Railway Reform: Toolkit for Improving Rail Sector Performance - ppiaf

Railway Reform: Toolkit for Improving Rail Sector Performance
Annex 4: Concession Contract Guide
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Notify the Concessionaire of required standards for the condition of the
Concessioned Assets to comply with Agreement obligations; and
Specify a reasonable period within which the Concessionaire must
achieve compliance through rectification and/or maintenance work.
• The Concessionaire should be required to carry out such rectification and/or
maintenance work within the period specified, and bear fully any costs incurred
in rectification and/or maintenance work.
• For Hand-Back surveys, it is reasonable for survey costs to be borne jointly; if
the Concessionaire so requires, surveys should be carried out by an independent
expert agreed between the parties. In case of failure to agree, the
Agreement should name a nominating body to appoint the independent expert.
If the survey finds that renewal and maintenance work is needed to
bring the Concessioned Assets up to the standard required under the Agreement,
the Concessionaire should issue a bond according to section 2.12, or
establish an escrow account and deposit an amount equal to the estimated
cost of carrying out the renewal and maintenance work.
In case of a failure to deliver a service as part of the concession, particularly if the
service is to meet a public service obligation, the Authority may require a temporary
right to procure the operation of all or part of the Concessioned Assets. The
Agreement provision should include protocols for serving ‘notice of intent’ to assume
operations, assignments of responsibility for costs incurred, and allocations
of risk, particularly in relation to any damage incurred to Concessioned Assets
during operation, and the withdrawal of the Authority, or its nominee, at the end
of the emergency period.
2.21 Confidential Information
It is better to start with the concept of transparency and to require the Concessionaire
to divulge information that might reasonably be required for informing
the public of the progress or otherwise in improving services. The scope of such
disclosure can be dealt with under section 2.23 (Reporting and Records). That
said, in many agreements, ‘Confidential Information’ refers to any information,
data or other matter (‘information’) disclosed to a party by, or on behalf of, another
party under the following conditions:
• Disclosure of the information by the recipient might be reasonably expected
to affect the commercial affairs of the owner of the Confidential Information;
or
• Information is marked ‘confidential’ by a party when disclosed, and provided
further that information will cease to be Confidential Information if the information
has ceased to retain its confidential nature, for example:
− Information disclosed by the recipient would no longer be reasonably expected
to affect the commercial affairs of the information owner;
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