draft concession agreement for cambay,...
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DRAFT CONCESSION AGREEMENT
FOR Integrated Ro-Pax Vessel and Terminal Operator at Gogha - Dahej in Gulf of
Cambay, Gujarat, India
BETWEEN
LICENSOR (Gujarat Maritime Board)
&
LICENSEE (M/s _________)
-: Important Note to Bidders:- Changes or modifications, if any, in this concession agreement before final bids are received the same will be uniformly informed to all the bidders through addenda and/or corrigenda.
This Concession Agreement is made on this _______ day of _______, 201_ by and between:
The Gujarat Maritime Board constituted under the Gujarat Maritime Board Act, 1981 and having its office at Chh Road, Sector-10-A, Gandhinagar-382010, Gujarat, India (hereinafter referred to as the “Licensor”, which expression shall, unless repugnant to the context or meaning hereof, include its successors and assigns), as a party of the First Part;
and
M/s. ________________a company incorporated _____________ and having its registered office at____________ (hereinafter referred to as the “Licensee”, which expression shall, unless the repugnant to the context or meaning hereof, include its successors and permitted assigns) as a party of the Second Part.
WHEREAS:
(a) The Licensor is constituted by the Government of Gujarat, Republic of India, under the provisions of the Gujarat Maritime Board Act, 1981 and has been vested with the power to develop, manage, administer and control intermediate and minor ports in the State of Gujarat.
(b) The Licensor is desirous of establishing Ro-Pax vessel operation between Gogha and Dahej in the Gulf of Cambay, Gujarat, India and has accordingly constructed the terminals and related marine facilities at its own cost.
(c) The Licensor has invited bids in (insert month_____) , 201_, for the Project, viz. “Integrated Ro-Pax Vessel and Terminal Operator at Gogha - Dahej” , and through a process of competitive bidding selected in (insert month_____) , 201_, the consortium of M/s _______, M/s. ______ and M/s. ______led by M/s _______, a company whose registered office is at______ ( insert address of the “Lead Promoter”) as identified in the Joint Venture / Consortium Agreement for financing, expansion, modification, procurement and /or leasing, operation, maintenance and management of the Ro-Pax Vessels / Fast Passenger Ferry Vessel between Gogha and Dahej and Project Assets comprising the Terminal Facilities, including subleasing of the designated areas to third parties.
(d) The Licensor awarded a letter of Intent (“LOI”) dated ____ (insert month)_____ 201_ to the Lead Promoter/Original Promoters covering the said activities of financing, expansion, modification, procurement and/or leasing, operation, maintenance and management of the Ro-Pax Vessels/ Fast Passenger Ferry Vessel between Gogha and Dahej and Project Assets
comprising the Terminal Facilities, including subleasing of the designated areas to third parties.
(e) The Original Promoters have executed a Joint Venture/ Consortium Agreement dated______ insert Month ______ 201_ allocating specific responsibilities among the Original Promoters, pursuant to which the Original Promoters promoted the Licensee to finance, expand, modify, procure and/or lease, operate, maintain and manage the Ro-Pax Vessels / Fast Passenger ferry Vessel between Gogha and Dahej and Project Assets comprising the Terminal Facilities and transfer the Project Assets to the Licensor on termination of the Concession Agreement.
(f) The Project Assets together with the terminal and marine facilities as per the layout drawings, required for the operation of the Ro-Pax and Fast Passenger Vessel Service required to be licensed to the Licensee have been identified in ANNEXURE 2.
(g) On the signing of the LOI, the Licensee provided a Performance Guarantee in favour of the Licensor for an amount _______________ which unless otherwise agreed to shall remain in force and effect until _____________.
(h) The parties hereto have agreed to render all necessary cooperation and
assistance and take appropriate action for giving effect to the terms of this Concession Agreement.
(i) The Licensor has agreed to grant to the Licensee rights under this Agreement to implement the Project in accordance with the terms and on the conditions provided herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto hereby agree to the details as described in the document that follows:
Index
1.0 DEFINITIONS AND INTERPRETATION ............................................. 9
1.1 Definitions ....................................................................................................................... 9
1.2 Interpretation ................................................................................................................ 11
2.0 LICENSING FRAMEWORK ................................................................... 13
2.1 Grant of Concession .................................................................................................... 13
2.2 Condition Precedent .................................................................................................... 13
2.3 Zero Date: ...................................................................................................................... 13
2.4 Drop Dead Date ........................................................................................................... 13
2.5 Covenants ..................................................................................................................... 15
2.5.1 Covenants of the Licensor ................................................................................... 15
2.5.2 Covenants of the Licensee ................................................................................... 15
2.5.3 Disclosure .............................................................................................................. 15
3.0 REGULATORY FRAMEWORK .............................................................. 16
4.0 TERMINAL LOCATION AND CONFIGURATION ......................... 16
5.0 SCOPE OF CONCESSION ...................................................................... 16
5.1 Ro-Pax Operation ......................................................................................................... 17
5.2 Terminal Operation ..................................................................................................... 17
6.0 LICENSE PERIOD ..................................................................................... 18
7.0 OBLIGATIONS OF THE LICENSEE ..................................................... 18
7.1 Ro-Pax Vessels .............................................................................................................. 18
7.2 Terminal Operation ..................................................................................................... 19
7.3 Passenger Amenities .................................................................................................. 20
7.4 Maintenance Standard for Vessel .............................................................................. 20
7.5 Crew, Staffing & Personnel ........................................................................................ 21
7.6 Handling of Vehicles Carrying Cargo ...................................................................... 22
7.7 Subleased / renting of the part Area of Terminal Premises .................................. 23
7.8 Rights of Subcontracting ............................................................................................. 23
7.9 Certification from Competent Authorities ............................................................... 24
7.10 Priority Service ............................................................................................................. 24
7.11 Security .......................................................................................................................... 24
7.12 Interaction of the Licensee with Licensor ................................................................. 24
7.13 Providing of Documentation...................................................................................... 25
7.14 Miscellaneous ............................................................................................................... 25
8.0 CORPORATE STRUCTURE ................................................................... 25
9.0 OBLIGATIONS OF LICENSOR ............................................................. 26
10.0 COMMERCIAL ISSUES .......................................................................... 27
10.1 Right to Fixand Collect Tariff& Rent ........................................................................ 27
10.2 Right to Decide and Collect Rent From Subleasing ................................................ 27
10.3 Right to Charge and Collect Charges from Sale of Merchandise and Food Item 27
10.4 Currency and Collection Agency .............................................................................. 28
10.5 Ro-Ro Cargo Restrictions ............................................................................................ 28
10.6 Conditions Limiting Operations ................................................................................ 28
10.7 Development and Installation of new facilities & Equipment .............................. 28
10.8 Payment to the Licensor ............................................................................................. 28
10.9 Performance Security by Licensee ............................................................................. 29
10.10 Payment of Taxes by Licensee ................................................................................ 29
11.0 CHANGE IN LAW (“CIL”) ...................................................................... 29
11.1 Definition ...................................................................................................................... 29
11.2 Notification of Change in Law ................................................................................... 30
11.3 Consequences of Change in Law ............................................................................... 30
12.0 FORCE MAJEURE ..................................................................................... 31
12.1 Definition ..................................................................................................................... 31
12.1.1 Political Force Majeure ........................................................................................ 31
12.1.2 Natural/ Other Force Majeure ........................................................................... 32
12.2 Procedure for calling Force Measure....................................................................... 32
12.2.1 Notice and particulars thereof ............................................................................ 33
12.2.2 Reporting requirements ....................................................................................... 33
12.3 Force Majeure period ................................................................................................. 34
12.4 Obligation to Perform ................................................................................................ 34
12.5 Mitigation Responsibility ......................................................................................... 34
12.6 Consequences .............................................................................................................. 34
12.6.1 Consequences of Political Force Majeure; Natural/Other Force Majeure ... 34
13.0 DEFAULT & TERMINATION ................................................................ 35
13.1 Licensee Event of Default - Right of Licensor to terminate ................................... 35
13.2 Licensor Events of Default - Right of Licensee to terminate ................................. 35
13.3 Consequences of Default ............................................................................................ 36
13.3.1 Notice of Intent to Terminate .............................................................................. 36
13.3.2 Remedy Period ...................................................................................................... 36
13.3.3 Withdrawal of Notice of Intent to Terminate ................................................... 37
13.3.4 Termination Notice .............................................................................................. 37
13.3.5 Transfer Information Notice ............................................................................... 37
14.0 TERMINATION AND TRANSFER ....................................................... 38
14.1 Scope of Asset Transfer on Termination/ Normal Transfer ............................... 38
14.2 Compensation Payable .............................................................................................. 38
14.3 Licensor Liability ........................................................................................................ 38
15.0 NORMAL TRANSFER ............................................................................. 38
15.1 Procedure for Normal Transfer ................................................................................ 38
15.2 Survey, Monitoring Schedule prior to Transfer ................................................... 39
15.3 Appointment of Independent Appraising Team ................................................. 39
15.4 Final survey .................................................................................................................. 39
15.5 Transfer of the facilities and Project Assets .......................................................... 39
15.6 Passing of Risk ............................................................................................................ 39
16.0 INSURANCE .............................................................................................. 39
16.1 Covers to be taken ....................................................................................................... 40
16.2 Exclusion ....................................................................................................................... 40
16.3 Proof of insurance ........................................................................................................ 40
16.4 Application of the insurance proceeds ..................................................................... 41
17.0 DISPUTE RESOLUTION ......................................................................... 41
18.0 INDEMNITIES ........................................................................................... 42
19.0 MISCELLANEOUS PROVISIONS ........................................................ 43
19.1 Amendments etc. ......................................................................................................... 43
19.2 Agreement to Override Other Agreements; Conflicts ........................................... 43
19.3 No Waiver; Remedies .................................................................................................. 44
19.4 Severance of terms ....................................................................................................... 44
19.5 Language ....................................................................................................................... 44
19.6 Governing Law& Jurisdiction .................................................................................... 44
19.7 Confidentiality ............................................................................................................. 44
19.8 Notices ........................................................................................................................... 45
19.9 Original Document ...................................................................................................... 45
ANNEXURE 1: FINALEXECUTION PLAN ......................................................................... 47
ANNEXURE 2: PROJECT ASSETS ........................................................................................ 48
ANNEXURE 3: MAINTENANCE STANDARDS OF MARINE FACILITIES ............. 50
ANNEXURE 4: LIST OF PROHIBITED CARGO ............................................................... 55
ANNEXURE 5: VESSEL OPERATING PROCEDURE ...................................................... 56
ANNEXURE 6: TERMINAL OPERATION PROCEDURES ............................................. 63
ANNEXURE 7: VESSEL OPERATING LOG ....................................................................... 65
ANNEXURE 8: TERMINAL LAY-OUT PLAN .................................................................... 66
1.0 DEFINITIONS AND INTERPRETATION
1.1 Definitions In this Agreement, unless the context otherwise requires:
1. "Applicable Law" means all laws, brought into force and effect by GOI or the State Government including any rules, direction, regulations and notifications made thereunder and judgments of any court of India as may be in force and effect during the subsistence of this Agreement.
2. “Article” means Article of Association of the corporate body of the Licensee
3. “Change in Law” shall have meaning specified in Clause 11.0.
4. “Concession” means the rights granted by the Licensor to the Licensee in accordance with Clause 5.0
5. “Concession Agreement”/ “Agreement” means this concession agreement.
6. “Conservator” means the conservator appointed in respect of the Port from time to time under the Indian Ports Act 1908.
7. “Dispute” shall have the meaning ascribed to the term in Clause17.0
8. “Drop Dead Date” means the date on which the events set out in Clause 2.4.
9. “Effective Date” means the date of signing of this Agreement.
10. “Fast Passenger Ferry” means a High Speed Craft (HSC) ferry vessel brought in by the Licensee capable of carrying passengers.
11. “Final Execution Plan” means the Precise and Detailed Plan relating to commencement of Ro-Pax Vessel Service to be furnished and mutually agreed between the Licensee and the Licensor as per ANNEXURE 1.
12. “Force Majeure” shall have the meaning specified in Clause 12.0
13. “Good Industry Practice” means, in respect of the Licensee, its contractors, subcontractors, sub-Licensees and all other such third party agents of the Licensee, practices, methods, techniques and standards, as changed from time to time, that are generally accepted for use in international Ro-Pax vessel and terminal operations and maintenance taking into account conditions in India.
14. “GOG” means the Government of Gujarat including its respective department or any other Licensee, agency or instrumentality functioning under the direction or control of the Government of Gujarat having jurisdiction over the licensee.
15. "GOI" means the Government of India including its respective department or any other Licensee, agency or instrumentality functioning under the direction or control of the Government of India having jurisdiction over the Licensee.
16. “Gross Revenue” means the gross income/ earning that the Licensee, Sub-Lessee, Sub-Contractor or any other agent or representative appointed by the Licensee will earn from all sources attributable to the Project or Project Assets including but not limited to the collection of Tariff/ Toll for providing services to users including passengers, vehicle owners, Trucks/ commercial vehicle operators and from collection of rents from the Sub-Lessee and or tenants of Project Assets in the designated area of the terminal and sale of food/ merchandising from facilities onboard the Vessel/s and the Terminals, and billboard advertising. Gross Revenue will include such other revenue sources which might arise in the future in respect of the Project or Project Assets. If the Licensee enters into any revenue sharing or waiver arrangement with any third party in respect of the Project or the Project Assets, such an arrangement shall also be taken into account for the purposes of determination of Gross revenue.
17. “GMB Act” means the Gujarat Maritime Board Act, 1981 as amended or re-enacted from time to time.
18. “Indian Ports Act” means the Indian Ports Act, 1908 as amended or re-enacted from time to time.
19. “Initial Period” means the period beginning with Zero Date until services stabilized and is presently reckoned as 90 days unless otherwise extended by mutual agreement between the Licensor and Licensee but not exceeding 180 days.
20. “IST” means Indian Standard Time.
21. “Key Member” shall mean M/s. ____________
22. “Lead Member” means M/s. ____________
23. “Letter of Intent (LOI)” means the letter of intent issued by Licensor dated _______, 20___ awarding to the Lead Member and/or the Key Member by the Licensor to implement the Project on exclusive basis.
24. “Original Promoters” means the consortium members M/s. ____________, M/s. ______ and M/s. _________ associated in the process of competitive bidding in_________ (month), 20__, led by the Lead Member M/s.______.
25. “Percentage Revenue Share” means a percentage, specified in two decimal points, of the gross revenue committed to be paid by the Licensee by the licensor.
26. “Project Asset” means the Ro-Pax terminals/ Marshalling Yards and off-shore navigation facilities including Berth, Pontoon, Linkspan, more specifically shown in Terminal Lay-out Plan at ANNEXURE 8, at Dahej and Gogha in the Gulf of Cambay, State of Gujarat, India; along with the depth of water maintained through dredging the approach channels and turning circle at both Ports.
27. “Project” means activities covering financing, expansion, modification, procurement and /or leasing and/ or chartering, operation, maintenance and management of the Ro-Pax Vessels / Fast Passenger Vessel and operation
between Gogha and Dahej and Project Assets comprising of Terminal facilities as described in “Project Asset”.
28. “Ro-Pax Vessel” means a vessel/s brought in by the Licensee capable of operating between Gogha – Dahej terminal carrying both cargo truck or passenger vehicles and passengers.
29. “Termination” shall be governed by the provisions of Clause 13.0
30. “Termination Notice” shall have the meaning specified in Clause 13.3.4.
31. “The Terminal” means the Terminal Facilities built by the Licensor in accordance with the specifications and layout drawing as per ANNEXURE 8.
32. “Unit Vessel” means a Ro-Pax vessel which meets the minimum vessel carrying capacity requirement of lane meter and passengers specified as per Clause 5.1.
33. "Year" shall mean a period of 12 consecutive months.
34. “Zero Date” shall have the meaning specified in Clause 2.3.
1.2 Interpretation In this Agreement, unless the context otherwise requires the following general interpretation shall apply:
1. Words denoting the singular shall include the plural and vice-versa;
2. Words denoting a person shall include an individual, corporation, company, partnership, trust or other entity;
3. Heading and bold type face are only for convenience and shall be ignored for the purpose of interpretation;
4. References to all agreements, documents or other instruments include (subject to all relevant approvals) a reference to that agreement, document or instrument as amended, supplemented, novated or assigned from time to time;
5. Reference to any legislation or law or to any provision thereof shall include references to such law as it may after the date of this Agreement from time to time be amended, supplemented or reenacted;
6. References to the word “include” or including” shall be construed without limitation;
7. The Annexures to this Agreement form a part of this Agreement and will be in full force and effect as though they were expressly set out in the body of this Agreement; and
8. A reference to “party” is to a party to this Agreement and a reference to “parties” is, unless otherwise stated to the contrary, a reference to the parties to this Agreement.
9. Unless the context otherwise requires, any period of time referred to shall be deemed to expire at the end of the last date of such period as per Indian Standard Time.
10. If any provision in this Clause1.0 is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
11. The rule of construction, if any, that a contract should be interpreted against the parties responsible for the drafting and preparation thereof, shall not apply;
12. All references to agreements, documents or other instruments include (subject to all relevant approvals) a reference to that agreement, document or instrument as amended, supplemented, modified, substituted, notated or assigned from time to time;
13. Any and all capitalized terms used, but not defined, herein shall have the meaning ascribed to the term under the GMB Act.
2.0 LICENSING FRAMEWORK
2.1 Grant of Concession The Licensor hereby grants to the Licensee the right and Licensee during the Term of this Agreement for financing, expansion, modification, procurement and/or leasing and/ or chartering, operation, maintenance and management of the Ro-Pax Vessels/ Fast Passenger Ferry Vessel between Gogha and Dahej and Project Assets comprising the Terminal Facilities, including subleasing of the designated areas to third parties subject to following condition precedent. 2.2 Condition Precedent a) The Licensee has furnished a Detailed Concept Plan as per Appendix XI of the
RFP document before 45 days of the expected date of handover of terminal facilities by the Licensor (expected Zero Date) and has got the same approved by the Licensor by the occurrence of Zero Date.
b) The Licensee has furnished a Final Execution Plan for commencement of the Project and Licensor and Licensee have agreed on the details as per ANNEXURE 1.
c) The Licensee has furnished a Performance Security in accordance with the agreed format and has been accepted and acknowledged by the Licensor.
d) Clearances and approvals by the competent authorities including the Director General of Shipping, GOI, the Custom Department, Indian National Ship owners' Association (INSA), Indian Coastal Conference (ICC) and from the GOG have been received.
e) The Licensor and Licensee have undertaken reasonable endeavors to satisfy the Conditions Precedent.
2.3 Zero Date: The Zero Date shall be the date on which the terminal facilities are handed over by the Licensor to Licensee. 2.4 Drop Dead Date In the event Zero Date is not achieved within 12 months from the Effective Date, this Agreement shall stand terminated and the parties to this Agreement shall have respective liability as described below:
a) If Zero Date has not been achieved on account of the following failures by the
Licensee, in which event the Performance Security will be invoked by the Licensor
i. To offer vessels for inspection
ii. To obtain clearances and approvals from competent Licensee
b) If Zero Date has not been achieved on account of the failure of the Licensor, the Licensee shall be discharged from all liabilities under this agreement and the Bid Security Bond shall be returned:
i. Completion of Project Asset
ii. Maximum draft of 5 m below chart datum
iii. Custom notification of landing and shipping
2.5 Covenants 2.5.1 Covenants of the Licensor The Licensor hereby represents and warrants to and for the benefit of the Licensee that on the date hereof the Licensor: a) Has taken all steps within its power to cause the Government of Gujarat to
designate the Conservator for the Terminal under the Indian Port Act.
b) Asserts that the obligations under this Agreement will be legally valid, binding and enforceable in accordance with the terms hereof.
2.5.2 Covenants of the Licensee The Licensee hereby represents and warrants to and for the benefit of the Licensor that on the date hereof the Licensee: a. Has the corporate power and Licensee and has taken all corporate actions
necessary to execute and deliver and to exercise its rights and perform its obligations validly under this Agreement.
b. Asserts that the obligations under this Agreement will be legally valid, binding and enforceable in accordance with the terms hereof.
c. Asserts that no proceedings against itself are pending or threatened, and no fact or circumstance exists which may give rise to such proceedings that would adversely affect the performance of its obligations under this Agreement.
d. Asserts that it has not intentionally withheld from the Licensor any material information or material document, whose non-disclosure would have a material adverse effect or would have adversely affected the evaluation or acceptance of the request submitted by the Licensee.
2.5.3 Disclosure If, at any time after the date hereof, any event or circumstance comes to the attention of either Party that renders any of its above mentioned representations or warranties untrue or incorrect, then such Party shall immediately notify the other Party of the
same, provided however, such notification shall not have the effect of remedying any breach of the representation or warranty that has been found to be untrue or incorrect or adversely affect or release any obligations of either Party under this Agreement. 3.0 REGULATORY FRAMEWORK
a. The Licensee acknowledges that the operations at all times shall conform and
comply with the applicable regulations of :
(i) The maritime authorities of India (DG Shipping, GOI, etc.), and
(ii) Such other law/ Instructions that may be passed by GMB/GOG and GOI from time to time in future
b. The Licensee also acknowledges that deployment of foreign flag vessels, if any, shall comply with the Merchant Shipping Act 1958, Republic of India, Para 406, 407, Shipping Development circular No 2 (dated 08-11-2002) Shipping Development circular No 3 (dated 18-07-2006) Shipping Development circular No 2 (dated 24-05-2011) and any amendments thereof, if any.
4.0 TERMINAL LOCATION AND CONFIGURATION The operation route for the Ro-Pax vessel shall be between Gogha and Dahej with in the Gulf of Khambhat (Cambay), Gujarat, India with specific location and configuration details as given hereunder. a. Location of berths:
i. Dahej Terminal: Bharuch District
Latitude 21°39.8'N and Longitude 72° 33.8' E.
ii. Gogha Terminal: Bhavnagar District. Latitude 21° 40.6’N and Longitude 72°17.1'E.,
iii. Sea distance 31Km (17 Nautical Miles).
b. Berth Configuration:
i. Length of Berth for Ro-Pax Vessel : 180 m having 6 No. of Mooring Dolphins
ii. Length of Pontoon for Fast Passenger Ferry: 50 m
iii. Pontoon width for embarking and disembarking from Ro-Pax vessel: 30 m
5.0 SCOPE OF CONCESSION
5.1 Ro-Pax Operation a. The scope of the Ro-Pax Operation under the Concession Agreement includes
procurement/ leasing/ chartering, deployment and operating Ro- Pax & Fast Passenger Vessels between Origin-Destination pair of Gogha & Dahej in Gulf of Cambay, State of Gujarat, India.
b. The Licensee shall have exclusive possession and operational control of the Terminals at Gogha & Dahej including their respective marine infrastructure for
I. Berthing/unberthing of Ro-Pax and Fast Passenger Vessels II. Loading & Unloading of vehicles, cargo trucks, passengers, coaches/
buses III. Acceptance, conduct and discharge of passengers, passenger vehicles
and cargo vehicles c. The Licensee shall engage vessels, consuming any type of fuel or combination
of fuels available on Indian coast subject to statutory approvals. d. The Licensee has to make its own arrangement for fuel; storage and pipeline
are being provided at Dahej Terminal. In case of change in the fuel type, for example from High Speed Diesel to Liquefied Natural Gas (LNG), the Licensee has to make its own arrangement for fuel, storage, etc., subject to space availability and statutory approval to be obtained by the Licensee.
e. The Licensee shall have liberty to use and operate Ro-Pax and Fast Passenger vessels of any nationality or origin as per Regularity Framework mentioned in Clause 3.0.
f. The Licensee shall have liberty to operate the number of Ro-Pax Vessels and make number of voyages per day as per his convenience and safe operating conditions provided that one Unit Vessel shall be acceptable during the Initial Period from the Zero Date, however the second Unit Vessel shall be introduced within 90 days of reaching 70% average capacity utilization of during the block of 60 days period for first Unit Vessel or at the end of one year from the Zero Date, whichever is earlier or as may be advisable by GMB on mutual consent.
g. The Licensee shall have liberty to operate more than two vessels and make more round voyages per vessel per day or may be considered necessary, logistically feasible and safe.
h. After fulfilling all criteria of Ro-Pax operation, the Licensee shall have liberty to operate a high speed passenger vessel.
5.2 Terminal Operation
a. The Licensee shall have exclusive right to occupy, use, operate and manage both the Terminals for operation of Ro-Pax & Passenger Vessel service which
is to be exclusively operated by the Licensee between Gogha and Dahej in accordance with the terms of this Agreement.
b. The Licensee shall have right to sub-lease or have it otherwise occupied as deemed necessary by third parties the designated area as demarcated in Annexure 13 and provided that the sublease is for a period coterminous with or lesser than the License Period and that the terms of such agreement does not contravene the terms of this concession agreement.
c. The Licensee shall be entitled to provide value added and any other related services within the battery limit as per ANNEXURE 8.
d. The Licensee shall have right to alter or add the terminal facilities (except in the area of future expansion) as may be deemed necessary by the Licensee at its own cost without compensation from the Licensor, subject to prior approval of the Licensor.
6.0 LICENSE PERIOD The Concession term for the Project on exclusive basis on the Gogha – Dahej sea route shall commence on “Zero Date” as defined and shall terminate after a period of Ten Years (10) or Termination of this Agreement, whichever is earlier. The License Period shall be extendable by another 5 years at the sole discretion of the Licensor with the mutually accepted terms and conditions. The date of expiry of the License Period shall be the Scheduled Date of Normal Transfer. 7.0 OBLIGATIONS OF THE LICENSEE
7.1 Ro-Pax Vessels
a. The Licensee shall at all time, during the Term of the Agreement, deploy the
Ro-Pax and Passenger Vessels suiting the configuration as specified in Clause 4.0 and fully certified as per the Regularity Framework and the International Association of Classification Societies (IACS) and having insurance coverage with P&I club or any other insurance company approved by Ministry of Shipping or maritime administrator of India.
b. The Licensee shall begin the service as per the Final Execution Plan with a maiden journey commencing not later than 30 days from the “Zero Date”.
c. Prior to commencement of service, the Licensee shall obtain the necessary permission from the competent authorities including D.G. Shipping (GOI) and Custom Authorities and notarized copies of such approval shall be handed over to the Licensor.
d. The Licensee shall arrange for pre inspection of the vessel(s) by the Licensor as necessary before Charter of the Vessel(s) and subsequent inspection as per the agreed maintenance schedule, individually for each Vessel.
e. The Licensee shall have liberty to replace the vessels at his discretion and convenience on prior approval of the Licensor, provided they are capable of
operating safely to the port dimensions and configuration as specified in Clause 4.0 and provided however the all necessary prior permissions including the Licensor’s are obtained and joint inspection arranged before commissioning the vessel and provided however all the necessary certificates are obtained from the competent authorities.
f. Notwithstanding anything stated above the Licensee shall operate all the vessel meeting following minimum requirement
i. Vessel capable of operating all through on 24 X 7 basis
ii. Vessel capable of operating in all weather conditions
iii. Vessel flying flag acceptable to GOI
iv. Vessel preferably maneuverable
v. Vessel preferably having forward and aft ramps (no side or quarter ramps)
vi. Capable of vehicles discharge on “First in First out basis”
vii. Vessel preferably having lashing arrangements for Vehicles
viii. Vessel capable of safe and efficient berthing
ix. Vessel having twin screw and stern and bow thrusters or any other propulsion system which can undertake such type of maneuvering.
x. Vessel capable of all tidal range operation considering current speed
xi. Vessel having navigation equipment – LSA, FFA, navigation requirements as per classification society
xii. Vessel having preferably auto-tension winches
xiii. Vessel fitted with navigation equipment meeting requirements of classification society
g. The Licensee shall provide a substitute vessel meeting all the above conditions during the mandatory maintenance period of the vessel already deployed and shall make arrangements of substituting the vessel well in advance and with the prior approval of the Licensor and with necessary certifications as applicable and failure to do so will result in forfeiture of Performance Security.
h. The Licensee shall also make arrangement for deployment of substitute vessels in accordance with the terms of this Agreement in every instance where the vessel deployed is taken out for emergency repair exceeding a period of 7 days.
i. The Licensee shall operate the vessel as per the procedure defined in ANNEXURE 5.
7.2 Terminal Operation
a. The Terminal Operation shall meet the minimum requirement as laid down in ANNEXURE 6.
b. The Licensee shall provide the necessary resources for the operations and maintenance of both the Terminals.
i. Provide adequate manpower for manning the Terminal
ii. Pay the utility, water, garbage disposal and other maintenance service provider’s bills on a regular bills to the service provider
iii. Pay the bunkering charges for the fuels
iv. Provide proper luggage screening arrangement and radio-active detector in the terminal
c. Any revision in the Operating Procedure shall be made after reasonable advance notice to the Licensor.
7.3 Passenger Amenities a. Safety & Security of all the passengers entering the terminal area during
embarkation and disembarkation and onboard the vessel and during the sea voyage between the two terminals shall be the primary responsibility of the Licensee.
b. The passengers shall be provided with emergency first aid at all times.
c. Transportation of passengers from the waiting area at terminals to the vessel during embarkation and disembarkation shall be arranged at all times by properly maintained shuttle buses by the Licensee with properly trained escort personnel. Passenger shall be assisted in alighting from the bus to embarkation on the vessel and vice versa and directed at all times by the Licensee.
7.4 Maintenance Standard for Vessel
The Licensee shall maintain and replace the vessel and vessel components in accordance with manufacturer’s or classification society’s recommendations/ guidelines as applicable and/or good industry practices.
Operation and Maintenance standards shall be compliant with IMO SOLAS and DG Shipping regulations applicable to the specific types of Vessels deployed and the Standards updated from time to time.
The Licensee shall be responsible for
a. Providing competent personnel to supervise the maintenance and general efficiency of the vessel;
b. Arranging and supervising dry dockings, repairs, alterations and the maintenance of the vessel to the standards required by the classification
society and in accordance with the law of the Flag State and D.G. Shipping, India.
c. Arranging the supply of fuel necessary stores, spares and lubricating oil; d. Appointing surveyors and technical consultants as required from time to time
to complete the mandatory surveys and inspections of the ship and its machinery.
7.5 Crew, Staffing & Personnel a. The Licensee shall have the liberty to engage crew personnel of any
nationality at all levels during the License Period subject to their being granted necessary VISA and work permits by GOI and license and approval by D.G. Shipping and permission by the Licensor.
b. The Master of the ship shall obtain and maintain Pilot Exemption status (PEC) and shall be approved by the Licensor at all times.
c. The Licensee shall be responsible for the conduct of the crew during the voyage and shall take prompt and appropriate disciplinary action for their misconduct and shall report criminal conduct to the local police promptly.
d. The Licensee shall be responsible for replacement/ reengagement of their crew and staff with personnel of identical competence and legal permissibility including, during their short or long leave, sickness or on account of their resignation or termination of service.
e. The Licensee shall ensure that all crew members and staff are identifiable at all time during their duty by being in uniform and with identification badges.
f. While selecting, engaging and providing for the administration of the crew, the Licensee shall be responsible for payment and arrangements including, applicable, payroll arrangements, pension arrangements, tax, social security contributions and other mandatory dues related to their employment payable relating to Crew member’s country of domicile;
g. Ensuring that the applicable requirements of the law of the Flag State in respect of rank, qualification and certification of the crew and employment regulations, such as the crew’s tax and social insurance, are satisfied;
h. Ensuring that all crew have passed a medical examination with a qualified doctor certifying that they are fit for the duties for which they are engaged and are in possession of valid medical certificates issued in accordance with the appropriate Flag State requirements or such higher standard of medical examination as may be agreed with the Licensor. In the absence of applicable Flag State requirements the medical certificate shall be valid at the time when the respective crew member arrives on board the vessel and shall be maintained for the duration of the service on board the vessel;
i. Ensuring that the Crew shall have a common working language and a command of the English language of a sufficient standard to enable them to perform their duties safely;
j. Arranging transportation of the crew, including engagement and repatriation;
k. Training of the crew; l. Arranging crew Insurances in accordance with the best practice of prudent
managers of vessels of a similar type to the vessel, with sound and reputable insurance companies, underwriters or associations and as agreed with the licensor.
m. The Licensee, its sub-contractors, sub-Licensees may hire personnel, and determine the work practices including the compensation that may be payable to such personnel employed at the Licensed Premises.
n. The Licensee shall absolutely be liable for any liabilities and costs that may arise as a result of accidents at work, occupational diseases and any contingency that may arise from the employment of such personnel other than where such liabilities or costs arise due to Licensor’s gross negligence. The licensor shall not be responsible or liable for any remuneration, compensation and other monetary liabilities.
7.6 Handling of Vehicles Carrying Cargo
The licensee shall organize an efficient, safe and practical system of Ro-Ro cargo handling specifically, including the following.
a) Employ well trained and competent marshalling staff to direct all incoming/ outgoing vehicles including private vehicles and public carriers to move and get conducted to the Marshalling Yard in orderly fashion to ensure that loading of the same onboard the vessel is done properly (preferably on the “First Come First In” basis).
b) Carry out a visual inspection of the articles loaded on the vehicles especially truck and trailers to ensure that prohibited goods, inflammable and combustible material are not being carried.
c) Carry out a visual inspection to ensure that goods and articles are not loosely stacked or stored and are, properly lashed, Bulk solid material are stored in a manner preventing their spillage during the voyage even in extreme weather conditions.
d) Assist vehicles carrying commercial goods including trucks and trailers and other commercial vehicles during their movement from the Marshalling area in the terminal premises to the vessel and movement from the vessel to the terminal exit lane at the end of a voyage.
e) Ensure that vehicles are properly and securely parked onboard the vessel and in designated area in an orderly fashion and lashed to ensure complete immobility during a voyage with engine turned off and in gear.
f) Fully serviceable towing vehicles of adequate capacity and trained and competent staff shall be made available on a permanent standby to remove
the stalled vehicles while being driven from terminal to vessel and terminal to vessel at the end of the voyage.
g) Ensure that vehicles especially commercial vehicles are not filled with goods protruding out from the truck bed either sideways or in front or rear.
h) Assist passengers in transferring their personnel baggage’s while alighting from or boarding on to the shuttle bus and vessel and movement to their assigned passenger area in the vessel.
i) Adequate storage space shall be maintained to store and stack passenger’s personal baggage ensuring that baggage movement is secure during voyage.
j) Cleaning and clearing of accidental spillages of any nature both in the terminal premises and onboard of the vessel is promptly attended to proper and necessary cleaning detergent is used to ensure that the surface remains slippage free and dry.
7.7 Subleased / renting of the part Area of Terminal Premises a) The Licensee shall be entitled to sub-Lease / rent part of the Terminal
Premises as shown in ANNEXURE 8 or otherwise permit them to be used by their agents or third parties under the terms of this Agreement. The Licensor will require however to ensure these Sub-leased premises are used in compliance with the law and for the purpose of selling general merchandise, mementoes, medicines, food items are and not used for warehousing and provided that the subleased agreement are stipulated to be coterminous with this agreement with this agreement and no terms are in contravention of this agreement.
b) The Licensee shall sublease the designated terminal premises to individual/s and/or organizations subject to their getting clearance from local police.
7.8 Rights of Subcontracting
a. The Licensee may engage subcontractors for the provision of services, other than operation of Ro-Pax vessel. The Licensee shall ensure that the all sub-contractors, agents and/or employees comply with all the relevant applicable provisions of this Agreement. The Licensee acknowledges that it shall remain fully and primarily responsible for the performance of all acts, omissions or faults of such sub-contractors, agents and/or employees as if they were the acts, omissions, faults of the Licensee. To the extent that the terms of such agreements are inconsistent with the terms of this Concession Agreement, they shall be declared null and void.
b. The Licensor shall not be liable for any costs or liabilities whatsoever that may arise in relation to such contracts as a result of the expiry or termination of this Agreement.
7.9 Certification from Competent Authorities The Licensee shall maintain all valid certificates and permits relating to the vessel and the crew deployed by the Licensee regardless of ownership of the same and shall be in compliance with requirements laid down by Director General of Shipping, GOI, International Maritime Organizations and International Labour Organization in force. 7.10 Priority Service
a. The Licensee acknowledges that the Government of Gujarat, Central
Government or other public or statutory authorities having jurisdiction over the Port, may direct the Licensee to provide priority services and the Licensee shall comply with all such requests.
b. The Licensee agrees that the Licensor shall not be liable for any direct or
indirect loss, consequential damages or loss of profits to the Licensee in the event that priority services are mandated. The Licensee will keep the Licensor indemnified from any claims made by the users of the port or other parties as a result of such priority directives.
7.11 Security The Licensee shall provide security at the licensed premises. If the Licensor requests, the Licensee shall engage such number of the Central Industrial Security Force and/or the Gujarat State Industrial Security Force or any other force as may be required at the Licensee’s sole cost, in certain locations to protect public interests.
7.12 Interaction of the Licensee with Licensor The Licensee shall submit to the Licensor:
a. Annual reports on the compliance with the agreed maintenance standards and replacement schedule for assets as set out in ANNEXURE 3
b. Annual Financial Audit reports in accordance with statutory audit requirement
c. Weekly log sheet of Vessel movement as per ANNEXURE 7 and vessel movement reports as may be directed by the Licensor
d. Prior approval of Rules of Carriage and subsequent amendments, if any, shall be obtained from the Licensor
e. Quarterly reports on the third parties, subcontractor, sub lessee operating in the Terminal and on vessels
f. The Licensee shall provide any additional information as the Licensor may require to ensure that the Licensee is in compliance with the terms of this Agreement.
g. The Licensee shall provide un-hindered access and offer necessary co-operation to the Licensor and/or its representatives for monitoring and inspection of operations provided however such inspection shall not generally interfere with the commercial operations save and except in emergency.
h. The Licensee shall permit the Licensor or their representatives to be permanently stationed in the administrative building for interaction and the Licensee shall provide and maintain appropriate office space and facilities and for such representative at no cost to the Licensor.
i. In the event that on-line vessel traffic management systems are installed at the Port, the Licensor may require that such systems be linked to the central and/or regional monitoring systems installed by the Licensor and/or navigational authorities and/or other ports, which the licensee shall duly provide.
7.13 Providing of Documentation
The Licensee shall provide the Licensor with copies of all statutory documentation pertaining to the Registry of the vessel and in compliance with the IMO, DG Shipping-GoI and the Classification Society certification requirements.
7.14 Miscellaneous
The Licensee shall in accordance with the principles of Good Industry Practice:
a. Efficiently manage, make available and maintain the Project Assets consistent with prudent standards of safety and technical sufficiency;
b. Provide non-discriminatory access of the facilities to the port users in accordance with the Operating Procedure;
c. The Licensee shall employ professional accounting system as per the Indian Accounting Standards and arrange to have a statutory audit carried out done very expeditiously and to issue the audit report within 6 weeks of the completion of the financial year.
8.0 CORPORATE STRUCTURE
a. The corporate body of the Licensee has M/s._______ as a Lead Member and
in terms of this Agreement, the Lead Member along with the Key Member shall maintain a minimum stake of 51% until completion of 10 years from the
“Zero Date” (“Lock in Period”).
b. The Key Member shall not be allowed to exit before the Lock in Period, unless the equally or more qualified experienced Ro-Pax Operator is being substituted with prior approval of the Licensee.
c. Any change in equity holding of any member/s exceeding 10% of equity capital shall be only with the prior approval of the Licensor, which approval shall be withheld if, inter alia, such change is, in the opinion of the Licensor, prejudicial to national interest or the Project.
Caveat: However this condition will not apply if the Licensee gets the company listed and such change mentioned herein is on account of IPO / public issue of shares.
d. Any change in shareholding, other than those requiring the Licensor’s approval shall be reported/ advised to the Licensor by the Licensee promptly.
e. The Articles of Association (the “Articles of the Licensee”) of the Licensee shall be amended within three months of the Effective Date to include:
i. Terms and conditions regarding the composition of share-holding stipulated in this Agreement;
ii. Any subsequent change in the Articles which alter the above provisions shall require the prior approval of the Licensor.
9.0 OBLIGATIONS OF LICENSOR
a. The Licensor shall make reasonable efforts to assist the Licensee in obtaining and maintaining clearances at both the Central and State Government levels for the performance of its rights and obligations under this Agreement.
b. The Licensor shall arrange at its own cost to carry out dredging of the channel to maintain the water depth in the turning circle and channel to the level of – 5 m below the Chart Datum, by arranging maintenance dredging as necessary through a competent agency. This may be maximum twice in a year with an interval of not more than five months. Maintenance dredging operation shall be decided amicably by the Licensor and Licensee.
c. The Licensor shall co-ordinate on a reasonable effort and good faith basis between other State Government and other such agencies as may be required for the provisions of utilities to the Licensee. The Licensor shall not however be liable in any manner whatsoever for the non-provision of utilities.
d. The Licensor shall be responsible for providing bunkering facility at Dahej Terminal and the Licensee shall make necessary arrangement to supply the type and quantities of fuels in the bunkering tank.
10.0 COMMERCIAL ISSUES
10.1 Right to Fix and Collect Tariff& Rent
a) The Licensee shall be entitled to fix and collect tariff from all users under the terms of this Agreement without prior intimation to or prior approval of the Licensor. This shall specifically include the fixation and charging of tariff from public travelers/ passengers, passenger vehicles, commercial vehicles including light, medium and heavy commercial vehicles, trucks and trailer loaded or otherwise, buses, coaches and all other manner of transportation vehicles for all services rendered or provided. However such tariff and revisions shall be intimated to the Licensor on weekly basis of such tariff applicability.
b) The Licensee shall be entitled to fix different tariff for different category of users and shall be entitled to revise the same as and when considered necessary.
c) The Licensee shall be entitled to customize separate service and tariff packages for specific users from time to time including for long term contracts with any individual or group at its sole discretion.
d) The Licensee agrees and acknowledges that the tariff shall, be non-discriminatory.
e) In case it is observed by the Licensor that Licensee has charged unfair or discriminatory tariffs, the Licensor reserves the right to examine and direct the Licensee for the reasonable tariff. Such a direction shall be final.
10.2 Right to Decide and Collect Rent From Subleasing
a) The Licensee shall be entitled to collect rent on Subleased Premises provided however that the premises are subleased with a restriction mentioned in Clause 7.7.
b) The Licensee shall be entitled to collect rental charges / service charges from such sub-lessee of premises leased in the terminal but through a negotiable instrument, credit card or electronic transfer.
10.3 Right to Charge and Collect Charges from Sale of Merchandise and Food Item
a) The Licensee shall be allowed to charge and collect payment from sale of food items and general merchandising products including mementos on the Terminal Premises and onboard the vessels during voyages save and except from items as prohibited by law at the time being in force.
b) The Licensee however shall not sell or distribute prohibited items including Firearms, ammunitions and spirit, wine and liquor either in the terminal or onboard the vessel.
10.4 Currency and Collection Agency
a) The tariff and the rent charged and collected shall be in Indian Rupees
b) Subject to applicable law, all tariffs from users may be collected by the Licensee or by an agency appointed by the Licensee either at the terminal or elsewhere in Cash or by Credit Card or through negotiable instruments or electronic transfer or prepaid vouchers at the sole discretion of the Licensee.
10.5 Ro-Ro Cargo Restrictions The Licensee is entitled to carry all types, category and size of Ro-Ro cargo, (except prohibited cargo as listed in ANNEXURE 4), provided however: a. It is within in the normal dimensions of the vehicle or truck cargo carrying
area, loaded, properly, stowed and secured and not protruding outside the normal road dimensions (length, width & height) of the vehicle which may obstruct the movement of other vehicles travelling alongside or prevent entry to the vessel’s vehicle decks.
b. The cargo restrictions as per International Maritime Dangerous Goods (IMDG) Code.
10.6 Conditions Limiting Operations a. The Licensee shall suspend the operation if any time the operation is not
found seaworthy due to a mistake of staff or malfunction of equipments and factors involving navigational safety in the channel or nearby area & weather conditions as per the order of Licensor.
10.7 Development and Installation of new facilities & Equipment
The Licensee may, from time to time, request that the Licensor approve additional major non-movable assets to be created in the Terminal. Such approved non-movable asset, if approved in writing by the Licensor under this Clause, shall be treated as Project Assets.
10.8 Payment to the Licensor a. The Licensee shall pay to Licensor xx.yy % of the Gross Revenue earned by
the Licensee within 30 days after the end of the financial year and shall adjust this amount as per his statutory audit report within two weeks of issue of the statutory audit report by either electronic transfer to the designated bank
account of the Licensor or by a Demand Draft / Bankers Cheque issued in favor of Licensor payable at par at Gandhinagar, Gujarat, India.
b. The Licensee shall also pay to the Licensor the Berth Hire and Port Dues fixed at Rs 2.35 per Gross Registered Tonnage (GRT)/ Gross Tonnage (GT) per day and Rs. 4.7 per GRT once in 30 days, irrespective of calling, respectively at each port in a likewise manner.
c. The Licensee shall issue the Tax Deducted at Source (TDS) certificate within two weeks of making above two payments.
d. The Licensor shall issue a “Full Payment Received” Certificate to the Licensee within 4 months of receipt of payment as per a. & b. above and receipt of TDS certificate whichever is later.
10.9 Performance Security by Licensee a. The Licensee shall execute a Performance Security in the form of Bank
Guarantee for an amount equal to estimated annual revenue share to the Licensor (based on gross revenue projected and quoted Revenue Share) in the first year, and subsequently equivalent to annual revenue share amount to the Licensor in the previous year, with the validity of 16 (sixteen) months.
b. The Performance Security shall be renewed every year before the start of the financial year.
10.10 Payment of Taxes by Licensee The Licensee, its sub-lessee, tenant, agent or any other representative of the Licensee shall be liable for payment of all taxes levied by GOI / GOG or local authorities including Municipal Bodies and local Village Panchyat (village Councils) specifically including Sales Tax/ Value Added Tax, Service Tax, Income Tax, etc.
11.0 CHANGE IN LAW (“CIL”)
11.1 Definition
a. Change in Law shall mean the occurrence of any of the following events after
the Effective Date of this Agreement:
i. The enactment of any new applicable law;
ii. The modification, repeal or re-enactment (other than a re-enactment which merely consolidates or codifies existing applicable law) of any existing applicable law;
iii. The commencement of any applicable law which had not at the Effective Date yet entered into effect except to the extent such
applicable law was enacted prior to the Effective Date with a commencement after the Effective Date and such applicable law takes effect on that commencement date without material amendment;
iv. A change in the interpretation or application of any applicable law by judicial or other Licensee (including a court, tribunal or any other regulatory authority) having the Licensee to interpret or apply that applicable law or any interpretation of any applicable law by such Licensee which is contrary to the existing generally accepted interpretation thereof;
v. The revocation or cancellation (other than for cause) of any permit, or
vi. Designation or re-designation of the Port as a Major Port by the Government of India, to the extent that such Change in Law has a material adverse effect on the rights and obligations of the Licensee under this Agreement and that such event has not been caused due to the fault or negligence of the Licensee.
b. Notwithstanding anything contained in clause (a) hereinabove, Change in Law shall not include any change in the tax laws or change in law in general applicability but which solely has an economic and financial impact on the Licensee.
11.2 Notification of Change in Law
a. The Licensee shall, on the occurrence of a Change in Law, give notice of such
Change in Law to the Licensor in accordance with the provisions of this Clause 11.0 above as soon as it may be reasonably practicable.
b. The notice served pursuant to this clause shall provide interalia, precise details of the Change in Law and the effect thereof on the Licensee.
11.3 Consequences of Change in Law
a. In the event that a Change in Law renders exercise by the Licensee of any of
its material rights or performance by the Licensee of any of its material rights and obligations, unless such obligation is waived by a person having the power to do so under this Agreement impossible, the Licensee may serve a notice for termination of this Agreement (Termination Notice). Provided that prior to service of the Termination Notice, the parties shall consult in good faith for a period of 180 days to mitigate the material adverse impact of the change in Law. In the event the parties are unable to agree to changes to the Agreement to mitigate the impact of the Change in Law during the 180 day period, either party may refer the matter to dispute resolution in which case the Termination Notice shall stand suspended until such matter has been resolved in accordance with Clause 17.0.
b. The parties hereby acknowledge and agree that the Licensee shall be entitled to serve a Termination Notice on the Licensor provided that the Change in
Law results in physical or legal impossibility of performance of the Licensee’s obligations or exercise of its rights under this Agreement. The parties shall bear the respective impact of any economic consequences of Change in Law.
12.0 FORCE MAJEURE 12.1 Definition
a. “Force Majeure” (“FM”) shall mean any event or circumstance or
combination of events or circumstances (and their consequences) set forth in Clauses 12.1.1 and 12.1.2 occurring on or after the Effective Date that materially adversely affect(s) the performance of the Licensor’s and/or the Licensee’s (Affected Party) rights or obligations under this Agreement provided that such events and/or circumstances i. Are beyond the reasonable control, directly or indirectly, of the
Affected Party (it being understood that if a causing event is within reasonable control of an Affected Party, the direct consequences shall also be deemed to be within such Party’s reasonable control); or
ii. Could not have been avoided, overcome or remedied if the Affected Party had taken reasonable care or had acted in accordance with Good Industry Practices. (each a “Force Majeure Event”)
b. “Reasonable care” includes any acts or activities that protect the Project from a casualty event which are reasonable in the light of the likelihood of such event, the probable effect of such event should it occur, and the likely efficacy of the protection measures.
c. Any event or circumstance meeting the definition of Force Majeure and which adversely affects the performance of the Licensee shall constitute a Force Majeure Event for the Licensee.
d. The following conditions shall not, however, constitute a Force Majeure Event unless they are caused due to a Force Majeure Event affecting the Licensee.
i. Late delivery of vessels, machinery, equipment, materials, spare parts, or consumables or reporting of crew for the Project
ii. Insufficiency of funds 12.1.1 Political Force Majeure
Political Force Majeure shall mean any of the events or circumstances or combination of events and circumstances referred to in (i), (iii) and (iv) below occurring solely in India or any of the events or circumstances or combination of events and circumstances referred to herein below in the State of Gujarat, and which result directly or indirectly in either party’s exercise of its rights and obligations being prevented, hindered or delayed, provided that such events and/or circumstances are not a lawful and/or reasonable response to the default, neglect or other wrongful act of the Affected Party, and provided that the consequences of such events and/or circumstances are beyond the Affected Party’s reasonable control except to the extent that such events
and/or consequences constitute or are caused by the events or circumstances of Natural or Other Force Majeure
i. blockade, revolution, riot, bombs, religious strife or civil commotion; ii. political strikes, lock-outs or other industrial action (other than those
involving primarily the Licensee’s own employees or those of any of the Licensee’s contractors, sub-contractors, sub lessees, sub concessionaires, any other agents of the Licensee or any act of the Licensee himself) or labour disputes affecting the port sector in Gujarat which are not primarily motivated by the desire to influence the action of an enterprise so as to preserve or improve conditions of employment;
iii. act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, insurrection, terrorist or military action, politically motivated sabotage; or
iv. a decision or the order of a court or tribunal which has effect of restraining or delaying the construction of the whole or a substantial part of the Project (except to the extent that it constitutes a remedy or sanction lawfully exercised as result of breach by the Licensee of any applicable law then in effect by the Licensee).
12.1.2 Natural/ Other Force Majeure
Natural/Other Force Majeure (OFM) means events or circumstances listed below (except to the extent they constitute or are caused by the events or circumstances of Political Force Majeure):
i. Explosions, accident, breakage of facilities, plant or equipment, structural collapse, fire chemical or radioactive contamination (other than resulting from an act of war, terrorism or sabotage), caused by a person not being the Affected Party or one of its contractors or subcontractors, sub lessees or any other agencies of the Affected Party or any of their respective employees, and not being due to inherent defects of the affected facility or the failure to properly operate the affected facility;
ii. Tidal variations and storm to the extent that such tidal variation and storm could not reasonably have been expected to occur at the place in the year or at the time of the year in question;
iii. Lightening, earthquake, tempest, cyclone, hurricane, whirlwind, flood, landslide or any such acts of God;
iv. Epidemic or plague; or
v. Any event or circumstance of a nature analogous to any of the above or an act of God.
12.2 Procedure for calling Force Measure
12.2.1 Notice and particulars thereof
a. The Affected Party shall give notice to the other party of the Force Majeure Event as soon as is reasonably practicable, but not later than fifteen (15) Days after the date on which the Affected Party knew or should reasonably have known of the commencement of the Force Majeure Event. Notwithstanding the above, if the Force Majeure Event results in a breakdown of communications rendering it not reasonably practicable to give notice within the applicable time limit specified herein, the Affected Party shall give such notice as soon as is reasonably practicable after the reinstatement of communications, but not later than five (5) business days after such reinstatement.
b. Notice shall, inter-alia, specify the:
i. The nature of such Force Majeure Event; ii. The date and time when the Affected Party was materially and
adversely affected by the Force Majeure Event; iii. The material adverse effect of such Force Majeure Event on the
Affected Party; iv. The measures which the Affected Party has taken, or proposes to take,
to alleviate the impact of those Force Majeure Events and/or mitigate the damage;
v. An estimate of the period of time that the Affected Party shall be unable to perform its obligations and/or continue to be materially adversely affected by the Force Majeure Event; and
vi. Any other relevant information as may be necessary. c. Failure by the Affected Party to give notice to the other party within the time
period specified above shall not prevent the Affected Party from giving such notice at a later time, provided however that in such case the Affected Party shall not be eligible for the remedies as envisaged in Clause 12.6for any failure or delay in complying with its obligations under or pursuant to this Agreement until notice has been given in accordance with this Clause 12.2.1.
12.2.2 Reporting requirements a. For so long as the Affected Party continues to claim to be affected by the Force
Majeure Event, it shall provide the other party with regular (and not less than monthly) written reports containing:
i. The information called for by Clause 12.2.1 here above; and
ii. Such other information as the other party may reasonably request.
b. The Affected Party shall also provided to the other party reasonable facilities including site inspection for obtaining further information about the Force Majeure Event or circumstance alleged to constitute a Force Majeure Event .
12.3 Force Majeure period
a. In this Clause, reference to Force Majeure period shall mean the period from the date and time specified in the notice given by the Affected Party in respect of a Force Majeure Event, until such time as the impact of the Force Majeure on the Affected Party is no longer, or would no longer have been materially adverse, if the affected Party had complied with its obligations under this Clause, materially adverse.
b. On expiry of the Force Majeure period, the Affected Party shall forthwith give notice to that effect to the other party.
c. In the event that such notice is not tendered by the Affected Party to the other party within a week from the expiry of the Force Majeure period, the other party may serve such notice to the Affected Party.
12.4 Obligation to Perform
a. From the date of expiry of the Force Majeure period, the obligations of the
Affected Party under this Agreement shall no longer be suspended. b. Provided that the performance of the Licensee’s obligations and liabilities
shall, for the Force Majeure period, be governed by Clause 12.6. c. Nothing in this Clause 12.0 shall affect the Licensee’s obligation to make any
payments in respect of liabilities incurred prior to the occurrence of any Force Majeure Event.
12.5 Mitigation Responsibility
a. Upon the occurrence of the Force Majeure Event and during the subsistence of
the Force Majeure period, both the parties shall engage in good faith consultations and shall use all reasonable endeavors to alleviate the material adverse effect of such Force Majeure.
b. The Affected Party shall use the insurance proceeds to mitigate the impact of the Force Majeure Event.
12.6 Consequences
12.6.1 Consequences of Political Force Majeure; Natural/Other Force Majeure
Provided that the Affected Party has at all times since the occurrence of the Force Majeure Event complied with the obligations of Clause 12.5, and during the Force Majeure period continues to comply with the same, the Affected Party shall be entitled to following relief:
i. The obligations of the Affected Party to the extent they are affected by the Force Majeure Event shall be suspended for Political Force Majeure period or Natural / Other Force Majeure period, as the case may be;
ii. The time period for the performance of obligations of the Affected Party to the extent they are affected by the Force Majeure Event shall be extended on a day for day basis for the Political Force Majeure period or Natural / Other Force Majeure period, as the case may be; and
iii. The Term of this Agreement shall be extended on a day for day basis for the Political Force Majeure period or Natural / Other Force Majeure period, as the case may be.
13.0 DEFAULT & TERMINATION
13.1 Licensee Event of Default - Right of Licensor to terminate
The following (unless arising as a result of a Force Majeure Event or Change in Law which results in consequences set out in Clause 11.3 (a). or a Licensor Default) shall constitute Licensee Events of Default.
a. A material breach of a material provision of this Agreement by the Licensee.
b. Repudiation of this Agreement by the Licensee or the evidencing of an intention by the Licensee not to be bound by the terms of this Agreement.
c. The Licensee is ordered to be wound up by a court or files a petition for voluntary winding up except for the purpose of amalgamation or reconstruction provided that the property, assets and undertaking of the Licensee are transferred to its successor; and provided that such amalgamation or reconstruction does not adversely affect the ability of the amalgamated or reconstructed entity to perform its obligations under this Agreement, the successor has assumed in writing unconditional responsibility for the performance of the Licensee’s obligations and the technical, financial and operating capability of the successor should be satisfactory to the Licensor and is not prejudicial to national interest as determined by the Licensor.
d. The Licensee abandons the operation of the Project for a continuous period of 45 days.
e. Persistent failure on the part of the Licensee to operate and promote activities at the Project Assets and provide users with services in accordance with the principles of Good Industry Practice and in accordance with the provisions of this Agreement.
f. Failure to pay within 6 months of the due date of payment.
g. Failure to comply with lawful directives given by a statutory Licensee connected with ports.
h. Failure to pay the correct revenue share to the Licensor within the specified or reasonable time.
13.2 Licensor Events of Default - Right of Licensee to terminate
The following (unless arising as a result of a Force Majeure Event, or Licensee Default) would constitute Licensor Events of Default:
a. Any acts by Government of Gujarat or Government of India adversely affecting the Licensee’s performance to the point of stoppage of activities.
b. Repudiation of this Agreement by the Licensor or the evidencing of an intention by the Licensor not to be bound by the terms of this Agreement.
c. Commission of a material breach of a material provision of this Agreement.
d. Dissolution of the Licensor or occurrence of any structural changes within the present constitution of the Licensor which have a material adverse effect on the rights and obligations of the Licensee under this Agreement, or the transfer of the Licensor’s undertaking and statutory powers or any material part thereof, unless such dissolution or structural change or transfer is in connection with privatization or other restructuring of all or any substantial part of the Licensor, and the Licensor’s successor is able to perform the Licensor’s obligations under this Agreement, provided that
i. The undertaking and statutory powers of the Gujarat Maritime Board (the “Board”) are transferred to the Board’s successor and such entity has the powers to continue as Licensor; and
ii. The Board’s successor has assumed in writing the responsibility for performance of the Board’s obligations hereunder.
e. The Licensor fails to fulfill the obligations of the provision of Clause 9.0.
13.3 Consequences of Default
In the event of a Licensor Event of Default or Licensee Event of Default (“Event of Default”) the termination procedure as set out in this Clause shall apply.
13.3.1 Notice of Intent to Terminate a. On the happening of any Event of Default as set out above, the non defaulting
party may initiate termination of this Agreement by delivering a notice to the defaulting party of intention to terminate this Agreement (Notice of Intent to Terminate). The non defaulting party shall also send copy of the Notice of Intent to Terminate to the Lenders.
b. The Notice of Intent to Terminate shall specify with reasonable detail the defaults committed by the defaulting party.
13.3.2 Remedy Period
a. The defaulting party shall have a period of 90 days (“Remedy Period”) to cure
the Event of Default pursuant to issuance of Notice of Intent to Terminate by the non defaulting party in terms of Clause 13.3.1.
b. During the Remedy Period, the defaulting party may continue to undertake efforts to cure the default, and the non defaulting party shall not, by any act
or omission, impede or otherwise interfere with the defaulting party’s endeavors to remedy the Event of Default.
c. During the Remedy Period, both the parties shall, save as otherwise provided herein, continue to perform their respective obligations under this Agreement.
13.3.3 Withdrawal of Notice of Intent to Terminate
If, during the Remedy period, the defaulting party rectifies or remedies the default to the satisfaction of the non defaulting party or the non defaulting party is satisfied with steps taken or proposed to be taken by the defaulting party or the Event of Default giving rise to the Notice of Intent to Terminate has ceased to exist, the non defaulting party shall withdraw the Notice of Intent to Terminate in writing with a copy to the Lenders.
13.3.4 Termination Notice a. Upon the expiry of the Remedy Period, unless the parties have otherwise
agreed to, or the Event of Default giving rise to the Notice of Intent to Terminate has ceased to exist or the default has been rectified or remedied by the defaulting party, the non defaulting party may terminate this Agreement by giving a 90 days written notice (“Termination Notice”) to the defaulting party.
13.3.5 Transfer Information Notice a. Upon service of the Termination Notice in accordance with the provisions of
this Clause 13.0 on the defaulting party, or the service of a Termination Notice for Change in Law, the Licensor shall be entitled to serve upon the Licensee a Transfer Information Notice calling upon the Licensee to provide the following
i. All or any data or records regarding the operation or maintenance of the Port and the Project;
ii. Any other information or records regarding the Licensee, its business, assets and liabilities, and
iii. Statement of immovable and movable Contracted Assets, to enable an estimation of the likely compensation, if any, payable by the Licensor to the Licensee.
b. On receipt of the Transfer Information Notice, the Licensee shall cause to be conducted, by third party experts approved by the parties, a condition survey of the Project Assets to ascertain the condition and quality of the various facilities provided by the Licensee and whether or not the Licensee has complied with the provisions of this Agreement. A report by such surveyor including an inventory and the condition of the Project Assets shall be submitted to the Licensor as part of the requirements of the Transfer
Information Notice within three months of receipt of such notice.
14.0 TERMINATION AND TRANSFER 14.1 Scope of Asset Transfer on Termination/ Normal Transfer a. The scope of take-over of assets shall include all assets prevailing at the
premises as at the date of Transfer Information Notice, and shall, inter alia, include:
i. all Project Assets and immovable assets created by the Licensee ii. such deeds and documents as may be necessary for effectively
transferring (in respect of the above).; iii. the benefits of all rights and interest in all unexpired insurance,
guarantees and contractor warranties if so desired by the Licensor; and iv. all documents, manuals, records etc. as may be required for the efficient
operation of the Ro-pax vessel and terminal. b. All sublicense or sublease created as per this Concession Agreement shall stand
terminated as per the provisions of termination of this Concession Agreement, without any liability to the Licensor.
c. The takeover shall relate only to tangible assets. d. Asset purchase shall exclude cash in hand and cash at bank, financial
investments, loans and advances, the benefit of any refund of tax attributable to the period prior to the date of Transfer Information Notice, and trade and book debts or receivables accruing to the Licensee prior to the date of Transfer Information Notice (unless due consideration for the same can be mutually agreed upon between parties).
14.2 Compensation Payable The Project Assets and immovable assets created by the Licensee shall be transferred to and shall vest in the Licensor at the end of the License Period without any consideration/ compensation.
14.3 Licensor Liability
In the event of Normal Transfer or Termination of this Agreement, the Licensor shall not be liable for any liability and/or damages to the Licensee or to any other third party except in accordance with the provisions of this Clause.
15.0 NORMAL TRANSFER
15.1 Procedure for Normal Transfer e. The Licensor shall issue a Transfer Information Notice at least 6 months
before the Scheduled Date of Normal Transfer and such notice shall be construed in accordance with the provisions of Clause 13.3.5.
f. The scope of transfer of the assets, the consideration payable, and the transfer fees and charges at the time of Normal Transfer/Termination shall be
determined in accordance with the provisions of Clause 14.0.
15.2 Survey, Monitoring Schedule prior to Transfer a. On receipt of the Transfer Information Notice, the Licensee shall cause a
condition survey of the Project Assets to be conducted, by a third party professional body of expert, to ascertain whether the various facilities provided by the Licensee are in working condition and whether the Licensee has complied with the provisions of this Agreement. The Licensees shall submit a report of the results including inventory details and the condition of the Project Assets and the condition of the assets to the Licensor within three months of receipt of the Transfer Information Notice.
b. The Licensee shall also offer cooperation to the independent Appraising Team at the time of survey of assets.
15.3 Appointment of Independent Appraising Team The Licensor and Licensee shall by mutual consent agree to appoint an independent Appraising Team at least 6 months prior to the Scheduled Date of Normal Transfer.
15.4 Final survey In the event of Normal Transfer the Licensor along with the Appraising Team shall conduct a final survey of the Project Assets and the facilities 2 months prior to the Scheduled Date of Normal Transfer. The Licensee shall undertake necessary amendments in the Project Assets to rectify the deficiencies identified by the Appraising Team and to make the Project Assets in good condition.
15.5 Transfer of the facilities and Project Assets a. In the event of Normal Transfer, and final transfer of the facilities and the
Project Assets shall be effected within 30 days of the Scheduled Date of Normal Transfer [“Actual Date of Normal Transfer”].
b. In the event of Termination, the final transfer of the facilities and the Project Assets shall be effected within 30 days of the submission of the survey report by the Appraising Team.
15.6 Passing of Risk Until the Actual Date of Normal Transfer, the Project Assets shall remain at the sole risk of the Licensee, and the Licensee shall be solely responsible for any loss of or damage caused to the Project Assets for any reasons whatsoever to whole or any part of the Project Assets, unless such loss or damage caused to or suffered by the Licensee is due to any act of default or omission or negligence on the part of the Licensor.
16.0 INSURANCE The Licensee shall effect and maintain at its own cost, during the License
Period the insurances detailed under Clause 16.1 for such maximum sums as may be required and such other insurances as may be necessary or prudent in accordance with Good Industry Practice and per the provisions of protection and indemnity Insurance Association (P&I Club). The Licensee shall also effect and maintain such insurances as may be necessary for mitigating the risks that may devolve on the Licensor as a consequence of any act or omission of the Licensee during the License Period. The Licensee shall procure that in each insurance policy, the Licensee shall be a co-insured. If the Licensee fails to effect and keep in force all insurances for which it is responsible pursuant hereto, the Licensor shall have the option to either keep in force any such insurance, and pay such premia and recover the costs thereof from the Licensee.
16.1 Covers to be taken The Licensee shall on and from Zero Date, maintain at its own expense, insurance policies as are customary or may in the future become available and as are required, specifically including but not limited to: a) Project Asset all risk insurance
b) Vessel’s all risk insurance;
c) Breakdown insurance;
d) Public liability insurance of not less than (Rs. 50 Crore or US$ 10 Million);
e) Statutory insurances such as workmen’s compensation insurance, or any other insurance as may be required by applicable law and practice; and
f) Insurance policies available through insurance or reinsurance related to
i. Any of the obligations of the Licensee as per this Agreement; and
ii. Natural and/or other Force Majeure or events which affect the performance of obligations of the Licensee and/or the commercial viability of the Project, including loss of business insurance
16.2 Exclusion
Where this Agreement provides for remedies and/or compensations for any event
due account shall be taken for remedies customarily available and/or then available through insurance and/or reinsurance covering damages related to such event. No compensation shall be paid for losses that should have been insured, but were not insured by the Licensee.
16.3 Proof of insurance
a. The Licensee shall furnish to the Licensor copies of certificates and policies of insurance referred to in Clause 16.0 as soon as reasonably possible after they have been received by the Licensee and from time to time shall furnish evidence to the Licensor that all relevant premiums have been paid and that the relevant policies remain in existence.
b. Failure by the Licensee to obtain the insurance coverage or certificates of insurance required pursuant to this Clause 16.0 shall not relieve the Licensee of all or any of its obligations herein or in any way relieve or limit the Licensee’s obligations or liabilities under any other provisions of this Agreement.
c. If the Licensee shall fail to effect and/or maintain insurance in accordance with this Clause, the Licensor may affect the insurance at the full cost and expense of the License. The cost and expense shall be due and payable by the Licensee to the Licensor within 7 days of notice from the Licensor to the Licensee.
16.4 Application of the insurance proceeds
Subject to any agreement between the Lenders, all insurance claim paid to the
Licensee shall be applied for reconstruction of the Project except for insurance proceeds unrelated to physical damage.
17.0 DISPUTE RESOLUTION
a. Save as expressly stated to the contrary in this Agreement or where this Agreement provides that a dispute shall be referred to the Expert Committee for resolution, any dispute or difference of whatsoever nature howsoever arising under, out of, or in connection with this Agreement between the parties shall be referred to the dispute resolution procedures as set out hereafter.
b. Each party shall select and appoint one senior representative within a period of 60 days from the day on which the notice of dispute has been sent by one party to the other. The representatives shall meet in Gandhinagar as and when necessary from time to time and attempt in good faith and use their best endeavors at all times to resolve the dispute and produce written terms of settlement.
c. If the dispute has not been resolved as evidenced by the signing of the written terms of settlement within 180 business days after the receipt of the notice as provided in Clause 17.0(b) above, the provisions of clause 17.0(d) herein below shall be applicable.
d. In the event that the dispute has not been resolved in accordance with the provisions of clause 17.0(a) to17.0(c) herein above, such dispute shall be submitted to a Board of Arbitrators comprising one nominee of each Party to the dispute, and where the number of such nominees is an even number, the nominees shall elect another person to such Board. Such arbitration shall be held in accordance with the provisions of Indian Arbitration and Conciliation Act, 1996 or any statutory modification or reenactment thereof.
e. The venue of arbitration shall be Gandhinagar and the language of arbitration shall be English.
f. In the event of any party issuing a notice for reference to Expert Committee for resolution of dispute following procedure will be adopted
i. The Parties will finalize choice of independent expert in the field of port and harbour engineering and/or financial and cost accounting as the case warrants within one week of such notice, failing which, each party shall appoint such an independent expert within two weeks of the Expert Committee Notice.
ii. Such independent experts shall have adequate experience in the design, construction, operation and maintenance of port facilities and/or port finances, accounting, costing and valuation practices as the case warrants.
iii. The two experts will jointly appoint a third expert with similar experience within one week of their appointment.
iv. The party issuing the Expert Committee Notice will provide the Experts with written submission of the nature of the dispute and the claim of the other party along with supporting documents within one week of the constitution of the Expert Committee. Within one week of the furnishing of such submission, the other party may choose to provide written submissions defending its position.
v. The Expert Committee may call on either party to furnish additional information as deemed necessary to solve the dispute.
vi. The Expert Committee shall give the majority decision to both parties within three weeks of the receipt of written submission from the contracting parties.
vii. The decision of the Expert Committee shall be final and binding on the contracting parties unless either of the parties issues an Arbitration Notice.
18.0 INDEMNITIES
a. The Licensee shall comply with all applicable laws in accordance with the obligations of the Licensee under this Agreement. The Licensee shall be liable for and shall defend, hold harmless and indemnify the Licensor against all losses, claims and costs arising out of the Licensee's performance of the Agreement, breach of the Agreement, claims of personnel, claims of users in the event of disruption in service caused due to berthing directives and claims of third parties in the nature of sub-lessee, lessees, construction contractors, subcontractors for services and other such parties (unless otherwise provided for in this Agreement).
b. The licensee hereby agrees and undertakes that the licensee shall indemnify the licensor also for all the acts done prior to the Effective Date.
c. The licensee hereby agrees and undertakes that during the license period it shall indemnify and keep indemnified and otherwise save harmless, the
licensor, its agents and employees, from and against all claims, demand, made against and/or laws cause and/or damages suffered and/or cost, charges/expenses incurred or put to and /or patently levied and/or any claim due to injury to or death of any person and/or loss or damage caused or suffered to property owned or belonging to the licensor or its agents and employees or third party as a result of any acts, deeds or things done or omitted to be done by licensee or a result of failure on the part of licensee to perform any of its obligations under this Agreement or on the licensee committing breach of any of the terms and conditions of this Agreement or on the failure of the licensee to perform any of its statutory duty and/or obligations or failure or negligence on the part of the licensee to comply with any statutory provision or as a consequence of any notice, show cause notice, action, suit or proceedings given initiated, field or commence by consignee or owner of the goods or vessel owners/agents or its employees or any third parties or Government Licensee or as a result of any failure or negligence or willful default of the licensee or its contractor(s), sub contractor(s), sub licensee, invites or employees, servants, agents of such contractors(s) and/or sub contractor(s) and/or sub licensees and/or invites as the case may be in connection with or arising out of this Agreement and/or arising out of or in connection with the license’s use and occupation of licensed premises and/or terminal.
d. The Licensor agrees to defend, hold harmless and indemnify the Licensee against any direct loss caused to the Licensee due to willful default by the Licensor or due to breach of the terms of this Agreement save and except any losses in respect of any disputes arising out of land acquisition and relief and rehabilitation measures.
e. Without prejudice to clause 11.0, 12.0 and 13.0, neither party shall be liable to the other party for any indirect, consequential, incidental, punitive or exemplary damages or for loss of profit, consequential financial or economic loss or any disruption in the flow of traffic into the Port for any reason whatsoever.
19.0 MISCELLANEOUS PROVISIONS
19.1 Amendments etc.
No amendment or waiver of any provision of this Agreement, nor consent to any
departure by any of the parties there from, shall in any event be effective unless the same shall be in writing and signed by the parties hereto and then such waiver or consent shall be effective only in the specific instance and for the specified purpose for which given.
19.2 Agreement to Override Other Agreements; Conflicts
This Agreement supersedes all previous agreements or arrangements between parties, including any memoranda of understanding entered into in respect of the contents hereof and represents the entire understanding between the parties in
relation thereto.
19.3 No Waiver; Remedies
No failure on the part of any party to exercise, and no delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof or a consent thereto; nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies herein provided are the cumulative and not exclusive of any remedies provided by applicable law.
19.4 Severance of terms
If any provisions of this Agreement are declared to invalid, unenforceable or illegal by any competent arbitral tribunal or court, such invalidity, unenforceability or illegality shall not prejudice or affect the remaining provisions of this Agreement which shall continue in full force and effect.
19.5 Language
All notices, certificates, correspondence or other communications under or in connection with this Agreement, and Project contracts, if any, or the Project shall be in English.
19.6 Governing Law& Jurisdiction
This Agreement shall be governed by and construed with solely in accordance with the laws of India in every particular, including formation and interpretation. Any proceedings arising out of or in connection with this Agreement shall be brought only before the Court of competent jurisdiction in Gandhinagar, Gujarat.
19.7 Confidentiality
No Party shall, without the prior written consent of the other Parties, at any time divulge or disclose or suffer or permit its servants or agents to divulge or disclose to any person or use for any purpose unconnected with the Project any information which is, by its nature or it marked “proprietary material,” concerning the other (including any information concerning the contents of this Agreement) except to their respective officers, directors, employers, agents, representatives and professional advisors or as may be required by any law, rule, regulation or any judicial process for period of five years after the Transfer Date; provided, however, that any Party, with the written consent of the other Parties, may issue press releases containing non-sensitive information in relation to the progress of the Project. This Clause shall not apply to information:
a. Already in the public domain, otherwise than by breach of this Agreement. b. Already in the possession of the receiving Party before it was received from
any other Party in connection with this Agreement and which was not obtained under any obligation of confidentiality; or
c. Obtained from a third party who is free to divulge the same and which was not obtained under any obligation of confidentiality.
d. Disclosure to Lenders under terms of confidentiality. 19.8 Notices
Any notice to be given hereunder shall be in writing and shall either be delivered
personally or sent by registered post, telex, facsimile transmission, electronic mail or other means of telecommunication in permanent written form. The addresses and numbers for service of notice shall be given to the parties at their respective addresses set forth below:
LICENSOR
Attention :
Vice Chairman & Chief Executive Officer Gujarat Maritime Board Sector 10-A, Opp. Air Force Station ‘Chh’ Road, Gandhinagar-382010 Tel.No. 091-79-23238346/47/48 Fax No. 091-79-23234703/4/5
LICENSEE
Attention : Mr. Company Name Address: Tel.No.: or such other address, telex number or facsimile number as may be notified by that party to the other party from time to time, and shall be deemed to have been made or delivered (i) in the case of any communication made by letter, when delivered by hand, or by mail (registered, return receipt requested) at that address and (ii) in the case of any communication made by telex or facsimile when transmitted properly addressed to such telex number or facsimile number. In case any party changes its address, communication numbers, or directed attention as set forth above, it shall notify the other parties in writing to the adoption thereof.
19.9 Original Document This Agreement is made in three original copies, each having the same contents and the parties have read and thoroughly understand the contents hereof and have hereby affixed their respective signatures and seals before witnesses.
IN WITNESS HEREOF this Agreement has been executed by the duly authorized representatives of the parties hereto on the day and year first above written.
For and on behalf of the Gujarat Maritime Board By Mr
WITNESS:
1. 2. For and on behalf of [Licensee] By Mr
WITNESS: 1. 2. Gujarat Maritime Board ________ 201X
2. For and on behalf of the Government of Gujarat By WITNESS:
1. 2. The Annexures contain provisions that are relevant to this Agreement and the various detailed Clauses.
ANNEXURE 1: FINAL EXECUTION PLAN
With reference to Clause No. 2.2 (a), the Licensor and Licensee have agreed to the following Execution plan on best efforts and good faith basis
Sr. No.
Activity Date
1. Obtaining NOC from DG Shipping, GOI
2. Obtaining Clearance from custom authority/ GOI
3. Providing of seaworthiness certificates for the vessels
4. Offer of Inspection of Vessel by Licensee to Licensor
5. Joint Inspection of dredged channel by Licensor and Licensee
6. Joint Inspection of terminal & Marine facilities by Licensor and Licensee
7. Handing over of Terminal facilities by Licensor to Licensee (Zero Date)
8. Commencement Of Maiden Journey
ANNEXURE 2: PROJECT ASSETS
THE FOLLOWING IS THE LIST OF PROJECT ASSETS FROM LICENSOR TO LICENSEE 1. Marine Terminal Works: a) Vessel Berths
· Berthing Structures; · Structures for protection of Pontoon against wave and current activity.
b) Access Way
· Access Bund; · Access Trestle; · Bankseat for Linkspan
c) Ro-Ro Equipment
· Linkspan Bridge; · Pontoon.
d) Reclamation bund & Rock revetment
· Reclamation bunds · Rock revetment
2. Shore Terminal Works:
a) Buildings · Main Terminal* · Administration · Roofed Area · Water Tower & Underground Tank; · Workshop · Security · Substation; · Other Minor Buildings.
b) Paved Areas
· Ro-Ro Marshalling; · Car Park;
· Bus Terminal;
c) Infrastructure · Roadways; · Signage; · Water Supply, Distribution & Fire Fighting · Drainage; · Sewerage; · Electrical Distribution; · Exterior Lighting; · Perimeter fence & Security Gates; · Weighbridge; · Communications; · Provision of Services to Vessels; · Planting & Greenery · Landscaping · Fuel pipe line at Dahej · Water supply pipe line at Gogha and Dahej terminal
* The licensee has right to sublease only the designated area in the building as shown in the layout drawing
ANNEXURE 3: MAINTENANCE STANDARDS OF MARINE FACILITIES
All the facilities provided under contract shall perform satisfactorily for their intended design life and, to ensure the required performance the facilities shall be inspected regularly for damage due to abuse & accidents. Under this maintenance procedure the facilities specifically include are (But not limited to):
1) Linkspan 2) Pontoon 3) All other marine structures, Viz.
a. Berths, b. Approach jetty c. Bund
1.0 Corrosion Protection : 1.1 All marine structures except linkspan and Pontoon: All marine steel structures shall be provided with paint coating to provide a basic protection. Protection beyond this shall be provided by combination of extra sacrificial metal thickness and cathodic protection. The Anodes required for cathodic protection shall have to be replaced generally after 10 years of commissioning of the terminal, but depending upon the actual observation, some of them may require replacement before this. The main elements requiring regular inspection and replacement of anodes would be 5 nos of steel piles on each of 7 nos of Dolphins at Dahej & Gogha and approx 12 Nos. Guide piles restraining pontoon at Dahej & Gogha. In case any of the anodes are worn out more than 50% of the original size, they shall be replaced.
1.2 Link span & Pontoon : Link span and pontoon shall be are provided with protective paint coating system and a regular and thorough inspection shall be carried out and as & when , necessary, a repainting after blast cleaning to Sa2.5 shall be carried out . The Sacrificial Anode provided for pontoon shall also be replaced The Sacrificial Anode provided for Pontoon shall also be replaced if & when necessary. Linkspan Railings shall be inspected once every six months to ensure that they are in alignment and having smooth surface and not in a state to cause any scratches or injury to users.
2.0 Dry Docking of Pontoon: The final frequency of Dry docking shall be agreed with the classification society. Under water survey and ultrasonic recording of the bottom plates shall be carried out every 2.5 years. Dry docking shall be carried out for survey after five years 3.0 Regular Inspections: The inspection & Maintenance schedule for various elements shall be as follows. 3.1 Pontoon, Linkspan, Dolphins, Access Jetty & Bund Inspection for these
facilities shall be carried out as per UK Highways agency DMRB document “BD 63/07 BD 62/07, & BD 87/05 regarding inspection & maintenance of Highway structures” .
This involves following inspections.
i) Safety inspections: These inspections shall not be specific to just above
structures and generally cover all fixed assets including carriageways, footways, structures, drainage, verges & lighting. Safety inspections shall be carried at frequencies which ensure the timely identification of safety related defects & reflect the importance of a particular asset. Safety inspections shall also be done based on notification of a defect by third party e.g. police or public.
ii) General Inspections: These shall be carried out at every two years. Where general inspection coincides with Principal inspection, only latter shall be performed. a. The purpose of a General Inspection is to provide information on the
physical condition of all visible elements. b. A General Inspection comprises a visual inspection of all parts of the
structure that can be inspected without the need for special access equipment or traffic management arrangements. This Shall include adjacent earthworks and waterways where relevant to the behavior or stability of the structure. Riverbanks, for example, in the vicinity of the structure Shall be examined for evidence of scour or flooding or for conditions, such as the deposition of debris or blockages to the waterway, which could lead to scour or flooding.
c. Prior to undertaking a General Inspection, the inspector Shall review the structure records to familiarise themselves with the characteristics of the structure, the condition at the time of the last inspection and any
significant maintenance/modifications since the last inspection. A method statement Shall be prepared, and agreed by the Supervising Engineer, before undertaking the inspection. The Inspection Manual for Highway Structures provides details of a suitable review and method statement for a General Inspection.
iii) Principal Inspections: These shall be carried out every 6 years.
a. The purpose of a Principal Inspection is to provide information on the
physical condition of all inspectable parts of a highway structure. A Principal Inspection is more comprehensive and provides more detailed information than a General Inspection
b. A Principal Inspection comprises a close examination, within touching distance, of all inspectable parts of a structure. This shall include adjacent earthworks and waterways where relevant to the behavior or stability of the structure. A Principal Inspection shall utilise as necessary suitable section techniques, access and/or traffic management works. Suitable inspection techniques that shall be considered for a Principal Inspection include hammer tapping to detect loose concrete cover and paint thickness measurements. Testing is not a requirement for a Principal Inspection.
c. The Agent may use appropriate alternatives to close examination for areas of difficult or dangerous access, e.g. obscured parts of a structure and confined spaces. Closed circuit television may be an appropriate alternative in some circumstances. Alternatives to close examination must be agreed with the Overseeing Organization before being used by the Agent. The Agent must fully document the reasons for adopting the alternative approach. Alternatives must provide comparable quality of inspection information to close examination.
d. Special Inspection for concrete structures, i.e. half-cell potential, chloride level, covers meter and depth of carbonation. Agents may find it appropriate to combine these Special Inspection activities with a Principal Inspection in some circumstances.
iv) Maintenance Painting of steel structures shall be done at the end of paint system design life i.e. 15 years for linkspan & pontoon & 12 years for all other steel structures.
4.0 Operation of RO-RO Facilities: The RO-RO facility operator shall deploy sufficient number of trained staff for proper RO-RO operation. This shall include (but not limited to):
1. Traffic wardens at Onshore & Offshore junctions. 2. Security men & Lifeguards trained in emergency rescue and fire fighting. 3. Staff to monitor sea state and ensure that facility is not operated beyond
limiting sea state (Like wind speed, wave height etc).The value of limiting sea states (based on site specific modeling studies) will be provided as part of detailed O&M manual at the time of handing over the works to GMB. The facility operator shall also ensure that daily & weekly weather forecast for each site is obtained and communicated to all concerned.
4. Adequate staff /security wardens shall be employed to restrict entry of unauthorized persons to areas like water tanks, control rooms, sub stations etc.
5. Access to marine facilities during adverse sea states shall be restricted to all except authorized trained personnel only.
6. Ferry operators/captains & operating staff shall be informed of the limiting distance between pontoon and vessel to avoid any vessel impact on pontoon. Adequate means to check the limiting distance may be employed by the terminal operator.
7. It is expected that all the key staff stationed at various points will be provided with adequate communication equipments like wireless radio and CCTVs to ensure proper communication and co-ordination.
8. Adequate checking of Passengers and vehicles shall be performed to ensure hazardous /restricted goods (inflammable substances/ crackers /weapons, liquor etc as prohibited by state/local administration) are not carried inside the marine terminals.
9. Adequate staff & equipment like CCTVs, boom barriers, entry-exit register etc to record entry - exit of passengers & vehicles from RO-RO facility shall be provided.
10. To ensure smooth movement, the linkspan articulation assembly/bearing at pontoon & bankseat end shall be inspected, cleaned and lubricated regularly.
5.0 ON SHORE STRUCTURES:
i) All drains shall be checked and cleared before every monsoon.
ii) Regular inspection and testing of firefighting equipment along with fire safety drills shall be performed.
The above describes in brief the main aspects of the maintenance of the terminal and marine structures. 6.0 Other Marine Structures
1. The marine structures shall be inspected once in a year to detect any damages caused such as spilling of concrete, exposing & corrosion of rebars, etc.\
2. The spray zone and tidal zone shall be particularly inspected for the abovementioned structural damages.
3. The damages shall be brought to the notice of a competent structural engineer and acted upon following the engineer’s recommended method.
ANNEXURE 4: LIST OF PROHIBITED CARGO The following cargo, in addition to cargo restrictions as per International Maritime Dangerous Goods (IMDG) Code, is specifically prohibited from being brought into terminal premises or being taken onboard the vessel
1. Wine, Spirit and liquor 2. Liquid cargo save and except carried in drums or carboys 3. Firearms of all the size and ammunitions of all caliber 4. Firecrackers 5. Combustible Items 6. Live animals 7. Gaseous products except stored in a manually handleable cylinders 8. Contraband items 9. Toxic Items 10. Petroleum product/ explosive item
ANNEXURE 5: VESSEL OPERATING PROCEDURE
I. GENERAL
1. Vessel will be mandatorily piloted by the Pilot approved by the Licensor. 2. Master shall ensure that sufficient numbers of good mooring hawsers/wires
are made fast to bollards ashore to encounter strong tidal current and to cease vessel surging. Engines shall be kept ready and on standby at all times & only when vessel requires repairing she will have to be ported (taken) to a dry dock.
3. Moorings shall be tendered by vessels crew and terminal mooring gang in
coordination at all times, so that vessel does not drift/come out of berth during the variation of tide.
4. VTMS (Vessel Traffic & Monitoring System) installed by the Licensor or its nominated agent shall be used as navigational aid.
5. All vessels intending to enter the channel (inward & outward) shall obtain
entry clearance from VTMS in force and shall report to VTMS on designated VHF Channel.
6. All vessels to have all statutory mandatory certificate required for
seaworthiness as MS Class vessels.
7. All manuals relating to master-pilot relation, bridge watching and mandatory check of ship maneuver shall be followed.
8. For the entry clearance, vessel shall contact VTMS on working VHF channel
with present position in Latitude/Longitude and ETA to Channel entrance marked on chart. In turn after the reporting VTMS will track and monitor the vessel and will advise accordingly with time of channel entry. (On this run, vessels will always be within VTMS.)
9. Reporting points to VTMS for vessels shall be at the either side of the channel entry & exit and as marked on navigational charts.
10. All Vessels shall have the large scale Indian charts available for the area and corrected up to latest notices to mariners published.
11. Once a vessel has entered the channel no other vessel shall be allowed to enter the channel unless the vessel in transit is clear. Vessel shall abide by the VTMS instructions in this regard and shall wait outside until the clearance is granted.
12. Vessel transiting in the channel shall at all times follow the rules of roads for collision avoidance and to avoid any close quarter situation with any other Vessel. Navigation is the sole responsibility of the Master of the vessel.
13. The berthing control will be decided between the VTMS and terminal control tower.
14. Terminal should have tugs stand-by at all times.
15. Ro-Ro Berthing/Un-berthing movements shall have priority over any other movements in the Channel and Turning Circle. The control over these movements shall be exercised by the Licensee, as per the procedure that may be approved by the Licensor from time to time.
16. If the vessel transiting through the channel observes any irregularities of
depth of water in the channel and/or any navigational aids out of position/unlit or any danger to navigation in the channel, she shall immediately bring this to the notice of VTMS and the Licensor for further necessary actions.
17. Vessel transiting through the channel shall always maintain adequate under-keel clearance as per their company policy giving due regard to squat effect/change of draft due to change in water density/tides etc. All vessels shall maintain a under keel clearance (UKC) of minimum 0.50 meter at all times in the port waters.
18. Advises passed by VTMS are recommendations only. Master of the vessel shall decide on his own wisdom without prejudice to safety of the vessel and relevant rules to comply with the recommendations of VTMS.
19. All vessel inward/outward movements shall comply with the rules and regulations of other statutory bodies such as Customs, Immigrations, pollution prevention etc. as applicable.
II. Port Marine Control/Signal Station - 24 hours operation
Port Marine Control / Signal station will monitor and control traffic movement within port/terminal waters and may work as the subordinating arm of VTMS and will be normally situated close to terminal with communication and vessel tracking devices. It will give information about scheduled pilot boarding/berthing information to vessels bound for this terminal. Inbound/ Outward vessels to the particular terminal should establish contact with Signal Station on working VHF Channels.
Ro–Pax vessels at anchor, if any, must maintain a listening radio watch on
VHF channels advice of any change of berthing instructions or of other port operational matters.
The Port Marine Controller is responsible for programming vessel
movements in the port waters under the general direction of the Port Licensee and will take into account the following priority guidelines:
a. Any vessel, which is in an emergency, shall have priority of
movement and services over all other vessels.
b. Ro-Pax vessels (inwards and outwards).
c. Any vessel whose movement may, for some reason, be governed by tidal or navigational conditions and require daylight for channel transit.
d. Any vessel that, for some reason, requires daylight for berthing, departure or channel transit.
e. Any vessel whose movement is governed by particular tidal or navigational conditions.
III. Assistance to be Given to Officers of the Licensor
The Master of a vessel which is within port waters must, by every means
consistent with the safety of the vessel, assist an officer of the LICENSOR in boarding or leaving the vessel in the execution of his or her duties, including the supply of information and documents regarding the status of the vessel.
No person on board the vessel may interfere with or obstruct any authorised
officer of the LICENSOR/ GOG/ GOI whilst carrying out his or her duties.
IV. Anchoring and berthing
1. The Master of a vessel not underway or making way shall ensure that at all times the vessel is properly and effectively berthed or anchored.
2. The Master of a vessel at anchor, or berthed, in port waters shall not cause or permit the vessel to change its position without prior permission obtained via Port Marine Control.
3. If a vessel parts from its anchor, or drags from its anchoring position or parts any mooring lines, the Master of the vessel shall immediately notify Port Marine Control and take immediate steps to correct any effect of such parting or dragging. A terminal operator to provide all assistance by way of tugs and marine craft in their jurisdiction.
4. The Master of a vessel anchored in port waters shall, as per the instruction of the Port Officer, ensure that:
a. The vessel when anchored is in a position that will permit the vessel to swing clear of the channels and fairways.
b. There is sufficient cable out in all tides, considering the holding ground and the prevailing and forecast weather conditions.
c. When the vessel is ‘brought up’ the Master shall advise the time and position of anchoring to Port Marine Control.
d. Communication is established with Port Marine Control and a listening watch is maintained on VHF Channels.
e. The Master of a vessel at anchor or berthed in port waters shall not permit the immobilization of main engines without advance notification to the Port Officer. Master and shall not permit such immobilization if directed by the Port officer not to do so. Such permission will be granted by the Port Officer in consultation with the Terminal Operator.
f. The Master of a vessel shall comply with all requirements of COLREGs (including with respect to lights, shapes and sound signals, as applicable from time to time).
V. Unsafe vessels
1. Any vessel which is an unsafe vessel shall be prohibited from entering or
transiting the channel waters without the prior approval of the Port Officer. Where the Master of a vessel becomes aware of any condition or circumstance relevant to the seaworthiness of the vessel that may affect the safe navigation or operations (including cargo operations) of the vessel, or any other vessel in port waters, or which may in any way affect the day-to-day safety or operations (including cargo operations) or environment of the port waters; the Master of a vessel shall: a. If the vessel has not entered or transited port waters, provide
full particulars of any deficiencies (actual or suspected) to the port officer at least one hour before the vessel enters or transits port waters. Any such entry or transit may only begin after receipt of written approval from the Port Officer and subject to strict compliance with any directions (including conditions, restrictions or requirements) imposed by the Port Officer.
b. If the vessel has already entered port waters, immediately notify Port Marine Control of the changes to the conditions or circumstances affecting the seaworthiness of the vessel and thereafter provide written notice thereof within 24 hours.
2. A vessel shall be considered ‘unsafe vessel’ for the purposes of these Directions if the vessel or the operation of the vessel is likely to endanger any life, the safety of the vessel or any other vessels or the environment as in compliance with M.S. Act by reason of: a. The condition of the vessel and/or its equipment.
b. The manner in which cargo or equipment is or has been stowed and secured on the vessel.
c. The nature of any cargo loaded or to be loaded on the vessel.
d. Any overloading of the vessel, either by way of persons or cargo or both.
e. Any inadequacy in the number and/or qualifications of the crew.
f. Any other reason relating to the nature of the vessel and anything or person or about the vessel.
3. Masters are obligated to remind themselves at all times of the condition of
their vessel (including its crew, equipment and cargo and not to operate their vessel in an unsafe condition.
VI. Vessel Manning
1. The vessel shall be manned at all time by experienced and competent crew as
per STCW convention / D.G. Shipping / Licensor / GMB requirement and at all time the crew deployed shall be medically fit and properly rested not fatigue.
2. The waterside entry / exit including bow and stern ramp shall remain under CCTV surveillance with display in control room.
VII. Incidents/Accidents In Port waters
The following requirements relate to Masters, Owners or Agents of vessels that have sunk or stranded or collided within port waters and Owners of objects that obstruct port waters:
1. If a vessel sinks or strands within port waters or if any object impedes the
navigation or use of port waters, the Master, Owner or Agent of the vessel and the Owner of the object by which the obstruction is caused (as the case may be), shall immediately:
a. Notify Port Marine Control of the position of the sinking,
stranding or obstruction; and
b. Unless directed otherwise by the Port officer, take the necessary steps for removal of the vessel or obstruction;
c. Display such lights and shapes and give such warning signals as are required pursuant to COLREGs; and,
d. Comply with all other statutory obligations and directions and if required by the circumstances, give statutory notice thereof to DG Shipping/MMD.
e. During Monsoon, Emergency Towing Vessels (ETV) of DG (Shipping)/ Govt. of India would be called & during other season wreck removal should be done in 48 hrs by Terminal/Ferry operator for which they have to sign an agreement with the salvage facility in India.
2. If a collision takes place causing damage to any vessel, wharf or property
within port waters, or if a vessel strands or sinks within port waters, or any other circumstance occurs that is required to be reported pursuant the Navigation Act, the Master of every vessel involved shall immediately: a. Report the circumstances and position to Port Marine Control;
and
b. As soon as possible, confirm the report in writing to the Port Officer.
c. Display such lights and shapes and give such warning signals as are required pursuant to COLREGs; and,
d. Comply with all other statutory obligations and directions and if required by the circumstances, give statutory notice thereof to DG Shipping/MMD.
VIII. Environmental Protection
It is required that the Master of a vessel using port waters to:
a. Comply with the requirements of MARPOL 73/78
b. Comply with the requirements of the Private/Captive Port Safety and Environmental Management Plan (SEMP).
c. Not cause or permit refuse of any kind to be discharged from the vessel (including through scuppers) into port waters.
d. Not cause or permit a person to pump or discharge any oil, oily water, spirit or any flammable liquid into port waters or to release by venting into the atmosphere above port waters any noxious or hazardous fumes or gas.
e. All oily water, bilge water, garbage, etc. shall be handed over to the facility providers empanelled by the Licensor.
IX. Bunkering
Bunkering to certain agreed capacity will be made available but only at the Dahej terminal. Manual of bunkering procedure should be followed and the responsible officer in charge of the bunkering shall be specified in each operation. The following requirements shall apply before and during bunkering preparations. a) The Master of a vessel must not carry out bunkering if:
(i) Weather conditions are not suitable;
(ii) The Port officer directs that such bunkering not be carried out or, if such
Bunkering has begun; the port officer directs that such bunkering cease.
b) The Master of a vessel shall ensure that no bunkering operation is
begun or allowed to continue unless there has been due compliance with each of the conditions set out in the Safety and Environmental Requirements of this Handout.
c) The terminal operators at the berth will have in place procedures governing bunkering from road tankers at berths under their control. Masters shall follow their procedures in lieu of the requirements.
d) The Port Officer Shall has the discretion to inspect any aspect of any bunkering operations, before they begin or during any such operations.
e) In any case, Bunkering shall be done according to the Manual made available to the Master of the ship.
ANNEXURE 6: TERMINAL OPERATION PROCEDURES
The operation of the terminal shall be managed in such a manner so as to have the vessel operation and terminal operations seamlessly synchronized and the following minimal arrangement shall be made by the Licensee and the procedure followed.
A comprehensive manual for the terminal operation including organogram shall be prepared by the Licensee, jointly reviewed and agreed by the Licensee and Licensor within 3 months of zero date.
1. There shall be an estate manager appointed to look after the maintenance and safekeeping of the premises with provision for his deputies in non general shifts and they shall collectively be responsible for receiving and attending the public complaints and requests for emergency assistance
2. Adequate maintenance staff shall be available in all shifts all through the year to attend to electrical, mechanical and automobile emergencies
3. Roads, marshalling yard, parking areas, bus stand area shall be periodically inspected and re-carpeted / repaired once every two years
4. Proper provision for cleaning of tyres of the cargo vehicles embarking the vessel shall be made.
5. Adequate crew at the berth shall be stationed at all time, in number appropriate for the size and class of vessel, during either berthing or de-berthing in order to ensure that mooring is done in safe and proper manner.
6. This crew shall be given requisite prior training and periodic retraining for the work specifically assigned to them.
7. This crew shall be properly rested before their duty hours and shall not be fatigued or medically unfit
8. Adequate number of security personnel shall be deployed as per CSIF/ IRS suggestions and such personnel shall be engaged in fire drill and traffic and passenger control arrangement on a periodic basis at the interval of not more than one month and the log of the training shall be maintained.
9. All area and buildings shall be kept neat and clean. 10. All illuminating system shall be properly maintained. 11. The electrical switchgear room and AC system shall be serviced regularly. 12. All Water tanks should be kept cleaned. 13. Appropriate garbage proposals shall be made. 14. The transport buses and coaches shall be cleaned properly 15. The interior of all building shall be given a coat of paint once every 2 years
and the external surfaces once every 4 year 16. All exposed steel surfaces that are found to be corroded shall be repainted as
necessary, after thorough cleaning and de-rusting, following the approved procedure and using approved materials.
17. Fire fighting system shall be maintained as per the stipulations of Insurance Tariff Advisory Committee.
18. All navigation buoys shall be maintained.
ANNEXURE 7: VESSEL OPERATING LOG
SEPARATE FOR EACH VESSEL VESSEL NAME: _____________________________________________ Gross Registered Tonnage: __________ MT
Sr.
Dep.
Date
Sailing No.
For the day
Name of
Master
Origin Statio
n (D/G)
Dep. Time from
Origin (IST:
HH:MM)
Arrival Date at Dest.
Arrival Time at
Dest. (IST:
HH:MM)
No. of Passenge
r
No. of
Crew
No. of
Car Unit (CU)
Commercial Vehicle
(CV)
Total Tonnage
( CU + CV )
L M H T
Note:
IST refers to Indian Standard Time L=Light, M=Medium, H=Heavy, T= Trailer
ANNEXURE 8: TERMINAL LAY-OUT PLAN