PAGE
CREDENTIAL BIDS
TENDER FOR NAPTHA TERMINALLING / HANDLING FACILITY AT JNPT, MUMBAI OR AT MUNDRA PORT (GUJARAT)
TENDER NO- BPC / I&C / NAPHTHA / 02 / 2010-11
TENDER OPEN ON – 06.01.2011
TENDER CLOSES ON – 21.01.2011
BHARAT PETROLEUM CORPORATION LIMITED
NOTICE INVITING TENDERS
TENDER FOR NAPTHA TERMINALLING / HANDLING FACILITY AT JNPT, MUMBAI OR AT MUNDRA PORT (GUJARAT)
TENDER NO- BPC / I&C / NAPHTHA / 02 / 2010-11
BHARAT PETROLEUM CORPORATION LIMITED (BPCL) a Public Sector Enterprise, invite sealed tenders from eligible parties under 2-bid system for providing terminalling / handling facility at JNPT, MUMBAI OR at MUNDRA PORT (Gujarat) for receiving / storing / loading / dispatching of Naphtha for a period of two (2) year with an option for renewal for further period of one (1) year at the same terms and condition.
Facilities as mentioned in the documents are required with effect from 01st March 2011.
1TENDER DOCUMENTS
The tender documents can be obtained in person by submitting an application to DGM Log. (I&C), Bharat Petroleum Corporation Ltd,, 4 & 6 Currimbhoy Road, Bharat Bhavan, Ballard Estate, Mumbai-400001 along with a Demand Draft (DD) / Pay order of `1000/- (Rupees one thousand only) in favour of “M/s Bharat Petroleum Corporation Ltd” payable at Mumbai.
2SCOPE OF WORK
The scope of work would broadly cover receiving rail input of Naphtha ex Bharat Oman Refineries Ltd. (BORL), Bina (Madhya Pradesh); Storing the Naphtha in dedicated storage tank/s and loading of Naphtha into tankers (ships) arranged by BPCL or its customer for export during the entire period of the contract. The estimated requirement of storage tank capacity is 50,000 KL.
3BIDS QUALIFYING CRITERIA
Tenderers who fulfill the following Qualifying Criteria may submit their bids against this tender:
(i) The tender should possess minimum 3 years experience in handling of Petroleum products. The tenderers should provide certified copy of Work Order / Certificate / Agreement issued by / signed with PSU / Oil Company etc.
(ii) The tenderers should provide dedicated storage tank/s of 50,000 KL capacity for storage of Low Aromatic Naphtha. The storage tanks should be duly approved by the competent Explosive authorities.
(iii) The tenderers should have railway siding with T/W unloading facilities capable of unloading rake within free / allowable time prescribed by the Railways without detention / demurrage AND facilities for Naphtha loading in tankers at the jetty with minimum pumping rate of 1200 KL / hour.
4EARNEST MONEY DEPOSIT (EMD)
The bids should be submitted with an EMD of `1 Lac (Rupees One Lac Only) by crossed DD / Pay Order drawn on any Scheduled Bank in favour of M/s Bharat Petroleum Corporation Ltd, payable at Mumbai.
The tender bids received without EMD shall be summarily rejected. EMD shall be returned without any interest to the tenderers after the tender is finalised and awarded to the successful bidder.
EMD shall be liable to be forfeited, if the tenderer modifies / withdraws the offer during the tender process, does not sign the Contract Agreement, does not submit the required Security Deposit (SD) within 10 days of the issuance of the LOI and refuses to accept the work after award of contract.
5SUBMISSION OF BIDS
I.Tenderers are requested to:
a. Read carefully all the terms and conditions and the draft agreement / contract before submitting their quotations.
b. Bid for both JNPT, Mumbai & Mundra in a single tender document if tenderers wish to offer facilities at both ports.
c. Quote in the schedule of rates in the ‘Price bid’ attached hereto. The rates quoted shall remain valid for 180 days from the due date or extended due date of the tender.
d. Submit tender document filled in all respects strictly as per the terms and conditions and retain the Xerox / Photostat copy of the submitted document with the tenderer for future reference. Any tender not conforming to the terms and conditions prescribed in the tender document shall be rejected.
e. Sign with seal all the pages of the tender document, including draft contract / agreement, as a token of acceptance and submit one complete set. The other set should be retained by the tenderers.
f. Avoid over-writing. Correction, if any, must be counter signed / initialed by the tender.
g. Submit the quotation on time so as to reach before the due date and time. Tender bids received late, or received in open / unsealed condition / incomplete in any other respect will not be considered.
ii. Counter terms and conditions given by the tenderer shall not be accepted.
iii.“Credential” bid and “Price” bid sealed in separate envelopes and both these envelopes placed and sealed in one common envelope (as provided with the tender document) and super-scribed “TENDER NO- BPC / I&C / Naphtha / 02 / 2010-11” should reach “DGM Logistics (I&C), Bharat Petroleum Corporation Ltd., Bharat Bhavan-1, 4th Floor, Currimbhoy Road, Ballard Estate, Mumbai – 400 001” or dropped in the designated Tender Box at the above mentioned office by 15:00 Hrs. on 21.01.2011. Bids reaching late for reason whatsoever are liable to be rejected.
iv. All supporting papers of the tender bids must be submitted in the envelope.
v. Tenders received without Earnest Money Deposit / not meeting Tender conditions / incomplete in any respect are liable to be rejected.
6OPENING OF TENDER
The tender bids received within the due date & time shall be opened for “Credential bid” in the presence of all bidders on 21.01.2011 at 15:30 hrs.
The Company reserves the right to accept or reject any or all tender bids in part or in totality, or to negotiate with any or all the tender applicants, or to withdraw / cancel / modify this tender without assigning any reason whatsoever.
(COVERING LETTER TO BE SUBMITTED BY THE TENDERER ON LETTER HEAD)
FROM:
M/s ____________________
______________________
(Name and address of the Tenderer)
To,
DGM Logistics (I&C)
BPCL, Mumbai-400 001
Dear Sir,
Sub: TENDER No-BPC / I&C / NAPHTHA / 02 / 2010-11: NAPHTHA TERMINALLING / HANDLING FACILITY ** AT JNPT, MUMBAI / MUNDRA PORT (GUJARAT)
With reference to your subject tender enquiry, we confirm having carefully read and understood the terms & conditions / documents supplied with the tender documents and return them duly signed and stamped for having accepted in totality.
We hereby enclose the EMD of ` 1 Lac (Rupees One Lac Only) vide DD / Pay Order No…………….dated………in favour of M/s Bharat Petroleum Corporation Ltd, drawn on…………….payable at Mumbai.
We submit our Bid duly signed in a sealed envelope as per details given here under:
Please tick: Y – For document enclosed; N – For document not enclosed
Sl. no
Documents
Yes
No
1
Covering letter listing all enclosures (Page- )
2
EMD for `1 Lac
3
Tender document duly signed / sealed (Page- )
4
Particulars of Tenderer along with attested copies of the documents required
5
Terms & Conditions duly signed with seal
6
Bank Guarantee format duly signed & seal (Attachment -)
7
Terminalling Contract (Agreement) along with Schedule-I
8
Details of relationship with Directors of BPCL; Declaration ‘A’ ‘B’ and ‘C’ (Attachment-)
9
SC/ST Certificate / Format (Attachment-)
10
Gen irrevocable Power of Attorney (Attachment-)
11
Undertaking
12
Integrity Pact (Attachment-) (Page )
13
Price Bid
** Strike out whichever is not applicable. In case of both of ports, no need of strike out.
We also confirm that the following facilities as required in this tender are available in our terminal and we shall offer the same to BPCL:
Sl No
Description
Available
Remark
Yes
No
1.
Storage tank of 50,000 KL
2.
Railway Siding for unloading of Naphtha for full rake of 48 BTPN T/Ws
3.
Tanker loading facilities with minimum pumping rate of 1200 KL / Hour
I am / we are authorized to sign this tender document as Proprietor or as per Power of Attorney issued by all other Partners / Directors as per Attachment-.
Thanking you,
Yours Faithfully,
____________________________
Signature of the Tenderer with Seal
PARTICULARS OF TENDERER
CATEGORY : SC / ST / GEN (Tick one)
1. Name of the Tenderer: ___________________________________
2 (a) Registered Office address of the Tenderer:
___________________________________
___________________________________
(b) Address of Correspondence:
___________________________________
(c) E-mail id -----------------------------------------------------------
3. Phone / Mobile No:
___________________________________
4. Status of the tenderer (Individual, Prop. firm, Partnership, Ltd. Company, Other): ___________________________________
(Please provide a copy of the Partnership Deed / Certificate of Incorporation).
5. Registration No (If applicable) / Trading License: ______________________________ (Please attach an attested copy of the registration certificate / trading license)
6. Year of establishment:
___________________________________
7. Permanent Income Tax No:
(Please attach a copy of PAN Card / latest IT Return)
8. Annual Turn over of last 2 years:
2008-09 2009-10
(Pl attach a copy of the attested audited Balance Sheet)
9. Name of the Proprietor or Partners or Directors (wherever applicable):
1) ________________________________
2) ________________________________
3) ________________________________
10. Name/s of the authorized representative/s. 1) __________________________
2) ___________________________
(Please attach a copy of POA of the representative/s to sign on the behalf of the tenderer).
11. Whether the Tenderer (proprietor or any of the Partners / Directors are related (as defined under Companies Act 1956) to any of Directors of BPCL. If so, name of the Director & nature of relationship.
________________________________
________________________________
12. Details of Petroleum Products handling experience:
Sr. No
Name of Oil Co.
Contract reference no.
Period of Contract.
Contracted Volume
(Pl attach a copy of the work order issued by OMCs / certificate of Experience)
13. We confirm that we (the tenderer) are not involved in any litigation, which would render the performance of any obligation impossible in case, the Contract is awarded to us.
14. We confirm that we have qualified / trained / experienced staff on roll to carry-out / handle this job.
15.We confirm that rates offered by us will remain valid for acceptance by you up to 180 days from the date of opening of this tender.
16. This is to affirm that all the terms and conditions of the tender are acceptable to us. Further, all the information and statements furnished by us are true and open for verification.
Date: _____________ Name of Authorized Signatory -------------------------------
Place: ___________ Signature of Authorized Signatory -------------------------
Seal / Rubber stamp of the Tenderer ----------------------------------
BHARAT PETROLEUM CORPORATION LIMITED
TENDER FOR NAPTHA TERMINALLING/HANDLING FACILITY AT JNPT, MUMBAI OR AT MUNDRA PORT (GUJARAT)
TENDER NO- BPC / I&C / NAPHTHA / 02 / 2010-11
TERMS & CONDITIONS
These conditions are set in continuation of the terms and conditions specified in the tender notice and the guidelines for the Tenderers
A GENERAL GUIDELINES
1.Relatives of officer/s responsible for award and execution of this contract in the Corporation are not permitted to quote against this tender. The tenderer shall be obliged to report the name/s of person/s who are relatives of any officers of the Corporation, or any officer in the State or Central Government, and who are working with the tenderer in their employment or are subsequently employed by them. Any violation of this condition even if detected subsequent to the award of contract, would amount to breach of contract on tenderer’s part entitling the Corporation to all rights and remedies available thereof including termination of contract.
2.Rates quoted shall be valid and binding on the tenderer for 180 days from the date of opening of tender unless extended by mutual consent in writing. Breach of this provision shall entail forfeiture of EMD. All rates should be quoted both in words and figures. In the event of discrepancy, the rates quoted in words shall be considered as final. Once the tender is accepted and contract awarded, the rates shall remain valid for the entire contractual period.
3.The Corporation reserves the right, at their sole discretion, and without assigning any reason whatsoever to:
a. Negotiate with any OR all tenderers,
b. Reject any OR all tender bids either in full OR in part.
4. The tenderers must fulfill the safety, security and environment protection requirements during storage / handling of the product.
5. The tenderers should send the sealed bid so as to reach well before the closing time and date or deposit in the tender box earmarked / kept for this purpose at the concerned office DGM Log. (I&C), Bharat Petroleum Corpn. Ltd. Bharat Bhavan 4th Floor Ballard Estate Mumbai-400001. No tender document shall be entertained after due date and time of submission of tender. BPCL shall not be responsible for the delay under any circumstances whatsoever if the tender document is not submitted or received before the closing date and time and in the correct tender box.
6. Tenderers not meeting any of the tender terms & conditions, not fulfilling the bids qualifying criteria; tender bids incomplete in any respect or with any additions / deletions or modifications; tender documents received without EMD are liable to be summarily rejected without any further communication to the tenderer and the decision of BPCL in this respect will be final and binding.
7. The tenderers must have dedicated storage tank /s of 50,000 KL capacity with allied facility owned or taken on lease by them.
8. The estimated quantity for contract job mentioned in the tender document is only indicative and the actual quantity may vary.
9. The tenderers should submit all the details and enclosures as has been asked for in the tender document. In case any of the information is not applicable to the tenderer "Not applicable" may be written against such item. Not submitting any information / enclosure sought for may be a ground for rejecting the tender bid.
B RESERVATION
1. The provision of reservation will be 15% (fifteen percent) & 7 ½ % (seven and a half percent) for Schedule Caste (SC) and Scheduled Tribes (ST) respectively on all India basis.
2. The SC / ST members should fulfill all tender conditions, and will not be eligible for any price preference or relaxation of standards.
NOTES
1. The SC / ST tenderer/s desirous of operating under partnership firm, or Private Ltd. Co., or Public Ltd. Co. or a Cooperative Society, or any other, should have all the partners or members of Private / Public / Cooperative firms belonging to the same category without exception, i.e. either SC or ST as the case may be.
2. Caste certificate for each individual member of a Partnership / Public / Private / Cooperative Firm should be enclosed as proof along with the Technical bid.
3. In the event of any of the members failing to submit the caste certificate as proof of belonging to SC / ST category, the tender will be treated as a general category tender.
4. If the tenderer is issued LOI / Work Order under SC category, all the registered owners of the firm offered against the particular LOI / Work Order must also belong to SC.
5. If any of the Trucks offered do not belong to a member of the category concerned, i.e. SC or ST, as the case may be the tender will be treated as under general category.
C SCOPE OF WORK: TERMINALLING FACILITIES
1. The scope of work broadly covers necessary arrangements for:
i) Providing all requisite and suitable terminalling facilities such as 50,000 KL capacity storage tank, associated pipelines, pumps / motors and laboratory facilities for product sample testing etc. The facilities offered can be owned or leased to the tenderer with full operating rights, must be in good condition and not lying in unused / dormant condition. The condition of the facilities offered shall be solely & independently examined by BPCL for its suitability for handling of the product and BPCL’s decision shall be final.
ii) Receiving product by rail (tank-wagons) and check the received quantity as certified by the independent surveyor and unload the product into the designated tank/s.
iii) Loading of Naphtha into tankers (ships) after the requisite parcel size is ready as decided by BPCL.
iv) Coordinating with the Independent Surveyor appointed by BPCL to ensure prompt drawing of sample whenever required to test the same as per Quality Control Manual in the presence of surveyor.
v) Payment of charges towards Wharfage, port, Pilotage, and berth hire on behalf of BPCL at the first instance.
vi) Liaising / coordination with local railways for placement / removal of T/W rake at the siding and with Port authorities for berthing / de-berthing of ships for Naphtha loading.
vii) Preparation of all related documentations (including invoicing documents etc) for end-to-end transaction and as may be advised by BPCL from time to time.
viii) All other activities as mentioned in tender documents.
2. All operations such as T/W unloading and delivery / loading into tankers / ship / barge will be the responsibility of the tenderer. Once the tanker is berthed at the jetty, loading operation shall continue, unless restriction put by the Port authorities, till the completion of desired parcel size of the cargo.
3. The terminal should meet the requirements of safety standards laid down by the Chief Controller of Explosives and the Oil Industry Safety Directorate.
4.BPCL officials or any representative authorized by BPCL shall have the access to inspect the operations of the aforesaid activities at all times.
DSECURITY DEPOSIT (SD)
1. The security deposit will be for `1 Crore (Rupees One Crore only) in the form of Bank Guarantee (strictly as per the specified format enclosed) valid for entire contract period plus additional six months beyond the tenure of the contract period.
2. Successful bidder shall be required to furnish Security Deposit within 10 (Ten) days of issuance of LOI / Work Order failing which the LOI / Work Order shall be treated as withdrawn.
3. Any loss/ claim and / or damage arising out of the performance of the contract would be adjustable against the SD. Any loss/ claims/ damages higher than SD will be recovered from payments due to the contractor under this contract or deposits made by or payments due to the contractor under any other contract with the Oil Companies.
4. Security deposit would be refunded on expiry of six months of after completion of the contract period on written request from the contractor subject to satisfactory performance.
5. Successful tenderers shall be entrusted with contract work only after signing of Agreement and submitting the Security Deposit amount.
6. In the event of the tenderer failing to perform any of his obligations as specified in this tender document, the Company at its discretion may obtain the services of other service providers and recover the charges incurred from the tenderer’s Security Deposit and the tenderer shall be liable to fully reimburse Company all additional expenses so incurred by the Company and besides compensate the Company for any consequential loss arising out of the tenderer’s default.
E DEMURRAGE
Demurrage charges on account of not unloading the T/W within free time given by railways will be settled by the tenderer directly with the Railways. Similarly, demurrages due to delay in loading of ships due to poor pumping below the contract / agreed rate of 1200 KL / hour shall be borne by the tenderer.
FQUANTITY ASSESSMENT
The assessment of Naphtha quantity received by rail and dispatched / delivered by tanker will be as per established Oil industry norm. The established Oil Industry norms shall be followed for assessment of operating loss quantity and same shall be allowed to the service provider. Normally, such losses should not exceed 0.1% of the volume handled.
Permissible Naphtha losses shall be reviewed after initial operations for a period of 3 months under the joint supervision of company engaged surveyor and the service provider. Any loss beyond the permissible limits shall be recovered from the service providers’ monthly bills.
G EVALUATION CRITERIA
Evaluation of “Credential bid” shall be based on the facilities offered meeting the complete requirement as detailed in the tender document followed by physical inspection by a team of company’s officials to verify the same and ascertain the quality / suitability of facilities offered. The decision of the company in this regard shall be final & binding on the tenderer.
“Price bid” of only those tenderer shall be opened who qualify in the ‘Credential bid’ criteria. The lowest cost to the company shall be the sole criteria of evaluation of price bid and as such, evaluation criteria of determining the lowest cost shall be the “overall price of all activities quoted in the tender plus the actual rail-freight ex Bina Refinery to JNPT, Mumbai or to Mundra Port (Gujarat) as the case may be”.
H CONTRACT PERIOD
Unless otherwise specified or agreed to, the contract shall be awarded for a period of 2 (two) year with an option for renewal for further period of 1 (one) year at the same terms & condition at the discretion of the Corporation. The company reserves the right to foreclose the tender by giving 90 days notice to the tenderer.
I NEGOTIATIONS
1. BPCL reserve the right to negotiate with any or all the tenderers.
2. Tenderers may be required to visit office(s) of BPCL for negotiations / verification of documents, entirely at the cost of tenderers. The date, time and venue will be communicated to the eligible tenderer well in advance in due course.
3. Only the proprietor of the firm or the legally authorized representative of the firm may personally attend such negotiations. Commitments made and/or clarifications given during negotiations will be binding on the tenderer(s). He/She should carry the necessary authorization to attend such negotiations and hand over an authenticated copy of the same to BPCL representative(s) participating in the negotiations.
4. Originals of the documents submitted as copies along with the Tender documents, as well as documentation to substantiate statements made in the tender documents are to be produced for verification by the BPCL during negotiations or at any other time.
J EXECUTION OF AGREEMENT
1. Successful tenderers shall be required, before undertaking the contract, to execute an agreement under requisite stamp paper within 15 days from the date of issue of the offer letter by BPCL. In the event of failure of the tenderer to execute the agreement and / or furnish required security deposit within 15 days of issue of LOI, the LOI shall be treated as withdrawn.
2. When the person signing the tender document is not the authorized signatory, necessary power of Attorney authorizing the signatory to act on behalf of the proprietor / firm should be produced before signing the agreement, and an authenticated copy of the power of Attorney should be submitted for the record of BPCL.
3. All terms & conditions stipulated in the Notice inviting the tender, the Tender Terms & Conditions, Declarations, Agreement and other documents furnished with the Tender and related correspondence shall form part of the contract.
K MISCELLANEOUS
1. BPCL reserves the right to accept / reject the facilities offered by the successful tenderer without assigning any reason whatsoever. The decision of BPCL shall be final and binding.
2. No unsolicited correspondence / queries will be entertained while the award of the transport contract business is under review / consideration. Corporation regrets its inability to answer individual queries.
3. If any of the information submitted by the tenderer is found to be incorrect at any time including the contract period, BPCL reserves the right to reject the tender/ terminate the Contract Agreement and reserves all rights and remedies available.
4. Each page of the tender document including notice inviting tender enclosed along with the tender document must be signed by the applicant or legally authorized representative of the applicant with the official seal for having fully read and understood the terms and conditions of this Tender.
.
L DUPLICATION OF CLAUSE
Whenever there is duplication of clause either in the terms and conditions or in the agreement, the clause which is beneficial to the contracting Corporation, will be considered applicable at the time of any dispute.
SIGNED IN ACCEPTANCE OF THE AFORESAID TERMS AND CONDITIONS
Name of Person signing__________________
Signature and Date ___________________
Tenderer’s Name and address with seal___________________
The terms “BPC”, “BPCL”, “The Corporation”, “the Company” in the appropriate context means Bharat Petroleum Corporation Limited, a Company registered under Companies Act, 1956 and having its registered office at 4 & 6, Currimbhoy Road, Ballard Estate, Mumbai–400001 and includes its successors and assigns.
Attachment
(On Non-Judicial Stamp Paper as prescribed in the respective State)
BANK GUARANTEE
This Deed of Guarantee made this ___________ day of ________________ Two Thousand Eleven between _____________________
___________________ a Bank constituted under the banking Companies (Acquisition & Transfer of Undertakings) Act of 1970 having its head office at __________________________________________ and branch at ________________________ hereinafter called as the GUARANTOR (which expression shall unless excluded by or repugnant to the context mean and include its successors and assigns) of the One Part AND Bharat petroleum Corporation Limited a company registered under the Companies Act, 1956 and having its registered office at Bharat Bhavan, 4&6 Currimbhoy Road, Ballard Estate, Mumbai 400 001 hereinafter called the CORPORATION (which expression shall unless excluded by or repugnant to the context mean and include its successors and assigns) of the Other Part.
AND WHEREAS by an agreement bearing ______ day of ___________ 2011 made between ________________ therein and hereinafter described as the Service provider of the one part and the CORPORATION of the other part, the job as described therein had been awarded to the Service provider by the CORPORATION to be done on the terms and conditions contained therein.
AND WHEREAS it has been agreed that the Service Provider will provide Bank guarantee in such form as may be acceptable to the Corporation as a security of due payment by money as the Service Provider may be liable to pay under the aforesaid agreement.
AND WHEREAS on the request of the Service provider, the guarantor herein is now agreeing to give such guarantee in the manner appearing hereinafter
NOW THIS DEED WITNESSETH AND IT IS HEREBY COVENENTED AGREED AND DECLARED BY THE GUARANTOR AS FOLLOWS:
1. If there is shortfall in the quantity or quality or in both of the product between discharge point and receiving point in storage tank or shortfall in quantity over the limit of 0.1 % in respect of Naphtha after the product reached the storage tank and/or deterioration in quality thereof for any reason whatsoever, the Bank shall pay to the Corporation immediately and without any demur the value of the product so found short or contaminated and
2. The Guarantor shall also pay to the Corporation on demand without any demur any other amount that may be payable by the Service Provider to the Corporation under the aforesaid agreement and will indemnify and keep indemnified safe and defended the said Corporation at all times hereafter against any loss which the Corporation may suffer by reasons of any default committed by the said Service Provider in observance and performance of the covenants of the said agreement and as also hereinabove and all cost, charges and expenses whatsoever which the Corporation may incur by reasons of any default on the part of the Service Provider.
3. The judgment of the Corporation as regards the failure on the part of the Service Provider and / or quantum of shortfall of any product and / or nature of the contamination and / or the value of the product so found short and/or contaminated will be final and binding and the Guarantor will not have any right to question such decision of the Corporation and the Guarantor will pay the amount so demanded by the Corporation immediately on receipt of any written communication stating that Service Provider has failed to perform the agreement and / or to pay the sum which was payable by them in terms of the said agreement.
4. The Corporation shall have the fullest liberty without in any way affecting this guarantee and discharging the Service Provider from their liability hereunder to postpone for any time or from time to time the exercise of the powers conferred on the Corporation under the said agreement and to exercise the same at any time and in any manner and either to enforce or forbear to enforce the covenants for payment of principal or interest or any other covenants contained in or implied under the said agreement or any other remedies or securities, if any, available to the Corporation or to grant or allow time or any indulgence or facility to or compound or to make any other agreement with the Service Provider without any further knowledge or assent of the Guarantor and take any other securities or promissory notes held or to be held by the Corporation from the Service Provider and the Guarantor shall not be released by any exercise by the Corporation of its liberty with reference to the matters aforesaid or any of them or by reason of time being given to the Service Provider or of any other forbearance, act or omission on the part of the Corporation or any other matter or thing whatsoever and the Guarantor hereby waive all rights of surety ship and other rights which they might otherwise be entitled to enforce.
5. The Guarantor will observe and perform all the terms and conditions and covenants contained in the said Agreement in the same manner in which the Service Provider is liable for the due observance and performance of the said terms and conditions and covenants.
6. The Guarantee herein contained shall be irrevocable and absolute and independent of any right or remedy the Corporation may have against the Service Provider and accordingly the Corporation shall be entitled to enforce against the Guarantor the Service Provider’s liability without initiating or enforcing its remedies against the Service Provider and notwithstanding that the securities, if any, hereinafter received from the Service Provider or any of them shall at the time when proceedings are taken against the Guarantor hereunder be outstanding or unrealized.
7. In order to give effect to the Guarantee herein contained the Corporation shall be entitled to act as if the Guarantor was principal debtor to the Corporation for all payments and covenants guaranteed by it as aforesaid to the Corporation.
8. The Guarantee herein contained is a continuing guarantee and shall be binding and operative until repayment is made of all monies due to the Corporation under the said Agreement aforesaid.
9. The Corporation shall be at liberty to enforce the guarantee under this deed separately from or independently of the said agreement and such enforcement shall not be regarded as releasing or in any way affecting the agreement or its enforcement.
10. The obligation of the Guarantor in terms hereof shall not be in any way affected or suspended by reason of any dispute or disputes having been raised by the Service Provider (whether or not pending before any arbitrator, officer, tribunal or court) or any denial of liability by the Service Provider or any other order of communication whatsoever by the Service Provider stopping or preventing or proposing to stop or prevent any payment by the Guarantor to the Corporation in terms hereof.
11. The Guarantee herein contained shall not be determined or in any way prejudiced by any absorption or amalgamation or reconstitution or alteration of the Corporation or of the Service Provider or otherwise and the guarantee shall remain such full force and be operative against the Guarantor until the obligations of the Guarantor hereinafter are fully discharged.
12. That nothing omitted or done by the Corporation shall in any way affect or discharge the liability of the Guarantor under these presents.
13. All sums hereby guaranteed by the Guarantor shall be due and payable to the Corporation at Mumbai in terms hereof after notice in writing, requiring payment of the same shall have been delivered or sent through registered post, addressed to the Guarantor at their aforesaid address.
14. The Guarantee herein contained shall not be affected or discharged due to any amalgamation or reconstitution of the Guarantor but shall in all respects and for all purposes be binding and operative until payment of all monies due to the Service Provider as mentioned hereinbefore recited agreement.
15. Notwithstanding anything contained hereinbefore the Guarantor’s liability under this Guarantee shall be limited to the extent of ` _____ and unless any claim is lodged with the Guarantor at their office mentioned hereinabove by three months from __________ day of _____________________ this Guarantee will be discharged and the Guarantor will be relieved from the performance of this guarantee forever.
IN WITNESS whereof the Guarantor herein set their respective hands and seal on the day, month and year first hereinabove written
SIGNED SEALED AND DELIVERED
By Shri
The GUARANTOR herein at
----------------------------
in the presence of :
Attachment
(On Non-Judicial Stamp Paper as prescribed in the respective State)
TERMINALLING SERVICES AGREEMENT
(TSA No ---------)
SECTION I
THIS TERMINALLING SERVICES AGREEMENT (hereinafter referred to as the “AGREEMENT”) is made at Mumbai this ----- day of --------, BETWEEN
M/s. Bharat Petroleum Corporation Ltd., an Indian company having its registered office at 4&6 Currimbhoy Road, Ballard Estate, Mumbai – 400001 (India) (hereinafter referred to as “Principal” which expression shall mean and include its successors and permitted assigns) collectively referred to as “PARTIES” or singularly referred to as ‘PARTY’ as the context requires.
AND
_______________________________ (Name of the Service Provider), an Indian company incorporated under the Companies Act, 1956, and having its registered office --------------------------------------------------------- (hereinafter referred to as ‘the Service Provider’ which expression shall mean and include its successors and permitted assigns);
WHEREAS
A. Principal is inter-alia engaged business of refining of crude oil, marketing and distribution of petroleum products.
B.Service Provider has been established as a company to render and provide independent terminalling services.
C.BPCL has requirement for storage and handling facilities at JNPT Mumbai or Mundra (Gujarat) for its products (Naphtha) which shall include operations such as unloading of the product from Railway Wagons received ex its refinery at Bina; storage of the product in the dedicated storage tanks; loading into ships for export and documentation.
D.Service Provider has oil storage facilities at address_______________ and has offered its storage and handling services to the Principal.
D. Principal has accepted the offer of Service Provider and has agreed to avail the storage and handling services of the Service Provider.
E. Service Provider shall provide independent terminalling services to Principal for receipt, storage, redelivery and dispatch of Principal’s products.
B. Service Provider will receive at the Terminal, product by Tank Wagon and store, transfer and redeliver through ships (arranged for by Principal at their own cost) on behalf of Principal, subject to and upon the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual terms and conditions hereinafter set forth, the Parties agree as follows:
1ENGAGEMENT
Principal hereby engages the services of Service Provider and Service Provider hereby agrees to provide facilities and terminalling services at the Terminal for handling of the products of the Principal subject to and on the terms and conditions contained in this Agreement. The Service Provider shall provide exclusive and dedicated tankage for storage of products of the Principal. The detailed description of the Terminal is given in Exhibit “A” - to be given by the service provider.
Principal and Service Provider hereby agree and accept that Service Provider has the liberty to provide terminalling services with the Terminal to Service Provider’s other Principals.
Principal hereby agrees to use Service Provider’s Terminal for handling of Low Aromatic Naphtha (the “Product”), conforming to agreed specifications (as attached as Exhibit “B”-to be given by Service provider), during the validity / subsistence of this Agreement.
2TERMINALLING SERVICES
2.1Facility
It is understood by the parties that the facilities provided at the Terminal by Service Provider shall meet Principal’s requirements. Further, Service Provider shall also provide associated pipelines and other such equipment and facilities necessary to receive, store, redeliver product based on the said requirements. The tank capacity and other facilities provided or to be provided from time to time, as referred to above shall hereinafter be referred to as the “Facility”.
2.2 Broad Description of the Facility
Service Provider will ensure that the Facility shall:
Have pipeline connection with the Jetty pipelines, storage tank capacity, piping, pumps and other such associated equipment with computerized systems, fire protection, etc as provided in Exhibit “A”.
2.3 Broad Description of Terminalling Services Provided by Service Provider
Service Provider shall:
(a) Ensure that the Terminalling Services shall be performed under and in accordance with this Agreement with due diligence and efficiency, professional skill and workmanship, sound principles and prevailing oil industry practices, statutory requirements as per the applicable laws of India relating to health, safety at work, environmental protection and fire prevention, and in accordance with the requirements of the relevant permits;
(b) Obtain and maintain the necessary permits, licenses and approvals and comply with all applicable law, statutory requirements and regulations being in-force from time to time relating to Terminalling Services to carry out its obligations under the Agreement.
(c) Receive the Product from Tank Wagon which shall be loaded from Bharat Oman Refineries Ltd. (BORL) by Principal to place at the Railway Siding of Service Provider.
(d) Load the product into ship to be berthed at the JNPT / Mundra jetty by the Principal as per schedule specified by the Principal from time to time.
(e) Provide Principal with summary of Principal’s product activity including physical inventory on a daily basis. This includes forwarding notes, release memos, tank wagon unloading documentation, statutory documents and stock transfer documentation. If necessary Service Provider will maintain excise documentation / records on behalf of Principal. Principal to provide necessary ‘Power of Attorney’ enabling Service Provider to fulfill above mentioned documentation requirements. Principal to keep Service Provider fully indemnified at all times for any / all documentation related issues / claims.
(f) Carry out all liaisioning with Local Railway for placement of Tank wagon at the siding for unloading and with Port trust for loading of ships will be done by Service Provider. But all liaisioning with Excise authorities will be done by Principal.
(g) Co-ordinate with the Principal’s representatives / Surveyors for their product movement plan through ships.
(h) Maintain the facilities and the terminal in good order and condition at all times.
(i) Ensure that all laws, statutory requirements and regulations from time to time being in force relating to facilities will be complied with and obtain the necessary permits, licenses and approvals as necessary to carry out Service Provider obligations under this agreement.
The services to be provided by Service Provider under this Agreement shall be available during the Terminal’s opening hours and days (round the clock for vessel loading and Tank wagon unloading on all days). Exact delivery timings by ships to be coordinated with Service Provider on day to day basis.
The principal will be solely responsible for liaisioning with railways for organization / placement of rakes for movement of the Product. Service Provider will liaise with Railways for placement of Tank wagon for unloading and removal of empty Tank wagons.
Service Provider will, in order to provide the services as described above, use jetty and allied port facilities (hereinafter referred to as “Jetty”) of the JNPT / BPC-IOC which are not controlled by Service Provider. Separate conditions as in place from time to time for use of this Jetty as applicable to Service Provider and / or Principal shall govern Service Provider and / or Principals activities at such Jetty.
2.4. Service Provider will unload Tank wagons within the free time allowable time given by Railways and also load ships @ pumping rate of minimum 1200 KL per hour. Any demurrage claimed by railways for unloading of the tank wagons beyond the allowed free time will be borne by Service Provider. Similarly, demurrage due to poor loading rate below 1200 KL per hour for ship / barge loading will also be borne by Service Provider.
2.5. In respect of its employees and labour forces, Service Provider shall ensure, and would remain totally responsible, for compliance and implementation of all laws, rules and regulations as applicable, more particularly Workmen's Compensation Act 1923, Employees' Provident Fund and Miscellaneous Provisions Act, 1952, Employees State Insurance Act, 1948, Minimum Wages Act 1948, Contract Labour (Regulation and Abolition) Act, 1970, Industrial Disputes Act, 1947, Payment of Bonus Act, 1965, Payment of Gratuity Act, 1972, and other relevant labour / other legislations in force. Principal shall in no event, be liable or responsible for any default that will arise out of non observance/compliance of such laws/rules on the part of Service Provider and that Service Provider shall indemnify and keep indemnified Principal against the same and from any proceedings in respect thereof.
3SECURITY DEPOSIT
3.1The Service Provider shall submit / provide to the Principal a Security Deposit of `1 Crore (Rupees One Crore Only) by way of a Bank Guarantee issued by a Scheduled Bank and as per the stipulated format, to cover the period of 6 months beyond the date of expiry of contract period which includes, inter-alia, the full period of the contract and additional six months for due fulfillment of terms of this Agreement. The Principal, at its sole discretion may take recourse to the Bank Guarantee, to recover part or whole of the guaranteed sum. However, the claims of the Principal against the Service Provider shall not be limited to the amount stipulated in the Bank Guarantee.
3.2The Principal shall be entitled to adjust any sum due to it from the Security Deposit amount and/or any contract charges / dues pending for payment to the Service Provider.
4TERM
Subject to the terms of this agreement, Service Provider will make available to Principal and Principal will use the facility upto 28.02.2013 (the “Term”). This contract shall liable to be further extended for another period of 1 (one) year on the same terms and conditions at the sole option / discretion of Principal provided that the Principal shall have given notice about its desire of renewal of this agreement to the Service Provider in writing 90 days in advance of expiration of the term hereby granted. The company reserves the right to foreclose the tender by giving 90 days notice to the tenderer.
The Term would comprise of invoice cycles of 30 (thirty) days each starting from Service Provider’s formal ‘Notice of Readiness’ for the tank / s (post their inspection by BPC’s nominated surveyors).
5TANK CAPACITY
Service Provider will provide Principal for the Term with cumulative tank capacity of 50,000 KL shell capacity (hereinafter called the “Tank Capacity”). The cumulative safe filling capacities of the tank / s shall be conveyed to the Principal in advance and shall have no influence on the Handling Fees as defined in clause 6 of this Agreement.
In case at any time during the term of this agreement the Service Provider is required to change the tank configuration due to operational and / or technical reasons it shall give the Principal sufficient and due prior notification for any such changes to the tank configuration. Provided further that, at all times, the Service Provider shall provide the Principal the same tank capacity.
Principal may request Service Provider to bond abovementioned Tank Capacity. However bonding facilities will be only available after Principal has obtained all necessary clearances thereof. Principal shall make all necessary efforts and arrange for all documentation required. All costs related to this activity shall be on the Principal’s account. Principal undertakes to comply with all Customs / Excise and other statutory requirements with respect to bonding of the capacity and shall keep Service Provider indemnify against all claims whatsoever resulting from bonding of the capacity.
Tank cleaning costs are to be borne by Principal for the Tank Capacity during the contract period (if requested for by Principal) and / or at the end of the contract period. The Tank Capacity would have to be returned to Service Provider in same condition as at the starting date of the contract. An independent surveyor will certify cleanliness of the Tank Capacity.
All Product insurance is to be arranged and cost borne by Principal.
The Parties agree that Principal will lift all Product stored and vacate and de-bond the Tank Capacity utilized by the end of the Term.
6 OWNERSHIP
The Terminal shall solely vest in and is the absolute property (both legal and beneficial ownership) of the Service Provider and shall not be within the ownership control or disposition of the Principal. The Principal acknowledges and agrees that (a) it has no proprietary or other rights in or to the Terminal and (b) it shall not at any time challenge or otherwise oppose Service Provider’s ownership of the Terminal.
Similarly, the products stored at the terminal shall be absolutely owned by Principal. The Service Provider acknowledges and agrees that (a) it has no proprietary or other rights in or to the said Products and (b) it shall not at any time challenge or otherwise oppose Principal’s ownership of the Products.
7HANDLING OF PRODUCTS
7.1TESTING / SAMPLING / SURVEYORS
Principal to appoint their boarding officer / surveyor for supervising the entire ship loading operations and the same officer would be responsible for ensuring full compliance with all provisions of the Principal’s Operations Manual with respect to the carrying out of all loading operations which inter alia would include but not be restricted to gauging / sampling / ullaging of ship’s tanks / shore tanks (jointly with Service Provider), prior to commencement of loading operations etc.
Service Provider shall provide with test report copy and retention samples of the product pumped from the storage tank prior to commencement of loading operations.
7.2 TANK WAGON UNLOADING RELATED OPERATIONAL SCOPE
Service Provider will carry out the following activities pertaining to tank wagon unloading operations at the terminal:
a) Co-ordination with railways / Principal for placing the rake for unloading
b) Accepting the rake placement and physical checking of Tank Wagons
c) Unloading of rakes within free time as given by railways
d) Co-ordination with railways for RR submission on unloading the tank wagon
e) Payment to be made by Principle for siding / shunting charges, if any. However, all required co-ordination would be done by Service Provider in this regard
f) Quality Checks of products as per procedure
g) To ensure all manhole covers are closed after full unloading / emptiness check of tank wagon prior to release the empty rake
h) To co-ordinate with Railways / TXR staff to rectify the defective tank wagon
Tank wagon unloading operations would be carried out by Service Provider and in case Principal desires, the same could be in presence of Principal’s representative / nominated surveyors (cost to be borne by Principal) and in that case, final quantity shall be jointly ascertained by Service Provider and Principal’s representative / nominated surveyor.
7.3POINT OF DELIVERY OR RE-DELIVERY
The product shall be deemed to have been delivered to Service Provider at the Terminal from the Tank Wagon immediately upon the product having passed the connecting flange of the pipeline of the Terminal connected to the Tank wagon discharge point.
The product shall be deemed to have re-delivered to the Principal from the Terminal if the product is re-delivered by ship and are to be loaded by means of pumps after they have passed the connection at the Terminal to the means of transport.
8HANDLING FEES
8.1Principal shall pay Service Provider for use of the Facility throughout the Term the following fees:
(A)Handling Fee
A consideration of ` ------ (plus applicable Service Tax from time to time, presently, 10.3 % inclusive of education cess) per KL @ Natural of the Tank Capacity (i.e. 50,000 KL) per thirty (30) days period.
(B)Rail wagon Un-Loading Fee:
A consideration of `------ per KL @ Nat (plus applicable Service Tax from time to time, presently, it is 10.3 % inclusive of education cess) shall be charged on account of rail wagon unloading.
(C)Tanker (Ship) Loading Fee:
A consideration of `------ per KL @ Nat (plus applicable Service Tax from time to time, presently, it is 10.3 % inclusive of education cess) shall be charged on account of rail wagon unloading
(D)Pipeline Pigging Fees:
For vessel / ship loading operations, pipeline air pigging fee of `------ (for each operation of Ship / Barge loading) shall be paid by Principal to Service Provider.
(E)Documentation Fee
Principal will pay lumpsum documentation fee of `---- per month towards manpower assistance for availing customized documentation services.
Principal would provide their official stationery, hardware and software for compliance with their customized documentation / records requirements (if any) along with imparting necessary training to Service Provider’s designated personnel.
8.2All rates set out in Article 8.1 above shall be deemed to cover the cost of Service Provider personnel and services, including the cost of payroll, allowances, over heads, profits and fees for handling Principal’s Product. Any other associated costs / expenses relating to services not covered under Article 2.3 would be charged over and above the Handling Fees.
8.3Other Charges
All rates / charges set out in Article 8 are exclusive of all port charges, Wharfage charges, Pilotage charges, berth hire charges, short paid railway freight by BORL (if any) at loading point, third party surveyors, wagon registration charges, shunting charges, CHA, surveying and product testing charges, customs / CVD / excise duties, sales tax (including CST), and all other statutory levies now in force or which may be imposed here after, payable on products received or services covered by this agreement shall be on Principal’s account. Mode of payments of Railway freight shall be as per Exhibit ‘C’.
The Principal hereby agrees to indemnify and keep Service Provider indemnified at all times in relation to all such rates, charges, taxes, duties, etc.
8.4Taxes / Duties
The rates set out in Article 8, are exclusive of all taxes, duties and levies, which must be paid by Principal in relation to the provision of services under this Agreement or in relation to the Products. Further, Principal will either settle directly or forward to Service Provider (for onward submission of the same on their behalf by Service Provider) if and or when required, any tax, duty or levy, which, as owner of the Product stored at the Facility, it is lawfully and administratively required to do.
Principal would be fully responsible for all statutory compliances (including maintenance of records, timely submission of records, returns e.g. Sales Tax / TOT returns etc.) Principal indemnifies Service Provider against all taxes, assessments, duties and / or other governmental charge or impositions whatsoever at any time concerning Product or services irrespective of whether the Product is still in Service Provider Facilities or not.
9PAYMENTS TERMS
Monthly bills will be payable within 15 (fifteen) days from date of invoice raised after expiry of the respective month.
In the event of any dispute relating to billing and payments, the amount not in dispute will be payable as per the above credit terms. Disputed amounts, if any will be payable immediately upon the settlement of the disputed amounts between the Parties.
10PRODUCT QUALITY
10.1Specifications
Principal will supply Product conforming to agreed specifications. If at anytime the product supplied by Principal fails to conform to the approved specifications, Principal will remove all non-conforming products from the storage facilities and replace the same with conforming products, or take steps to correct the same. However, during handling of same if Product does not conform to agreed specifications owing to reasons of negligence of Service Provider, the cost of correction (which includes freight, down gradation / up gradation cost, if any, processing charges if any) shall be recovered from Service Provider.
10.2Samples
Service Provider will take samples of all incoming product received from Principal and shall maintain the same for a period of 30 (thirty) days. If the product in tank wagon fails to meet the agreed specifications, Principal and Service Provider shall mutually discuss and finalise the steps to be taken for further handling of product. All costs for surveyors engaged by the Principal shall be on Principal’s account and costs for surveyors engaged by Service Provider shall be on Service Provider account.
11PRODUCT LOSS
11.1 Service Provider shall be responsible only for the quantity of cargo received and handled in Service Provider shore tanks, as mutually / jointly certified by both Parties’ surveyors. Service Provider shall not be responsible for any quantity mentioned in Principal’s bill of lading or any other documents or any other quantities solely determined prior to tank wagon discharge.
11.2 The Service Provider agree that actual loss of product in storage and handling at the terminal shall not exceed the following norm during the Term of the Agreement and such loss shall be to Principal’s account:
Permissible Naphtha loss is 0.10 % of volume handled. This will be reviewed after initial operations for a period of 3 months under the joint supervision of company engaged surveyor and the service provider. Any loss beyond the permissible limits shall be recovered from the service providers’ monthly bills.
The loss, as a percentage of the volume handled, shall be determined by following formula:
Loss % = (difference between book balance & Physical stock) x 100
(Opening stocks + receipts)
Any losses exceeding the above limit, Service Provider will compensate Principal for the product value lost at the average landed cost (including excise duties) of the Product delivered into the Facility.
The stock loss details will be provided on monthly basis and final settlement will be made by Service Provider at the end of the contract Term.
12LIABILITIES AND INDEMNITIES
12.1. From the date of commencement of operations,
(a) Service Provider shall ensure that the Product is handled and the Terminalling Services are provided with reasonable care and skill expected of an organization rendering such services and in accordance with accepted oil industry practice.
(b) Notwithstanding anything contrary in the Agreement, Service Provider shall not be liable for any claim arising:-
(i) From any delay in the receipt of the Product by the Pipeline to the Terminal;
(ii) From Force Majeure.
(c) In the event that any loss or damage is caused to Principal (including but not limited to loss / damage caused to Principal on account of Principal having to supply the Products from alternative sources in the event that Service Provider is unable to render the Terminalling Services from the Terminal), and / or to third parties to whom Principal shall be liable for such loss or damage, for which Service Provider is liable, then Service Provider shall keep the Principal indemnified against such loss or damage.
12.2 In respect of all provisions stated in the Agreement providing for one Party (“the Indemnifying Party”) to indemnify the other (“the other Party”), the following shall be conditions to such indemnity:
(i) Prompt written notice shall be given to the Indemnifying Party by the other Party of such claim; and
(ii) No payments shall be made by the other Party in respect of which it may wish to claim against the Indemnifying Party under this Clause to any third party claimant without prior consultation with the Indemnifying Party; and
(iii) The Indemnifying Party shall be given the opportunity by the other Party to participate in the negotiations for settlement or in the defence of such claims.
12.3 Neither Party shall be liable to the other under any of the indemnities expressed in this Agreement, or in contract or in tort, for any indirect or consequential losses including but not limited to loss arising from business interruption, loss of use, loss of profit and loss of anticipated profit.
13INSURANCE
Principal as owner of the Products stored in the Terminal shall arrange and maintain adequate insurance in respect of the quantity / s of Products and the costs of such insurance shall be borne by and shall be to the account of Principal. Service Provider shall arrange and maintain adequate insurance for the facilities comprised in the Terminal as also for third party risks and public liability in operating the Terminal and the cost of such insurance shall be borne by and shall be to the account of Service Provider.
14LIEN AND RIGHT OF DISPOSAL
14.1 It is agreed that Service Provider shall have a right of lien and retention over the Products of Principal to the extent of any unpaid amounts due and payable by Principal from time to time.
14.2 Notwithstanding anything contained to the contrary in these Articles and subject to Indian laws, if:
(a) Principal fails to remove the Products upon the expiry or termination of the Agreement; or
(b) Principal fails to pay to Service Provider any sum due to Service Provider under the Agreement,
Service Provider shall be entitled to give notice to Principal to remove the Product and / or pay the sum due to Service Provider within 30 days, and if the Product are not removed and/or the outstanding amounts are not paid to Service Provider within such 30 days period, then Service Provider shall be entitled, without further notice or demand to Principal, to remove the Product from the Terminal to any place whether in or outside the Terminal and dispose of or destroy the Product in such manner as Service Provider deems fit and at the risk and expense of Principal.
14.3 Subject to Indian laws, if Service Provider shall decide to dispose of the Product by sale by private treaty or public auction any proceeds of sale shall be applied by Service Provider in the following manner:
(i) first, in payment of all sums due from Principal to the Income Tax and, other competent authorities if so directed by the concerned authorities;
(ii) second, in payment of the expenses of the removal and disposal and any storage of the Product in the period between such removal and disposal;
(iii) third, in payment of all sums due from Principal to Service Provider under the Agreement;
(iv) fourth, in payment of other claims or liens of which notice has been given by third parties to Service Provider pursuant to an order of a court; and
(v) Lastly, by rendering any surplus to Principal on demand.
14.4 If the proceeds of any sale of the Product by Service Provider under this Clause shall be insufficient to satisfy in full any claim of Service Provider under the Agreement, Service Provider shall be entitled to recover the same from Principal as a debt in any court of competent jurisdiction.
14.5 Any sale of the Product by Service Provider pursuant to this Clause shall be free from any encumbrances.
14.6 Service Provider shall not be liable for any claim arising from the removal, disposal, destruction and intermediate storage of the Product.
15ASSIGNMENTS
Neither Party shall have the right to assign this Agreement, in whole or in part, or any rights hereunder without the prior written consent of the other Party. This written consent shall not be unreasonably withheld or delayed and any reason for disapproval shall be given in writing, setting out the grounds for reaching the decision. This Agreement shall inure to the benefit of and be binding upon its successors and permitted assigns of the Parties hereto. In the event of any assignment by either Party the assigning Party shall remain permanently liable to the other Party for all obligations contained in this Agreement regardless of whether such obligations were part of or covered by the assignment.
16WAIVER
The failure of either Party to insist in any one or more instances upon the performance of any term or conditions of this Agreement, or to exercise any right afforded to such Party herein, shall not be construed as a waiver or relinquishment of the future performance of any such term or conditions by the other Party, or the future exercise of such right, and the respective obligations of the parties as to their future performances shall continue in full force and effect.
17MODIFICATION
This Agreement may not be amended, changed, or modified in any way except by a written amendment executed by the Parties hereto. Any such written amendment needs no additional consideration to be enforced.
18LAW AND LANGUAGE
The Parties agree that this Agreement shall be governed by and interpreted and construed in accordance with the laws of India.
The operations carried out or to be carried out by Service Provider shall be subject to the laws, regulations and rules in force and directions, that have been given or will be given by the Government or local authorities or other authorities, institutions or persons having authority to do so.
If such laws, regulations, rules or directions are amended after the date on which the Agreement has been executed, the amendments shall be deemed to form part of that Agreement.
The Parties agree to submit to the exclusive jurisdiction of the courts at Mumbai in connection with any matters which might arise out of this agreement.
The language for the purposes of this Agreement shall be the English language and all correspondences, notices and communication etc. shall be in English.
19NO AGENCY
Save for the provisions contained in this Agreement, nothing herein shall create or constitute a relationship of agency between Principal and Service Provider, and Service Provider undertakes that it shall not conduct itself or hold itself out as agents of Principal in any measure or under any circumstances whatsoever.
20COMPLIANCE WITH LAWS AND REGULATIONS
Each Party to this Agreement shall conform to all applicable provisions of every statute, statutory instrument, bye-laws or regulations from time-to-time in force affecting this Agreement and will give all necessary notices and obtain every requisite sanction or approval in respect of this Agreement under every such statute instrument bye-law or regulations.
The non-conforming Party shall indemnify the other Party against any fines, penalties, losses, costs or expenses incurred by the other Party in respect of any non-compliance with the provisions with the laws and / or regulations.
21TERMINATION
21.1Grounds of Termination:
At any time after the day of execution of this Agreement, either party may terminate this Agreement upon the occurrence of one or more of the following events in relation to the other:
A substantial breach or failure to comply in any material respect to any provision of this Agreement in such a way that it is unreasonable for the other Party to continue with the Agreement and such failure continues for more than 30 (thirty) days following written notice thereof by the other Party to the Party in breach; or
The appointment of any receiver, receiver and manager or administrator or a petition is presented or order passed for the winding up or liquidation for their equivalent in any jurisdiction, which is applicable of that Party or any material part of their undertaking.
Non-compliance with Article 10 of this Agreement
21.2Termination at Discretion
Notwithstanding anything contained / provided in this Agreement and attachments to this Agreement either Party shall have the right at its sole discretion to terminate this Agreement by giving advance 90 days (3 months) written notice to other Party without assigning any reasons for such termination. During the said notice period of 90 days (3 months) it would be binding on both Parties to fulfill their respective contractual obligations as mandated by this Agreement.
21.3 The termination or purported termination of this Agreement shall be without prejudice to any claims or rights of action previously accrued to either party against the other.
22NOTICE
Any notice or other communication required or permitted under this Agreement shall be in writing and shall be given by registered post, hand delivery, courier service, telex, or telefax addressed to the relevant party at the addresses set forth below or such other addresses as maybe designated from time to time.
A) In case of Service Provider to :
Address of Service Provider
Attention: Managing Director
Telefax: +91 -----------------
B) In case of Principal to:
M/s. Bharat Petroleum Corporation Ltd.
Attention: ------------------------ I&C HQ
Telefax: ---------------------------
23ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and it supersedes all prior written or contemporaneous oral undertakings relating to the storage or Product and there are no other agreements or understandings between the Parties to this subject matter.
24FORCE MAJEURE
24.1None of the parties shall be liable or responsible for any failure to perform or delay in performance of their respective obligations hereunder if such failure or delay is due or attributable to or arises out of any Force Majure event, provided notice of occurrence of any Force Majeure event is given by the affected party to the other parties within a period of ten (10) days of such occurrence and such notice includes reasonably satisfactory evidence of the Force Majeure event.
24.2Definition of Force Majeure
To the extent that the event is not within the reasonable control of the party whose performance under this Agreement is affected thereby, the term “Force Majeure” as used in this Agreement shall mean and include any of the following events: war, hostilities, acts of the public enemy or belligerents, sabotage, blockage, revolution, insurrection, Service Provider, or disorder, expropriation, requisition, confiscation or nationalization; act of God; fire, earthquake, storm, flood, lightning, or to government taking over whether or not by formal requisition; epidemic, quarantine; strikes or combination of workmen, lockouts or other labour disturbances; explosion, accidents by fire or otherwise to plants, storage facilities, installations, machinery, or to transportation or distribution facilities or equipment or any other event, whether or not of the same class or kind or those above set out.
24.3Should the event of Force Majeure continue for an uninterrupted period of ninety (90) days or more, then either party shall have the right to terminate this agreement by a ninety (90) days’ notice to the other and this Agreement shall terminate upon the expiry of such ninety (90) days period if the Force Majeure event subsists.
25ARBITRATION
If any dispute or difference of any kind whatsoever shall arise between the Parties in connection with or arising out of this Agreement (and whether before or after the termination of breach of this Agreement) Parties hereto shall promptly and in good faith negotiate with a view to its amicable resolution and settlement. In the event no amicable resolution or settlement is reached within a period of thirty (30) days from the date on which the dispute or difference arose, such dispute or difference shall be referred to the sole arbitration by Director (Marketing) of the Principal or such officer as may be nominated by him by general or special order for adjudication of the dispute or difference referred by the parties. The award of the said Sole arbitrator so appointed shall be final, conclusive and binding on all parties to the agreement. The provisions of the Arbitration & Conciliation Act, 1996 or any statutory modification or re-enactment thereof and the rules made there under for the time being in force shall apply to the arbitration proceedings under this clause.
26CHANGE IN LAWS AND REGULATIONS OF GOVERNMENT AND LOCAL AND OTHER AUTHORITIES
The operations carried out or to be carried out by Service Provider shall be subject to the laws, regulations and rules in force and directions, that have been or will be given by the Government or local authorities or other authorities, institutions or persons having authority to do so. If such laws, regulations, rules or directions as amended after the date of which the Agreement has been executed, the amendments shall be deemed to form part of that Agreement. Consequently, all such future statutory levies, taxes, dues etc to avail Service Provider’s services at the Terminal would be fully payable by the Principal at all times.
27CONFIDENTIALITY
The terms of this contract are strictly confidential between Service Provider and the Principal and any breach of this confidence, will be viewed with utmost seriousness being tantamount to breach of contract leading to termination of contract and action that will follow, legal or otherwise.
28.STAMP DUTY
Stamp duty for the Agreement shall be shared equally by both the parties.
IN WITNESS WHEREOF the Parties through their authorized representatives have signed the Agreement in two counterparts at the place and date specified first, herein above.
For and on behalf of
For and on behalf of
Service Provider
Bharat Petroleum Corporation Ltd.
Witness: 1) -------------------------------- 1) -------------------------------------
2) --------------------------------- 2) -------------------------------------
Place:
Date:
ATTACHMENT-
DETAILS OF RELATIONSHIP WITH BPCL DIRECTORS
Tenderers should furnish following details in the appropriate part based on their organization structure.
Organizational structure
Part of the form applicable.
Sole Trader
PART – A
Partnership
PART -- B
Company Private / Public / Co- operative Society
PART -- C
PART – A
(Applicable where Tenderer is Sole Proprietor)
1. Name:
2. Address: Residence: Office:
3. State whether tenderer is related to any of the Director(s) of BPCL:YES / NO
4. If ‘Yes ‘to 3, state the name of BPCL’s Director and Tenderer’s relationship with him / her.
Place: SIGNATURE OF TENDERER
Date:
PART – B
(Applicable where the Tenderer is a partnership firm)
1. Name of the partnership firm responding the tender:
2. Address:
3. Name of partners:
4. State whether any of the partner is a Director of BPCL
: YES / NO*
5. If “Yes” to 4, state the name(s) of BPCL Director.
6. State whether any of the partner is related to any of the Director(s) of BPCL:YES / NO*
7. If “Yes” to 6, state the name(s) of BPCL Director and the concerned partner’s relationship with him / her.
*Strike off whichever is not applicable.
Place:
Date:
PART – C
(Applicable where the Tenderer is a Public / Private ltd. CO /Co-operative Society)
1. Name of the Company responding the tender:
2. Address of: (a) Registered Office:
(b) Principal Office:
3. State whether the Company is a Pvt. Ltd. Co. or Public Co. or Co-operative Society.
4. Names of Directors of the Company/Co-operative Society
5. State whether any of the Director Of the Tenderer/Company is a Director of BPCL: Yes/No
6. If ‘Yes’ to (5) state the name(s) of the BPCL Director.
7. State whether any of the Director of the Tenderer Company is related to any of the Directors of BPCL:
Yes / No*
8. If ‘Yes’ to 7, state the name(s) of BPCL’s Director & the concerned Director’s (of the tenderer Co.) relationship with him / her.
*Strike out whichever is not applicable.
Place:
Date:
DECLARATION ‘A’
We declare that we have complied with and have not violated any clause of the standard Agreement
Place:
Signature & Seal
Date:
DECLARATION ‘B’
We declare that we do not have any employee who is related to any officer of the Corporation / Central / State Government
OR
We have the following employees working with us who are near relatives of the officers of the Corporation.
Name of the Employee
Name and Designation of
of the Contractor
the Officer of the Corporation
.
1. ________________________________________________
2. ________________________________________________
3. ________________________________________________
4. ______________________________________________________
Place:
Signature & Seal
Date:
____________________________________________________________________________
DECLARATION ‘C’
The Tenderer is required to state whether he is a relative of any Director of our Corporation or the tenderer is a firm in which Director of our Corporation or his relative is a partner or is any other partner of such a firm or alternatively the Tenderer is a private company in which Director of our Corporation is member or Director, (the list of relative(s) for this purpose is given overleaf)
Place:
Signature & Seal
Date:
N.B: Strike off whichever is not applicable. If the Contractor employs any person subsequent to signing the above declaration and the employee so appointed happen to be near relatives of the Officer of the Corporation/Central/State Government, the Contractor should submit another declaration furnishing the names of such employees who is/are related to the Officer/s of the Corporation/Central/State Government.
LIST OF RELATIVES
A person shall be deemed to be a relative of another, if any and only if,
i) He / She / They are members of Hindu Undivided family or
ii) He / She / They are Husband & Wife OR
iii) The one is related to the other in the manner indicated below.
1. Father
2. Mother (including Step Mother)
3. Son (including Step Son)
4. Son’s Wife
5. Daughter (including Step Daughter)
6. Father’s Father
7. Father’s Mother
8. Mother’s Mother
9. Mother’s Father
10. Son’s Son
11. Son Son’s Wife
12. Son’s Daughter
13. Son’s Daughter’s Husband
14. Daughter’s Husband
15. Daughter’s Son
16. Daughter’s Son’s Wife
17. Daughter’s Daughter
18. Daughter’s Daughter’s Husband
19. Brother (including Step Brother)
20. Brother’s Wife
21. Sister (including Step Sister)
22. Sister’s Husband
Attachment
SC/ST CERTIFICATE
A tenderer who claims to belong to one of the Scheduled Castes / Schedules tribes should submit in support of his claim a certificate issued within one year preceding the date of the tender opening for _________________________________contract, in original, with a copy thereof, in the form enclosed from the District Officer or the sub-Divisional Officer or any other Officer as indicated in the enclosed form, of the District in which his parents (or surviving parents) ordinarily reside who has been designated by the State Government concerned as competent to issue such a certificate. If both his parents are dead, the officer signing the certificates should be of the district in which the tenderer him / herself ordinarily resides otherwise than for the purpose of his own education.
The enclosed format below is to be used for the purpose.
____________________________________________________________________________
Form of certificate to be produced by a candidate belonging to a Scheduled Caste or Scheduled tribe in support of his claim.
FORM OF CASTE CERTIFICATE
1.This is to certify that Shri / Smt / Kumari* son /daughter* of ……………………….of village /town* …………………in district / division*………………………of the State / Union
Territory*………………… belongs to the ……………..caste / tribe* which is recognized as
Scheduled Caste / Scheduled tribe* under:
@The Constitution (Scheduled Castes) Order, 1950
@The Constitution (Scheduled Tribes) Order, 1950
@The Constitution (Scheduled Castes) (Union Territories) Order, 1951
@The Constitution (Scheduled Tribes) (Union Territories) Order, 1951
(As amended by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order,
1956, The Bombay Reorganization Act, 1960. The Punjab Reorganization Act, 1966, The
State of Himachal Pr. Act. 1970, the North Eastern Areas (Reorganization) Act, 1971 and
Scheduled tribes Orders (Amendment) Act, 1976)
@The Constitution (Jammu & Kashmir) Scheduled Castes Order, 1956
@The Constitution (Jammu & Kashmir) Scheduled Tribes Order, 1989
@The Constitution (Andaman & Nicobar Islands) Scheduled Tribes Order, 1959
@The Constitution (Dadra & Nagar Haveli) Scheduled Castes Order, 1962
@The Constitution (Dadra & Nagar Haveli) Scheduled Tribes Order, 1962
@The Constitution (Pondicherry) Scheduled Castes Order, 1964
@The Constitution Scheduled Tribes (U.P.) Order, 1967
@The Constitution (Goa, Daman & Diu) Scheduled Castes Order, 1968
@The Constitution (Goa, Daman & Diu) Scheduled Tribes Order, 1968
@The Constitution (Nagaland) Scheduled Tribes Order, 1970
@The Constitution (Sikkim) Scheduled Castes Order, 1978
@The Constitution (Sikkim) Scheduled Tribes Order, 1978
2.Application in the case of Scheduled Castes/Scheduled Tribe persons who have migrated from one State / U.T:
This certificate is issued on the basis of the Scheduled Castes / Scheduled tribe
Certificate issued to Shri / Smt*…………………………….father / mother of Shri / Smt /
Kumari*………………………………in District / Division……………………….of the State
/ Union Territory*………………………………who belong to the ……………………..
Caste / tribe* which is recognized as a Scheduled Caste / Scheduled tribe* in the State
/ Union Territory*……………………..issued by the …………………………………..
(Name of prescribed authority) vide their no. …………….dated…………………..
3.Shri / Smt /Kumari*……………………….and/or his / her* family ordinarily reside(s) in
village / town………………… of………………………..District / Division of the State /
Union territory of…………………………………..
Signature………………………
Place………………………State/Union Territory
Date……………………… Designation…………………...
(With seal of Office)
* Please delete the words, which are not applicable.
@ Please quote specific Presidential Order.
% Delete the paragraph, which is not applicable.
Note: The term ‘ordinarily reside(s) used here will have the same meaning as in Section 20 of the Representation of the Peoples Act, 1950.
** List of authorities empowered to issue Scheduled Caste/Scheduled Tribe Certificates:
1. District Magistrate/Additional District Magistrate/Collector /Deputy Commissioner/Deputy Collector/1st Class Stipendiary Magistrate/City Magistrate/Sub-Divisional Magistrate/Taluka Magistrate/Executive Magistrate/Extra Assistant Commissioner (not below the rank of 1st Class Stipendiary Magistrate).
2. Chief Presidency Magistrate / Additional Chief Presidency Magistrate / Presidency Magistrate
3. Revenue Officers not below the rank of Tehsildar.
4. Sub-Divisional Officer of the area where the candidate and/or his family normally resides.
5. Administrator/Secretary to Administrator/Development Officer (Lakshdweep Islands).
Attachment
(On Non-Judicial Stamp Paper as prescribed in the State of Maharashtra)
GENERAL IRREVOCABLE POWER OF ATTORNEY
We, the undersigned (1) Shri ________________________________ (2) Shri_________________________ (3) Shri ___________________ all residing at
_________________the Partners / Directors of M/s __________________________ having
its registered office at _________________________________ do hereby nominate,
authorize and appoint Shri __________________________________ & Shri_____________________ who are our Partners/Directors in the firm to act as attorneys of our firm M/S ____________________ with full power and authority to exercise the following powers or any of them on our behalf and on behalf of our firm:
i) To sign, seal, execute, perfect and / or complete the tender document of Terminalling / Handling of petroleum products and also other relevant documents required by M/s__________________ Corporation Ltd. (hereinafter called The Company) in respect thereof.
ii) To negotiate, enter into correspondence with the Company and do all and everything necessary suitable or proper with regard to the said tender for transportation of petroleum products.
iii) To sign, seal, execute, perfect and/or complete the said Terminalling / Handling Contract Agreement and all and / or any other document, Indemnity Bond etc. required by the Company in connection with the said Contract Agreement.
iv) To do all acts, deeds, as may be necessary for and incidental to the execution of proper performance of the said transport contract agreement with BPCL.
v) We the said partner(s) do hereby agree to allow verify and confirm all and whatsoever the said Shri __________________ and Shri____________________ shall or may do or cause to be done in or about the said tender and the said Contract / Agreement, the execution and proper performance thereof by virtue of these presents.
vi) This Power of Attorney shall remain irrevocable till the validity period of our quotation / Contract / Agreement / or refund of our Security Deposit whichever is later.
In witness whereof we have hereunto set and subscribed our hands at ____________ this_________ Day of ____________ Two thousand two ______________
Signed, Sealed and delivered by 1) Shri___________________
the within named partners/ 2) Shri___________________
Directors of M/s _____________ 3) Shri___________________
Before me
Notary public
(Notary's Stamp)
(On Non Judicial stamp paper)
Attachment-
UNDERTAKING
Name of the Tenderer _____________________________________
The following terms and conditions are deemed as accepted by us for participation in the bid:
1. We have understood and accept the general terms and conditions, technical specifications and bidding process & time line as per tender no. BPC / I&C / Naphtha / 02 / 2010.
2. We undertake to provide storage and allied facilities for receiving, storing and evacuation of Naphtha through our terminal at JNPT, Mumbai / Mundra Port (strike-out whichever is not applicable. In case of both ports no need of striking out) at the disposal of BPCL.
3. The award decision by BPCL would be final and binding on us.
4. We will not divulge either our bids or those of other Tenderers to any other external party.
5. We agree to non-disclosure of trade information regarding the purchase, identity of BPCL, bid process, bid documentation and bid details.
6. Our participation in the bid is with reference to Public tender given by BPCL; BPCL is not obliged to award the contract and will be at liberty to cancel the bid and initiate a fresh one, if necessary.
7. We are aware that the bids once made cannot be modified or withdrawn under any circumstances. We undertake and accept that our modifyi
