CIRCULAR

On dredging activities in port waters

Pursuant to Maritime Code No.95/2015/QH13 dated November 25, 2015;

Pursuant to Decree No. 12/2017/ND-CP dated February 10, 2017 of Government on functions, tasks, powers, and organizational structure of Ministry of Transport;

Pursuant to Decree No. 159/2018/ND-CP dated November 28, 2018 of Government on dredging in harbours and inland waterways;

Pursuant to Decree No. 58/2017/ND-CP dated May 10, 2017 of Government on elaborating to a number of Articles of Vietnam Maritime Code providing for maritime activity management;

Pursuant to Decree 37/2015/ND-CP dated April 22, 2015 of Government on elaborating to construction contract;

At the request of Director General of Transport Infrastructure Department and Director General of Vietnam National Maritime Bureau;

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Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular prescribes dredging activities in port waters, including: maintenance dredging of public navigation channels financed by state budget and projects on promoting private sector involvement in dredging port waters under management by Ministry of Transport.

Article 2. Regulated entities

This Circular applies to domestic and international entities and persons involved in dredging activities in port waters.

Article 3. Term interpretation

In this Circular, terms below are construed as follows:

1. “Enterprises providing public services” include Northern Vietnam Maritime Safety Corporation and Southern Vietnam Maritime Safety Corporation.

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3. “Construction contract” refers to a contract between the enterprise providing public services and a maintenance dredging contractor.

4. “Investor” refers to an enterprise selected by a competent authority to carry out a contract for project on promoting private sector involvement in dredging port waters.

Chapter II

MAINTENANCE DREDGING OF PUBLIC NAVIGATION CHANNELS FINANCED BY STATE BUDGET

Section 1. General regulations on implementing MAINTENANCE DREDGING OF PUBLIC NAVIGATION CHANNELS FINANCED BY STATE BUDGET

Article 4. Plan for maintenance dredging of public navigation channel

1. The plans for maintenance dredging of public navigation channels are parts of annual Maritime infrastructure recovery plans approved by Ministry of Transport, including details for implementation of maintenance dredging of public navigation channels in planning year and details for implementation of preparing for maintenance dredging constructions of public navigation channels of the following year (including locating disposal site for dredged materials, inspecting, compiling dossiers, making cost estimates of such constructions, producing environmental impact assessment report, submerging dredged materials at sea, assigning sea areas and relevant affairs).

2. Preparation for maintenance dredging of public navigation channels financed by state budget shall comply with maritime structures maintenance laws and based on following basic information:

a) Importance of such channels with respect to local maritime activities, utilization of ports serving goods import and export, socio-economic development and national defense, security;

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c) Statistical data on ship size and draught permissible to perform maritime activities, frequency and water level for effective ship operation;

d) Alluvial soil volume, dredging results in the last 3 years to anticipate the maintenance dredging load;

dd) Methods and sites for disposal of dredged materials publicized and approved by provincial People’s Committees.

3. Vietnam Maritime Administration shall cooperate with the enterprises providing public services in conducting research, finding, preparing list of disposal sites of dredged materials of maintenance dredging constructions of public navigation channels under their management and communicating with competent authorities to request for approval of dredged material disposal sites.

Article 5. Contents of control and monitor

The contents of controlling and monitoring the maintenance dredging constructions of public navigation channels financed by state budget shall comply with Articles 5 and 20 of Decree No. 159/2018/ND-CP dated November 28, 2018 of Government on management of dredging port waters and inland waterway (hereinafter referred to as “Decree No. 159/2018/ND-CP”) and following provisions:

1. Operation diaries must use form under Annex I attached to this Circular. Supervision consultants shall examine and encourage construction contractors to keep operation diaries using form under Annex I attached to this Circular.

2. On a weekly basis, the supervision consultants shall submit reports by post or in person to Vietnam Maritime Administration using forms under Annex II attached to this Circular together with photos of the operation diaries (of the reporting week).

3. Data examination and storage of dredging monitoring systems installed on construction machinery and dredged materials transports are prescribed as follows:

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b) The construction contractors shall fully provide data collected from video recording devices installed on dredged material transports and disposal vehicles for the enterprises providing public services;

c) Bodies providing supervision consulting services shall fully comply and consolidate photos taken from dredged material transports and disposal vehicles (compartments storing dredged materials) as per the law together with weekly reports on supervision and consulting under Annex II attached to this Circular and submit to Vietnam Maritime Administration and the enterprises providing public services;

d) Bodies providing AIS information management and utilization services supervising dredging vehicles shall store field data on number of vehicles, position, speed and halt locations produced by AIS devices installed on vehicles participating in constructing, transporting and disposing dredged materials;

dd) The enterprises providing public services shall store data from video recording devices installed on construction machinery provided by the construction contractors and photos from the dredged material transport and disposal vehicles (compartments storing dredged materials) at specific times prescribed by the supervision consultants;

e) Data retrieved from the dredging monitoring systems installed on construction vehicles, dredged material transports and disposal vehicles shall be archived for 3 years.

Section 2. IMPLEMENTATION OF TURNKEY STANDARD MAINTENANCE DREDGING OF NAVIGATION CHANNELS IN DEFINITE PERIOD

Article 6. Construction design and cost estimates

1. Produce construction design and cost estimates

Design of construction drawings and estimates with respect to turnkey standard maintenance dredging in definite period shall be produced in consideration of;

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b) Standard maintenance of navigation channels are approved by Ministry of Transport in plan for maintenance dredging of public navigation channels financed by state budget;

c) Calculated load of standard maintenance dredging of navigation channels shall be annual average load determined by alluvial soil volume, calculated based on figures publicized in periodic maritime notice, measurements relating handover of the cleared site and measurements relating acceptance testing of maintenance dredging of navigation channels at least in the last 3 years. Dredging load includes initial dredging load (determined by figures publicized in the latest maritime notice and adjusted through measurements upon handover of cleared site) and standard maintenance dredging load of navigation channels in the period from the initial dredging exclusively to the end of turnkey standard maintenance dredging inclusively;

d) Cost estimates of turnkey standard maintenance dredging shall be determined based on dredging load corresponding to standard design of navigation channel, disposal sites of dredged materials and period of standard maintenance.

2. The enterprises providing public services shall

a) based on the plans for maintenance dredging of public navigation channels, annual estimated state budget allocation assigned by Ministry of Transport, contracts for provision of public services utilizing state budget to conduct maintenance dredging of navigation channels signed by Vietnam Maritime Administration and the enterprises providing public services and disposal sites of dredged materials approved by competent authorities, the enterprises providing public services shall select and sign contracts with design, appraisal and environmental protection consulting bodies, prepare plans for submersion (if any); produce, appraise and present Vietnam Maritime Administration construction drawings and cost estimates of turnkey standard maintenance dredging in a definite period, cost estimates for environmental protection, production of submersion plans and expenditure for handover of sea areas (if any); inspect and present task outlines and technical methods for survey, measurement and handover of cleared sites, supervision outline, task outline and technical methods of survey, measurement and irregular examination, task outline and technical methods of survey, measurement and technical methods of survey and acceptance produced by monitoring and consulting bodies;

b) based on accepted disposal sites of dredged materials of navigation channels, maritime infrastructure recovery plans shall be approved by Ministry of Transport to request consulting bodies to produce and fulfill environmental protection documents to propose competent authorities as per the law.

3. Vietnam Maritime Administration shall

a) appraise and approve contents presented by the enterprises providing public services specified in Point a Clause 2 of this Article;

b) approve cost estimates for expenditure on survey, measurements and irregular examinations of navigation channels subjected to turnkey standard maintenance dredging at least 3 times/navigation channel/year. Measurement and survey range of each instance shall be assigned by developers with maximum surveyed area equals 30% of cleared site area of navigation channels in order to examine the standard maintenance of navigation channel design of construction contractors;

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Article 7. Preparation of contractor selection plan

The enterprises providing public services shall prepare contractor selection plans and submit to Vietnam Maritime Administration according to bidding laws.

Article 8. Implementation of contractor selection

1. Vietnam Maritime Administration shall:

a) appraise and approve bidding documents and results of contractors selected for turnkey standard maintenance dredging of navigation channels in a definite period;

b) select and sign contract with bodies providing survey consulting services for handover of cleared project sites, supervision consulting services, survey and irregular examination consulting services, survey and acceptance testing consulting services, construction audit consulting services and bodies providing AIS information management and utilization services according to bidding laws;

c) accept contents of contracts for turnkey standard maintenance dredging in a definite period as per the law.

2. The enterprises providing public services shall:

a) select and sign contracts with bodies providing consulting services regarding bidding for dredging construction. Prepare bidding documents selecting contractors for turnkey standard maintenance dredging of navigation channels in a definite period and submit to Vietnam Maritime Administration;

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c) select and sign contracts with bodies providing consulting services regarding environmental protection according to bidding laws;

d) negotiate contents of maintenance dredging contracts: range, scale, standard, construction methods and equipment, contract execution period, advances, payment, contract execution assurance, actions, force majeure events and other necessary contents; request Vietnam Maritime Administration to accept contract contents; sign contracts for turnkey standard maintenance dredging with construction contractors.

Article 9. Handover of cleared construction sites

Vietnam Maritime Administration shall take charge and cooperate with the enterprises providing public services, bodies providing supervision consulting and design consulting services to transfer cleared construction sites to construction contractors before dredging.

Article 10. Organization of construction

1. The construction contractors shall

a) satisfy environmental requirements according to approved environmental impact assessment reports and relevant environmental protection laws;

b) stringently comply with approved transport safety measures during the construction;

c) ensure performance security as per the law and in conformity with maintenance dredging construction contracts in a manner satisfactory to signed implementation quality;

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dd) within 2 days from the date of discovering shallow water areas or at request and report of entities relating management, operation and utilization of navigation channels, the construction contractors must survey and prepare dredging methods; within 5 days at the latest from the date of discovering shallow water areas or at request and report of entities relating management, operation and utilization of navigation channels, the construction contractors must dredge shallow water areas to ensure standard design of the navigation channels and deadline thereof must not exceed 20 days from the date on which dredging of shallow water areas as reported or requested are implemented; and inform bodies providing supervision consulting services to monitor the construction as per the law.

In case of unfavorable weather conditions for survey or dredging of shallow water areas (confirmed by local Maritime Administration and weather broadcast at the time of unlikely implementation), a construction contractor must promptly report to the enterprises providing public services to receive instruction and within 2 days from the conclusion of such force majeure events, conduct survey, prepare dredging methods and dredge shallow water areas to ensure standard design of navigation channels, construction deadline must not exceed 20 days from the conclusion date of force majeure events and implementation of dredging at shallow water areas;

e) select bodies conducting on site survey, measurements and perform internal acceptance testing of construction results as per the law. Any measurement or survey relating dredging results of shallow water areas shall be finance by expenditure of the construction contractors in cases specified in Point b Clause 2 of this Article;

g) in case a construction contractor fails to dredge shallow water areas satisfactory to standard design of a navigation channel meeting the deadline, progress or quality as agreed in contract and is reported or complained without completing dredging at shallow water areas satisfactory to standard design of a navigation channel within the time limit specified in Point dd of this Clause, the enterprises providing public services shall report to Vietnam Maritime Administration to consider reduction of expenditure in the contract corresponding to the duration of unsatisfactory to the standard (from the reporting time to the completion of rectification);

h) in case a construction contractor fails to dredge shallow water areas satisfactory to the standard design of navigation channels within the time limit specified in Point d of this Clause after being reported or complained for the second times (already reported or complained for the first time), the enterprises providing public services shall report to Vietnam Maritime Administration to consider selection of other contractors capable of dredging shallow water areas satisfactory to the standard with unit price suitable with current construction conditions. The construction contractors shall make full payment to the construction contractors selected as their replacements. If a construction contractor fails to pay before deadline or fails to fully pay the selected contractors upon satisfying payment procedures as per the law, the enterprises providing public services shall report to Vietnam Maritime Administration for consideration and decision on adoption of necessary measures based on relevant provisions of the law and agreement in the signed construction contracts to ensure the payment is made to the contractors selected as replacements;

i) in case a construction contractor fails to dredge in a manner satisfactory to the standard design of navigation channels ensuring construction progress and quality as agreed upon in contracts and fails to dredge shallow water areas satisfactory to the standard design of navigation channels within the time limit specified in Point dd of this Clause despite being reported or complained for the third times or disposes dredged materials at incorrect locations, illegally transfers contractors and conducts dredging activities causing serious maritime incidents or environmental pollution due to subjective errors of that contractor, the enterprises providing public services must report to Vietnam Maritime Administration for consideration of termination of signed contract and select other contractors capable as per the law to continue with the construction;

k) apart from measures specified in Points g, h and I of this Clause, a construction contractor is susceptible to contract penalty clause, rectification of violations, responsibilities for incidents relating ship operation due to shallow navigation channels and other responsibilities according to regulations and law and agreement in signed construction contracts.

2. The enterprises providing public services shall

a) regularly manage, examine and monitor construction of contractors and process of survey, measurement and acceptance testing occurring on site;

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c) publicize maritime notice based on survey and measurement results as per the law;

d) periodically report the survey and measurement results and maintenance dredging results to local Vietnam Maritime Administration and Maritime Administration as prescribed in contracts for provision of public services financed by state budget for dredging of navigation channels;

dd) report results of environment quality monitor during the process of maintenance dredging to Ministry of Transport and relevant entities according to environmental protection laws.

e) examine and monitor compliance of construction contractors during the construction process with provisions on environmental protection and transport safety. Request developers to suspend the construction to take actions against violations of contractors and relevant entities and persons (if any).

3. Vietnam Maritime Administration shall

a) direct the enterprises providing public services and relevant entities conduct periodic survey, measurement and issue maritime notice as per the law to examine the maintenance of design standard of navigation channels of the contractors and assist acceptance testing in each phase or release acceptance testing;

b) direct consulting bodies to survey, measure and irregularly examine the maintenance of design standard of navigation channels of the contractors;

c) inspect maintenance dredging quality and progress, and maritime safety during the constructions; suspend the constructions and take actions against violations of contractors and relevant entities and persons as per the law.

4. The examination and monitor shall comply with Article 5 of this Circular.

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1. Acceptance testing of turnkey standard maintenance dredging of navigation channels in a definite period shall comply with Clauses 1, 4, 6 Article 21 of Decree No. 159/2018/ND-CP and relevant provisions of the law.

2. The enterprises providing public services shall issue maritime notice as per the law upon completion of the constructions.

Article 12. Payment and settlement of constructions

Payment and settlement of the constructions shall be implemented as per the law.

Section 3. organization of irregular maintenance dredging of public navigation channels

Article 13. Cases of irregular maintenance dredging

Irregular maintenance dredging of public navigation channels to ensure traffic safety is dredging on an irregular basis due to force majeure which may cause unsafe maritime traffic or seriously impact maritime activities.

Article 14. Assignment of implementation

Ministry of Transport assigns Vietnam Maritime Administration to exercise authority of an investment decider with respect to the constructions of maintenance dredging of public navigation channels.

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Irregular maintenance dredging of public navigation channels shall follow steps below:

1. Irregular tasks presentation and appraisal.

2. Selection of contractors

3. Cleared site survey and handover, making of construction design and cost estimates.

4. Implementation of construction and supervision, examination.

5. Construction acceptance testing.

6. Construction settlement.

7. Handover of estimated state budget expenditure.

8. Construction payment.

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1. The enterprises providing public services shall take charge and cooperate with local Maritime Administration, conduct initial survey and report to Vietnam Maritime Administration regarding irregular task of maintenance dredging of public navigation channels including disposal sites of dredged materials approved by competent authorities.

2. Vietnam Maritime Administration shall appraise and evaluate level of depletion, supply, and erosion of navigation channels and maritime unsafe potential or any serious impact on maritime activities; serve the role of an investment decider to approve the irregular task and decide to conduct maintenance dredging of public navigation channels.

Article 17. Selection of contractors

1. The enterprises providing public services shall assess and recommend (competent and experienced construction, monitor, survey, design) contractors to promptly carry out contract package originating from force majeure, request Vietnam Maritime Administration to approve such policy before selecting contractors.

2. Within 15 days from the date on which contract is awarded, the enterprises providing public services shall:

a) survey and transfer cleared sites, prepare design and cost estimates as per the law and present Vietnam Maritime Administration for approval; complete direct contracting procedures, including: preparation and submission of draft contract to the contractors which specifies scope and contents of work to be implemented, deadline thereof, work quality to be satisfied and corresponding cost thereof for contract negotiation and finalization;

b) based on results of the contract negotiation and contractor acceptance of Vietnam Maritime Administration, the enterprises providing public services shall approve direct contracting results and sign contracts with directed contractors.

Article 18. Cleared site survey and handover, making of construction design and cost estimates.

1. Cleared site survey and handover

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b) The enterprises providing public services, supervision consulting services, design consulting services and construction contractors shall examine and monitor implementation of cleared site survey and measurement of survey consulting contractors and perform acceptance tasting with respect to results of survey and transfer of cleared sites to the construction contractors.

2. Construction drawings and cost estimates shall be made based on the results of survey and transfer of cleared sites serving dredging of navigation channels depleted, supplied or eroded due to force majeure events.

3. The enterprises providing public services shall prepare, appraise and present Vietnam Maritime Administration the construction drawings and cost estimates for approval; inspect and present task outline and technical methods for survey, measurement and transfer of cleared sites, monitor outline, task outline and technical methods for monitor and acceptance testing prepared by bodies providing supervision consulting services and survey consulting services.

4. Vietnam Maritime Administration shall appraise and approve contents presented by the enterprises providing public services specified in Clause 3 of this Article.

Article 19. Implementation of construction and supervision, examination

1. Implementation of construction

a) The enterprises providing public services are assigned with responsibilities to manage and examine implementation of construction and supervision consulting contractors during construction process;

b) Vietnam Maritime Administration shall conduct irregular examination (if necessary) to ensure construction quality and progress;

c) The enterprises providing public services shall prepare measures to ensure traffic safety and present local Maritime Administration for approval as per the law.

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Article 20. Construction acceptance testing

1. Comply with Clauses 1 and 4 Article 21 of Decree No. 159/2018/ND-CP.

2. The enterprises providing public services shall issue maritime notice as per the law upon completion of the constructions.

Article 21. Payment and settlement of constructions

Payment and settlement of the construction shall be implemented as per the law.

Article 22. Handover of estimated state budget expenditure.

Expenditure on implementation of irregular dredging public navigation channels shall be allocated from state budget assigned for maritime economic operations (irregular tasks guaranteeing traffic safety).

Section 4. contracts for construction of maintenance dredging of navigation channels

Article 23. Contracts for construction of maintenance dredging of navigation channels

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2. Contracts for construction of maintenance dredging of navigation channels following quality maintenance (applicable to turnkey standard maintenance dredging in a definite period) are contracts with fixed rates during implementation period applied to all work contents included in the contracts (package contracts).

Article 24. Principles for contract execution

1. Vietnam Maritime Administration shall act as developer to assign the enterprises providing public services some tasks of the developer regarding maintenance dredging of navigation channels via contracts for provision of public services financed by state budget to conduct maintenance dredging of navigation channels signed by Vietnam Maritime Administration and the enterprises providing public services.

2. The enterprises providing public services shall negotiate with construction contractors about contents of the contracts for maintenance dredging of navigation channels based on contracts for provision of public services financed by state budget to conduct maintenance dredging of navigation channels specified in Clause 1 of this Article.

Article 25. Contents of construction contracts

Contents of the construction contracts for maintenance dredging of navigation channels shall comply with regulations and law of Government and guidelines of Ministry of Construction on management of construction contracts. In addition, the construction contracts must include following provisions:

1. In case a construction contractor fails to complete construction satisfactory to construction progress and quality requirements as agreed in a contract after having been expedited or complained by the developer in writing for the third time, the contract will be terminated and he/she will not receive acceptance testing or payment and is responsible for paying construction damages and losses to the developer as prescribed in the contract and relevant law provisions.

2. In case the construction contractor disposes dredged materials in wrong places, causing environmental pollution or illegal transfer of contract, he/she will be responsible for rectifying damage he/she has caused and will be taken actions against according to relevant law provisions.

3. With respect to construction contract for maintenance dredging based on implementation quality:

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b) Contract contents must comply with Article 10 of this Circular and must clarify range, scale, standard and duration of contract execution, advances, payment, contract performance guarantee, actions, force majeure and other necessary contents.

Chapter III

ORGANIZATION OF DREDGING OF PORT WATERS UNDER MANAGEMENT OF MINISTRY OF TRANSPORT TOGETHER WITH PRODUCT RECOVERY

Article 26. Compilation and publication of dredging site list

1. On a yearly basis, Vietnam Maritime Administration shall compile or revise list of dredging sites based on provisions set forth under Clause 2 Article 4 of this Circular and following information:

a) Name of dredging sites, design specification and standards of the dredging sites;

b) Estimated amount of dredged materials for use, type of dredged materials for use, implementation period;

b) Estimated initial investment and construction budget.

2. The dredging site list must include mandatory specified in Clause 3 Article 26 of Decree No. 159/2018/ND-CP.

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a) Vietnam Maritime Administration shall compile the list dredging site and propose Ministry of Transport before June 15 each year;

b) Ministry of Transport shall consult People’s Committees of provinces or cities where the dredging sites are situated (if necessary) before July 01 each year;

c) Ministry of Transport shall appraise and approve the list of dredging sites.

4. Publication of the list of dredging sites shall comply with Article 27 of Decree No. 159/2018/ND-CP.

Article 27. Initial investment

Based on the list of dredging sites approved by Ministry of Transport, Vietnam Maritime Administration shall prepare initial investment including expenditure specified in Points a, b and c Clause 1 Article 25 of Decree No. 159/2018/ND-CP and submit to Ministry of Transport for consideration, appraisal and consolidation of the initial investment in annual maritime infrastructure recovery plans.

Article 28. Necessary contents of project contracts

A contract for project on promoting private sector involvement in dredging of port waters shall comply with Article 35 of Decree No. 159/2018/ND-CP and guidelines of Ministry of Construction on construction contracts and following contents:

1. Information on parties of the contract

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Party B: An investor

Information on parties includes: information on legal representatives, titles, address, phone number, account number, fax number, TIN of each party of the contract.

2. Objectives and location of the project

a) Description of the project objectives;

b) Description of the project location.

3. Duration and progress of contract execution

a) The duration of contract execution including duration of land clearance, commencement of construction and progress of each work item in each site of the project, construction completion date shall be made into detailed annexes specifying progress and duration of each work item in each site;

b) Cases and eligibility of contract renewal or early termination.

4. Scale and methods of construction

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b) Methods, process and plans of construction.

5. Contract price including:

a) Dredging expenditure (including payment made to the state for activities specified in Points a, b and c Clause 1 Article 25 of Decree No. 159/2018/ND-CP; compensation and land clearance expenditure);

b) Value of recovered products;

c) Difference in value between the dredging expenditure and the value of recovered products;

d) Adjustment to the dredging expenditure, the value of recovered products and the difference in value.

6. Handover of construction cleared sites

Vietnam Maritime Administration shall take charge and organize transfer of cleared sites serving construction to investors before dredging construction.

7. Construction technical and quality requirement of the project, project acceptance testing and handover

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b) Criteria, basis and categories of the acceptance testing;

c) Dossiers on acceptance testing and handover.

8. Disposal and transfer of project

The investors must not dispose or transfer the project.

9. Prior to the signing of the construction contract, Party B must:

a) Issue regulations on selection of consulting contractors, goods suppliers and other contractors for joint adoption during the project implementation satisfactory to equality, transparency and economic efficiency;

b) Send the list of construction contractors attached to dossiers on qualification of the construction contractors to Part A for approval;

c) Party B must be accountable to Party A for progress, quality, occupational safety, environmental protection, their errors and activities performed by the construction contractors;

d) Party B must not assign the construction contractors with workload under the contract that exceeds ratio specified in bidding documents and relevant provisions of the law.

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a) Prior to contract effective date, Party B must submit the contract performance guarantee to Party A ranging from 1% to 3% of the total project investment, the contract performance guarantee may be either a deposit or a margin or a bank guarantee of a bank or a financial institute in Vietnam.

In case Party B includes partner contractors, each partner must submit performance guarantee to Party A, amount of the performance guarantee shall equal the contract value that each partner is responsible for. If the partner contractors agree to let a leader thereof to submit the performance guarantee, the leader shall submit the performance guarantee to Party A then each partner shall submit the performance guarantee of the leading contractor in the partnership an amount equivalent to contract value that each partner is responsible for.

The performance guarantee must be valid and effective until Party B has constructed and completed the construction specified in the signed contract and tested for acceptance by Party A. If clauses of the contract performance guarantee specify the expiry date and Party B fails to satisfy obligations of the contract 10 days before the expiry date, Party B shall extend value of the contract performance guarantee until the construction is completed and all errors are rectified;

b) Party B shall not receive the contract performance guarantee in case of rejection of executing a valid contract and other cases (agreed upon by the parties). Party A must return the contract performance guarantee to Party B once Party B has completed all works under the contract.

11. Rights and obligations of Party A:

a) transfer navigation markers and cleared sites for construction according to the contract to Party B.

b) examine and inspect construction process according to applicable laws.

c) instruct the investor to choose a competent independent supervision consulting body to supervise the project implementation according to regulations on management of construction investment and applicable laws.

d) examine, supervise and assess the compliance of obligations of the investor in satisfying requirements regarding scale, construction technical and quality standards, project progress, environmental protection and fire prevention.

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e) assist Party B in contacting local authorities to deal with issues (if any).

g) consider suggestions of reasonable revisions of Party B regarding investment capital, technical design and other conditions to ensure the project efficiency and propose competent authority.

h) other rights and obligations as per the law.

12. Rights and obligations of Party B:

a) complete procedures regarding resources, environment, fire prevention and relevant procedures as per the law.

b) prepare and propose traffic safety assurance plan as specified in Article 6 of Decree No. 159/2018/ND-CP.

c) select and sign contract with the competent independent supervision consulting body (paid by Party B) after receiving remarks of Party A to supervise the project implementation while conduct acceptance testing, make payment and settlement of the contract according to regulations on management of construction investment and applicable laws.

d) accept and transfer navigation markers and cleared sites for dredging construction.

dd) manage or select and sign contract with the competent independent consulting body (paid by Party B) to manage the construction, conduct periodic survey and measurement activities, conduct acceptance testing to bring the construction into use, make payment and settlement of the contract according to regulations on management of construction investment and regulations and law.

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g) fully comply with regulations on environmental protection, fire prevention and measures to guarantee maritime traffic safety during the construction. Be responsible for equipment and labor safety during the project implementation.

h) fully satisfy taxes, duties, charges, fees and other financial obligations as per the law.

i) comply with provisions on contract performance guarantee specified in Clause 10 of this Article.

k) conduct periodic survey and measurement activities with respect to results of the project implementation (based on detailed project duration and progress to specify the periodic survey and measurement time) under surveillance of representatives of Ministry of Transport, Vietnam Maritime Administration, local Maritime Administration and other relevant entities selected by Vietnam Maritime Administration. Figures of the periodic survey and measurement upon completion must be submitted by Party B promptly to competent agency and organization to issue maritime notice as specified in Decree No. 58/2017/ND-CP dated May 10, 2017 of Government.

l) submit reports on a weekly basis to the local Maritime Administration and on a monthly basis to Vietnam Maritime Administration on project implementation conditions and results together with photos of the operation diaries (of the reporting weeks). Operation diaries must use form under Annex I attached to this Circular. Supervision consultants shall examine and encourage construction contractors to keep operation diaries using form under Annex I attached to this Circular.

m) request the supervision consulting body to submit monthly reports on the project implementation results of the investor and the supervision consulting body using form under Annex II attached to this Circular together with photos of the operation diaries (of the reporting weeks) to the local Maritime Administration and Vietnam Maritime Administration.

n) other rights and obligations as per the law.

13. Default clause

a) If Party A violates any terms or conditions of the contract that leads to early termination of the contract, Party A is responsible for compensating Party B for reasonable expenditure which Party B has made by the time of contract termination but no more than 3% of the dredging expenditure. Party A shall request the competent authority to consider and approve the source of compensation in order to pay Party B;

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c) If Party B violates any terms or conditions of the contract that directly impacts the project progress or quality, or leads to early termination (except for force majeure specified in this contract), Party B shall suffer the penalty clause (based on each project to specify the fine), this fine shall be taken from the contract performance guarantee, if the contract performance guarantee is not enough to cover the fine, the investor shall make additional payment.

14. Contract termination

a) The contract termination shall occur on the expiry date if both parties fail to reach an agreement to extend the contract approved by the competent authority or when Party B finishes and transfers the project to Party A (whichever case comes first);

b) Party A may terminate the contract early if: Party B fails to make contract performance guarantee; Party B abandons the construction of fails to continue to satisfy the obligations according to the contract; Party B fails to conduct operations according to the contract for 15 consecutive days without valid reasons; Party B assigns subcontractors the entire construction or dispose the contract without acceptance of Party A; Party B goes bankrupt or insolvent, has their business license revoked and assets administered.

c) Party B may terminate the contract early if: Party A fails to fulfill their obligations according to the contract; suspension of the project due to errors of Party A or regulations of Government that lasts more than 45 days;

d) In case of early contract termination, the party requesting the termination must send a notice to the other party regarding the termination 10 days prior and follow procedures to terminate the contract, except cases where one party goes bankrupt or insolvent, has their business license revoked and assets administered, the contract may be terminated immediately.

dd) The contract termination shall not affect nor release any party from any debt, obligation or responsibility incurring or arising prior to the date of contract termination.

15. Contract settlement

a) After record of completion inspection of all work contents prescribed by the contract is signed by both parties, Party B shall present Party A the contract settlement dossiers including: record of completion inspection of all work contents under the contract; schedule of contract settlement value (A-B settlement) which specifies the dredging expenditure, value of recovered products, contract value; as-built documents, construction operation diaries; other documents under the contract agreement (if any).

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16. Contract finalization

a) A contract shall be finalized when: both parties have satisfied their obligations under the signed contract; the contract is terminated as specified in Clause 14 of this Article.

b) The contract finalization must be completed within 30 days from the date on which parties to the contract satisfy their obligations under such contract or the contract is terminated according to Clause 13 of this Article. Unless either Party A or B goes bankrupt, insolvent, has their business license revoked, the contract automatically expires without finalization.

17. If either party encounters force majeure, inform the other party in writing at earliest convenience and shall be excluded from any liability due to the force majeure.

18. Documents attached to the contract

a) Documents attached to the contract are inseparable parts of the contract, including: bid notice or direct contracting documents; specific conditions of the contract; general conditions of the contract; Bidding documents or request of Party A; design drawings and technical instructions; bid or suggestion of Party B; contract negotiating record, revisions of the contract; annexes of the contract; other relevant documents.

b) Order of priority of application of documents attached to the contract

The order of priority of application of documents attached to the contract depends on mutual agreement between both parties. In the event of no agreement between the parties, follow order specified in Point a of this Clause.

19. Dispute resolution

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b) During the contract implementation, should there be any difficulties, both parties must actively cooperate and prioritize negotiation as a solution within 30 days from the date on which the dispute occurs;

c) In the event of no negotiation between the parties, report to the authority approving the project for consideration. If mutual agreement is still not reached, the dispute shall be dealt with by an arbitrator at Vietnam International Arbitration Center.

Chapter IV

IMPLEMENTATION

Article 29. Entry into force

1. This Circular comes into force from November 1, 2019.

2. The turnkey standard maintenance dredging of navigation channels in a definite period starts from 2020.

3. Annuls Circular No. 25/2013/TT-BGTVT dated August 29, 2013 of Minister of Transport on procedures for dredging of navigation channels, waters, water areas in port waters together with product collection, and scouting and extraction of minerals in port waters and navigation channels without using state budget and state management on maritime and Circular No. 28/2015/TT-BGTVT dated June 30, 2015 of Minister of Transport on amendments to a number of Articles of Circular No. 25/2013/TT-BGTVT dated August 29, 2013 of Minister of Transport.

Article 30. Implementation

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PP. MINISTER
DEPUTY MINISTER




Nguyen Van Cong

Thông tư 35/2019/TT-BGTVT quy định về hoạt động nạo vét vùng nước cảng biển do Bộ trưởng Bộ Giao thông vận tải ban hành