidance for compliance
with them and acted accordingly.
If this declaration is made pursuant to Alternative B above in Section 4 above,
the LRT Consultant hereby commits, within 30 days from the “date of
engagement” (as such term defined under the Law), to provide a copy of this
affidavit to the general manager of the Ministry of Labor, Social Affairs and
Social Services.
4. This confirmation is in addition to the approvals required under Article 2(a) of
the Public Entities Transactions Law, which are attached hereto.
This is my name, below is my signature and the content of my affidavit is true,
Date
Signature
Officer in the LRT
Consultant
First and Last
name
Date
Signature
Officer in the LRT
Consultant
First and Last
name
Stamp and
Signature of the
LRT Consultant
Attorney's approval
I hereby confirm with my signature:
1. [The unnecessary clause should be
deleted]
1.1. I, the undersigned, _________,
attorney-at-law, hereby confirm that
on ________, Mr./Mrs. __________,
ID No. _________, appeared before
me, and after being cautioned that
he/she is required to state the truth,
and that if he/she fails to do so he/she
Stamp and
Signature
First and
last name
Date
Attorney
license
number
Page 33 of 52
shall be liable to the punishments
prescribed by law, signed this
statement in my presence.
1.2. I, the undersigned, _________,
attorney-at-law, hereby confirm that
on ________, Mr./Mrs. __________,
ID No. _________, and
Mr./Mrs. __________, ID
No. _________, appeared before
me, and after being cautioned that
they are required to state the truth,
and that if they fail to do so they shall
be liable to the punishments
prescribed by law, signed this
statement in my presence.
2. [The unnecessary clause should be
deleted]
2.1. In addition, I, ______________,
attorney-at-law, hereby do attest and
confirm that __________ is
authorized to sign on behalf of
_______________, and to commit it
for the purposes and intents of this
Form.
2.2. In addition, I, ______________,
attorney-at-law, hereby do attest and
confirm that __________ and
__________ are authorized to sign on
behalf of _______________, and to
commit it for the purposes and intents
of this Form
Page 34 of 52
Annex “F”
Letter of Undertaking
(to be completed and submitted separately by each of the following: The LRT Consultant, the
Operation and Maintenance expert, the Systems Engineer, the Rolling Stock Engineer, the Track
Engineer and any other person who fulfills any function according to the provisions of Annex H (Team
Members in the LRT Consultant)
To:
Cross Israel Highway Company Ltd. (the “Company”)
65 Yigal Alon (Toyota Tower), 6744316
Tel-Aviv
Re: Invitation for Selecting the LRT Consultant for a Tender for the Light
Railway Project in the Haifa Metropolitan Area, between Haifa and Nazareth
(the “Invitation”)
[A statement of declaration for a corporation]
I, the undersigned, _____________ (first name and last name) bearer of ID No.
_____________ / passport of the state _____________ (the country in which the
passport was issued) No. _____________, hereby undertake and declare on behalf of
_____________ (the corporation), in addition to the obligations and prohibitions
which are applicable by virtue of the law, including the Penal Code, 5737-1977, as
follows:
[A statement of declaration for an individual]
I, the undersigned, _____________ (first name and last name) bearer of ID No.
_____________/ passport of the state _____________ (the country in which the
passport was issued) No. _____________, hereby undertake and declare, in addition
to the obligations and prohibitions which are applicable by virtue of the law, including
the Penal Code, 5737-1977, as follows:
Commercial and Professional Confidentiality
1. I am aware that for the purpose of providing the Services, as defined under the
Agreement, information, which is one of the Company’s most important and
essential assets, will be disclosed to me.
2. In this undertaking letter “Confidential Information” shall mean any and all
information about the Company or in connection with it or for the Project or in its
offices or associated with it, its customers, its employees or third parties with
which the Company is in business or has other relations with, including any
information related to the Company's business, including, without derogating from
the generality of the aforesaid, documents and databases, formulas, ideas, business
plans or reports, in any media, whether in writing or orally, in magnetic or optical
media or in any other manner.
3. I undertake to keep in strict confidence and not disclose or transfer, directly or
indirectly, to any person or entity, including employees of the Company for whom
Page 35 of 52
the information is not necessary for the purpose of carrying out their duties, any
information which has reached me orally, in writing or in any form in the
performance and provision of the Services, whether directly or indirectly,
including information I received from others which, directly or indirectly, related
to the Company.
4. I undertake not to provide or transfer, directly or indirectly, to any person or entity
any material, document, diskette or information, as defined above, and not to,
directly or indirectly, use any or all of the information, including by reproduction,
transfer, distribution, modification, copying or imitation, except for the use
required to perform and provide the Services, with the consent of the Company
and for its benefit only.
5. Upon the first request of the Company or upon the first notice of the termination
of my office, and regardless of the reason for the termination, I undertake to
provide the Company with any material and information that I find in my
possession or under my control relating to the performance and the provision of
the Services or which was created during the performance and the provision of the
Services. I also undertake to return to the Company any copy or, in accordance
with the Company’s instructions, to destroy all copies I have, immediately upon
the Company’s first request.
6. I acknowledge that the breach or anticipated breach of the foregoing obligations
may result in immediate and irreparable injury to the Company, for which I may
not have an adequate monetary remedy, and that the Company shall be entitled to
seek and obtain such interlocutory and permanent injunctions and remedies as
may be necessary to enjoin and/or discontinue any such breach or anticipated
breach, without prejudice to its right to any and all other legal remedies, including
any monetary relief or remedy which may be available to it.
7. Without derogating from the foregoing, I undertake to indemnify the Company for
any damage caused to it or to its related companies, including loss or damage to
reputation as a result of breach of any of my obligations under this NDA, in
addition to its right to take legal action against me according to the law.
8. I am aware that the information or part thereof constitutes information protected
under the Protection of Privacy Law, 5741-1981 (“Protection of Privacy Law”),
and that the breach of any of the obligations under this undertaking letter is liable
to constitute a violation of the provisions of the Protection of Privacy Law.
9. If I will be required by law to present the information to any third party, I
undertake to claim for confidentiality, and to inform the Company of receipt of
such request immediately, in order to be able to claim against the delivery of the
information.
Non-Conflict of Interest
The undersigned hereby warrants, represents, covenants, and guarantees all of the
following:
10. That there is not and will not be, directly or indirectly, during the period of the
Services, no conflict of interests of any kind, business or personal relationships or
any other matter that may be a conflict of interests in which I am involved.
11. To refrain from any action that may involve me or is likely to involve me in a
conflict of interest, directly or indirectly, with the Company, including to refrain
from providing service to any entity that may involve me in a conflict of interest
or concern of conflict of interests with the Company. I undertake to immediately
notify the Company of regarding any information or situation which may involve
Page 36 of 52
me at any time in a conflict of interest with the Company, immediately upon
becoming aware of such, at any stage of my engagement with the Company.
12. To notify the Company immediately in writing of any personal or business
relations between my activities or the activities of any party with whom I am
directly or indirectly connected, including any person or entity that provide the
Company the Services on my behalf, and any of the following:
12.1. Companies (including parent companies, sister companies and subsidiaries)
that may participate in any of the tenders relating to the Project;
12.2. Companies in which the aforesaid companies hold means of control,
directly or indirectly;
12.3. Officers of each of the entities mentioned in Sections 12.1and 12.2 above;
12.4. Entities, sub-contractors and consultants related to the companies and
entities mentioned in Sections 12.1 and 12.3 above;
12.5. Any other person or entity with whom my personal or business relations
may involve me in a conflict of interest with regards to providing the
Services.
13. The decision on the existence of a conflict of interests in the event of a connection
with the parties specified in Section 12 above shall be examined by the
Company’s Legal Advisor, and I undertake to accept their decision on this matter.
14. Nothing in this section shall derogate from my obligation to avoid a conflict of
interest or concern of a conflict of interest, nor from my obligation to avoid any
connection with those parties that may involve me in a conflict of interest.
15. Without derogating from the generality of the foregoing, if I have a personal or
business relationship with any of the parties detailed in Section 12 above, or any
other relations that may involve me in a conflict of interests with the Company, I
shall immediately inform the Company’s Legal Advisor about such personal or
business relations.
16. I am aware that the Company’s Legal Advisor will decide on the existence or
absence of a conflict of interest or concern of a possible conflict of interest, and I
undertake to accept their decision on this matter, including any decision to
terminate the Company’s engagement with me or to terminate my relations
(including business relations) with any of these entities.
17. Without derogating from the generality of the foregoing, I undertake not to be
involve in a conflict of interests during the entire period of the Services and during
any extension of this period.
18. I am aware that I have been prohibited from providing services of any kind,
directly or indirectly, to any of the persons or entities involved in the Project other
than the Company, as long as this obligation is valid.
Maintaining Integrity
19. I have not offered or received and will not offer or receive, directly or indirectly,
any benefit or money or anything of value in order to directly or indirectly affect
any decision, act or omission of the Company or an officer of the Company or an
employee of the Company or anyone acting on its behalf, or any other entity, with
regards to any process of engagement between the LRT Consultant and the
Company or regarding an agreement or Services under the Agreement.
20. I have not cooperated and will not cooperate, directly or indirectly, with officers
of the Company or the Company’s employee or anyone on behalf of the Company
or with any other party in order to: (1) receive confidential information relating to
Page 37 of 52
the Tender or to any agreement or invitation deriving therefrom; or (2) fix prices
or payments in an artificial or non-competitive manner.
21. I hereby confirm and agree that in any event that there is a reasonable suspicion
that the LRT Consultant or anyone acting on its behalf acted contrary to the
aforesaid, the Company will be entitled, at its sole discretion and at any stage, to
prohibit participation of the LRT Consultant in the Tender Process in respect of
which there is a suspicion that the said action was performed (in this section, the
“Contractual Procedure”), or in any other proceeding (including subsequent
proceedings for the contractual engagement) or not to accept their Proposal in the
contractual engagement, or to cancel at any time their award of the Agreement, or
to cancel at any time the Agreement or the Invitation arising from the contractual
engagement. The declarer waives any claim or demand, direct or indirect, in
connection with the decision to cancel the award of the Agreement, the Agreement
or the provision of Services, or in connection with any other decision adopted by
the Company.
22. I undertake to inform my employees, subcontractors, representatives, agents and
anyone who, in any way, is involved in the Project, in the provision of the
Services or in the Agreement about the content of these sections.
Providing the Services
23. I have read the Agreement and its Annexes and Appendices, and I agree to all its
provisions. Without derogating from the provisions of the Agreement, I undertake
that during the entire period of the Services I will provide the Services which I am
required to provide, in accordance with the provisions of the Agreement.
24. I undertake that I will be available for the Company during the Company’s
working hours and, in special cases where this will be required as a result of the
nature of the Services, even during hours beyond the Company’s working hours.
25. [insofar as the declarer entered into an agreement to provide services with the
LRT Consultant:]
I know and agree that in any case of cancellation of the Agreement, the Company
will be entitled to act as the LRT Consultant for the LRT Consultant Team
Members and to continue to receive the Services from the LRT Consultant Team
Members, without having any claim or demand with regards thereto.
General
26. My warranties and undertakings were made of my own free will.
27. I am aware that my undertakings pursuant to this Letter of Undertaking do not
derogate from the applicability of any law, are non-repeatable and are not limited
in time, and that they will remain in force at all times from the date of signing this
Letter of Undertaking onward, including after termination of the performance of
my duties.
28. Without derogating from the aforesaid, I am aware that my obligations as stated in
this Letter of Undertaking are among the principles of the Agreement between the
LRT Consultant and the Company, and that breach of obligations or declarations
under this Letter of Undertaking will be considered a fundamental breach of the
Agreement.
29. The jurisdiction in relation to this Letter of Undertaking shall be in accordance
with the provisions of the Agreement.
Page 38 of 52
30. Terms not specifically defined in this letter shall have the meaning given to them
in the Agreement.
This is my name, below is my signature and the content of my affidavit is true,
Date
Signature
Officer in the Declarer
First and Last
name
Date
Signature
Officer in the Declarer
m
First and Last
name
Stamp and
Signature of the
Declarer
Attorney's approval
I hereby confirm with my signature:
1. [The unnecessary clause should be
deleted]
1.1. I, the undersigned, _________,
attorney-at-law, hereby confirm that
on ________, Mr./Mrs. __________,
ID No. _________, appeared before
me, and after being cautioned that
he/she is required to state the truth,
and that if he/she fails to do so he/she
shall be liable to the punishments
prescribed by law, signed this
statement in my presence.
1.2. I, the undersigned, _________,
attorney-at-law, hereby confirm that
on ________, Mr./Mrs. __________,
ID No. _________, and
Mr./Mrs. __________, ID
No. _________, appeared before
me, and after being cautioned that
they are required to state the truth,
and that if they fail to do so they shall
Stamp and
Signature
First and
last name
Date
Attorney
license
number
Page 39 of 52
be liable to the punishments
prescribed by law, signed this
statement in my presence.
2. [The unnecessary clause should be
deleted]
2.1. In addition, I, ______________,
attorney-at-law, hereby do attest and
confirm that __________ is
authorized to sign on behalf of
_______________, and to commit it
for the purposes and intents of this
Form.
2.2. In addition, I, ______________,
attorney-at-law, hereby do attest and
confirm that __________ and
__________ are authorized to sign on
behalf of _______________, and to
commit it for the purposes and intents
of this Form
Page 40 of 52
”G“nnex A
Liability and Insurance
1. Without derogating from the liability of the LRT Consultant under this agreement
and/or under any law, the LRT Consultant undertakes to effect and to hold and
maintain, at its own expense, through a duly licensed and reputable insurance
Company, the insurance policies specified in the certificate of insurance attached
to this agreement, as inseparable part hereof and is marked as Appendix G”1”
(hereafter: "Certificate of Insurance") throughout the entire period during which
the Services are provided by the LRT Consultant pursuant to this Agreement
according to the terms specified in the Certificate of Insurance and for
professional liability for any additional period after ending the provision of the
services and until the end of the period of limitations.
2. All the LRT Consultant’s policies shall be names as "the LRT Consultant’s
Insurance Policies". Any time that the LRT Consultant’s insurer notifies the
Company that any of the LRT Consultant’s insurance policies is about to be
reduced and/or cancelled, the LRT Consultant undertakes to renew the said
insurance and to deliver a new certificate of insurance no later than 7 days before
the date of reduction or cancellation of the insurance as aforesaid.
3. The LRT Consultant undertakes to deliver the certificate of insurance and all the
copies of those insurance policies to the Company immediately signed by the
insurer and in complete accordance with that stated in this Appendix, and delivery
of these certificate and copies of insurance policies form a suspending and
preliminary condition for payment of the consideration pursuant to this agreement
and/or for commencing provision of the services by the LRT Consultant.
Without derogating from the aforesaid and without derogating from the LRT
Consultant’s undertakings pursuant to this agreement and any law, in any case of a
discrepancy between that stated in the certificate of insurance and the
requirements of this agreement or between that stated in the LRT Consultant’s
insurance policies and the certificate of insurance and/or that required of it
pursuant to this agreement, the LRT Consultant undertakes to ensure an alteration
in the certificate and/or its insurance policies to make them consistent with the
provisions of this agreement.
4. The LRT Consultant also undertakes to continue to deposit the certificate of
insurance with the Company as stated above, no later than 45 days before the end
of any period of insurance, each insurance year, as aforesaid, as long as this
agreement is valid and until the conclusion of the LRT Consultant’s activities on
the basis of that specified above and in accordance with this agreement, and as
regards to professional indemnity insurance until the end of the period of the
agreement.
5. To avoid any doubt, it is hereby clarified that non-delivery of the certificate of
insurance on the due date as stated above in clauses 3-4 shall not release the LRT
Consultant from any undertaking whatsoever pursuant to this agreement and
without derogating from the general nature of the aforesaid, including
undertakings as to the time schedule. It is expressly agreed that the Company may
delay any payment to the LRT Consultant and/or delay start of the provision of
Page 41 of 52
services by the LRT Consultant, at the sole discretion of the Company, if a
certificate of insurance is not delivered on the due date as stated.
6. The LRT Consultant undertakes to comply strictly with all the terms of the LRT
Consultant’s insurance and is solely liable for the payment of all the premiums
and fulfillment of all the obligations imposed pursuant to the terms of the LRT
Consultant’s insurance policies. The deductible in the instance of the insured
event will apply exclusively to the LRT Consultant. Without derogating from the
aforesaid, the LRT Consultant undertakes to cooperate with the Company in as far
as is required to protect and exercise the Company's rights in pursuance thereof.
7. The LRT Consultant undertakes to notify the Company immediately of any
incident which might constitute grounds for a claim pursuant to the professional
indemnity insurance.
8. In addition and without derogating from the aforesaid, at all stages of the work the
LRT Consultant undertakes to observe and to fulfill in a strict and precise manner
with all the laws, regulations, orders and statutes that relate to the services
provided by the LRT Consultant pursuant to the contract and the LRT Consultant
also undertakes that he and all his employees and/or sub-contractors will comply
with all the requirements and provisions of the National Insurance Law and all the
orders, regulations, etc. that were enacted in pursuance of the above law, and in
particular, but without derogating from the general nature of the aforesaid, so that
the LRT Consultant and all the employees and/or sub-contractors of the LRT
Consultant and all those employed by them in the execution of the work that is the
subject of this agreement, including those employed casually or temporarily in the
said work, will be, at all times throughout the period of execution of the work,
eligible for all the above rights pursuant to the above law. The policies shall
include the same waivers required from the LRT Consultant towards the Company
and/or anyone on its behalf.
9. The LRT Consultant will present to the Company, upon the Company's demand,
the LRT Consultant’s insurance that was issued as defined above and will also
present to the Company regular confirmation of payment of the premiums as well
as any new policy that may be issued and/or any amendment to a policy that had
been presented previously to the Company, and at the demand of the Company,
the LRT Consultant will be obligated to make any addition to and/or to revise
and/or to amend the policies to the satisfaction of the Company.
10. If the LRT Consultant is of the opinion that it is necessary to effect any additional
and/or supplementary insurance to the insurance policies specified in this
Appendix, the LRT Consultant undertakes to effect and maintain any
supplementary and/or additional insurance as stated, and in any supplementary
and/or additional liability insurance, to include the Company and/or those acting
on behalf of the Company in the name of the insured as additional insured subject
to a cross liability clause and in any additional and/or supplementary property
insurance, a clause will be included concerning the waiver of subrogation against
the Company and/or those acting on behalf of the Company.
11. Delivery of the policies and/or the certificates of insurance and/or their
examination and/or their non-examination will not form an authorization of their
compliance with that required and/or will not derogate from and/or reduce the
LRT Consultant’s liability pursuant to this agreement and/or under any law and/or
Page 42 of 52
will not place any liability whatsoever on the Company and/or those acting on
behalf of the Company.
12. It is hereby expressly agreed that determination of the limits of liability as
specified in the Certificate of Insurance is the minimum requirement placed on the
LRT Consultant and that it does not release him from the fulfillment of his
obligation pursuant to this agreement and he will examine his exposure to liability
and determine the limits of liability accordingly. The LRT Consultant hereby
declares and confirms that he is prevented from raising any claim and/or demand
against the Company and/or those acting on behalf of the Company in all that is
associated with the said limits of liability and/or any other claim that concerns the
limit and/or extent of the insurance cover he has effected.
13. The LRT Consultant will instruct the Insurer that the indemnification due to the
Company under law and/or pursuant to the insurance policy will be forwarded
directly to the Company.
14. If the LRT Consultant should not pay the insurance premiums on their due date
and/or if any of the insurance policies specified in the certificate of insurance
should be cancelled or reduced and/or if the LRT Consultant does not deliver
authorization of their renewal on time as stated above, and/or if the certificate
delivered as stated is not consistent with the provisions of this agreement, the
Company may, at its discretion, but is not so obligated, effect all or part of the said
insurance in the name of and at the expense of the LRT Consultant. The aforesaid
will not place any obligation whatsoever on the Company to effect the insurance
for the LRT Consultant. The aforesaid will not prejudice any right or other relief
that is available to the Company.
15. Without derogating from the aforesaid, the LRT Consultant declares that he will
have no claim and/or demand and/or action against the Company and/or those
acting on behalf and/or in the name of the Company for any damage in respect of
which he is eligible for indemnity pursuant to the insurance that he has undertaken
to effect as specified above, or in respect of which he would have been eligible for
indemnity were it not for the deductibles prescribed in the policies and he releases
the Company and/or those acting on behalf and/or in the name of the Company
from any liability for damage as aforesaid and undertakes to act to exhaust all his
rights pursuant to the policies.
16. The LRT Consultant undertakes that the LRT Consultant’s insurance policies shall
include any additional instruction and/or extension required by the Company
and/or any other party to which the Company has undertaken to include waiving
subrogation.
17. Without derogating from any of the provisions of this Agreement regarding
assigning the agreement, and in the event that the Services addressed by this
Agreement or part thereof are provided by sub-contractors on behalf of the
Service Provider (including the Leader team and /or the Members Team) , the
Service Provider shall ensure that the subcontractors hold suitable insurance
policies depending on the nature and scope of the subtracted work. Alternatively,
the Service Provider is entitled to include the subcontractors in the named insured
under the policies arranged by the Service Provider as stated in the Certificate of
Insurance of the Service Provider
Page 43 of 52
18. A breach of any of the provisions of this Appendix constitutes a fundamental
breach of the Agreement.
Page 44 of 52
Appendix G”1”
Certificate of Insurance
Date ______
To:
1. Cross Israel Highway Ltd. (hereafter: "the Company") including their officers
and/or employees and/or the Local Lahav Team.
Cross Israel Highway Company Ltd.
65 Yigal Alon (Toyota Tower), 6744316
Tel-Aviv
2. The State of Israel and/or the Ministry of Transport and Road Safety of Israel
(hereafter: "the State") including their officers and/or employees.
Re: Certificate of Insurance for _________________________ (hereafter: "the
LRT Consultant") with regard to his professional services, including, inter alia,
consulting, management, professional guidance supervision (including overall
supervisor), all that in compliance with and in accordance to this Agreement for
the provision and the Services as provided in Annex B to this agreement
(hereinafter: "The Services") with regard to the light railway project in the
Haifa Metropolitan area (hereinafter: "the Project")
We hereby confirm that our Company has affected the insurance policies in the name
of the LRT Consultant in connection with provision of the Services as specified
below:
1. Third Party Liability Insurance
covering the LRT Consultant's legal liability against bodily injury and/or damage
caused to property of a third party in connection with the services with a limit of
liability of NIS 4,000,000 for an event and in the aggregate for the insurance period.
The insurance is not subject to any limitation and/or restriction regarding liability that
is caused by fire, explosion, panic, lifting devices, loading and unloading, damaged
sanitary facilities, poisoning, anything harmful in food or drink, riots, strikes, liability
for and against contractors, subcontractors and employees' suits subrogation by the
National Insurance Institute. The insurance is extended to indemnify the Company
and/or anyone on its behalf for liability that may be imposed on it due to an act and/or
omission of the LRT Consultant and/or any one on his behalf, subject to a cross-
liability provision.
The aforesaid insurance is extended to cover the Company's liability and/or those
acting on the Company's behalf as additional insureds in respect to their liability for
acts and/or omission on the part of the LRT Consultant, his directors, employees and
those acting on behalf of the LRT Consultant, subject to a cross liability clause
according to which the insurance will be deemed as effected separately for each
individual of the insured. The Company's property shall be deemed the property of a
third party.
Period: as from _____ until _________ (hereinafter: “the Insurance Period”)
Page 45 of 52
2. Employers' Liability and/or Worker's compensation Insurance –
covering the LRT Consultant’s legal liability towards its employees due to death
and/or injury as a result of an accident or illness while or during the course of his
work with a limit of liability of NIS 20,000,000 for an injured party, an event and in
total for the entire annual period of insurance.
For Worker's compensation, with limit of liability of USD 1,000,000.
The aforesaid insurance is not subject to any restriction concerning hours of work,
work at heights or at depths, sub-contractors and their employees, baits and poisons,
as well as youth employment. The insurance is extended to indemnify the Company,
should the Company be deemed the employer of all or any of the LRT Consultant’s
employees.
Period: as from _____ until _________ (hereinafter: “the Insurance Period”)
3. Professional Indemnity Insurance:
covering the LRT Consultant's liability and/or the Team leader and/or the Team
members under any and all Laws, for any act, and/or omission, arising out of a breach
of professional indemnity with Limits of liability of NIS 20,000,000 per occurrence
and in the aggregate for the annual insurance period. The insurance granted under this
clause shall not include any restriction and/or exclusion concerning: employees'
dishonesty and delay, loss of use, postponement or delay in performance of the
services, loss of documents, the insured's undertakings for management and/or
provision of services and/or their regularization and/or ordering materials and their
regularization, financial and consequential damages, and supervision including overall
supervision.
The insurance will include a retroactive date that is not later than the beginning of
services activity of the LRT Consultant's and/or any person on his behalf. The
insurance will include a discovery period of 6 months starting from the expiry of the
insurance period, unless the LRT Consultant maintains another insurance policy
conforming to the requirements of abovementioned. Retroactive date _______from
the date of commencement of provision of the services as stated.
The said insurance is extended to indemnify the Company's and/or the State of Israel's
and/or the ministry of transport's and road safety in Israel and all those acting on
behalf of and/or in the name of the above mentioned, for liability for acts and/or
omissions of the LRT Consultant's and/or those acting on his behalf, this being subject
to a cross liability clause according to which the insurance will be deemed to have
been effected separately for each individual of the insured.
Period: as from _____ until _________ (hereinafter: “the Insurance Period”)
General provisions:
1. The LRT Consultant will be solely responsible for payment of the premiums and
the deductibles prescribed in the insurance policies as specified above.
2. The above insurances include an explicit clause concerning the waiver of the
insurer's right of subrogation against the Company and/or the State and/or anyone
Page 46 of 52
acting on their behalf. The waiver will not apply to any person who caused the
damage maliciously.
3. The insurance policies specified above indicate that the said Insurance takes
precedence over any insurance effected by the Company and we waive any
demand and/or claim regarding participation in the Company's insurance and/or
that of those acting on behalf of the Company.
4. We confirm that the Insurance will not be cancelled and that no detrimental
change will take place in the Insurance for the period of insurance without you
being notified of the fact by registered mail 60 days in advance.
5. We hereby confirm that in the insurance policies specified above, the non-
fulfillment of obligations placed on the insured, including but not restricted to,
notice not given and/or not filed and/or a breach of any of the terms of the policies
will not prejudice the Company's right to indemnity.
6. Gross negligence exclusion is canceled.
7. It is hereby agreed that the wordings of the LRT Consultant’s insurance policies,
other than the professional indemnity insurance policy will not be inferior to the
wording known as BIT _____ or any other wording that may replace it subject to
any changes specified above.
For the purpose of the Certificate of Insurance:
1. The LRT Consultant includes:
a. The Team Leader - the LRT Consultant shall appoint the Systems
Engineer or the Track Engineer as the head of the Team Members.
The Team Leader shall manage and direct the execution of the
Services, as specify in Annex B (the Services).
b. The Team Members are: the Systems Engineer; Operations and
Maintenance Expert; Rolling Stock Engineer and Track Engineer.
c. Sub-contractors including their officers and/or employees.
2. The Local Lahav Team – is the team that the Company may appoint as the
Local Lahav Team Leader as its representative for the execution of this
Agreement. The Lahav Team Leader role may include, inter alia, the
management of the day-to-day activities of the LRT Consultant, professional
guidance, and supervision over the provisions of the Services by the LRT
Consultant and any additional tasks to be assigned by the Company to the
Local Lahav Team Leader.
Subject to the conditions and exclusions of the original policies, in as far as
they are not expressly changed according to the aforesaid.
Yours faithfully,
___________________ Insurance Company Ltd.
Page 47 of 52
by ____________________________________
(Name and position of the signatory)
Page 48 of 52
”H“Annex
LRT Consultantin the Team Members
1. General
1.1 This Annex defines and describes the Team Members who will be employed by
the LRT Consultant throughout the Project and the threshold requirements for
each of the Team Members (“Team Member(s)”).
1.2 The LRT Consultant shall not employ any person as a Team Member in the LRT
Consultant without the prior approval of the Company. The Company is entitled
not to approve the employment of each of the candidates for any reason, at its
sole discretion, and in particular as a result of non-compliance with the threshold
requirements detailed below.
1.3 The LRT Consultant must employ at least the Team Members as detailed in this
annex, in order to provide all the Services throughout the Project stages, as
detailed in the Tender Documents and in particular in Annex B (the Services) to
the Agreement.
1.4 For the avoidance of any doubt, it is hereby clarified that this annex does not
provide a full or exhaustive description of the number of Team Members in the
LRT Consultant, their duties or their obligations. Furthermore, the requirements
set out below regard the Team Members in the LRT Consultant should not be
construed as a representation that such personnel are sufficient to meet the
obligations of the LRT Consultant according to any of the Tender Documents.
1.5 Apart from the Team Leader, the remainder of the functions described in this
annex below may be executed by one or more of the Team Members. In
addition, a Team Member may carry out two or more of the functions specify
hereunder (subject to the approval of the Company and except for the Team
Leader), provided that such Team Member met the threshold requirements for
each of the functions.
1.6 The Team Members shall be employed by the LRT Consultant in one of the
following ways: (1) the Team Member belong to the workforce of the LRT
consultant, and the Team Member is employed by it on a regular basis; (2) the
Team Member in the LRT Consultant is employed by the LRT consultant by
virtue of an agreement to provide services, and the Team Member receive
payments for is work against the issuance of proper tax invoices.
1.7 All of the Team Members in the LRT Consultant are required to have a high
level of control of the English language, in order to manage the design
supervision and control of the Project in English.
2. The Team Members who will be employed by the LRT Consultant for the Services
period will be as follows :
2.1 Operations and Maintenance Expert
The LRT Consultant will employ the Operations and Maintenance Expert that
was presented by it on behalf of the LRT Consultant, within the framework of
the Proposal and approved by the Company. The Operations and Maintenance
Expert will be responsible for the design control and supervision of the LRT
operations, operational aspects of ridership forecasts and maintenance schedules.
Page 49 of 52
2.2 Systems Engineer
The LRT Consultant will employ the Systems Engineer that was presented by it
on behalf of the LRT Consultant, within the framework of the Proposal and
approved by the Company. The Systems Engineer will be responsible for the
design control and supervision of all railway systems including but not limited to
Power and Electrification, Signaling and Train Control, Communication
systems, Traffic signaling and wayside equipment.
2.3 Rolling Stock Engineer
The LRT Consultant will employ the Rolling Stock Engineer that was presented
by it on behalf of the LRT Consultant, within the framework of the Proposal and
approved by the Company. The Rolling Stock Engineer will be responsible for
the design control and supervision of the LRV.
2.4 Track Engineer
The LRT Consultant will employ the Track Engineer that was presented by it on
behalf of the LRT Consultant, within the framework of the Proposal and
approved by the Company. The Track Engineer will be responsible for the
design control and supervision of track alignment and trackwork systems.
3. Expert Engineers
3.1 In addition to the Team Members in the LRT Consultant as detailed in Section 2
above, the LRT Consultant will employ expert engineers for the Project design
control and supervision, as detailed hereunder:
3.1.1 Electrification Engineer;
3.1.2 LRT RAMS Engineer;
3.1.3 Traffic Signaling Engineer.
3.1.4 Depot Expert
It is hereby clarified that the above does not constitute an exhaustive list of
the Team Members on behalf of the LRT Consultant, and it will be
required to employ additional expert engineers on such dates and periods
as may be required, in Israel and abroad, to grant all of the Services as
specify in the Agreement.
3.2 All the engineers who will be employed by the LRT Consultant will have an
education, experience and expertise in their field of activity and shall fulfill at
least the following threshold requirements:
3.2.1 Electrification Engineer
3.2.1.1 It has a degree in the Electrification Engineer field of expertise
from a recognized institution.
3.2.1.2 It is required that the Electrification Engineer has at least ten (10)
years of professional experience in his field of expertise and has the
following professional experience: it has supervised and controlled
the design of electrical systems in at least two (2) light railway
projects, the accumulative length of rail in such projects was at
least twenty (20) km.
3.2.2 LRT RAMS Engineer
Page 50 of 52
3.2.2.1 It has a degree in the LRT RAMS Engineer field of expertise from
a recognized institution.
3.2.2.2 It is required that the LRT RAMS Engineer has at least ten (10)
years of professional experience in it field of expertise and has the
following professional experience: it has Supervised and
Controlled or Design as a RAMS engineer, the design of at least
two (2) light railway projects, the accumulative length of rail in
such projects was at least twenty (20) km.
3.2.3 Traffic Signaling Engineer
3.2.3.1 It has a degree in the Traffic Signaling Engineer field of expertise
from a recognized institution.
3.2.3.2 It is required that the Traffic Signaling Engineer has at least ten
(10) years of professional experience in its field of expertise and
has the following professional experience: it has Supervised and
Controlled or Prepared, the design of Transit Priority Traffic
Signaling for at least two (2) light railway projects.
3.2.4 Depot Expert
3.2.4.1 It has a degree in the Depot Expert field of expertise from a
recognized institution.
3.2.4.2 It has at least ten (10) years of professional experience in it field of
expertise and has the following professional experience: it has
Supervised and Controlled or Prepared, the design of Depot for at
least two (2) light railway projects, the accumulative length of rail
in such projects was at least twenty (20) km;
4. The LRT Consultant shall submit to the Company's approval (save for those
members approved within the Tender) detailed request for approval with respect to
each potential Team Member as specify under Sections 3 no later than ninety (90)
days prior to the date on which such member is designated to commence the
provision of the Services.
5. It is clarified that in addition to threshold requirement above, it is required that each
of the Team Members in the LRT Consultant has not been convicted in an offense
which in the opinion of the Company may have a material effect on the conduct of
such Team Member, including an offense involving moral turpitude or an offense of
fraud or breach of trust or any other offense, that in the opinion of the Company may
cast doubt on the integrity or credibility of such Team Member, and no criminal
proceedings with respect to such offence are being conducted against each of the
Team Members.
6. Capitalized terms used in this annex and not defined herein, shall have the meaning
ascribed thereto in Annexes “D(1)”- “D(5)” (Threshold Requirements) to the ITB.
Page 51 of 52
ANNEX "I"
Performance Bond
(Capitalized terms shall have the meaning ascribed to them in the Agreement)
Date: ____________
To:
Cross Israel Highway Company Ltd.
65 Yigal Alon (Toyota Tower), 6744316
Tel-Aviv
Re: Letter of Guarantee No. __________ (Performance Bond)
1. At the request of ____________________ (the “Debtor"), we
________________ hereby guarantee to pay you any sum up to an aggregate
amount of one hundred thousand Euro (€ 100,000), linked to the Index as
provided herein (the “Guaranteed Amount"), in connection with the debtor's
compliance with its undertakings pursuant to the LRT Consultant Agreement in
connection with the project of light rail line in the Haifa metropolitan area,
between Haifa and Nazareth.
2. Within seven (7) days of the date on which your first written demand was
received by us, we shall pay you any amount required in your demand up to the
Guaranteed Amount without you being required to substantiate your demand or to
demand payment thereof from the Debtor prior thereto and without set off or
deduction and free of any fees or taxes.
3. Your demand for payment of the Guaranteed Amount may be affected in stages,
and payments will be executed in accordance with your demand provided that the
overall total of the payments does not exceed the aggregate Guaranteed Amount.
4. Any amount required under this Performance Bond shall be paid with the addition
of linkage differentials according to the following conditions:
4.1. "Index" - shall mean the Harmonised Index of Consumer Prices (HICP) as
published from time to time by the Eurostat, the statistical office of the
European Union, or if publication by such body ceases or is replaced by
another index, an index identical in nature.
4.2. "Linked to the Index" - the amount payable, bearing the differences between
the index of the month of _________ that was published on _________ [the
last date on which the index was published] (is ______ points) and the index
that was last published before the payment date.
Page 52 of 52
5. Our undertakings pursuant to this Performance Bond are direct, primary,
unconditional and we hereby confirm that no change in the terms of the
Agreement and/or any claims in connection with the Agreement shall derogate
from any of our obligations in connection with this Security.
6. This Performance Bond will not be assigned or transfer.
7. This Performance Bond shall enter into force on the date set forth above and shall
remain valid until __________ [shall be fulfilled as to the exact expiration date set
by the Company in the Agreement with respect to the Performance Bond].
Yours faithfully,
_____________________________
Performance Bond Issuer
