Modèles d'accords portuaires

PORT AGREEMENT TEMPLATES April 2018 This document was produced for review by the United States Agency for International Development. It was prepared by Nathan Associates for the Cap Haitian Port (CHP) Regulatory Strengthening Project, contract number AID-521-C-16-00003. PORT AGREEMENT TEMPLATES Activity Title: Cap-Haitian Port Regulatory Strengthening Project Sponsoring USAID Office: Economic Growth Office Contract Number: AID-521-C-16-00003 Contractor: Nathan Associates Inc. This document was produced for review by the United States Agency for International Development. It was prepared by Nathan Associates for the Cap Haitian Port (CHP) Regulatory Strengthening Project, contract number AID-521-C-16-00003. TABLE OF CONTENTS Contents INTRODUCTION 5 1. AGREEMENT FOR TERMINAL DEVELOPMENT AND OPERATION 6 Article 1 – Definitions 7 Article 2 – Purpose of the Agreement 8 Article 3 – Performance Objectives 9 Article 4 – Duration 9 Article 5 – Conditions precedent to coming into force 9 Article 6 – Lease Agreement of the Concession Perimeter 10 Article 7 – Terminal Construction 10 Article 8 – Application of norms - standards and regulations 11 Article 9 – Procedure/Mechanism of Quality Management 12 Article 10 – Supervision of construction work 12 Article 11 – Equipment and manufacturing 12 Article 12 – Testing and commissioning 13 Article 13 – Terminal Operation and maintenance 13 Article 14 – Perception of handling and use rights 14 Article 15 – Provision of port services 15 Article 16 – Employees – Terminal Staff 15 Article 17 – Concession Fee 15 Article 18 – Delay in Payment 16 Article 19 – Service Fee 16 Article 20 – Concessionaire Liability and Penalties 16 Article 21 – Construction guarantee 18 Article 22 – Performance Guarantee 18 Article 23 – Insurance 19 Article 24 – Ownership of property 19 9 Article 25 – Force majeure Event 20 Article 26 – Termination of the Concession Agreement 21 Article 27 – Terminal goods/works at the expiry of the Agreement 22 Article 28 – Intellectual property rights 23 Article 29 – Taxes. 24 Article 30 – Applicable law 24 Article 31 – Settlement of disputes 24 Supervision and Audit of the Contract 25 2. LEASE AGREEMENT – TERMINAL OPERATION AND MANAGEMENT AGREEMENT 26 Article 1 – Definitions 27 Article 2 – Purpose of the Agreement 27 Article 3 – Conditions of entry into force 28 Article 4 – Terminal traffic objectives 29 Article 5 – Terminal operation by the Concessionaire/Operator 29 Article 6 - Resources and capacity to be pu in place by the operator 30 Article 7 – Resources made available by the Contracting Authority 30 Article 8 – Creation of rights in rem in favor of the Operator 31 Article 9 – Work Costs 31 Article 10 – Maintenance 31 Article 11 – Regulatory compliance 32 Article 12 – Responsibility Insurance 32 Article 13 – Fees and other remuneration 33 Article 14 – Taxes 33 Article 15 – Duration 33 3 Article 16 – Financial penalties 33 Article 17 – Termination of the Agreement 34 Article 18 – Partial removal of yards, installations and tools made available and priority of dock use 35 Article 19 – Treatment of assets upon Agreement term expiration 35 Article 20 – Land registration 36 Article 21 – Disputes 37 3. TEMPORARY OCCUPATION AUTHORIZATION CONTRACT OF THE PORT DOMAINE 38 Title I – PARTICULAR CONDITIONS 38 Part I.1 - Nature de occupation 38 Article I.1.1 Purpose of the Agreement 38 Article I.1.2 Definition of the Purpose of the Agreement 38 Article I.1.3 Public Domain 38 Article I.1.4 Designation of occupant activity 39 Article I.1.5 Description of the goods made available to the occupant 39 Article I.1.6 Description of the equipment provided to the Occupant 39 Article I.1.7 Duration and entry into force of the Agreement 39 Part I.2 - Exploitation of the site purpose of the Agreement 40 Article I.2.1 Boundary and fence 40 Article I.2.2 Ground preparation 40 Article I.2.3 Maintenance and repairs 40 Article I.2.4 Specific conditions for carrying out work 41 Article I.2.5 Easements 41 Article I.2.6 Environmental legislation 41 Part I.3 - Financial and accounting provisions 41 Article I.3.1 Amount to be charged 41 Part I.4 - Administrative provisions 42 Article I.4.1 List of documents to be sent to APN 42 Article I.4.2 Procedures for submission of documents and documents to be provided under Article I.4.1 - List of documents to be transmitted to APN 43 Titre II – TERMS AND CONDITIONS 43 Part II.1 - Destination of occupation 43 Article II.1.1 Occupant Activity 43 Article II.1.2 Modification of the nature of occupation by APN 44 Article II.1.3 Change of status of the Occupant 44 Part II.2 - Validity of the contract 44 Article II.2.1 Election of domicile 44 Article II.2.2 Occupation 44 Article II.2.3 Personal character of the Agreement. This Agreement is granted for the exclusive use of the occupant. 44 Article II.2.4 Transfer to a third party In accordance with Article II.2.3 - Personal character of this Agreement 45 Article II.2.5 Under -occupation 45 Article II.2.6 Termination of authorization before expiry of the normal period of validity 45 Article II.2.7 End of occupation 46 Part II.3 - Administrative, legislative and regulatory obligations 47 Article II.3.1 Obligations of the Occupant 47 Article II.3.2 APN Statements 48 Article II.3.3 Insurance – Liability 48 Article II.3.4 Taxation 49 Article II.3.5 Litigations– Disputes 49 Partie II.4 – Site Condition 49 Article II.4.1 Access rights of the APN 49 Article II.4.2 Premises entrance 49 Article II.4.3 Site Exits 49 Article II.4.4 Condition of soils and basements 50 Part II.5 - Projects and works 50 Article II.5.1 Prior approval of projects 50 Article II.5.2 Calendar of Execution 50 Article II.5.3 Violation 51 Article II.5.4 Storage of materials and equipment needed for construction sites 51 Article II.5.5 Documents required in the official acceptance of work 51 INTRODUCTION This document describes the main contracts that may be concluded by the port authority with private operators for the development and/or operation of port infrastructures and the provision of port services. It contains the main clauses to be included in the agreement, which precise terms and conditions shall be negotiated on a case-by-case basis taking into account the context in which these contracts are concluded. The contract templates described in this document that can be used by APN will need to be adapted and adjusted, as appropriate. Thus, the following elements shall be taken into account: - the nature of the activity to be carried out; - the object of the contract; - the status of the operator (legal private entity, group of companies, etc.); - the allocation of risks between the parties to the contract; - the extent of the obligations and responsibilities to be borne by the private operator; - payment mechanisms It is important to emphasize that these contracts shall in any case be subject to a competitive bidding process in accordance with the provisions of the Public Procurement Code and any other laws and regulations applicable to the management and operation of the Port domain in Haiti. The port Agreement models described below are: 1) The concession contract for the financing, construction and operation of a terminal 2) The contract for the management and operation of a terminal or public tools 3) The authorization of the port domain temporary occupation P O R T A G R E E M E N T T E M P L A T E S | 6 6 1. AGREEMENT FOR TERMINAL DEVELOPMENT AND OPERATION Under a concession for the operation of a terminal, the port authority enters into an agreement with a private operator for the construction of a terminal specific to certain types of activities including the yards, the tools, and necessary installations for unloading, loading, handling, and storage operations related to the ships. Listing of the different parts of the contract This Agreement is made between: APN/SONAGEP ...................., represented by its Director General, hereinafter referred to as the “ Contracting authority ”; on one hand and ...................., a company governed by law …………. having its registered office at ………….. duly represented by ...................., hereinafter referred to as the “Concessionaire” , on the other hand The Contracting Authority and the Concessionaire are hereinafter individually referred to as “Party” and collectively referred to as “Parties” Preamble It has been previously described as follows: WHEREAS, the Contracting authority launched an international competitive bidding process and solicited proposals from reputable and experienced contractors and port operators to design, supply, construct, finance, manage and operate ( Insert here the nature of the infrastructures concerned ) (hereinafter referred to as the " Project ") in the ( insert here the location in the port ) in accordance with the provisions of the Public Procurement Code c t and the laws in force in Haiti ( insert here all applicable laws and regulations ) WHEREAS, after evaluation of the proposals submitted, the Contracting Authority has selected the ( name of the Concessionaire ) as the preferred bidder to whom the Project was awarded. WHEREAS, the Contracting authority hereby wishes to enter into this Agreement with the Concessionaire for the purpose of executing the Project in accordance with the terms and conditions set forth in this Agreement. P O R T A G R E E M E N T T E M P L A T E S | 7 7 Now therefore it is hereby EXPRESSLY AGREED AS FOLLOWS : Article 1 – Definitions For the purposes of this Agreement, the following terms and expressions, as used in the singular or plural, shall have the meanings defined in the Preamble and in this Article 1, unless the context clearly requires a different construction : “Contracting Authority” means the SONAGEP/APN; “Agreement” means this Convention for the construction, financing, management and operation of the terminal and the provision of the services relating thereto, as modified or renewed from time to time by mutual agreement of the Parties; “Leasing Agreement of Concession Perimeter ” means [ ] “Construction Guarantee ” means “ Performance Guarantee ” means “Service fee ” means [ ] “Existing infrastructures ” means [ ] “ Common area ” refers to those area that are administered and controlled by the Contracting authority and that are not subject to a lease, a concession or a temporary occupation authorization; “Perimeter of the concession ” means: [ insert the description of the Perimeter to which the concession applies] “Work Plan ” means [ ] “Construction Program ” means [ ] “Project ” means [ ] “Port” means the port of ____________ in which the Contracting Authority has a rental interest; “Technical Specifications/ Terms of Reference ”: means [ ] “ Terminal ” means the zone ............ defined in the land registry plan delimiting the perimeter of the terminal and its location within the Port area as attached in Appendix (…..) to this Agreement. P O R T A G R E E M E N T T E M P L A T E S | 8 8 Article 2 – Purpose of the Agreement Concession of exploitation of an area of the public domain, including the management and investments in new infrastructures The purpose of this Agreement is to define the conditions of: - financing; - building; - operation; and - maintenance of the Terminal by the Concessionaire in accordance with the Technical Specifications, the applicable law and regulations as well as with the norms and standards applicable to the performance of the Project and the good industry practices as described in this Agreement. Concession of exploitation of a public domain space including the management of existing infrastructure and/ or investments The purpose of this Agreement is to define the conditions of: - Operation; - Maintenance of the Terminal; and - Financing the Terminal's modernization/rehabilitation works by the Concessionaire in accordance with the Technical Specifications, the applicable laws and regulations, as well as with all norms and standards applicable to the performance of the Project and good industry practices as described in this Agreement. Granting or not an exclusive operation right No exclusivity : This Agreement shall not prevent the Contracting authority from authorizing, by any unilateral decision or by means of an agreement with other companies, the same activities or traffic in other parts of the port/Port area. Exclusivity clause : Subject to the provision of this Agreement, the Contracting authority grants to the Concessionaire the exclusive right to undertake the Project as described in this Agreement and to enter, occupy, possess, enjoy the advantages and use of the terminal, existing infrastructure (if applicable) and real properties for the duration of this Agreement or for a period not exceeding [ X ] years. P O R T A G R E E M E N T T E M P L A T E S | 9 9 Article 3 – Performance Objectives The Terminal's traffic objectives and the service quality objectives, as well as their respective time frame to meet them, are defined in Appendix (...) herein. The Concessionaire shall ensure that the new port facilities/Terminal meet the applicable performance indicators and the required capacity described in the Technical Specifications. The Parties shall, at least every (...) Years, review jointly the conditions for achieving these objectives. Upon the competent authorities’ approval, the objectives and their deadlines may be revised without affecting the general economic balance of this Agreement to take into account, in particular, the evolution of Terminal traffic and new port service demands. Article 4 – Duration This Agreement is concluded for a period of [..................] ( Maximum 30 years as defined in the pending port reform and is determined by taking into account the nature, amount and normal depreciation period of the investments made in the facilities implemented by the Concessionaire pursuant to the present terms and conditions of this Agreement), this period running from the date of approval of the said Agreement by the authorities concerned under Haitian law ). Article 5 – Conditions precedent to coming into force ( These provisions are not exhaustive and shall be adjusted according to the specificities of the Project ) 5.1. Precedent conditions - This Agreement shall come into force and the contractual time for completion shall be calculated as of the date when all of the following conditions have been fulfilled: Signature of this Agreement by the Parties, - Obtaining of all authorizations, permits and licenses issued by the competent authorities for the implementation of the Project as required by Haitian law and, in particular, the approval of this Agreement by ANAREP/APN; - Undertaking of an environmental and social impact study and of a protection of the environment and the Haitian cultural heritage survey in accordance with the laws and regulations in force in Haiti ; - Submission of certificates and/or resolutions adopted by the shareholders of the Concessionaire authorizing the signature by the Concessionaire of this Agreement and financial agreements for the performance of the Project. - Notification of the signing of the financial Agreements (bank loans, equity and quasi- equity contributions) and the fulfillment of the conditions precedent for the financing of the Project ( In case of financing/investments made by the Concessionaire ) ; - Access to the Concession perimeter for the commencement of the execution of the Terminal construction works and signature of the lease Agreement for the Concession Perimeter as defined in this Agreement; - Submission by the Concessionaire of a performance bond issued by a senior international bank as approved by the Contracting Authority in the form and amounts specified in the Annex to this Agreement; Commented [M1]: These performance objectives shall be determined and reviewed according to a procedure defined in the contract. Failure to meet these objectives by the Concessionaire shall result in the application of performance penalties Commented [M2]:  Conditions precedent to entry into force : the conditions to be fulfilled for the performance of the contractual obligations of the Parties and the beginning of the contractual periods shall be specified. They must include the approval of the competent authorities, the obtaining of the various permits, licenses and authorizations, the setting up of the guarantees and the financings as well as all the elements necessary for the commencement of the contract. The conditions under which the execution of the contract may begin before the financing agreements are finalized or where the conditions for entry into force are not met should also be specified. P O R T A G R E E M E N T T E M P L A T E S | 10 10 - Provision of insurance policies by the Concessionaire in accordance with the provisions of this Agreement. 5.2. Obligations of the Parties and coming into force Each Party expressly commits, at its own cost and expense, to proceed diligently and expeditiously with all necessary steps to satisfy and fulfill all the precedent conditions for the entry into force of this Agreement. In the event that the coming into force of this Agreement does not occur within a period of ....... month from the date of the Project award to the Concessionaire (or) the signature of this Agreement by the Parties, the Parties shall mutually agree upon the conditions necessary to maintain the validity of this Agreement. Failing to reach such Agreement within a period of (X) months from the date of the award of this Agreement, the Contracting Authority shall be entitled to terminate this Agreement. Article 6 – Lease Agreement of the Concession Perimeter The Contracting Authority shall grant free access and peaceful use, occupation of the Concession area to the Concessionaire for the Project implementation during the term of this Agreement in accordance with the terms and conditions of the Concession Perimeter Lease Agreement entered into between the Parties as annexed (...) to this Agreement. If this Agreement is terminated or extended in accordance with the provisions of Article [4 - Duration] above, the duration of the Lease Agreement/Temporary Occupation Agreement for the Port Area shall automatically be terminated or extended or, where appropriate, renewed mutatis mutandis for that period. Article 7 – Terminal Construction 7.1. Obligations of the Concessionaire 7.1.1. Nature of construction works/Terminal works The Concessionaire undertakes to carry out the design, financing, construction/ improvement/renewal/or rebuilding, supply, testing and commissioning of the Terminal and all equipment and materials necessary for the safe, reliable and efficient operation of the Terminal in accordance with the Technical Specifications and Good Industry Practices as defined herein. 7.1.2. Construction Completion Schedule/Terminal Works The Concessionaire shall undertake all activities necessary to enable the construction and commissioning of the Terminal in accordance with the Construction Program set out in Schedule [ ], which sets out the milestones dates for the main phases of the Terminal construction work completion. Commented [M3]: In addition to this terminal agreement, the terms and conditions of use of the land / space within which the terminal and related infrastructure are installed shall be the subject of a lease agreement between the port authority and the concessionaire. P O R T A G R E E M E N T T E M P L A T E S | 11 11 The Concessionaire shall: - prepare and maintain a complete report describing the execution of construction work during the construction period; - promptly inform the Contracting Authority or the Contracting Authority's technical representative of any significant deviation from the milestones dates stipulated in the construction implementation schedule; and - provide the Contracting Authority or the Contracting Authority's technical representative with monthly written reports on the progress of the work based on the milestones dates and tasks specified in the Construction Program. 7.1.3. Extension of construction deadlines The Concessionaire shall be entitled to request an extension of the date of completion of the construction works or a key milestone date of completion thereof if such work has been delayed or the Concessionaire considers that this work will be delayed and demonstrates to the Contracting Authority’s technical representative of that the completion date of the proposed construction work has been or will be delayed due to: - a breach by the Contracting Authority of its obligations under this Agreement; - an event of force majeure as defined herein; - a significant delay in obtaining or renewing any permit required for carrying out the construction work as described in Article [ ] of this Agreement, provided that such delay does not result from the incapacity or failure of the Concessionaire to comply with the conditions for obtaining or renewing the permits and authorizations required under the law in force as described herein ; - any other fact or event expressly stipulated in this Agreement giving the Concessionaire an extension of time. Article 8 – Application of norms, standards, and regulations 8.1. The Concessionaire shall comply with all applicable norms and standards for the performance of the Project, the operation and maintenance services and all related activities and to ensure that all equipment and operation and maintenance services provided during the execution of the Project comply with these norms and standards and all applicable laws that relate to all or part of the Project and related activities. 8.2. The regulations in force at the Port are applicable within the limits of the Concession Perimeter. The Concessionaire shall comply in particular with the decisions that the Port and the competent authorities take for the purpose of preserving port public security and port operation safety. P O R T A G R E E M E N T T E M P L A T E S | 12 12 Article 9 – Procedure/Mechanism of Quality Management 9.1. The Concessionaire shall establish a quality management procedure for the works and the provision of terminal operation and maintenance services to demonstrate compliance with the requirements of this Agreement. This procedure must conform to the specifications described herein. 9.2. The Contracting authority shall have the right to check any aspect of the quality management procedure. 9.3. The terms and conditions of all compliance procedures and documents shall be submitted to the Contracting Authority for information before each phase of execution of the tasks to be carried out by the Concessionaire under the present Agreement. 9.4. Compliance with the quality assurance system shall not relieve the Concessionaire of its obligations and responsibilities under this Agreement. Article 10 – Supervision of construction work The Contracting Authority's technical representative or one of his duly authorized agents may, during the execution of the construction of the Terminal, monitor the progress of the construction works and the erection of the Terminal facilities, provided that the Concessionaire will be notified in writing by the Contracting Authority's technical representative or one of its agents shall notify in writing to the Concessionaire before any inspection. The Concessionaire shall ensure that the Contracting Authority's technical representative or one of its agents has access to the Concession Perimeter or the factory where the materials are supplied, manufactured, stored and/or assembled for the purpose of performing the construction works as well as all plans, designs, data, annexes, manuals related to the construction of the Terminal. Article 11 – Equipment and manufacturing The Concessionaire warrants that the construction works of the Terminal and each of their components: - are designed, manufactured and constructed by professional contractors who are qualified and experienced in carrying out work of a similar nature as construction works carried out under this Agreement; - include only equipment, materials and new equipment and materials, of quality in accordance with the Technical Specifications and adapted to the operation of the Terminal and services to be provided by the Concessionaire as defined in this Agreement; - are appropriate to meet the performance objectives set out herein and, in particular, during the period specified in this Agreement and have a level of deterioration in accordance with industry norms and standards and Technical Specifications ; - shall be designed, manufactured and constructed in such a way that the construction works: (i) meet the performance criteria set out in this Agreement; P O R T A G R E E M E N T T E M P L A T E S | 13 13 (ii) are reliably, economically and efficiently operated and maintained in accordance with the requirements of this Agreement without any risk to the health and well-being of the persons who use or participate in the construction, operation, maintenance or management thereof; and (iii) do not cause any danger to the environment. Article 12 – Testing and commissioning The Concessionaire shall give the Contracting Authority and the Concessionaire Technical Representative at least [ ] days’ prior notice of the date and time at which the Concessionaire will be ready to perform the tests after completion of the Terminal construction work as described in the Technical Specifications and the Construction Program in Annex [ ]. This notification shall be accompanied by operation and maintenance manuals in sufficient details for the Contracting Authority to operate, maintain, dismantle, reassemble, adjust and repair the Terminal's facilities and by all documentation pertaining to the performance tests required for the commissioning and commercial operation of the Terminal. Article 13 – Terminal Operation and maintenance 13.1. Terminal Operation The Concessionaire shall carry out the technical and commercial operation of the Terminal as well as the maintenance and repair of the Terminal's facilities and the uninterrupted provision of services, with the exception of planned and scheduled interruptions for the maintenance of the Terminal's facilities. Accordingly, the Concessionaire: - shall be responsible for all unloading, loading, handling and storage operations related to the vessel and the cargo; - shall recruit the necessary personnel as well use the appropriate technical means and shall be in charge of the coordination thereof with its own clients; - shall build the facilities, tools and, where appropriate, the yards required for the maintenance and development of the activity under the conditions set out in Article [ ]; - maintains the yards, facilities and tools in accordance with the provisions of article [ ]; - assures the operator's liability with regard to all the laws and regulations in force, in particular those relating to classified installations, water management and the protection of the environment as described in Article (....) of the Agreement. P O R T A G R E E M E N T T E M P L A T E S | 14 14 13.2. Terminal Maintenance The Concessionaire shall, at its own expenses, be responsible for all activities related to: - Life cycle maintenance; (To be reviewed by the technical expert) - Routine/preventive maintenance; and - Responsive maintenance, (To be reviewed by the technical expert) that are required to maintain and repair terminal facilities. 13.3. Subcontracting The Concessionaire shall operate directly on its behalf the Terminal object of the present Agreement. The Concessionaire is required to occupy without discontinuity any real estate located within the Perimeter of the Concession. However, the Concessionaire may, upon the Contracting Authority’s approval, entrust to a third party the execution of part of the activities related to the operation of the Terminal. In this case, the Concessionaire shall remain liable to the Contracting Authority and to third parties for the proper performance of all its obligations as set out in this Agreement. Any total or partial transfer of the activity carried out by the Concessionaire on the Terminal without the Contracting Authority’s consent, will result in the termination of this Agreement. The Concessionaire shall notify the Contracting Authority of any change in the participation of the partners, the composition of its capital. or the distribution of the voting rights that could lead to the change of the control of the Concessionaire. 13.4. Environmental norms and standards 13.4.1. The Concessionaire is required to design, build, operate and maintain the Terminal in accordance with applicable norms and standards and applicable environmental, health and safety laws, regulations and standards in Haiti as well as international norms and standards as defined in this Agreement. 13.4.2. The Concessionaire shall also: - oversee all aspects of its environmental compliance and performance in the fulfilling its obligations under the Agreement; and - comply with all the requirements of the environmental and health authorities concerned. Article 14 - Perception of handling and use rights 14.1. During the Operational Period, subject to the provisions of this Operating and Maintenance Agreement, the Concessionaire shall have the right to collect from the users the rates and charges listed in Appendix ( ) to this Agreement payable by the users of the Terminal. The Concessionaire shall be entitled to collect said tariffs and fees in (insert currency). The applicable rates and fees will be published by the Concessionaire in a format accessible to users and the public at all times. Commented [M4]: The conditions of repair and maintenance of the Terminal must be defined expressly in the contract. Commented [M5]: APN shall set fees for port services to be published in a format accessible to users and the public at all times P O R T A G R E E M E N T T E M P L A T E S | 15 15 14.2. The Concessionaire may collect from users only the amount of the tariffs and fees calculated in accordance with the terms and conditions set out in Appendix ( ) to this Agreement that defines the rights, tariffs and charges payable by the users of the Terminal. The Concessionaire may grant discounts to users as long as they are granted for commercial reasons and in accordance with industry best practices. The Concessionaire may not grant such reductions to a user who is affiliated with its own corporate group or who holds interests in the said group, unless the reduction is granted in a non-discriminatory manner. 14.3. Fees and charges collected by the Concessionaire during each accounting period will be paid into one or more bank account(s) opened in the name of the Concessionaire with a Haitian bank and a branch located in Haiti and shall remain until such time as the amounts payable by the Concessionaire to the APN for such Accounting Period have been determined by the Parties in accordance with the terms and conditions set out herein or have been established under the dispute resolution process, and shall have been paid in full to the APN. Article 15 – Provision of port services See clause on the rates charged by the concessionaire 15.1. The Concessionaire shall provide operation and maintenance services to any person and to all shipping companies, shippers, receivers and shippers in accordance with the terms of this Agreement without interference or interruption by the Contracting authority, except as provided in Articles ( ) throughout the life of this Agreement. 15.2. The Concessionaire shall provide operation and maintenance services to any user and abstain from any unfair or discriminatory practices against a given user. Article 16 – Employees – Terminal Staff 16.1. The Concessionaire shall comply with the terms and conditions of the Work Plan as approved by the Contracting Authority described in Annex [ ] herein and in accordance with Haitian law in force. 16.2. The Concessionaire shall, from the effective date of operation of the Terminal as set out in Annex [ ] of this Agreement, take into consideration the list of employees set out in the Work Plan who participated in the provision of the operation services and maintenance of the Port's old infrastructure in accordance with the financial conditions that comply with the provisions of the Labor Plan. Article 17 – Concession Fee 17.1. As part of the granting of the rights of use and exploitation of the Terminal referred to in Article 2 above and in accordance with the provisions of Haitian law and regulations governing the amount and terms of payment of the Concession fee in relation to the Terminal's operating activities and the provision of related port services, the Concessionaire shall pay the Contracting Authority an annual fee in USD equal to [X ... ..] per cent of the gross revenue as defined herein, for the duration of this Agreement. Commented [M6]: 1. Pricing and pricing structure depending on the type of partnership envisaged (see: PPP concept definition above) The principles governing user fees and the user rate calculation elements as well as the methods of review and modification should be clearly defined. These provisions will be applicable in the case where the private operator is responsible for the management and / or operation of the structure and is remunerated according to operating revenue. Commented [M7]:  Terms of remuneration of the private operator: These should specify the conditions under which the private partner is paid, the elements to be taken into account in the calculation of his remuneration (investment costs (CAPEX), operating costs (OPEX), financing), and the terms of payment (due date, default interest).  The conditions for reviewing and adjusting the private co- trader's remuneration (periodicity, calculation elements and indexing method,  The conditions for granting an adjustment in the event of economic conditions jeopardizing the economic and financial equilibrium of the contract Financial conditions (tariffs, indexing formula, deadlines for the payment of receipts by the delegate to the delegator, deadlines for payments from the delegate to the delegatee, tax clauses) P O R T A G R E E M E N T T E M P L A T E S | 16 16 17.2. The fee shall be paid [ insert: payment schedule ] for any year during the term of this Agreement based on the Concessionaire's quarterly management accounts starting the first full quarter following the date of operation of Terminal facilities described in Article [ ]. 17.3. Throughout the term of this Agreement and not later than [ ] of each calendar year, the Concessionaire shall provide the Contracting Authority with an independent audit report on its activities, assets, liabilities and financial position during the last fiscal year. The report must include all information necessary to evaluate the Concessionaire's activities and verify the payments made or due to the Contracting Authority. 17.4. The conditions for determining, setting out the level of the fee and its payment terms may be modified from time to time by ANAREP/APN in accordance with the laws in force. Article 18 – Delay in Payment In the event that the Concessionaire fails to pay the fee within the time limits set forth herein for any reason other than the Concessionaire's objection to the amount of the fee, the Contracting Authority may claim payment of late payment interest on any amount unpaid at the rate of [ ] per cent above [ ] per year if payment is made within one (1) month from the due date and [ ] per cent above [ ] per year if payment is made within two (2) months of the due date; and [ ] percent above [ ] per year if payment is made after a period of two (2) months from the prorated due date for the period from the due date to the date where the Contracting Authority actually receives the payment of the fee amount due. Article 19 – Service Fee 19.1. The Concessionaire may collect and recover Service Fees or other charges from customers who use the services provided by the Concessionaire during the term of this Agreement, in accordance with Annex (...). 19.2. The Concessionaire is required to directly recover the Service Charge from its customers. 19.3. Subject to the determination of the Service Fees in accordance with this Article 19, the Concessionaire is free to collect all Service Fees from its customers, either itself or through a collection agency recruited by the Concessionaire. Article 20 – Concessionaire Liability and Penalties 20.1. The Concessionaire shall be responsible and liable to repair any damage resulting from the design, construction, operation and maintenance of the Terminal, which it or its subcontractors caused and as a consequence of which the Contracting Authority, a third party or a user have suffered damages as a result of the performance of the activities and obligations incumbent on it under this Agreement. 20.2. The Concessionaire shall repair the damages caused to third parties within the scope of the Concession perimeter and shall indemnify, defend and release the Contracting Authority and any governmental authority against any claim by third parties for the damages suffered by the Contracting Authority or any governmental authority resulting or not from the P O R T A G R E E M E N T T E M P L A T E S | 17 17 default, negligence or omission of the Concessionaire in the performance of its obligations under this Agreement. 20.3. Penalties for delay The Concessionaire expressly agrees that any delay of the Concessionaire, its subcontractors, employees, consultants or agents in carrying out the construction work or in the commercial operation of the Terminal and the port facilities within the time schedule set out in the Work Plan shall cause actual damage to the Contracting Authority. In the event that such delay occurs, the Concessionaire shall be required to pay delay penalties to the Contracting Authority as set out in Annex ( ) for each day of delay until the date of actual completion of the construction works. In the event that the Concessionaire is unable to pay the l delay penalties within the time schedule as described above, the Contracting Authority shall be entitled to collect payment of the amount(s) of the penalties owed by the Concessionaire by means of calling upon the Construction Guarantee. In the event that the amount of the loss caused by the Concessionaire exceeds the amount of the Construction Warranty, the Concessionaire shall be required to pay the remainder of the penalty amount due directly to the Contracting Authority. 20.4. Any payment of damages shall be made by the Concessionaire to the Contracting Authority within (...) days of the Concessionaire's receipt of the Contracting Authority's written notification mentioning the amount of the delay penalties. 20.5. Default in the operation of the Terminal In the event that the Concessionaire doesn’t fulfill its obligations under this Agreement or, it is unable to operate and maintain the Terminal and the port facilities in accordance with the operating standards described in the attached Technical Specifications, as modified or adjusted as the case may be by the Parties, the Concessionaire shall pay the technical penalties calculated in accordance with the terms and conditions set out in Annex (…..). 20.6. Civil liability The Concessionaire shall be liable and shall indemnify the Contracting Authority and/or governmental authorities against any claims by third parties the Contracting Authority or any other governmental authority, including the Contracting Authority's employees, agents and subcontractors for any bodily or material injury including real property and assets of the Contracting Authority made available to the Concessionaire and against any action, claim, cost, fee and expense resulting directly or indirectly from the design, construction, operation or maintenance and transfer of the Terminal during the term of this Agreement or resulting from any action or omission or breach of the Concessionaires’ obligations, its employees, agents or subcontractors and their respective employees under this Agreement. P O R T A G R E E M E N T T E M P L A T E S | 18 18 20.7. Exclusion of liability The Concessionaire shall not be liable for any bodily injury or property damage, loss, cost and expense caused by the negligence or willful misconduct of the Contracting Authority or Government Authorities, their employees, agents and representatives. Article 21 – Construction guarantee 21.1. The Concessionaire shall provide the Contracting Authority a Construction Guarantee as defined under this Agreement to ensure the fulfillment of its obligations to carry out the construction of the Terminal and the port facilities in accordance with the time schedule set forth herein and the Technical Specifications. The Construction Guarantee shall be issued by a financial institution acceptable to the Contracting Authority. 21.2. The Concessionaire may call the Construction Warranty to the extent that: - the Concessionaire or the company in charge of the construction of the Terminal fails to build the port facilities and/or to start the operation of the Terminal within the time period set out herein that cause damage to the Contracting Authority; or - it becomes obvious that the design of the port facilities and the Terminal do not comply with the Technical Specifications and that the design defect is not corrected by the Concessionaire and/or the company in charge of the construction of the Terminal in a timely manner and in accordance the Contracting authority or his technical representative instructions . 21.3. Any delay or significant design defect shall be assessed by the Contracting Authority's technical representative. 21.4. The Concessionaire shall return the Construction Guarantee, to the extent that it has not been used for the purpose of providing the performance guarantee, to the Concessionaire no later than ( ) days after the commercial commissioning of the Terminal and the port facilities and the issuance of the Performance Guarantee in accordance with the terms and conditions of this Agreement. Article 22 – Performance Guarantee 22.1. The Concessionaire shall provide the Concessionaire with a Performance Guarantee for the proper performance of the operation of the facilities in accordance with applicable norms and standards and the technical specifications set forth herein upon the commercial operation of the Terminal and the port facilities. 22.2. The Contracting Authority may call the Performance Guarantee if the Concessionaire or the company in charge of the operation and maintenance of the Terminal fails to provides its services in accordance with the time schedule set forth herein and/or does not meet the norms and applicable standards and the technical specifications described herein that are causing damages to the Contracting Authority. P O R T A G R E E M E N T T E M P L A T E S | 19 19 22.3. The Performance Guarantee will be reduced by ... (...%) percent of its total value upon the fifth anniversary of the date of the Terminal commercial operation and will be reduced by ... (....%) from its initial total value upon the tenth Anniversary of the date the Terminal commercial operation, provided however, that the operation of the Terminal meets the performance objectives to the satisfaction of the Contracting Authority. 22.4. The Concessionaire shall return the Performance Guarantee no later than (...) days according to the following conditions: - the expiry of the term of this Agreement and the approval by the technical and financial representatives of the Contracting Authority; - the end of the provision of port services by the Concessionaire, other than that caused by a failure of the latter; or - the termination of this Agreement resulting from the default of the Contracting Authority in fulfilling its obligations hereunder. Article 23 – Insurance 23.1. The Concessionaire shall subscribe all insurance policies relating to the fulfillment of its obligations under this Agreement as defined in the Annex ( ). It shall provide the Contracting Authority with a copy of the insurance contracts and any supporting documents. 23.2. The Concessionaire shall not be entitled to cancel or substantially amend the insurance policies as defined in the Annex ( ) and shall subscribe said policies in due time. 23.3. If the Concessionaire fails to subscribe or maintain an insurance policy required under this Article 23 and in accordance with the Annex (...), the Contracting Authority shall be entitled to subscribe the required insurance policy at the Concessionaire’s cost after having first notified the Concessionaire of its intention to exercise this right within (.....) days following said notification. 23.4. In the event that the Concessionaire fails to reimburse the Contracting Authority’s costs it incurred, the Contracting Authority shall be entitled to the payment of its costs by calling the Construction Warranty and/or the Performance Guarantee, as the case may be. 23.5. The Contracting Authority shall be mentioned on the insurance policies as a beneficiary thereof. Article 24 – Ownership of property 24.1. Existing Infrastructures or existing tools (land, buildings, structures, fixed installations), as well as all movable assets financed, acquired, serviced or installed by the Contracting Authority after the date of entry into force of this Agreement shall remain the property of the Contracting Authority for the duration of this Agreement. The Concessionaire shall have exclusive rights and rights of use of Existing Infrastructures and existing tools as made available by the Contracting Authority for the term of this Agreement. P O R T A G R E E M E N T T E M P L A T E S | 20 20 24.2. The rights of ownership, use and exploitation of all movable property, Project assets, brought into or installed in the Concession Perimeter by the Concessionaire for the purpose of performing its obligations under this Agreement shall remain its own property. Article 25 – Force majeure event 25.1. For the purposes of this Agreement, an event of force majeure is any event, circumstance or combination of events or circumstances that is beyond the a Party’s reasonable control and that has a significant impact on the Party's performance of its obligations under the present Agreement and for which the damage caused could not have been prevented, overcome or limited by the affected Party should all reasonable measures to mitigate its impact on the performance of its own obligations be undertaken as soon as possible. 25.2. Events of force majeure include, the following events and circumstances, but only to the extent that each meets the requirements set out in Article 25.1 above: i. any act of war (declared or not), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, insurrection, civil unrest, act of terrorism or sabotage; ii. strikes, slowdowns or working rules that are generalized or national in scope or of a political nature, unless it the Concessionaire or his contractors (or their subcontractors of any level) or their respective employees are only affected or caused by them; iii. important archaeological discoveries within the Perimeter of the Concession; iv. lightning, fire, earthquake, flood, storm, cyclone, typhoon, tornado or other natural calamity; v. explosion or chemical contamination (other than as a result of an act of war) by war ammunition, explosive materials, ionizing radiation or radioactivity contamination, except as may be attributable to the use of ammunition, explosives, radiation or radioactivity; vi. epidemic or plague; or vii. Expropriation, requisition or nationalization, significant restrictions on importation imposed by any authority, under any law. 25.3. Force Majeure does not expressly include the following cases unless they result from a Force Majeure event as listed above: i. the unavailability, late delivery or modification of the cost of equipment, materials, spare parts necessary for the execution of the Project; ii. a delay in the performance of any supplier or subcontractor; or iii. normal wear and tear, random failures or breakdowns of materials and equipment used in the execution of the Project. 25.4. Notification (To be completed) P O R T A G R E E M E N T T E M P L A T E S | 21 21 25.5. Right of the Parties (To be completed) Article 26 – Termination of the Concession Agreement This Agreement may be terminated in one of the following cases: 26.1. Termination due to a force majeure event Either Party may give notice of its intention to terminate this Agreement to the other Party if the implementation of the Project is substantially affected or prevented for a continuous period of [days] by reason of an event of Force Majeure of which notice has been given i