Key Benefits:
Publics concerned: State services, local authorities, companies and individuals concerned by the new station of Montpellier Sud de France.
Subject: approval of the partnership agreement allowing the realization of the multimodal exchange hub Montpellier Sud de France.
Entry into force: the text comes into force on the day after its publication.
Notice: the decree approves the partnership contract between SNCF Réseau and the SAS Gare de la Mogère for the design, construction, maintenance, and financing of the Montpellier South multimodal exchange hub in France.
References: this decree and the partnership agreement are available on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Ecology, Sustainable Development and Energy,
Considering Directive No. 2004/17/EC of 31 March 2004 on the coordination of procurement procedures in the water, energy, transport and postal services sectors;
Vu le monetary and financial code ;
Vu le Transport codeincluding article L. 2111-11;
Vu la Act No. 2014-872 of 4 August 2014 carrying out railway reform, including articles 25 and 40;
See?Order No. 2004-559 of 17 June 2004 modified on partnership contracts;
See?Order No. 2005-649 of 6 June 2005 in relation to procurement by certain public or private persons not subject to Public procurement code ;
Vu le Decree No. 97-444 of 5 May 1997 amended on the missions and statutes of Réseau ferré de France;
Vu le Decree No. 2005-1308 of 20 October 2005 relating to contracts passed by the procuring entities referred to in theArticle 4 of Order No. 2005-649 of 6 June 2005 in relation to procurement by certain public or private persons not subject to Public procurement code ;
Vu le Decree No. 2006-1534 of 6 December 2006 for the application of articles 1st, 1st-1 and 1st-2 Act No. 97-135 of 13 February 1997 amended to create the public establishment " Réseau ferré de France" for the renewal of railway transport;
Vu le Decree No. 2009-243 of 2 March 2009 relating to the procurement procedure and certain modalities for the execution of partnership contracts passed by the State and its public institutions and the persons mentioned in the articles 19 and 25 Order No. 2004-559 of 17 June 2004;
Considering the opinion of the support mission for the implementation of the partnership contracts dated 4 April 2012;
Considering the deliberation of the Board of Directors of Réseau ferré de France dated 16 October 2014;
The State Council (section of public works) heard,
Decrete:
Is approved the partnership contract, including its annexes, passed between SNCF Réseau and SAS Gare de la Mogère for the design, construction, maintenance, and financing of the Multimodal Montpellier South Trade Point in France.
A copy of the partnership contract and its annexes is annexed to this Order (1).
The costs of publishing in the Official Journal of the French Republic and of printing this decree and the annexed partnership contract are borne by SNCF Réseau.
The Minister of Ecology, Sustainable Development and Energy and the Secretary of State for Transport, the Sea and Fisheries are responsible, each with regard to it, for the execution of this decree, which will be published in the Official Journal of the French Republic.
Annex
CONTRAT DE PARTENARIAT POUR LA RÉALISATION DU PÔLE D'ÉCHANGE MULTIMODAL MONTPELLIER SUD DE FRANCE
Contents
1. Definitions. - Interpretation
Title I. - Object, duration and scope of contract
2. Purpose of the contract
3. Entry into force. - Duration
Part II. - Occupation. - Goods
4. Goods available
5. Property regime
Part III. - Implementation and provision of the pole
6. General obligations of the holder for the realisation of the pole
7. Work and development by SNCF-R
8. Administrative authorities related to work
9. Risks related to the right-of-way
10. Design
11. Work process
12. Monitoring of the work
13. Provision
14. Implementation schedule
15. Penalties during construction
16. Coercive measures during construction
Part IV. - Maintenance of the pole
17. Administrative authorities required for the delivery of benefits
18. Maintenance
19. Compliance
20. Renewal
21. Energy commitments
22. accompaniment real estate program
23. Control of licensee and penal obligations
24. Compliance with public service requirements. - Public order. - Police
25. Coercive enforcement measures
Title V. - Financial regime of the contract
26. Costs borne by the licensee
27. Financing
28. Public competition
29. Remuneration of the licensee
30. Payment of the remuneration of the licensee
31. Guarantees
32. Taxation
Part VI. - Control. - Responsibilities
33. Report on activity. - Information from SNCF-R
34. Passing contracts by the holder and social integration
35. Responsibilities
36. Insurance
Part VII. - Evolution. - End of contract
37. Amendment of contract
38. Change of law
39. Estimate
40. Force majeure
41. Termination for reasons of general interest
42. Due
43. Consequence of termination of contract
Part VIII. - Final provisions
44. Cession
45. Applicable law and dispute resolution
46. Intellectual property
47. Notifications
48. List of annexes to the contract
Annex 1. - Technical requirements and requirements
Annex 2. - Architectural and technical project
Annex 3. - timetable for the realization of the pole
Annex 4. - grip
Annex 5. - Maintenance and sustainability plans
Annex 6. - performance objectives. - Penalty
Annex 7. - Detail of costs incurred by the licensee
Annex 8. - Funding plan
Annex 9. - Public competition
Annex 10. - Determination of rent
Annex 11. - First-demand guarantee
Annex 12. - Communication
Annex 13. - licensee Activity Report
Annex 14. - Insurance
Annex 15. - Stability of ownership
Annex 16. - accompanying real estate program
Annex 17. - CNM line coordination milestones
Annex 18. - Pre-disposal operations
This contract is entered into on 4 February 2015.
Between the undersigned:
1. SNCF Réseau, a public institution with an industrial and commercial character, registered in the register of commerce and companies (RCS) of Paris under No.B.412.280.737, whose seat is 92 Avenue de France, 75648 Paris Cedex 13, represented by Alain Quinet, duly authorized as the managing director of SNCF Réseau, (hereinafter referred to as "SNCF-R"),
On the one hand, and
2. SAS Gare de la Mogere, a simplified stock company with a capital of 40,000,00 euros, whose head office is located 35, rue de la Gare, 75019 Paris, registered in the register of trade and companies (RCS) of Paris under number 808.921.274, represented by Jean-Pierre Matton, duly authorized to do so.
(hereinafter referred to as the "holder"),
On the other hand.
The following information was previously provided:
The project of the Multimodal Exchange Pole of Montpellier South of France ("the PEM") covers the design, construction, maintenance, maintenance and operation of a passenger building of approximately 8,235 square meters of SHON, a parvis, intermodality and parking spaces of the various modes of transport, docks and all the technical elements ensuring the functionality of the PEM.
In accordance with provisions of Article 2 of Order No. 2004-559 of 17 June 2004 on partnership contracts (the order), SNCF Réseau (SNCF-R) has decided to use the partnership contract in the light of the results of the previously conducted evaluation, the latter having received positive opinion No. 2012-05 of the public-private partnership support mission.
As well as the authorisationArticle L. 2111-11 of the Transport Code, SNCF-R has launched, on the basis of articles 3 et seq. of the order, a consultation for the award of a partnership contract (the contract) on the design, construction, maintenance, maintenance and financing of the multimodal exchange pole (new garage) of Montpellier Sud de France.
A notice of public appeal to competition was published in the Official Journal of the European Union (Notice No. 2012/S 137-229252 and Corrigendum Notice No. 2012/S 141-234386), and the Official Bulletin of Public Procurement Ads (Notice No. 12-143106 and Corrigendum Notice No. 12-146983).
At the end of this procedure, the SNCF-R Board of Directors deliberated on the draft contract on 16 October 2014, and authorized its president to sign it.
The following was agreed upon:
1. Definitions, interpretation
1.1. Unless expressly stated otherwise, the following terms and expressions will have the meaning that is carried in relation to each of them:
Shareholders: shareholders of the licensee;
Annex: an annex to the contract;
Article: an article of the contract;
Pole Implementation Timeframe: the timeline for the delivery of the benefits, including the design and execution of the work, necessary for the provision of the pole, inserted in Appendix 3;
Renewal Reserve Account: the specific account to receive the amounts paid by SNCF-R for the financing of the renewal benefits as referred to in section 20.4. The balance of this account includes the financial products released by the locked-in cash account since its opening;
Contract: this contract, including its annexes;
Public competition: amounts paid by SNCF-R to the holder during the period of realization of the pole, in accordance with the provisions of Article 28;
Consumption of commitment: Consumption on which the licensee undertakes to sign the contract;
Contract Management Costs: Forecasting Costs (expressed without taxes, constant Euros, value of September 1, 2013) of the licensee relating to the management and management of the contract, operation and insurance of the licensee from the date of disposition, as detailed in Appendix 7;
Funding costs: the licensee's forecasting costs (expressed in current euros) related to the financing of the pole, as detailed in Appendix 7;
Costs of energy and fluids: forecasting costs (expressed without taxes, in constant euros, value of September 1, 2013) of the licensee for energy and fluid supply, as detailed in Appendix 7;
Maintenance costs: Forecast costs (expressed without taxes, in constant euros, value of September 1, 2013) of the licensee relating to maintenance services, excluding renewal, dependent, as detailed in Appendix 7;
Renewal costs: the forward-looking costs (expressed without taxes, in constant euros, value of September 1, 2013) of the licensee relating to the renewal obligations under its responsibility, as detailed in Appendix 7;
Investment costs: the forecasting costs for the realization of the pole (expressed off-tax, in constant euros value of September 1, 2013) excluding interlayary financial costs related to all funding instruments allowing the holder to execute its obligations under the contract. These costs are detailed in Appendix 7;
Basic current investment costs: updated investment costs by applying a Capex indexing assumption of 4% per year, in accordance with the provisions of Appendix 7.
Contract Date made available: the date on which the licensee has contracted to have completed and made the pole available to SNCF-R as set out in section 14.1;
Availability date: the date on which the pole is considered to be made available to SNCF-R. This date is fixed under the conditions provided for in Article 13.2;
Effective date of the contract: the date on which the contract enters into force, as defined in section 3.1;
Major defects: the defects opposing the acceptance by SNCF-R of the provision of the pole, in that they render unfit to its destination or to its normal use by SNCF-R any or part of the pole, or in that they affect the strength of the pole or the safety of persons and goods in accordance with the requirements of the contract, being specified that in application of the definition referred to in the significant accumulation
Minor defects: defects other than major defects;
Imprisonment: all land identified in Appendix 4 on which the pole is located;
Rail: any company with private or public status, and licensed in accordance with applicable legislation, the main activity of which is the provision of goods and/or passenger transport services by rail, the traction that must be provided by that company. This term also covers companies that only provide traction. It includes SNCF Mobility. The concept of a railway company also includes that of international grouping of railway companies;
Key events: the essential events of the process of realization of the pole as identified in the schedule of realization of the pole and whose realization may constitute a condition for the payment of public competitions under the conditions set out in Annex 9;
equity: the funds provided by shareholders to the social capital of the licensee;
Covering instruments: where appropriate, the financial instruments put in place by the licensee to cover, inter alia, the risks of debt instruments-related rates that (i) the licensee deems it useful to cover, (ii) debt instrument providers will require it to cover under the policy of possible coverage imposed on it by the financing agreements of the debt instruments;
Debt instruments: the financing, as detailed in 1.2.2 of Schedule 8, including bank or any other form of financing put in place by the licensee for the performance of its obligations under the contract, excluding (i) the equity and quasi-clean funds and any credits associated with them, (ii) the TVA and (iii) relay credits of the Covering Instruments;
Day: calendar day, unless expressly stated otherwise in the contract;
CNM line: set of works, facilities and equipment, carried out by the CNM provider, constituting the railway contouring of Nîmes and Montpellier;
Rent: compensation paid to the licensee from the date of disposition, as defined in section 29.1;
Loyer (LF): element of the rent paid to the licensee in return for the performance of the maintenance and renewal services that the licensee is responsible, as defined in section 29.1;
Rent I1: the portion of the real estate rent defined in Article 29.1;
Rent I2: the portion of the real estate rent defined in Article 29.1;
Real property rent: rent element paid to the owner in return for the provision of the pole as defined in section 29.1;
Loyer G (LG): the portion of the operating rent defined in Article 29.1;
Rent M (LM): the portion of the operating rent defined in section 29.1;
Rent R (LR): the portion of the operating rent defined in Article 29.1;
Rent F (LF): the portion of the operating rent defined in Article 29.1;
Performance objectives: performance and availability objectives imposed on the licensee under section 23;
Independent Technical Organization: entity designated under the conditions set out in 10.2;
Part(s): together or separately, SNCF-R and/or the licensee;
Penalty: financial penalty applied to the licensee in the event of a breach of performance objectives under the conditions set out in section 23;
Pole (or exchange pole): all the works, facilities and equipment constituting the Montpellier South of France exchange pole, whose technical characteristics are defined in Appendix 1;
Funding plan: description of the instruments and modalities through which the licensee provides funding for the realization of the pole in Appendix 8;
CNM Preserver: Workmaster, designated by SNCF-R, for the implementation of the CNM Line;
Maintenance and sustainability plans: plans describing maintenance, maintenance and renewal services to ensure compliance with detailed performance and availability objectives in Appendix 5. These plans are updated under the conditions defined in Article 18.5;
Final maintenance and sustainability plan: upgrade programme of the pole established under the conditions defined in section 20.3;
Accompaniment Real Estate Program: a valorization program carried out by the licensee under the conditions defined in section 22 and Appendix 16;
Baseline: design file prepared by the licensee on the date of signature of the contract and inserted in Appendix 2;
Clean quasi-funds: subordinate funding provided by shareholders;
Guaranteed real estate revenues: has the meaning defined in Appendix 16;
Results: elements, creations, inventions or other elements developed, created or invented by the licensee as part of the performance of the contract, including studies, reports, sketches, drawings, models, plans, maps, documents and information of any kind;
Shared risk: event giving rise to a sharing of its financial consequences between SNCF-R and the licensee under the conditions set out in section 14.3;
SNCF Gares & Connexions : Société nationale des chemins de fer français, prise en sa section « Gares & Connexions ».
Gares & Connexions is the branch of SNCF Mobility dedicated to the management and development of the 3,000 French passenger stations. In accordance with the legislative and regulatory provisions that have come into force as part of the opening to competition of international passenger transport, including the Decree No. 2012-70 of 20 January 2012 for passenger stations and other service infrastructures of the railway network, Gares & Connexions is a self-employed branch of the transport operations of SNCF Mobility, which is responsible for managing passenger stations in transparent and non-discriminatory conditions. It has separate accounts.
1.2. The annexes are an integral part of the contract and have the same value as the provisions in the contract body. Unless expressly stated otherwise, any reference to the contract includes its annexes. If there is a contradiction between a provision in the contract body and an annex provision, the provisions in the contract body will prevail.
In the event of a contradiction between the annexes to the contract or in the same annex, the specific clauses shall prevail over the general clauses, being specified that, in any case, the provisions of Schedule 1 shall prevail over Schedule 2.
1.3. The titles of the articles and the summary were inserted only to facilitate references and should not be taken into account in interpreting the contract.
1.4. Articles 25 and 40 Act No. 2014-872 of 4 August 2014 providing that the public institution known as " Réseau ferré de France" shall, as of 1 January 2015, take the name "SNCF Réseau" solely as a result of the law, the parties agree that, in the event that the contract would refer to the terms "RFF" or " Réseau ferré de France", the parties must be heard as referring to the Party known as "SNCF-R".
2.1. The licensee is responsible for ensuring the design, construction, maintenance, maintenance and financing of the pole, under the conditions laid down by the contract and in compliance with the applicable regulations.
The pole will serve the new line of the Nîmes-Montpellier (CNM) bypass made under a partnership contract.
2.2. The hub includes all the constructions, facilities and equipment of the new station Montpellier Sud de France corresponding to a multimodal station including:
- a passenger building of approximately 8,235 square meters of SHON and a parvis;
- intermodality and parking spaces of the different modes of transport, including a parking of 1,600 parking spaces;
- all technical elements ensuring the PEM functionality, excluding railway equipment. The benefit limits between SNCF-R and the licensee for these railway equipment are described in Appendix 1.1.
2.3. From the date of availability, the pole will be made available to the licensee to the public service for the carriage of passengers.
The licensee is responsible for the maintenance, maintenance and renewal of the pole, excluding parking, as well as the provision of energy and fluids, under the conditions defined in the contract. The management of railway traffic and traffic and the operation of the railway equipment of the pole are excluded from the scope of the contract.
2.4. In return for the performance of these benefits, SNCF-R pays the holder the rent under the conditions set out in section 29.1, and without prejudice to the payment of the public examinations referred to in section 28.
3. Entry into force, duration
3.1. The contract comes into force from the publication in the Official Journal of the French Republic of the decree in the Council of State which approves it.
3.2. The term of the contract is fifteen (15) years from the date of entry into force of the contract.
3.3. In case of administrative or litigation appeal against the contract, a detachable act of the contract or the decree in the Council of State approving the contract, the parties agree to meet as soon as possible. The licensee shall, in any event, remain in compliance with all of its obligations under the contract notwithstanding the existence of such an appeal.
In the case that an appeal against the contract, an act detachable prerequisite or the decree in the Conseil d'Etat approving the contract would result in the cancellation of the contract, the compensation due to the holder will be calculated in accordance with the principles laid down by the jurisprudence of the Conseil d'Etat, being specified that, in any case, the said compensation shall cover a minimum of the equity incurred by the holder on the date
An appeal against the contract, a detachable act of the contract or the decree in the Council of State approving the contract is not considered an external cause and totally out of the control of the holder who may give rise to the implementation of Article 14.2.
However, the delay associated with a court decision, or a decision by SNCF-R, ordering the suspension of the performance of the contract, shall be dealt with in accordance with the terms of Article 14.2, provided that the judicial suspension decision is not related to a cause attributable to the licensee.
4.1. The rights and obligations entrusted to the licensee under the contract shall, under the conditions set out in the contract, extend to the right-of-way and to the structures, facilities and equipment necessary or useful for the performance by the holder of the missions entrusted to it under the design, construction, maintenance and maintenance of the pole.
Appendix 1.1 sets the limits of the scope of the contract.
4.2. The right-of-way, identified in Appendix 4, is made available to the licensee as follows:
- from the date of entry into force of the contract for area 1 of the right-of-way as identified in Appendix 4;
- two (2) days after the date of obtaining the building permit for area 2 of the right-of-way as identified in Appendix 4.
The availability is terminated at the end of the contract.
The licensee accepts the right of way in the condition at which it is made available, without being able to raise any claim or appeal against SNCF-R, for any reason, including for reasons of adjudication, lack of alignment, poor right-of-way, soil or basement.
4.3. The licensee acknowledges that it has been fully aware of the administrative documents relating to the right-of-way, as well as of the ground and subsoil studies relating to these lands, submitted by SNCF-R prior to the signing of the contract and that it has completed, prior to the date of entry into force of the contract, all the technical studies and diagnostics necessary for the proper performance of its obligations under the contract.
The holder suffers from public or private servitudes which eventually clashes the right.
5. Property regime
5.1. In that the contract carries out public domain occupation, it is valid for the occupation of this domain to the end, normal or anticipated, of the contract. In return for this occupation, the licensee shall pay a fee of one (1) euro each year to SNCF-R from the date of entry into force of the contract.
It is expressly stated that this authorization is not a constitutive of real rights.
The furniture or immovable property acquired or realized by the holder for the purpose of carrying out the contract, or handed over to the holder by SNCF-R, shall be subject to the following three categories:
- the first category corresponds to all the works, real estate facilities and equipment located within the scope of the contract as well as the furniture items necessary for the execution of the contract (including maintenance and renewal services). These assets are owned by SNCF-R upon completion or acquisition by the licensee;
- the second category corresponds to goods that are not of first class but are useful to the execution of the contract and located within its scope. These properties are the ownership of the holder for the duration of the contract and return to SNCF-R for free at the end of the contract;
- the third category corresponds to the goods that are considered by the parties as neither necessary nor useful for the continuation of the operation and maintenance of the pole. These assets are the ownership of the holder for the duration of the contract and remain at the end of the contract.
5.2. An inventory that classifies the property according to the three categories defined above shall be prepared in a contradictory manner within one (1) year from the date of the disposal of the pole. This inventory is updated by the licensee at its annual cost on the anniversary dates of the date of availability and then subject to approval by SNCF-R.
5.3. The property regime of the accompanying real estate program is specified in section 22.
6.1. As a master of work of the pole, the licensee shall carry out all the operations necessary for the realization of the pole, including the design studies and execution of the work under the conditions provided for in the contract and in accordance with the applicable regulations and the rules of art.
6.2. The consistency and characteristics of the pole and the requirements related to its implementation are specified by the contract and its annexes, including Appendix 1. The licensee assumes full responsibility for the basic project that it has developed and is included in Appendix 2.
The licensee shall, in particular, comply with the commitments listed in Annex 1.4, made in respect of the services of the State, local authorities, organizations or third parties, in particular within the framework of the studies and consultations that have allowed to approve the realization of the pole, and then within the framework of the procedure for declaration of project of the pole in accordance with the terms defined in Article 37.2 with respect to the financial consequences and of Article 14.2 with respect to
The licensee shall not, in any case, avail itself of the possible incorrect or incomplete nature of the studies of any nature that have been handed over to it to facilitate its mission. It checks, controls, modifies or completes these studies as necessary and under its sole responsibility. The licensee shall guarantee SNCF-R against any appeal that would be directed against SNCF-R or its service providers as a result of the use, under the licensee's responsibility, of these studies for the realization of the pole.
6.3. Without prejudice to section 6.4, the licensee shall, under its sole responsibility for SNCF-R, manage the risks associated with interfaces with third-party entities generated by the construction, maintenance and renewal of the pole, in particular the entities responsible for carrying out the surrounding urban developments, particularly within the framework of the agreed development area surrounding the right of the pole.
6.4. The licensee undertakes to carry out the work necessary for the realization of the pole in coordination with the CNM provider, in particular in order to meet the implementation schedule of the pole in Annex 3.
However, a delay in relation to the contractual date of disposition directly related to the work required for the implementation of the CNM line and not attributable to the licensee is deemed to be a shared risk. These include the delays, in relation to the schedule of coordination milestones contained in annex 17, in the transmission to the holder by the NJC provider of the documents listed in this annex, or in the implementation by the NJC provider of the operations described in this annex.
7. Work and development by SNCF-R
SNCF-R shall, under its responsibility, carry out the work and development described in Appendix 1, and shall, in particular, carry out the deployment of the railway telephony facilities and the implementation of the necessary arrangements for the operation of the pole, including the development of commercial equipment operated by railways.
The licensee undertakes to carry out the work necessary for the realization of the pole in coordination with SNCF-R and leaves the teams responsible for this work and adjustments freely to the site.
The licensee makes its best efforts to facilitate the implementation of these operations by SNCF-R.
A delay in relation to the contractual date of disposition exclusively related to the work and adjustments referred to in this article and not attributable to the licensee shall be deemed to be a shared risk.
8. Administrative authorities related to work
8.1. The licensee shall be responsible for the completion of all necessary steps to enable the competent authorities to issue, and to maintain in force, the authorizations, licences or permits necessary to carry out the work and to make available to the pole, within time limits consistent with the schedule of completion of the pole.
In particular, all of the acts and authorizations required under the urban planning rules, railway regulations and the rules relating to the protection of health and the conditions of hygiene, accessibility and security applicable to buildings open to the public, with the exception of the project declaration to be obtained by SNCF-R, are specified that the licensee is making its best efforts to facilitate its obtaining.
Where circumstances warrant it, and in particular in the event of proven difficulties of the licensee, SNCF-R may provide, as appropriate, its support to facilitate the obtaining of such authorizations and the conduct of the corresponding steps provided that the applicant's applications for permits or authorizations submitted by the licensee are complete and established in accordance with the requirements that apply to them. The eventual intervention by SNCF-R in this capacity does not, nor does it, engage the responsibility of SNCF-R, or release the holder of his or her own in obtaining administrative authorizations.
8.2. In the event of a delay in obtaining the authorizations, licences or permits, necessary for the completion of the work and the provision of the pole, resulting from a modification of the local plan of urban planning that occurred after the date of filing of the building permit, the contractual date of disposition is shifted under the conditions provided for in Article 14.2.
The financial consequences resulting from the modifications of the project made necessary by the modification of the local planning plan are dealt with under the conditions provided for in section 37.2.
8.3. If, all of the authorizations required for start-up of the work (and in particular the building permit) were not obtained within twelve (12) months from the date of entry into force, SNCF-R may issue the termination of the contract under the conditions set out in sections 40 or 42, as the delay in obtaining the authorizations is linked, or not, to the cause referred to in section 8.2.
8.4. In the case that the building permit is the subject of an appeal, regardless of the nature, or of a withdrawal, the licensee shall promptly inform SNCF-R, and shall communicate to it all the appeal or withdrawal documents.
The parties shall meet within ten (10) days of the receipt by SNCF-R of the documents referred to above, in order to assess the relevance of the appeal or withdrawal, and its consequences on obtaining the building permit, including any alternative solutions that may be undertaken, under the sole owner's responsibility as a workmaster, to allow the continuation of the project under satisfactory conditions for SNCF-R.
The licensee is required to continue the performance of the contract during this evaluation period, unless a court decision is reached against the contract or SNCF-R decision. At the end of the evaluation period, the duration of which may not exceed two (2) months from the first meeting between the parties referred to above, SNCF-R shall notify the licensee, by registered letter with receipt, of its decision on the continuation of the project.
If SNCF-R decides to continue the execution of the contract, if any, within the framework of the implementation of an alternative solution, the licensee is required to continue the implementation of the project under the conditions defined below:
(a) The licensee shall, at its own cost, implement any solution to ensure the regularization of the project (including the filing of a new building permit application or a licence application);
(b) Where the solution to ensure the regularization of the project involves additional implementation deadlines, and provided that the remedy against the building permit is substantially based on a cause not attributable to the licensee, SNCF-R postpones the contractual date of disposition within the limit of what is strictly necessary to take into account the delay on the schedule directly resulting from the implementation of the regularization solution;
(c) In the case that, after notification by SNCF-R of its decision to continue the project, the building permit was cancelled by the administrative judge or the confirmed withdrawal:
(i) in the event of the cancellation of the permit or the confirmation of the withdrawal, in particular for a cause attributable to it, the licensee shall, at its own expense, carry out any new steps to obtain a new permit to build and bear all the financial consequences associated with the delay in the schedule of realization of the pole;
(ii) in the event of the cancellation of the permit or the confirmation of the withdrawal, exclusively for a cause not attributable to the licensee, the parties shall meet to review the actions to be taken by the project. The delay in relation to the contractual date of disposition related to the cancellation or withdrawal of the building permit in such a case is deemed to be a shared risk.
Under this section 8.4, the only events that could justify the implementation of section 14.3 are the cancellation and confirmation of the withdrawal of the building permit in the absence of a cause attributable to the licensee, subject to the conditions provided for in section 14.3.
SNCF-R may decide, at any time, to waive the continuation of the contract, especially when the granting of a new building permit is impossible.
When SNCF-R decides to renounce the continuation of the project, the financial consequences of the termination of the contract are settled in accordance with the provisions of section 42, where the appeal is based, inter alia, on a cause attributable to the licensee. Otherwise, SNCF-R shall pay compensation equal to the sum of:
(i) the actual outstanding interest, on the effective date of termination, of the debt instruments, including the accrued interest not accrued by the licensee on that date;
(ii) the equity committed by the licensee on the effective date of termination, if any, reduced the fee for the pole's compliance with the requirements of the contract and the rules of art. If the amount of the pole's compliance fee is greater than that of the equity, SNCF-R is authorized to call the guarantee provided for in section 31.1 to obtain the payment of the amounts due as such.
9. Risks related to the right-of-way
9.1. The holder alone bears the risks associated with the characteristics (especially geological and hydraulic) of the pole's right-of-way terrain, the state of the soil and the subsoil (especially the risks associated with the presence of buried structures and networks, flooding and pollution regardless of the date of contamination) as well as environmental discoveries, both floristic and faunistic, affecting the realization of the work.
In accordance with the applicable regulations, the licensee shall carry out its costs for the conduct of archaeological diagnostics and excavations and, in the event of discovery, the implementation of treatment measures.
9.2. The licensee shall support all direct and indirect financial consequences, as well as any delay in the schedule, which would be related to the achievement of one or more of the risks referred to in section 9.1.
10. Design
10.1. The licensee shall be responsible for the design of the pole in accordance with the provisions of the contract, including the technical requirements set out in Appendix 1, to Appendix 2, as well as, in general, in accordance with the standards and obligations provided for in the matter by the regulations in force and in accordance with the rules of art.
The master's team charged by the owner of the design of the pole and the monitoring of its realization is described in Appendix 2.
As a master of work, the licensee shall not avail itself of the possible incorrect or incomplete nature of the documents, studies and diagrams of any kind, including the characteristics of the pole, which were handed over to it by SNCF-R.
10.2. Within a maximum period of two (2) months from the date of entry into force of the contract, the licensee shall, after having obtained the SNCF-R agreement in accordance with the terms set out in Appendix 1.3, designate the independent technical body of the entities involved in the design, construction, maintenance and renewal of the pole.
The independent technical body, whose obligations are described in Annex 1.3, is responsible for the assessment of the conformity of the design and realization of the work of the pole to all the technical requirements of the contract, the regulations in force and the rules of art.
The proposed contract linking the independent technical organization to the licensee shall be submitted for approval to SNCF-R, in order to ensure, inter alia, the sufficiency of the means available to the licensee to carry out its missions and the effective guarantees made with respect to the licensee and the entities involved in the design, construction, maintenance and renewal of the pole. Contractors linking the independent technical body to the licensee are subject to the same approval obligation by SNCF-R.
The stipulations of this contract provide that the licensee may not terminate or suspend the contract of the independent technical body, or take any measures affecting in any way the field, nature and quality of its interventions or remuneration, without having previously obtained the express agreement of SNCF-R.
When it is not expressly provided for an automatic transmission to SNCF-R, all of the results of the controls and inspections carried out by the independent technical body, as well as its recommendations and opinions are available at any time, and on a simple request, by SNCF-R.
10.3. In accordance with the schedule, the licensee shall communicate to SNCF-R, for information, a draft final draft project file (APD) and a draft project file (PRO), including the development and implementation plan in the station (PAIG) and the dock occupancy plan (POQ), and with the advice required by the technical requirements of the contract and its annexes, including the advice of the independent technical body.
For a period of three (3) months from receipt of the draft records referred to in this section, SNCF-R may make representations to the licensee. In the absence of any express observations of SNCF-R within this period, the latter is deemed not to have any comments to be made on the project.
For a period of three (3) months from the receipt of the draft records referred to in this section, SNCF-R may interrogate the licensee for clarification or additional information. During this period, SNCF-R shall notify the licensee of any comments regarding the conformity of design documents with the requirements of the contract.
The licensee shall take into account the comments made by SNCF-R within fifteen (15) days of receipt, and shall forward the amended project to SNCF-R within that period.
10.4. SNCF-R shall communicate, for information, to SNCF Gares & Connexions the draft files referred to in section 10.3 of this section and the notices accompanying it, including the advice of the independent technical body. The SNCF is authorized to submit, under conditions identical to those provided in section 10.3, comments to SNCF-R, which forwards them to the licensee.
The licensee shall take into account the comments made by SNCF Gares ' Connexions in the same manner and in the same manner as those provided by SNCF-R.
10.5. The licensee is solely responsible for the conformity of the pole with applicable regulations and the provisions of the contract. The verifications and observations by SNCF-R, and if applicable SNCF Gares & Connexions, concerning the design of the pole, do not imply the responsibility of SNCF-R and SNCF Gares & Connexions, nor the holder of its responsibility for the conformity of the pole with the requirements of the contract, the applicable regulations and the rules of art.
11. Work process
11.1. The licensee shall, at its own expense and under its responsibility, carry out all the work necessary for the realization of the pole, in accordance with the contract specifications, including the provisions of Schedule 1, and in general, in accordance with the standards and obligations provided for in this matter by the regulations in force.
11.2. The licensee shall keep SNCF-R informed of any event likely to significantly affect the completion and subsequent operation of the pole, as soon as it is aware. It shall forward to SNCF-R, as soon as possible, an analysis report of the event under consideration by the independent technical body.
Communication operations related to the realization of the pole, including site visits, can be organized on the initiative of SNCF-R or the holder. The practical terms and conditions of these operations are defined in Appendix 12.
11.3. Unless otherwise expressly provided by the contract, the licensee shall bear the full risk of the construction of the pole, including the risk of delays associated with climate hazards. The licensee is also deemed to have included in its work schedule any difficulties and delays related to difficulties in accessing the site or the occupation of all or part of the right-of-way lands by project opponents and may not raise any claims in this regard.
The licensee shall ensure, under its responsibility, the safety of the work and the construction site and shall bear all the risks, including theft and vandalism, without being able to claim a lag of the contractual date of disposition of the pole pursuant to the provisions of Article 14.2.
12. Monitoring of the work
12.1. The licensee shall develop and transmit to SNCF-R:
(i) each quarter from the date of entry into force of the contract, a quarterly progress report of the project under the conditions set out in Schedule 13;
(ii) as soon as possible, any reports and information that SNCF-R may request in order to assess whether the work is in accordance with the project of execution referred to in 10.3 and the regulations in force;
(iii) as soon as possible, any other documents, including quality assurance plans, studies, calculation notes, control and testing reports that SNCF-R may request.
12.2. The licensee organizes quarterly meetings to advance studies, procedures and administrative authorizations and works to which SNCF-R is invited. These meetings take place within fifteen (15) days of receiving the project's quarterly progress report or more often if SNCF-R considers it necessary.
12.3. As of the date of entry into force of the contract, the independent technical agency shall prepare, each quarter, to the attention of the licensee and SNCF-R, a report on the quality and conformity of the work carried out by the licensee, on the terms and conditions of execution of its mission, and on compliance with the schedule of completion of the pole. It checks the progress of the work of the pole. As such, it assesses the implementation of key events in the design and construction of the pole, as set out in the implementation schedule, and notifies its evaluation of their implementation to SNCF-R and the holder.
12.4. SNCF-R, the independent technical agency and SNCF Gares & Connexions have at any time the right of access to the construction site, in order to monitor the progress of the work and their compliance with the provisions of the contract, the applicable regulations and, in particular, the observations and requirements of the competent authorities. The holder always leaves them free access to the construction site and provides them with their assistance to access all points of the construction site.
These inspections may, if necessary, give rise to comments, requests for explanations, comments or recommendations to the licensee.
In the event that SNCF-R, the independent technical agency or SNCF Gares & Connexions detects possible anomalies in the completion of the work, or wishes to verify points that may significantly affect the construction or subsequent operation of the pole, the licensee is required to provide its assistance to enable it to carry out its control, conservatory sampling or instrumentation operations.
12.5. The licensee is solely responsible for the compliance of the pole with the applicable regulations and the provisions of the contract. The transmission to SNCF-R of the various information and documents referred to above, the audits carried out, as well as the opinions or observations made by SNCF-R, the independent technical body or SNCF Gares ' Connections regarding the realization of the pole, have no effect on engaging the responsibility of SNCF-R, nor to identify the holder of its responsibility for the conformity of the pole with the requirements of the contract, the applicable regulations and the rules of art.
13. Provision
13.1. The licensee, in its capacity as a master of work, shall, on its behalf and under its sole and complete responsibility, undertake the reception of work with its contractors.
The licensee shall invite SNCF-R and the independent technical body designated pursuant to section 10.2 to assist as observers in these reception operations and to transmit to them, for information, and as they are located, the minutes issued in connection with such operations.
13.2. Where the licensee considers that the pole may be made available to SNCF-R, the licensee shall inform SNCF-R, by registered letter with acknowledgement of receipt, of the possibility of making pre-disposal transactions, no later than four (4) months before the contractual date of disposition. During this consignment, the licensee shall transmit to SNCF-R a notice prepared by the independent technical body on the conformity of work with the technical requirements of the contract, the applicable regulations and the rules of art and the authorizations necessary for the opening of the pole to be obtained by the holder, in accordance with section 8.1, including those required under the railway regulations as well as rules relating to the protection of health and the conditions of public hygiene,
SNCF-R, in the presence of the licensee and the independent technical body, and SNCF Gares & Connexions for its purpose, conducts pre-disposal operations.
The procedure and level of detail of pre-disposal operations are defined in Appendix 18.
Upon completion of pre-disposal operations, SNCF-R shall prepare a report that is notified to the licensee no later than two (2) months before the contractual date of disposition. In particular, the report mentions possible work and improvements that remain to be carried out, the deadline for lifting these reservations, and any comments made by SNCF Gares ' Connexions during the operations in which it participated.
The minutes shall be amended, if any, in the light of the additional information obtained from the licensee.
This report notes:
- the conformity of the work necessary for the realization of the pole to the requirements of the contract.
In this case, SNCF-R shall notify the licensee of the notice of acceptance of the pole within thirty (30) days of notification of the minutes;
- that one or more minor defects has appeared (are) in pre-disposal operations.
In this case, SNCF-R shall notify the licensee of the notice of acceptance, with reservations, of the pole, no later than the contractual date available.
The notice of acceptance specifies the nature of the work, corrections and improvements remaining by the licensee as well as the maximum time limit to waive these reservations. If the licensee fails to perform the work within the specified time limit, SNCF-R may carry out or enforce the work at the licensee's expense, if any, by calling the warranty referred to in section 31.1 without prejudice to the faculty for SNCF-R to issue the termination under the conditions specified in section 42.1. At the end of this work, SNCF-R and the licensee proceed to the lifting of reservations by the adversarial establishment of a notice of withdrawal of reservations;
- that one or more major defects(s) appeared (are) in pre-disposal operations.
In this case, SNCF-R shall notify the licensee of its refusal of acceptance within 10 (10) days of the notification of the report.
The minutes specify the nature of the defects or defects found. The licensee shall, as soon as possible, make the correction of the fault(s) identified and re-entry the pre-disposal operations as provided for in this article 13.
The date of availability of the pole shall be at the date of receipt by the holder of the notification of acceptance of the pole, if any with reservations, issued by SNCF-R in accordance with Article 13.2.
13.3. Where the licensee is unable to determine the completion of the work for a reason directly related to the work required for the completion of the CNM line and not attributable to the licensee, as referred to in section 6.4, SNCF-R may decide to notify the notice of acceptance of the pole, if any with reservations.
13.4. Neither the audits and observations carried out by SNCF-R on the occasion of pre-disposal transactions, nor the notice of acceptance of the pole issued by SNCF-R, have the effect of engaging the liability of SNCF-R, or of identifying the holder of its responsibility for the conformity of the pole with the requirements of the contract and, in particular, that related to the fulfilment of its obligations under Article 19, within the framework of legal guarantees.
14. Implementation schedule
14.1. The licensee shall carry out the work of the pole within a time-frame consistent with the date for the implementation of the key events set out in the schedule for the realization of the pole inserted in Appendix 3.
The licensee shall have made the pole available to SNCF-R, under the conditions set out in section 13, no later than the date on which the pole is available, fixed on the expiry of a period of thirty-four (34) months from the date on which the contract enters into force.
14.2. In the event of a delay in the realization of the pole likely to result in the postponement of the contractual date to be made available to the pole for an external cause and totally outside the control of the holder, provided that:
- the licensee is in a position to demonstrate that the claimed cause actually affects its obligations under the contract and that it could not have anticipated the occurrence of the said cause by implementing a control of the elements at its disposal in accordance with the degree of precision, requirement and diligence required of an experienced professional; and
- if it appears that the licensee has implemented all means that were or should have reasonably been at its disposal to prevent the occurrence and limit the consequences of the said cause,
SNCF-R makes the latter benefit from a shift from the contractual date available to the pole.
This contractual date, as well as any time limit, is offset by SNCF-R, taking into account delays due to the occurrence of the event. The request made by the licensee to SNCF-R is accompanied by a detailed supporting statement produced by the licensee for this purpose, together with the advice of the independent technical body referred to in section 10.3 on the merits of this application.
The parties agree to an update of the rental payment plan in accordance with the terms and conditions set out in section 30.2 to take into account the offset of the contractual date available to the pole.
14.3. In the event of an event specifically identified by the contract as a shared risk, and provided that:
- the licensee is able to demonstrate that it could not have predicted the occurrence of the event by implementing a control of the elements at its disposal in accordance with the degree of precision, requirement and diligence required of an experienced professional; and
- if it appears that the licensee has implemented all means that were, or should have reasonably been, at its disposal to avoid or limit the consequences of this event (and, in particular, to reduce its impact on the timeline), or, where appropriate, to ensure by the CNM service provider compliance with its obligations.
The following provisions are implemented:
(a) The contractual date of disposition shall be shifted under the conditions set out in paragraphs 2 and 3 of Article 14.2;
(b) The financial consequences of the event are treated as follows:
(i) the licensee shall bear the direct incremental costs (e.g., additional investment costs, remediation costs) and indirect costs (e.g., personnel demobilization, interruption of work, compensation of the licensee's providers, funding costs, including duly justified costs and subject to prior approval of SNCF-R of the Receiving of Covering Instruments) related to all of these delays, within a total limit of seven hundred thousand (i)
SNCF-R shall, where appropriate, be responsible to the extent that they are not covered by the insurances entered into, either by the licensee or by its subcontractors or shareholders, direct and indirect incremental costs as referred to above, related to this delay, beyond the amount indicated above. SNCF-R supports these incremental costs in accordance with the terms set out in section 37.2.
(ii) the parties agree to an update of the rental payment plan in accordance with the terms and conditions set out in section 30.2.
In the event of disagreement between the parties on the amounts of direct and indirect costs incurred by the event concerned, the dispute shall be decided by an expert under the conditions set out in Article 45.1.
In accordance with the terms of the contract, is classified as a shared risk:
- a delay in the completion of the work of the CNM line as referred to in section 6.4;
- a delay exclusively related to the work and developments carried out by SNCF-R under section 7 and not attributable to the licensee;
- the cancellation or confirmation of the withdrawal of the building permit in the absence of a cause attributable to the holder.
15. Penalties during construction
15.1. In the case that, for a fact attributable to the licensee, the date of disposition would not have taken place from the date of making available, SNCF-R is entitled to impose an amount equal to:
20,860 euros per day of delay between 1st and 120th day of delay;
27,041 euros per day of delay between the 121st and 240th day of delay;
30,131 euros per day of delay beyond the 240th day of delay.
15.2. In the case that the provision of the pole has taken place on the basis of a notice of acceptance of the pole with reservations, issued by SNCF-R, SNCF-R is entitled, as from the expiry of the period provided to the holder to lift the reservations as referred to in 13.2:
- to impose a penalty in the amount equal to 30,000 (trent thousand) euros per day of delay, for a maximum period of two (2) months;
- either to release the holder of his or her obligations relating to the reserves concerned in return for the payment by the holder of an allowance, which is valid for the amount determined by SNCF-R based on the nature of the minor defects involved.
15.3. As long as, at the end of the construction period, the licensee has failed to meet its commitments in respect of benefits entrusted to small and medium-sized enterprises and craftsmen in accordance with the provisions of section 34.2, SNCF-R is entitled to apply to it a penalty of 15,000 euros per instalment of one (1) per cent of the value observed at the time of making available, benefits that should have been entrusted to small and medium-sized enterprises.
15.4. In the event that the surfaces constructed by the holder would be less than two per cent (2 per cent) than the surfaces described in annex 2, rent I1 is reduced to a proportion beyond the two per cent (2 per cent), as the surfaces are valued locally and not globally. The reduction of rent I1 is determined in accordance with the detailed procedures in Annex 10.
15.5. During construction, when the holder fails to perform the formalities referred to in Articles L.8221-3 to L. 8221-5 of the Labour Code, SNCF-R is entitled to apply a penalty of ten thousand (10,000) euros.
15.6. The amount due by the licensee to SNCF-R for the penalties of this section shall be paid within thirty (30) days from the date of the notification and shall, beyond and in full right, interest at the rate of interest applied in accordance with the principles of the public order. SNCF-R is authorized to call the warranty provided for in section 31.1 to obtain the payment of the amounts due in that capacity.
15.7. The amount of penalties that may be applied by SNCF-R to the licensee under this section, with the exception of the penalties set out in section 15.2, shall be capped at Euro6,999,574.
16. Coercive measures during construction
16.1. Without prejudice to the other SNCF-R rights under the contract, in the event of a particularly serious breach of the licensee's obligations under the contract, SNCF-R may decide, after the licensee has been issued, to comply with its obligations that remain unsuccessful within a period of time, appropriate to the nature of both the breach and the necessary corrective measures, as determined by the said notice, to replace the holder with the relevant costs to perform or enforce Where applicable, SNCF-R may appeal to the warranty referred to in section 31.1.
The licensee shall make all available to SNCF-R to allow and facilitate this substitution. SNCF-R shall terminate this substitution as soon as possible as the licensee justifies the necessary guarantees and means to resume the performance of its obligations in accordance with the provisions of the contract.
16.2. During the substitution period, the public competitions referred to in Article 28 and to be paid for the period concerned are suspended due to competition from the benefits subject to substitution.
The application of the penalties set out in section 15 is suspended during the substitution period, as these penalties relate to benefits subject to a substitution measure imposed under this section.
16.3. In particular, SNCF-R may make such a substitution if the delay in the contractual date of disposition, for a reason attributable to the licensee, exceeds one hundred and twenty (120) days, or if it appears, in particular with regard to the delays in the implementation of the key events set out in the implementation schedule, that the licensee will not be reasonably, in any event, in a position to respect the contractual date of disposition increased by one hundred and twenty (120) days.
17.1. The licensee shall carry out all of its duties under the maintenance and maintenance of the pole in accordance with applicable laws and regulations, including provisions relating to the safety of railway traffic.
17.2. The licensee shall be solely responsible for the fulfilment of all necessary steps to obtain from the competent authorities the issuance and maintenance of the authorizations, as provided for in the regulations in force, necessary for the fulfilment by the holder of its obligations under the contract, including the authorizations, certificates and approvals necessary for the opening to the public of the pole.
In the event of proven difficulties of the licensee, SNCF-R provides, as appropriate, its support to facilitate the obtaining of these authorizations and the conduct of the corresponding steps. The eventual intervention by SNCF-R pursuant to this paragraph does not result in the involvement of SNCF-R or the discharge of the holder of his or her own in obtaining such authorizations.
17.3. In the event of withdrawal or suspension of any of the authorizations referred to in section 17.2, in particular that relating to the safety of travellers, involving the impossibility for the holder to perform the obligations under the contract and no longer permitting the opening to the public of the pole, SNCF-R is entitled to impose to the holder, without prior notice, the payment of a daily penalty of an amount equal to the amount +
No penalty shall be payable if the licensee is in a position to demonstrate that such withdrawal or suspension is solely related to an outside cause and totally outside the licensee's control and for which the licensee has implemented all means that were or should have reasonably been at its disposal to address the consequences of the said cause.
18. Maintenance
18.1. From the date of the pole's disposal and to the end of the contract, the licensee shall, at its own cost and risk, maintain and maintain the pole in such a way as to ensure, to the end of the contract, a level of quality and availability of the pole compatible with the respect of the performance commitments undertaken by the licensee under this contract, and in particular its annex 6, and the compliance with the requirements of the applicable regulations.
The maintenance of railway equipment and the railway operation of the pole shall be excluded from the performance of the holder under the contract.
18.2. In order to guarantee to SNCF-R a high level of service, the licensee shall enter into the contract with the entity responsible for the maintenance of the provisions allowing the re-competition, at its costs and risks, of the service providers as soon as the amount of the penalties is eighty per cent (80 per cent) of the average sum of the rents M, G and R yearly (those are considered in constant euros), the average sum of the sum of the rents reflected
18.3. In the event of an imminent emergency or danger that would jeopardize the safety of persons or the continuity of public service, SNCF-R is authorized to replace, directly or indirectly, the licensee with a view to preventing the consequences or remedying this emergency or imminent danger.
The financial consequences of the substitution shall be dealt with in accordance with the terms of section 18.4, provided that the substitution results from a failure of the licensee to any of its obligations.
The terms and conditions for the implementation of the substitution are defined in an agreement to be concluded between SNCF-R and the licensee, no later than six (6) months before the date of making available. The purpose of the agreement is to define:
- the list of staff entitled to replace the holder;
- the nature of substitution measures that may be implemented;
- the conditions and conditions for the security of the scope of intervention;
- the definition of interfaces between the licensee, SNCF-R and/or SNCF Gares & Connexions (including station leader, crisis cells, etc.).
18.4. In all cases where the licensee is substituted under the conditions set out in section 18.3, the operating rent (F) paid by SNCF-R for the performance of the maintenance and renewal benefits that are entrusted to the licensee by the contract, or the share of maintenance rent (M), or renewal (R) or energy and fluid (EF) as the non-performance of its missions finds its origin precisely during the suspended period of time. The application of the penalties set out in section 23 is suspended during the substitution period, as these penalties relate to benefits subject to a substitution measure imposed under section 18.3.
When the substitution results from a failure of the licensee to any of its obligations, if the expenditures set out by SNCF-R as part of the substitution are greater than the share of the operating rent (F) that would have been due during that period, the excess of expenses set out by SNCF-R will be charged to the licensee and will be charged, by compensation, on the amount of the rent due to the licensee. In this case, SNCF-R may also call the warranty referred to in section 31.2.
18.5. The licensee shall implement the maintenance and sustainability plans set out in Appendix 5, to ensure to the normal end of the contract a level of quality and availability of the pole that is consistent with the licensee's performance commitments under this contract, in particular Annex 6.
No later than six (6) months before the date of disposition envisaged by the licensee, the licensee shall forward to SNCF-R, for approval, a draft of new maintenance and sustainability plans taking into account the technical provisions implemented at the time of the completion of the pole, together with a report to evaluate these plans by the independent technical body. These documents, once approved by SNCF-R, replace Appendix 5.
At least after each five-year period following the date on which the pole is made available, the licensee shall, in consultation with SNCF-R, undertake a revision of the maintenance and sustainability plans to take into account the actual operating conditions of the pole and to reassess accordingly the devices to be implemented in order to achieve the objectives referred to in the first paragraph of this Article. For this purpose, the licensee proposes to SNCF-R a project of updated maintenance and sustainability plans and, as appropriate, modified. These documents, once approved by SNCF-R, are included in Appendix 5.
This revision of maintenance and sustainability plans can be, after formal SNCF-R decision, accompanied by an adjustment of performance objectives. In this case, this adjustment of performance objectives is effected under the provisions of Article 37.
18.6. Under these maintenance services, the licensee shall, at its own expense and in accordance with the performance objectives, make any normal or abnormal wear of the elements of the pole, including the repair of damage resulting from vandalism acts under the conditions below.
Compensation for damages resulting from vandalism or faults of SNCF Gares & Connexions not covered by the insurance policies subscribed by the licensee, or less than the applicable insurance franchises, is borne by the licensee within an annual ceiling of 5,000 euros (including franchises).
18.7. The licensee shall implement all necessary coordination measures to enable the licensee to perform the maintenance and renewal services that it has carried out under the contract.
19. Compliance
For the duration of the contract, the licensee is required to ensure compliance with the pole and the benefits to the applicable laws, regulations and standards, under the conditions provided for in the contract, and in particular those relating to the management of the financial consequences of such transactions referred to in section 38.
Without prejudice to the penalty to which the licensee may, if any, be liable under the provisions of Schedule 6, the licensee is required to ensure, at its exclusive and up to the normal end of the contract, within the limits of the legal guarantees, the correction of the pole's compliance defects that appeared after the date of the pole being made available, making it impossible to meet the performance objectives.
20. Renewal
20.1. From the date of the pole's disposition and to the end of the contract, the licensee shall, at its own cost and risk, renew the pole, in order to ensure, until the end of the contract, a level of quality and availability of the pole compatible with the respect of the performance commitments entered into by the licensee under this contract, and in particular its annex 6, and the compliance with the requirements of the regulations in force.
The terms and conditions for the conduct and programming of these renewal operations by the licensee are specified in the maintenance and sustainability plans referred to in section 18 and set out in Annex 5.
20.2. The licensee shall implement, in accordance with the provisions of Schedule 5, all the coordination measures necessary for the performance of the renewal benefits under the contract.
20.3. At the normal end of the contract, the pole must be returned to SNCF-R in good maintenance and operation. For this purpose, the licensee shall implement the provisions set out in Appendix 1.2 under its responsibility and at its costs and risks, including the maintenance and final sustainability plan for the upgrade program of the pole, for the purpose of remission to SNCF-R in a manner consistent with the objectives set out in this section and Appendix 1.2.
In the fourth year preceding the end of the contract, the licensee shall, at its own expense, conduct an audit of the pole to determine its status in accordance with the requirements set out in Appendix 1.2. This audit is conducted in a contradictory manner between the licensee and the experts designated by SNCF-R. On the basis of this audit, the licensee shall establish the final maintenance and sustainability plan of the pole that describes and enumerates the corrective or upgrade work and the maintenance services to be implemented until the end of the contract by the licensee in order to hand over to SNCF-R the pole in the condition referred to in the first paragraph of this section.
The licensee shall submit to the approval of SNCF-R no later than three (3) years before the normal term of the contract, the maintenance and final sustainability plan referred to above. SNCF-R takes action within six (6) months of the transmission of this document. In the absence of any express SNCF-R observations on the maintenance and final durability plan within this period, SNCF-R is deemed not to have any comments to be made on this document.
In the event of disagreement between the parties with respect to the content or modalities of the final maintenance and sustainability plan, the program and the detailed cost of work and interventions shall be prepared by an expert designated under the conditions defined in section 45.1. If the licensee is not responsible for carrying out this program, SNCF-R will issue it at the licensee's expense and risk. To this end, it shall appeal to the guarantee referred to in section 31.3.
20.4. The licensee shall provide the amounts necessary to meet the obligations referred to in this section. These amounts must be paid on an account that is specifically opened for this purpose, the reserve account for renewal. The licensee shall be able to justify, when SNCF-R requests, that these amounts have been provided. The licensee shall disclose in its accounting the balance of the reserve account for renewal.
Where repeated breaches of the licensee have resulted (or would have resulted in if SNCF-R had applied the licensee's penalties), the application of penalties, as a result of breaches of performance objectives pursuant to Appendix 6, of a cumulative amount greater than or equal to sixty per cent (60 per cent) of the overall cap set out in section 23.2, SNCF-R may:
- request the licensee, at each quarter end, the status of all renewal expenses and movements affecting the reserve account for renewal;
- require the licensee to increase and maintain the balance of the Renewal Reserve Account to an amount commensurate with the total renewal expenses for the next 12 months.
21. Energy commitments
21.1. The licensee ensures the provision of energy and fluids as part of commitment consumption and reference consumption, as defined in Appendix 6.
Each year, the licensee shall, in the presence of SNCF-R, conduct a survey campaign to compare the actual consumption observed under the past year and the reference consumption for each energy and fluid. To this end, the licensee shall put in place the necessary measures to enable the recognition of actual consumption.
21.2. The licensee does its business with the subscription of energy supply contracts necessary for the proper operation of the EMP works and equipment.
It is committed to the energy consumption targets set out in Annex 6. It is responsible for the financial consequences resulting from a discrepancy between actual consumption and energy consumption targets in accordance with the terms set out in Annex 6.
The EF rent is calculated on the basis of the licensee's energy and fluid commitments, adjusted in accordance with the terms of Appendix 6, and the prices set out in the energy supply contracts, without prejudice (i) to the application of the penalties for non-compliance with the energy consumption objectives and (ii) the sharing of energy savings.
The licensee shall, at least every five years, arrange tenders to select its energy supplier and enter into its supply contracts. The first supply contract must be entered into by the date of disposition. In order to allow SNCF-R to assess the effectiveness of the competition, the licensee shall address SNCF-R for any comments:
(a) no later than thirty (30) days before the launch of the consultation, the documents of the call for tenders;
(b) no later than twenty (20) days before the signing of the energy supply contract, all bids received and a summary note comparing them and justifying the choice of the selected supplier.
A copy of the contract will be sent to SNCF-R after its signature.
SNCF-R may discharge the licensee's obligation to enter into a procurement contract following the above procedure if the licensee demonstrates to SNCF-R that it may propose a more economical solution.
21.3. The licensee does its business with the subscription of water supply contracts necessary for the proper operation of the EMP works and equipment. The cost of water consumption is borne by SNCF-R to "euro-euro". This is done on a quarterly basis. Payment methods are identical to the terms and conditions applicable to the EF rent set out in Article 30. The licensee shall provide SNCF-R with all information and supporting documentation that will enable SNCF-R to meet its obligations for the cost of water consumption.
21.4. In the event of changes by SNCF-R of the characteristics of the pole under the conditions of section 37, which may have an impact on the licensee's energy performance, and, in any event, every five (5) years, the parties are approaching to assess the impact of the changes on the licensee's energy commitments, including reference consumption, and to determine the adjustment of the amount of the resulting energy and fluid rent.
However, the parties agree that if the amendments in question have an impact on the said commitments less than two per cent (2 per cent), all modifications combined, no revision of the energy commitments will be taken into account and the energy and fluid rent will not be adjusted accordingly.
22. Accompaniment Real Estate Program
The licensee is authorized to carry out an accompanying real property program, in accordance with the principle of autonomy with respect to the rest of the contract, under the terms of this section 22 and Appendix 16.
The licensee ensures that the real property accompanying program is carried out at its own risk and risks, all of the management devices for all or part of certain risks by SNCF-R under the contract not applicable.
Pursuant to Article 13-I of Order No. 2004-559 of 17 June 2004, in its drafting resulting from Act No. 2008-735 of 28 July 2008, the licensee is authorized to make, after expressly authorized by SNCF-R, leases under the conditions of private law, in particular construction leases or emphyteotic leases, and to establish all types of real rights of limited duration.
The SNCF-R agreement must be expressly obtained for each of the leases envisaged, in particular to ensure that SNCF-R controls the quality of the final occupant and the compatibility of the activity and occupant envisaged with the activities carried out in the pole as well as the safety of railway traffic.
In particular, SNCF-R may authorize, under this section, the licensee to enter into a lease for a period of thirty (30) years and to establish all types of real rights for the duration of the lease. By this contract, the licensee shall transfer, in transparency, to its partner all the commitments of the holder under the contract with respect to the realization of the accompanying real estate program.
The leases entered into by the holder as part of the completion of the accompanying real estate program may be longer than the duration of the contract. In this case, they contain a clause providing for their automatic recovery by SNCF-R at the end, normal or anticipated, of the contract. At the normal end of leases, the built-in property returns to SNCF-R for free.
The parties expressly agree that the occurrence of the term of the contract does not put an end to the accompanying real estate program, the purpose of this article - except for force majeure affecting the contract as a whole, including the accompanying real estate program.
SNCF-R will be able to issue a partial termination of the contract, as it relates to the realization of the accompanying real estate program, since this termination is without impact on the rest of the contract.
The conditions and financial consequences for the termination of the accompanying real estate program are detailed in Appendix 16.
23. Control of licensee obligations and penalties
23.1. As part of the benefits provided under this contract, the licensee shall meet the performance objectives as described in Appendix 6.
The performance level control achieved by the licensee is conducted in accordance with the provisions of Appendix 6.
23.2. As of the availability of the pole, SNCF-R is entitled to apply a penalty to the licensee if:
- non-compliance with the performance and availability objectives assigned to it by the contract, based on the level of performance achieved by the licensee in the year preceding the year under review, and in accordance with the terms and conditions for calculating the penalty set out in Appendix 6, under the following conditions:
- the licensee shall transmit to SNCF-R a performance level report against the performance objectives for the period under review (according to the level of detail specified in Appendix 6), no later than thirty (30) days after the end of the previous year;
- on the basis of this report, and after verification, SNCF-R sets out the amount of penalties applied to the licensee and notifies the licensee no later than the fifteenth day after the report has been submitted;
- any delay in the transmission of reports, documents and information. The penalty is an amount equal to 1,000 euros per day of delay and per due date;
- failure to comply with the commitments made in respect of benefits entrusted to small and medium-sized enterprises and craftsmen in accordance with the provisions of section 34.2, SNCF-R is entitled to apply a penalty of a lump sum of 15,000 euros per year and a one-per-cent tranche of the value recognized in the annual report as referred to in section 33.1, of the benefits that should have been entrusted to small and medium-sized enterprises and to
- failure by the holder of his or her obligations under the performance of the formalities referred to in Articles L. 8221-3 to L. 8221-5 of the Labour Code. In this case, SNCF-R is entitled to apply a penalty of 10,000 euros.
Penalties applied to the licensee under this section and section 17.3 are capped for a particular quarter, to one hundred per cent (100 per cent) of the sum of M, G and R rents paid for that quarter.
23.3. The licensee shall not be liable for any penalty in the event of non-compliance with its performance objectives under the contract provided that the breach is solely attributable to SNCF Gares ' Connexions or to a third party acting under the conditions defined in section 37.4.
24. Compliance with public service requirements. - Public order. - Police
The licensee shall comply with the requirements of the public service to which it contributes, including the principle of continuity of public service, in the course of the assignments entrusted to it by ensuring that SNCF-R is made available according to the terms and conditions of the contract.
The licensee undertakes to make all or part of the pole available to the State when national defence, security, safety or public order requires it. In accordance with the applicable regulations, the loads borne by the holder are subject to a fair compensation from the State that benefits from the provision when national defence, security, safety or public order require it. The licensee waives any claim to SNCF-R on this subject.
25. Coercive enforcement measures
25.1. Without prejudice to the other contract rights of SNCF-R, in the event of a serious and repeated breach of its obligations under the contract, SNCF-R may decide, after the licensee has been granted, to comply with its obligations that remain unsuccessful within a period of time, adapted to the nature of both the breach and the necessary corrective measures, as determined by the said notice, to replace the licensee with the costs concerned to perform or enforce the
The licensee shall make all available to SNCF-R to allow and facilitate this substitution. SNCF-R shall terminate this substitution as soon as possible as the licensee justifies the necessary guarantees and means to resume the performance of its obligations in accordance with the provisions of the contract.
25.2. During the substitution period, the licensee does not receive the share of the operating rent corresponding to the substitution benefit. The application of the penalties set out in section 23 is suspended during the substitution period, as these penalties relate to benefits subject to a substitution measure imposed under section 25.1.
If the expenditures set out by SNCF-R in the context of the substitution are greater than the share of the operating rent that would have been payable during that period, the excess of expenditures set out by SNCF-R will be charged to the licensee and will be charged, by compensation, on the amount of the rent due to the holder. In this case, SNCF-R may also call the warranty referred to in section 31.2. In the event of replacement of SNCF-R to the licensee for a continuous period of more than six (6) months, SNCF-R may issue the licensee's termination in accordance with section 42.
The licensee shall bear all costs and risks associated with the exercise of the missions entrusted to it under the terms and conditions set out in the contract. In particular, it assumes all risks associated with potential overruns of estimated forecasting costs as set out below, subject to the exceptions expressly provided by the contract.
The decomposition of the costs incurred by the holder under the contract on the basis of which the rent to be paid is set out in annex 7. This annex presents the following cost details:
- the investment costs deducted from the amount of public competitions paid by SNCF-R;
- funding costs;
- contract management costs;
- maintenance costs;
- renewal costs;
- the costs of energy and fluids.
27. Financing
27.1. The licensee shall provide funding for expenditures related to the effective performance of its obligations under the contract in accordance with the terms and conditions set out in the funding plan included in Annex 8.
27.2. The licensee shall transmit in French to SNCF-R, within a maximum period of two (2) days from the date of entry into force:
- a certified true copy of signed documents corresponding to all of the financing instruments allowing the licensee to execute its obligations under the contract (clean, quasi-clean, if any, credits-relay, if any, debt instruments), as well as to the contracts for real estate promotion, maintenance, and, where applicable, an interface;
- in the event of recourse to debt instruments, a certificate from the debt instruments confirming (i) that these Debt Instruments are in force on the date of signature of the contract, (ii) the absence of conditions related to the Debt Instruments incompatible with the terms of the contract (this certificate being accompanied by a copy of all the conditions prior to the drawings in the Debt Instruments);
- an attestation on the release of clean and quasi-substantiated funds in accordance with the funding plan;
- in case of recourse to debt instruments, the identity of the representative of the institutions that have established the debt instruments, mandated for the purposes of Article 42.2.
For the duration of the contract, any modification or transfer affecting one of these contracts shall be notified to SNCF-R not later than fifteen (15) days after the contract is signed.
27.3. Any proposed amendments to the funding plan are, prior to its completion, submitted for approval by the licensee to SNCF-R.
This pre-approval procedure applies in particular to any subscription by the holder of any new financing instrument of any kind, whose financial conditions are more advantageous than those of the debt instruments, and the purpose of which is to repay all or part of them.
In order to obtain the approval of SNCF-R of the proposed amendment to the funding plan, the licensee shall forward to SNCF-R a file describing the proposed amendment and justifying in detail that this amendment is not likely to affect the licensee's financial robustness or ability to ensure, in the short, medium and long term, the proper performance of its obligations under the contract. This file is accompanied, where appropriate, by the main terms and conditions of the proposed new funding instruments.
As of receipt of the file referred to in the previous paragraph, SNCF-R has a two (2)-month period to decide. In this period, the licensee is required to provide SNCF-R with any information required by SNCF-R and necessary for the instruction of the application. In the absence of a specific response from SNCF-R within this period, SNCF-R is deemed to have refused its agreement on the proposed amendment of the funding plan.
SNCF-R may object to a change in the funding plan, including any refinancing of the Debt Instruments, where it considers that the proposed change or refinancing is likely to affect the licensee's financial robustness or ability to ensure, in the short, medium and long term, the effective performance of its obligations under the contract.
When SNCF-R authorizes the proposed amendment of the funding plan, the licensee shall forthwith communicate to the licensee, in the event of changes in the funding agreements and in particular refinancing of the debt instruments, a copy of the new agreements concluded between the licensee and the donors.
In the event of the acceptance by SNCF-R of the refinancing conditions proposed to the licensee by the funders consulted, the real estate rent is adjusted to reflect 70% of the gain recorded on the debt instruments, the balance remaining acquired to the licensee.
27.4. The licensee undertakes, at the request of SNCF-R, to implement an amendment to the funding plan to improve its terms.
The licensee shall implement all reasonable means available to this effect to provide a firm proposal for funding to SNCF-R within three (3) months.
In the event that SNCF-R accepts this proposal, real estate rent is adjusted to reflect 85% of the gain on debt instruments, the balance remaining acquired to the holder.
The modification of the funding plan will not be implemented in the event of an impossibility duly justified by letters of refusal from at least three (3) senior financial institutions, or if the funding proposed by the licensee is not considered by SNCF-R to be optimal.
27.5. Any proposed amendments to the design/construction, maintenance contracts, and if any of the interfaces entered into by the licensee for the performance of the assignments under the contract, shall be communicated, prior to its completion, to the licensee's knowledge of SNCF-R, in order to allow SNCF-R to ensure that the proposed amendment is not likely to affect the long-term financial robustness of the licensee or its ability to ensure the short-term
SNCF-R may object to an amendment to these contracts where the proposed amendment is likely to affect the licensee's financial robustness or ability to ensure, in the short, medium and long term, the effective performance of its obligations under the contract.
The licensee shall promptly communicate to SNCF-R, in the event of an amendment, a copy of the new contracts so entered into.
28. Public competition
28.1. During the period of completion of the pole, SNCF-R pays the holder of public competitions according to the amounts, schedule, indexing conditions, detailed payment terms and conditions in Annex 9.
28.2. The payment of public competitions is conditioned to the realization of key events, detailed in Annex 3, found by SNCF-R.
29. Remuneration of the licensee
29.1. As of the date on which the pole is available, SNCF-R shall pay the holder a rent corresponding to the sum of the following two elements:
- the real estate rent (I), paid in return for the provision of the pole, corresponds to the net investment costs of the public competitions as well as the financing costs. It is split into two elements:
- the rent I1 ("LI1"), which corresponds to a maximum of 23,791,416 euros HT paid to the holder in one time;
- the I2 rent (“LI2”) that corresponds to the remuneration of the own and quasi-funds and includes the payment of taxes paid by the holder.
- rent F, paid in return for the performance of maintenance and renewal services. It is divided into four elements:
- the M rent that corresponds to maintenance-maintenance costs;
- the G rent that corresponds to the contract management costs;
- the R rent that corresponds to the renewal costs;
- the EF rent that corresponds to the costs of energy and fluids.
29.2. The terms and conditions for calculating the rent, including the amount of each of these items on the date of signature of the contract, are set out in Appendix 10. The amounts of rent M, rent G, rent R and rent EF are indexed according to the periodicity and application of the indexing formulas in Appendix 10.
30. Payment of the remuneration of the licensee
30.1. The rent is paid by SNCF-R to the quarterly expired term holder and fixed calendar date on March 31, June 30, September 30 and December 31 of each year from the date of availability of the pole.
The amounts of the first and last rents are adjusted as defined in Appendix 10.
30.2. In the event of a lag-off of the contractual date available to the pole pursuant to an express provision of the contract, or a delay in the contractual date available to the pole, regardless of the cause, the parties agree to update the payment schedule of the rent in accordance with the terms and conditions detailed in Annex 10.
The invoice for the quarter is sent by the licensee to SNCF-R no later than sixty (60) days before the quarter ended.
SNCF-R sets the amount of penalties applied to the licensee in accordance with the provisions of section 23. The application of penalties is made by compensation on the amount of rent due.
SNCF-R is authorized, upon payment for a particular quarter, to take into account the remaining penalties due by the licensee. In the event of disagreement on the amount of an invoice, the payment shall be made on the provisional basis of the amounts admitted by SNCF-R.
In the absence of a sufficient amount of rent, SNCF-R may, if applicable, rely on the guarantees referred to in Article 31.
After setting the final amount of the invoice, if any after recourse to the expert referred to in section 45, the party liable to the difference between the instalment amount and the final amount shall determine the amount of that difference to the other party.
30.3. In the event of a delay in payment of any amount due by SNCF-R to the holder under the contract, the amounts in question are increased from late interest applied in accordance with the rules of the public order.
31. Guarantees
31.1. On the date of signature of the contract, the licensee shall establish or ensure that a guarantee for the benefit of SNCF-R is set up in the amount of 6,991,574 euros.
In the event of a full or partial appeal of the guarantee, the licensee shall re-establish the guarantee or ensure that it is restored to its original amount within a maximum period of fifteen (15) days from its total or partial appeal. This guarantee is reinstated by issuance of a new guarantee within the limit of a cumulative replenishment amount equal to one (1) time its original amount.
This guarantee shall terminate the expiration of a period of one (1) year from the date of disposition, or on the date of conflicting establishment of the notice of withdrawal of reservations referred to in section 13, if the decision of acceptance of the pole by SNCF-R has been accompanied by reservations that have not been lifted at the expiry of the period of one (1) year referred to above.
31.2. Upon the expiry of the guarantee referred to in section 31.1, the holder shall substitute or ensure that the holder is substituted for a guarantee of an amount equal to the sum of 200 % of the average, calculated on the total duration of the contract, of the rents M, G and R yearly (the latter being considered in constant euros), the average being indexed by an index reflecting the relative weights of the rents M, G and R
This guarantee ends the normal term of the contract, or, in the event of an early termination of the contract, one (1) year after the effective date of the termination decision.
31.3. No later than one (1) month after the approval by SNCF-R of the final maintenance and sustainability plan as provided for in section 20.3, the licensee shall establish or ensure that, for the benefit of SNCF-R, a guarantee of an amount commensurate with the cost of the work provided for in the final maintenance and sustainability program increased by ten per cent (10) per cent.
As of the start-up of the work under the final maintenance program, this guarantee is the subject of partial release on an annual basis for the amount of work carried out over the past year in accordance with the final maintenance and sustainability program.
These lifts are carried out within the maximum limit of 50 per cent (50 per cent) of the initial amount as defined in this section and on the basis of the contradictory minutes issued by SNCF-R and the holder who observes the completion of the corresponding work.
This guarantee is terminated after a period of two (2) years following the normal or anticipated term of the contract.
31.4. The guarantees referred to in this section shall be in the form of first-demand bank guarantees issued for the benefit of SNCF-R, by order of the holder or any other entity designated by the holder. They conform to the model in Appendix 11.
All of the guarantees referred to in this section must be made from credit institutions or insurance companies with a long-term rating at least equal to A3 by Moody's or A - by Standard ' Poors, or A - by Fitch, or an equivalent rating issued by an external credit assessment agency or any other credit institution approved by SNCF-R.
SNCF-R may appeal to the guarantees referred to in this section to be paid any amount due by the holder under the contract. Neither the existence nor the appeal of the warranties limit the use of SNCF-R with respect to the licensee in the case that the amount of the guarantees is insufficient to cover the amounts due by the licensee.
32. Taxation
32.1. All taxes and taxes, present and future, due to the design, construction and ownership of the pole, and for which the holder would be liable, are refurbished to SNCF-R. Payments of amounts attached to these invoices shall, subject to acceptance, be made within forty-five (45) days of receipt. These taxes and taxes include the territorial economic contribution (excluding the contribution on the value added of the enterprises that would be due after the date of availability, and its additional tax in favor of the financing of the ITCs), the development tax that replaces, in particular, the local capital tax (TLE), to the departmental tax for the financing of the architectural, urban and environmental councils (TDFCAENS)
32.2. For its part, SNCF-R will be the legal debtor of the land tax on the built and unbuilt properties, as well as the removal tax of household garbage and the sweeping tax, for the property of the land facilities and in the absence of a transfer of real law. The licensee undertakes to provide SNCF-R with all information and supporting documentation that will enable SNCF-R to meet its reporting and payment obligations under this paragraph.
32.3. Taxes and taxes related to the creation and operation of the licensee, including corporate tax and its additional contribution, annual lump-sum tax, corporate value-added contribution that would be payable after the date of making available, corporate social contribution and related contributions are the responsibility of the licensee, without prejudice to the application, if any, of the provisions set out in sections 38 and 39.
33.1. The licensee:
- provides to SNCF-R, within the time limits assigned to it, any reports and information relating to the performance of its obligations under the contract that SNCF-R considers necessary;
- submit periodic reports of its activity to SNCF-R according to the requirements set out in Annex 13;
- submits and facilitates inspections or audits, freely decided by SNCF-R and carried out by SNCF-R or any agency designated by it (subject to inform the licensee beforehand), intended to verify the licensee's compliance with the terms of the contract;
- notify SNCF-R of any changes in the composition of its shareholding, under the conditions defined in Annex 15.
33.2. SNCF-R monitors the information that it is aware of under this section, without its intervention in that capacity having the effect of clearing the holder of its responsibilities under the contract or, at the same time, engaging the holder of SNCF-R.
34. Passing contracts by the holder and social integration
34.1. The licensee is authorized to contractually entrust to third parties the conduct of all or part of the missions entrusted to it in accordance with the applicable regulations.
The licensee shall not be released from its obligations with respect to SNCF-R under the contract as a result of the conclusion of contracts with third parties.
34.2. On the date of entry into force of the contract, the licensee shall forward to SNCF-R the list of all contracts entered into by it and its contractors in an amount greater than 50 thousand (50,000) euros HT. This list is updated and transmitted to SNCF-R under the conditions set out in Appendix 13. SNCF-R may be communicated, upon request, the copy of any contract on this list.
The licensee identifies, in particular within the above list, contracts awarded to small and medium-sized enterprises within the meaning of the regulations relating to partnership contracts and craftsmen. The licensee shall separately disclose the percentage of the amount of these contracts in respect of all benefits subject to the contract, provided that the licensee undertakes to:
(i) greater than or equal to eighteen (18) % of the investment costs prior to the date of availability of the pole;
(ii) greater than or equal to eight (8) % of the operating rent from the effective date of the provision of the pole to the end of the contract.
The licensee shall specify, where applicable, the bonds in favour of the contractors upon request, pursuant to the article 11 (f), paragraph 2 of Order No. 2004-559 of 17 June 2004.
34.3. The licensee is committed to ensuring that seven per cent (7) per cent of hours worked per year for the design and realization of the pole are provided by persons in difficulty and/or remote from employment. To this end, the licensee and its manufacturer work in consultation with the social public employment services and professional training organizations.
The licensee also promotes the development of projects or missions dedicated to social integration.
34.4. The licensee undertakes to ensure that five per cent (5) per cent of hours worked per year for the maintenance and maintenance of the pole are provided by persons in difficulty and/or remote from employment. To this end, the licensee and its maintainer work in consultation with the social public employment services and professional training organizations.
The licensee also promotes the development of projects or missions dedicated to social integration.
SNCF-R and the licensee may meet to adapt the rhythm of these hours worked on the operating duration of the pole.
35. Responsibilities
35.1. The licensee is responsible for the damage caused to third parties, as well as the resulting costs and allowances, as a result of the construction, operation, maintenance and renewal of the pole, incurred in the performance, or under its responsibility, of the obligations under the contract.
The concept of damage to third parties referred to in the preceding paragraph covers damage to any natural or legal person, public or private law, outside the parties, as well as to their personnel, materials and other property. Railway enterprises are, inter alia, third parties within the meaning of this article.
The holder alone bears the monetary consequences of these damages. It cannot exercise action against SNCF-R on the basis of these damages, and guarantees SNCF-R against any action or claim of third parties, or any conviction that may be pronounced against it, for such damage or damage.
35.2. SNCF-R and the licensee shall, as soon as they are aware, inform each other with respect to such damages or injurious to the other party.
The licensee, on behalf of and on behalf of SNCF-R, undertakes amicable or contentious actions related to these damages and supports the management of amicable or contentious procedures. To this end, he has the right to act in court.
As such, the licensee shall perform all the necessary services or formalities for the proper follow-up of such actions, including the production of requests, briefs, observations or other procedural acts, participation in expertise, the provision of the necessary information; it mobilizes the means and skills necessary for this purpose.
These actions are carried out under the sole responsibility of the licensee, without prejudice to the right of SNCF-R to defend its own interests.
No claim or procedure referred to in this section may be the subject of a transaction by the licensee without consultation with SNCF-R if the licensee may be liable to compensation or bear the consequences of such a transaction.
36. Insurance
36.1. During the term of the contract, the licensee undertakes to ensure that, by the licensee or its prospective contractors, all required insurance companies, as described in Appendix 14, are subscribed to, in a manner that ensures the coverage of all risks associated with the activities entrusted to it under the contract.
36.2. The licensee shall provide to SNCF-R, no later than fifteen (15) days prior to the effective date of their subscription, their renewal, amendment or delegation, a certificate corresponding to the insurance policies subscribed under the preceding paragraph, any amendments, renewal certificates, the delegations of these policies, as well as, within fifteen (15) days from the date of payment, the proof of payment of the corresponding premiums.
The licensee undertakes to inform previously SNCF-R of any reduction, suspension or termination of the guarantees and any increase in the deductibles.
The licensee undertakes to inform SNCF-R of any significant deterioration in the financial situation of one or more of its insurers. The guarantees must be maintained for a minimum period of thirty (30) days from the date on which SNCF-R was informed of these events, in order to allow the parties to consult and agree on the measures to be adopted.
In the case that the licensee does not justify to SNCF-R the maintenance of a level of guarantee comparable to that determined by the parties on the date of entry into force, SNCF-R reserves the opportunity to subscribe, at the expense and on behalf of the licensee, the necessary assurances to maintain the level of guarantee at a level comparable to that determined by the parties on the date of entry into force.
When the licensee undertakes, under the conditions set out in section 35.1, to guarantee SNCF-R against any appeal and to waive any appeal against SNCF-R, it ensures that its insurers are also required by this undertaking. Similarly, the licensee ensures that its insurers cannot resort to SNCF-R insurers.
The licensee undertakes to allocate damage insurance benefits to compensation for damages, unless otherwise decided by SNCF-R.
36.3. In the case that certain risks would become insurable, the following principles are applied.
If the insurability originates in a situation or act attributable to the licensee, such as a significant or inherent insurability of the insurance scheme established under section 36.1, the parties agree to consult each other in order to stop the necessary measures.
If the insurability originates another cause, SNCF-R has the possibility:
- to exempt the licensee from any or all of its insurance obligation. In this case, the rent is reduced to the rate represented by the cost of the insurance policies concerned and the financial consequences of the occurrence of the risk not covered by insurance are borne by SNCF-R;
- to require the licensee to maintain insurance coverage, in the case that insurability results from an increase in the initial insurance costs, including the increase in the amount of the premium and/or the deductible, and to support a share, to be determined by mutual agreement between the parties, the increase in the premium and/or the corresponding deductible.
In the event of disagreement between the parties, the parties shall submit their dispute to an insurance expert.
The expert shall be appointed by mutual agreement between the parties within fifteen (15) days of the finding of disagreement. In the absence of agreement on the appointment of the expert within this period, the expert shall be jointly appointed by two insurance experts, each of whom shall be designated by a party. In the latter case, the expert must be appointed within one (1) month of the finding of disagreement between the parties.
The parties undertake to pay, equally, the costs and fees of the expert designated under the preceding paragraph, and to enforce its decision.
The expert must determine:
- the causes that are at the origin of innassurability;
- the potential impact of a suspension of all or part of the insurance on the terms and conditions of performance of the contract;
- the cost associated with the maintenance of insurance if proposed by the market, and the share supported by each party.
For the purposes of this section, insurability is defined:
- either as the objective impossibility of subscribing or maintaining a policy or guarantee of insurance, attested by written letters of refusal from three leading insurers;
- i.e. an increase of more than thirty percent (30%) of the initial insurance costs from the date of availability, including the policy franchises or guarantees subscribed, as indexed by application of the ICompLM Composite Index in accordance with Appendix 10.
36.4. Without prejudice to the above-mentioned stipulations, SNCF-R has the right to substitute its own insurance policies "Disclaims to property" and/or "Civil liability" to those approved by the licensee for the coverage of the risks associated with the maintenance, maintenance and ownership of the pole.
At the initiative of SNCF-R, the parties are approaching to define the modalities for the implementation of this substitution, while agreeing that:
- this substitution shall be effected by guaranteeing to the licensee and its prospective providers a coverage of the risks and a level of guarantee and deductibles at least equivalent to those held by the licensee as part of the insurances described in Appendix 14;
- the entire economy achieved by this substitution will benefit SNCF-R, with the portions of the M rent, G rent and R rent being reduced by an amount corresponding to the decrease in maintenance costs and/or contract management costs and/or replacement renewal costs;
- the financial consequences of the occurrence of a risk not covered by an insurance contracted by SNCF-R, as well as the amount of the deductibles associated with the corresponding policies, detailed in Appendix 14, will remain borne by the licensee;
- the licensee shall remain bound to the normal obligations of the insured, excluding the payment of the premium. These obligations include:
- the declaration of the risk and the new circumstances that result in, or worsening the risks, or creating new ones;
- the declaration of the existence of other insurance contracts guaranteeing the same risks for the same interest;
- the normal obligations of the insured in the event of a loss;
- in the event that, as a result of the substitution, SNCF-R should face (i) a significant increase in its costs of insurance " Damage to property" and/or "Civil liability" initial as a result of a significant impairment attributable to the licensee, and/or (ii) management or compensation difficulties related to the licensee's compliance policies,
- this substitution may only be made at the annual deadline of the police concerned and provided that SNCF-R has informed the holder of its decision to make this substitution no later than thirty (30) days before the expiry of the prefixed notice period of non-renewal of the police concerned;
- in the event of substitution, the licensee shall be the sole beneficiary of the benefits paid under the operating loss guarantee.
37.1. Principles:
In the interest of the public service and more generally for any reason of general interest, SNCF-R has the ability, on its own initiative or on the proposal of the licensee, to modify the contract, including the characteristics of the pole and the conditions of its availability, in accordance with the applicable regulations.
SNCF-R also reserves the opportunity to request a third party to make or make such amendments under the conditions defined in section 37.4.
The licensee is required to make such changes to the contract. When the implementation of these amendments results in overcosts or losses of any kind for the licensee, the licensee shall have a right to compensation for the damage suffered in accordance with the principles established by administrative jurisprudence. The amendments to the contract are the subject of an amendment between the parties.
Prior to any implementation of an amendment to the contract, whether it is the SNCF-R initiative or proposed by the licensee, the parties approach to detail its content, terms and conditions and impact of its implementation on the licensee's obligations under the contract. When SNCF-R is at the initiative of the amendment, it supports the costs, duly justified, of studies relating to the possible implementation of the amendment.
For this purpose, within thirty (30) days of the application by SNCF-R, the licensee shall submit to SNCF-R a report describing:
- the modification and the concrete modalities of realization that it proposes (according to the type of modification: technical, organizational aspects...), including its implementation schedule;
- description of the impact of the proposed change on the licensee's services for the realization of the pole and/or maintenance and renewal services;
- a detailed cost estimate of the financial impact of this amendment on the cost categories as described in Schedule 7 affected by the amendment. This cost estimate is a level of detail equivalent to the decomposition of costs as set out in Appendix 7. In the event of changes to the characteristics of the pole, this estimate includes the amount of work to be carried out and the impact of this change on investment costs;
- for changes to the characteristics of the pole involving additional investments, the licensee shall present the modalities of implementation and the amount of the pre-financing mechanism it proposes to ensure the realization of the investments concerned.
Upon receipt of this report by the licensee, SNCF-R has a period of thirty (30) days to approve, refuse or comment on this report. After this period, the silence of SNCF-R is refused. In any event, the licensee shall not make any changes without explicit and prior agreement by SNCF-R.
If the parties fail to agree on the modalities, including financial, of implementing the amendment, SNCF-R decides:
- to use an expert to define the modalities for the implementation of the amendment under the conditions defined in Article 45;
- either to refuse the licensee's proposal and to make the amendment by a third party under the conditions set out in section 37.4.
37.2. Financing of the amendments before the date of availability of the pole:
On the basis of the principles set out in section 37.1, the financial consequences of the amendments decided and implemented prior to the date of the pole's disposal are treated as follows:
(a) If the change reduces the investment costs, the amount of the public competitions and, if applicable, the amount of the real property rent as from the date of disposition of the pole, are adjusted from the amount corresponding to the economy carried out by the holder on the investment costs and the service of the financing as a result of this decrease, taking into account the terms and conditions of detailed funding in Appendix 8.
The gain generated by the modification is calculated after taking into account the positive or negative relief resulting from the modification of the coverage instruments.
The licensee is required to amend, without delay, the agreement of the parties on the terms, including financial, of the amendment in question.
(b) If the change has the effect of increasing the investment costs, their support is based on the following principles:
(i) the licensee shall implement all reasonably available means to implement the funding for the implementation of the amendment;
(ii) if the licensee fails to provide, after justifying to SNCF-R that it has implemented all reasonably available means for this purpose, to provide SNCF-R with a firm proposal for funding, this impossibility being justified to SNCF-R by letters of refusal from at least three (3) first-tier financial institutions or, in the absence of letters of refusal obtained within a reasonable period of time,
(iii) if, within a reasonable period of time, the licensee manages to establish the funding for the implementation of the amendment, then, at the discretion of SNCF-R:
(1) the real estate rent is increased by an amount corresponding to the financing service used by the licensee to meet the increase in the investment costs generated by the amendment;
(2) either SNCF-R pays to the licensee, once, on the first day of the calendar quarter immediately after the completion, to the satisfaction of SNCF-R, of the amendment, an amount determined by the parties and corresponding to the increase in investment expenses resulting from the amendment.
(c) If the amendment increases or decreases maintenance costs and/or renewal costs, the corresponding portions of M rent and R rent are increased or decreased in an amount corresponding to the increase or decrease in maintenance costs and renewal costs incurred by the amendment. It is specified that when an amendment only results in an increase in maintenance costs and/or renewal costs, the licensee is required to implement the amendment without delay the agreement of the parties on the terms and conditions of SNCF-R support of the amendment.
37.3. Financing of the changes occurring after the date of availability of the pole:
The modifications decided upon and implemented after the date of availability of the pole are financed as follows:
(a) If the change is to increase the investment costs, the SNCF-R's management of the increase in the investment costs resulting from the change is, at the discretion of SNCF-R, as described below:
(i) either SNCF-R pays to the holder, once, at the time of payment of rent immediately after the completion, to the satisfaction of SNCF-R, of the amendment, an amount determined by the parties and corresponding to the increase in investment costs;
(ii) the rent I2 is increased, between the date of completion of the work relating to the modification and the normal term of the contract, in an amount corresponding to the financing service used by the licensee to meet the increase in the investment costs incurred by the amendment, being specified that the increase in real estate rent is made in accordance with the provisions of section 29 and Schedule 10.
In the event that the licensee is unable to ensure this pre-financing, the parties are approaching to determine the terms and conditions, including the schedule, of payment by SNCF-R to the licensee of the amounts necessary for the realization of the additional investments. The impossibility for the licensee to ensure the pre-financing of the additional investment charges referred to above is only an objective impossibility, attested by letters of refusal of funding from at least three credit institutions of renown, provided that the licensee may justify having completed with the necessary care and diligence all the steps necessary to obtain this pre-financing;
(b) If the amendment increases or decreases maintenance costs and/or renewal costs, the portions of the M rent and the corresponding R rent are increased or decreased in an amount corresponding to the increase and/or decrease in maintenance costs and/or renewal costs generated by the amendment.
It is specified that when an amendment only results in an increase in maintenance costs and/or renewal costs, the licensee is required to implement the amendment without delay the agreement of the parties on the terms and conditions of SNCF-R support of the amendment.
37.4. Changes by a third party:
As of the date of availability, SNCF-R may decide to entrust to a third party the implementation of the modifications affecting the equipment of the pole and the maintenance services related to the modifications.
From the date of availability, SNCF-R may also decide to entrust to a third party the implementation of the modifications affecting the characteristics of the pole.
The licensee shall implement all necessary coordination measures to enable the third party to perform all of its obligations under SNCF-R. As such, the licensee shall freely allow access to the site for the modifications and maintenance services.
No later than one (1) month before third party intervention, SNCF-R shall provide the licensee with the following information:
- the name and contact details of the third party, the contact point of the responsible person and the number and name of the persons involved in the site;
- the nature and description of the work and/or benefits;
- the duration of intervention on the site;
- the premises concerned with the work and/or benefits.
When the implementation of the changes and/or maintenance services by the third party impact the conditions for the performance of the obligations under the contract, the parties meet to implement the appropriate contract adjustment measures.
38. Change of law
38.1. Principle:
For the purposes of this section, a change of law means any amendment, creation or deletion of a regulation, including mandatory technical standards, as well as, for tax and accounting matters, any change in interpretation of the competent authorities, whose intervention could not be reasonably anticipated with respect to the proposed regulations under discussion and/or published prior to the date of entry into force of the contract.
38.2. Change of law before the date on which the pole is available:
The financial implications (including the increase in funding costs and the possible increase in maintenance costs and renewal costs) of changes in legislation made prior to the date of availability:
- involving the realization of additional investments;
- and/or involving an increase in maintenance costs, renewal costs or costs of energy and fluids, provided that the change of law has specific consequences on the project subject to this contract in the sense given to this concept in section 38.3;
- are at the expense of the licensee, within the limit of an amount, any changes in laws combined, of 200,000 euros worth 1 September 2013.
When a change of law results in a delay in the execution of the work relating to the realization of the pole likely to result in the postponement of the contractual date made available, subject to the implementation by the holder of the means that can reasonably be expected from the part of a professional of the design, construction, maintenance, and renewal of a multimodal station to address the consequences of the agreement due to the change of law
SNCF-R shall bear the additional costs incurred by the holder, either by the payment to the holder, at once, of an amount corresponding to the additional costs it has to bear under this section 38.2, or as part of a reassessment of the amount of the rent, as provided in section 37.2.
38.3. Change of law after the date of availability of the pole:
When a change of law, acting after the date of availability and having specific consequences on the project subject to this contract, results in a significant deterioration or improvement in the economic balance of the contract, the parties meet and stop, as soon as possible, the measures to be taken to allow the continuation of the contract under conditions not significantly degraded or improved.
For the purposes of this article:
- is considered to have specific consequences on the project for any change of law whose application is specific to buildings open to the public and to railway facilities and affects an essential element of the contract;
- the significant deterioration of the economic balance of the contract is defined as cases where the financial impact of the occurrence of one or more events falling within the scope of this section 38.3 implies (i) an increase of more than 5% (five percent) of the maintenance costs and renewal costs, calculated over a period of twelve (12) months or (ii) the realization of additional investments for an amount greater than 1% of the investment (one hundred per cent)
- the threshold for significant improvement in the economic balance of the contract is those cases where the financial impact of the occurrence of one or more events falling within the scope of this section 38.3 implies a decrease of more than 5% (five percent) of the maintenance costs, calculated over a period of twelve (12) months.
As part of the measures taken to allow the continuation of the contract under conditions not significantly degraded or improved, SNCF-R shall bear, if any, the costs incurred under this section, either by the payment to the holder, once, of an amount corresponding to the costs to be borne by the holder under that section, or as part of a reassessment of the amount of the rent, as provided for in the 37.
38.4. The consequences of changes in legislation other than those referred to in sections 38.2 and 38.3, shall be the sole responsibility of the licensee, without prejudice to the application of section 39.1 if the change of law presents the characteristics of the unrevisioned within the meaning of this section.
39. Estimate
39.1. In the event of an unforeseeable and external event to the party that invokes it, having or will necessarily have the effect of changing the economic balance of the contract, the licensee shall continue the performance of its obligations.
It may propose to SNCF-R the necessary adaptation measures of the contract. SNCF-R notifies its decision on such proposals within two (2) months of receipt.
In the case that the above-mentioned upheaval has the effect of improving the economic balance of the contract, the parties are approaching to adjust the rent so as to take into account the gains or savings resulting from the upheaval.
39.2. If, as a result of the occurrence of an act referred to in section 39.1, the disruption of the economic balance of the contract would or would become irremediable, the termination of the contract may be pronounced by SNCF-R or, at the request of the holder, by the administrative judge, under the conditions and in accordance with the principles established by the jurisprudence of the State Council.
39.3. For the purposes of this section 39, the threshold for a change in the economic balance of the contract is defined as cases where the financial impact of one or more events coming into the scope of this section endangers, or is likely to jeopardize, the viability of the continuation of the performance of the contract by the holder.
40. Force majeure
40.1. No party shall be liable for failing to fulfil or having made an obligation under the contract lately, since such breach or delay is a direct result of an event occurring during the contract and presenting the characteristics of force majeure, that is, outside the parties, unpredictable and irresistible.
The party that, by action or omission, would have seriously aggravated the consequences of an event presenting the characteristics of force majeure is only justified invoking it to the extent that the event would have caused if that action or omission had not taken place.
Except as expressly provided for in this section, and unless otherwise specified in the contract, no party shall be relieved of its obligations because of an impossibility of performance or the occurrence of circumstances or events beyond its control.
The party that invokes the occurrence of a force majeure event shall, as soon as possible, take all reasonable measures to mitigate its impact on the performance of its obligations under the contract.
If the licensee invokes the occurrence of a force majeure event, the licensee shall immediately notify SNCF-R in writing, specifying the basis for its position. SNCF-R shall notify the licensee within one (1) month of its decision on the merits of this claim.
If SNCF-R invokes the occurrence of a force majeure event, the licensee shall immediately notify the licensee in writing in order to collect its comments, which the licensee shall provide to the licensee within one (1) month. Following this period, SNCF-R shall notify the licensee of its decision on the existence and effects of the force majeure event.
In each of the hypotheses referred to in the preceding two paragraphs, following the notification by SNCF-R of its decision, the parties are approaching to consider measures that may be taken to allow the resumption of performance of the contract.
In the event of disagreement by the parties on the qualification of force majeure of the occurrence, the provisions of Article 45.
40.2. When the force majeure event occurs prior to the date of availability, SNCF-R continues to pay the public competitions as they relate to benefits that are continued.
When the force majeure event occurs after the date of availability, SNCF-R continues the payment of rent I2 and the portion of the rent F corresponding to the benefits whose performance is, despite the occurrence of the force majeure event, continued by the holder in accordance with the requirements of the contract.
In the event that an event with the characteristics of force majeure makes it impossible to execute the contract for a period of at least twelve (12) months, or is likely to render impossible the execution of the contract for a period that will necessarily exceed twelve (12) months, the termination of the contract may be pronounced by SNCF-R, or, at the request of the holder, by the administrative judge, in the conditions and in accordance with the principles established by the jurisprudence of the Conseil d'état
41. Termination for reasons of general interest
41.1. SNCF-R may terminate the contract for reasons of general interest on a notice period that will be notified by registered mail with acknowledgement of receipt to the holder.
41.2. The holder is entitled to an allowance calculated by adding the elements (A), (B), (C), (D) and (E) as defined below and following the following adjustments:
(A) is the sum of the actual stock of the debt instruments, the amount of the loan(s) of the equity and quasi-substantiated funds and of the credit(s) of the VAT credit(s) at the effective date of the termination, including the accrued interest not accrued by the holder at that date.
(B) is the licensee’s loss of profits calculated in accordance with the following formula:
You can view the image in the facsimile of the
JOno 0037 of 13/02/2015, text No. 5
It is understood that:
- D: date of signature of the contract;
- A: date of termination of the contract;
- i: any date on which an FAi injection or shareholder flow payment took place. It is therefore understood that the calculation (R - i) returns the number of days separating the dates of termination R and calculation i, with always D≤i
- FAi: shareholder flow, injected or paid on day i, as detailed in Appendix 8. Are considered shareholder flows:
- negative: any injection of clean or near-clean funds;
- positive: any dividend payment in respect of equity, or payment of interest or principal in respect of quasi-clean funds;
- on the understanding that the pre-financing streams of clean or near-ground funds by possible credit-relais are not considered FAi.
In the case that actual injections and repayments of clean funds and near-grounds would be different from those provided in Appendix 8, the parties agree to analyze these differences for, where appropriate, taking them into account in calculating the loss of profits, excluding any difference resulting from overcosts taken over by the licensee or penalties that have come to punish it.
(C) is the reasonable costs of early termination of contracts entered into by the licensee for the performance of the contract and duly justified by the licensee to SNCF-R. It is understood between the parties that in the event that the effective date of termination occurs prior to the date of disposition, the term (C) is capped to one and a half per cent (1.5 per cent) of the remaining investment costs. It is understood between the parties that in the event that the effective date of termination occurs after the date of disposition, the term (C) is capped at the average value of the sum of the annual rents M, G and R, which is indexed by an index reflecting the relative weights of the rents M, G and R in that sum.
(D) is the possible amount of VAT to be returned to the Public Treasury.
(E) is the amount of rent M, rent G, rent R and rent EF fallen and not paid on the effective date of termination, calculated pro rata temporis based on the period between the first day of the quarter in which termination occurs and the effective date of termination.
It is specified that the amount due by SNCF-R to the licensee is:
- diminished of the licensee's positive cash balance on the effective date of termination of the reserve account for renewal;
- diminished of the actual positive balance of the reserve account for renewal;
- increase in the amount of taxes and taxes, if any, payable by the licensee on the basis of the collection of the termination allowance.
41.3. The payment of the termination allowance is made by SNCF-R for the benefit of the licensee within six (6) months from the effective date of termination, after final determination of the amounts referred to above by an expert designated by SNCF-R. The allowance shall be increased by interest accrued under the Instruments of Debt, the credit or credits-replaced own funds and of the credit or credits-replaced TVA, between the effective date of termination and the date of payment of compensation.
42. Due
42.1. Reasons:
SNCF-R may render the licensee's failure to do so in the event of a particular gravity or recurring nature that would jeopardize the safety of railway traffic or the continuity of public service, or seriously affect the continued operation of the pole in conditions of quality and availability in accordance with the requirements of the contract.
In particular, SNCF-R may issue the licensee's termination:
- in the event of delay in the completion of the work that has resulted, or will in any event lead to, a delay of more than twelve (12) months in relation to the contractual date available, as offset, if any under the provisions of the contract;
- where ninety per cent (90 per cent) of the penalty cap referred to in section 15 has been met;
- if the licensee has permanently or repeatedly interrupted, without authorization or legitimate reason, the work or performance of the maintenance services provided to it under the provision of the pole;
- if the work, corrections and improvements remaining to be performed by the licensee in respect of the reservations specified in the notice of acceptance are not performed within two (2) months beyond the time limit;
- if the licensee refrains from implementing a stipulation to carry out work on the correction and compliance of the pole required to ensure compliance with the performance objectives imposed by the contract;
- if any of the administrative authorizations necessary for the fulfilment by the licensee of its obligations under the contract (including authorizations required in respect of buildings open to the public) are withdrawn or suspended as a result of a serious breach of the licensee;
- in the case of substitution of SNCF-R to the holder under the provisions of section 16 for a continuous period exceeding twelve (12) months;
- in the case of substitution of SNCF-R to the licensee under the provisions of section 25 for a continuous period exceeding six (6) months;
- if the holder has not constituted or maintained one of the first-demand guarantees required by the contract;
- in the event of a total appeal of the first-time guarantee referred to in section 31.2;
- where the recovery requirement, in the event of a total or partial appeal of the first-demand guarantee, exceeds the limit set out in section 31.1;
- if the licensee has not subscribed or maintained the required insurance under the contract, excluding (i) insurable risk cases originating in a situation or act not attributable to the licensee or (ii) substitution cases as provided for in section 36.4;
- if the licensee has granted the rights resulting from the contract in breach of its provisions;
- if the licensee has, within the scope of the contract, carried out activities not covered by the contract or not authorized by SNCF-R under the terms of the contract;
- in the event of failure by shareholders of the licensee's shareholder stability commitments as set out in Appendix 15;
- in the event of a serious breach by the licensee of the provisions of the existing contract or regulations relating to the safety of railway traffic;
- where repeated breaches of the licensee have resulted, or would have resulted in, if SNCF-R had applied the penalties due by the licensee, the application of penalties, in respect of breaches of performance objectives pursuant to Schedule 6, of a cumulative amount greater than or equal to fifty percent (50%) of the average sum of rents M, G and R yearly (they are considered in constant euros),
When, before the end of the twentieth quarter as a result of the date of disposition, the licensee's repeated breaches resulted in, or would have resulted in, if SNCF-R had applied the penalties due by the licensee, for failures to meet the performance objectives under Appendix 6, the application of penalties in a cumulative amount greater than or equal to one hundred per cent (100 per cent) of the average amount of the M, G and R annual rents
SNCF-R may also issue partial termination of the contract, as it relates to the only accompanying real estate program, particularly in the case of:
- lack of knowledge by the holder of the conditions for the realization of the accompanying real estate program, including constructive principles, as set out in annex 16;
- default on the due date of one of the maturity dates of secured real estate revenues.
The financial consequences, in the event of partial loss, are detailed in annex 16.
By derogation from the provisions of the first paragraph, the waiver may not be imposed by SNCF-R against the licensee if it demonstrates that the breach of the contract is a result of a breach by SNCF Gares ' Connexions in the performance of the railway services of the pole or the CNM provider in the conduct of the operations that it is responsible for. In this case, however, the licensee must be able to demonstrate that it has implemented all the means that were, or should have reasonably been, at its disposal to prevent the occurrence of such breach and to ensure compliance by SNCF Gares ' Connexions or the CNM provider, or to limit its consequences.
42.2. Modalities:
In the event of a failure of the licensee to justify the termination of the due date, SNCF-R shall, by registered letter with acknowledgement of receipt, address the failure within a specified time frame, taking into account the nature of both the failure and the necessary corrective measures, and which may not be less than two (2) months from the date of receipt of the stay by the licensee.
At the same time as the licensee is sent to the licensee, if the licensee intervenes before the date of disposition, SNCF-R shall send a copy of the notice to the representative of the establishments that have established the debt instruments mandated for that purpose, as identified in accordance with the provisions of section 27.2, in order to allow the licensee to propose to SNCF-R, within the period specified in the undertaking, an entity to replace the contract.
If, within the time limit set out in the notice period, the representative of the establishments mentioned above proposed a substitute entity and that SNCF-R gave its express authorization in accordance with section 44, then the contract shall, for its remaining period, be assigned to the substitute entity.
If, at the expiry of the time limit set in the reinstatement, the licensee has not complied with its obligations and if the representative of the establishments that have put in place the debt instruments has not proposed an entity to replace the licensee, or if SNCF-R has refused, in a reasoned manner, its agreement to the proposed substitution, SNCF-R may notify the licensee of the termination, as well as the date on which the reinstatement was made.
SNCF-R also takes, without prejudice to the sanctions provided for in the contract, any measures it considers useful to ensure continuity of the performance of the contract at the licensee's expense and risk.
42.3. In the case that the disbursement is made before the date on which the pole is made available, SNCF-R shall pay the holder an allowance calculated by deducting from the amount (A) the amounts (B) and (C), after applying the adjustments mentioned below. The amounts (A), (B), and (C) are defined below.
(A) is the amount (A-1) decreased in the amount (A-2), where:
(A-1) is equal to the actual stock within the limits of the theoretical stock as defined in Schedule 8, retained on the effective date of the due date, of the Debt Instruments, including the accrued interest not accrued, exposed by the licensee on the effective date of the due date;
(A-2) is equal to the sum of the following items (i) to (iv):
(i) a lump sum amount representing the damage suffered by SNCF-R as a result of the increase in the cost of the project, loss of revenue related to delay in delivery and overpayment of a new contract. This damage is assessed in a lump-sum amount of 9% (nine percent) of the basic current investment costs;
(ii) an amount corresponding to the damage suffered by SNCF-R as a result of the site security operations required by the demise. This amount is calculated on the basis of the costs incurred or to be disclosed by SNCF-R for the conduct of these transactions, within two (2) months of the effective date of the due date;
(iii) an amount corresponding to the damage suffered by SNCF-R as a result of the compliance operations carried out by the licensee in breach of the requirements of the contract, the regulations in force or the rules of art, or which cannot be effectively prosecuted by SNCF-R. This amount is calculated on the basis of the costs incurred or to be disclosed by SNCF-R for the conduct of these operations (including, where applicable, demolition or modification work), within two (2) months of the effective date of the due date;
(iv) an amount corresponding to all remaining amounts due to SNCF-R by the licensee on the effective date of the due date, including under section 15 and that would not have been deducted from the licensee's remuneration on the effective date of the due date.
(A) shall not be less than 50 per cent (50 per cent of A-1), nor more than fifty-five per cent (55 per cent of A-1), at the effective date of the loss.
(B) is the licensee's positive cash balance on the effective date of the maturity.
(C) is the amount of compensation received or payable by the licensee to insurance organizations.
The amount resulting from the deduction, the amount (A), the amounts (B) and (C) under the terms indicated above, is further increased by the possible amount of VAT to be paid to the public treasury.
The amount of the deferral allowance payable by SNCF-R to the licensee is assessed as an expert designated by SNCF-R within six (6) months of the effective date of the deferral. The due allowance is paid by SNCF-R to the licensee within six (6) months of this assessment. The allowance is increased by interest accrued under debt instruments and VAT credits or credits, between the effective date of the termination and the payment date of the allowance.
If the calculation of the compensation made under the above provisions results in a negative amount, the amount is paid by the licensee to SNCF-R under the same terms and conditions of time.
42.4. In the case that the disbursement is made after the date on which the pole is made available, the licensee shall pay to SNCF-R an allowance calculated by adding the amounts (A), (B), (C) and (D), and after applying the adjustments mentioned below. The amounts (A), (B), (C) and (D) are defined below.
(A) is equal to the sum of the following items (i) to (iv):
(i) an amount corresponding to the damage suffered by SNCF-R as a result of the pole's compliance operations with the requirements of the contract, the regulations in force or the rules of art made necessary by the licensee's breaches of these provisions. This amount is calculated on the basis of the costs incurred or to be disclosed by SNCF-R for the conduct of these operations (including, where applicable, demolition or modification work), within two (2) months of the effective date of the due date;
(ii) an amount equal to the difference between amounts (a) and (b), where:
(a) is the cost (in value of the due date) of maintenance and renewal services to be implemented in such a way as to ensure, to the end of the contract as it should have intervened notwithstanding the issuance of the due date, a level of quality and availability of the pole consistent with the fulfilment of the performance and availability objectives of the licensee under this contract, and in particular its annex 6. The estimate of these costs shall be made to say an expert, designated under the conditions referred to in section 45.1, within three (3) months from the date of delivery of the due date;
(b) is the nominal value of the remaining M and R rent maturity due up to the end of the contract as it should have intervened notwithstanding the termination of the due period, in accordance with the detail set out in Schedule 10 and excluding the penalties set out in section 23;
If the difference between amounts (a) and (b) is negative, this element (ii) is zero.
(iii) an amount corresponding to any outstanding amounts due to SNCF-R by the licensee on the effective date of the due date, in particular under section 23 and that would not have been deducted from the licensee's remuneration on the effective date of the due date;
(iv) an amount corresponding to the harm suffered by SNCF-R, on the date of the termination, in respect of the loss of traffic revenue or any penalties caused by SNCF-R to users of the national ferre network, due to the failure of the licensee that caused the termination.
(b) corresponds to the licensee's positive cash balance on the effective date of the due date, excluding the balance of the reserve account for renewal. This amount is reduced by the possible amount of VAT to be paid by the licensee to the Treasury.
(c) is the amount of compensation received or payable by the licensee to insurance organizations.
(d) corresponds to the actual balance of the Renewal Reserve Account, on the Effective Date of the Determination.
The amount of the maturity allowance payable by the licensee to SNCF-R is assessed within six (6) months of the effective date of the due date, if required by an expert designated by SNCF-R.
The amount of the deferred allowance due by the holder to SNCF-R is capped to two hundred percent (200 percent) of the sum of (i) the average calculated on the total length of the M and G annual rent contract and (ii) the average annual R rents that would have been due up to the normal end of the contract (those are all considered in constant euros).
The due allowance is paid by the licensee to SNCF-R within six (6) months of this assessment. Beyond and in full law, it is increased from late interest to the rate of interest applied in accordance with the principles of public order.
Where applicable, SNCF-R may appeal to the warranty under section 31.1 or 31.2.
43. Consequence of termination of contract
43.1. At the normal or anticipated end of the contract, the goods corresponding to the first and second categories defined in section 5 return to SNCF-R. This return is made free of charge at the end of the contract, without prejudice to any compensation due, if any, to the holder in the event of an early termination of the contract.
43.2. At the normal or anticipated end of the contract, regardless of the cause, the licensee shall forward the pole to SNCF-R, in good condition of maintenance and operation, and in any event in a state respecting the provisions of Schedule 1.
Pre-operations required for the handover of the pole result in the establishment of minutes that may be accompanied by reservations. These reservations must be waived on the date the contract expires. It is then proceeded to the contradictory establishment of the pole report. If the licensee fails to carry out the correction work corresponding to the said reserves, SNCF-R may carry out or enforce this work at the licensee's expense, if any, by calling the warranty referred to in section 31.3.
44.1. The contract may not be surrendered by the licensee, in whole or in part, or be subject to a security right, without the express and prior authorization of SNCF-R, without prejudice to the right, under section 42.2, of the establishments that have established the Debt Instruments.
44.2. SNCF-R may assign this contract to the benefit of any public legal entity attached either to the State or to a public legal entity itself attached to the State.
The assignment is then notified to the holder without changing its contractual obligations.
45. Applicable law and dispute resolution
45.1. The parties endeavour to resolve their disputes amicably.
In the event of a dispute, the parties shall jointly designate an independent expert within eight (8) days of the request to appeal to the expert filed by the most diligent party, who shall give notice of the dispute.
In the event that the parties do not agree on the choice of the independent expert within the period of eight (8) days referred to above, it shall be appointed by the president of the territorially competent administrative tribunal, seized by the most expeditious party. The independent expert submits his opinion within fifteen (15) days of his appointment.
It determines in this notice whether the costs required by the intervention are borne by one or shared between the parties. The advance of these costs is, in all cases, insured for half by each of the parties. In the event of a challenge to the expert's notice, the dispute shall be decided according to the provisions of Article 45.2. In the expectation of a court decision, the independent expert's decision is binding on the parties on a transitional and interim basis.
45.2. The disputes that would arise between the parties regarding the contract are within the jurisdiction of the Administrative Court of Paris.
46. Intellectual property
46.1. The results-related intellectual property rights are automatically and as they are realized at SNCF-R.
The said assignment deals with all property rights of intellectual property related to the results. Thus, under this Article 46, the rights of reproduction and representation relating to the results, including, inter alia, the rights of exploitation, marketing, use, translation, adaptation and creation of derivative works, will be granted. The assignment referred to in this section is exclusive, granted for the full duration of the protection of intellectual property rights applicable by law and international conventions to results, for the whole world and on all known or unknown materials, existing or not to date.
In addition, SNCF-R expressly gives the licensee an irrevocable, free, non-exclusive and global licence on the results, allowing the use, reproduction, modification, adaptation, translation, creation of derivative works, distribution and use of the results, for the purpose of performing all or part of the benefits under the contract. The licensee is, as such, expressly authorized by SNCF-R to grant sublicense to its service providers, to carry out the above-mentioned transactions for the purpose of performing all or part of the contract benefits.
46.2. The licensee shall guarantee SNCF-R that it has the rights necessary for the implementation of its obligations under this section 46 and shall issue any authorizations, payments or other obligations necessary for that purpose.
As soon as a party is aware of the existence of a claim made or of an action brought by a third party on the basis of an infringement of its intellectual property rights by the use of the results, it shall inform the other party as soon as possible, provided that the licensee shall bear any actions, claims, requests or payments to which SNCF-R may be required to deal with the use of the agreed results under Article 46.
47. Notifications
47.1. Modalities:
Any notifications, requests or communications that may or should be made pursuant to the contract are, unless otherwise stipulated in the contract, made in writing and sent by registered letter with request for notice of receipt. They are effective on the date of the first submission of the recommended letter to the addresses below.
47.2. Addresses:
Any notification, request or communication to be made, and/or any document to be issued, by a party to another party, pursuant to the contract, shall be made and delivered to the following addresses:
Notification to SNCF-R:
SNCF-R, postal address: 185, rue Léon-Blum, BP 9252, 34043 Montpellier Cedex 1, to the attention of Mr. Joseph Giordano, telephone: 04-99-52-21-70, fax: 04-99-52-21-80,
Notification to the licensee:
SAS Gare de la Mogère, address postale : 35, rue de la Gare, 75019 Paris, à l'attention de M. Pierre Lejeune, téléphone : 01-41-57-78-08, télécopieur : 01-41-57-78-08.
or any other address, telephone and fax that would be subsequently notified by a party to the other party with reasonable notice.
48. List of annexes to the contract
The following annexes are annexed to the contract:
Annex 1. Technical requirements and requirements:
1.1. Substantive and technical programme
1.2. Maintenance programme
1.3. Missions of the independent technical body
1.4. Site commitments and constraints
Annex 2. Architectural and technical project
Annex 3. Timetable for the realization of the pole
Annex 4. Right
Annex 5. Maintenance and sustainability plans
Annex 6. Performance objectives. - Penalty
Annex 7. Details of costs incurred by the licensee
Annex 8. Financing plan
Annex 9. Public competition
Annex 10. Determination of rent
Annex 11. First-demand guarantee
Annex 12. Communication
Annex 13. Activity report of the licensee
Annex 14. Insurance
Annex 15. Stability of ownership
Annex 16. accompaniment real estate program
Annex 17. CNM line coordination milestones
Annex 18. Pre-disposal operations
Made in Paris, February 4, 2015, in two original copies.
For the licensee:
J.-P. Matton
For SNCF-R:
A. Quinet
Done on February 11, 2015.
Manuel Valls
By the Prime Minister:
Minister of Ecology, Sustainable Development and Energy,
Royal
State Secretary for Transport, the Sea and Fisheries,
Alain Vidalies
