Appendix 3 to
AO/1-6327/10/NL/US
Page 1
European Data Relay System Phase B/C/D/E1
C O N T R A C T
Between:
The EUROPEAN SPACE AGENCY
(hereinafter called "the Agency" or "ESA"),
located at:
8-10 rue Mario Nikis, 75738 Paris Cedex 15, France,
through its European Space Research and Technology Centre
Keplerlaan 1, 2201 AZ Noordwijk, the Netherlands,
represented by Mr. Jean-Jacques Dordain, its Director General,
of the one part
and:
….
(hereinafter called “the EDRS Operator” or “………...”),
whose Registered Office is at:
…………………………………………………………,
represented by…………………………………………
of the other part
PREAMBLE
WHEREAS:
-……………………
- ……………………
- ……………………
NOW THEREFORE, the parties have agreed as follows:
DEFINITIONS
AD plus 2-digit number:An Applicable Document listed in chapter 2.1 of the Statement of Work
ASI: The Italian Space Agency
EDRS:European Data Relay System, consisting of an EDRS-A in geostationary orbit, an EDRS-C in geostationary orbit, an EDRS Mission and Operations Ground Segment and an EDRS User Ground Segment
EDRS-A: A data relay payload embarked as piggyback payload on a geostationary satellite; further details are specified in chapter 6.2 of the Statement of Work
EDRS-C:A data relay payload on a shared satellite platform in geostationary orbit; further details are specified in chapter 6.3 of the Statement of Work
EDRS-C satellite: The satellite encompassing, inter alia, EDRS-C
EIRP: Equivalent Isotropically Radiated Power
ESB: EDRS Steering Board
LCT: Laser Communication Terminal
Opportunity Payload: An Italian telecommunication payload provided as an Agencyundertaking, to be embarked on the EDRS-C satellite[ only if included in the EDRS Operator’s Proposal]
Reliable Launcher: A launcher which has performed successfully two consecutive GTO launches in the same launch configuration prior to signature of the launch service subcontract
ARTICLE 1 –EDRS OPERATOR’S UNDERTAKINGS
1.The EDRS Operator undertakes to:
- build the EDRS, deploy the EDRS Mission and Operations Ground Segment and EDRS User Ground Segment, launchthe EDRS-A and the EDRS-C satellite[*and the Opportunity Payload] into geostationary orbit atorbital positions ..degrees East/West and..degrees East/West respectively,and commission the EDRS [*and the Opportunity Payload];
- perform a user commissioning of the Sentinel 1A and 2A satellites to become validated users of the EDRS;
- keep the EDRS operational and available for data relay services to European and Canadian users during the useful life of the EDRS-A and EDRS-C. [*Operation and exploitation of the Opportunity Payload shall be governed by the provisions of a separate agreement between the EDRS Operator and ASI.]
[*Save for the Agency undertaking specified in Article 2 below,]The EDRS Operatorshall carry out all worknecessary to achieve the objectives mentioned above, including but not limited to system definition, design, development, manufacturing, assembly, integration, verification, obtaining of ITAR clearance and frequency licenses, insurance, launch, placement into geostationary orbitand commissioning.
The work shall be performed in accordance with the following documents, including anyApplicable Documents called out therein, which constitute an integral part hereof and are listed in their order of precedence in case of conflict:
(a)The Articles of thiscontract (also referred to as “the Contract” hereinafter);
(b)Financial Matters(Appendix 1);
(c)The General Clauses and Conditions for ESA Contracts, ref. ESA/C/290, revision 6 (Part II: Option B),hereinafter referred to as “General Conditions” and available on it being understood that the EDRS Operator is the Contractor in the sense of those General Conditions;
(d)The Statement of Work ref. DTIA/19660-2010/JSissue1 dated 23 February 2010 (Appendix 2);
(e)The Applicable Documents specified in chapter 2.1of Appendix 2;
(f)The EDRS Operator’s proposal ref.…submitted under coverletter dated …, in this contract referred to as “the Proposal”, not attachedhereto but known to both parties.
*Opportunity Payload related text within [ ] above and below will be removed if the EDRS Operator’s Proposal does not include the Opportunity Payload.
2.The EDRS Operator shall insure the EDRS-C satellite against loss during launch and during the first year of in-orbit operation.For the purpose of this Article 1 a satellite shall be deemed lost
- if it has a service life which, at any point in time, is predicted to be less than six years,including the number of years that have already occurred since the date ofcompletion of its in-orbit commissioning, or
- if it has, at any point in time, fewer than 50% of its EIRP specified for the feeder link inAD 08.
The EDRS Operator shall provide the Agency with a copy of the insurance policy at the latest 3 months before the planned launch date of the EDRS-C satellite.
One year from EDRS commissioning the EDRS Operator shall take out athis own cost an insurance covering the loss of the EDRS-A and the EDRS-C satellite during the following 10 years. The EDRS Operator shall provide the Agency with a copy of the insurance policy within 2 weeks from the due date for the taking out of this insurance.
3.The EDRS Operator’s undertakings laid down in paragraph 1 above shall be limited as follows:
3.1In case of loss of the satellite hosting EDRS-Aduring or any time after launchfor reasons outside the EDRS Operator’s responsibility, any remaining obligations of theEDRS Operatorrelated to EDRS-A shall cease to exist, except for any obligation to pay a penalty as per Article 9 Clause 28.
3.2In case of loss of the EDRS-C satellite in the time period between launch and the end of the first year of in-orbit operation, the EDRS Operatorshall either build and launch another EDRS-C satellite [*with or without another Opportunity Payload, at the Agency’s choice], or pay to the Agency the share of proceeds from the insurance as per paragraph 2 above which corresponds to the Agency’s contribution to the insurance premium, i.e. .. %. The said payment shall fall due in case the EDRS Operator either declaresnot to build and launch another EDRS-C satellite or fails to take any of the steps necessary to effect such launch within 30 months from loss of the EDRS-C satellite.
ARTICLE 2 – AGENCY’S UNDERTAKINGS
0.Information to bidders: There will be no Agency undertaking unless the bidder chooses to fly the Opportunity Payload specified in the Statement of Work, AD 10 (payment of the amount to be stipulated in Article 3 does not count as “Agency undertaking” in the sense of Article 2).
1.General Principle
1.1The undertakings of the Agency as defined in paragraph 2 below shall constitute an obligation for the Agency only insofar as they are necessary for theexecution of the EDRS Operator's tasks.
1.2Failure of the Agency to execute its undertakings shall not relieve the EDRS Operator from fulfilling his own obligations. He shall take all reasonable measures to eliminate or limit the consequences of the Agency's omissions or delays on his performance. The EDRS Operator shall be entitled to relief only insofar as he can show that such relief is necessary and reasonable in order to compensate for the consequences of the Agency's failure to execute its undertakings.
Insofar as such failure by the Agency to execute its undertakings is due to the default of the EDRS Operator, the EDRS Operator shall not be entitled to any relief.
The EDRS Operator shall immediately, but not later than ten working days of its coming to his notice, notify the Agency of any failure to execute its undertakings, failing which he shall be precluded from making a claim, if any, in this respect. Should in this context an Agency responsibility be established, the Agency’s liability will not go beyond the following:
- Extension of time limits to the extent that the delay is proven to be unavoidable consequence of an ESA failure and provided the EDRS Operator has initiated in good time the required mitigation actions to limit the schedule consequences to a minimum;
- Reimbursement of all consequences within the present Contract to the extent (a) not otherwise specified in paragraph 3 below and (b) proven to bethe direct result of an ESA failure, provided the EDRS Operator has initiated in good time the required mitigating actions to limit such other consequences;
- Schedule and/or other consequences can never be claimed in situations where a delay can be accommodated within a delay caused by the EDRS Operator.
2.The Agency’s Undertakings
2.1The Agency shall provide the EDRS Operator with all reasonably required information concerning the Opportunity Payload. Representatives of the EDRS Operator and its main subcontractor shall be given the opportunity to participate in any Opportunity Payload related progress and acceptance review, including advanced access to the corresponding documentation.
2.2The Agency undertakes to deliver the Opportunity Payload to the EDRS Operator or, at his choice, his main subcontractor, not later than ….2013 in the latest agreed configuration.The EDRS Operator shall be deemed to have taken the Opportunity Payload into custody upon its arrival at the above destination. In case the completion of the Opportunity Payload is delayed such that it cannot be integrated with the EDRS-C satellite without causing delay to the agreed launch date, the Agency shall deliver a dummy payload instead.
Transfer of ownership in the Opportunity Payloadshall pass to the EDRS Operator uponthe intentional ignition during the launch countdown sequence of the first stage engine(s) of the launch vehicle carrying the EDRS-C satellite.
2.3Should the EDRS-C satellite not have been launched by 1 January 2017, or should it be foreseeable that the said date will be overrun, the EDRS Operator shall, if so requested by the Agency in writing, disembark the Opportunity Payloadand return it to ASI at no cost to the Agency and ASI.
3.1The Agency shall not owe the EDRS Operator any compensation in case of performance problems of the Opportunity Payload and associated Ground Support Equipment. The same shall apply in case of damage arising out of or in connection with the use of the Opportunity Payload and the associated Ground Equipment.
3.2The EDRS Operator shall be responsible for any loss of and damage to the Opportunity Payload and any other items delivered or lent out by the Agency to the EDRS Operator, his sub- or lower level contractors occurring in the time period between having taken the respective item into custody and lift off of the EDRS-C satellite launch vehicle.The replacement value payable by the EDRS Operator to the Agency in case of loss or destruction of any of the aforesaid items while in his custody is agreed as follows:
-for the Opportunity Payload: EUR ..,000,000 (……millions),
-for the Ground Support Equipment: EUR..,000,000 (….. millions).
ARTICLE 3– PRICE
1.The total price of the Contract amounts to:
EUR…
(………………………………………………)
broken down as specified in Article 1of Appendix 1 and payable as specified in Article 2 of Appendix 1.
2.The priceof the Contract is stated to be a ceiling price as defined in Clause 3 of Annex I to the General Conditions
with firm fixed price elements as defined in Clause 2.1 of Annex I to the General Conditions
OR
with fixed price elements as defined in Clause 2.2 of Annex I to the General Conditions.
Further details regarding the price type and price conversion are stipulated in Article 1 of Appendix 1.
The price of the Contract(if applicable: except for its fixed price element) shall be deemed to include any price escalation for the period in which the work is scheduled to be performed.
3.The total price includes any and all licence fees payable according to Clause 57.7 of the General Conditions. It does not include any taxes and duties in the Member States of the Agency.
Or alternatively for Germany:
3.The price does not include any taxes and duties in the Member States of the Agency other than Gewerbeertragsteuer.
4.The total price is for all deliverables Delivered Duty Paid, exclusive of import duties and V.A.T. in accordance with the Incoterms 2000, to the addresses specified in Article 4.
ARTICLE 4 - PLACE AND DATES OF DELIVERIES AND CERTAIN OTHER UNDERTAKINGS; OWNERSHIP
- The EDRS Operator shall deliver to the Agency, at the address specified in Article 9 Clause 7.1 below, thedeliverables specified in chapter 12 of Appendix 2 as well as those specified in chapter 4.2 of AD 09by the following dates:
………..
………..
2.The milestones specified below shall be completed by the date set out opposite:
a)Launch of the EDRS-A / …. 2012b)Launch of the EDRS-C satellite / …. 2014
c)Commissioning of the EDRS / …. (mid) 2015
d) Commissioning of the Sentinel 1A and 2A satellites
to become validated users of the EDRS / ….
3.1Ownership of the EDRS shall remain with the Operator, subject to the restrictions and exceptions stipulated in this paragraph 3.As regards the Opportunity Payload, the provisions of Article 2 paragraph 2.2 shall apply.
3.2.1The Agency shall be entitled to acquire ownership of the EDRS from the EDRS Operatorin case theAgency cancels the Contract on any of the grounds specified in Article 9 Clauses 32, 33, 34 paragraph 1 lit. (a), (b), (c) or (d). To the extent the EDRS Operator has not acquired ownership of any EDRS components yet, the Agency shall be entitled to acquire the EDRS Operator’s rights to acquire ownership from the relevant component supplier instead. Acquisition of ownership by the Agency shall not include itemsneither funded nor co-funded by the Agency(“Excluded Items” hereafter).
In case of cancellation of the Contract the EDRS Operator shall deliver the EDRSwithout any Excluded Items to the Agency in the state of readiness achieved within two weeks from expiry of the option set forth in paragraph 3.2.2 below.Ownership in the above deliverables shall pass to the Agency upon their receipt at the address specified in Article 9 Clause 7.1 below for not yet launched items. For items already launched, ownership shall pass to the Agency at the time the first not yet launched item is received at the address specified in Article 9 Clause 7.1.
3.2.2Paragraph 3.2.1 above notwithstanding the EDRS Operator shallin case of cancellation have the option to retain ownership of the EDRS against refund to the Agency ofall payments made by the Agency to the EDRS Operator and any subcontractor.This option shall expire 90 days from receipt of the Agency’s letter of cancellation unless (a) it is exercised through registered letter which is received by the Agency within the said time period and (b) refund of the abovementioned amount is effected within 30 days from exercising the option.
3.3Sale, lease, pledging or giving as security in any other way, decommissioning, transfer of ownership of the EDRS or any components thereof and any other way of ceding control over the EDRS fully or partially within seven years from EDRS commissioning shall each be subject to the Agency’s prior written approval which the Agency is free to deny and which, if given, may be conditional upon, inter alia
- the EDRS Operator imposing on the acquirer the obligation to continue providing services to the Sentinel satellites in accordance with the provisions of the Service Level Agreement between the EDRS Operator and ESA,
- approval by the Agency’s Technology and Product Transfer Board.
3.4In order to secure the enforceability of the Agency’s right under paragraphs 3.2 and 3.3 above, the EDRS Operator shall
- pledge to the Agency the EDRS;
- put the codes required to access, command, control and operate the EDRS-A and EDRS-C satellite into escrow from which they are to be released to the Agency in case of breach of any of the EDRS Operator’s obligations under paragraphs 3.2 and 3.3 above.
The parties shall take all steps necessary to render the above arrangement effective upon completion of
- the EDRS-A Acceptance Review for what concerns EDRS-A,
- the EDRS-C Acceptance Review for what concerns EDRS-C,
- the Ground Segment Acceptance Reviews for what concerns the Ground Segment.
The above arrangement shall cease seven years after EDRS commissioning.
ARTICLE 5 – CONTRACTUAL BASELINE; CHANGES
1.The documents listed in Article 1 paragraph 1 lit. (a) through (f) shall form the Contractual Baseline. Any change to the Contractual Baseline shall require the signature of a Contract Change Notice.
A document generated or to be generated by any party in the course of contract execution shall only form part of the Contractual Baseline if such document is made part of the contractual baseline by signature of a Contract Change Notice.
Mere approval of any such document without making it a part of the Contractual Baseline shall not alter the rights and obligations of any party.
2.No change to the Contractual Baseline defined in paragraph 1 above, and no change which establishes or may establish a financial or other obligation on the Agency, shall be introduced, implemented, or approved by the EDRS Operator without the written consent of the Agency's representatives nominated in Article 9 Clause 5 below.
3.All changes of the Contractual Baseline shall, depending on their nature, be classified into one of the categories defined below.
3.1Class A changes are changes which result from one or more of the following causes:
(i)A change to the Contractual Baseline such as but not limited to the re-definition of the design, function, quality, quantity, performance or schedule requirements of any item or service covered by the Contract, parts thereof or any associated item or service, provided it is demanded in writing by the Agency’s representatives nominated in Article9 Clause5 below and not a consequence of the failure of the EDRS Operator to fulfil his obligations under the Contract.
(ii)A failure by the Agencyto fulfil any of its undertakingsspecified in Article 2 paragraph 2 above.
3.2All other changesof this contract are Class B changes.
4.Consequences of changes
4.1Class A changes, except for the deletion of work, shall be treated as a new procurement or simple contract update as the case may be, and the terms of the Contract such as cost, technical or timely performance, deliverable items list, etc. shall, if necessary, be adjusted to take account thereof. The Agency shall be financially responsible for Class A changes.Deletion of work shall lead to a reduction of the price ("Negative Class A CCN") and the other terms of the Contract shall be adjusted accordingly. Any price in- or decrease shall be established on the basis of the type of work and the pertaining funding formula as stipulated in chapter….of Appendix2to the Invitation for Tender AO/1-6327/10/NL/US (Special Tender Conditions).
In case of Class A Changes which have an impact on the Contractual Baseline as defined in paragraph 1above, the respective documentation shall be updated in accordance with the applicable document update procedure.