DOCUMENT PREVIEW
"Code of Operations" means the rules for the operation of the Port which shall be applicable within the Perimeter, such rules to inter alia regulate the relations between the Company and users of the Port. Such Code of Operations shall have to be prepared by the Company and shall have to be approved by the Conceding Authority and the Regulatory Authority in accordance with Clause 12.7;
"Commencement Date" means the date of the signature of the Concession Agreement in accordance with Clause 5.2;
"The Company" means the company established under the laws of _______having its principal office at [ its successors and permitted assignees, which has been incorporated by the Investors as defined below, and which is being granted the Concession Rights under this Agreement;
"Company Assets" means assets financed and/or created by the Company;
"Concessionaire Event of Default" means an event as described in Clause 21.1;
"Conceding Authority" means Port as duly authorized by the Government and any relevant Government bodies related thereto, its respective successors and permitted assignees;
"Concession Assets" means all assets of the Port included in the Perimeter and on which a right of concession is granted to the Company under this Agreement and which are described in Annex 1 and 12;
"Concession Fees" means the fees to be paid by the Company to the Conceding Authority and made up of the Entry Fee and the Performance Fee in accordance with Clause 2.5;
"Concession Period" means the period set out in Clause 2.3 or as may be extended pursuant to this Agreement;
"Concession Rights" means the rights granted to the Company pursuant to Clause 2.1;
"Date of Entry into Force" means the date determined in accordance with Clause 5;
"Design Criteria" means the technical criteria for the design of the Rehabilitation Works set out in Part I of Annex 5;
"Design Review Procedure" means the procedure for the review and approval by the Conceding Authority of the Company's designs and proposed design changes as set out in Part II of Annex 5;
"Detailed Design" means the detailed construction design for the Rehabilitation Works approved [by the Conceding Authority/Qualified Engineer] in accordance with the provisions of Clause 8;
"Development Plan" means the forecasts of traffic activity and transportation development studies resulting in asset developments and investments related to the Port capacity and development thereof through the improvement of services and equipment, the development of such infrastructure and equipment, the improvement of land access to the Port (rail and roads) as well as maritime access. Such Development Plan to be made periodically pursuant to 2.2.2(c);
"Development Works" means works other than those in core activity and which are associated with public services, pursuant to clause 15;
"Entry Fee" means the fee to be paid by the Company to the Port as described in Clause 2.5.1;
"Escrow Account" means the account to be opened on application of Clause 2.5;
"Escrow Agent" means the agent to operate on the Escrow Account;
"Escrow Agreement" means the agreement to be entered between the Conceding Authority, the Escrow Agent and the Company as per Clause 2.5;
"Force Majeure" means the events referred to in Clause 20.1;
"Free Possession" means the right to occupy and use the Perimeter and to take the benefit of the Rights of Way for the purposes of this Agreement without undue interference from any other person or entity and subject to the definition of the Perimeter, as per Clause 6 herein;
"Government" means the Government of_________;
"Government Authority" means any _______ ministry, department, agency, directorate, public authority, body or other person having jurisdiction in ____________ with respect to the Company or the Project;
"Handback Assets" means all assets which are covered by the present Concession whether existing at the time of this Agreement or built or constructed by the Company as Development Works and to be returned to the Conceding Authority under Clause 18;
"Handback Bond" means the performance guarantee provided by the Company pursuant to Clause 18.1;
"Handback Date" means the last day of the Concession Period;
"Investors" means the companies, joint venture or consortium members which submitted the successful Tender, their successors and permitted assignees;
"Maintenance and Performance Bond" means the performance guarantee provided by the Company pursuant to Clause 12.2;
"Maintenance and Performance Indicators"
means all figures rates and descriptions as described in Annex 7;
"Maintenance Standards means the operating and maintenance requirements and standards set out in Annex 7;
"Materials" means all materials and movable equipment which the Company may bring on the Perimeter in order to carry out its obligations under this Agreement;
"[CURRENCY]" means the lawful currency of [COUNTRY];
"Ministry" means the Ministry of Transport and Communications of __________;
"Notice of Approval" refers to the certificate issued by the Conceding Authority pursuant to Clause 5;
"Notice of Intention to Terminate" means a notice issued in accordance with Clause 21.3;
"Notice of Termination" means a notice issued in accordance with Clause 21.5;
"Ordinance" means the [___] to be issued by the Government for approval of this Agreement;
"Performance Fee" means the fee to be paid by the Company to Port as described in Clause 2.5.2;
"Perimeter" means the area of land and any building, fixture, installation and non movable assets with rights attached thereto, to the exclusion of Port's Equipment and which are situated on the map attached hereto in Annex 1, and listed in Appendix 12 ;
"Port" means the whole site of the port of ________ including all lands, superstructure and infrastructure, as per map in Annex 1;
"Project" means the rehabilitation, management, operation and maintenance of the Port in accordance with this Agreement;
"Prudent Industry Practice" means the practices, methods and acts engaged in or approved by a significant portion of the international port operation and maintenance industry for facilities similar to the Perimeter that, from time to time, in the exercise of a reasonable judgment in light of the facts known or that reasonably should be known at the time a decision is made, would be expected to accomplish the desired result in a manner consistent with applicable laws, regulations, and the requirements of reliability, safety, environmental protection, economy and expedition. With respect to the Perimeter, Prudent Industry Practice shall include, but shall not be limited to, taking reasonable steps to ensure that:
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Adequate materials, resources and supplies, are available to meet the needs of the operation of the Perimeter under normal conditions and reasonably anticipated abnormal conditions.
"Rehabilitation Schedule" means the schedule set out in Clause 9.2;
"Rehabilitation Works" means the works concerning the reconstruction, repair and improvement of the assets which are to be carried out under the Design Criteria under the control of the Qualified Engineer, as described in Annex 4 as well as any associated facilities which are within the Perimeter ;
"Rights of Way" means rights of passage over or under, and of access and egress to and from, the Site and any part or parts thereof for the purpose of constructing, operating and maintaining the Port ;
"State" means the ________, its successors and permitted assignees;
"Suspension" means suspensions as defined Clause 21;
"Tender Offers" means the tender offers prepared and submitted by the Investors to the Conceding Authority on [tender receipt date] for the Project;
"Transition Period" means the period described in Clause 5.3 hereinafter;
"Transition Period Agreement" means the agreement to be concluded as per Clause 5.3;
"Unforeseeable Change of Circumstances" is defined in Clause 20.2;
"Utilities" means water, sewerage, electricity, gas and telecommunications;
"USD" means the lawful currency of the United States of America.
1.2 Interpretation
1.2.1 The Annexes to this Agreement shall form an integral part hereof and references to Annexes shall be to Annexes to this Agreement unless otherwise stated.
1.2.2 The headings of Clauses to this Agreement and the Table of Contents are inserted for convenience of reference only and shall not in any way affect the interpretation of this Agreement.
1.2.3 References to any party or person referred to in this Agreement include references to its respective successors and permitted assignees.
1.2.4 The words "include", "includes", and "including" shall at all times be construed as if followed by the words "without limitation".
1.2.5 References to days, weeks, months and years are references to days, weeks, months and years of the Gregorian calendar.
2. RIGHTS AND OBLIGATIONS OF THE CONCESSIONAIRE
2.1 Grant of the Concession Rights
2.1.1 Subject to the terms of this Agreement, the Conceding Authority grants to the Concessionaire the exclusive right to finance, rehabilitate, manage, operate, maintain, develop and optimize the Perimeter and the right to carry out any Development Works until the end of the Concession Period at the Company's own cost and risk and without recourse to Conceding Authority credits or guarantees.
Under the terms of this Agreement, the Company shall be responsible for:
(a) negotiating terms and conditions of all necessary contracts with suppliers and commercial services providers, including electricity, communications, etc.;
(b) establishing salary policy;
(c) Establishing and harmonizing a tariff policy in accordance with Clause 13 in conjunction with the Railway Concessionaire(s), being understood that both parties should mutually agree upon the terms and conditions of their cooperation in establishing tariffs policy and publish such tariffs.
2.1.2 The Concessionaire shall not subcontract or sub concede parts of its rights and obligations to any third party without the written prior approval of the Conceding Authority.
2.2 Obligations of the Company as Concessionaire
Subject to the terms of this Agreement, the Company accepts responsibility for the financing, rehabilitation, management, operation, maintenance development and optimization of the Perimeter and the performance of any Development Works it thinks useful for its mission until the end of the Concession Period at the Company's own cost and risk and without recourse to Conceding Authority’s credits or guarantees.
The Company shall in particular have the following obligations:
2.2.1 General Obligations of the Company
(a) to rehabilitate, maintain, renew, develop, commercialize and optimize the public infrastructure and fixed superstructure conceded by the Conceding
Authority to the Company or installed by the Company in accordance with this Agreement ;
(a) to provide or procure the provision of harbor services for vessels (anchorage, tugging, pilotage, water, bunkering) ;
(a) to ensure the management of the harbor included in the Perimeter;
(b) to maintain a convenient and safe access across the Perimeter for vessels, goods and persons between the sea and the hinterland ;
(c) to proceed with all the necessary investments to carry out its obligations under this Agreement ;
(d) to comply with all Applicable Regulations ;
(b) to use the services of an international corporate auditor firm established in ___________to maintain audited consolidated accounts of the Company according to _______law and usual international standards ;
(c) to publish tariffs, rates and terms of services applicable in the Perimeter.
(d) to publish on a regular basis and at least yearly such audited consolidated accounts, and keep them at the disposal of the Conceding Authority and of the Regulatory Authority, with the first yearly accounts to be issued on [________]
2.2.2 Technical Obligations of the Company
In accordance with sound professional practice and in strict compliance with Applicable Regulations and safety standards in [___________], as well as instructions issued by the Regulatory Authority, the Company undertakes to :
(a) carry out the Rehabilitation Works defined in Annex 4 ; provide free access to the Perimeter and to any part thereof to the Qualified Engineer in order for him to carry out his mission and cooperate in good faith with any representative or agent of the Conceding Authority and Company ;
(b) properly operate and maintain its infrastructure and equipment contained in the Perimeter according to Maintenance and Performance Indicators and Maintenance Standards ;
(c) prepare, propose and implement a Development Plan to be agreed with the Conceding Authority and the Regulatory Authority acc
ording to the Design Criteria ;
(a) make sure that, within one year as from the Commencement Date of this Agreement and until its termination, adequate and regular dredging at 9m 40 (nine meters and forty centimeters) is carried out in order to maintain depth and a 100 (one hundred) meters width necessary for navigation and safe maneuvering in the access channels , basins and inner harbor. For the first 12 months after the Commencement Date, the Company shall bear the dredging costs up to a quantity of one million (1,000,000) cubic meter of dredged of slime/ooze, and that any cost resulting from dredging beyond such quantity shall be borne by the Conceding Authority, and that any such excess cost will be first deducted from the variable portion of the Performance Fee to be paid by the Company ;
(b) make sure that a 24 hour marking and buoys system is installed, restored and properly maintained for access channels to the Perimeter.
2.2.3 Obligations of the Company vis-à-vis Users
(a) the Company will have an obligation to provide and ensure that all users have an equal right to access and use of the Perimeter, and shall ensure that the Perimeter is operated and maintained safely in accordance with all Applicable Regulations ;
(b) the Company shall prepare and keep updated in accordance with instructions issued by the Regulatory Authority, a Code of Operations of the Perimeter governing the relationship between the Company and its users and suppliers ;
(c) The Company shall set up and publish a tariffs codification system for port dues for ships and cargo in line with Clause 2.1.1(c).
2.3 Concession Period
Subject to the extension and termination provisions in this Agreement, the Concession Period shall be for a period of 15 years as from the Commencement Date of this Agreement.
2.4 Extension of the Concession Period
2.4.1 Without prejudice to any extension of the Concession Period to which the Concessionaire might otherwise be entitled pursuant to the terms of this Agreement, the Concession Period may be extended by mutual agreement of the parties upon such terms as may be
agreed between the Conceding Authority and the Company in the light of the continuing feasibility of the Project, the rate of return to both the Conceding Authority and the Company, and the interests of the users and the Company's shareholders.
2.4.2 Where the Concessionaire wishes to extend the Concessionaire Period, it shall submit a request to the Conceding Authority with a prior written notice of 60 months before expiration of this Agreement and the Conceding Authority shall respond in writing at least 36 months before expiration of this Agreement.
2.4.3 After such request by the Concessionaire, the Conceding Authority shall, subject to the necessary approval of the Regulatory Authority, establish technical, administrative, economical and financial conditions for such extension.
2.5 Concession Fees - Financial Obligations of the Concessionaire
In consideration for the granting of the Concession Rights, the Concessionaire shall pay to the Conceding Authority the Concession Fees in installments made up of the Entry Fee and an annual Performance Fee, as follows.
2.5.1 Entry Fee
2.5.1.1 The Entry Fee shall be USD [__________].
2.5.1.2 Upon receipt of the Notice of Approval by the Conceding Authority, the Concessionaire shall transfer to an Escrow Account opened into the name of the Conceding Authority as defined in Annex 13, the amount of the Entry Fee.
2.5.1.3 Upon confirmation of the reception of the Entry Fee on the Escrow Account, the Concessionaire and the Conceding Authority shall sign the Concession Agreement within 3 business days, which will materialize the date of Entry into Force of this Agreement.
2.5.1.4 Upon issue of the Request for Take-Over by the Concessionaire, the Conceding Authority shall issue a Certificate of Commencement and will require the Company to release the money in the above mentioned Escrow Account. The Commencement Date will be 3 business days after the issue of the Certificate of Commencement.
2.5.2 Performance Fee
From the Commencement Date, and until the termination of this Agreement, the
Concessionaire shall pay to the Conceding Authority an annual Performance Fee to be computed as follows:
- a fixed portion of USD[to be proposed by bidders] payable in advance on a quarterly basis, with a grace period for the first year of operations, and reevaluated each year on the basis of US inflation by using the official Consumer Price Index published by the US Department of Trade.
- a variable portion equivalent to 10 % (ten per cent) of the annual turnover of the Company, computed as follows (the "Annual Company's Turnover") and payable on a semester basis, at the end of each semester.
For the purposes of calculating this variable portion of the Performance Fee, in any given year, the "Annual Company Turnover" shall be:
(a) the aggregate invoiced turnover (including circulation and sales taxes) generated by activities of any kind whatsoever which are carried out within the Perimeter, whether or not such activities result from the actions of the Company or any of its sub concessionaires, subsidiaries, subcontractors, agents or assignees, with the following qualification;
(b) as for the contracts already existing on the Perimeter as defined in Annex 1 and 12, which have been concluded by the Conceding Authority with private parties and which are under performance and until they are terminated or modified, the invoiced which will be considered as invoiced of the Company shall only be the existing revenues/income derived by the Conceding Authority from such contractual parties.
2.6 Other Financial Obligations of the Company
2.6.1 The Company shall provide and secure all the financing required for the Rehabilitation Works to achieve the Maintenance and Performance indicators within 3 years.
2.6.2 The Company shall deliver to the Conceding Authority the following:
(a) a Rehabilitation Bond of a net amount of USD [ ] and with a maturity of 3 years to guarantee the proper and timely performance of the Rehabilitation Works ;
(b) a Maintenance and Performance Bond of USD [___] as per Clause 12.2 to ensure that Maintenance and Performance
targets are met, and whose value will be adjusted every five years to take into account inflation effect ;
(c) a handback bond of an amount which will be equivalent to USD [AMOUNT] in constant terms, and with a maturity in accordance with Clause 18.12.2, to guarantee performance of the Company's handback obligations under this Agreement Clause.
2.6.3 The Company shall obtain and keep appropriate civil and accident insurance coverage as per Clause 17 and more generally such insurance coverage which shall be compatible with the Company's responsibilities toward the Conceding Authority, users and third parties.
2.7 Exclusivity of the Concession
2.7.1 The Conceding Authority hereby agrees that in the Perimeter, and subject to the provisions of other agreements which are still in force on the Perimeter as listed in Annex 15, the Company will have and enjoy the Concession Rights on an exclusive basis throughout the Concession Period and the Conceding Authority shall ensure that, save as provided in this Agreement, no part of the Concession Rights shall be granted to any other party prior to termination of this Agreement.
2.7.2 However, the Conceding Authority shall not assume any responsibility for any possible economic measures, the commissioning any new railway or road system or any other actions in the Perimeter that might directly or indirectly imply alteration to volume of traffic passing through the Perimeter.
2.8 Detailed List of the Company's Obligations - Sanctions for Defaults
2.8.1 A detailed list of the Company's obligations according to which the Company shall meet the minimum standards of quality of services to be rendered to users is included in the Maintenance and Performance Indicators and Maintenance Standards as described in Annex 7.
2.8.2 Any default by the Company under the obligations listed in Annex 14 shall allow the Regulatory Authority to take appropriate sanctions as follows:
2.8.2.1 Any default under Annex 14 and established by the Regulatory Authority shall be notified to the Company.
2.8.2.2
The Regulatory Authority shall warn or fine the Company, depending upon the event of default and respective sanction, in accordance with the nature of the sanction, directly or through document in the form of delivery notice.
2.8.2.3 The Company shall have 15 (fifteen) days to pay such penalties.
2.8.2.4 Failure to pay the penalties hereafter defined in due time shall result in an additional 10 % increase of the amount of the penalty, plus interest of 1 % per month.
2.8.2.5 In case of recurrent failure for 120 (one hundred and twenty) days the penalty amount shall be doubled.
2.8.2.6 Payment of the penalty shall not discharge the Company of remedying the relevant failure/default, nor shall it discharge it of any civil or criminal liability.
2.8.2.7 Recurrent default under its obligations of this Agreement may be cause for termination of the Concession by the Conceding Authority.
2.8.2.8 The Company shall have the right to request from the Conceding Authority and Regulatory Authority that the penalties applied be reconsidered, after the payment of the respective penalties, within a maximum of 30 (thirty) days from the date of penalty receipt.
2.8.2.9 Should the Conceding Authority/Regulatory Authority fail to answer the request within 60 (sixty) days, the amount paid shall be returned to the Company.
2.8.2.10 The Company shall be warned in case of default under any obligation pertaining to GROUP I as described below and corresponding to Annex 14, section 1 to 3.
2.8.2.11 The Company shall be warned and/or imposed a penalty in case of default under any obligation pertaining to GROUP II as described below and corresponding to Annex 14 section 4 to 18.
2.8.2.12 The Company shall be imposed a penalty in case of default under any obligation pertaining to GROUP III as described and corresponding to Annex 14, section 19 to 25.
2.8.2.13 for recurrent default of the obligations classified in GROUP I, the Company shall be liable to the penalty, established for GROUP II.
2.8.2.14 for recurrent default of the obligations classified in GROUP II, the
Company shall be liable to the penalty, established for GROUP III.
2.8.2.15 the penalties per incident shall be as follows:
[. GROUP II: [___] USD.]
[. GROUP III: [___] USD.]
3. THE CONCEDING AUTHORITY'S OBLIGATIONS AND RIGHTS
3.1 Obligations of the Conceding Authority
The Conceding Authority shall:
(a) ensure that the Company can take possession of the Railway Perimeter and have free access to it ;
(b) Declare of public utility for Concession purposes, assets considered necessary to the Concession and listed in Annex 12.
3.2 Rights of the Conceding Authority
The Conceding Authority shall have the right to:
(a) regulate and monitor the services rendered under Concession ;
(b) intervene in order to guarantee the adequate rendering services, whenever necessary ;
(c) be entitled to terminate the Concession Rights in the cases provided for this Agreement ;
(d) verify compliance with regulatory conditions for the services and the clauses herein ;
(e) make its best efforts to see that good quality service is carried out by the Company ; monitor users' requests and complaints;
(f) check reasonableness of Company's practices,
(g) collect and publish data related to the activity of the [_____] Port,
(h) Stimulate increase of quality, production, and environment protection.
4. THE REGULATORY AUTHORITY
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Transfer of personnel;
5.4 Takeover Procedures
5.4.1 Upon satisfactory completion of the above Transition Period program, the Company may issue to the Conceding Authority a Request for Take Over.
5.4.2 Upon reception of this Request, the Conceding Authority shall issue a Certificate of Commencement which will confirm the transfer of free possession of the Perimeter.
5.4.3 Upon reception of the Certificate of Commencement, the Company shall, pursuant to Clause 2.5.1.4, transfer the Entry Fee to the Conceding Authority within three (3) business days.
5.4.4 The Commencement Date of this Agreement will start upon confirmation of the transfer of the Entry Fee by the Conceding Authority. Starting from this date, the Company will be fully responsible for all operations within the agreed Perimeter.
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TRANSFER OF FREE POSSESSION OF THE PERIMETER
6.1 Acquisition of Free Possession
6.1.1 Subject to the definition of the Perimeter as set forth in this Agreement, specially regarding the rights which were granted by Port concerning certain terminals and equipment, the Conceding Authority shall be responsible for obtaining at its own cost Free Possession of the Perimeter (in its conditions as at the date of this Agreement) and of the Rights of Way.
6.1.2 Subject to the terms of definition of the Perimeter as set forth in this Agreement, specially regarding the rights which were granted by the Port concerning certain terminals and equipment in the Perimeter, the Conceding Authority declares that it is entitled to all Rights of Way and use of the Perimeter so as to be in a position to grant the Company its Concession Rights as per this Agreement.
6.1.3 The Conceding Authority shall not dispose of or grant or agree to dispose of or to grant any present of future right(s) or interest(s) in any part of the Perimeter, and shall keep the same free from any liens or encumbrances, that might have a materially adverse effect on the Company's enjoyment of the Concession Rights during the Concession period.
6.2 Delivery Dates[ land Site Packages]
The Conceding Authority shall deliver Free Possession of the Perimeter (or the relevant parts thereof) and shall grant the Rights of Way to the Company not later than 3 business days after the Commencement Date.
6.3 The Conceding Authority to Certify Free Possession
Subject to the provisions of this Agreement, the Conceding Authority shall certify the delivery to the Company of Free Possession of the Perimeter [(or the relevant parts thereof)] together with the necessary Rights of Way, by delivery [on each occasion] of a certificate to that effect, and shall indemnify and hold the Company harmless against all claims, costs, actions, liabilities and expenses sustained or incurred by the Company as a result of any failure by the Conceding Authority to perform its obligations under this Clause 6.
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QUALIFIED ENGINEER
7.1 Appointment of a Qualified Engineer
7.1.1 The Qualified Engineer may be appointed by the Conceding Authority.
7.1.2 The fees and expenses of the Qualified Engineer shall not be borne by the Company, if the Perimeter is not to be transferred all at the same time.
7.2 Role of the Qualified Engineer
7.2.1 The Qualified Engineer shall act as an independent and objective reporter to the Conceding Authority and the Regulatory Authority on the progress and condition of the Rehabilitation Works, the operation, and maintenance, development of the Perimeter and optimization of the services performed in the Perimeter and on any other matters relating to the Project.
7.2.2 The parties hereby undertake to each other that they shall grant the Qualified Engineer such access to the Perimeter and Port, the Rehabilitation Works and any other place or information relating to the Project as he may reasonably require in order to carry out his obligations. The Company shall not at any time seek to influence his independence and objectivity. The aforesaid undertakings shall survive the termination of this Agreement.
7.2.3 In accordance with Clause 10.3
liabilities, damages, losses, expenses and claims caused by the existence on or affecting the Perimeter at the date of signature of this Agreement of any dangerous dumpsites, shipwrecks, hazardous chemical contamination or deposit, munitions, mines, or other man-made environmental hazards. In the event of discovery, prior to Rehabilitation Completion, of any such hazards which, in the opinion of the Company, necessitate an extension of time and/or an increase in costs, the Company shall give notice of the same to the Conceding Authority and to the Qualified Engineer together with all supporting information. The Conceding Authority shall grant such extension of time and reimburse the Company for such increase in costs as in the opinion of the Conceding Authority is required to put the Company in the same economic position as it would have been in had the relevant hazard not existed, provided that the Company shall use its best endeavors at all times to avoid or minimize such delays and increases in costs.
9.7 Information Relating to the Rehabilitation Works
9.7.1 The Company shall furnish to the Conceding Authority and Regulatory Authority all such reports and other such information as the Conceding Authority and Regulatory Authority may reasonably request from time to time for the purpose of ensuring that the performance of the Rehabilitation Works and Development Works by the Company is in compliance with the Company's obligations hereunder including the compliance with:
(a) Applicable Regulations and generally applicable standards, rules and regulations ;
(b) the key technical specifications used for the Rehabilitation Works and Development Works ; and
9.7.2 Upon [Final] Rehabilitation Completion, the Company shall supply the Qualified Engineer, the Regulatory Authority and the Conceding Authority with copies of all as-built drawings and such other technical and design information relating to the completed Rehabilitation Works as they may reasonably request.
9.8 Ownership and Inventory of the Perimeter
9.8.1 Subject to the following Clause 9.8.2, the parties hereby agree that legal title to the Perimeter or any part thereof, including the Rehabilitation Works and, Development Works subject to Clause 15.1 hereinafter, shall be held by the Conceding Authority at all times.
unless there is any accrued liability under the Rehabilitation Bond the Conceding Authority shall undertake with due expedition such action as the Company may reasonably request to assist the Company in procuring the release of so much of the Rehabilitation Bond as remains outstanding.
12. OPERATION AND MAINTENANCE
12.1 Principal Obligation of the company
The Company shall be responsible for the management, operation, maintenance, repair, development and optimization of the Perimeter throughout the Concession Period, at its own cost and risk. The Company shall ensure that throughout the Concession Period the Perimeter is at all times suitable for use by the public and is operated and maintained safely and in accordance with all Applicable Regulations, all Maintenance and Performance standards to be approved by the Regulatory Authority , Prudent Industry Practice principles, the Code of Operations of the Port.
12.2 Maintenance and Performance Bond
No later than twelve (12) months after Rehabilitation Completion, the Company shall deliver the Maintenance and Performance Bond to the Conceding Authority to guarantee the proper and timely performance of the Company's obligations in relation to the operation and maintenance of the Perimeter and achievement of respective indicators set in Appendix 7, issued by a financial institution acceptable to the Conceding Authority, substantially in the form set out at Annex 6, in an amount of US dollars[________] and valid until the provision of the Handback Bond in accordance with Clause 18.
12.3 Operation and Maintenance Contractors
The appointment of any operator or any other third party to undertake operation or maintenance of the Perimeter shall not relieve the Company from its obligations hereunder.
12.4 Public Service Authorities
The public police and coastguard service and the measures necessary in order to ensure the protection of persons and property in the Port and Perimeter shall be undertaken by the appropriate Government Authorities at their own cost and in consultation with the Company. These Authorities shall ensure that the level of law enforcement in the Perimeter is consistent with prevailing [_________] laws and practice.
12.7 Code of Operations
12.7.1 No later than six (6) months after the Entry into Force the Company shall have prepared and shall have submitted to the Conceding and Regulatory Authorities rules a "Code of Operations" . The entry into effect of the Code of Operations shall be subject to the prior written approval of the Regulatory Authority which shall not be unreasonably withheld. The Company shall be entitled to modify the Code of Operations during the Concession Period, provided that the entry into effect of any modification shall be subject to the prior written approval of the Regulatory Authority which shall not be unreasonably withheld.
12.7.2 Until issuance of such Code of Operations the existing legal framework shall apply.
12.7.3 The Company shall give users of the Port due notice of the Code of Operations and at least fourteen (14) days notice of any modification thereto.
12.8 Safety and Emergency Measures
12.8.1 The Company shall manage, operate, maintain and repair the Perimeter so as to improve the safety of the services provided at the Perimeter and of the equipment located therein.
12.8.2 Notwithstanding any other provision of this Agreement the Regulatory Authority shall have the right to close the Perimeter or any parts thereof, or take any other measure if, in the Regulatory Authority's opinion, such closure or measure is necessary in an emergency case for the protection of the public.
12.9 Operating Reports
12.9.1 Every three (3) months the Company shall submit to the Conceding Authority and the Regulatory Authority a report in the format to be agreed upon between the Conceding Authority and the Company:
[Perimeter activity details required by the Conceding Authority such as volume of activity, loading and unloading times etc.].
12.9.2 I n case there is a decrease in traffic/activity from one year compared to the other, the Company shall immediately inform the Regulatory Authority and Conceding Authority, and it shall give all detailed comments, and explanations thereof.
12.10 Loan of Perimeter Equipment and Personnel to Users
The personnel selection procedure shall be made in accordance with conditions to be agreed upon between the selected bidders to the Tender, the Company and the Conceding Authority to be included as Annex 16 to the present Agreement.
12.12.4 The Company shall comply with the Labor and Tax legislation in respect of the personnel employed by it, including for the employees recruited from Port.
12.13 National Services, Goods and Labor
12.13.1 The Company shall use national services and goods whenever they are competitive in terms of quality, service, relevant expertise, delivery schedule and price, and shall insure that its contractors and sub-contractors observe this provision. The Company shall include national contractors in invitations for competitive bidding for contracts if they produce services and goods of the kind and quality required and shall require their contractors to do the same with respect to sub-contracts. When evaluating bids for contracts generally, the Company shall take into account the extent to which the bidders use national services and goods. The Company shall be responsible for the observation of these provisions by its contractors and their subcontractors.
12.13.2 With the exception of the minimum of foreign specialists required, competent national labor shall be employed for the construction, operation and maintenance of the Project. The Company shall comply with national labor laws and respect the rights of the workers. The Company shall be responsible for compliance with this provision by its contractors and their sub-contractors.
12.14 Warehousing and Storage of Goods
Warehouses, terminals and storage yards shall be kept locked and secure outside normal working hours and access thereto shall be restricted to properly authorized persons, such as police officers, guards, customs or immigration authorities and coastguard.
The Company shall carry out a visual inspection and such other measures as may be necessary to ensure that goods stored in warehouses at the Perimeter conform to the applicable health and safety standards and all Applicable Regulations and shall be entitled to refuse to store goods which do not so conform.
The Company shall take appropriate measures to avoid cross-contamination of goods stored in warehouses and terminals.
12.15 Claims Register
The Company shall maintain a record of claims and complaints received from users of the Perimeter. The Company shall make available such register to the Regulatory Authority and to the public on reasonable request.
13. TARIFFS FOR COMMERCIAL SERVICES
13.1 Company’s Entitlement to Collect Tariffs
13.1.1 The Company shall be entitled to charge and collect payment of port dues and tariffs in consideration for the services supplied by the Company related to cargo and passenger transportation services on the Perimeter, in accordance with the terms of this Agreement.
13.1.2 All expenses relating to tariffs collection shall be borne by the Company.
13.1.3 The Company may set and collect tariffs for auxiliary operations and may adjust such tariffs.
13.2 Tariffs Levels
13.2.1 The tariffs charged by the Company for any service shall at all times be sufficient to cover the long-term costs to the Company in providing the services, except in the case of a promotional offer which is intended to increase the profitability of the Perimeter and which is available for a limited period of time.
13.2.2 Subject to the foregoing, the Company shall be free to set and revise the tariffs charged for its services in order to take into account the costs it incurs and/or the situation of the transportation market. The tariffs may include reductions intended to increase traffic, improve the conditions of use and should improve the profitability of the Perimeter.
13.2.3 On foreign ships and transit traffic, the Company shall be allowed to charge and collect tariffs in foreign currencies such as USD.
On domestic ships carrying out domestic transportation through the Perimeter facilities and services, the tariffs shall be charged and collected in national currency.
13.2.4 For maritime services the tariffs will be subject to the approval of the Regulatory Authority.
13.3 Notice of Changes in Tariffs
The Company shall provide clients with at least fourteen (14) days notice of any changes to tariffs levels during the Concession Period.
13.4 Users Exempt from tariffs
Officers and agents of the ambulance, firefighters, police, coastguard and customs services as well as of the armed forces when performing their public duties shall be exempt from the obligation to pay tariffs for using the facilities and services of the Perimeter.
14. GENERAL OBLIGATIONS OF THE PARTIES
14.1 Compliance With and Changes in Laws and Regulations
Both parties shall at all times observe and comply with all Applicable Regulations in carrying out their obligations under this Agreement. Both parties shall be deemed at all times to have full knowledge of the relevant laws and regulations of [________]
14.2 No Interference by the Conceding Authority or Government Authorities
14.2.1 Subject to the provisions of this Agreement, the Conceding Authority undertakes not to do, and to ensure that no Government Authority does, anything which materially prevents or adversely affects the Company's ability to perform its obligations under this Agreement or the operation of or free access for users to the Perimeter or the collection by the Company of tariffs from users of the Perimeter save as may be necessary on the grounds of national security, public safety or for the discharge and performance of its duties under any Applicable Regulations.
14.2.2 If any operation or action is to be carried out by the Conceding Authority or its designee on the grounds of national security, public safety or for the discharge and performance of its duties under any applicable law, which will materially prevent or adversely affect the Company's ability to perform its obligations under this Agreement or the operation of or free access of clients for the Perimeter or the collection by the Company of tariffs from clients of the Perimeter, the Conceding Authority shall ensure that, except in the case of an emergency, written notice thereof is first given to the
Company a reasonable period of time in advance so that such persons shall discuss with the Conceding Authority and the Company the method of carrying out such operations or action to ensure the least practicable disruption to the Company within the limits imposed by the prevailing requirements of national security, public safety or law. Nevertheless, if any such action by the Conceding Authority or its designee does cause delay to the Rehabilitation Works, the Rehabilitation Completion and the Concession Period shall be extended by an appropriate time period as determined by the Regulatory Authority or its Qualified Engineer.
14.3 Environmental Protection
In the performance of its obligations under this Agreement the Company shall ensure that appropriate measures are taken to protect the environment of and around the Site from pollution, noise and other results of its operations in accordance with any Applicable Regulations.
14.4 Utilities
14.4.1 The Company shall pay for Utilities at the normal commercial rates.
14.4.2 The Company shall, at its own cost and risk, be responsible for the clearance, relocation and diversion of all Utilities on the Perimeter affecting the Rehabilitation Works or necessary to operate and maintain the Perimeter.
14.5 The Conceding Authority May Enter Perimeter
The Conceding Authority and the Regulatory Authority or any designated representative thereof may from time to time (subject and without prejudice to Clauses 14.2 and 20.1) enter any part of the Perimeter in order to:
(a) ascertain whether the Rehabilitation Works are to become unsafe or dangerous ; or
(b) Observe tests of materials, equipment or plant carried out, with the Qualified Engineer if they so elect.
14.6 Safety and Security on Perimeter
14.6.1 The Company shall ensure that its operations on the Perimeter comply with all applicable health and safety standards under national law and generally all Applicable Regulations.
14.6.2
The Company shall be responsible for taking all necessary security measures on the Perimeter, including measures to exclude unauthorized access to the Rehabilitation Works and construction of the Developments Works. The Company's security agents shall wear or carry proof of identity and function when performing their duties.
14.7 Taxes
14.7.1 The Company shall pay all taxes, customs duties and charges in accordance with all applicable laws and regulations of [______], unless it benefits from privileges applied and obtained from the Relevant Authorities.
14.8 Approvals
The Company shall at its own cost make all necessary applications and carry out all other necessary acts at the requisite time and in requisite form to obtain and maintain such Approvals as may be necessary for the Company to perform its obligations under this Agreement and the Development Plan.
14.9 Company's Responsibility for its Contractors
For avoidance of doubt, the Company shall be responsible for the acts or omissions of any Rehabilitation Contractor if any and all its other sub-contractors, their employees and agents, as if such acts and omissions were the acts and omissions of the Company.
15. DEVELOPMENT WORKS
15.1 Developments Works
15.1.1 The Company's objective would be to exploit public port system, all other business activities being forbidden unless these activities are associated with public services and have previous authorization from the Conceding Authority such as:
(i) use of areas for installation of data, voice, text, image and other type of transmission system,
(ii) commercial exploitation of property,
(iii) technical consulting services,
(iv) installation and exploitation of intermodal terminals,
(v) Exploitation of real estate projects.
The Company and the Conceding Authority may establish for each case the amount payable by the Company to the Conceding Authority depending on the nature and profitability of the activity.
15.1.2 Subject to the terms and conditions hereinafter, the Company may, with the prior written approval of the Conceding Authority and Regulatory Authority, build, construct or install, a Development Work.
The Conceding Authority and Regulatory Authority shall not unreasonably withhold their approval of any Development Work which is proposed by the Company.
The approval of a Development Work shall be refused if such Development Work would in the opinion of the Conceding Authority:
(a) have a materially adverse effect on the safety of the Perimeter or the environment ;
(b) be contrary to [________] Applicable Regulations ;
15.1.3 After obtaining the approval by the Conceding Authority and the Regulatory Authority, the Company shall be responsible for financing, designing, constructing, operating and maintaining any Development Work in accordance with Prudent Industry Practice and Applicable Regulations.
15.2 Regime of Developments Works
(a) any Development Work made, constructed, built or installed by the Company on the Perimeter shall be the property of the Company for the Concession Period so that it may amortize its cost for tax purposes in the case where the construction of such Development Works is in accordance with the Development Plan ; upon Expiration or Termination of the Concession Period, such Development Works shall be sold by the Company to the Conceding Authority which undertakes to purchase it at the book value upon such date as determined by the Qualified Auditor;
(b) any Development Works which may be made, constructed, built or installed by the Company on the Perimeter with the necessary prior approval from the Conceding and Regulatory Authorities, but which are not in accordance with the Development Plan, shall remain the property of the Conceding Authority, and although it may be operated by the Company, such Development Works, as property belonging to the Conceding Authority shall, at the sole discretion of the Conceding Authority, be either returned by the Company in good maintenance conditions and without any cost to the Conceding Authority upon expiration or termination of the Concession Period, or destroyed upon request
The Company shall carry on its business and affairs with due diligence and efficiency and in accordance with sound international financial and commercial standards and practices and shall fully account for all aspects of its business by preparing financial statements and delivering them to the Conceding Authority and the Regulatory Authority as follows:
(a) at the end of each financial year, the Company shall prepare and submit to the Conceding Authority the Company's balance sheet, a profit and loss account and a statement of cash flow drawn up in accordance with generally accepted international accounting practices and applicable [_______] corporate law and certified by qualified corporate auditors registered in [________];
(b) the Company shall prepare and submit to the Conceding Authority and to the Regulatory Authority a quarterly statement of the Company's revenues and disbursements, expected trends for the next quarter, progress concerning current investment and proposed additional investments ;
(c) the Company shall prepare for submission to the Conceding Authority and Regulatory Authority such other information on the financial position of the Company as the Conceding Authority and the Regulatory Authority may from time to time reasonably request to monitor compliance with the Applicable Regulations and with this Agreement.
At the end of each financial year the Conceding Authority shall be entitled to appoint, at its own expense, its own qualified auditor to verify the information provided by the Company pursuant to Clause 16.2 and the Company shall provide all reasonable assistance to such auditor.
17. INSURANCE
17.1 Scope of Insurance
From the Entry into Force of this Agreement and until the end of the Concession Period, the Company shall at its own cost obtain and maintain in force insurance coverage relating to the Project for the amounts and on the terms set out in Annex 8.
17.2 Application of Proceeds
17.2.1 The Company shall ensure that the Conceding Authority shall be named as additional insured under the policies covering third party liability and that such insurance shall cover the actions of officers and employees of the Conceding Authority.
17.2.2 The Company shall apply or will procure the application of the proceeds of any claims
obligations under this Clause 18, deliver the Handback Bond to the Conceding Authority, issued by a financial institution acceptable to the Conceding Authority, substantially in the form set out in Annex 6, in an amount of USD 1,000,000 (one million) and valid until its release in accordance with Clause 18.12.2.
18.2.2 Following receipt of the Handback Bond, unless there is any accrued liability under the Maintenance and Performance Bond, the Conceding Authority shall undertake with due expedition such action as the Company may reasonably request to assist the Company in procuring the release of so much of the Maintenance and Performance Bond as remains outstanding.
18.3 Inspection prior to Handback
Twelve (12) months before the anticipated Handback Date, the parties and the Qualified Engineer shall carry out a joint inspection of the Perimeter. Within twenty eight (28) days of such inspection the Conceding Authority shall issue the Company with a list of works which need to be carried out as the case may be, in order to ensure that the Perimeter complies with the Handback Requirements on the Handback Date. The failure by the Conceding Authority or the Qualified Engineer to detect any defect or item shall not relieve the Company of its obligation under Clause 18.2.
18.4 Handback Procedure
Six (6) months prior to the anticipated Handback Date the parties shall meet and agree on detailed procedures for the handback of the Perimeter and shall draw up an inventory of the items to be included in the scope of handback under Clause 18.5.
18.5 Scope of Handback
On the Handback Date, the Company shall transfer to the Conceding Authority or its designee, free and clear of all debts, liens, encumbrances, mortgages, security interests, environmental contamination and claims of whatever kind or nature other than encumbrances of a routine nature that do not materially adversely affect the value of the Perimeter or interfere with its operation, all of the Company's rights, title and interest to the Handback Assets as defined herein including but not limited to all rebuilt and repaired, and all of its right to use, possess and have access to the Perimeter and the Rights of Way. The Company shall also deliver to the Conceding Authority on
Any notice of intention to terminate shall specify the reasons: Force Majeure, Unforeseeable Change of Circumstances, Company Event of Default, or Conceding Authority Event of Default, or other causes, as applicable. Following the issuing of the Notice of Intention to terminate the parties shall enter into discussions to agree on mutually satisfactory terms on which to continue this Agreement.
21.4 Notice of Termination
If, within [ninety (90)] days of the date of any Notice of Intention to Terminate, the parties have not reached a mutually satisfactory solution, either party may issue a notice to that effect to the other party (a "Notice of Termination"), whereupon this Agreement shall terminate immediately.
21.5 Suspension
21.6.1 In case of gross misconduct, substantial or repeated breach of its obligations by the Company in the opinion of the Regulatory Authority, the present Agreement shall be suspended for a period as determined by the Regulatory Authority, provided that such period shall not last for more than six (6) months, period beyond which the Conceding Authority may decide to terminate this Agreement.
21.6.2 Consequence of Suspension
The Company shall remain liable for any damage to the Perimeter which would occurs during period of Suspension and shall keep and maintain the conceded assets and rights in good working and exploitation conditions and particularly, all insurance policies will be maintained.
It is expressly provided that:
(a) any such suspension(s) period(s) shall not allow any corresponding additional period to the Concession Period
(b) in case of such suspension, the Regulatory Authority shall determine terms and conditions which the Company shall have to respect.
22. CONSEQUENCES OF TERMINATION
22.3 Compensation Amounts
22.3.1 Force majeure and unavoidable change of circumstances The Conceding Authority shall:
(a) Pay to the Company a compensation amount equivalent to the investments in infrastructure and superstructure as well as Development Works as authorized by the Conceding Authority after deducting depreciation proportional to the period until the contract is terminated. The valuation of infrastructure and superstructure works shall be at the book value recorded by the Company. Movable property would be dealt as in 22.2 (c).
(a) The following amounts shall be deducted :
(i) the difference, in the case of shortfall, that may exist between the execution of the guarantee in force and the costs necessary for the repair of the infrastructure and superstructure to the minimum standards specified an annex 7;
(ii) All other outstanding payments.
22.3.2 Company event of default
The Conceding Authority shall:
(a) Pay to the Company a compensation amount equivalent to the investments in infrastructure and superstructure as well as Development Works as authorized by the Conceding Authority after deducting depreciation proportional to the period until the contract is terminated. The valuation of infrastructure and superstructure works shall be at the book value recorded by the Company. Movable property would be dealt as in 22.2 (c).
(b) The following amounts shall be deducted :
(i) the difference, in the case of shortfall, that may exist between the execution of the guarantee in force and the costs necessary for the repair of the infrastructure and superstructure to the minimum standards specified an annex 7;
(ii) the difference, in the case of shortfall, that may exist between the execution of the guarantee in force and the expense incurred by the Conceding Authority to replace the Company plus the loss of income until this can be arranged for a
-
LIABILITY AND INDEMNIFICATION
23.1 Cross Indemnity
Each party shall indemnify, defend and hold harmless the other party from and against, all liabilities, damages, losses. expenses and claims of any nature whatsoever for personal injury and for damage to or loss of any property arising out of or in any way connected with the indemnifying party's performance of this Agreement except to the extent that such personal injury, damage or loss is attributable to a negligent or intentional act or omission of the party seeking to be indemnified.
23.2 Environmental Damage
The Company shall be liable for, and shall defend, indemnify and hold the Conceding Authority harmless from and against, all liabilities, damages, losses, expenses and claims caused by environmental contamination from the construction, operation and maintenance of the Project, except when such losses, expenses or claims are solely attributable to the negligent or intentional act or omission of the Conceding Authority or to the very existence of the Port itself.
23.3 Joint Responsibility
In the event that any loss or damage referred to in Clause 23.1 or 23.2 is caused only in part by the negligent or intentional act or omission of the Conceding Authority and in part by the act or omission of the Company, each party shall be liable to the other only in proportion to its relative degree of fault.
23.4 Liability for Information Provided by the Conceding Authority
The Conceding Authority makes no warranty in respect of and shall not be held liable for the accuracy of any information, drawings, designs or other documents of whatever nature relating to the Project provided by the Conceding Authority.
23.5 Survival
The obligations under Clauses 23.1, 23.2, and 23.3 above shall survive termination of this Agreement.
24. ASSIGNMENT OF THIS AGREEMENT
24.1 Assignment by the Conceding Authority
26. MISCELLANEOUS PROVISIONS
26.1 Representations and Warranties
Each party hereby represents and warrants that:
(a) It is duly existing pursuant to the laws and regulations of [________];
(b) It carries on its business in accordance with the applicable laws and regulations of [_____]and, to that party's knowledge, there are no proceedings pending or threatened for the bankruptcy, dissolution of that party such as would materially adversely affect that party's performance of its obligations under this Agreement ;
(c) It is fully entitled to enter into this Agreement and authorized to and capable of performing its obligations hereunder;
(d) It is fully entitled and capable of entering into the dispute resolution procedures under Clause 25 and the decisions, awards and pursuant remedies contemplated hereunder shall be valid and enforceable against that party.
26.2 Primacy of the Concession Agreement
This Agreement shall govern all aspects of, and all contractual relationships relating to, the Project as between the parties. The Company shall ensure that the provisions of all agreements relating to the Project are consistent with the terms hereof. In the event of conflict between this Agreement and any agreement on a matter affecting the parties, including all questions of interpretation, this Agreement shall prevail.
26.3 Variations in Writing
All additions, amendments and variations to this Agreement shall be binding only if in writing and signed by duly authorized representatives of each of the parties.
26.4 Entire Agreement
This Agreement, including the Annexes attached hereto, represents the entire agreement between the parties in relation to the subject matter thereof and supersedes any or all previous agreements or arrangements, whether oral or written, between the parties in respect of the Project, the Port and the Concession Rights or the other
ANNEX 2
PORT EQUIPMENT
(The detailed list of equipment is in the Data Room)
[Models of Sale and Lease Agreement attached. To be used and filled in by the Bidders, related to Port equipment.]
MODEL OF CONTRACT FOR SALE OF EQUIPMENT
BETWEEN THE UNDERSIGNED:
Port, hereinafter called the « seller », on the one hand,
AND:
[the concession holder], hereinafter called the « buyer », on the other hand,
WHEREAS:
The seller and the buyer are also bound by a Concession Agreement signed on the (hereinafter called « the Concession Agreement ») concerning the Port of[______], and this lease contract is in accordance with article X of the Concession Agreement stipulating a special contract for the equipment.
IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - OBJECT OF THE CONTRACT
The seller sell to the buyer who accepts the equipment described under article 3 below, under the conditions stipulated hereafter. This contract comes into force the same day as the Concession Agreement.
ARTICLE 2 - DESCRIPTION OF ACQUIRED EQUIPMENT
See appendix.
ARTICLE 3 - DELIVERY OF EQUIPMENT
The equipment is delivered to the place of the buyer at the time the contract comes into force and this date is considered the date at which the equipment has been taken over with respect to liability and insurance policy.
ARTICLE 4 - STATEMENTS
A statement of the condition of the equipment is cross-produced and signed by the parties or their authorized representative at the moment the equipment is taken over by the buyer as specified under article 5 above. This statement shall be as clear and precise as possible and be conform to the buyer selection.
This procedure will also apply when returning the equipment at the end of the lease.
ARTICLE 5 - TERMS OF PAYMENT
See in appendix breakdown of prices.
ARTICLE 6 - APPLICABLE LAW
CONTRACT FOR LEASING OF EQUIPMENT
BETWEEN THE UNDERSIGNED:
Port, hereinafter called the « lessor », on the one hand,
AND:
(The concession holder), hereinafter called the « lessee », on the other hand,
WHEREAS:
The lessor and the lessee are also bound by a concession agreement signed on the (hereinafter called « the concession agreement ») concerning the Port of [________], and this lease contract is in accordance with article X of the Concession Agreement stipulating a special contract for the equipment.
IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - OBJECT OF THE CONTRACT
The lessor leases to the lessee who accepts the equipment described under article 3 below, under the conditions stipulated hereafter.
ARTICLE 2 - DURATION AND ENFORCEMENT OF THE CONTRACT
The lease duration for each equipment unit is indicated in appendix. The contract can be renewed by express agreement of the parties. It comes into force the same day as the Concession Agreement.
ARTICLE 3 - DESCRIPTION OF LEASED EOUIPMENT
The safety rules applicable to this equipment have to complied with by the lessee are those ruling for concession agreements and especially those stipulated under article 6 of the relevant Concession Agreement.
ARTICLE 4 - UTILIZATION OF LEASED EQUIPMENT
The equipment is exclusively intended for the operation of the Port of [_______] Concession.
The lessee will see to it that the equipment is used only by skilled and careful staff who has been specialized in its use and authorized according to the regulations in force. The lessee is liable for the errors committed by his staff in the utilization of said equipment and the lessor is relieved of responsibility in this case.
ARTICLE 5 - DELIVERY OF EQUIPMENT
The equipment is delivered to the place of the lessee at the time the contract comes into force and this date is considered the date at which the equipment has been taken over with respect to liability and insurance policy.
ARTICLE 6 - STATEMENTS
A statement of the condition of the equipment is cross-produced and signed by the parties or their authorized representative at the moment the equipment is taken over by the lessee as specified under article 5 above. This statement shall be as clear and precise as possible and be conform to the lessee selection.
This procedure will also apply when returning the equipment at the end of the lease.
ARTICLE 7 - GUARANTEE OF THE OWNER's RIGHTS
For the whole duration of the contract, the equipment remains the owner's property. The lessee shall not transfer, pledge or lodge the equipment as security to third parties, or dispose of it in any other way. However, the lessee can sub-lease the equipment.
Should a third party claim to have rights over this stock, for instance through seizure under legal process, the lessee would ask for an injunction against it and would immediately inform the lessor so that the latter might protect his rights.
ARTICLE 8 - EQUIPMENT MAINTENANCE
The lessee shall keep the equipment leased in good condition and repair it as necessary; he shall use it under normal conditions and as per the instructions given in the technical documentation. The expenses resulting from utilization not conform to these instructions or from faulty maintenance shall be borne by the lessee.
The initial maintenance rules are those in force at the Port of [_____]. However, the lessee is free to develop a different maintenance policy provided the usual requirements regarding this type of stock, especially those relating to safety, are complied with.
ARTICLE 9 - LIABILITY AND INSURANCE
From the date of taking over as indicated under article 6 until the stock is returned to the lessor at the end of the lease, the lessee is liable for damages caused by the stock to persons or property.
He also assumes the risks of loss and of total/partial deterioration of the equipment.
In order to cover this dual liability, the lessee agrees to take out a third party insurance and an insurance covering damage to equipment with an insurance company, and to justify the existence of the insurance policy and payment of insurance premiums to the lessor at any moment.
ARTICLE 10 - PRICE AND MISCELLANEOUS
The lease price (or fee) is shown in the table in appendix.
The survey and possible stamp and registration expenses shall be borne by the lessee.
ARTICLE 11 - TERMS OF PAYMENT
The fee is payable every month, on the first day of the period considered. The fee may not be paid by the lessee in case of compensation as stipulated under article 14 below.
ARTICLE 12 - RETURN OF EOUIPMENT
When the equipment is returned at the end of the leasing period, account shall be taken of normal wear provided the lessee has carried out standard maintenance operations in conformity to the rules and practices of the trade during its utilization period. A statement will be produced as indicated under article 6 above.
ARTICLE 13 - SANCTIONS FOR NON-FULFILMENT
This contract will be terminated if one of the parties fails to fulfill any of its obligations, especially as regards maintenance of the equipment and payment of the fee in advance, by mere notification of the other, 60 days after a recorded delivery letter has been sent to the failing party without needing to appeal to the court.
However, when the non-fulfillment results from a disagreement on the scope of the contribution of any of the parties, as stipulated under articles 8 and 12, these parties shall first refer to the procedure of arbitration in accordance with article 15 below.
Termination of the contract entails immediate return of the equipment by the lessee.
ARTICLE 14 - CONNECTION BETWEEN THE CONCESSION AGREEMENT AND THIS CONTRACT
Unless otherwise indicated, this contract and the Concession Agreement are independent. However, as stipulated under article of the Concession Agreement, in the case of a defaulting concession holder, the leasing contract can be cancelled at Port's request.
Conversely, in case of a fault attributable to Port, the leasing contract can be cancelled at the concession holder's request.
Also, in case of delay in the payment by Port of its contribution to non-commercial obligations, the lessee can compensate the fee due under this contract with the amounts due by Port under non-commercial obligations, should said delay exceed 60 days after formal notice.
ARTICLE 15 - ARBITRATION
In case of disagreement on the scope or fulfillment of their obligations arising from this contract, the parties undertake to refer to an expert appointed by mutual agreement.
In case of dispute, each of the parties will appoint an expert and the two experts thus appointed will nominate a third expert or, failing this, the third expert will be nominated according to the rules of appointment and conciliation of the International Chamber of Commerce of Paris.
The expert, or the group of three experts, is authorized by the parties to decide as a compounder, and said decisions shall not be questioned.
C/ PERFORMANCE INDICATORS
For the berths that will be operated by the concessionaire, the minimum ratio of efficiency will be:
bagging: 50 tons per hour and per gang
ferrochrome: 200 tons per hour per gang
steel: 70 tons per hour per gang
D/ OTHER REGULATION APPLICABLE
The following international regulation and convention will be applied in the framework of the concessionaire contract.
1. Maritime safety
From IMO Codes and guides relative to the safe transport and handling of dangerous cargoes in port areas:
International Convention for the Safety of life at Sea (SOLAS), 1974, as amended, and earlier SOLAS conventions where applicable
MARPOL 73/78, as amended
International Maritime Dangerous Goods Code (IMDG Code) and IMDG Code supplement (includes EmS, MFAG, BC Code, IMO/ILO Guidelines for Packing Cargoes in Freight Containers or Vehicles, Recommendations on the Safe Use of Pesticides in Ships and Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High Level Radioactive Wastes in Flasks on Board Ships (INF Codes))
International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) and earlier Code (BCH Code) where applicable.
ANNEX 12
ASSETS COVERED BY THE CONCESSION
In Preamble (I)
- Tangible assets covered under the Concession:
[ ]
- Non-tangible assets covered under the Concession:
. Port's rights on the existing concessions and leases- see also appendix 15
. Clients’ database and relevant contractual documents
any contract which result in granting the rights to lease or use land, building or equipment of the Port, which may have been concluded by the Port or its subsidiaries with terminal(s) operators, cargo operators or forwarding or freight agents, provided that all such contracts will prior to the date of the present Agreement, have been either terminated by Port at Port's cost, or contractually amended in such a way that the Company has become the payee agent of Port for said contracts, with due notification of such termination or amendments to all contracting parties and to the Company, in order for the Company to :
either have free possession of all land, buildings and equipments covered by such contracts
- or for those contracts which will have not been terminated,
- so that the Company shall be legally entitled to receive all proceeds, fees or royalties thereof in lieu and place of [ ] or its subsidiaries other contracts (suppliers, etc.)
- With the exclusion of the following non operating assets:
- Port School,
- Sport complexes,
- Residential accommodation
- Administrative offices complexes
- Ogres
For the avoidance of any doubt the following terminal are not in the Perimeter of the Port Concession: [_________]
ANNEX 13
MODEL OF ESCROW AGREEMENT
AMONG:
THE GOVERNMENT OF [________], acting through the Ministry of [________] and « Port, represented by (hereinafter referred to as the «Conceding Authority»)
AND
, a public limited company established under the laws of the Republic of [_____], whose registered office is located at [___], represented by [________] (hereinafter referred to as «PLC»)
AND
[_______], a banking institution established under the laws of [_______] whose registered office is located at [______], represented by [_______] (hereinafter referred to as the « Escrow Agent »)
WITNESSETH
WHEREAS, pursuant to a concession agreement dated [_______] (hereinafter referred to as the « Concession Agreement ») and signed by and between [ ], as the conceding authority and PLC, as the concessionaire, the Conceding Authority has granted to PLC a long term concession for the management, operation, financing and development of the Port of [______] according to the terms and subject to the conditions therein contained.
WHEREAS, in accordance with the terms of the Concession Agreement, PLC shall pay to the Conceding Authority the sum of US$ [________] as an Initial Entry Fee as defined therein.
WHEREAS, the Parties hereto agree that, such Initial Entry Fee shall be deposited and held in escrow under the terms and conditions defined herein.
WHEREAS, the Parties hereto desire to establish among themselves the appropriate escrow mechanisms aimed at implementing the Concession Agreement in respect of the Initial Entry Fee payable by PLC provided for hereunder.
8. Indemnification
(i) The Conceding Authority and PLC jointly and severally shall indemnify, defend and hold the Escrow Agent harmless from and against any and all claims, demands, costs, liabilities and expenses, including reasonable counsels fees, which may be asserted against it or to which it may be exposed or which it may incur by reason of its execution or the performance of this Agreement, unless such claims, demands, cost, liabilities or expenses are based upon the negligence, willful default, fraud or bad faith of the Escrow Agent.
(ii) The indemnity provided herein shall survive termination of this Agreement.
9. Fees and Expenses
The Conceding Authority and PLC shall bear and pay in equal shares the fees and expenses of the Escrow Agent in accordance with such terms as the Conceding Authority and PLC shall agree with the Escrow Agent.
10. Notices
(i) Each notice, demand or other communication given or made under this Agreement, and any document required by this Agreement to be delivered to a Party, shall be in writing and delivered or sent to the relevant Party at its address set out below (or to such other address as the addressee has by five Banking Days' prior written notice specified to the other Party):
To the Conceding Authority: To PLC:
To the Escrow Agent:
(ii) Any notice, demand or other communication so addressed to the Conceding Authority or PLC, and any documents required by this Agreement to be delivered to the Conceding Authority or PLC, shall be deemed to have been delivered when actually delivered to the relevant address, provided that, if the date of such delivery is not a Banking Day, such document, notice, demand or other communication shall be deemed to have been delivered on the next following Banking Day.
11. Miscellaneous
(i) This Agreement shall not be assignable.
ANNEX 14
THE COMPANY CONCESSIONAIRE'S OBLIGATIONS
The Company Concessionaire's obligations
1) Keep updated inventory and records of assets linked with the service under Concession;
2) Inform the Regulatory Authority and users about service management;
3) Maintain training program, aimed at permanently striving for better service quality and efficiency;
4) Keep technical and administrative staff, of its own or third parties, legally enrolled and in sufficient number for the services rendered;
5) Adopt the necessary measures and actions to prevent or eliminate damages to the environment caused by the Company, as established by specific law and the recommendations of the Regulatory Authority related to the service exploitation;
6) Comply with the rules and regulations applicable to relevant services;
7) Replace goods and equipment linked to the services under Concession, as well as the acquisition of new assets, in order to ensure adequate services rendered;
8) Pay indemnities due for necessary constructions, services and activities of exploitation of the services under this Concession;
9) Keep civil and accident insurance, compatible with its responsibilities towards the Regulatory Authority, users and third-parties;
10) Safeguard the integrity of assets linked with the services under Concession, as established by specific technical rules, keeping them in perfect conditions of use and maintenance, until their transfer to the Regulatory Authority or new Concessionaire;
11) Publish annual reports, with financial statements, expressing the accounts for services under concession, as well as provide information to competent public agencies within the limits established by such public agencies;
12) Provide the Regulatory Authority, on an annual basis, information about triennial plan for operations security and other development goals from the date of signature of this Agreement. Such plans must indicate projects, their costs and implementation schedule, demonstrating investments during the previous year. The first plan should be presented within one hundred and twenty (120) days, from the signature of this Agreement;
13) Give to agents/employees of the Regulatory Authority and Conceding Authority, free access to works, equipment and installations included in the concession scope, as well as authorization to examine all charts, tables, accounting records and other documents and information systems maintained by the Company, regarding the services under Concession;
14) Comply with international treaties, agreements and acts, in relation to the services under Concession;
15) Keep secure and sate operating conditions for the services under Concession to be rendered, in accordance with rules in force;
16). Maintain the continuity of services under concession, unless in case of emergency halts caused by unforeseen situations, with immediately notification to the Regulatory Authority;
17) Render adequate service to the users, without any kind of discrimination and economic abuse of power, meeting regularity, continuity, efficiency, security, for the services rendered, and adequacy in the tariffs;
18) Carry out necessary public services obligations imposed by the Regulatory Authority;
19) Record in Normative Share Book, for the registered shares pertaining to the shareholding of the Concessionaire, the following term : "These shares should not be encumbered, or transferred without the prior agreement in writing of the Conceding Authority";
20) Inform the Regulatory Authority of any contemplated substantial change in the shareholding of any shareholder of the Company, prior to such change;
21) Submit for previous approval of the Regulatory Authority any agreement with shareholders and their amendments, as well as any changes in the shareholding;
