WYJAŚNIENIA
WW/W/40/2020
Gdańsk, 21.01.2020
WYJAŚNIENIA
do treści Specyfikacji Istotnych Warunków Zamówienia
w postępowaniu publicznym o nr WW/LPB/ZP-1/2019 prowadzonym w trybie przetargu nieograniczonego na podstawie ustawy z dnia 29 stycznia 2004r. Prawo zamówień publicznych (Dz. U. z 2018r. poz. 1986 ze zm.), zwanej dalej „Ustawą”, na Zakup zapasowej boi cumowniczo przelewowej CALM.
Grupa LOTOS S.A, jako Pełnomocnik Zamawiającego (LOTOS Petrobaltic S.A. - Zamawiający) w niniejszym postępowaniu działając na podstawie art. 38 ust. 2 Ustawy informuje, iż po terminie określonym w art. 38 ust. 1 Ustawy (tj. po dniu 08.11.2019 r.) wpłynęły następujące wnioski o wyjaśnienie treści Specyfikacji Istotnych Warunków Zamówienia, zwanej dalej „SIWZ”.
EXPLAINING
of the contents of the specification of essential terms of the contract
in the procedure of granting a Public Contract, no. WW/LPB/ZP-1/2019 executed as open tendering based on the Act of 29th January 2004 Public Procurement Law (Journal of Laws 2018, item 1986 as amended), hereinafter referred to as „the Act”, for Procurement of a turntable CALM buoy.
Grupa LOTOS S.A. as a Contracting Authority Plenipotentiary (LOTOS Petrobaltic S.A. – Contracting Authority) in this Procedure based on the art. 38 p. 2 of the Act informs that after the deadline which is specified in art. 38 p. 1 oft the Act (it means after the 8th of November 2019) the Contracting Authority received the followings requests for explaining the contents of the Specification of Essential Terms of the Contract, hereinafter referred to as “SETC”.
Pytanie nr 13 Question no. 13
“Would you please consider the qualifications raised on the draft of agreement template attached?”
Odpowiedź na pytanie nr 13 Answer to question no. 13
Zamawiający nie wyraża zgody na proponowane zmiany w umowie.
The Contracting Authority does not agree to the proposed changes to the agreement template.
Pytanie nr 14 Question no. 14
“Contracting Authority requests XXX xxxxx.
Is it possible for Economic operator to offer the transportation activity at cost +20% ? DAP price will be therefore submitted integrating a provisional sum for the transport part.
Since, it is impossible to get firm price for a transport occurring 10 months after contract award, this set up is the best option for Contracting Authority to pay the right "market transport" price and therefore avoid to be charged for contingency reserves.”
Odpowiedź na pytanie nr 14 Answer to question no. 14
Zamawiający nie wyraża zgody na zaproponowane zmiany w umowie.
The Contracting Authority does not agree to the proposed changes to the agreement template.
Draft of the Agreement after change of 31.12.2019
entered into in Gdańsk on by and between:
LOTOS Petrobaltic Spółka Akcyjna with its registered office in Gdańsk at xx. Xxxxx Xxxx 0, 00-000 Xxxxxx, entered into the National Court Register maintained by the District Court Gdańsk-Północ in Gdańsk, 7th Economic Department with the number KRS 0000171101, company capital of 111,233,370.00 PLN (fully paid), Tax ID (NIP): 000-000-00-00, REGON 000000000, BDO 000015147,
represented by:
…………………………..……………………..………..,
……………………………..…………………..……….. hereinafter referred to as the “Contracting Authority” and
………………………………, represented by:
…………………………..……………………..………..,
……………………………..…………………..………..
hereinafter referred to as “Economic Operator”
hereinafter jointly referred to as “Parties”, and separately as a “Party”, while this Agreement is referred
to as “Agreement”.
This Agreement was entered into as a result of an executed public contract awarding procedure executed as open tendering, on the basis of the Act of 29th January 2004 Public Procurement Law (consolidated text Journal of Law 2019, pos. 1843) hereinafter referred to as the “Act” and enforcement acts issued on its basis.
§ 1 SUBJECT OF THE AGREEMENT
1.1. The subject of the Agreement includes supply of a turntable CALM buoy, with the following parameters:
1.1.1. buoy body diameter 12m+-1m
1.1.2. 6 x 3” chain anchoring
1.1.3. maximum 400 tons mooring force
1.1.4. 12" ANSI cl.150 hose connections
1.1.5. 6" ANSI cl.300 submarine hose connections
Includes a certificate of the marine classification society associated with International Association of Classification Societies (IACS).
1.2. The Economic Operator hereby declares that the Subject of the Agreement:
1.2.1. is ready to use,
1.2.2. is its property and is free of any material and legal defects, in particular - free of encumbrances and rights of third parties and that it is not a subject of a court proceeding, an enforcement proceeding or an imposed seizure,
1.2.3. is provided with a certificate of the marine classification society associated with International Association of Classification Societies (IACS),
1.2.4. was manufactured in …………. – country of origin ……………
1.3. Delivery costs for the Subject of the Agreement, including transport insurance, shall be covered by the Economic Operator.
1.4. The Contracting Authority shall understood as the ready to use buoy as a working buoy with a replaced bearing, painted and ready to be connected to a tanker vessel, chains, floating and submarine hoses.
2. Definitions:
Affiliates shall mean any company which controls, is controlled by or is under common control with, the P arty in question and “control” means at the possession of more than 50% of the voting rights of a company.
Completion Certificate shall have the meaning set out under Article 4.1.
Consequential loss shall mean (i) consequential or indirect loss under English law; and (ii) loss and/or deferral of production, loss of product, loss of use, loss of revenue, profit or anticipated profit (if any), in each case whether direct or indirect to the extent that these are not included in (i), and whether or not foreseeable at the effective date.
Contracting Authority Group shall mean Contracting Authority, Contracting Authority Affiliate, client if a ny, Contracting Authority and its client’s partners (if any), its and their other contractors and suppliers (to the exception of any member of Economic Operator Group) and the employees, agents and representatives of all such companies.
Economic Operator Group shall mean Economic Operator, Economic Operator Affiliate, its subcontractors and vendors (to the exception of any member of Contracting Authority Group) and the employees, agents and representatives of all such companies.
Delivery Date shall mean the anticipated date when the Subject of the Agreement or part of the Subject of the Agreement will be delivered to Contracting Authority, as further defined under Technical Proposal Appendix [xxx].
Documents shall mean sketches, drawings, calculations, reports, recommendations and the like to be provided by Economic Operator.
Taxes shall mean any national, federal, state, or municipal, income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, import/export taxes and customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.
§ 2 AGREEMENT EXECUTION DEADLINE
2.1. This Agreement shall be executed within 10 months from the effective date of this Agreement,
i.e. until ……………….
§ 3 SUPPLY AND ACCEPTANCE CONDITIONS
3.2. In order to confirm the status of an intra community product the Economic Operator is obliged to provide the T2L document on the delivery date.
3.3. The Economic Operator that delivers goods without intra community status is required to provide the Contracting Authority together with the delivery of the Subject of the Agreement the original documents necessary to perform import clearance, i.e. commercial invoice, packing list, certificate of origin and bill of lading.
3.4. The supply of the Subject of the Agreement should take place on a working day, between 07:00
a.m. - 14:30 p.m.
3.6. The Contracting Authority shall have the right to refuse acceptance of the Subject of the Contract if faults are found in the Subject of the Agreement.
3.7. The Economic Operator shall be obliged to strict cooperation with the Contracting Authority and notify the Contracting Authority of all difficulties, changes or delays of the supply.
3.8. The day on which the subject of the supply is accepted by the Contracting Authority at its registered main office shall be considered as the supply day of the Subject of the Agreement.
3.9. The Economic Operator shall enter a transport contract for the Subject of the Agreement at its own expense and risk, to the supply location indicated by the Contracting Authority and shall pay all due, related transport fees.
3.10. The Economic Operator shall ensure the required protection of the Subject of the Agreement, protecting it against damage or deterioration of quality during transport to the supply location.
3.11. During the supply to the registered main office of the Contracting Authority, the Economic Operator shall be obliged to follow safety rules effective at the sites of the Contracting Authority as of the effective date of the Agreement, the contents of which may be found in the “Safety” (“Bezpieczeństwo”) document, available on the website of the Contracting Authority, at the following address:
xxxx://xxx.xxxxx.xx/xx/000/xxxxx_xxxxx/xxx_xxxxxxxxx/xxxxx_xxxxxxxxxxx/xxxxxxxx
§ 4 ACCEPTANCE OF THE SUBJECT OF THE AGREEMENT
4.1. TheAfter the Delivery Date, when Economic Operator considers that any part of the Subject of the Agreement has been completed in accordance with the Agreement, Economic Operator shall so notify Contracting Authority and request the issuance of a Completion Certificate covering such completed part of the Subject of the Agreement in the form prescribed in Annex 3 - FORMS
( “COMPLETION CERTIFICATE”).
4.1.4.2. During the fabrication period (i.e prior to the Completion Certificate of the Subject of the Agreement) the Contracting Authority shall inspect the Subject of the Agreement and completeness of the supply at the supply location, within 30 days after the date of supply to the
registered main office of the Contracting Authority located in Gdańsk, at xx. Xxxxx Xxxx 0 (00-000 Xxxxxx) – Nabrzeże Flisaków. For avoidance of any doubts, the Contracting Authority shall not r eview and/or approve any of Economic Operator’s Documents.
4.2.4.3. The inspection of the Subject of the Agreement shall include a confirmation that the Subject of the Agreement is free of physical faults, and in particular, that it conforms to the description of the Subject of the Agreement. If objections are raised during the inspection, the Contracting Authority reserves the right to extend the deadline indicated in p. 4.2 of the Agreement. Upon completion of the specified tests of the Subject of the Agreement in accordance with the Technical Proposal described in Appendix [xxx], if applicable, that portion of the description of the Subject of the Agreement tested shall be considered completed, subject however to the terms of Economic
O perator’s warranty and guarantee in Article 5 hereof
4.3.4.4. If the Contracting Authority refuses the acceptance, in particular, because of faults of the Subject of the Agreement, no acceptance protocolCompletion Certificate shall not be preparedissued and representatives of the Contracting Authority shall provide the Economic Operator with a declaration they prepared, indicating objections regarding the Subject of the Agreement.
4.5. If Contracting Authority fails to inspect the Subject of the Agreement as required by Article 4.2 within seven (7) days following the delivery of Subject of the Agreement then Contracting Authority will deemed to have accepted the Subject of the Agreement as complete and will be deemed to have issued the required Completion Certificate even if no physical certificate is provided or issued by Contracting Authority.
4.6. Notwithstanding the issuance of the Completion Certificate the Subject of the Agreement will be deemed delivered to Contracting Authority and title and risk in the Subject of the Agreement will pass to Contracting Authority in accordance with Incoterms (Ex-Works) specified in the Technical Proposal described in Appendix [xxx].
4.7. In the event Contracting Authority elects not to take delivery of any of the Subject of the Agreement at such time as such Subject of the Agreement are offered for delivery, Economic Operator shall be reimbursed for all storage, insurance and safekeeping costs and be entitled to invoice and receive payment for the related instalment as if delivery has been made.
4.8. For the avoidance of doubt Contracting Authority shall not be entitled to take over or take delivery of the Subject of the Agreement before having paid in full the gross Agreement Value portion corresponding to the Subject of the Agreement.
4.9. Acceptance of the Subject of the Agreement does not exempt the Economic Operator from guarantee and quality warranty claims. as described in Article 5.
§ 5 WARRANTY AND WARRANTY CLAIMS
5.1. The Economic Operator shall provide a … months quality warranty for the subject of the supply from the date on which acceptance protocols for the Subject of the Agreement are signedfrom the issuance of the Completion Certificate, however, the warranty period may not be shorter than 24 months.
5.2. Warranty claims shall be presented by the Contracting Authority in a written form, immediately after the fault is discovered. The Economic Operator may be informed about warranty claims of
the Contracting Authority electronically or via fax. This form guarantees that the warranty claim deadlines are observed.
5.3. Faults revealed as a result of circumstances, for which the Economic Operator is responsible and confirmed by representatives of both Parties shall be removed by the Economic Operator, free of charge, at the time and location agreed upon with the Contracting Authority, and if such agreement cannot be reached, in particular because of the lack of consensus of the Parties, within a reasonable time indicated by the Contracting Authority. Economic Operator agrees to deliver as soon as possible CIF [TBA] new replacement of the Subject of the Agreement for parts which have been found faulty due to such defects;
5.4. If the Economic Operator does not execute works related to the warranty granted by the Economic Operator, within the time agreed upon by the Parties or if such work cannot be performed by the Economic Operator within a reasonable time related to the needs of the Contracting Authority, the Contracting Authority shall have the right to order such works to be performed at the expense and risk of the Contracting Authority, with another contractor, at prices dictated by the selection of the most favourable tender. In such a case, the Economic Operator shall be obliged to reimburse costs related to such works to the Contracting Authority.
5.5. The warranty period shall start anew from the date on which the warranty repairs end or items covered by the warranty claim are replaced.
5.5. The carrying out of the offshore repair (including the provision or cost of marine offshore vessels or any marine spread for the purposes of such repair), damage due to abnormal operating conditions exceeding design conditions, damage due to third parties, corrosion, ordinary wear and tear, and any failure or wear of consumable items are excluded from this warranty. With r espect to the floating hoses and submarine hoses and umbilicals, Economic Operator’s warranty shall be limited to the guarantees it obtains from the suppliers of such items..
5.6. The warranty hereby given shall not apply to (a) any part of the Subject of the Agreement which may have been replaced or in any way repaired or modified by any party or person other than Economic Operator or its subcontractor under the Agreement during the warranty period, (b) any construction or tangible item resulting of the use of the Subject of the Agreement by any party or person in accordance with this Agreement, other than Economic Operator or its subcontractors, or (c) any defects or faults arising out of any inaccurate data or information furnished by Contracting Authority.
5.7. Notwithstanding anything to the contrary, this warranty is in lieu of all other warranties express, implied, statutory or otherwise. Economic Operator expressly excludes any implied warranties of fitness for a particular purpose. The provisions of this Article 5 shall be the sole and exclusive remedy available to Contracting Authority for defects or faults of any kind in the services (including, without limitation, as to design, materials and workmanship) and any losses arising therefrom, regardless of cause (including, but not limited to, negligence). All terms and conditions implied by statute, common law or otherwise are excluded.
§ 6 REMUNERATION AND SETTLEMENTS
6.1. The lump sum remuneration of the Economic Operator for correct executionperformance and completion of the Subject of the Agreement shall be …. [currency] (in words, [currency] : ……
…/100) according to the tender of the Economic Operator.
[if the Agreement is entered into with an Economic Operator with a registered main office and registered in Poland]
The value listed in p. 6.1 of the Agreement shall be increased by the value added tax according to the rate effective on the date, on which the tax obligation arose.
6.2. The remuneration of the Economic Operator shall be paid in two instalments:
a) The first instalment - the advanced payment in the amount of 30% of the lump sum remuneration referred to in the point 6.1.- payable within 14 working days from the date of conclusion of the Agreement, under condition of providing of Bank/Insurance Guarantee referred to in § 7 point 7.12. of the Agreement.
The Economic Operator shall be obliged to return the advanced payment in the event of withdrawal from the Agreement, in accordance with § 10 immediately, no later than 14 working days from the event.
b) The second instalment – in the amount of 70% of the lump sum remuneration referred to in the point 6.1 shall be paid within 30 days from the date of receiving by the Contracting Authority an invoice issued not earlier than after signing without objections by both Parties the acceptance protocolCompletion Certificate for the Subject of the Agreement and acceptance of the Subject of the Agreement at the location indicated by the Contracting Authority referred to in § 3 p. 3.1
6.3. The remuneration as well as the prepayment refer to in point 6.2 ch. a) shall be paid as bank transfer to the bank account of the Economic Operator no. ………….
[if the Agreement is entered into with an Economic Operator with a registered main office and registered in Poland]
The remuneration shall be paid using the divided payment method to the bank account of the Economic Operator no. ………….
Because of the split payment mechanism, the VAT shall be paid only in Polish currency, to the bank account operated according to Polish banking law.
The Economic Operator hereby declares that the bank account number listed above:
▪ is included in a list indicated in art. 96 b of the VAT Act,
▪ is valid, and the Economic Operator shall be obliged to inform immediately (however, not later than within 1 day after such a change) if the number of the bank account to which the payment should be made changes, in writing, under the pain of nullity.
Change of bank account number do not require an Annex to the Agreement, but only a written notification of the Economic Operator about such a change, signed according to representation rules.
If the bank account of the Economic Operator, to which the payment should be made is not included in the list indicated in art. 96 b of the VAT Act, Customer shall have the right to withhold payments until the date on which the bank account of the Economic Operator indicated for payments is included in the list, and the withdrawal period of payment shall not be considered a delay or a default regarding the payment.
The date on which the bank account of the Contracting Authority is debited shall be accepted as the payment date.
6.4. The Economic Operator shall deliver the invoice to the registered main office off the Contracting Authority or shall send the invoice electronically from the e-mail address of the Economic Operator indicated in § 12 p. 12.2 of the Agreement, to the address: xxxxxxx@xxxxxxxxxxxxxxxx.xx. The Economic Operator shall be obliged to specify the number of the ContractAgreement and the person responsible on behalf of the Contracting Authority for Agreement execution, specified in § 12 of the Agreement. The date on which the bank account of Contracting Authority is debited shall be accepted as the payment date.
[if the Agreement is entered into with an Economic Operator with a registered main office and registered in Poland]
The Economic Operator shall be obliged to compensate the Contracting Authority all negative financial consequences, including loss of the right of the Contracting Authority to deduct the VAT tax, caused by non-conformity with the aforementioned conditions or caused by circumstances indicated in art. 88 p. 3a or art. 96 p. 9 and 9a of the Act of 11th March 2004 on value added tax.
The Economic Operator hereby declares that it is a registered, active VAT payer and is not a small taxpayer paying takes using the cashier method as understood according to the Act of 11th March 2004 on VAT, and in the case of any changes to its status, the Economic Operator shall be obliged to inform the Contracting Authority about such changes under the pain of bearing all negative consequences related thereto.
6.5. The gross Agreement Value does not include any Taxes, duties, fees or permits of any type whatsoever (including but not limited to income, withholding, sales and excise taxes and customs duties) levied on the Subject of the Agreement or part thereof or on the sale, assembly or delivery thereof to Contracting Authority, all of which shall be for the account of Contracting Authority and, if assessed against Economic Operator, shall be reimbursed by Contracting Authority. Such reimbursement, if applicable, shall be paid in the currency of the Agreement in the equivalent amount of such taxes at the official rate of exchange on the date Economic Operator paid such taxes, against Economic Operator production of documentary proof of the taxes paid.
6.6. Cessation of amounts due to the Economic Operator by virtue of entering this Agreement requires a written approval of the Contracting Authority under the pain of nullity. The Economic Operator may not transfer its rights and obligations resulting from the Agreement onto third parties...
6.7. If Contracting Authority disputes any items on any invoice in whole or in part or if the invoice is prepared or submitted incorrectly in any respect Contracting Authority shall, within thirty (30) days of receipt of such invoice, return a copy of the invoice to Economic Operator advising Economic Operator of the reasons and requesting Economic Operator to issue a credit note for the unaccepted part or whole of the invoice as applicable. Contracting Authority shall be obliged to pay only the undisputed part of a disputed invoice.
6.8. Contracting Authority shall not be entitled to withhold monies due to Economic Operator under any other contracts with Contracting Authority as set off against disputes under the Agreement, nor shall it be entitled to withhold monies due under the Agreement as set off against disputes under any other contract.
6.9. Late payment shall bear interest at the rate of LIBOR + 4% per month. In the event of a delay in payment, Economic Operator shall be entitled to extend the period of delivery by a period equal to the extent of the delay, without prejudice to any other rights which Economic Operator may have in the event of such default. For the avoidance of doubt, Economic Operator shall not be required to start the performance of the Subject of the Agreement before receipt of Contracting Authority’s payment of the first invoice.
6.5.6.10.
§ 7 SECURITY OF CORRECT EXECUTION OF THE AGREEMENT AND ADVANCED PAYMENT
GUARANTEE
7.1. The Economic Operator shall provide a security of correct execution of the Agreement at its own expense, in the amount of 5% of the gross Agreement Value for the Subject of the Agreement, i.e. ........................... [currency] (in words: )
hereinafter referred to as “Security”. This security covers claims related to the Agreement not being executed or being executed incorrectlyin accordance with the Agreement.
7.2. The security for the Agreement shall be submitted according to art. 148 p. 1 of the Act in the form of ....................................of a Bank Guarantee as attached in Appendix [ …] on the effective date of the Agreement at the latest. Cash securities
should be paid by the Economic Operator as a bank transfer, to the following bank account of the
Contracting Authority ……………
7.3. The Security for the Agreement shall be returned by the Contracting Authority as follows:
7.3.1. 70% of the Security value shall be returned within 30 days after the Contracting Authority signs, without objections, the final acceptance protocol indicated in § 3 p. 3.3 of the Agreementissuance of the Completion Certificate.
7.3.2. 30% of the Security value shall be returned within 15 days after the end of the fault guaranteewarranty period as defined in Article 5.
7.4. If the Economic Operator provides security as a guarantee, it shall be irrevocable, payable on the first request, unconditional, prepared in the form and with the contents previously approved by the Contracting Authority. as described in Appendix […]..
7.6. If the required amendments to the Security, indicated in p. 7.5 above are not delivered, the payment deadline of partial remuneration due to the Economic Operator, up to the amount equal to the amounts of the aforementioned guarantees or other forms of Security shall begin on the day on which the Economic Operator submits the required Security.
7.7. The Contracting Authority shall be obliged to destroy security records indicated in this paragraph at the end of their validity period. Record destruction shall be performed by a committee designated by the Contracting Authority and confirmed with a written record destruction protocol, signed by all committee members. The Contracting Authority shall notify the Economic Operator in writing about the record destruction. A protocol from record destruction shall be available to the Economic Operator for inspection at the registered main office of the Contracting Authority for a period of 6 years after the end of the guarantee and warranty period.
7.8. The Parties agree that the form of Security may be changed during the Agreement execution period to one prepared in the form and with contents previously approved by the Contracting Authority, according to effective legal regulations and to this Agreement. The change of the Security form takes place with retained continuity of the Security and without a decrease of its amount.
7.9. If the Security was deposited in cash, the Contracting Authority shall retain the Security in a bank account with an interest rate applied. The Contracting Authority shall return a cash Security, including interests as specified in the contract for the bank account in which the Security was stored, with deducted current costs of the bank account and bank commission for the cash transfer to the bank account of the Economic Operator.
7.10. The Contracting Authority shall have the right to deduct contractual penalties and other compensation due to the Contracting Authority for lack of execution or incorrect execution of the Agreement by the Economic Operator from the Security, as well as from other amounts due to the Economic Operator.
7.11. If the tender bond is submitted in cash, the Economic Operator may agree to credit the tender bond amount towards the Security.
7.12. As the advance payment guarantee the Economic Operator shall provide the Contracting Authority no later than till the date of the advance payment with an irrevocable, payable on first demand, unconditional, made in writing with the satisfactory content for the Contracting Authority Bank/Insurance Advance Payment Guarantee, constituting the security of the return by the Economic Operator of 100% of the advance payment referred to in § 6 point 6.2. ch.a) together with the statutory interest for each day from the day of transferring the advance payment to the Economic Operator to the day of its return by the bank/insurer due to the granted Bank/Insurance advanced payment guarantee. The advanced payment guarantee shall be valid until the acceptance of the Subject of the Agreement according to § 4 of the Agreement. The delivery of advanced payment guarantee is a condition of making the advance payment.
§ 8 PENALTIES
8.1. The Economic Operator shall pay the Contracting Authorities penalties for not executing or incorrect execution of contractual obligationsliquidated damages for late delivery, as follows:
8.1.1. 0.01% of the Agreement gross value for everyper day,
8.1.8.2. up to a maximum of supply delay,3% of the Agreement gross value, provided that no such liquidated damages shall be due for any period where Contracting Authorities has suffered no loss f rom Economic Operator’s delayThe above liquidated damages represent a genuine, reasonable pre-estimate of the losses likely to be suffered by Contracting Authorities in the event of delay, are not in a nature of penalty and shall be Economic Operator only liability (regardless of cause, including for negligence) for delay including late delivery of the Subject of the Agreement.
9.0.0. 15% of the g value indicated in § 6 for Agreement termination or withdrawal of the Economic Operator from the Agreement for reasons the Economic Operator is responsible for.
10.0. The Contracting Authority shall have the right to claim compensation in excess of the value of contractual penalties.
11.0. The Contracting Authority shall have the right to deduct the imposed contractual penalties from the remuneration of the Economic Operator. The Contracting Authority shall inform the Economic Operator in writing about the deduction, within 7 days.
§ 12§ 9 F
ORCE MAJEURE
9.1. Neither of the Parties shall be liable for untimely or incorrect execution of their obligations, if circumstances of force majeure are the cause of such untimely or incorrect execution of obligations. Force majeure shall be understood as any event which could not have been foreseen by the Parties upon Agreement signing and which the Party could not prevent using economically reasonable means, and which significantly impedes or prevents meeting any of the obligations of a Party. Force majeure should be understood, in particular, as: act of God, natural disasters (fires,
floods), acts of war, riots, general strikes, law changes, outbreaks, strikes, lockouts, walkouts, accidents, freight embargoes, acts of public enemy, civil disturbances, local community disturbances, terrorism, piracy, epidemic/pandemics, acts of any governmental authorities (civil or military) otherwise having jurisdiction over Economic Operator, or currency, import, export, personnel, labour or political restrictions affecting performance under the Agreement, delays or deficiencies of subcontractors due to force majeure.
.
9.2. The Party shall be obliged to immediately inform the other Party about the occurrence, estimated duration and disappearance of force majeure.
9.3. The Parties shall agree upon new conditions of partial Agreement execution, taking into account, in particular, adequate change of the deadline of partial Agreement execution, immediately after force majeure circumstances cease.
9.4. Obligations of Contracting Authority and Economic Operator to pay amounts due to the other party under the Agreement shall not be excused by events of force majeure.
9.5. Either Party may terminate this Agreement if a force majeure event prevents or delays performance of this Agreement for a period six (6) months or more. In case of termination for force majeure, Contracting Authority shall pay to Economic Operator all of the work performed up to the date of termination, in accordance with the terms of the Agreement and any reasonable, associated direct c osts necessarily incurred by Economic Operator in complying with Contracting Authority’s instructions in regard to such termination.
§ 13§ 10 W
ITHDRAWAL, TERMINATION
10.1. Except cases provided for in legal regulations, theThe Contracting Authority shall have the right to withdraw fromterminate the Agreement in a manner and according to rules specified in art. 145 and 145a of the Act, i.e., respectively:for Contracting Authority’s convenience.
10.1.1. if a significant circumstance occurs and causes the Agreement no longer to be in public interests, and such circumstance could not have been foreseen upon Agreement signing, or if continued execution of the Agreement may threaten significant national safety interests or public safety. The Contracting Authority may then withdraw from the Agreement within 30 days after it becomes aware of such circumstances, and
10.1.2. if at least one of the following circumstances occur:
(i) a change to the Agreement was made, which violates stipulations of art. 144 p. 1– 1b, 1d and 1e of the Act
(ii) the Economic Operator was subjected to exclusion from the procedure upon Agreement signing according to art. 24 p. 1 of the Act,
(iii) the European Court of Justice concluded that within the procedure provided for in art. 258 of the Treaty on Functioning of the European Union, the Polish state violated its obligations dictated by Treaties, by the Directive 2014/24/EU and Directive 2014/25/EU, because of the fact that the Contracting authority granted the Agreement in violation of legal regulations of the European Union.
In the cases indicated above, the Economic Operator may only claim remuneration due to it for partial execution of the Agreement. Contracting Authority shall also pay Economic Operator any reasonable, associated direct costs necessarily incurred by Economic Operator in complying with Contracting A uthority’s instructions in regard to such termination including but not limited to:-
1. The Contracting Authority shall have the right to terminate the Agreement immediately in the case of repeated (i.e. occurring at least twice over a period of six months), incorrect provision of supplies, if particular if the deadline is violated or if the quality of the supplied Subject of the Supply is inadequate.demobilisation charges of personnel and goods from the worksite;
2. cost of any goods or any items or equipments already purchased or ordered by Economic Operator for the Subject of the Agreement, the delivery of which Economic Operator is committed to;
3. all cost of cancelling/terminating any subcontracts Economic Operator has placed or committed to for the Subject of the Agreement;
4. an amount equivalent to twenty per cent (20 %) of the value of the Subject of the Agreement not yet performed at the date of termination (exclusive of profit).
10.2. The Contracting Authority shall have the right to terminate the Agreement if Economic Operator is in material default of the Agreement and fails to commence to remedy such breach within thirty (30) days after receipt of written notice from Contracting Authority requiring that it be remedied and thereafter continuously proceed with action reasonably satisfactory to Contracting Authority; or if Economic Operator becomes bankrupt or presents a petition in bankruptcy, makes an arrangement with or assignment in favour of its creditors or a receiver is appointed over any of its assets.
10.3. Economic Operator shall have the right to suspend its performance of the Subject of the Agreement where Contracting Authority has failed to pay an amount properly due and owing by Contracting Authority under this Agreement (and not the subject of a bona fide dispute) within thirty (30) days of it falling due.
10.3.10.4. Withdrawal from the Agreement or its termination shall take place in writing, with a justification, under the pain of nullity of such declarations.
§ 14§ 11 C
HANGES TO THE AGREEMENT
11.1. With the exception of situations provided for in the Agreement, changes to the contents of this Agreement require a written form under the pain of nullity and may take place only if both Parties agree.
11.2. The Contracting Authority allows changes to the Agreement according to rules specified in art.
144. p. 1 of the Act.
11.3. Except for cases described in 11.2 of the Agreement, the Contracting Authority allows the following changes to the contents of the Agreement:
11.4.0. changes related to re-structuring of the Contracting Authority, 11.5.0. changes are necessary because of legal changes,
11.6.0. the rate of value added tax changes,
11.7.0. changes are related to transfers of rights onto the indicated entity, 11.8.0. changes are related to entities indicated in art. 36b p. 2 of the Act,
11.9.0. if a warranty period is extended by a manufacturer after Agreement signing,
11.10.0. in relation to a decrease of remuneration of the Economic Operator and rules of payment of such remuneration in a situation, in which such changes are dictated by
circumstances which could not have been foreseen upon Agreement signing or if such changes are beneficial for the Contracting Authority, in particular if the scope of the subject of the Agreement becomes limited,
11.11.0. if it is possible to supply newer equipment (with improved parameters) to the Contracting Authority, compared to the equipment available upon Tender submission.
11.2. All aforementioned changes to the Agreement may not change the nature of the Agreement according to art. 144 p. 1 e) of the Act.Where changes occur in law, legislation or regulations (including the requirements of the classification society or the relevant flagging authority and any tax laws or regulations) having the force of law and which affect the cost or time of performance or performance of the Agreement or where the usual or historical manner of application or interpretation of such particular law or regulation changes or alters in any way from the date of
r emittance of Economic Operator’s offer for the Subject of the Agreement such as to affect the cost or time of performance or performance of the Agreement , Economic Operator shall notify Contracting Authority of the occurrence of such a change and Economic Operator shall be entitled to reimbursement of additional cost and/or time for the same. Where such requires modifications to the Subject of the Agreement in order for Economic Operator to perform the Subject of the Agreement, then Contracting Authority shall reimburse Economic Operator the net actual substantiated costs.
§ 15§ 12 R
EPRESENTATIVES OF THE PARTIES
12.1.2. ………., tel.: …………………………., e-mail: …………………………….
12.2.2. ………., tel.: …………………………., e-mail: …………………………….
12.3. Changes of persons indicated in p. 12.1 - 12.2 of the Agreement above shall be notified by the Parties immediately. The obliged Party shall be liable for damage caused by not meeting the aforementioned obligation.
12.4. The change of persons indicated in p. 12.3 of the Agreement above does not require an annex.
§ 16§ 13 C
ORPORATE SOCIAL RESPONSIBILITY (CSR)
13.1. The Contracting Authority, as a member of LOTOS Capital Group, operates with accepted responsibility for consequences of its operation and applies uniform standards in evaluation of ethical conduct of its staff and of third parties, respects human rights, observes labour law and respects the environment.
The Contracting Authority respects human rights within the entire chain of values presented in its business operation. In the spirit of responsibility for the life of community and of care for common good, the Contracting Authority undertakes activities related to care for legal regulations and rules in its business activity, including international rules taking into account the Corporate Social Responsibility concept (CSR). The Contracting Authority undertakes activities related to shaping of appropriate economic and social relationships. The Contracting Authority acts to create a work environment based on mutual respect and tolerance. The Contracting Authority ensures personal data protection and discretion to everyone who decides to report suspected violations of rules
outlined in the “Code of Ethics of LOTOS Capital Group” effective within the Contracting Authority, or violations of other regulations related to the Corporate Social Responsibility concept implemented and applied by the Company.
Contents of the “Code of Ethics of LOTOS Capital Group” may be found at
Both Parties shall uphold the highest standards of business ethics and human rights respect in the performance of the Agreement and shall abide by the US Foreign Corrupt Practices Act 1977, the UK Xxxxxxx Xxx 0000, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997 and any other applicable anti-corruption, anti-trust, anti- money laundering and anti-slavery legislation.
13.2. The Economic Operator hereby declares that to the best of its knowledge on the date of Agreement signing, no conflict of interests potentially preventing it from duly Agreement execution, influencing its neutrality, quality of its work or services, independence or reliability exists.
The Economic Operator hereby declares that it shall be obliged to take all due care within the scope required within its regular business activity and to undertake actions aimed at avoidance of conflict of interests.
The Economic Operator hereby declares that during the period of Agreement execution, in cases of suspected risk of potential conflict of interests impacting the declaration indicated above, it shall immediately inform the Contracting Authority about such suspicions, indicating its justification and recommended, all required activities intended to prevent such a conflict, taking into account the widely understood interests of the Contracting Authority and business ethics rules it applies.
13.3. The Economic Operator hereby declares that it has not offered or transferred any material or personal benefits in order to influence the decision of the Contracting Authority on selection of its offer. It has not influenced the choice of the Contracting Authority in an illegal manner or in a manner contradicting good customs and has not participate in any negotiations or agreements with other third parties which intended to impact the choice of the Contracting Authority. The Economic Operator hereby declares that no part of its remuneration due in relation to Agreement execution shall be used to cover the costs of providing the aforementioned material and/or personal benefits by any of the Parties.
13.4. The Economic Operator hereby declares that it observes effective legal regulations related to widely understood environmental protection, in particular, in regards to obtaining the required permits, applications and provision of information and that it respects the limits on the use of environment, use of economic potential of cyclical economy, in particular related to due waste management. In addition, the Economic Operator hereby declares that it acts according to the rule of sustained development and undertakes activities limiting the negative impact of its business operation on the environment;
13.5. The Economic Operator hereby declares that it observes effective legal regulations related to its business activity and employment, in particular the Labour Law Code and enforcement acts issued on its basis.
13.6. The Economic Operator hereby declares that it includes social issues in its business activity and aims at maximum integration of social, environmental, ethical values and values related to human rights with its own operation and operation of other stakeholders and of the society as a whole.
13.7. Taking into account correct execution of the Agreement, in particular - the quality of executed works, occupational safety and environment protection, the Contracting Authority reserves the right to audit the Economic Operator within the scope of the subject of the Agreement. (excluding proprietary financial information) and for a period of two years maximum after its termination or expiration. Such activities are intended to verify that requirements specified in contractual documents and other documents provided as necessary to be observed are met, together with relevant legal regulations and standards effective during Agreement execution.
§ 17§ 14 P
ERSONAL DATA PROTECTION
14.1. The Parties as independent data administrators shall make personal data of their representatives and of other persons related to execution of the Agreement mutually available for the purpose of execution of the Agreement, depending on the needs resulting from stipulations of this Agreement, including the following data categories: identification data (i.e. name, surname, position), contact data (i.e. company e-mail address, company telephone number, work location).
14.2. The Parties shall be obliged to inform individuals listed in p. 1 about the need to transfer their data as required for the purpose of Agreement execution, including information regarding the purpose and scope of data provision, as well as about the source of the obtained personal data, not later than one month after acquisition of personal data or during the first communication with the given individual.
14.3. Each of the Parties shall be obliged to secure personal data by undertaking required technical and organisational measures required according to effective legal regulations related to personal data protection, and shall be responsible for damage related to personal data processing.
14.4. The personal data administrator as understood according to art. 4 p. 7 of the Regulation of European Parliament and of the Council (EU) 2016/679 of 27th April 2016 on protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (general data protection regulation – hereinafter referred to as
„GDPR”), for data transferred to LOTOS Petrobaltic S.A. for the purpose of entering and executing the Agreement is LOTOS Petrobaltic S.A. with its registered main office located at: xx. Xxxxx Xxxx 0, 00-000 Xxxxxx.
14.5. LOTOS Petrobaltic S.A. designated a personal data Inspector, who can be contacted via e-mail at: xxx@xxxxxxxxxxxxxxxx.xx or in writing, to the following address: LOTOS Petrobaltic S.A. xx. Xxxxx Xxxx 0, 00-000 Xxxxxx with a note „Data protection inspector”.
14.6. The collected personal data shall be processed for purposes related to the Agreement entering and execution, its handling and potential claims or defending claims related to the Agreement, as well as to meet legal obligations of LOTOS Petrobaltic S.A.
14.7. The legal basis for processing of personal data of the other Party by LOTOS Petrobaltic S.A. for the aforementioned purposes includes:
a) fulfilment of legal obligations of LOTOS Petrobaltic S.A. according to art. 6 p. 1 ch. c of GDPR, related i.e. to tax regulations and accounting regulations,
b) legally justified interest of LOTOS Petrobaltic S.A. according to art. 6 p. 1 lit. f of GDPR.
14.8. Personal data received from the other Party may be transferred to the following categories of recipients:
a) entities processing personal data on the order of LOTOS Petrobaltic S.A., including i.e. operators of IT systems used for the purpose of Agreement execution, providing accounting and archiving services,
b) entities providing services to the given Party, including courier delivery and postal service companies (in relation to the required notifications sent as specified in the Agreement), legal, financial advisers and auditors of the Parties (in relation to the provision of advisory services during signing, execution and enforcement of claims resulting from the Agreement),
wherein such entities process data according to contracts entered into with LOTOS Petrobaltic
S.A. and only according to its instructions. Data may also be provided to entities authorised by law, including tax agencies and authorities.
14.9. Data shall be processed throughout the period of Agreement execution and after Agreement termination, for a period related to expiry of claims related to the Agreement and for a period of time reserved in legal regulations, including tax regulations and financial reporting regulations.
14.10.Each of the persons, personal data of whom are made available by and between the Parties in relation to signing and execution of the Agreement, shall have the right to access their data and to correct, remove, limit processing of such data and to raise objections based on reasons related to their special circumstances, if LOTOS Petrobaltic S.A. processes data on the basis of its legally justified interests. Such an objection may be expressed at any time, to the electronic mail address xxx@xxxxxxxxxxxxxxxx.xx or in writing, to the address of LOTOS Petrobaltic S.A. xx. Xxxxx Xxxx 0, 00-000 Xxxxxx with a note „Data protection inspector”.
14.11.Each and every person shall also have the right to report a complaint to the President of the Personal Data Protection Agency.
14.12.Personal data shall not be profiled and used in automated decision making.
§ 15 § LIABILITIES AND INDEMNITIES
15.1 Economic Operator shall defend, indemnify and hold Contracting Authority Group harmless against all claims for any injury to or death of any person employed by Economic Operator Group and for any loss or damage to property whatsoever of Economic Operator Group arising out of or are in any way connected with the performance of the Agreement (howsoever caused and whether or not caused or contributed by the negligence, breach of duty or strict liability of Contracting Authority Group), and against all claims whatever in that connection.
15.2 Contracting Authority shall defend, indemnify and hold Economic Operator Group and its vendors and sub-contractors harmless against all losses and claims for injury to or death of any persons employed by Contracting Authority Group, for any loss or damage to property of Contracting Authority Group, arising out of or in any way connected with the performance of this Agreement (howsoever caused and whether or not caused or contributed to by the negligence, breach of contract or duty or strict liability of Contracting Authority Group), and against all claims whatever in that connection.
15.3 Contracting Authority shall defend, indemnify and hold Economic Operator and its subcontractors harmless against all costs (including clean-up costs) and claims for injury or damage to any person or property whatsoever (excluding the property of Economic Operator) which results from pollution or contamination caused by the discharge or escape of oil or of other pollutants or contaminants arising out of or in any way connected with the performance of the Subject of the Agreement howsoever caused and whether or not caused in whole or in part by the negligence, breach of contract or duty or strict liability of Economic Operator Group.
15.4 Notwithstanding any provision to the contrary elsewhere in the Agreement (save for Article 15.3) and except to the extent of any agreed liquidated damages (including without limitation any predetermined termination fees) provided for in the Agreement, and without prejudice to Article 15.3, neither Economic Operator nor Contracting Authority shall be liable to the other for its own Consequential loss howsoever arising in connection with this Agreement. Economic Operator shall
save, indemnify, defend and hold harmless Contracting Authority Group from Economic Operator
G roup’s own Consequential Loss and Contracting Authority shall save, indemnify, defend and hold
h armless Economic Operator Group from Contracting Authority Group’s own Consequential Loss, in either case arising from, relating to or in connection with the performance or non-performance of the Agreement, howsoever caused and whether as a result of negligence, breach of contract or duty or otherwise.
1 5.5 Economic Operator’s overall liability under the express or implied terms of the Agreement or at law or in any other way under any circumstances (including breach of contract or duty or negligence), shall b e limited to fifty percent (50%) of the Agreement gross value. This limit excludes Economic Operator’s liability arising out from Article 15.1.
§ 16 INSURANCE
16.1 Economic Operator shall procure at its own expense and maintain throughout the duration of the Agreement insurance covering the full value of the Agreement gross value for loss or damage occurring prior to delivery of the Subject of the Agreement.
16.2 Contracting Authority shall obtain that its insurers waive all rights of subrogation against Economic Operator Group.
16.3 Each Party shall take out appropriate insurance in respect of their obligations and liabilities under the Agreement, naming the other Party as co-insured where appropriate and with waiver of subrogation in favour of the other Party, in each case, to the extent of liabilities specifically assumed hereunder.
§ 17 CONTRACTING AUTHORITY SUPPLIED INFORMATION
Economic Operator shall be entitled to rely upon the adequacy, completeness and accuracy of C ontracting Authority’s supplied data, including supplied data in relation to atmospheric, meteorological, topographical, marine, oceanographic, hydrological conditions, bathymetry, seabed status, geotechnical and soil data (and existing facilities on the site of operation and the like). In the event that any of such information is inadequate, incomplete or inaccurate and thereby affects the cost and/or timing of Contracting Authority’s performance of the Subject of the Agreement, then Economic Operator shall be compensated by way of a change order for any additional cost and/or delay which arises therefrom. If Economic Operator especially identifies Contracting Authority’s supplied data to be provided by a s pecific date Contracting Authority does not provide such Contracting Authority’S supplied data by such specific date Economic Operator shall also be compensated by way of a change order.\
§ 18 OTHER STIPULATIONS
15.1. The Economic Operator hereby declares that it is not bankrupt or subject to liquidation, to reparation proceeding has started against it and that no basis for rising a bankruptcy or liquidation claim against it or for starting a repair proceeding.
15.2. The Economic Operator hereby declares that it obtained approval of all persons it shall engage in Agreement execution, for processing of their personal data for the needs of such execution by the Contracting Authority.
15.3. With the exception of stipulations of the Agreement stating otherwise and clearly indicated, changes to the Agreement may be made only in the form of a written annex signed by both Parties, under the pain of nullity.
15.4. If stipulations of any paragraph, article, part or sentence of the Agreement becomes invalid, ineffective or otherwise unenforceable, it shall have no effect on the validity of other parts, sentences of this paragraph or on any other paragraph of the Agreement.
15.5. The Economic Operator shall not transfer its contractual rights and obligations without a prior approval of the Contracting Authority which shall not be unreasonably withheld, expressed in writing under the pain of nullity, in particular, it shall not cede its due payments of remuneration it is entitled to according to the Agreement without such an approval. The transfer of rights or obligations indicated in the Agreement without an approval of the Contracting Authority indicated in the previous sentence shall have no effect on Contracting Authority. The Contracting Authority shall have the right to transfer its contractual rights and obligations onto companies from the capital group of the Contracting Authority or from Grupa LOTOS S.A. Capital Group, and the Economic Operator hereby irrevocably agrees to such a transfer. The Contracting Authority shall notify the Economic Operator in writing about a transfer of contractual rights and obligations.
15.6. The Contracting Authority may cede its contractual rights or transfer its contractual obligations (or a part thereof or a share therein) or to create a security on them for the benefit of a bank or another financial institution (or a security agent designated by such entities) without the need of a prior approval of the Economic Operator (regardless of its form), with the exception that the Economic Operator shall be informed about such situations. The Economic Operator hereby irrevocably agrees to the stipulation abovewith the need of a prior approval of the Economic Operator (regardless of its form), ), which shall not be unreasonably withheld This Agreement is governed by English law. All disputes arising in connection with the Agreement or breach thereof, or any non-contractual obligations, shall be settled by arbitration, unless agreement in writing has been reached between the parties within thirty (30) days after any such dispute has arisen. Arbitration shall be conducted in London in accordance with the rules of arbitration of the London Court of International Arbitration (hereinafter called "LCIA"), by one or more arbitrators appointed in accordance with the rules of the LCIA, unless by written agreement the Parties adopt other rules.
15.7. This Agreement is governed by Polish law. All disputes which may arise in relation to the execution of the Agreement shall be settled by a common court appropriate for the registered main office of the Contracting Authority.
15.8.15.7. All changes of this Agreement may be made only in the form of a written annex and require approval of both Parties under the pain of nullity
15.9. Regulations of the Civil Law Code and of the Public Procurement Law Act shall apply to all matters not regulated by this Agreement.
15.8. All plans, drawings, designs and specifications, including any Documents which may be supplied by Economic Operator to Contracting Authority shall remain the property of Economic Operator and any information derived therefrom or otherwise communicated to Contracting Authority shall be regarded as strictly confidential, to be used exclusively by Contracting Authority for the performance of the Subject of the Agreement supplied under the terms of the Agreement and shall not be disclosed to any third party or made use of by Contracting Authority or any third party except in connection with the performance of the Agreement. Further, all of such information shall be returned to Economic Operator on demand, with no copies being retained by Contracting Authority.
15.10.15.9. This Agreement has been prepared in two identical copies, one for each of the Parties. 15.11.15.10. The following documents are integral parts of the Agreement:
15.11.1.15.10.1. SETC,
15.11.2.15.10.2. Tender of the Economic Operator,