Calculation of Handling Charges. The Handling Charges shall be payable for actual bags handled as part of the activities mentioned as Table 3 above. No separate Handling Charges shall be payable for activities other than specified at Table 3 above. The total Handling Charges payable shall be as follows Total Handling Charges payable for bag related handling in the nth Financial Year in Rupees = (Unit Rate ofHandling Charges for nth Financial Year in Rs per bag ) X (No of bags unloaded/de-bagged/loaded/stacked) Where Unit Rate for Handling Charges for nth Financial Year in Rs per bag = [Base Unit Rate of Handling Charges as per Table 3 above ] X [1 + (80% X (CPIn – CPIb)/ CPIb)] CPInis the annual average of All India Consumer Price Index for Industrial Workers published by Labour Bureau, Government of India for the month of January immediately preceding the date of revision ; and CPIbis the annual average of All India Consumer Price Index for Industrial Workers published by Labour Bureau, Government of India for month January immediately preceding the start of the Base Year mentioned at Table 1 above Bags handled to be determined from Pre-Acceptance Report and Dispatch Report Schedule J: Damages for shortfall in Services and Non-Conformance on quality and quantity Quantity loss at the time of stock taking Damages payable for shortfall in quantity of Food Grains at the time of dispatch shall be higher of Procurement Price plus 20% (twenty per cent) thereof: the highest wholesale price at which a transaction of sale of Food Grains occurred during the preceding 6 (six) months at the nearest wholesale market for Food Grains; and The Economic Cost published by FCI. The Economic Cost in the year the loss is reported to be considered. Quality loss at the time of dispatch Value cut as applicable under FAQ norms If the stock is not in compliance with FAQ norms, Damages payable at Economic Cost Delay in handling trucks/ trains Damages at the rate of Rs 20 per ton for every hour of delay beyond the stipulated time for handling trucks & train (rail rake). In case, the railways levies higher demurrage charges than calculated as per abovementioned norms for the delay in loading / unloading trains beyond stipulated period in Performance Standard, the same shall be payable by the Concessionaire as the penalty. The deviation is to be calculated on average quarterly basis The rate of penalty shall be revised annually with effect from April 1 every year to reflect 100% of increase in aggregate whole sale price index, as published by Reserve Bank of India Excess in Availability above Normative In the event that the Actual Availability in any month exceeds the Normative Availability, the Concessionaire Availability levels (as per section 11.9.2) shall be entitled to payment of an Incentive which shall be calculated on a pro rata basis equivalent to one half of the proportion that the Fixed Storage Charge bears to the Normative Availability. For the avoidance of doubt and by way of illustration, the Parties agree that if the pro rata Fixed Storage Charge for 1% (one per cent) of Normative Availability is Rs. x, the Incentive payable for Actual Availability of 0.8% (zero point eight per cent) in excess of Normative Availability shall be Rs. 0.4x. The Parties further agree that the Incentive shall not be due or payable for more than 1% (one per cent) in excess of the Normative Availability. Shortfall in Availability below Normative Availability levels (as per Section 11.9.2) In the event that Actual Availability at any time is less than the Normative Availability, the Fixed Storage Charge payable for the relevant month shall be proportionately reduced and in addition, such reduction shall be multiplied by a factor of 0.5 (zero point five) for determination of Damages. Provided that the aforesaid factor of 0.5 (zero point five) shall be deemed to be 2 (two) during the period of Harvest Season. For the avoidance of doubt and by way of illustration, the Parties agree that if the pro rata Fixed Storage Charge for 1% (one per cent) of Normative Availability is Rs. x, the Damages payable for reduction of 1% (one per cent) in Actual Availability below the level of Normative Availability shall be Rs. 0.5x, which shall be in addition to the pro rata reduction of Rs. x in the Fixed Storage Charge payable for the relevant month. Provided that the Damages payable during the Harvest Season shall be Rs. 2x. [To be issued by a Schedule Bank incorporated in India and having a net worth of at least Indian Rupees one thousand crores only and having a branch in New Delhi]. From: ……………………………………….. [Name of the Bank, and its Branch Address] The Authority vide letter no. dated has issued Letter of Award to (the “Successful Bidder”) for Construction of Silo Complex at the state of , India. (the “Successful Bidder”) has promoted and incorporated a Special Purpose Vehicle in the form of a limited liability company the “Concessionaire”) having its registered office in the State of to enter into a Concession Agreement for undertaking, inter alia, the Project and to perform and discharge all its obligations thereunder. In order to perform and discharge all its obligations concerning the “Project”, the Concessionaire is required to give Food Corporation of India (the “Authority”) a guarantee by a recognized bank based in India in the sum of Rs. on (Indian Rupees as security for compliance by the Concessionaire with its obligations under the Concession Agreement during the construction period. At the request of the Successful Bidder and / or the Concessionaire, the Guarantor has agreed to give Authority the said guarantee on the terms set out therein. We, (Name of Bank] (The” Guarantor”) with its registered office at (Address of Head Office), unconditionally guarantee to pay Authority upon first written demand and without any deduction any sum claimed by the Authority upto a maximum of Rupees (Indian rupees only) (the “Guaranteed Sum”) Subject to the conditions set out below. The Guarantor unconditionally and irrevocably promises to pay on demand the Guaranteed Sum, without protest or demur whatsoever upon the receipt of a written demand from Authority, which shall be final and conclusive as against the Guarantor requiring the Guarantor to make the payment to the Authority. The Guarantor waives any requirement that Authority demand any debt or payment from the Concessionaire before presenting it with a demand under this Guarantee. Authority shall notify the Guarantor of its demand for payment of the Guaranteed Sum without any deduction of whatsoever nature and without reference to any claim or counter claim or set off, in accordance with the Concession Agreement. Such notification by the Authority, shall be conclusive and binding on the Guarantor. No underlying dispute as between Authority and the Concessionaire nor any pending application for interim relief or arbitration proceedings or other legal proceedings shall constitute any ground for prevention, delay or obstruction for making payment to the Authority by the Guarantor and the existence of any disputes or difference or claims in arbitration or otherwise shall not constitute any ground for non-payment on this Guarantee. This guarantee is valid and effective its date. This guarantee and the Guarantor‟s obligations under it will terminate on the Commercial Operations Date of the Project as advised to the Guarantor in writing by the Authority. The Guarantor agrees that its obligation to pay any demand made by the Authority before the termination of this Guarantee will continue until the amount demanded has been paid in full. This Guarantee shall be valid and effective upto 18(Date of validity of the Bank Guarantee for Performance Security) for enabling 18 Period of not less than 36 months for bank guarantee during Construction Period and not less than 24 months during Operation Period Authority to lodge a claim for payment under the Guarantee till the date of expiry of the term of the Guarantee. The Guarantor shall be obligated to make payment upon the Guarantee forthwith on demand, if the claim is lodged within the claim validity period and the obligation to pay is subject to normal limitation for payment of claims upon a guarantee. Time is of essence for payment and in the event of failure to make payment, Guarantor shall be obliged to pay compound interest at 2% above the prime lending rate of the Guarantor institution, compounding quarterly in the event of the Guarantor‟s failure to make payment upon the Guarantee for any reason whatsoever. Payment of interest as provided is no excuse for delayed payment or non- payment of the Guaranteed Sum. No change in the constitution of the Concessionaire or of the Guarantor shall be a ground for release of the Guarantee and no variation in the concession agreement made post selection of the bidder, or post making of the bid, shall constitute a variation, which would, subject to the terms and conditions of this agreement, discharge the Guarantor. The Guarantor shall notwithstanding such change, be found to make payment upon the Guarantee on demand. The Guarantor agrees that no change, addition to or other modifications to the terms of the Concession Agreement or to any documents which have or may be made between Authority and the Concessionaire will in any way release it from any liability under this Guarantee and that it waives any requirement for notice of any such change, addition or modification. The Guarantor agrees that it will not assign its obligations under this Guarantee without the prior written consent of Authority. Authority will not unreasonably withhold its consent if the proposed assignee is of at least equal financial standing to the Guarantor and the assignee assumes in writing the obligations of the Guarantor under this Guarantee at the same time or before the assignment. The Guarantee binds the Guarantor, its successors and permitted assigns. SEAL OF [THE BANK] NAME OF [THE BANK] SIGNATURE NAME TITLE DATE Schedule L : Selection and Terms of Reference for Independent Engineer & Auditor Selection of Independent Engineer & Auditor (IE&A) The provisions of Part II of the Standard Bidding Documents for Consultancy Assignments : Time Base (Volume V) issued by Ministry of Finance, GOI in July, 1997 or any substitute thereof shall apply, mutates mutandis, for invitation of bids and evaluation thereof save as otherwise provided herein. The Authority shall invite technical and financial offers from consulting firms or bodies corporate, as single entities or consortia, with expertise in engineering and post-harvest agriculture science to undertake and perform the duties and functions set forth in Part III of this Schedule. All technical bids so received shall be opened and pursuant to the evaluation thereof, the Authority shall open the financial bids of the qualified firms. The Independent Engineer & Auditor shall be selected on the basis of the lowest price bid from among the qualified bidders. Fees and expenses of Independent Engineer & Auditor (IE&A) The Authority shall ensure that that the payments to the IE&A on account of fees and expenses does not exceed 0.5 % per annum of the Total Project Cost during the Construction Period and 0.25% per annum, adjusted for All India Consumer Price Index (CPI), of the Total Project Cost during Operation Period. The payments made to the IE&A shall be borne equally by the Authority and the Concessionaire in accordance with this Agreement. Appointment of government entity as Independent Engineer & Auditor (IE&A) Notwithstanding anything to the contrary contained in this Schedule, the Authority may in its discretion appoint a government-owned entity as the Independent Engineer and Auditor; provided that such entity shall be involved in consulting, advisory and supervisory work for work similar to the Project envisaged in this Agreement; provided further that a government-owned entity which is owned or controlled by the Authority and/or the direct administrative ministry of the Authority shall not be eligible for appointment as Independent Engineer & Auditor (IE&A).
Appears in 1 contract
Samples: Concession Agreement
Calculation of Handling Charges. The Handling Charges shall be payable for actual bags handled as part of the activities mentioned as Table 3 above. No separate Handling Charges shall be payable for activities other than specified at Table 3 above. The total Handling Charges payable shall be as follows Total Handling Charges payable for bag related handling in the nth Financial Year in Rupees = (Unit Rate ofHandling Charges for nth Financial Year in Rs per bag ) X (No of bags unloaded/de-bagged/loaded/stacked) Where Unit Rate for Handling Charges for nth Financial Year in Rs per bag = [Base Unit Rate of Handling Charges as per Table 3 above ] X [1 + (80% X (CPIn – CPIb)/ CPIb)] CPInis the annual average of All India Consumer Price Index for Industrial Workers published by Labour Bureau, Government of India for the month of January immediately preceding the date of revision ; and CPIbis the annual average of All India Consumer Price Index for Industrial Workers published by Labour Bureau, Government of India for month January immediately preceding the start of the Base Year mentioned at Table 1 above Bags handled to be determined from Pre-Acceptance Report and Dispatch Report Schedule J: Damages for shortfall in Services and Non-Conformance on quality and quantity Quantity loss at the time of stock taking Damages payable for shortfall in quantity of Food Grains at the time of dispatch shall be higher of Procurement Price plus 20% (twenty per cent) thereof: the highest wholesale price at which a transaction of sale of Food Grains occurred during the preceding 6 (six) months at the nearest wholesale market for Food Grains; and The Economic Cost published by FCI. The Economic Cost in the year the loss is reported to be considered. Quality loss at the time of dispatch Value cut as applicable under FAQ norms If the stock is not in compliance with FAQ norms, Damages payable at Economic Cost Delay in handling trucks/ trains Damages at the rate of Rs 20 per ton for every hour of delay beyond the stipulated time for handling trucks & train (rail rake). In case, the railways levies higher demurrage charges than calculated as per abovementioned norms for the delay in loading / unloading trains beyond stipulated period in Performance Standard, the same shall be payable by the Concessionaire as the penalty. The deviation is to be calculated on average quarterly basis The rate of penalty shall be revised annually with effect from April 1 every year to reflect 100% of increase in aggregate whole sale price index, as published by Reserve Bank of India Excess in Availability above Normative In the event that the Actual Availability in any month exceeds the Normative Availability, the Concessionaire Availability levels (as per section 11.9.2) shall be entitled to payment of an Incentive which shall be calculated on a pro rata basis equivalent to one half of the proportion that the Fixed Storage Charge bears to the Normative Availability. For the avoidance of doubt and by way of illustration, the Parties agree that if the pro rata Fixed Storage Charge for 1% (one per cent) of Normative Availability is Rs. x, the Incentive payable for Actual Availability of 0.8% (zero point eight per cent) in excess of Normative Availability shall be Rs. 0.4x. The Parties further agree that the Incentive shall not be due or payable for more than 1% (one per cent) in excess of the Normative Availability. Shortfall in Availability below Normative Availability levels (as per Section 11.9.2) In the event that Actual Availability at any time is less than the Normative Availability, the Fixed Storage Charge payable for the relevant month shall be proportionately reduced and in addition, such reduction shall be multiplied by a factor of 0.5 (zero point five) for determination of Damages. Provided that the aforesaid factor of 0.5 (zero point five) shall be deemed to be 2 (two) during the period of Harvest Season. For the avoidance of doubt and by way of illustration, the Parties agree that if the pro rata Fixed Storage Charge for 1% (one per cent) of Normative Availability is Rs. x, the Damages payable for reduction of 1% (one per cent) in Actual Availability below the level of Normative Availability shall be Rs. 0.5x, which shall be in addition to the pro rata reduction of Rs. x in the Fixed Storage Charge payable for the relevant month. Provided that the Damages payable during the Harvest Season shall be Rs. 2x. [To be issued by a Schedule Bank incorporated in India and having a net worth of at least Indian Rupees one thousand crores only and having a branch in New Delhi]. From: ……………………………………….. [Name of the Bank, and its Branch Address] The Authority vide letter no. dated has issued Letter of Award to (the “Successful Bidder”) for Construction of Silo Complex at the state of , India. (the “Successful Bidder”) has promoted and incorporated a Special Purpose Vehicle in the form of a limited liability company the “Concessionaire”) having its registered office in the State of to enter into a Concession Agreement for undertaking, inter alia, the Project and to perform and discharge all its obligations thereunder. In order to perform and discharge all its obligations concerning the “Project”, the Concessionaire is required to give Food Corporation of India (the “Authority”) a guarantee by a recognized bank based in India in the sum of Rs. on (Indian Rupees as security for compliance by the Concessionaire with its obligations under the Concession Agreement during the construction period. At the request of the Successful Bidder and / or the Concessionaire, the Guarantor has agreed to give Authority the said guarantee on the terms set out therein. We, (Name of Bank] (The” Guarantor”) with its registered office at (Address of Head Office), unconditionally guarantee to pay Authority upon first written demand and without any deduction any sum claimed by the Authority upto a maximum of Rupees (Indian rupees only) (the “Guaranteed Sum”) Subject to the conditions set out below. The Guarantor unconditionally and irrevocably promises to pay on demand the Guaranteed Sum, without protest or demur whatsoever upon the receipt of a written demand from Authority, which shall be final and conclusive as against the Guarantor requiring the Guarantor to make the payment to the Authority. The Guarantor waives any requirement that Authority demand any debt or payment from the Concessionaire before presenting it with a demand under this Guarantee. Authority shall notify the Guarantor of its demand for payment of the Guaranteed Sum without any deduction of whatsoever nature and without reference to any claim or counter claim or set off, in accordance with the Concession Agreement. Such notification by the Authority, shall be conclusive and binding on the Guarantor. No underlying dispute as between Authority and the Concessionaire nor any pending application for interim relief or arbitration proceedings or other legal proceedings shall constitute any ground for prevention, delay or obstruction for making payment to the Authority by the Guarantor and the existence of any disputes or difference or claims in arbitration or otherwise shall not constitute any ground for non-payment on this Guarantee. This guarantee is valid and effective its date. This guarantee and the Guarantor‟s obligations under it will terminate on the Commercial Operations Date of the Project as advised to the Guarantor in writing by the Authority. The Guarantor agrees that its obligation to pay any demand made by the Authority before the termination of this Guarantee will continue until the amount demanded has been paid in full. This Guarantee shall be valid and effective upto 18(Date of validity of the Bank Guarantee for Performance Security) for enabling 18 Period of not less than 36 months for bank guarantee during Construction Period and not less than 24 months during Operation Period Authority to lodge a claim for payment under the Guarantee till the date of expiry of the term of the Guarantee. The Guarantor shall be obligated to make payment upon the Guarantee forthwith on demand, if the claim is lodged within the claim validity period and the obligation to pay is subject to normal limitation for payment of claims upon a guarantee. Time is of essence for payment and in the event of failure to make payment, Guarantor shall be obliged to pay compound interest at 2% above the prime lending rate of the Guarantor institution, compounding quarterly in the event of the Guarantor‟s failure to make payment upon the Guarantee for any reason whatsoever. Payment of interest as provided is no excuse for delayed payment or non- payment of the Guaranteed Sum. No change in the constitution of the Concessionaire or of the Guarantor shall be a ground for release of the Guarantee and no variation in the concession agreement made post selection of the bidder, or post making of the bid, shall constitute a variation, which would, subject to the terms and conditions of this agreement, discharge the Guarantor. The Guarantor shall notwithstanding such change, be found to make payment upon the Guarantee on demand. The Guarantor agrees that no change, addition to or other modifications to the terms of the Concession Agreement or to any documents which have or may be made between Authority and the Concessionaire will in any way release it from any liability under this Guarantee and that it waives any requirement for notice of any such change, addition or modification. The Guarantor agrees that it will not assign its obligations under this Guarantee without the prior written consent of Authority. Authority will not unreasonably withhold its consent if the proposed assignee is of at least equal financial standing to the Guarantor and the assignee assumes in writing the obligations of the Guarantor under this Guarantee at the same time or before the assignment. The Guarantee binds the Guarantor, its successors and permitted assigns. SEAL OF [THE BANK] NAME OF [THE BANK] SIGNATURE NAME TITLE DATE Schedule L : Selection and Terms of Reference for Independent Engineer & Auditor Selection of Independent Engineer & Auditor (IE&A) The provisions of Part II of the Standard Bidding Documents for Consultancy Assignments : Time Base (Volume V) issued by Ministry of Finance, GOI in July, 1997 or any substitute thereof shall apply, mutates mutandis, for invitation of bids and evaluation thereof save as otherwise provided herein. The Authority shall invite technical and financial offers from consulting firms or bodies corporate, as single entities or consortia, with expertise in engineering and post-harvest agriculture science to undertake and perform the duties and functions set forth in Part III of this Schedule. All technical bids so received shall be opened and pursuant to the evaluation thereof, the Authority shall open the financial bids of the qualified firms. The Independent Engineer & Auditor shall be selected on the basis of the lowest price bid from among the qualified bidders. Fees and expenses of Independent Engineer & Auditor (IE&A) The Authority shall ensure that that the payments to the IE&A on account of fees and expenses does not exceed 0.5 % per annum of the Total Project Cost during the Construction Period and 0.25% per annum, adjusted for All India Consumer Price Index (CPI), of the Total Project Cost during Operation Period. The payments made to the IE&A shall be borne equally by the Authority and the Concessionaire in accordance with this Agreement. Appointment of government entity as Independent Engineer & Auditor (IE&A) Notwithstanding anything to the contrary contained in this Schedule, the Authority may in its discretion appoint a government-owned entity as the Independent Engineer and Auditor; provided that such entity shall be involved in consulting, advisory and supervisory work for work similar to the Project envisaged in this Agreement; provided further that a government-owned entity which is owned or controlled by the Authority and/or the direct administrative ministry of the Authority shall not be eligible for appointment as Independent Engineer & Auditor (IE&A).]
Appears in 1 contract
Samples: Concession Agreement
Calculation of Handling Charges. The Handling Charges shall be payable for actual bags handled as part of the activities mentioned as Table 3 above. No separate Handling Charges shall be payable for activities other than specified at Table 3 above. The total Handling Charges payable shall be as follows Total Handling Charges payable for bag related handling in the nth Financial Year in Rupees = (Unit Rate ofHandling Charges for Unloading of bags & De-bagging for nth Financial Year in Rs per bag ) X (No of bags unloaded/unloaded & de-bagged/loaded/stacked) Where + (Unit Rate for Handling Charges Loading of bags directly for nth Financial Year in Rs per bag) X (No of bags loaded directly) Where Unit Rate for Unloading of bags & de-bagging for nth Financial Year in Rs per bag = [Base Unit Rate of Handling Charges Unloading of bags & de-bagging as per Item No 1 of Table 3 above ] X [1 + (80100% X (CPIn – –CPIb)/ CPIb)] CPInis Unit Rate for Loading of bags directly for nth Financial Year in Rs per bag = [Base Unit Rate of Loading of bags directly as per Item No 2 of Table 3 above ] X [1 + (100% X (CPIn –CPIb)/ CPIb)] CPIn is the annual average of All India Consumer Price Index for Industrial Workers published by Labour Bureau, Government of India for the month of January immediately preceding the date of revision ; and CPIbis CPIb is the annual average of All India Consumer Price Index for Industrial Workers published by Labour Bureau, Government of India for month January immediately preceding the start of the Base Year mentioned at Table 1 above Bags handled to be determined from Pre-Acceptance Report and Dispatch Report Schedule J: Damages for shortfall in Services and Non-Conformance on quality and quantity Quantity loss at the time of stock taking Damages payable for shortfall in quantity of Food Grains at the time of dispatch shall be higher of Procurement Price plus 20% (twenty per cent) thereof: the highest wholesale price at which a transaction of sale of Food Grains occurred during the preceding 6 (six) months at the nearest wholesale market for Food Grains; and The Economic Cost published by FCICost. The Economic Cost in the year the loss is reported to be considered. Quality loss at the time of dispatch Value cut as applicable under FAQ norms If the stock is not in compliance with FAQ norms, Damages payable at Economic Cost Delay in handling trucks/ trains Damages at the rate of Rs 20 per ton for every hour of delay beyond the stipulated time for handling trucks & train (rail rake). In case, the railways levies higher demurrage charges than calculated as per abovementioned norms for the delay in loading / unloading trains beyond stipulated period in Performance Standard, the same shall be payable by the Concessionaire as the penalty. The deviation is to be calculated on average quarterly basis The rate of penalty shall be revised annually with effect from April 1 every year to reflect 100% of increase in aggregate whole sale price index, as published by Reserve Bank of India Excess in Availability above Normative In the event that the Actual Availability in any month exceeds the Normative Availability, the Concessionaire Availability levels (as per section 11.9.2) shall be entitled to payment of an Incentive which shall be calculated on a pro rata basis equivalent to one half of the proportion that the Fixed Storage Charge bears to the Normative Availability. For the avoidance of doubt and by way of illustration, the Parties agree that if the pro rata Fixed Storage Charge for 1% (one per cent) of Normative Availability is Rs. x, the Incentive payable for Actual Availability of 0.8% (zero point eight per cent) in excess of Normative Availability shall be Rs. 0.4x. The Parties further agree that the Incentive shall not be due or payable for more than 1% (one per cent) in excess of the Normative Availability. Shortfall in Availability below Normative Assured Availability levels (as per Section 11.9.2) In At the event that Actual rate of Rs 40,000 (Rs Forty Thousand) per day for each day of shortfall in Availability at any time is less during period other than the Normative Availability, the Fixed Storage Charge payable for the relevant month shall be proportionately reduced Harvest Season and in addition, such reduction shall be multiplied by a factor of 0.5 Rs 80,000 (zero point fiveRs Eighty Thousand) for determination of Damages. Provided that the aforesaid factor of 0.5 (zero point five) shall be deemed to be 2 (two) per day during the period of Harvest Season. For the avoidance In case of doubt and by way shortfall of illustrationless than a day, the Parties agree that if the pro rata Fixed Storage Charge for 1% (one per cent) of Normative Availability is Rs. x, the Damages payable for reduction of 1% (one per cent) in Actual Availability below the level of Normative Availability penalty shall be Rson pro-rata basis. 0.5x, which It is agreed that such time period here that the disruption is cumulatively for more than an hour in a calendar day shall be in addition to the pro rata reduction of Rs. x in the Fixed Storage Charge payable considered for the relevant monthpurpose of this calculation. Provided that the Damages payable during the Harvest Season The rate of penalty shall be Rs. 2x. revised annually with effect from April 1 every year to reflect 100% of increase in aggregate whole sale price index (WPI), as published by Reserve Bank of India [To be issued by a Schedule Bank incorporated in India and having a net worth of at least Indian Rupees one thousand crores only and having a branch in New Delhi]. From: ……………………………………….. [Name of the Bank, and its Branch Address] The Authority vide letter no. dated has issued Letter of Award to (the “Successful Bidder”) for Construction of Silo Complex at the state of , India. (the “Successful Bidder”) has promoted and incorporated a Special Purpose Vehicle in the form of a limited liability company the “Concessionaire”) having its registered office in the State of to enter into a Concession Agreement for undertaking, inter alia, the Project and to perform and discharge all its obligations thereunder. In order to perform and discharge all its obligations concerning the “Project”, the Concessionaire is required to give Food Corporation of India (the “Authority”) a guarantee by a recognized bank based in India in the sum of Rs. on (Indian Rupees as security for compliance by the Concessionaire with its obligations under the Concession Agreement during the construction period. At the request of the Successful Bidder and / or the Concessionaire, the Guarantor has agreed to give Authority the said guarantee on the terms set out therein. We, (Name of Bank] (The” Guarantor”) with its registered office at (Address of Head Office), unconditionally guarantee to pay Authority upon first written demand and without any deduction any sum claimed by the Authority upto a maximum of Rupees (Indian rupees only) (the “Guaranteed Sum”) Subject to the conditions set out below. The Guarantor unconditionally and irrevocably promises to pay on demand the Guaranteed Sum, without protest or demur whatsoever upon the receipt of a written demand from Authority, which shall be final and conclusive as against the Guarantor requiring the Guarantor to make the payment to the Authority. The Guarantor waives any requirement that Authority demand any debt or payment from the Concessionaire before presenting it with a demand under this Guarantee. Authority shall notify the Guarantor of its demand for payment of the Guaranteed Sum without any deduction of whatsoever nature and without reference to any claim or counter claim or set off, in accordance with the Concession Agreement. Such notification by the Authority, shall be conclusive and binding on the Guarantor. No underlying dispute as between Authority and the Concessionaire nor any pending application for interim relief or arbitration proceedings or other legal proceedings shall constitute any ground for prevention, delay or obstruction for making payment to the Authority by the Guarantor and the existence of any disputes or difference or claims in arbitration or otherwise shall not constitute any ground for non-payment on this Guarantee. This guarantee is valid and effective its date. This guarantee and the Guarantor‟s obligations under it will terminate on the Commercial Operations Date of the Project as advised to the Guarantor in writing by the Authority. The Guarantor agrees that its obligation to pay any demand made by the Authority before the termination of this Guarantee will continue until the amount demanded has been paid in full. This Guarantee shall be valid and effective upto 18(Date of validity of the Bank Guarantee for Performance Security) for enabling 18 Period of not less than 36 months for bank guarantee during Construction Period and not less than 24 months during Operation Period Authority to lodge a claim for payment under the Guarantee till the date of expiry of the term of the Guarantee. The Guarantor shall be obligated to make payment upon the Guarantee forthwith on demand, if the claim is lodged within the claim validity period and the obligation to pay is subject to normal limitation for payment of claims upon a guarantee. Time is of essence for payment and in the event of failure to make payment, Guarantor shall be obliged to pay compound interest at 2% above the prime lending rate of the Guarantor institution, compounding quarterly in the event of the Guarantor‟s failure to make payment upon the Guarantee for any reason whatsoever. Payment of interest as provided is no excuse for delayed payment or non- payment of the Guaranteed Sum. No change in the constitution of the Concessionaire or of the Guarantor shall be a ground for release of the Guarantee and no variation in the concession agreement made post selection of the bidder, or post making of the bid, shall constitute a variation, which would, subject to the terms and conditions of this agreement, discharge the Guarantor. The Guarantor shall notwithstanding such change, be found to make payment upon the Guarantee on demand. The Guarantor agrees that no change, addition to or other modifications to the terms of the Concession Agreement or to any documents which have or may be made between Authority and the Concessionaire will in any way release it from any liability under this Guarantee and that it waives any requirement for notice of any such change, addition or modification. The Guarantor agrees that it will not assign its obligations under this Guarantee without the prior written consent of Authority. Authority will not unreasonably withhold its consent if the proposed assignee is of at least equal financial standing to the Guarantor and the assignee assumes in writing the obligations of the Guarantor under this Guarantee at the same time or before the assignment. The Guarantee binds the Guarantor, its successors and permitted assigns. SEAL OF [THE BANK] NAME OF [THE BANK] SIGNATURE NAME TITLE DATE Schedule L : Selection and Terms of Reference for Independent Engineer & Auditor Selection of Independent Engineer & Auditor (IE&A) The provisions of Part II of the Standard Bidding Documents for Consultancy Assignments : Time Base (Volume V) issued by Ministry of Finance, GOI in July, 1997 or any substitute thereof shall apply, mutates mutandis, for invitation of bids and evaluation thereof save as otherwise provided herein. The Authority shall invite technical and financial offers from consulting firms or bodies corporate, as single entities or consortia, with expertise in engineering and post-harvest agriculture science to undertake and perform the duties and functions set forth in Part III of this Schedule. All technical bids so received shall be opened and pursuant to the evaluation thereof, the Authority shall open the financial bids of the qualified firms. The Independent Engineer & Auditor shall be selected on the basis of the lowest price bid from among the qualified bidders. Fees and expenses of Independent Engineer & Auditor (IE&A) The Authority shall ensure that that the payments to the IE&A on account of fees and expenses does not exceed 0.5 % per annum of the Total Project Cost during the Construction Period and 0.25% per annum, adjusted for All India Consumer Price Index (CPI), of the Total Project Cost during Operation Period. The payments made to the IE&A shall be borne equally by the Authority and the Concessionaire in accordance with this Agreement. Appointment of government entity as Independent Engineer & Auditor (IE&A) Notwithstanding anything to the contrary contained in this Schedule, the Authority may in its discretion appoint a government-owned entity as the Independent Engineer and Auditor; provided that such entity shall be involved in consulting, advisory and supervisory work for work similar to the Project envisaged in this Agreement; provided further that a government-owned entity which is owned or controlled by the Authority and/or the direct administrative ministry of the Authority shall not be eligible for appointment as Independent Engineer & Auditor (IE&A).]
Appears in 1 contract
Samples: Concession Agreement
Calculation of Handling Charges. The Handling Charges shall be payable for actual bags handled as part of the activities mentioned as Table 3 above. No separate Handling Charges shall be payable for activities other than specified at Table 3 above. The total Handling Charges payable shall be as follows Total Handling Charges payable for bag related handling in the nth Financial Year in Rupees = (Unit Rate ofHandling Charges for nth Financial Year in Rs per bag ) X (No of bags unloaded/de-bagged/loaded/stacked) Where Unit Rate for Handling Charges for nth Financial Year in Rs per bag = [Base Unit Rate of Handling Charges as per Table 3 above ] X [1 + (80% X (CPIn – CPIb)/ CPIb)] CPInis the annual average of All India Consumer Price Index for Industrial Workers published by Labour Bureau, Government of India for the month of January immediately preceding the date of revision ; and CPIbis the annual average of All India Consumer Price Index for Industrial Workers published by Labour Bureau, Government of India for month January immediately preceding the start of the Base Year mentioned at Table 1 above Bags handled to be determined from Pre-Acceptance Report and Dispatch Report Schedule J: Damages for shortfall in Services and Non-Conformance on quality and quantity Quantity loss at the time of stock taking Damages payable for shortfall in quantity of Food Grains at the time of dispatch shall be higher of Procurement Price plus 20% (twenty per cent) thereof: the highest wholesale price at which a transaction of sale of Food Grains occurred during the preceding 6 (six) months at the nearest wholesale market for Food Grains; and The Economic Cost published by FCI. The Economic Cost in the year the loss is reported to be considered. Quality loss at the time of dispatch Value cut as applicable under FAQ norms If the stock is not in compliance with FAQ norms, Damages payable at Economic Cost Delay in handling trucks/ trains Damages at the rate of Rs 20 per ton for every hour of delay beyond the stipulated time for handling trucks & train (rail rake). In case, the railways levies higher demurrage charges than calculated as per abovementioned norms for the delay in loading / unloading trains beyond stipulated period in Performance Standard, the same shall be payable by the Concessionaire as the penalty. The deviation is to be calculated on average quarterly basis The rate of penalty shall be revised annually with effect from April 1 every year to reflect 100% of increase in aggregate whole sale price index, as published by Reserve Bank of India Excess in Availability above Normative In the event that the Actual Availability in any month exceeds the Normative Availability, the Concessionaire Availability levels (as per section 11.9.2) shall be entitled to payment of an Incentive which shall be calculated on a pro rata basis equivalent to one half of the proportion that the Fixed Storage Charge bears to the Normative Availability. For the avoidance of doubt and by way of illustration, the Parties agree that if the pro rata Fixed Storage Charge for 1% (one per cent) of Normative Availability is Rs. x, the Incentive payable for Actual Availability of 0.8% (zero point eight per cent) in excess of Normative Availability shall be Rs. 0.4x. The Parties further agree that the Incentive shall not be due or payable for more than 1% (one per cent) in excess of the Normative Availability. Shortfall in Availability below Normative Availability levels (as per Section 11.9.2) In the event that Actual Availability at any time is less than the Normative Availability, the Fixed Storage Charge payable for the relevant month shall be proportionately reduced and in addition, such reduction shall be multiplied by a factor of 0.5 (zero point five) for determination of Damages. Provided that the aforesaid factor of 0.5 (zero point five) shall be deemed to be 2 (two) during the period of Harvest Season. For the avoidance of doubt and by way of illustration, the Parties agree that if the pro rata Fixed Storage Charge for 1% (one per cent) of Normative Availability is Rs. x, the Damages payable for reduction of 1% (one per cent) in Actual Availability below the level of Normative Availability shall be Rs. 0.5x, which shall be in addition to the pro rata reduction of Rs. x in the Fixed Storage Charge payable for the relevant month. Provided that the Damages payable during the Harvest Season shall be Rs. 2x. [To be issued by a Schedule Bank incorporated in India and having a net worth of at least Indian Rupees one thousand crores only and having a branch in New Delhi]. From: ……………………………………….. [Name of the Bank, and its Branch Address] ]
1. The Authority vide letter no. dated has issued Letter of Award to (the “Successful Bidder”) for Construction of Silo Complex at the state of Xxxxxxxxxxxx xx Xxxx Xxxxxxx xx xxx xxxxx xx , IndiaXxxxx.
2. (the “Successful Bidder”) has promoted and incorporated a Special Purpose Vehicle in the form of a limited liability company the “Concessionaire”) having its registered office in the State of to enter into a Concession Agreement for undertaking, inter alia, the Project and to perform and discharge all its obligations thereunder.
3. In order to perform and discharge all its obligations concerning the “Project”, the Concessionaire is required to give Food Corporation of India (the “Authority”) a guarantee by a recognized bank based in India in the sum of Rs. on (Indian Rupees as security for compliance by the Concessionaire with its obligations under the Concession Agreement during the construction period.
4. At the request of the Successful Bidder and / or the Concessionaire, the Guarantor has agreed to give Authority the said guarantee on the terms set out therein. We, (Name of Bank] (The” Guarantor”) with its registered office at (Address of Head Office), unconditionally guarantee to pay Authority upon first written demand and without any deduction any sum claimed by the Authority upto a maximum of Rupees (Indian rupees only) (the “Guaranteed Sum”) Subject to the conditions set out below. The Guarantor unconditionally and irrevocably promises to pay on demand the Guaranteed Sum, without protest or demur whatsoever upon the receipt of a written demand from Authority, which shall be final and conclusive as against the Guarantor requiring the Guarantor to make the payment to the Authority. The Guarantor waives any requirement that Authority demand any debt or payment from the Concessionaire before presenting it with a demand under this Guarantee. Authority shall notify the Guarantor of its demand for payment of the Guaranteed Sum without any deduction of whatsoever nature and without reference to any claim or counter claim or set off, in accordance with the Concession Agreement. Such notification by the Authority, shall be conclusive and binding on the Guarantor. No underlying dispute as between Authority and the Concessionaire nor any pending application for interim relief or arbitration proceedings or other legal proceedings shall constitute any ground for prevention, delay or obstruction for making payment to the Authority by the Guarantor and the existence of any disputes or difference or claims in arbitration or otherwise shall not constitute any ground for non-payment on this Guarantee. This guarantee is valid and effective its date. This guarantee and the Guarantor‟s obligations under it will terminate on the Commercial Operations Date of the Project as advised to the Guarantor in writing by the Authority. The Guarantor agrees that its obligation to pay any demand made by the Authority before the termination of this Guarantee will continue until the amount demanded has been paid in full. This Guarantee shall be valid and effective upto 18(Date of validity of the Bank Guarantee for Performance Security) for enabling 18 Period of not less than 36 months for bank guarantee during Construction Period and not less than 24 months during Operation Period Authority to lodge a claim for payment under the Guarantee till the date of expiry of the term of the Guarantee. The Guarantor shall be obligated to make payment upon the Guarantee forthwith on demand, if the claim is lodged within the claim validity period and the obligation to pay is subject to normal limitation for payment of claims upon a guarantee. Time is of essence for payment and in the event of failure to make payment, Guarantor shall be obliged to pay compound interest at 2% above the prime lending rate of the Guarantor institution, compounding quarterly in the event of the Guarantor‟s failure to make payment upon the Guarantee for any reason whatsoever. Payment of interest as provided is no excuse for delayed payment or non- payment of the Guaranteed Sum. No change in the constitution of the Concessionaire or of the Guarantor shall be a ground for release of the Guarantee and no variation in the concession agreement made post selection of the bidder, or post making of the bid, shall constitute a variation, which would, subject to the terms and conditions of this agreement, discharge the Guarantor. The Guarantor shall notwithstanding such change, be found to make payment upon the Guarantee on demand. The Guarantor agrees that no change, addition to or other modifications to the terms of the Concession Agreement or to any documents which have or may be made between Authority and the Concessionaire will in any way release it from any liability under this Guarantee and that it waives any requirement for notice of any such change, addition or modification. The Guarantor agrees that it will not assign its obligations under this Guarantee without the prior written consent of Authority. Authority will not unreasonably withhold its consent if the proposed assignee is of at least equal financial standing to the Guarantor and the assignee assumes in writing the obligations of the Guarantor under this Guarantee at the same time or before the assignment. The Guarantee binds the Guarantor, its successors and permitted assigns. SEAL OF [THE BANK] NAME OF [THE BANK] SIGNATURE NAME TITLE DATE Schedule L : Selection and Terms of Reference for Independent Engineer & Auditor Selection of Independent Engineer & Auditor (IE&A) The provisions of Part II of the Standard Bidding Documents for Consultancy Assignments : Time Base (Volume V) issued by Ministry of Finance, GOI in July, 1997 or any substitute thereof shall apply, mutates mutandis, for invitation of bids and evaluation thereof save as otherwise provided herein. The Authority shall invite technical and financial offers from consulting firms or bodies corporate, as single entities or consortia, with expertise in engineering and post-harvest agriculture science to undertake and perform the duties and functions set forth in Part III of this Schedule. All technical bids so received shall be opened and pursuant to the evaluation thereof, the Authority shall open the financial bids of the qualified firms. The Independent Engineer & Auditor shall be selected on the basis of the lowest price bid from among the qualified bidders. Fees and expenses of Independent Engineer & Auditor (IE&A) The Authority shall ensure that that the payments to the IE&A on account of fees and expenses does not exceed 0.5 % per annum of the Total Project Cost during the Construction Period and 0.25% per annum, adjusted for All India Consumer Price Index (CPI), of the Total Project Cost during Operation Period. The payments made to the IE&A shall be borne equally by the Authority and the Concessionaire in accordance with this Agreement. Appointment of government entity as Independent Engineer & Auditor (IE&A) Notwithstanding anything to the contrary contained in this Schedule, the Authority may in its discretion appoint a government-owned entity as the Independent Engineer and Auditor; provided that such entity shall be involved in consulting, advisory and supervisory work for work similar to the Project envisaged in this Agreement; provided further that a government-owned entity which is owned or controlled by the Authority and/or the direct administrative ministry of the Authority shall not be eligible for appointment as Independent Engineer & Auditor (IE&A).
Appears in 1 contract
Samples: Concession Agreement
