Bijlage 1 Subsidieregeling ERTMS: model ‘Cooperation Agreement’ als bedoeld in artikel 2, derde lid

Subsidieregeling ERTMS

Regarding the realization of a project of common interest in the field of Trans European Transport Network and co-financed under the Connecting Europe Facility (CEF). CEF Transport 2017 Blending Call – European Rail Traffic Management System (ERTMS). all collectively referred to as the ‘Parties’ and each a ‘Party’. The following definitions used in this Cooperation Agreement and the Annexes shall have the following meaning: IenW: The VO: All press releases and other public announcements related to the Upgrade project, shall solely be made by IenW. IenW shall notify and obtain written approval from the VO (unless publication and/or communication is required by the Grant Agreement) prior to making any such public announcements. For and behalf of: SIGNATURE PAGE COOPERATION AGREEMENT BLENDING CALL 2019, VERSION [ ... ] 2019 IenW By: Name: Title: Date: VO By: Name: Title: Date: Annex 1. Grant Agreement 2017-NL-TM-0046-W or CEF II 2017-NL-TM-0101-W. Annex 2: Vehicle Owner specific annex.

• 1. The State of the Netherlands (Ministry of Infrastructure and Water Management), represented for the purposes of signature of this Cooperation Agreement by the Director General of the Department for Public Transport and Rail (hereinafter referred to as ‘IenW’),
• 2. And the following railway vehicle owner: [ ... ], a company formed under the laws of [ ... ], (Company number [ ... ]) and having its registered office at [ ... ] (hereinafter referred to as the ‘Vehicle Owner’ or ‘VO’),
• a. The implementation of ERTMS is foreseen to start on the Dutch Railway infrastructure network in 2026. This requires the VO, in order to ensure interoperability with this infrastructure to upgrade its existing ERTMS equipment to Baseline 3 in preparation of ‘ERTMS only’ infrastructure;
• b. Overall, ERTMS as a system at corridor level is showing a positive business case;
• c. The VO shall be responsible for the compliance with (future) legislation concerning ERTMS and that it, as an economic owner, will bear the commercial risks and investments involved in operating in the Netherlands;
• d. That nevertheless, IenW realizes that investment in ERTMS OBU’s is, at present and as seen from a financial perspective, not yet feasible for the VO. ETCS is a Class A signalling system in addition to the national Class B systems. As long as the locomotives are allowed running in dual mode there are no direct benefits coming from the ERTMS investment. Revenues can only be expected after full operation in an ERTMS only mode on the corridors of the TEN-T network in the EU (foreseen between 2027 and 2030);
• e. The VO is competing in the European market so that public funding, in addition to investments of the VO, becomes opportune to ensure the upgrade of the existing OBU’s from Baseline 2 to Baseline 3;
• f. In light of the aforementioned, IenW has decided to apply for the CEF Transport 2017 Blending Call 14th of June 2017 whereby IenW submitted two applications on behalf of the VO and other vehicle owners. The requests for subsidy for upgrading the ERTMS in the rolling stock has been granted by INEA in the grants 2017-NL-TM-0046-W and CEF II 2017-NL-TM-0101-W;
• g. Following several developments which have taken place after April 16, 2018, IenW has proposed several changes to the Grant Agreement 2017-NL-TM-0046-W. Changes, amongst others, include initially focusing the activities on protoyping. This amendment has been approved by INEA on April 14, 2019;
• h. Parties previously have agreed to collaborate on the submission of the grant application and to this end have signed the Declaration of Cooperation Agreement (version June 27, 2017);
• i. The Declaration of Cooperation, according to article 2, paragraph 4 thereof, is transposed into the present Cooperation Agreement;
• j. The VO acknowledges that a signed Cooperation Agreement will be a prerequisite for national subsidy grants;
• k. The Parties therefore define their collaboration in this present Cooperation Agreement.
• a. Annex: annexes to this Cooperation Agreement that form an integral and binding part of that agreement;
• b. Baseline 3: as defined in Table A, 2.2 or 2.3, (List of mandatory specifications) Set of specifications # 3 of the TSI-CCS 2016;
• c. Beneficiary: IenW, in accordance with the Grant Agreements;
• d. CEF: the Connecting Europe Facility;
• e. Cooperation Agreement: this agreement between the VO and IenW regarding the manner concerning their cooperation;
• f. ERA: European Union Agency for Railways;
• g. ERTMS: the European Rail Traffic Management System;
• h. ETCS: European Train Control System;
• i. Grant Agreement: the Grant Agreement under the Connecting Europe Facility (CEF) – Transport Sector 2017-NL-TM-0046-W and CEF II 2017-NL-TM-0101-W;
• j. Implementing Body: the entities as listed in article 8 of the Grant Agreements;
• k. INEA: the Innovation and Networks Executive Agency;
• l. OBU: On-Board Unit: all equipment installed in a vehicle necessary for ERTMS operation. OBU includes the Class A equipment and connects to all associated national modules necessary to operate at the Class B systems;
• m. Project Team: the project team as defined and stipulated in article 4 of this Cooperation Agreement;
• n. Prototyping: the activities necessary to obtain the authorization of the type for placing on the market;
• o. RVO: Rijksdienst voor Ondernemend Nederland;
• p. TSI-CCS 2016: the Commission Regulation (EU) 2016/919 of 27 May 2016, as amended in January 2019;
• q. TSI: Technical Specifications for Interoperability;
• r. Upgrade contract: the contract between the VO and its supplier for upgrading the OBU’s;
• s. Upgrade projects: the activities as defined in article I.4 of the Grant Agreements.
• 1. IenW is the Beneficiary in the Grant Agreements with INEA.
• 2. The activities for Upgrade projects are contracted by the VO in an Upgrade contract, as Implementing Body, with its supplier(s).
• 3. This Cooperation Agreement details the cooperation between the parties (IenW and the VO) and how:
• – IenW, following its decision to provide public funding, will fulfill its requirements of the Grant Agreements with INEA;
• – The VO shall fulfill its obligations towards IenW and the Project Team established by IenW, so that IenW’s obligation towards INEA according the terms and conditions as specified in the Grant Agreement(s) may be fulfilled, including, but not limited to, concluding contracts with its supplier(s);
• – The VO shall fulfill the requirements agreed with IenW in the Upgrade contract with its supplier(s);
• – The funding and financing of the Upgrade activities is arranged and organized.
• 4. This Cooperation Agreement succeeds the Declaration of Cooperation Agreement (version June 27, 2017). Parties agree that, by signing this Cooperation Agreement, the Declaration of Cooperation Agreement shall no longer be binding towards Parties.
• 1. By signing this Cooperation Agreement Parties agree with the following scope of the project and scope as defined in the Grant Agreements.
• 2. Specifications The first in class locomotives (the prototypes) shall be upgraded by the VO to an ERTMS Baseline 3 L1/L2 compliant configuration conform the specifications as provided and further identified by the ERTMS Programme Project Team. Each prototype and consequently serial Baseline 3 upgrade shall be evidenced by the VO by the following deliverables:
• a) Information regarding tests results (test report) in line with the applicable technical specification for interoperability;
• b) Declaration signed by a laboratory accredited according to ISO 17025 that it has performed the tests in accordance with the applicable technical specification for interoperability;
• c) EC declaration of conformity for each interoperability constituent relevant for ERTMS issued by the supplier or the supplier's authorized representative established within the European Union, including the certificate of conformity from a notified body. The EC declaration of conformity shall be fully in line with Directive 2008/57/EC;
• d) EC declaration of verification of the subsystem issued by the applicant for each control command signalling subsystem installed on a vehicle and including the EC certificate of verification of subsystem from a Notified Body and the safety assessment report following section 3.2.1 of Commission Regulation (EU) 2016/919. The EC declaration of verification shall be fully in line with Directive 2008/57/EC. The technical compatibility details of the certificates should be provided using the template developed by the ERA;
• e) A copy of a complete application for authorisation of the vehicle(s) or the authorisation itself or a copy of an application for an authorisation for placing the vehicle prototype on the market or the authorisation in case available by the time the CEF Final Payment claim is due.
• 3. After completion of the Upgrade activities, additional work may be carried out in order to achieve Baseline 3-Baseline 3 operations in the Netherlands (foreseen between 2026 and 2028). The following activities are foreseen (this list may not be exhaustive): When appropriate, an amendment to this Cooperation Agreement will be agreed to cover the extension of the scope of work related to first time commercial Baseline 3 operation on Baseline 3 tracks in the Netherlands.
• a) For the Netherlands relevant software changes to correct errors of TSI-CCS 2016 (article 10) and to include change requests resulting from of TSI-CCS 2022 (if any);
• b) Testing of OBU in lab and locomotive on Baseline 3 track(s);
• c) The re-authorization (e.g. removal of restriction) of locomotives for area of use.
• 4. The Upgrade activities of the prototype(s) and serial upgrades (if applicable) shall be finished, the eligible costs incurred and re-authorization received or requested, before 31th December 2023, the actual end-date of the CEF Grant Agreements. The planning of the Upgrade projects is set out in article I.4 (I.4.1 Activities timetable) of the Grant Agreements.
• 5. The contract with an ERTMS supplier shall include a binding option for the serial Baseline 3 upgrade of locomotives (specified in Annex 2) of the same type as the prototyping, valid for a period of 4 years after signing of the contract.
• 6. The VO is responsible for obtaining any or all intellectual property rights on or in connection to the prototype. The VO grants to IenW a non-exclusive, transferable (for the purposes of the serial upgrades by others), irrevocable, perpetual, royalty-free (sub) license, free of charge on all intellectual property rights pertaining to the prototype, to be used for the serial upgrades, and to ensure that IenW may fulfil its obligations under article II.8.3 of the Grant Agreements. In order to fulfil this obligation, the VO shall contractually ensure that it receives the necessary rights and/or licenses from its supplier(s) and shall indemnify IenW against all actions or claims based on any allegation that the (use (by IenW) of the) (sub) licenses granted by the VO to IenW under this Cooperation Agreement infringes the intellectual property rights or trade secrets of any supplier and/or third party.
• 1. Shall support the VO with its customer requirements for the upgrade, advise the VO on contracting supplier(s) and provide necessary legal support.
• 2. Shall establish a financial administration in order to comply with the rules of financial justification as required by the Grant Agreement.
• 3. Shall advance payments received from INEA and in addition to its own national ERTMS grant up to an amount of EUR 23,8 mln. towards a bank account provided for by a bank or other financial institution as designated by IenW, in order that funding may be made available to the VO.
• 4. Shall facilitate the international co-ordination (between Infra Managers, National Safety Authorities) in order to harmonize the specifications, the system engineering, the tests for interoperability and the authorization.
• 5. Shall, for the aforementioned responsibilities, assign tasks to a Project Team under the auspices of the ERTMS Programme and/or to the RVO.
• 6. The Project Team shall solely have an advisory and facilitating role. The VO acknowledges and accepts that the activities as mentioned in this article shall not prejudice the responsibilities of the VO in any manner and that consequently, the VO shall remain, inter alia, responsible for its own activities and the fulfillment of its obligations under this Cooperation Agreement and any conditions as may be imposed in, amongst others, subsidies (‘subsidieregeling’) and grants, and shall ensure that the ERTMS Program’s requirements on train – track test activities (as specified in the national technical rules in the Netherlands and systems integration) are specified in the Upgrade contracts concluded between the VO and its supplier(s).
• 7. The RVO shall facilitate the control of the cash flow and provide financial administrative support. Ultimately, IenW shall remain responsible for fulfilment of its obligations under the Grant Agreements and this Cooperation Agreement.
• 1. Shall have the responsibility for the procurement and implementation of the OBU prototyping and upgrade (if applicable) in its vehicles in such a manner that the activities and milestones as set out in articles I.4 and I.5 of the (amended) Grant Agreement are met.
• 2. Shall procure the OBU prototyping and upgrade (if applicable) and any necessary services according to the applicable rules and regulations based on sound financial management practices, including and if applicable (but not limited to) laws regarding public procurement and competition law.
• 3. Shall undertake all necessary activities to ensure that IenW is able to fulfill its obligations under the Grant Agreement. These obligations shall, under this Cooperation Agreement, apply ‘back to back’ to the VO, whereby the Grant Agreement shall be read and applied in such a manner that references to ‘beneficiaries’ shall read as the ‘VO’ and references to ‘INEA’ and/or the Agency as ‘IenW’. The VO has acknowledged and accepted the Grant Agreement and the obligations stated therein, is aware that it does not have any direct rights vis-à-vis INEA and accepts therefore that all matters concerning this Cooperation Agreement shall be conducted with IenW (or parties assigned by IenW). The following articles as provided for in the Grant Agreement shall apply to the VO, whereby it is understood that the following list is not exhaustive and that other obligations in the Grant Agreement may apply:
• i. I.3;
• ii. I.4;
• iii. I.5;
• iv. II.1–II.9;
• v. II.19–II.23;
• vi. II.27.
• 4. Is responsible for contracting and signing of the Upgrade contracts for the supply of OBU with its supplier(s). A bank or other financial institution as stipulated in article 4, sub 3, of this Cooperation Agreement will offer a short term loan to the VO, providing that the conditions as set by this bank or other financial institution and IenW have successfully been met by the VO. IenW will bear the costs for maintaining a deposit on behalf of the owners. The interest costs of the short term loans (9-12 months) are for account of the VO.
• 5. Is responsible for the fulfilment of any conditions as laid down in the national subsidy grants received from IenW (the national ‘subsidieregeling’ and ‘subsidiebeschikkingen’ as made available by IenW) as well as the relevant requirements from INEA as laid down in the Grant Agreement, including (but not limited to) sound financial management as referred to in article II.19.1 of the Grant Agreement and reporting requirements.
• 6. Shall, within reasonable limits and expectations, cooperate with the Project Team and/or RVO as set out in article 4 of this Cooperation Agreement including the follow up of instructions made by the Project Team and/or RVO, provided that these are reasonable and necessary within the constraints of the Upgrade projects (such as provision of information etc.). For this cooperation, the VO shall ensure sufficient staffing and resources to ensure this cooperation and the execution of the upgrades project and the obligations pertaining thereto.
• 7. Shall adhere to the planning and milestones as set forth in article I.5 of the Grant Agreement.
• 8. Shall warn the Project Team, in a timely fashion, of any impediments or developments that may threaten or delay the progress of the upgrades project.
• 9. Shall, prior to the conclusion and signing of its Upgrade contracts with its supplier(s), coordinate with IenW, via the Project Team as referred to in article 4 of this Cooperation Agreement, on Upgrade contracts and/or specifications concluded between VO and its supplier(s) including, not limited to, functionalities and train – track test activities in the Netherlands. In the event that the contracts and/or specifications between the VO and supplier(s) are to be amended, the amendments regarding the previously stated matters shall also be coordinated with IenW, prior to the signing of such amendments.
• 10. Is therefore aware, and accepts, that various obligations that it might have under this Cooperation Agreement, shall in that event need to be fulfilled vis-à-vis this third party. Communication shall however take place in accordance with article 7 of this Cooperation Agreement. The VO shall in all cases only have to report to the Project Team, unless otherwise instructed by the Project Team.
• 11. Is aware that matters concerning ERTMS may lead to amendments to the present Cooperation Agreement. Amendments and/or agreements shall be made in writing and shall be agreed upon by the Parties.
• 1. IenW is the beneficiary of the CEF grants.
• 2. The funded scope of work is defined in article 3 of this Cooperation Agreement.
• 3. The eligible costs of ERTMS Baseline 3 prototyping and serial fitments of an ERTM Baseline 3 configuration will be mutually agreed between IenW and the VO based upon the offers submitted by the suppliers to the VO whereby:
• a) The contracted and incurred costs of the Baseline 3 prototyping and serial fitment of the Baseline 3 configuration shall be duly specified enabling a dedicated co-funding as specified in article 6, sub 4, of this Cooperation Agreement;
• b) Costs related to the implementation of NTR’s (e.g. STM’s) from other / imposed by other Member States shall be duly specified to prevent funding of non-eligible costs during the serial fitment;
• c) Costs related to the implementation of Dutch NTR’s and additional ERTMS program requirements shall be duly specified enabling additional funding of the eligible costs by IenW according to article 6, sub 4, of this Cooperation Agreement.
• 4. IenW will, via national subsidy grants, co-fund the eligible costs made in the Upgrade project in addition to the CEF funding in such a way that:
• a) The prototyping will be co-funded up to 90% of the eligible costs, as defined in article II.19 of the Grant Agreement with a ceiling as further to be specified in the national ‘subsidieregeling’ and/or Annex 2;
• b) The serial upgrades will be co-funded up to 50%, as defined in article II.19 of the Grant Agreement with a ceiling as further to be specified in the national ‘subsidieregeling’ and/or Annex 2;
• c) The down time costs (e.g. rental of substitutional traction) of locomotives during the serial fitment shall be singularly compensated according to the national ‘subsidieregeling’ and/or Annex 2.
• 5. IenW will organize a subsequent funding proposal for the serial upgrades which are related to the prototyping locomotives in the Upgrade project. The co-funding will be 50%, equal to the serial upgrades in the Upgrade project. The request for proposals may be expected in the period 2022 – 2024.
• 6. If the new Baseline 3 infra in the Netherlands scheduled between 2026 and 2029 (and/or Baseline 4 and other corrections) requires changes / additional functions in the Baseline 3 OBU as designed and built during the Upgrade project, Parties will convene on reaching an agreement as to additional costs.
• 1. Parties agree to regularly consult each other on matters regarding this Cooperation Agreement.
• 2. Parties shall meet on a regular basis, and no less than two times a year starting no later than six months after signing this Cooperation Agreement.
• 3. A member of the Project Team shall chair these meetings.
• 4. All costs involving meetings and consultations shall be borne by the respective Parties.
• 5. For the purposes of fulfilling its obligations under this Cooperation Agreement, the VO shall send required information to the following contact: [ ... ]. Within one week after signing this Cooperation Agreement, the VO shall forward the details of its respective contacts, whom are duly authorized for representing the VO.
• 1. In addition to article II.15 and II.16 of the Grant Agreement, the VO hereby acknowledges and accepts that, in the event that the VO cannot fulfil its obligations pursuant to this Cooperation Agreement, and/or IenW cannot fulfil its obligations due to delays and or breaches of obligations caused by the VO, IenW has the unilateral right to suspend and or terminate this Cooperation Agreement.
• 2. In the event that IenW cannot fulfil its obligations, (possibly) leading to the loss of CEF funding, due to delays and or breaches of obligations caused by the VO, IenW may suspend, reduce and/or recover payments from the VO.
• 3. The VO is aware that the Cooperation Agreement is subject to national and European law, including, but not limited to, laws and/or (future) conditions regarding subsidies (‘subsidieregelingen’) as required to implement the funding by IenW. The Cooperation Agreement shall not prejudice these laws and/or (future) conditions in any manner nor the VO’s responsibility to comply with these. The VO is aware that funding by IenW is also subject to laws regarding state aid and that IenW has the right to cancel or cease funding if non-conformity with EU law and/or unapproved state aid is established. IenW shall not be liable (for any loss and/or damages) in any manner if cancellation or ceasing of funding is required.
• 4. In the event that IenW does not fulfill its own obligations and the breach is attributable to IenW and article 8, sub 3, of this Cooperation Agreement does not otherwise apply, IenW will bear the loss of CEF funding. In no circumstance whatsoever, will IenW be (held) liable for any consequential loss and/or damages.
• 1. In addition to article II.5 of the Grant Agreement, all information exchanged between the Parties under this Cooperation Agreement and in connection with the Upgrade contracts shall be treated as confidential and shall not be disclosed to any third party without the prior written consent of the Parties concerned, unless such information: Obligations in accordance with this article shall remain in force during the entire Upgrade project, as well as for a period of 5 years following the last subsidy period. Parties are aware that some documentation needs to be forwarded to the national and European authorities for the vehicle authorization. Such documentation cannot be fully considered confidential.
• – is already known to the third party in question at the time the information was received;
• – is or becomes part of the public domain other than through a fault of the Parties;
• – is rightfully received from a third party without an obligation of confidentiality, or
• – is required to be disclosed by law, regulation or judicial proceedings.
• 2. All personnel from the VO participating in the Upgrade project shall be required to sign and comply with IenW’s instructions for confidentiality. IenW’s personnel, the Project Team and/or RVO personnel have also received instructions and/or signed confidentiality statements.
• 1. This Cooperation Agreement shall commence on the date that both IenW and the VO have signed the agreement.
• 2. The VO may withdraw from this Cooperation Agreement by giving 3 months written notice to IenW. In the event that withdrawal leads to delays suffered or costs incurred by IenW or other vehicle owners participating in the Upgrade projects, the withdrawing VO may be held liable for these delays and costs by IenW and the other vehicle owners.
• 3. The VO shall be entitled to transfer all its rights and obligations under this Cooperation Agreement by novation or otherwise to any other member of its companies’ group subject to prior written consent of IenW.
• 1. IenW may conclude cooperation agreements with other vehicle owners or operators of rail vehicles (third parties), conducting operations in the Dutch railway network, the conclusion of which shall not constitute any form of joint venture and/or collusion, between the vehicle owners.
• 2. In all cases where the Cooperation Agreement mentions the obligations to give written notice by registered letter, such notice shall be sent to the official registered address.
• 1. The Cooperation Agreement shall be governed by and interpreted in accordance with Dutch law, with the exclusion of referral rules and the Vienna Sales Convention.
• 2. Parties agree to endeavor to settle disputes on an amicable basis. In the event that disputes cannot be settled on such a basis, disputes shall be referred to the court of first instance in The Hague, Netherlands.
• 3. This Cooperation Agreement has been executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Cooperation Agreement.