Common use of Infrastructure Services Clause in Contracts

Infrastructure Services. 21.1. The Concessionaire shall provide the Infrastructure Services as may be required to discharge its obligations under this Agreement (including Asset Management Plan set out in Schedule 2 Part 4 (Concession Specifications - Infrastructure Performance Measures)), the Ancillary Agreements and to comply with Laws, including the RSR Act, Applicable Requirements (including Environmental Law and the Astronomy Geographic Advantage Act, 21 of 2007), Consents, Safety Permits and the Fencing Act, 31 of 1963. 21.2. Infrastructure Services shall, subject to the provisions of clause 19.2 (Other Upgrade and Refurbishment Works), be undertaken at the sole risk and expense of the Concessionaire by one or more Certified Contractors. It is recorded that the performance of Infrastructure Services includes the undertaking of any refurbishment works as may be necessary or implicit in the execution of the Infrastructure Services. 21.3. The Concessionaire shall, on an annual basis for the duration of the Concession Term submit a written report to Transnet on its performance of the Infrastructure Services measured against the Concessionaire Annual Infrastructure Works Plan (set out in Schedule 2 Part 4 (Concession Specifications – Infrastructure Performance Measures) for the year under review ("Annual Maintenance Report"). If there is any shortfall between the actual performance of Infrastructure Services and the Concessionaire Annual Infrastructure Works Plan, the Concessionaire shall – 21.3.1. set the nature and extent of such shortfall, the reason therefor; 21.3.2. when and how the shortfall is to be made good also indicating that in the Concessionaire Annual Infrastructure Works Plan for the ensuing year; and 21.3.3. the consequence to the Rail Infrastructure or condition thereof as a result of the delay occasioned by the shortfall, and Transnet shall be entitled to physically verify any aspect of any Annual Maintenance Report. 21.4. Transnet shall be entitled, in intervals of 5 (five) years each and as part of a relevant performance review contemplated in clause 32.2 (Performance Reviews), to procure the undertaking of an interim maintenance survey by a Certified Contractor ("Interim Maintenance Survey") to - 21.4.1. review the actual maintenance carried out during the period since Effective Date, or the last Interim Maintenance Survey (as the case may be) to the current Interim Maintenance Survey for the Concession Assets; 21.4.2. review the programmed (or planned) maintenance as set out in the Asset Management Plan in Schedule 2, Part 4 (Infrastructure Performance Measures) during the period since Effective Date, or the last Interim Maintenance Survey (as the case may be) to the current Interim Maintenance Survey for the Concession Assets; and 21.4.3. determine the degree to which actual maintenance carried out complied with the programmed maintenance set out in the Asset Management Plan in Schedule 2, Part 4 (Infrastructure Performance Measures) during the period under review of each item of the Concession Assets. 21.5. If Transnet determines that the Concessionaire has failed to materially comply with the Asset Management Plan set out in Schedule 2, Part 4 (Concession Specifications - Infrastructure Performance Measures), it shall notify the Concessionaire accordingly ("Interim Maintenance Survey Notice"). 21.6. Upon receipt of the Interim Maintenance Survey Notice under clause 21.5, the Concessionaire shall indicate whether or not it accepts Transnet’s determination, within 30 (thirty) days of receipt thereof, failing which, the Concessionaire shall be deemed to have accepted the determination of Transnet set out in the Interim Maintenance Survey Notice. If the Concessionaires takes issue with the Interim Maintenance Survey Notice, or any determination therein, such issue shall be referred by either Party for determination under the dispute resolution procedure in clause 62 (Dispute Resolution). 21.7. When any Interim Maintenance Survey Notice is agreed, or determined, as the case may be, indicating that maintenance is to be undertaken by the Concessionaire to meet programmed (or planned) maintenance as set out in the Asset Management Plan in Schedule 2, Part 4 (Concession Specifications - Infrastructure Performance Measures), then the Concessionaire shall within 15 (fifteen) days of such agreement or determination issue a programme to Transnet setting out when the outstanding maintenance is to be undertaken ("Maintenance Remedial Programme"). If the Maintenance Remedial Programme is acceptable to Transnet, then Transnet shall notify the Concessionaire accordingly, and if it fails to do so within 30 (thirty) days of receipt thereof, Transnet shall be deemed to have accepted such Maintenance Remedial Programme. 21.8. If Transnet does not accept the Maintenance Remedial Programme, its shall be entitled to demand the Concessionaire to forthwith undertake, or procure the undertaking of the outstanding maintenance work in the agreed or determined Interim Maintenance Survey Notice, as the case may be. If the Concessionaire fails forthwith to undertake or procure the undertaking of the requisite maintenance work, Transnet shall be entitled, at the cost of the Concessionaire to either undertake the requisite maintenance work itself, or procure a Certified Contractor to do so. Transnet shall be entitled to call on the Performance Bond for the amount of maintenance work undertaken by or at the instance of Transnet pursuant to this clause 21.8, which is not paid by the Concessionaire on demand. The Concessionaire shall replenish the Performance Bond to the quantum it was prior to any call thereon by Transnet under this clause 21.8.