Post on 01-Aug-2021
Open Advertised Bidding for
Lease of Property
REQUEST FOR PROPOSAL
(RFP)
Liquefied Petroleum Gas Handling Terminal - source: internet
Lease of property to develop and
operate bulk liquid-petroleum-gas
(LPG) and/or liquid natural gas
(LNG or CNG) import, storage and
distribution facilities in the Port of
Walvis Bay North Port
V6 – Tender Issue Tender Number: Property-OAB-2021-02
Issued on: 7 June 2021
Invitation for Bids (IFB) Namibian Ports Authority (Namport), REQUEST FOR PROPOSAL (RFP)
IFB Title: LEASE OF PROPERTY TO DEVELOP AND OPERATE BULK
LIQUID-PETROLEUM-GAS (LPG) AND/OR LIQUID NATURAL GAS (LNG OR
CNG) IMPORT, STORAGE AND DISTRIBUTION FACILITIES IN THE PORT
OF WALVIS BAY NORTH PORT
Tender Number: Property-OAB-2021-02
1. Bids are hereby invited through Open Advertised Bidding (OAB) for the lease of
property to develop and operate bulk liquid-petroleum-gas (LPG) and/or liquid natural
gas (LNG OR CNG) import, storage and distribution facilities in the port of Walvis Bay
North Port.
2. REQUEST FOR PROPOSAL (RFP) DOCUMENTATION
Interested entities may obtain the RFP document from Namport website at the
following link as from Monday 7 June 2021: www.namport.com/property/rfp/581/
3. REGISTRATION OF BIDDERS
In order to take part in this bidding process, bidders must register as a bidder as soon as
they obtain the bid documents. A bidder will only receive official correspondence such
as notices etc. after that bidder has registered. Any bid submitted by a bidder that did
not register as a bidder will be rejected. To register, a bidder must complete the bidder
registration form contained in this bidding document and email it to the Manager
Property at the below mentioned contact details. Bidder registration is only open for
15 working days after the date of issue of the bidding documents as indicated on the
cover page, after which no more bidder registration forms will be accepted.
4. Eligibility and Qualifications requirements are as detailed in the Bidding
Document.
5. RFP SUBMISSION CLOSING DATE AND TIME
Closing date and time for RFP bids submission is Monday, 26 July 2021, Time: 12:00
PM noon, (Namibian time). RFP bids should be submitted by depositing it in the tender
box at Namport head office reception at No. 17, Rikumbi Kandanga Road, Walvis Bay.
Electronic submissions will not be accepted.
6. ENQUIRIES
All enquiries on this RFP must be directed in writing to the Property Manager, Ms.
Justina Evelinus @ email: j.evelinus@namport.com.na and copied to
elzevir@namport.com.na No verbal telephonic enquiries will be responded to. The last
day for clarification requests will be 12 July 2021.
BIDDER REGISTRATION FORM
(to be completed and sent back to Namport before the due date for bidder registration)
Namibian Ports Authority (Namport), REQUEST FOR PROPOSAL (RFP)
IFB Title: LEASE OF PROPERTY TO DEVELOP AND OPERATE BULK
LIQUID-PETROLEUM-GAS (LPG) AND/OR LIQUID NATURAL GAS (LNG OR
CNG) IMPORT, STORAGE AND DISTRIBUTION FACILITIES IN THE PORT
OF WALVIS BAY NORTH PORT
IFB Number: Property-OAB-2021-02
Name of bidding
entity/company or one
member of a bidding entity
Name and Surname of
contact person representing
the bidder
Email address for receiving
notices (provide two email
addresses if possible)
Telephone number
Postal address
Physical address
This duly completed form must be sent to the Manager Property, Ms. Justina Evelinus immediately
after obtaining the bid document and before the due date for bidder registration as indicated
in the IFB, at the following email address: j.evelinus@namport.com.na and copied to
elzevir@namport.com.na If, after emailing the bidder registration form, the bidder does not get an
email acknowledgement back from either one of the two email addresses listed above, then it means
the bidders email and registration form was not received. The onus is on the bidders to ensure that
their bidder registration forms are received by Namport. Hard copy forms will also be accepted, if
delivered to Namport head office reception at No. 17, Rikumbi Kandanga Road, Walvis Bay and
clearly marked for attention the Manager Property, Ms Justina Evelinus.
iv
Table of Contents
PART 1 – Bidding Procedures .......................................................................................... 1
Section 1 - Instructions to Bidders .................................................................................... 2
Section II – Bid Data Sheet (BDS) ................................................................................. 20 Section III - Evaluation and Qualification Criteria ......................................................... 23 Section IV - Bidding Forms .............................................................................................. 2
PART 2 – Landlord’s Requirements.............................................................................. 33
Section V - Landlord’s Requirements ............................................................................. 34
PART 3 – Specimen Lease Agreement ............................................................................. 1
Section VI. Lease Agreement .......................................................................................... 2
Section VII - Contract Forms .......................................................................................... 38
1-1
PART 1 – Bidding Procedures
1-2
Section 1 - Instructions to Bidders
Table of Clauses
A. General ................................................................................................................... 4
1. Scope of Bid .............................................................................................................4 2. Fraud and Corruption ...............................................................................................4
3. Eligible Bidders .......................................................................................................6
4. Eligible Materials, Equipment and Services ............................................................8
B. Contents of Bidding Document ............................................................................ 8
5. Sections of Bidding Document ................................................................................8 6. Clarification of Bidding Document, Site Visit, Pre-Bid Meeting ............................9 7. Amendment of Bidding Document ........................................................................10
C. Preparation of Bids ............................................................................................. 10
8. Cost of Bidding ......................................................................................................10
9. Language of Bid .....................................................................................................10
10. Documents Comprising the Bid .............................................................................10 11. Letter of Bid and Schedules ...................................................................................11
12. Alternative Bids .....................................................................................................11 13. Bid Prices ...............................................................................................................11 14. Currencies of Bid and Payment .............................................................................11
15. Documents Comprising the Technical Proposal ....................................................11 16. Documents Establishing the Qualifications of the Bidder .....................................12
17. Period of Validity of Bids ......................................................................................12 18. Bid Security ...........................................................................................................12
19. Format and Signing of Bid .....................................................................................13
D. Submission and Opening of Bids ....................................................................... 14
20. Sealing and Marking of Bids .................................................................................14 21. Deadline for Submission of Bids ...........................................................................14 22. Late Bids ................................................................................................................14 23. Withdrawal, Substitution, and Modification of Bids .............................................15 24. Bid Opening ...........................................................................................................15
E. Evaluation and Comparison of Bids ................................................................. 15
25. Confidentiality .......................................................................................................15 26. Clarification of Bids ...............................................................................................16
27. Deviations, Reservations, and Omissions ..............................................................16 28. Determination of Responsiveness ..........................................................................16 29. Nonconformities, Errors, and Omissions ...............................................................17 30. Evaluation of Bids..................................................................................................17
Section I - Instructions to Bidders 1-3
31. Comparison of Bids ...............................................................................................17 32. Qualification of the Bidder ....................................................................................17 33. Landlord’s Right to Accept Any Bid, and to Reject Any or All Bids ...................18
F. Award of Contract .............................................................................................. 18
34. Award Criteria .......................................................................................................18 35. Signing of Contract ................................................................................................18 36. Performance Security .............................................................................................18
1-4 Section I – Instructions to Bidders
Section I - Instructions to Bidders
A. General
1. Scope of Bid 1.1 The Landlord, as indicated in the BDS, issues this Bidding
Document for the procurement of the Tenant as specified in
Section V (Landlord’s Requirements) through Open or Restricted
Bidding (open for local and foreign bidders), as indicated in the
BDS. The name, identification, and number of contracts of this
bidding are provided in the BDS.
Throughout these Bidding Documents:
(a) the term “in writing” means communicated in written
form (e.g. by mail, e-mail) with proof of receipt;
(b) if the context so requires, “singular” means “plural” and
vice versa; and
(c) “day” means calendar day, unless otherwise specified.
(d) The terms “tenant”, “bidder”, “tenderer”, “operator”,
“terminal operator” in upper or lower case is used
interchangeably throughout the bidding document and
shall refer to the same entity.
(e) The terms “Landlord”, “Namport”, “Employer” in
upper or lower case is used interchangeably throughout
the bidding document and shall refer to the same entity.
2. Fraud and
Corruption
2.1 It is the policy of the Government of the Republic of Namibia to
require Public Entities, as well as bidders, suppliers, and
contractors and their agents (whether declared or not), personnel,
subcontractors, sub-consultants, service providers and suppliers,
observe the highest standard of ethics during the procurement
and execution of contracts. 1 In pursuance of this policy, the
Government of the Republic of Namibia:
(a) defines, for the purposes of this provision, the terms set forth
below as follows:
1 In this context, any action taken by a bidder, supplier, contractor, or any of its personnel, agents, sub-
consultants, sub-contractors, service providers, suppliers and/or their employees to influence the
procurement process or contract execution for undue advantage is improper.
Section I - Instructions to Bidders 1-5
(i) “corrupt practice” is the offering, giving, receiving or
soliciting, directly or indirectly, of anything of value to
influence improperly the actions of another party2;
(ii) “fraudulent practice” is any act or omission, including
a misrepresentation, that knowingly or recklessly
misleads, or attempts to mislead, a party to obtain a
financial or other benefit or to avoid an obligation; 3
(iii) “collusive practice” is an arrangement between two or
more parties4 designed to achieve an improper purpose,
including to influence improperly the actions of
another party;
(iv) “coercive practice” is impairing or harming, or
threatening to impair or harm, directly or indirectly, any
party5 or the property of the party to influence
improperly the actions of a party;
(v) “obstructive practice” is
(aa) deliberately destroying, falsifying, altering or
concealing of evidence material to the
investigation or making false statements to
investigators in order to materially impede the
Landlord’s investigation into allegations of a
corrupt, fraudulent, coercive or collusive practice;
and/or threatening, harassing or intimidating any
party to prevent it from disclosing its knowledge
of matters relevant to the investigation or from
pursuing the investigation, or
(bb) acts intended to materially impede the exercise of
the Landlord’s inspection and audit rights
provided for under sub-clause 4.2 below.
(b) will reject a proposal for award if it determines that the Bidder
recommended for award has, directly or through an agent,
engaged in corrupt, fraudulent, collusive, coercive or
obstructive practices in competing for the contract in
question; and
(c) will sanction a firm or an individual, at any time, in
accordance with prevailing legislations, including by publicly
declaring such firm or individual ineligible, for a stated
period of time: (i) to be awarded a public contract; and (ii) to
be a nominated sub-contractor, consultant, manufacturer or
supplier, or service provider of an otherwise eligible firm
being awarded a public contract.
2.2 In further pursuance of this policy, Bidders shall permit the
Landlord to inspect any accounts and records and other
1-6 Section I – Instructions to Bidders
documents relating to the Bid submission and contract
performance, and to have them audited by auditors appointed by
the Landlord.
2.3 The Landlord commits itself to take all measures necessary to
prevent fraud and corruption and ensures that none of its staff,
personally or through his/her close relatives or through a third
party, will in connection with the bid for, or the execution of a
contract, demand, take a promise for or accept, for him/herself or
third person, any material or immaterial benefit which he/she is
not legally entitled to. If the Landlord obtains information on the
conduct of any of its employees which is a criminal offence under
the relevant Anti-Corruption Laws of the Republic of Namibia or
if there be a substantive suspicion in this regard, it will inform the
relevant authority(ies) and in addition can initiate disciplinary
actions. Furthermore, such bid shall be rejected.
3. Eligible Bidders
3.1 A Bidder may be a natural person, private entity, or government-
owned entity—subject to ITB 3.5 — or any combination of them
in the form of a joint venture, under an existing agreement, or with
the intent to constitute a legally-enforceable joint venture. All
partners shall be jointly and severally liable for the execution of
the Contract in accordance with the Contract terms.
3.2 A Bidder, and all parties constituting the Bidder, shall have the
nationality of an eligible country. A Bidder shall be deemed to
have the nationality of a country if the Bidder is a citizen or is
constituted, or incorporated, and operates in conformity with the
provisions of the laws of that country. This criterion shall also
apply to the determination of the nationality of proposed
subcontractors or suppliers for any part of the Contract including
related services.
3.3 A Bidder shall not have a conflict of interest. All Bidders found
to have a conflict of interest shall be disqualified. A Bidder may
be considered to have a conflict of interest with one or more parties
in this bidding process, if :
(a) they have a controlling partner in common; or
2 “Another party” refers to a public official acting in relation to the procurement process or contract execution.
In this context, “public official” includes Employer’s staff and employees of other organizations taking or
reviewing procurement decisions. 3 “Party” refers to a public official; the terms “benefit” and “obligation” relate to the procurement process
or contract execution; and the “act or omission” is intended to influence the procurement process or contract
execution. 4 “Parties” refers to participants in the procurement process (including public officials) attempting to establish
bid prices at artificial, non-competitive levels. 5 “Party” refers to a participant in the procurement process or contract execution.
Section I - Instructions to Bidders 1-7
(b) they receive or have received any direct or indirect subsidy
from any of them; or
(c) they have the same legal representative for purposes of this
bid; or
(d) they have a relationship with each other, directly or through
common third parties, that puts them in a position to have
access to information about or influence on the Bid of
another Bidder, or influence the decisions of the Landlord
regarding this bidding process; or
(e) a Bidder participates in more than one bid in this bidding
process. Participation by a Bidder in more than one Bid will
result in the disqualification of all Bids in which the party is
involved. However, this does not limit the inclusion of the
same subcontractor in more than one bid; or
(f) a Bidder or any of its affiliates participated as a consultant in
the preparation of the design or technical specifications of the
contract that is the subject of the Bid; or
(g) a Bidder, or any of its affiliates has been hired (or is proposed
to be hired) by the Landlord as Consultant.
3.4 (a) A firm that is under a declaration of ineligibility by the
Government of Namibia in accordance with applicable laws
at the date of the deadline for bid submission and thereafter
shall be disqualified.
(b) Bids from contractors appearing on the ineligibility lists
of African Development Bank, Asian Development Bank,
European Bank for Reconstruction and Development, Inter-
American Development Bank Group and World Bank Group
shall be rejected.
Links for checking the ineligibility lists are available on the
PPU’s website: www.mof.gov.na/procurement-policy-unit
3.5 Government-owned enterprises in the Republic of Namibia shall
be eligible only if they can establish that they are legally and
financially autonomous and operate under commercial law, and
that they are not a dependent agency of the Government.
3.6 Bidders shall provide such evidence of their continued eligibility
satisfactory to the Landlord, as the Landlord shall reasonably
request.
3.7 In case a prequalification process has been conducted prior to the
bidding process, this bidding is open only to prequalified
Bidders.
1-8 Section I – Instructions to Bidders
3.8 Firms shall be excluded if by an act of compliance with a decision
of the United Nations Security Council taken under Chapter VII
of the Charter of the United Nations, the Republic of Namibia
prohibits any import of goods or contracting of works or services
from that country or any payments to persons or entities in that
country.
3.9 A bidder who, by itself or via one of its members, have not
registered as a bidder as described in the IFB and before the
deadline set in the IFB is not eligible to submit a bid.
4. Eligible
Materials,
Equipment and
Services
4.1 The materials, equipment and services to be supplied under the
Contract shall have their origin in eligible source countries as
defined in ITB 3.2 above and all expenditures under the Contract
will be limited to such materials, equipment, and services. At the
Landlord’s request, Bidders may be required to provide evidence
of the origin of materials, equipment and services.
4.2 For the purpose of ITB 4.1 above, “origin” means the place where
the materials and equipment are mined, grown, produced or
manufactured, and from which the services are provided.
Materials and equipment are produced when, through
manufacturing, processing, or substantial or major assembling of
components, a commercially recognized product results that
differs substantially in its basic characteristics or in purpose or
utility from its components.
B. Contents of Bidding Document
5. Sections of
Bidding
Document
5.1 The Bidding Document consist of Parts 1, 2, and 3, which include
all the Sections indicated below, and should be read in conjunction
with any Addenda issued in accordance with ITB 7.
PART 1 Bidding Procedures
Section I – Instructions to Bidders (ITB)
Section II – Bid Data Sheet (BDS)
Section III – Evaluation and Qualification Criteria
Section IV – Bidding Forms
PART 2 Requirements Section V – Landlord’s Requirements
PART 3 Lease Agreement
Section VI – Specimen of Lease Agreement
Section VII – Contract Forms
5.2 The Invitation for Bids issued by the Landlord is not part of the
Bidding Document.
Section I - Instructions to Bidders 1-9
5.3 The Landlord is not responsible for the completeness of the
Bidding Document and their Addenda, if they were not obtained
directly from the source stated by the Landlord in the Invitation
for Bids.
5.4 The Bidder is expected to examine all instructions, forms, terms,
and specifications in the Bidding Document. Failure to furnish all
information or documentation required by the Bidding Document
may result in the rejection of the bid.
6. Clarification of
Bidding
Document, Site
Visit, Pre-Bid
Meeting
6.1 A prospective Bidder requiring any clarification of the Bidding
Document shall contact the Landlord in writing at the Landlord’s
address indicated in the BDS or raise his inquiries during the pre-
bid meeting if provided for in accordance with ITB 6.4. The
Landlord will respond in writing to any request for clarification,
provided that such request is received prior to the deadline for
submission of bids, within a period given in the BDS. The
Landlord shall forward copies of its response to all Bidders who
have acquired the Bidding Document in accordance with ITB 5.3,
including a description of the inquiry but without identifying its
source. Should the Landlord deem it necessary to amend the
Bidding Document as a result of a request for clarification, it shall
do so following the procedure under ITB 7 and ITB 21.2.
6.2 The Bidder is encouraged to visit and examine the Leased Site(s)
and its surroundings and obtain for itself, on its own risk and
responsibility, all information that may be necessary for preparing
the bid and entering into a lease agreement. The costs of visiting
the Site shall be at the Bidder’s own expense.
6.3 The Bidder and any of its personnel or agents will be granted
permission by the Landlord to enter upon its premises and lands
for the purpose of such visit, but only upon the express condition
that the Bidder, its personnel, and agents will release and
indemnify the Landlord and its personnel and agents from and
against all liability in respect thereof, and will be responsible for
death or personal injury, loss of or damage to property, and any
other loss, damage, costs, and expenses incurred as a result of the
inspection.
6.4 The Bidder’s designated representative is invited to attend a pre-
bid meeting, if provided for in the BDS. The purpose of the
meeting will be to clarify issues and to answer questions on any
matter that may be raised at that stage.
6.5 The Bidder is requested, as far as possible, to submit any question
in writing, to reach the Landlord not later than one week before
the meeting.
6.6 Minutes of the pre-bid meeting, including the text of the questions
raised, without identifying the source, and the responses given,
together with any response prepared after the meeting, will be
1-10 Section I – Instructions to Bidders
transmitted promptly to all Bidders who have acquired the Bidding
Document in accordance with ITB 5.3. Any modification to the
Bidding Document that may become necessary as a result of the
pre-bid meeting shall be made by the Landlord exclusively
through the issue of an addendum pursuant to ITB 7 and not
through the minutes of the pre-bid meeting.
6.7 Non-attendance at the pre-bid meeting will not be a cause for
disqualification of a Bidder.
7. Amendment of
Bidding
Document
7.1 At any time prior to the deadline for submission of bids, the
Landlord may amend the Bidding Document by issuing addenda.
7.2 Any addendum issued shall be part of the Bidding Document and
shall be communicated in writing to all who have obtained the
Bidding Document from the Landlord in accordance with ITB 5.3.
7.3 To give prospective Bidders reasonable time in which to take an
addendum into account in preparing their bids, the Landlord may,
at its discretion, extend the deadline for the submission of bids,
pursuant to ITB 21.2.
C. Preparation of Bids
8. Cost of Bidding 8.1 The Bidder shall bear all costs associated with the preparation and
submission of its Bid, and the Landlord shall in no case be
responsible or liable for those costs, regardless of the conduct or
outcome of the bidding process.
9. Language of Bid 9.1 The Bid, as well as all correspondence and documents relating to
the bid exchanged by the Bidder and the Landlord, shall be written
in English. Supporting documents and printed literature that are
part of the Bid may be in another language provided they are
accompanied by an accurate translation in English in which case,
for purposes of interpretation of the Bid, such translation shall
govern.
10. Documents
Comprising the
Bid
10.1 The Bid shall comprise the following
documents. Bidders shall prepare and divide
their bid submissions up into these
sections/chapters in the number sequence in
which they are listed here, with clear
verbatim headings for each document
submission as per the following list:
(a) Letter of Bid;
Section I - Instructions to Bidders 1-11
(b) completed Schedules, in accordance with ITB 11 and 13, or
as stipulated in the BDS;
(c) Bid Security or Bid Securing Declaration, in accordance with
ITB 18;
(d) alternative bids, at Bidder’s option and if permissible, in
accordance with ITB 12;
(e) written confirmation authorizing the signatory of the Bid to
commit the Bidder, in accordance with ITB 19.2;
(f) documentary evidence in accordance with ITB 16
establishing the Bidder’s qualifications to perform the
contract;
(g) Technical Proposal in accordance with ITB 15;
(h) in the case of a bid submitted by a joint venture (JV), the JV
agreement, or letter of intent to enter into a JV including a
draft agreement, indicating at least the shareholding of each
partner and the parts of the Works to be executed by the
respective partners;
(i) All required documentary evidence listed in the bid
document.
11. Letter of Bid and
Schedules
11.1 The Letter of Bid, Schedules, and all documents listed under
Clause 10, shall be prepared using the relevant forms in Section
IV (Bidding Forms), if so provided. Where relevant forms are not
provided, bidders will design their own. The forms must be
completed without any alterations to the text, and no substitutes
shall be accepted. All blank spaces shall be filled in with the
information requested.
12. Alternative Bids 12.1 Unless otherwise indicated in the BDS, alternative bids shall not
be considered.
13. Bid Prices 13.1 The rates and prices quoted by the Bidder in the Letter of Bid and
in the Schedules shall conform to the requirements specified
below.
13.2 The Bidder shall submit a bid for the whole of the works described
in ITB 1.1 by filling in rates, quantities and prices for all items of
the Lease and/or Works, as identified in Section IV, Bidding
Forms and Schedule of Prices.
14. Currencies of
Bid and Payment
14.1 The currency of the bid shall be in Namibian Dollars only.
15. Documents
Comprising the
15.1 The Bidder shall furnish a Technical Proposal including a
statement of work methods, equipment, personnel, schedule and
any other information as stipulated in Section IV (Bidding Forms),
in sufficient detail to demonstrate the adequacy of the Bidders’
1-12 Section I – Instructions to Bidders
Technical
Proposal
proposal to meet the Landlord Requirements. A Technical
Proposal which lacks quality, detail and sufficient write-up and
illustrations will be rejected as nonresponsive.
16. Documents
Establishing the
Qualifications of
the Bidder
16.1 To establish its qualifications to perform the Contract in
accordance with Section III (Evaluation and Qualification
Criteria) the Bidder shall provide the information requested in the
corresponding information sheets included in Section IV (Bidding
Forms).
17. Period of
Validity of Bids
17.1 Bids shall remain valid for the period specified in the BDS after
the bid submission deadline date prescribed by the Landlord. A
bid valid for a shorter period shall be rejected by the Landlord as
nonresponsive.
17.2 In exceptional circumstances, prior to the expiration of the bid
validity period, the Landlord may request Bidders to extend the
period of validity of their bids. The request and the responses shall
be made in writing. If a bid security is requested in accordance
with ITB 18, it shall also be extended for a corresponding period.
A Bidder may refuse the request without forfeiting its bid security. A
Bidder granting the request shall not be required or permitted to
modify its bid.
18. Bid Security 18.1 Unless otherwise specified in the BDS, the Bidder shall either
furnish as part of its bid, in original form, a bid security or
subscribe to a Bid Securing Declaration in the Letter of Bid as
specified in the BDS. In the case of a bid security, the amount
shall be as specified in the BDS.
18.2 The Bid Securing Declaration shall be in the form of an
undertaking by the Bidder in the letter of Bid.
18.3 If a Bid Security is specified pursuant to ITB 18.1, the Bid Security
shall be in the form of an unconditional guarantee, issued by a
local bank or a reputable overseas bank.
The Bid Security shall be submitted either using the Bid Security
Form included in Section IV (Bidding Forms). The form must
include the complete name of the Bidder. The Bid Security shall
be valid for thirty days (30) beyond the original validity period
of the bid, or beyond any period of extension if requested under
ITB 17.2.
18.4 Any bid not accompanied by an enforceable and substantially
compliant Bid Security or not containing a subscription to a Bid
Securing Declaration in the Letter of Bid, if required, in
accordance with ITB 18.1, shall be rejected by the Landlord as
nonresponsive.
18.5 If a Bid Security is specified pursuant to ITB 18.1, the bid security
of unsuccessful Bidders shall be returned as promptly as possible
Section I - Instructions to Bidders 1-13
upon the successful Bidder’s furnishing of the performance
security pursuant.
18.6 If a Bid Security is specified pursuant to ITB 18.1, the bid security
of the successful Bidder shall be returned as promptly as possible
once the successful Bidder has signed the Contract and furnished
the required performance security.
18.7 The Bid Security may be forfeited or the Bid Securing Declaration
executed:
(a) if a Bidder withdraws its bid during the period of bid
validity specified by the Bidder on the Letter of Bid, except
as provided in ITB 17.2 or
(b) if the successful Bidder fails to:
(i) sign the Contract in accordance with ITB 35; or
(ii) furnish a performance security in accordance with ITB
36.
18.8 The Bid Security or the Bid Securing Declaration of a JV shall be
in the name of the JV that submits the bid. If the JV has not been
constituted into a legally-enforceable JV, at the time of bidding,
the Bid Security or the Bid Securing Declaration shall be in the
names of all future partners as named in the letter of intent
mentioned in ITB 3.1.
19. Format and
Signing of Bid
19.1 The Bidder shall prepare one original of the documents
comprising the bid as described in ITB 10 and clearly mark it
“ORIGINAL”. Alternative bids, if permitted in accordance with ITB
12, shall be clearly marked “ALTERNATIVE”. In addition, the
Bidder shall submit copies of the bid in the number specified in
the BDS, and clearly mark each of them “COPY.” In the event of
any discrepancy between the original and the copies, the original
shall prevail.
19.2 The original and all copies of the bid shall be typed or written in
indelible ink and shall be signed and initialed on every page by a
person duly authorized to sign on behalf of the Bidder as specified
in the BDS.
19.3 Any amendment such as interlineations, erasures, or overwriting
shall be valid only if they are signed or initialed by the person
signing the bid.
1-14 Section I – Instructions to Bidders
D. Submission and Opening of Bids
20. Sealing and
Marking of Bids
20.1 Bidders must submit their bids by hand. When so specified in the
BDS, bidders shall have the option of submitting their bids
electronically. Procedures for submission, sealing and marking are
as follows:
(a) Bidders submitting bids by hand shall enclose the original and
each copy of the Bid, including alternative bids, if permitted
in accordance with ITB 12, in separate sealed envelopes, duly
marking the envelopes as “ORIGINAL”, “ALTERNATIVE” and
“COPY.” These envelopes containing the original and the
copies shall then be enclosed in one single envelope. The rest
of the procedure shall be in accordance with ITB sub-Clauses
20.2 and 20.3.
(b) Bidders submitting bids electronically shall follow the
electronic bid submission procedures specified in the BDS.
20.2 The inner and outer envelopes shall:
(a) bear the name and address of the Bidder;
(b) be addressed to the Landlord as provided in the BDS
pursuant to ITB 20.1;
(c) bear the specific identification of this bidding process
indicated in accordance with ITB 1.1; and
(d) bear a warning not to open before the time and date for bid
opening.
20.3 If all envelopes are not sealed and marked as required, the
Landlord will assume no responsibility for the misplacement or
premature opening of the bid.
21. Deadline for
Submission of
Bids
21.1 Bids must be received by the Landlord at the address and no later
than the date and time indicated in the BDS.
21.2 The Landlord may, at its discretion, extend the deadline for the
submission of bids by amending the Bidding Document in
accordance with ITB 7, in which case all rights and obligations of
the Landlord and Bidders previously subject to the deadline shall
thereafter be subject to the deadline as extended.
22. Late Bids 22.1 The Landlord shall not consider any bid that arrives after the
deadline for submission of bids, in accordance with ITB 21. Any
bid received by the Landlord after the deadline for submission of
bids shall be declared late, rejected, and returned unopened to the
Bidder.
Section I - Instructions to Bidders 1-15
23. Withdrawal,
Substitution, and
Modification of
Bids
23.1 A Bidder may withdraw, substitute, or modify its bid after it has
been submitted by sending a written notice, duly signed by an
authorized representative, and shall include a copy of the
authorization in accordance with ITB 19.2, (except that
withdrawal notices do not require copies). The corresponding
substitution or modification of the bid must accompany the
respective written notice. All notices must be:
(a) prepared and submitted in accordance with ITB 19 and ITB 20
(except that withdrawal notices do not require copies), and in
addition, the respective envelopes shall be clearly marked
“WITHDRAWAL,” “SUBSTITUTION,” “MODIFICATION;” and
(b) received by the Landlord prior to the deadline prescribed for
submission of bids, in accordance with ITB 21.
23.2 Bids requested to be withdrawn in accordance with ITB 23.1 shall
be returned unopened to the Bidders.
23.3 No bid may be withdrawn, substituted, or modified in the interval
between the deadline for submission of bids and the expiration of
the period of bid validity specified by the Bidder on the Letter of
Bid or any extension thereof.
24. Bid Opening 24.1 The Landlord shall open the bids at the address, date and time
specified in the BDS in the presence of Bidders` designated
representatives who choose to attend. Any specific electronic bid
opening procedures required if electronic bidding is permitted in
accordance with ITB 20.1, shall be as specified in the BDS.
24.2 The Landlord shall prepare a record of the bid opening that shall
include, as a minimum: the name of the Bidder and whether there
is a withdrawal, substitution, or modification; The Bidders’
representatives who are present shall be requested to sign the
record. The omission of a Bidder’s signature on the record shall
not invalidate the contents and effect of the record. A copy of the
record shall be distributed to all Bidders.
E. Evaluation and Comparison of Bids
25. Confidentiality 25.1 Information relating to the examination, evaluation, comparison,
and post-qualification of bids and recommendation of contract
award, shall not be disclosed to Bidders or any other person not
officially concerned with such process until information on
Contract award is communicated to all Bidders.
25.2 Any attempt by a Bidder to influence the Landlord in the
evaluation of the bids or Contract award decisions may result in
the rejection of its bid.
25.3 Notwithstanding the above, from the time of bid opening to the
time of Contract award, if any Bidder wishes to contact the
1-16 Section I – Instructions to Bidders
Landlord on any matter related to the bidding process, it may do
so in writing.
26. Clarification of
Bids
26.1 To assist in the examination, evaluation, and comparison of the
bids, and qualification of the Bidders, the Landlord may, at its
discretion, ask any Bidder for a clarification of its bid. Any
clarification submitted by a Bidder that is not in response to a
request by the Landlord shall not be considered. The Landlord’s
request for clarification and the response shall be in writing. No
change in the prices or substance of the bid shall be sought,
offered, or permitted.
26.2 If a Bidder does not provide clarifications of its bid by the date
and time set in the Landlord’s request for clarification, its bid may
be rejected.
27. Deviations,
Reservations,
and Omissions
27.1 During the evaluation of bids, the following definitions apply:
(a) “Deviation” is a departure from the requirements specified in
the Bidding Document;
(b) “Reservation” is the setting of limiting conditions or
withholding from complete acceptance of the requirements
specified in the Bidding Document; and
(c) “Omission” is the failure to submit part or all of the
information or documentation required in the Bidding
Document.
28. Determination of
Responsiveness
28.1 The Landlord’s determination of a bid’s responsiveness is to be
based on the contents of the bid itself, as defined in ITB10.
28.2 A substantially responsive bid is one that meets the requirements
of the Bidding Document without material deviation, reservation,
or omission. A material deviation, reservation, or omission is one
that,
(a) if accepted, would:
(i) affect in any substantial way the scope, quality, or
performance of the Lease, Works or Operations
specified in the Contract; or
(ii) limit in any substantial way, inconsistent with the
Bidding Document, the Landlord’s rights or the
Bidder’s obligations under the proposed Contract; or
(b) if rectified, would unfairly affect the competitive position of
other Bidders presenting substantially responsive bids.
28.3 The Landlord shall examine the technical aspects of the bid
submitted in accordance with ITB 15, Technical Proposal, in
particular, to confirm that all requirements of Section V
Section I - Instructions to Bidders 1-17
(Landlord’s Requirements) have been met without any material
deviation, reservation or omission.
28.4 If a bid is not substantially responsive to the requirements of the
Bidding Document, it shall be rejected by the Landlord and may
not subsequently be made responsive by correction of the material
deviation, reservation, or omission.
29. Nonconformities,
Errors, and
Omissions
29.1 Provided that a bid is substantially responsive, the Landlord may
waive any non-material non-conformity in the bid.
29.2 Provided that a bid is substantially responsive, the Landlord may
request that the Bidder submit the necessary information or
documentation, within a reasonable period of time, to rectify
nonmaterial nonconformities in the bid related to documentation
requirements. Requesting information or documentation on such
nonconformities shall not be related to any aspect of the price of
the bid. Failure of the Bidder to comply with the request may result
in the rejection of its bid.
29.3 Provided that a bid is substantially responsive, the Landlord shall
rectify quantifiable nonmaterial nonconformities related to the Bid
Price. To this effect, the Bid Price may be adjusted, for comparison
purposes only, to reflect the price of a missing or non-conforming
item or component. The adjustment shall be made using the
methods indicated in Section III (Evaluation and Qualification
Criteria).
30. Evaluation of
Bids
30.1 The Landlord shall use the criteria and methodologies listed in this
Clause. No other evaluation criteria or methodologies shall be
permitted.
30.2 To evaluate a bid, the Landlord shall consider the following:
(a) the bid price as set out in the Schedule of Prices;
(b) adjustment for non-conformities in accordance with ITB 29.3;
(c) application of all the evaluation factors indicated in Section
III (Evaluation and Qualification Criteria);
31. Comparison of
Bids
31.1 The Landlord shall compare all substantially responsive bids in
accordance with ITB 30.2 to determine the highest evaluated bid.
32. Qualification of
the Bidder
32.1 The Landlord shall determine to its satisfaction whether the Bidder
that is selected as having submitted the highest evaluated and
substantially responsive bid meets the qualifying criteria specified
in Section III (Evaluation and Qualification Criteria).
1-18 Section I – Instructions to Bidders
32.2 The determination shall be based upon an examination of the
documentary evidence of the Bidder’s qualifications submitted by
the Bidder, pursuant to ITB 16.1.
32.3 An affirmative determination of qualification shall be a
prerequisite for award of the Contract to the Bidder. A negative
determination shall result in disqualification of the bid, in which
event the Landlord shall proceed to the next highest evaluated bid
to make a similar determination of that Bidder’s qualifications to
perform satisfactorily.
33. Landlord’s Right
to Accept Any
Bid, and to
Reject Any or
All Bids
33.1 The Landlord reserves the right to accept or reject any bid, and to
annul the bidding process and reject all bids at any time prior to
contract award, without thereby incurring any liability to Bidders.
In case of annulment, all bids submitted and specifically, bid
securities, shall be promptly returned to the Bidders.
F. Award of Contract
34. Award Criteria 34.1 Subject to ITB 33.1, the Landlord shall award the Contract to the
Bidder whose offer has been determined to be the highest
evaluated bid and is substantially responsive to the Bidding
Document, provided further that the Bidder is determined to be
qualified to perform the Contract satisfactorily. The Landlord
reserves the right to, at its sole discretion, make such award to
more than one bidder, but in that case strictly to the highest
ranking bidders starting with the first, second and third
highest ranking bidder in turn etc., where the total number of
such awards will depend on the total available land, the
business case and target market of each of these bidders
amongst other factors.
34.2 Until a formal contract is prepared and executed, the notification
of award shall constitute a binding Contract.
35. Signing of
Contract
35.1 Promptly upon notification, the Landlord shall send the successful
Bidder the Contract Lease Agreement.
35.2 Within thirty (30) days of receipt of the Contract Lease
Agreement, the successful Bidder shall sign, date, and return it to
the Landlord.
36. Performance
Security
36.1 Within thirty (30) days of the receipt of notification of award
from the Landlord, the successful Bidder shall furnish the
performance security in an amount as indicated in the BDS, using
for that purpose the Performance Security Form included in Section
VII (Contract Forms), or another form acceptable to the Landlord.
36.2 Failure of the successful Bidder to submit the above-mentioned
Performance Security or to sign the Contract Agreement shall
constitute sufficient grounds for the annulment of the award and
Section I - Instructions to Bidders 1-19
forfeiture of the bid security. In that event the Employer may award
the Contract to the next lowest evaluated Bidder whose offer is
substantially responsive and is determined by the Employer to be
qualified to perform the Contract satisfactorily.
1-20
Section II – Bid Data Sheet (BDS)
The following specific data for the works to be procured shall complement, supplement, or
amend the provisions in the Instructions to Bidders (ITB). Whenever there is a conflict,
the provisions herein shall prevail over those in ITB.
ITB 1.1 The Landlord is: the Namibian Ports Authority (Namport)
ITB 1.1 The name of the bidding process is:
LEASE OF PROPERTY TO DEVELOP AND OPERATE BULK
LIQUID-PETROLEUM-GAS (LPG) AND/OR LIQUID NATURAL
GAS (LNG OR CNG) IMPORT, STORAGE AND DISTRIBUTION
FACILITIES IN THE PORT OF WALVIS BAY NORTH PORT
ITB 1.1 Open Advertised Bidding Procedures are applicable, to any eligible local
or international bidder
B. Bidding Documents
ITB 6.1 For clarification purposes only, the Landlord’s address is:
Attention: Property Manager, Ms. Justina Evelinus @ email:
j.evelinus@namport.com.na and copy to elzevir@namport.com.na
Requests for clarification should be received by the Landlord as indicated
in the IFB.
ITB 6.4 A pre-bid meeting will not be held but bidders are encouraged to inspect
the site at their own convenience. The site is currently open and easily
accessible by the public. Bidders may request a Namport representative to
accompany them on an un-official site inspection. Any verbal discussions
with the Namport representative during such an un-official site inspection
will not be binding and will have no bearing on the tender process. Bidders
should submit a formal request for clarification should they have any queries
during or subsequent to the un-official site inspection.
C. Preparation of Bids
ITB 10.1 (b) The following additional schedules shall be submitted with the bid:
1) Namibian Ownership proof, substantiated with shareholding
certificates etc.
2) Previously Disadvantaged Namibian (PDN) Ownership proof. PDN
as defined in the Affirmative Action (Employment) Act 29 of 1998.
Substantiated with shareholding certificates etc.
3) Proposed maximum LPG storage to be created on the leased site, in
cubic meters, within the first 4 years.
1-21
4) Proposed minimum annual LPG volume throughput through the
facility, low, medium and high case scenarios. Projected from year 1
and through the full lease period. Clearly indicate how volumes will
ramp up, if that is the case.
5) Total initial investment amount within the first 4 years, inside the
port.
6) Conditional Offtake agreements from customers with clear
indication of volume offtake per customer per annum.
7) Letters of intent with logistics service providers.
8) Social Responsibility / community upliftment initiatives
implemented in first 5 years (excluding job creation).
9) Business Case, information required as a minimum should be:
a. the introduction and background of the project,
b. the expected business benefits,
c. market demand analysis/study,
d. return on investment,
e. the expected costs of the project,
f. financial viability,
g. a gap analysis and,
h. the expected business risks with risk mitigation plan.
10) Access to capital. A local bank or financial institution must confirm
through a letter that the bidder has access to funds/debt required to
cover the proposed investment in the first three years.
11) Milestone Deadlines as per the table in Section III (Completion
times, part of performance indicators)
ITB 12.1 Alternative bids shall not be permitted.
ITB 17.1 The bid validity period shall be: 180 days
ITB 18.1 The Bid security or bid securing declaration is not required.
ITB 19.1 In addition to the original bid submission, the number of copies required
are: one. Therefore one original and one copy must be submitted
ITB 19.2 1. This authorization shall consist of written confirmation and shall be
attached to the bid. It may include a delegation of power by resolution
of the Board of a company or from the CEO, himself holding power
from the Board or from a Director being a shareholder of a company or
through a Power of Attorney.
2. The name and position held by each person signing the authorization
must be typed or printed below the signature.
3. In the case of Bids submitted by an existing or intended JV an
undertaking signed by all parties (i) stating that all parties shall be
1-22 Section II – Bid Data Sheet
jointly and severally liable, if so required in accordance with ITB 5.1,
and (ii) nominating a Representative who shall have the authority to
conduct all business for and on behalf of any and all the parties of the
JV during the bidding process and, in the event the JV is awarded the
Contract, during contract execution.
4. The Power of Attorney or other written authorization to sign may be
for a determined period or limited to a specific purpose.
D. Submission and Opening of Bids
ITB 20.1 (b) Bidders shall not have the option of submitting their bids electronically.
ITB 20.2 &
21.1
For bid submission purposes only, the Landlord’s address is as indicated
in the IFB.
The deadline for bid submission is as indicated in the IFB.
ITB 24.1 The bid opening shall take place soon after the bid closing date and time, at
the following address:
Namport Head Office Executive Board Room, No. 17, Rikumbi
Kandanga Road, Walvis Bay
F. Award of Contract
ITB 36.1 The successful bidder will be required to submit a Performance
Security/bond in the form of a bank guarantee from a commercial bank in
Namibia in the exact form as indicated, for the total amount of NAD 2
million, and valid for four (4) years after signing of the lease agreement. A
surety bond from an insurance company will not be accepted.
The Landlord may draw on the Performance Guarantee for any lack in
performance on the part of the Tenant such as but not limited to:
1. Not meeting the proposed deadlines which the bidder proposed in
his bid for the various milestones;
2. Consistently not meeting the productivity or handling rates as
proposed by the bidder in his bid;
3. Not meeting the minimum annual throughput volumes as proposed
by the bidder in his bid.
4. Not meeting any other aspect regarding performance of the
successful bidder during the first four years of the lease agreement.
5. Not meeting the requirements for timely infrastructure and
equipment inspections and maintenance as specified.
6. Any safety related incidents that was proven to have occurred due
to negligence on the part of the tenant.
7. Any environmental pollution events that was proven to have
occurred due to negligence on the part of the tenant. This excludes
the environmental pollution penalty as charged by Namport as per
the tariff book for any pollution incidents.
1-23
Section III - Evaluation and Qualification Criteria
Table of Contents
1. Evaluation Criteria
1.1 Completeness of the Bid Submission
1.2 Adequacy of Technical Proposal
1.3 Milestone Deadlines
1.4 Score-able Evaluation Criteria
2 Qualification Criteria
2.1 Eligibility
2.2 Historical Contract Non-Performance
2.3 Financial Situation
2.4. Experience
2.5 Personnel
2.6 Equipment
2.7 Additional Qualification requirements for Namibian bidders only
1-24 Section III – Evaluation and Qualification Criteria
1. Evaluation Criteria
In addition to the criteria listed in ITB 30.2 (a) – (c) the following criteria
shall apply:
1.1 Completeness of the Bid Submission
The overall completeness of a bidders bid submission, the ease of reading and
the format (inclusion of overall table of contents, clear headings and physical
delineation of each section of the bid submission with file dividers etc.) will be
assessed.
For the Bidders convenience, the following extract from the Instructions to
Bidders (ITB 10, Documents Comprising the Bid) is re-emphasized here. The
bidders bid submission should contain all these documents as a minimum, and
should be divided in sections with verbatim headings, that deal with each of the
below sections in the order in which they are listed here:
a) Letter of Bid;
b) Completed Schedules, in accordance with ITB 11 and 13, or as
stipulated in the BDS;
c) Bid Security or Bid Securing Declaration, in accordance with ITB 18;
d) Alternative bids, at Bidder’s option and if permissible, in accordance
with ITB 12;
e) Written confirmation authorizing the signatory of the Bid to commit the
Bidder, in accordance with ITB 19.2;
f) Documentary evidence in accordance with ITB 16 establishing the
Bidder’s qualifications to perform the contract;
g) Technical Proposal in accordance with ITB 15;
h) In the case of a bid submitted by a joint venture (JV), the JV agreement,
or letter of intent to enter into a JV including a draft agreement,
indicating at least the shareholding of each partner and the parts of the
Works to be executed by the respective partners;
i) All required documentary evidence listed in the bid document.
1.2 Adequacy of Technical Proposal
Evaluation of the Bidder's Technical Proposal will include an assessment of the
Bidder's technical capacity to mobilize key equipment and personnel for the
contract consistent with its proposal regarding work methods, scheduling, and
material sourcing in sufficient detail and fully in accordance with the
requirements stipulated in Section V (Landlord's Requirements). Bidders must
therefore provide a clause by clause commentary on the Landlords
technical requirements, in the same order they are listed in section V.
1-25
1.3 Milestone Deadlines (part of performance indicators)
Milestone Description Landlord’s
proposed
deadlines
Bidders
proposed
deadlines
Commence EIA before 4 weeks or
earlier
Commence construction of LPG storage
terminal before
6 months or
earlier
Important Notes on the Milestone Deadlines in the above table:
1) All deadlines given are with relevance from date of signing of the lease
agreement.
2) The successful bidder will be penalized if these deadlines are not met during
the lease period, through the drawing/calling on the operators’ Performance
Bond, unless the operator can demonstrate that the deadline was not met due
to an event that was completely out of his/her control.
1-26 Section III – Evaluation and Qualification Criteria
1.4 Score-able Evaluation Criteria
No Description of Criteria Maximum
score
Bidder
score
1 Namibian Ownership
Max score is awarded to 51% Namibian
ownership or highest offered below 51%
20
2 Previously Disadvantaged Namibian (PDN)
Ownership (PDN is as defined in the Affirmative
Action (Employment) Act 29 of 1998.)
Max score awarded to 30% PDN ownership or
highest offered below 30%
20
3 Proposed maximum LPG storage to be created on
the leased site, in cubic meters, within the first 4
years
10
4 Proposed minimum LPG volume throughput
through the facility in the first 4 years (indicate
throughput breakdown per year from year 1 to
year 4)
30
5 Total initial investment amount within the first 4
years, inside the port 10
6 Conditional Offtake agreements from customers
with clear indication of volume offtake per
customer per annum
20
7 Letters of intent with logistics service providers 5
8 Social Responsibility / community upliftment
initiatives implemented in first 5 years (excluding
job creation)
5
9 Technical proposal 30
10 Time proposed to start of Construction 10
11 Business Case, information required as a
minimum should be:
a) the introduction and background of the
project,
b) the expected business benefits,
c) market demand analysis/study,
d) return on investment,
e) the expected costs of the project,
f) financial viability,
g) a gap analysis and the
h) expected business risks with risk
mitigation plan.
20
12 Access to capital. A local bank or financial
institution must confirm through a letter that the
bidder has access to funds/debt required to cover
the proposed investment in the first three years.
20
Total 200
1-27
Important notes applicable to the score-able evaluation criteria listed in 1.4:
1) For criterion no 1 to 6, the bidders scores will be calculated by using the bidder with
the highest performance in a specific criterion as equivalent to the maximum points
available for that criterion and the rest of the bidders will then be scored
proportionally by using the following formula:
𝑃𝑜𝑖𝑛𝑡𝑠 = (𝑏𝑖𝑑𝑑𝑒𝑟𝑠 𝑝𝑒𝑟𝑓𝑜𝑟𝑚𝑎𝑛𝑐𝑒
max 𝑝𝑒𝑟𝑓𝑜𝑟𝑚𝑎𝑛𝑐𝑒 𝑎𝑚𝑜𝑛𝑔𝑠𝑡 𝑎𝑙𝑙 𝑏𝑖𝑑𝑑𝑒𝑟𝑠) 𝑚𝑎𝑥 𝑠𝑐𝑜𝑟𝑒 𝑎𝑣𝑎𝑖𝑙𝑎𝑏𝑙𝑒
2) For criterion no. 10, the bidders scores will be calculated by using the bidder with
the lowest time period offered in a specific criterion as equivalent to the maximum
points available for that criterion and the rest of the bidders will thus be scored
proportionally by using the following formula:
𝑃𝑜𝑖𝑛𝑡𝑠 = (1 −𝑇𝑖𝑚𝑒 𝑝𝑒𝑟𝑖𝑜𝑑 𝑜𝑓𝑓𝑒𝑟𝑒𝑑 − 𝐿𝑜𝑤𝑒𝑠𝑡 𝑡𝑖𝑚𝑒 𝑝𝑒𝑟𝑖𝑜𝑑 𝑜𝑓𝑓𝑒𝑟𝑒𝑑
𝐿𝑜𝑤𝑒𝑠𝑡 𝑡𝑖𝑚𝑒 𝑝𝑒𝑟𝑖𝑜𝑑 𝑜𝑓𝑓𝑒𝑟𝑒𝑑) 𝑚𝑎𝑥 𝑠𝑐𝑜𝑟𝑒 𝑎𝑣𝑎𝑖𝑙𝑎𝑏𝑙𝑒
3) In order to be considered responsive in terms of these score-able criteria, bidders
must obtain a minimum total score of 150 points in this section. Only those
bidders who achieve this minimum score will be considered responsive to these
criteria listed.
4) If in the opinion of the Landlord a bidder achieved the minimum overall score but
have achieved very low points in one or more of the above individual criteria,
excluding items 1 and 2, then that bidder may also be found nonresponsive.
1-28 Section III - Evaluation and Qualification Criteria
2. Qualification Criteria
Factor 2.1 Eligibility
Sub-Factor
Criteria
Documentation
Required Requirement
Bidder
Single Entity Joint Venture, Consortium or Association
All partners
combined
Each
partner
At least one
partner
2.1.1 Nationality Nationality in accordance
with ITB 3.2.
Must meet
requirement
Existing or
intended JV
must meet
requirement
Must meet
requirement
N / A Form ELI –1.1 and
1.2, with attachments
2.1.2 Conflict of
Interest
No- conflicts of interests as
described in ITB 3.3.
Must meet
requirement
Existing or
intended JV
must meet
requirement
Must meet
requirement
N / A Letter of Bid
2.1.3 Bank
Ineligibility
Not having been declared
ineligible by the Public Entity
as described in ITB 3.4.
Must meet
requirement
Existing JV
must meet
requirement
Must meet
requirement
N / A Letter of Bid
2.1.4 Government
Owned Entity
Compliance with conditions
of ITB 3.5
Must meet
requirement
Must meet
requirement
Must meet
requirement N / A
Form ELI –1.1 and
1.2, with attachments
2.1.5 Ineligibility
based on a United
Nations resolution or
Namibian Law
Not having been excluded as
a result of the laws of
Republic of Namibia or
official regulations, or by an
act of compliance with UN
Security Council resolution,
in accordance with ITB 3.8
Must meet
requirement
Existing JV
must meet
requirement
Must meet
requirement N / A
Letter of Bid
Section III - Evaluation and Qualification Criteria 1-29
Factor 2.2 Historical Contract Non-Performance
Sub-Factor
Criteria
Documentation
Required Requirement
Bidder
Single Entity
Joint Venture, Consortium or Association
All partners
combined
Each
partner
At least one
partner
2.2.1 History of non-
performing contracts
Non-performance of a
contract did not occur within
the last five (5) years prior to
the deadline for application
submission, based on all
information on fully settled
disputes or litigation. A fully
settled dispute or litigation is
one that has been resolved in
accordance with the Dispute
Resolution Mechanism
under the respective
contract, and where all
appeal instances available to
the bidder have been
exhausted.
Must meet
requirement
by itself or as
partner to
past or
existing JV
N / A
Must meet
requirement
by itself or
as partner to
past or
existing JV
N / A
Form CON - 2
2.2.2 Pending
Litigation
All pending litigation shall in
total not represent more than
thirty percent (30%) of the
Bidder’s net worth and shall
be treated as resolved against
the Bidder.
Must meet
requirement
by itself or as
partner to
past or
existing JV
N / A
Must meet
requirement
by itself or as
partner to
past or
existing JV
N / A
Form CON – 2
1-30 Section III - Evaluation and Qualification Criteria
Factor 2.3 Financial Situation
Sub-Factor
Criteria
Documentation
Required Requirement
Bidder
Single Entity
Joint Venture, Consortium or Association
All partners
combined
Each
partner
At least one
partner
2.3.1 Historical
Financial
Performance
Submission of audited
balance sheets or if not
required by the law of the
bidder’s country, other
financial statements
acceptable to the Landlord,
for the last five [5] years to
demonstrate the current
soundness of the bidders
financial position and its
prospective long term
profitability.
_____________
Must meet
requirement N / A
Must meet
requirement N / A
Form FIN – 3.1 with
attachments
2.3.2. Average
Annual Turnover
Minimum average annual
turnover of NAD 20 million,
calculated as total certified
payments received for
contracts in progress or
completed, within the last
three (3) years
Must meet
requirement
Must meet
requirement
Must meet at
least
ten percent
(10%) of the
requirement
Must meet
at least
Fifty percent
(50%) of the
requirement
Form FIN –3.2
Section III - Evaluation and Qualification Criteria 1-31
Factor 2.4 Experience
Sub-Factor
Criteria
Documentation
Required Requirement
Bidder
Single Entity
Joint Venture, Consortium or
Association
All partners
combined
Each
partner
At least one
partner 2.4.1 General
Experience
Experience in the
petroleum/fuel industry for at
least three (3) years in the last
10 years prior to the
applications submission
deadline, and with activity in at
least six (6) months in each
year.
Must meet
requirement
N / A
Must meet
requirement
N / A Form EXP-4.1
2.4.2 Specific
Experience
(a) Participation as an operator,
management contractor, in the
management and running of a
LPG storage and distribution
terminal of a scale/size in terms
of storage volume of at least
50% of that of the proposed
facility in this RFP, for at least
3 years in the last 10 years prior
to the applications submission
deadline, and with activity in at
least six (6) months in each
year.
Must meet
requirement
Must meet
requirement N / A
Must meet
requirement
Form EXP 2.4.2(a)
2-1
2.5 Personnel
The Bidder must demonstrate that it will have the personnel for the key positions
that meet the following requirements:
No. Position
Total Work
Experience
(years)
In Similar Works
Experience
(years)
1 LPG Terminal Manager (based
on site fulltime)
(Must have experience in
managing and running an LPG
storage and distribution
terminal of similar size)
15 10
2 Occupational Health and Safety
Officer (based on site fulltime)
10 5
4 Environmental Management
Officer (based on site fulltime)
10 5
6 Environmental Impact
Assessment consultant
15 10
7 Process Engineering consultant
and LPG Terminal design
consultant (must be an engineer
that have designed similar sized
LPG terminals before)
20 10
8 Civil and Structural engineering
consultant
15 10
9 Electrical Engineering consultant 10 5
10 Independent risk assessment
consultant
20 10
The Bidder shall provide details of the proposed personnel and their experience
records in the relevant Forms included in Section IV, Bidding Forms.
2.6 Equipment
The Bidder must demonstrate that it will have access to the key Operator’s
equipment listed hereafter:
No. Equipment Type and Characteristics Minimum Number required
1 To be identified by the bidder and listed in
detail
Adequate numbers, to be
indicated by the bidder
The Bidder shall provide further details of proposed items of equipment using the
relevant Form in Section IV.
1-2 Section III - Evaluation and Qualification Criteria
2.7 Additional Qualification requirements for Namibian bidders only:
The following documentary evidence is required from Namibian Bidders;
1) A valid company Registration Certificate;
2) An original valid good Standing Tax Certificate;
3) An original valid good Standing Social Security Certificate;
4) A valid certified copy of Affirmative Action Compliance Certificate,
proof from Employment Equity Commissioner that bidder is not a
relevant Employer, or exemption issued in terms of Section 42 of the
Affirmative Action Act, 1998;
5) An undertaking on the part of the Bidder that the salaries and wages payable
to its personnel in respect of this proposal are compliant to the relevant laws,
Remuneration Order, and Award, where applicable.
6) Witten undertaking in terms of section 138 of the Labour Act, 2015 and
section 50(2)(D) of the Public Procurement Act, 2015 (the form in this bid
document found after the letter of bid).
Section III - Evaluation and Qualification Criteria 1-3
Section IV - Bidding Forms
1-4 Section III - Evaluation and Qualification Criteria
Letter of Bid
The Bidder must prepare the Letter of Bid on stationery with its letterhead clearly
showing the Bidder’s complete name and address.
Note: All italicized text is for use in preparing this form and shall be deleted from
the final products.
Date: _______________
To:
We, the undersigned, declare that:
(a) We have examined and have no reservations to the Bidding Documents, including
Addenda issued in accordance with Instructions to Bidders (ITB) Clause 7;
(b) We offer to lease, develop and operate the property in conformity with the
Bidding Documents and to effect the following Works:
(c) We offer to pay the rental rates, base tariff and make an annual payment as a
percentage of our audited turnover as per the Schedule of Prices, all subject to
annual escalation in accordance with NCPI where indicated on the Schedule of
Prices. Our estimated total bid price calculated per year which could become
payable should our expected volume throughput be reached is:
NAD _________________________ excl. VAT per annum
(d) Our bid shall be valid for a period of _______ days from the date fixed for the bid
submission deadline in accordance with the Bidding Documents, and it shall remain
binding upon us and may be accepted at any time before the expiration of that
period;
(e) I/We hereby confirm that I/we have read and understood the content of the Bid
Securing Declaration attached herewith and subscribe fully to the terms and
conditions contained therein, if required. I/We understand that non-compliance to
the conditions mentioned may lead to disqualification.
Section III - Evaluation and Qualification Criteria 1-5
(f) Our firm, including any subcontractors or suppliers for any part of the Contract,
have nationalities from eligible countries;
(g) We, including any subcontractors or suppliers for any part of the contract, do not
have any conflict of interest in accordance with ITB 3.3;
(h) We are not participating, as a Bidder or as a subcontractor, in more than one bid in
this bidding process in accordance with ITB 3.3, other than alternative offers
submitted in accordance with ITB 12;
(i) Our firm, its affiliates or subsidiaries, including any Subcontractors or Suppliers for
any part of the contract, has not been declared ineligible under the laws of Namibia
or official regulations or by an act of compliance with a decision of the United
Nations Security Council;
(j) We are not a government owned entity / We are a government owned entity but
meet the requirements of ITB 3.5;6[select appropriate]
(k) We have paid, or will pay the following commissions, gratuities, or fees with
respect to the bidding process or execution of the Contract: 7
Name of Recipient Address Reason Amount
(l) We understand that this bid, together with your written acceptance thereof included
in your notification of award, shall constitute a binding contract between us, until a
formal contract is prepared and executed;
(m) We understand that you are not bound to accept the highest evaluated bid or any
other bid that you may receive; and
(n) If awarded the contract, the person named below shall act as Operator’s
Representative:
Name:
In the capacity of:
Signed:
Duly authorized to
sign the Bid for and
on behalf of:
Date:
Seal of Company
6 Use one of the two options as appropriate. 7 If none has been paid or is to be paid, indicate “none”.
1-6 Section III - Evaluation and Qualification Criteria
Republic Of Namibia
Ministry of Labour, Industrial Relations and Employment Creation
Witten undertaking in terms of section 138 of the Labour Act, 2015 and
section 50(2)(D) of the Public Procurement Act, 2015
1. BIDDERS DETAILS
Company Trade Name:………………………………………………………
Registration Number :...……………………………………………………...
Vat Number: …………………………………………………………………
Industry/Sector: ………………………………………………………………
Place of Business:……………………………………………………………..
Physical Address:……………………………………………………………..
Tell No.:………………………………………………………………………
Fax No.:……………………………………………………………………….
Email Address:………………………………………………………………..
Postal Address:………………………………………………………………..
Full name of Owner/Accounting Officer:……………..……………………...
…………………………………………………………………………….......
Email Address:………………………………………………………………..
Section III - Evaluation and Qualification Criteria 1-7
2. PROCUREMENT DETAILS
Procurement Reference No.:……………………………………………………..
Procurement Description: ………………………………………………………..
……………………………………………………………………………………
……………………………………………………………………………………
Anticipated Contract Duration: ………………………………………………….
Location where work will be done, good/services will be delivered: …………..
……………………………………………………………………………………
3. UNDERTAKING
I ……………………………………………[insert full name], owner/representative
of ………………………………………………………….[insert full name of company]
hereby undertake in writing that my company will at all relevant times comply fully
with the relevant provisions of the Labour Act and the Terms and Conditions of
Collective Agreements as applicable.
I am fully aware that failure to abide to such shall lead to the action as stipulated in
section 138 of the labour Act, 2007, which include but not limited to the
cancellation of the contract/licence/grant/permit or concession.
Signature: ……………………………..
Date: …………………………………..
Seal:…………………………………….
Please take note:
1. A labour inspector may conduct unannounced inspections to assess the level of compliance
2. This undertaking must be displayed at the workplace where it will be readily accessible and visible by the employees rendering service(s) in relations to the goods and services being procured under this contract.
1-8 Section III - Evaluation and Qualification Criteria
RETURNABLE SCHEDULES:
1. Schedules of Prices
Item
no.
Description Unit Quantity Rate Amount
1 Proposed annual rental rate
(to be invoiced monthly)
m2
2 Proposed annul Base Tariff
for LPG imports
(to be invoiced monthly)
m3
3 Percentage of annual audited
turnover to be paid to
Namport as a royalty fee
(to be invoiced annually)
%
TOTAL EXCL. VAT (Amount taken to Letter of Bid)
Important Notes regarding the Schedule of Prices: 1) All amounts are VAT exclusive.
2) All relevant port tariffs will apply as per the Namport tariff book, unless specifically listed
in the table above, in which case the rate quoted here will apply. The Namport Tariff book
can be downloaded at:
https://www.namport.com.na/files/documents/674_Namport%20Tariff%20Booklet%202
021.pdf
3) Items 1 and 2 quoted above will be adjusted upwards per annum with NCPI for the duration
of the lease agreement.
4) For item no. 1, the total square meters to be leased must be inserted by the bidder. This size
of land requested must be substantiated by way of a conceptual design drawing which
shows how the entire site will be utilized over time.
5) For item no. 2, the quantity to be inserted here is the highest annual throughput volume that
will be experienced during any of the first 4 years and based on the bidder’s low case
volume throughput scenario. As defined in the Namport Tariff book, The Base Tariff on
cargo i.e. all commodities, articles, things or containers is levied where such cargo is
handled within port jurisdiction. On petroleum products such as LPG and LNG base tariff
is charged per cubic meter.
6) For item no. 3, the quantity to be inserted here is the bidders’ highest annual turnover that
will be experienced during any of the first 4 years and based on the bidder’s low case
volume throughput scenario.
7) Namport reserves the right to reject proposals where the rate for land rental and/or base
tariff is too low.
Section III - Evaluation and Qualification Criteria 1-9
ADDITIONAL SCHEDULES
2) Namibian Ownership proof, substantiated with shareholding certificates etc.
In case the bidder is a single legal entity:
Total Namibian citizens % shareholding in the biding entity
(attach shareholding certificates and proof of citizenship for
all shareholders) %
In case the bidder is a joint venture or consortium etc.:
List of Companies or legal
entities that make up the
Joint Venture or
Consortium
Total
shareholding of
each company in
the Joint Venture
or Consortium
(attach the Joint
venture
agreement as
proof)
(insert the
percentage as a
fraction, example
30% = 0.3)
A
Total Namibian
citizens
shareholding in
the company
(attach the
shareholding
certificates and
proof of
citizenship)
Insert the
percentage as a
whole number,
example 50%)
B
A x B
1 % %
2 % %
3 % %
4 % %
5 % %
This column must
add up to 1 TOTAL %
1-10 Section III - Evaluation and Qualification Criteria
3) Previously Disadvantaged Namibians (PDN) Ownership proof. PDN as defined in
the Affirmative Action (Employment) Act 29 of 1998. Substantiated with
shareholding certificates etc.
In case the bidder is a single legal entity:
Total PDNs % shareholding in the biding entity (attach
shareholding certificates and proof of PDN status) %
In case the bidder is a joint venture or consortium etc.:
List of Companies or legal
entities that make up the
Joint Venture or
Consortium
Total PDN
shareholding of
each company in
the Joint Venture
or Consortium
(attach the Joint
venture
agreement as
proof)
(insert the
percentage as a
fraction, example
30% = 0.3)
A
Total PDNs with
shareholding in
the company
(attach the
shareholding
certificates and
proof of PDN
status)
Insert the
percentage as a
whole number,
example 50%)
B
A x B
1 % %
2 % %
3 % %
4 % %
5 % %
This column must
add up to 1 TOTAL %
Section III - Evaluation and Qualification Criteria 1-11
4) Proposed maximum LPG storage to be created on the leased site, in cubic meters,
within the first 4 years.
Total LPG Storage created in year 1 m3
Total LPG Storage created in year 2 m3
Total LPG Storage created in year 3 m3
Total LPG Storage created in year 4 m3
TOTAL m3
Provide exact details of the proposed storage tanks in the TECHNICAL
PROPOSAL
5) Proposed minimum annual LPG volume throughput through the facility, low,
medium and high case scenarios, projected from year 1 and through the full lease
period. Clearly indicate how volumes will ramp up, if that is the case.
Total LPG
throughput volume
in year 1 to 25:
Low Case
Scenario
Medium Case
Scenario
High Case
Scenario
Year 1 m3 m3 m3
Year 2 m3 m3 m3
Year 3 m3 m3 m3
Year 4 m3 m3 m3
Year 5 m3 m3 m3
Year 6 m3 m3 m3
Year 7 m3 m3 m3
Year 8 m3 m3 m3
Year 9 m3 m3 m3
1-12 Section III - Evaluation and Qualification Criteria
Year 10 m3 m3 m3
Year 11 m3 m3 m3
Year 12 m3 m3 m3
Year 13 m3 m3 m3
Year 14 m3 m3 m3
Year 15 m3 m3 m3
Year 16 m3 m3 m3
Year 17 m3 m3 m3
Year 18 m3 m3 m3
Year 19 m3 m3 m3
Year 20 m3 m3 m3
Year 21 m3 m3 m3
Year 22 m3 m3 m3
Year 23 m3 m3 m3
Year 24 m3 m3 m3
Year 25 m3 m3 m3
Provide a full write up to substantiate the volumes indicated for all three scenarios.
Section III - Evaluation and Qualification Criteria 1-13
6) Total initial investment amount within the first 4 years, inside the port.
Total investment amount in Year 1
Provide full breakdown:
1.
2.
3.
NAD
Total investment amount in Year 2
Provide full breakdown:
1.
2.
3.
NAD
Total investment amount in Year 3
Provide full breakdown:
1.
2.
3.
NAD
Total investment amount in Year 4
Provide full breakdown:
1.
2.
3.
NAD
TOTAL FOR THE 4 YEARS NAD
All VAT exclusive
Indicate exchange rates used, if applicable.
1-14 Section III - Evaluation and Qualification Criteria
7) Conditional Offtake agreements from customers with clear indication of volume
offtake per customer per annum.
No Issuer of Offtake agreement
(mine, trading house etc.)
Volume offtake
commitment
given
Conditions
Yes/no
1 m3
2 m3
3 m3
4 m3
5 m3
Total Offtake Volume Commitment m3
Attach actual letters of conditional offtake volume commitments from each
source.
Section III - Evaluation and Qualification Criteria 1-15
8) Letters of intent with logistics service providers.
No Logistics Service Providers Describe type of Service or
supplies
1
2
3
4
5
6
7
Attach letters of intent from all service providers
9) Social Responsibility / community upliftment initiatives implemented in first 5
years (excluding job creation).
Describe in detail:
1-16 Section III - Evaluation and Qualification Criteria
10) Business Case, information required as a minimum should be (attach the detailed
business plan using bidders own format):
a. the introduction and background of the project,
b. the expected business benefits,
c. market demand analysis/study,
d. return on investment,
e. the expected costs of the project,
f. financial viability,
g. a gap analysis and the
h. expected business risks with risk mitigation plan.
11) Access to capital. A local bank or financial institution must confirm through a
letter that the bidder has access to funds/debt required to cover the proposed
investment in the first three years.
Attach letters
12) Milestone Deadlines as per the table in Section III (Completion times, part of
performance indicators)
Milestone Description Landlord’s
proposed
deadlines
Bidders
proposed
deadlines
Commence EIA before 4 weeks or
earlier
Commence construction of LPG storage
terminal before
6 months or
earlier
All deadlines given are with relevance from date of signing of the lease
agreement.
The successful bidder will be penalized if these deadlines are not met during the
lease period, through the drawing/calling on the operators’ Performance Bond,
unless the operator can demonstrate that the deadline was not met due to an
event that was completely out of his/her control.
Section III - Evaluation and Qualification Criteria 1-17
Technical Proposal
Bidders are required to submit a detailed write up with heading “TECHNICAL
PROPOSAL” for each of the below sections in order to demonstrate their technical
proposal. This write up should be supplemented with diagrams, flow charts,
drawings, illustrations, pictures of equipment, etc.
1) Personnel, List a complete personnel structure of the new proposed terminal, with a brief job
description of each position. Attach CV’s of key personnel that can demonstrate know how and
experience. This includes permanent, contracted, temporary personnel as well as personnel
from consultants.
2) Plant and Equipment. Show exactly what plant and equipment will be used in the entire logistics
chain.
3) Site Organization/organogram
4) Process flow diagram
5) Operations Plan with Method Statements
6) Productivity indicators such as (a) minimum flow rate for ship offloading, (b) minimum flow
loading rate for road tankers and (c) amount of truck traffic the storage terminal will generate
per day, over time.
7) Detailed description of ship to truck LPG unloading method, with a complete breakdown of the
number of trucks that will enter and leave the port per day, if relevant.
8) Describe in detail the which option is chosen for the source of LPG.
9) Maximum time the ship must stay alongside the berth during one call.
10) Procurement and Mobilization Schedule of major plant and equipment
11) Conceptual Design Drawings to an adequate level of detail
12) Fire Fighting design philosophy
13) Costing of Works
14) Construction Schedule
15) High level risk assessment of the operations, with mitigation plan
16) High level Occupational Health and Safety policy
17) High Level Environmental Management policy
18) As part of the Technical Proposal, Bidders must provide a clause by clause commentary
on the Landlords technical requirements/specifications, in the same order they are listed
in section V.
1-18 Section III - Evaluation and Qualification Criteria
Forms for Personnel
Form PER – 1: Proposed Personnel
Bidders should provide the names of suitably qualified personnel to meet the specified
requirements for each of the positions listed in Section III (Evaluation and Qualification
Criteria). The data on their experience should be supplied using the Form below for each
candidate.
1. Title of position
Name
2. Title of position
Name
3. Title of position
Name
4. Title of position
Name
5. Title of position
Name
6. Title of position
Name
etc. Title of position
Name
Section III - Evaluation and Qualification Criteria 1-19
Form PER – 2: Resume of Proposed Personnel
The Bidder shall provide all the information requested below. Fields with asterisk (*) shall
be used for evaluation.
Position*
Personnel
information
Name *
Date of birth
Professional qualifications
Present
employment
Name of Employer
Address of Employer
Telephone
Contact (manager / personnel
officer)
Fax
Job title
Years with present Employer
Summarize professional experience in reverse chronological order. Indicate particular
technical and managerial experience relevant to the project.
From* To* Company, Project , Position, and Relevant Technical and Management
Experience*
1-20 Section III - Evaluation and Qualification Criteria
Forms for Equipment
The Bidder shall provide adequate information to demonstrate clearly that it has the capability
to meet the requirements for the key equipment listed in Section III (Evaluation and
Qualification Criteria). A separate Form shall be prepared for each item of equipment listed,
or for alternative equipment proposed by the Bidder. The Bidder shall provide all the
information requested below, to the extent possible. Fields with asterisk (*) shall be used
for evaluation.
Type of Equipment*
Equipment
Information
Name of manufacturer
Model and power rating
Capacity*
Year of manufacture*
Current
Status
Current location
Details of current commitments
Source Indicate source of the equipment
Owned Rented Leased Specially manufactured
The following information shall be provided only for equipment not owned by the Bidder.
Owner Name of owner
Address of owner
Telephone
Contact name and title
Fax
Agreements Details of rental / lease / manufacture agreements specific to the project
Section III - Evaluation and Qualification Criteria 1-21
Bidder’s Qualification
To establish its qualifications to perform the contract in accordance with Section III
(Evaluation and Qualification Criteria) the Bidder shall provide the information requested
in the corresponding Information Sheets included hereunder
1-22 Section III - Evaluation and Qualification Criteria
Form ELI 1.1
Bidder Information Sheet
Date: ______________________
Bid Reference No.: ________________
1. Bidder’s Legal Name
2. In case of JV, legal name of each party:
3. Bidder’s actual or intended Country of Registration:
4. Bidder’s Year of Registration:
5. Bidder’s Legal Address in Country of Registration:
6. Bidder’s Authorized Representative Information
Name:
Address:
Telephone/Fax numbers:
Email Address:
7. Attached are copies of original documents of:
Articles of Incorporation or Registration of firm named in 1, above, in accordance with
ITB Sub-Clauses 3.1 and 3.2.
In case of JV, letter of intent to form JV including a draft agreement, or JV agreement, in
accordance with ITB Sub-Clauses 3.1
In case of government owned entity from the Landlord’s country, documents establishing
legal and financial autonomy and compliance with the principles of commercial law, in
accordance with ITB Sub-Clause 3.5.
Section III - Evaluation and Qualification Criteria 1-23
Form ELI 1.2
Party to JV Information Sheet
Date: ______________________
Bid Reference No.: ___________________
1. Bidder’s Legal Name:
2. JV’s Party legal name:
3. JV’s Party Country of Registration:
4. JV’s Party Year of Registration:
5. JV’s Party Legal Address in Country of Registration:
6. JV’s Party Authorized Representative Information
Name:
Address:
Telephone/Fax numbers:
Email Address:
7. Attached are copies of original documents of:
Articles of Incorporation or Registration of firm named in 1, above, in accordance
with ITB Sub-Clauses 3.1 and 3.2.
In case of government owned entity from Namibia, documents establishing legal and
financial autonomy and compliance with the principles of commercial law, in accordance
with ITB Sub-Clause 3.5.
1-24 Section III - Evaluation and Qualification Criteria
Form CON – 2
Historical Contract Non-Performance
Bidder’s Legal Name: _______________________ Date: _____________________
JV Partner Legal Name: _______________________ ___________________
Bid Reference No.: __________________
Non-Performing Contracts in accordance with (Evaluation and Qualification Criteria)
Contract non-performance did not occur during the stipulated period, in accordance with
Sub-Factor 2.2.1 of Section III (Evaluation and Qualification Criteria)
Contract non-performance during the stipulated period, in accordance with Sub-Factor
2.2.1 of Section III (Evaluation and Qualification Criteria).
Year Outcome as
Percent of
Total Assets
Contract Identification
Total Contract
Amount (current
value, NAD
equivalent)
Contract Identification:
Name of Client:
Address of Client:
Matter in dispute:
Pending Litigation, in accordance with Section III (Evaluation and Qualification Criteria)
No pending litigation in accordance with Sub-Factor 2.2.2 of Section III(Evaluation and
Qualification Criteria)
Pending litigation in accordance with Sub-Factor 2.2.2 of Section III(Evaluation and
Qualification Criteria), as indicated below
Year Outcome as
Percent of
Total Assets
Contract Identification
Total Contract
Amount (current
value, NAD
equivalent)
Contract Identification:
Name of Client:
Address of Client:
Matter in dispute:
Contract Identification:
Name of Client:
Address of Client:
Matter in dispute:
Section III - Evaluation and Qualification Criteria 1-25
Form CCC
Current Commitments
Bidders and each partner to a JV should provide information on their current commitments
on all contracts that have been awarded, or for which a letter of intent or acceptance has been
received, or for contracts approaching completion, but for which an unqualified, full
completion certificate has yet to be issued.
Name and
location of LPG
or Petroleum
terminal (indicate
type)
Landlord/Client/
Port Authority
contact
address/tel/Email
Estimated
concession/lease
expiry date
Average monthly
throughput volumes in
last twelve months
(volume per month)
1.
2.
3.
4.
5.
6
1-26 Section III - Evaluation and Qualification Criteria
Financial Situation
Form FIN – 3.1
Historical Financial Performance
Bidder’s Legal Name: _______________________ Date: _____________________
JV Partner Legal Name: _______________________ Bid Reference No.:
__________________
To be completed by the Bidder and, if JV, by each partner
Financial
information in
NAD
equivalent
Historic information for previous ______ (__) years
(N$ equivalent in millions)
Year 1 Year 2 Year 3 Year … Year n Avg. Avg.
Ratio
Information from Balance Sheet
Total Assets
(TA)
Total
Liabilities
(TL)
Net Worth
(NW)
Current
Assets (CA)
Current
Liabilities
(CL)
Information from Income Statement
Total
Revenue (TR)
Profits Before
Taxes (PBT)
Section III - Evaluation and Qualification Criteria 1-27
Attached are copies of financial statements (balance sheets, including all related notes,
and income statements) for the years required above complying with the following
conditions:
Must reflect the financial situation of the Bidder or partner to a JV, and not sister or
parent companies
Historic financial statements must be audited by a certified accountant
Historic financial statements must be complete, including all notes to the financial
statements
Historic financial statements must correspond to accounting periods already
completed and audited (no statements for partial periods shall be requested or
accepted)
1-28 Section III - Evaluation and Qualification Criteria
Form FIN – 3.2
Average Annual Turnover
Bidder’s Legal Name: ___________________________ Date:
_____________________
JV Partner Legal Name: ____________________________ Bid Reference No.:
______________
Page _______ of _______ pages
Annual turnover data (construction only)
Year Amount and Currency NAD equivalent
*Average
Annual
Turnover
*Average annual turnover calculated as total certified payments received for work in
progress or completed over the number of years specified in Section III (Evaluation and
Qualification Criteria), Sub-Factor 2.3.2, divided by that same number of years.
Section III - Evaluation and Qualification Criteria 1-29
Form FIN – 3.3
Financial Resources
Specify proposed sources of financing, such as liquid assets, unencumbered real assets, lines
of credit, and other financial means, net of current commitments, available to meet the total
construction cash flow demands of the subject contract or contracts as indicated in Section
III (Evaluation and Qualification Criteria)
Source of financing Amount in NAD
1.
2.
3.
4.
5.
6.
1-30 Section III - Evaluation and Qualification Criteria
Experience
General Experience
Bidder’s Legal Name: ____________________________ Date: ________________
JV Partner Legal Name: ____________________________
Starting
Month /
Year
Ending
Month /
Year
Years*
Contract Identification
Role of
Bidder
Contract name:
Brief Description of the Works performed by the
Bidder:
Name of Landlord/Client:
Address:
Contract name:
Brief Description of the Works performed by the
Bidder:
Name of Landlord/Client:
Address:
Contract name:
Brief Description of the Works performed by the
Bidder:
Name of Landlord/Client:
Address:
Contract name:
Brief Description of the Works performed by the
Bidder:
Name of Landlord/Client:
Address:
Contract name:
Brief Description of the Works performed by the
Bidder:
Name of Landlord/Client:
Address:
Contract name:
Brief Description of the Works performed by the
Bidder:
Name of Landlord/Client:
Address:
*List calendar year for years with contracts with at least nine (6) months activity per year starting with the
earliest year
Section III - Evaluation and Qualification Criteria 1-31
Form EXP – 2.4.2(a)
Specific Experience
Bidder’s Legal Name: ___________________________ Date:___________________
JV Partner Legal Name: _________________________
Similar Contract Number: ___ [insert
specific number] of ___[insert total
number of contracts required.
Information
Contract Identification
Award date
Completion date
Role in Contract (indicate if role was
different then the three roles listed here)
Operator
Management
Contractor
Subcontractor
Total contract amount and average annual
throughput volumes if applicable
NAD
If partner in a JV or subcontractor,
specify participation of total contract
amount
%
NAD
Landlord’s/Client’s Name:
Address:
Telephone/fax number:
E-mail:
1-32 Section III - Evaluation and Qualification Criteria
Form EXP – 2.4.2(a) (cont.)
Specific Experience (cont.)
Bidder’s Legal Name: ___________________________ Date: ___________________
JV Partner Legal Name: _________________________
Similar Contract No. __[insert specific
number] of ___[insert total number of
contracts] required
Information
Description of the similarity in
accordance with Sub-Factor 2.4.2a) of
Section III (Evaluation and Qualification
Criteria):
Name of Facility
Location
Bidders Exact Role
Amount
Physical size (Storage volume)
Complexity
Methods/Technology
Loading and Unloading rates
Total volume throughput per annum
Section III - Evaluation and Qualification Criteria 1-33
PART 2 – Landlord’s Requirements
2-34
Section V - Landlord’s Requirements
Table of Contents
Specifications ................................................................................................................. 2-35
Drawings ........................................................................................................................ 2-45
Supplementary Information ........................................................................................ 2-58
Figure 1: Sea Chart snippet showing the Port of Walvis Bay
Section V – Landlord’s Requirements 2-35
Specifications
The terms “tenant”, “bidder”, “tenderer”, “operator”, “terminal operator”,
“contractor” in upper or lower case is used interchangeably throughout the bidding
document and shall refer to the same entity.
The terms “Landlord”, “Namport”, “Employer” in upper or lower case is used
interchangeably throughout the bidding document and shall refer to the same entity.
Figure 2 – Random picture of LPG bullet Storage Tanks, source: internet
1. INTRODUCTION/ BACKGROUND
The Namibian Ports Authority (Namport) received several enquiries over the last 10 or
more years from private entities who wish to setup LPG and LNG import, storage and
distribution facilities in the Port of Walvis Bay on port land, and increasingly so over the
last 5 years. It is clear that there exists a definite market-demand to import and land LPG
and LNG into Walvis Bay by ship, for distribution and consumption in Namibia and/or
further distribution to other countries in Southern Africa. This RFP is issued in response to
those enquiries. A large portion of land has been made available at the Port of Walvis Bay
Section V – Landlord’s Requirements 2-36
North Port (82 hectares minimum), on which Namport will allow liquid and gas storage
and distribution facilities such as LPG and LNG terminals to be developed and operated.
In the specifications that follow, only LPG is dealt with. However the RFP is equally
open for LNG or even CNG (compressed natural gas) proposals. Where the technical
requirements in these specifications are generic in nature then they shall apply to
LPG, LNG and CNG, and where not then they will only apply to LPG.
The Landlord reserves the right to, at its sole discretion, award this RFP to more than
one bidder, but in that case strictly to the highest ranking bidders starting with the
first, second and third highest ranking bidder in turn etc., where the total number of
such awards will depend on the total available land, the business case and target
market of each of these bidders amongst other factors.
Figure 3 – Sketch plan showing available land for LPG terminals (liquids and gases)
Section V – Landlord’s Requirements 2-37
In compliance with an independent risk assessment study which Namport undertook
(Kantey and Templer (Pty) Ltd - 25/11/2016 – Quantitative Risk Assessment for Land
Planning Related to Proposed Bulk Liquid Storage at the Port of Walvis Bay North Port),
as well as dictated by the prevailing wind direction, LPG and other more flammable liquids
and gasses may only be housed/accommodated on the north, north-eastern edge of the 82
hectare bulk plot shown in figure 3. This is so as to maintain minimum safety distances
from the residential areas on the port perimeter. The bulk plot will be subdivided only once
the Landlord have awarded this RFP. There is thus no limitation of the amount of land
within the 82 hectares that a bidder may bid on, as long as that bidder can show that all the
land will indeed be utilized.
Figure 4 – Zoning of Bulk Plot for different classes of liquid and gas storage facilities
Section V – Landlord’s Requirements 2-38
Section V – Landlord’s Requirements 2-39
2. SCOPE OF THE LPG TERMINAL OPERATOR
The LPG terminal operator will be given the following scope:
1) ONSHORE LPG TERMINAL: To develop, operate and maintain a bulk LPG
onshore storage and distribution facility on the earmarked land at the North Port.
This onshore terminal or depot may include but not be limited to the following
infrastructure components, all developed, operated and maintained by the
tenant/operator or his duly appointed service provider:
a. LPG storage tanks and distribution piping works;
b. Bottling carrousels;
c. Pump station;
d. Returned bottles refurbishment warehouse;
e. Firefighting installation including automated fire detection and suppression
system.
f. Intrusion detection and CCTV surveillance system with control room.
g. Road tanker loading facilities;
h. Rail tanker loading facilities;
i. Office buildings;
j. Roads and pavements;
k. Electrical supply and distribution including lighting (obtain electricity
directly from Erongo RED);
l. Water supply and distribution (obtain potable water directly from the Walvis
Bay municipality);
m. Mess and Ablution facilities, Sewer networks with septic tanks. Connection
to the municipal sewer network is not possible;
n. Security perimeter fencing and gate(s);
o. Effluent water treatment facilities;
Section V – Landlord’s Requirements 2-40
Figure 5: Port of Walvis Bay South Port, berths 1 to 11
Section V – Landlord’s Requirements 2-41
Figure 6: Port of Walvis Bay North Port, berths 100, 101
Section V – Landlord’s Requirements 2-42
3. SOURCE AND METHOD OF LPG IMPORTS
Bidders must, as part of their bid, indicate where their LPG will be sourced from. The
options available to bidders are as follows:
3.1. SOUTH PORT SHIP TO TRUCK OPERATIONS
LPG may be sourced by arranging that an LPG carrier call at an existing suitable Namport
berth in the South Port (berths 1 to 11), offload the LPG directly into trucks and then haul
the trucks to the storage and distribution terminal at the North Port. Whilst LPG ship to
truck offloading operations have not yet occurred in Port of Walvis Bay to date, Namport
is aware that such operations are being carried out safely in other ports and as such will be
open to receive proposals from bidders who wish to conduct such ship to truck operations
in the existing berths at the South Port. In such a case the bidder should submit detailed
information regarding this operation and how any risks can be mitigated. Bidders opting to
make use of this option must note that berths 1 to 11 have fixed seawater firefighting
installation systems only and that additional firefighting infrastructure will need to be
installed at the bidders cost, if such an operation is found to be feasible in all aspects. Also,
all berths in the South Port are multipurpose common user berths and as such no fixed
infrastructure that will pose as a major obstruction or a hindrance to other port operations
may be installed on a berth. Any required LPG offloading infrastructure and/or equipment
should thus be designed in such a way that it can be removed and stored away from the
berth once the ship has departed. The berth chosen for this operation will depend on many
factors, some of which are:
Health, safety and environmental risks to the immediate surrounding area;
Clear distance from the water’s edge to the closest buildings;
Firefighting installation required;
Water depth required;
Required berth utilization;
Compatibility with other operations occurring at that berth or at adjacent berths;
Imposed vertical loading restrictions on a berth;
For a ship to truck operation in the South Port the terminal operator/bidder will be in charge
of the LPG offloading operation with his/her specialist qualified and experienced service
providers.
Section V – Landlord’s Requirements 2-43
3.2. DEVELOPMENT OF A DEDICATED LPG BERTH AT THE NORTH PORT
The terminal operator may opt to develop a new suitable dedicated private LPG import
berth(s) in the North Port. Figure 7 shows the North Port master plan. A new dedicated
LPG berth may be developed at the location marked by keynote 24, if the required
independent risk assessments does not indicate any fatal flaws.
Bidders who wish to choose this option should present it in their technical proposal in detail,
complete with concept design and costing for the new berth, access trestle and pipeline. An
additional water area lease will also become applicable, which shall be the subject of
negotiations with the Landlord post award stage.
Figure 7: Possible location of a new dedicated LPG berth (keynote 24)
Section V – Landlord’s Requirements 2-44
3.3.USE OF THE MME/NAMCOR BERTH 100 AT THE NORTH PORT
Potential tenants should take note that the existing two new tanker berths built as part of
the National Oil Storage Facilities in the North Port are only for use by the Ministry of
Mines and Energy (MME) and/or Namcor for import of Namibia’s bulk fuel supplies.
These two berths are currently not designed and built to accommodate LPG imports. Should
the tenant wants to import his/her LPG via one of the two new berths, berth 100 being
preferred (berth 101 can only accommodate ships of between 45,000 to 60,000DWT
whereas berth 100 can accommodate 10,000 to 60,000DWT), then note the following:
MME should be approached to give approval for the use of the new berths/jetties
and for installation of any LPG handling infrastructure on the jetties.
Should adequate volume throughput demand be evident, then as an option, MME,
Namcor or Namport MAY OPT TO BUILD common user LPG offloading
equipment on the jetty and a common user LPG pipeline that runs from the jetty to
a suitable location immediately onshore where the pipeline will terminate into a
manifold. Private entities may then connect into such a manifold with their own
pipeline(s). In such a case, in addition to the Namport tariffs such as base tariff etc.,
the tenant will be charged a pipeline levy for the use of the pipeline. Namport
reserves the right to also develop and operate, on a common user basis, a single
pipeline of adequate size on its port land that will run from the onshore
common user manifold to the edge of the tenant(s) leased site and charge a levy
for the use this section of pipeline.
The bidder should refer all enquiries related to this option directly to Executive
Director at the MME.
3.4.SOURCING OF LPG BY ROAD AND/OR RAIL
Potential tenants that want to source their LPG from neighboring countries by road and/or
rail and develop LPG storage facilities at the North Port to store and distribute this LPG
from, are welcome to do so and to indicate this in their proposals.
4. NAMPORT’S INVOLVEMENT
Namport will remain the landlord/port authority only and will not take any part in the
ownership or management of the new LPG storage and distribution terminal(s) during the
lease term. Where possible, Namport may offer its services to the operator at tariff book
rates and on a best effort basis, such as but not limited to:
Section V – Landlord’s Requirements 2-45
1) As indicated above, Namport reserves the right to develop and operate, on a
common user basis, the pipeline that will run from the MME/Namcor manifold to
the edge of the tenants leased site and charge a levy for the use of its pipeline.
2) Equipment hire such as but not limited to Mobile Cranes, Forklifts, Reach stackers
etc. Where Namport equipment is hired it will be hired with Namport operators.
The use of Namport services such as equipment hire or marine services for that
matter will not in any way release the Operator of his minimum productivity
requirements if applicable. Namport services are thus offered on a best effort basis,
where available.
3) As per Port Regulations, marine services are the sole mandate of the Landlord.
5. MILESTONE DEADLINIES TO BE MET
Refer to Section III - Evaluation and Qualification Criteria, Item 1.3.
6. PROPERTY LEASE TERM
The preferred property lease term should be indicated by bidders, but such may not be more
than 25 years. Note that after the lease expires the ownership of all fixed infrastructure will
resort to Namport by default, however Namport may opt to only keep some, none or all of
the fixed infrastructure depending on its discretion. As such tenants must allow for the
demolition and approved disposal of the fixed infrastructure at the end of the lease period,
if required by Namport, at the tenants cost.
7. SERVICES AND UTILITIES
The land on offer is unserviced and unimproved and shall be leased as is. The Landlord
have completed master plan studies for providing the North port with electricity, water,
sewer, road and rail access. These bulk services will however only be installed when
sufficient cargo volume throughput commitments are made to recover the cost of
installation of such services. For now the prospective tenants should obtain water and
electricity directly from the Municipality of Walvis Bay and Erongo RED respectively. For
this purpose Namport will allow these two utilities to make use of the North Port service
corridors, at a fee, to install such services to the tenants’ site. The following services will
be handled as indicated:
1) Water supply – directly from the Walvis Bay Municipality;
2) Electricity supply – directly from Erongo RED;
3) Sewer – install a septic tank;
Section V – Landlord’s Requirements 2-46
4) Roads – Namport will install a gravel access road to the tenants perimeter of the
tenants site;
5) Railways – Namport to install once sufficient cargo volume throughput
commitments are received for the North port, estimated to be within 10 to 15 years
from now. When such occurs, the tenant may construct a provide rail siding into the
leased site from the main line if required.
6) Sand fill - This bulk plot is low lying and as such will require sand filling to an
appropriate level as prescribed by Namport, the cost of which will be borne by the
tenants. Sand may be taken free of charge from the adjacent north port area for this
purpose, as pointed out by Namport.
8. PORT REGULATIONS
All port regulations will apply to the operator/tenant unless specifically amended by written
agreement with the Landlord.
9. BERTH ALLOCATION AND SCHEDULING
Berth allocation and scheduling in the Port of Walvis Bay for all berths except the private
berths in the fishing harbor and the naval base, will occur as normal and is carried out by
the Port Captain on a first come first served basis. Forward planning with regards to
scheduling and booking of berthing windows is possible with prior arrangements between
the operator and port captain.
10. DAMAGE TO EXISTING INFRASTRUCTURE
Any damage caused to the Landlord’s property such as but not limited to infrastructure,
either knowingly or unknowingly, will be repaired or replaced at the operator’s cost to the
satisfaction of the Landlord. The Landlord reserves the right to effect any required repairs
and recover the cost from the operator with interest.
11. TERMINAL OPERATOR’S REPLACEMENT, REPAIR AND
MAINTENANCE OBLIGATIONS
The Terminal Operator shall be responsible for maintaining the Terminal Infrastructure,
Private Siding and Equipment and shall at its own cost undertake all maintenance and make
all repairs, renewals and replacements necessary to maintain the Terminal and for the
efficient operation of the Terminal, as follows:
Section V – Landlord’s Requirements 2-47
a. The Terminal Infrastructure including the surface of the quay or jetty, shall be
maintained and kept in good order and condition, in accordance with Good
Industry Practice and the international standards for a terminal comparable to
this proposed Terminal and finally in accordance with the Port Engineer’s
specifications if any. The Terminal Operator shall be responsible for repairs,
renewals and replacement of the Terminal Infrastructure necessary for the
efficient operation of the Terminal.
b. The Private Railway Siding, if any, shall be maintained and if necessary
repaired in order to ensure that it is in a good and safe operating condition in
accordance with Transnamib standards. The Terminal Operator shall ensure that
the shunting yards, marshalling yards, tracks and other infrastructure in the
Private Siding are sufficient for the safe, effective and efficient handling of
traffic, where applicable.
c. The Terminal Operator shall provide additional equipment or replace equipment
in order to ensure the efficient operation of the Terminal in accordance with
Good Industry Practice and the international standards for a terminal
comparable to this Terminal.
2) The Terminal Operator shall conduct annual inspections of the Terminal Infrastructure
and Equipment and must prepare annual reports on those inspections, which reports
must be submitted to the Landlord at least 2 (two) Months prior to the start of each of
the Terminal Operator’s Financial Years. These reports are to be signed off/certified by
professional engineers with relevant qualifications and experience in that line of work.
3) The Terminal Operator shall provide the Landlord with an annual maintenance
programme for the Terminal Infrastructure and a replacement programme for the
Equipment, at least 2 (two) Months prior to the start of each of the Terminal Operator’s
Financial Years.
12. ROADWAYS, SURFACES AND ACCESS TO THE TERMINAL
1) The Terminal Operator shall, at its own cost, construct or maintain in good order and
condition such roadways and surfaces as may be required within the Terminal for the
provision of the services and the performance of the activities contemplated. The
roadways shall be constructed and maintained at a standard complying with the
permissible axle loads for the type and volume of traffic which will use the roads, and
Section V – Landlord’s Requirements 2-48
otherwise at such standard as is stipulated by the Landlord and communicated to the
Terminal Operator in writing.
2) Where the Terminal Operator generates traffic of such a nature that the traffic can be
proven by the Landlord to cause extraordinary wear and tear or damage to existing
roads and pavements outside of the leased site but still inside the port, then the Terminal
Operator will be required to contribute to the maintenance or repair of such roads and
pavements.
3) The Terminal Operator shall ensure that all Vehicles entering and exiting the port and
the Terminal shall be organized to minimize traffic congestion, the parking of Vehicles
and any queuing outside the Terminal.
4) The Landlord’s duly authorized agents, employees and contractors shall have the right
of access to the Terminal for purposes of performing the Landlord’s functions, provided
that the Landlord ensures that its agents, employees and contractors comply with all
reasonable safety and security stipulations of the Terminal Operator whilst in the
Terminal.
5) All other persons, Vehicles and equipment shall have access to the Terminal and may
use the roadways and the surfaces in the Terminal in the manner reasonably determined
by the Terminal Operator in order to conduct normal legal business related to the
operation of the Terminal, provided that in the use of such roadways such persons,
Vehicles and equipment shall not unnecessarily interfere with or impede the activities
of the Terminal Operator and shall comply with all the safety and security stipulations
of the Terminal Operator.
6) The Terminal Operator may not impose any fee for admission to the Terminal.
13. LABOUR AND PERSONNEL BASED OBLIGATIONS
1) The Terminal Operator shall comply with all relevant provisions of the Namibian labor
Law.
2) The Terminal Operator shall at all times employ or engage sufficient and suitably
qualified and competent personnel to enable it to efficiently provide the services
envisaged.
3) The Terminal Operator shall implement all measures as are required by Law and/or as
may be reasonably necessary to ensure the safety of its employees or sub-contractors,
and shall ensure that all such persons make use of the necessary personal protective
clothing and equipment whilst in the terminal.
Section V – Landlord’s Requirements 2-49
4) The Terminal Operator accepts full responsibility for the training of staff and shall
ensure that all its employees and sub-contractors are properly trained for the work they
are undertaking, and are familiar with safety and security requirements that apply to the
Terminal.
5) The Landlord may require the Terminal Operator to remove any employee or sub-
contractor of the Terminal Operator from the Terminal or to prevent such a person from
entering the Terminal, if such an employee or sub-contractor engages in any conduct
which might threaten public health, or the safety or security of ports.
14. ENVIRONMENTAL PROTECTION
The Terminal Operator will have to conduct an environmental impact assessment study
(EIA) and environmental management plan (EMP) and submit this to the Ministry of
Environment and Tourism and obtain an Environmental Clearance Certificate for both
construction and the operation of the terminal, including LPG ship offloading operations
etc., before any construction works or operations may commence.
1) The EIA shall as a minimum:
a) include a systematic identification and evaluation of any potential impacts of any
current or proposed activity on the Environment, including bio-physical, biological
social, cultural, economic, aesthetic and technological aspects, to the extent that
those aspects are relevant to the activity;
b) be conducted by an independent environmental assessment practitioner which
possess the required qualifications and experience, all acceptable to the Landlord.
c) form part of the Terminal Operator’s environmental management plan (EMP) and
inform the Terminal Operator’s environmental management system (EMS); and
d) comply with any other reasonable requirements stipulated for such an assessment
by the Landlord.
2) An EMP and EMS shall be developed and implemented by the Terminal Operator for
the duration of this Lease. The EIA, EMP and the EMS shall be binding upon the
Terminal Operator.
3) The Landlord shall have the right at all times to conduct audits of the Terminal
Operator’s compliance with the EIA, EMP and EMS. If, in the reasonable opinion of
the Landlord, there is any non-compliance, inefficiency or inadequacy, the Landlord
Section V – Landlord’s Requirements 2-50
may require the Terminal Operator to rectify such non-compliance, inefficiency or
inadequacy, without delay, to the reasonable satisfaction of the Landlord.
4) Without limiting the obligations of the Terminal Operator as specified in this Lease or
imposed by Law, the Terminal Operator shall comply with:
a. all the requirements of the Landlord, Ministry of Environment and Tourism
(MET), Ministry of Agriculture, Water and Forestry (MAWF), the Walvis Bay
Municipality and the Ministry of Works and Transport, Directorate of Maritime
Affairs (DMA) in relation to the Environment;
b. the Landlord’s requirements for the regular removal of waste, including waste
originating from the cleaning or loading of Vehicles or wagons;
c. all the conditions in environmental permits, licenses, certificates,
authorizations, orders, approvals and exemptions from Authorities in respect of
the Terminal; and
d. all applicable statutory requirements relating to the Environment, including the
Water Resources Management Act 11 of 2013, the Environmental Management
Act 7 of 2007, and any other environmental legislation enacted or promulgated
before or after the signing of the lease agreement date.
5) The Terminal Operator shall, on request by the Landlord and within a reasonable period
of such request, provide the Landlord with copies of:
a. all environmental permissions obtained regarding its business activities and the
services it provides at the Terminal, and, where the permissions are renewable,
in each instance a copy of the new or updated permission; and
b. any measurements undertaken of emissions, effluent, stormwater quality and
material safety data sheets for hazardous substances, which it is obliged to
submit to a Competent Authority/Ministry.
6) Without limiting the obligations of the Terminal Operator as specified in this Lease or
imposed by Law, the Terminal Operator may not by any means cause significant
pollution or degradation of the Environment and the Terminal Operator shall:
a. provide the Landlord within a reasonable period with copies of any notices and
directives issued by a Competent Authority to the Terminal Operator to take
steps to address pollution or negative impacts on the Environment;
b. provide the Landlord with copies of any report, including an emergency report,
submitted by the Terminal Operator to a Competent Authority regarding
pollution or negative impacts on the Environment;
Section V – Landlord’s Requirements 2-51
c. take all reasonable measures as envisaged by applicable environmental and
water Laws and conventions, to investigate, assess and evaluate the impact of
its activities on the Environment of the Terminal and on the water resources on
or below the Terminal;
d. in the event that the Terminal Operator’s activities directly or indirectly cause
any significant pollution, environmental degradation or negative impact on the
Environment, which is not authorized by the Landlord or a Competent
Authority, the Terminal Operator shall, at its own cost, undertake an efficient
and effective means of combating, mitigating, cleaning, collecting and/or
disposing of all pollutants, or of otherwise addressing the environmental
damage or other negative impact with appropriate remedial and/or rehabilitative
measures, to the satisfaction of the Landlord and any Competent Authority;
e. take every reasonable precaution to prevent the spillage of cargoes and/or other
materials (including fuel and waste) from vessels, Vehicles, cargo handling
facilities and Terminal Infrastructure, and take immediate steps to mitigate and
remedy any spillage to the satisfaction of DMA, MET and the Landlord, at the
Terminal Operator’s cost.
7) If the Terminal Operator fails to comply promptly with any of the obligations imposed
by this clause, the Landlord shall be entitled, but not obliged, to immediately take
whatever steps are necessary to combat, mitigate and remedy any such pollution,
environmental degradation or other impact on the Environment, and to recover all costs
incurred by it from the Terminal Operator.
8) If the Landlord determines that the Terminal shall be decommissioned upon expiry,
cancellation or termination of this Lease, the Terminal Operator shall develop and
submit a Decommissioning-EMP (DEMP) to the Landlord and the Competent
Authority for implementation during the decommissioning phase in terms of the DEMP
guidelines, which guidelines will be provided to the Terminal Operator by the Landlord.
The DEMP shall be required to be approved by the Landlord and all applicable
Competent Authorities in order that the duly approved DEMP is submitted to the
Landlord:
a. in the event of expiry of the Lease by effluxion of time, no later than 6 (six)
Months prior to expiry of the Lease; or
b. in the event of the earlier termination or cancellation of this Lease prior to expiry
by effluxion of time, within 3 (three) Months after termination.
Section V – Landlord’s Requirements 2-52
9) Upon the expiry, cancellation or termination of this Lease, the Terminal Operator shall
be obliged, at its own cost, to clean-up, remove and rehabilitate any pollution,
environmental degradation or environmental impact that may have occurred during its
operation of the Terminal in accordance with the requirements of the Law and the
Landlord’s requirements.
10) The Terminal Operator shall ensure that its employees, agents and sub-contractors
comply fully at all times with all of the Terminal Operator’s obligations as specified in
this clause, and the Terminal Operator shall be responsible for any breach or non-
compliance by its agents or sub-contractors of any such obligations.
15. HEALTH AND SAFETY
1) The Terminal Operator shall, at its cost, complete a comprehensive INDEPENDENT
risk assessment of its business, in respect of all areas of the Terminal, and the services
or processes it intends to undertake, in accordance with the Landlord’s and Ministry of
Labor’s requirements, and shall provide the Landlord with a full report on its risk
assessment so undertaken within 1 (one) Month of completing the assessment. This
assessment will include a HAZOP analysis.
2) The Terminal Operator shall be responsible for:
a. the implementation of and adherence to the IMDG Code and its regulations
where applicable;
b. compliance with the Occupational Health and Safety requirements as stated in
the Labour Act 11 of 2007 and regulations promulgated in terms of that Act;
c. procuring and implementing systems and services for the prevention,
monitoring, detection and extinguishment of fires or explosions; and
d. maintaining a working environment which is safe and designed to minimize the
risk of injury or illness to any person present on the Terminal and to minimize
the risk of loss or damage to cargoes, vessels or other moveable and immoveable
property in accordance with Law and the further written requirements of the
Landlord.
3) Save for the storage of LPG, the Terminal Operator may not keep or store on the
Terminal any other hazardous or flammable substances unless:
a. it reasonably requires such hazardous or flammable substances to be kept or
stored to enable it to conduct its business on the Terminal;
b. it has obtained the prior written approval of the Landlord; and
Section V – Landlord’s Requirements 2-53
c. it complies with the applicable Law in respect of hazardous substances in
general and that specific hazardous substance in particular.
4) The Terminal Operator shall provide, at its own cost, such fire water network, facilities
or equipment, or other protective measures, that are, in the Landlord’s reasonable
opinion, necessary in order to provide effective fire protection installations and water
supply to the Terminal.
5) The terminal operator shall install, operate and maintain an automated fire monitoring,
detection, alarm and suppression system. A fire suppression system is necessary as the
presence of LPG among oil and gas terminals presents a major fire safety hazard,
potential to pollute the environment and endanger human lives. The fire suppression
system will also include heat/flame detectors, gas/vapor sensors and an alarm control
panel.
6) The Landlord may, from time to time, require the Terminal Operator, by notice in
writing, to provide and install, at the Terminal Operator’s cost, such further devices,
appliances and installations as the Landlord may reasonably consider necessary to
minimize the risk of any fire occurring or to prevent the spread of any fire which may
occur. The Terminal Operator shall, when so required, comply with the requirements
set forth in such notice within the time period specified in the notice.
7) The tenant will build a sufficient number of mess and ablution facilities for its
employees, on the leased site.
16. SECURITY
1) The Terminal Operator must ensure that the perimeter of the Terminal is fenced in with
security fencing of at least 2.4m high and of a standard reasonably acceptable to the
Landlord and which is in compliance with the ISPS and other relevant codes of practice
or standards, and that such fencing is maintained at that standard (and repaired as
necessary) during the term of this lease.
2) The Terminal Operator shall comply in all material respects with the provisions of the
International Maritime Organization Convention of Safety and Security at Sea, the ISPS
Code and the Maritime Security Regulations 2004, adopted under the Merchant
Shipping Act No 57 of 1951, and the Terminal Operator shall be responsible for the
security of the Terminal and for all persons and movables therein, including cargoes,
and for the implementation of and adherence to the ISPS Code. The Terminal Operator
shall submit to the Landlord , within 1 (one) Month of the signing of the lease
Section V – Landlord’s Requirements 2-54
agreement, a Terminal security plan for security levels 1, 2 and 3, corresponding with
normal, medium and high threat situations. The plan shall indicate the operational and
physical security measures the Terminal Operator will take to ensure that it normally
operates at security level 1. The plan shall also indicate the additional, or intensified,
security measures the Terminal Operator will take when instructed to do so by the
Landlord, to move to and operate at security level 2, and to operate at security level 3.
The Terminal Operator will nominate a Port Facility Security Officer, organize regular
security drills and at all times provide the necessary security equipment on the
Terminal.
3) As part of the Terminal security plan the Terminal Operator shall monitor and control
all cargo, Vehicles and people entering and leaving the Terminal and ensure that
security communications are always readily available.
4) The Terminal Operator shall ensure the site is manned 24 hours a day, 7 days a week
(24/7) by suitably qualified and experienced security guards who conducts the
necessary periodic patrols on the perimeter and who conducts strict access control into
the site. All persons entering the site shall be required to fill in all their details (name,
date, time, purpose, etc.) into a log book, which books when full, shall be kept and
stored offsite at a secure location for the duration of the lease period.
5) The Terminal Operator shall install, operate and maintain a CCTV surveillance system
and intrusion detection system throughout the site with an on-site monitoring station
that is also manned 24/7.
17. RESTRICTION OF CARGO TYPES AND COMMODITIES
The operator will be restricted to the handling, storage and loading/unloading of LPG only,
and may only use the facility for other purposes with the prior consent of the Landlord.
18. NO ACCOMODATION
No persons may be accommodated on port premises, i.e., the tenant shall not allow any
employees or other persons to sleep or be housed on the leased site.
19. THE OPERATOR’S PERFORMANCE
1) The operator will design the terminal such that acceptable but practical levels of
productivity are achieved.
Section V – Landlord’s Requirements 2-55
2) The Operator shall provide the Services in a cost effective, efficient, workmanlike,
professional and proper manner, in compliance with the terms and conditions set out in
this Agreement and in compliance with all applicable laws, regulations, ordinances and
Good Industry Practices.
3) The Operator shall hold all necessary approvals, certificates or licenses for performing
the Services, and the Operator shall comply with all statutory and other requirements
to perform its obligations under this Agreement. The Operator shall pay all Namport,
Governmental and Municipal costs, or other costs in accordance with any applicable
laws, rules and regulations.
4) The Operator shall employ and maintain sufficiently licensed, qualified, trained,
directed and supervised staff necessary to perform the Services in compliance with this
Agreement properly and safely. The Operator shall have complete operational control
and supervision of the Facility while under the Operator’s management and control
during the lease period.
5) The Operator shall maintain equipment of a sufficient standard and quantity, which is
necessary to perform the Services in compliance with this Agreement properly, safely
and timely.
6) The Operator shall at all times have sufficient capacity to provide the Services and shall
provide these services within a reasonable time after the ship’s arrival.
20. INSURANCE
1) The Operator shall, prior to the Effective Date, provide evidence of and maintain, at its
own expense, full insurance coverage, with an insurance company with a Standard &
Poors ‘A-rating’ or better.
2) The insurance shall provide cover for all Services and the Operator’s other obligations
and liabilities under this Agreement and for such further insurances as may be required
by law or regulation, including but not limited to fire and explosion, theft, cover for
liabilities incurred due to breach of this Agreement, third party liabilities including but
not limited to liability for death or injury to persons and workers compensation, loss,
damage or delay to third party property (including Goods) and fines, penalties, taxes
and other similar costs and expenses, and each cover shall be on terms no less favorable
to the Operator than the usual market terms and otherwise meeting any statutory
requirements.
Section V – Landlord’s Requirements 2-56
3) The Operator shall ensure that the Landlord is given immediate written notice of any
cancellation, termination, suspension, revocation, or material amendment in cover of
any insurances required herein.
4) No insurances or the limits of such insurances shall be construed in any way as a limit
of the Operator’s liability under this Agreement.
5) On demand, the Operator shall provide to the Landlord a cover note confirming that the
Operator has insurance, and shall perform any obligation required of it by such
insurance, and do nothing, which could invalidate such insurance.
6) Breach of the Operator’s obligations under this Clause shall be deemed a Material
Breach of this Agreement and shall entitle the Landlord to terminate this Agreement
immediately without liability or obligation on giving written notice to such effect,
and/or to take out required insurance at a reasonable level on behalf of the Operator and
at the Operator’s expense.
21. CORROSION IN WALVIS BAY
The tenant/operator is specifically made aware that Walvis Bay has one of the world’s most
corrosive atmospheres when it comes to corrosion of metals. Walvis Bay has been quoted
by many experts as the city with the 2nd or 3rd most corrosive atmosphere to metals on the
planet Earth. The tenant will thus take extra care and precaution to design the terminal
against corrosion of metals by using of corrosion resistant materials such as marine grade
stainless steel or by applying suitable protective coatings such as duplex system involving
a base coating of hot dipped galvanizing with a suitable layered paint coating on top.
22. APPLICABLE STANDARDS
The Operator shall comply with the following standards when it comes to the design,
construction, operations and maintenance of the facility, and may only deviate or substitute
with a different standard after receiving approval from the Landlord in writing. The
following standards will be applied:
1) API 2510 (Design and Construction of LPG terminals);
2) API 2510A (Fire Protection Considerations for the Design and Operation of LPG
Terminals),;
3) NFPA 58 (Liquefied Petroleum Gas Code);
4) ASME III (Rules for the Construction of Pressure Vessels);
5) ANSI/ASME B31.3 and/or ANSI/ASME B31.4. (Piping systems design);
Section V – Landlord’s Requirements 2-57
6) ASTM A 53/A 53A (Piping material);
7) NACE standards (corrosion – pipe coatings);
8) API 610 (Centrifugal Pumps for Petroleum, Petrochemicals and Natural Gas
Industries);
9) NFPA 54, National Fuel Gas Code;
10) NFPA 59, Utility LP-Gas Plant Code;
11) IP Code of Practice for LPG;
12) British (BS) standard codes of practice;
13) Where an item is not covered by the above listed standards, then the applicable NSI
(Namibian) and SANS (South African) standards shall apply.
Section V – Landlord’s Requirements 2-58
Drawings
The following Drawings are attached to the end of the bid document:
No Drawing Description Relevance
1 Discussion Plan - Area available for Liquid and
Gas Storage & Distribution Facilities
PORT OF WALVIS BAY NORTH PORT
Drawing no. Sketch Nr. 874
Locality
2 Port of Walvis Bay, North Port, Long Term
Development Plan
For development of a new
dedicated jetty
3 Flammable Products Storage Layout Zoning of bulk plot
4 Port of Walvis Bay Sea Chart (not to be used for
navigation)
Water depths
Supplementary Information
The following supplementary information is made available to the bidders, to be used only
for the purposes of preparing their bid. This information is attached to the bid document.
No Information Description and relevance Comment
1 Geotechnical investigation – Borehole log for
Borehole No. SPT3, located within the bulk plot for
liquids and gas storage facilities
Design of foundations for
storage facilities on the
leased site etc.
3-1
PART 3 – Specimen Lease Agreement
3-2
Section VI. Specimen Lease Agreement
1) A sample of a standard Namport lease agreement is included in this section. This
agreement is not complete and will be finalized once the successful bidder has been
notified. Whist some aspects of this agreement can be negotiated, others are non-
negotiable.
2) The lease agreement will in essence be a Design, Build, Own, Operate, Maintain
and Transfer agreement, where all fixed improvements resort to Namport ownership
at the end of the lease period.
3) The final consolidated lease agreement will incorporate all the requirements listed
elsewhere in this bidding document, including the bidders’ proposal, minimum
performance requirements etc. and any other negotiated terms and conditions.
4) Where the specimen lease agreement provided in this section contradicts the rest of
the tender document such as but not limited to Section V, Landlords Requirements,
then the latter shall take precedence.
Section VII - Contract Forms 3-3
AGREEMENT OF LEASE
entered into by and between:
NAMIBIAN PORTS AUTHORITY
a body corporate established and incorporated under the Namibian Ports Authority
No. 2 of 1994 with registration number CY/1994/0002, and with its principal place
of business situated at No. 17 Rikumbi Kandanga Road, Walvis Bay, Republic of
Namibia
(herein represented by Andreas Kanime, in his capacity as Chief Executive
Officer and him warranting to be duly authorised thereto)
(hereinafter referred to as “the Landlord”)
and
[XXX]
(herein represented by [XXX] , in his/her capacity as [XXX]
and she/him warranting to be duly authorised thereto)
(hereinafter referred to as “the Tenant”)
WHEREAS the Landlord hereby lets to the Tenant who hereby agrees to rent from the
Landlord the Premises described in sub – clause 1.1.9 hereunder subject
to the terms and conditions of this Agreement.
NOW THEREFORE the Parties agree as follows:
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1. Definitions and Interpretation
Definitions
1.1 In this Agreement, unless the context indicates otherwise:-
1.1.1 “Commencement Date” means [XXX];
1.1.2 “Improvements” means buildings or other structures built
on or affixed to the Premises, intended to be of a permanent
nature as well as any property that can easily be moved from
one location to another and/or is collapsible;
1.1.3 “Landlord” means the Namibian Ports Authority, as
identified under the heading “Parties to this Agreement”
above;
1.1.4 “Lease” means the lease of the Premises in terms of this
Agreement;
1.1.5 “Namibian Ports Authority Act, 1994” means the
Namibian Ports Authority Act, Act 2 of 1994, as amended;
1.1.6 “Parties” means the parties to this Agreement, being the
Landlord and the Tenant and “Party” means any one of
them, as the context may indicate;
i. “Property” means the property owned by the Landlord;
ii. “Premises” means the Property situated on a portion of [XXX]
situate in the Port of Walvis Bay, measuring a total of [XXX]
and as schematically depicted in the shaded areas of Plan No.
[XXX] and contained in Schedule 1.
1.1.7 “Pro Rata Rates and Taxes” means a portion of Rates and
Taxes calculated with reference to the area of the Premises
measured against the area of the Property;
1.1.8 “Rates and Taxes” means assessment of rates and all
relevant taxes levied by the Municipality of Walvis Bay on
the Landlord in relation to the Property, assessed on the basis
of the area of the Property and the basis of bare ground;
1.1.9 “Rental” means the initial Rental Fee or Escalated Rental Fee
(as applicable) (as such terms as defined in Clause 5);
Section VII - Contract Forms 3-5
1.1.10 “Schedule” means Schedule 1 attached hereto, depicting the
Premises;
1.1.11 “SHEQ Policy” is the abbreviated term used for “Safety,
Health, Environmental and Quality Policy”, and means a
policy document of the Landlord (as may be amended from
time to time) providing a common framework for managing
safety, health, environmental and quality matters within the
Property, based on relevant Namibian legislation, or national
or international standards, as the case may be, to which the
Landlord may from time to time be bound. A copy of which
is annexed hereto and marked Schedule 2;
1.1.12 “Signature Date” means the date when the last of the Parties
hereto have executed and signed this Agreement;
1.1.13 “Substandard Act” means a violation of a safety
instruction, a hazardous physical condition or circumstances
which could permit the occurrence of any accident
1.1.14 “Tenant” means [XXX], as identified under the heading
“Parties to this Agreement” above;
1.1.15 “This Agreement/ This Lease” means the entire lease
agreement entered into between the Parties, including
addenda, annexures, plans and/or the like which have been
signed and initialed by the Parties or be incorporated herein
by reference, as being relevant thereof;
Interpretation
1.2 In this Agreement:
1.2.1 expressions in the singular also denote the plural, and vice
versa;
1.2.2 words and phrases denoting natural persons refer also to
juristic persons, and vice versa, and
1.2.3 pronouns of any gender include the corresponding pronouns
of the other genders.
1.3 In this Agreement, unless the context otherwise indicates, a
reference to:
1.3.1 this Agreement, any other agreement or an instrument or any
provision of any of them includes any amendment, variation
or replacement of that agreement, instrument or provision;
3-6 Section VII - Contract Forms
1.3.2 a clause, unless the context otherwise indicates, is a
reference to a clause of this Agreement;
1.3.3 a statute or statutory provision includes a reference to:-
1.3.3.1 any applicable statute or statutory provision as
modified or re-enacted (or both) before or after the
Signature Date; and
1.3.3.2 any subordinate legislation made under any
applicable statute or statutory provision before or
after the Signature Date;
1.3.4 a person includes a reference to any natural person, firm,
body corporate, unincorporated association or partnership,
joint venture, trust and unincorporated association, the state
or local government or regulatory department, body,
instrumentality, agency, minister or the authority having
jurisdiction over any of the Parties;
1.3.5 a reference to a person includes a reference to that person’s
legal personal representatives, executors, administrators,
successors and substitutes (including, but not limited to,
persons taking by novation) and permitted assigns;
1.3.6 one gender includes all genders;
1.3.7 time is a reference to Namibian time as per the Namibian
Time Act, 2017, and the following construction shall apply
to time matters:-
1.3.7.1 if a period of time is specified and the period dates
from a given day or the day of an act or event, it is
to be calculated exclusive of that day and if a period
of time is specified as commencing on a given day
or the day of an act or event, it is to be calculated
inclusive of that day;
1.3.7.2 if the time for performing an obligation under this
Agreement expires on a day that is not a business
day, time will be extended until the next business
day;
1.3.7.3 a reference to a “year” means a period of twelve (12)
consecutive months;
1.3.7.4 a reference to a “month” is a reference to a calendar
month, and more specifically, (i) in reference to a
number of months from a specific date, a calendar
month commencing on that date or the same date of
Section VII - Contract Forms 3-7
any subsequent month, and (ii) in any other context,
one of the twelve months of the calendar;
1.3.7.5 a reference to a “day” is a reference to any day;
1.3.7.6 a reference to a “business day” is any day other than
a Saturday, Sunday or public holiday in Namibia.
1.4 Any provision of this Agreement imposing a restraint,
prohibition, or restriction on the Parties shall be so construed that
the Parties are not only bound to comply therewith, but are also
obliged to procure that the same restraint, prohibition, or
restriction is observed by any third party engaged by acting
under the authority or with the written consent of the Parties.
1.5 Where any term is defined within the context of any particular
clause in this Agreement, the term so defined, unless it is clear
from the clause in question that the term so defined has limited
application to the relevant clause only, shall bear the same
meaning as ascribed to it for all purposes in terms of this
Agreement, notwithstanding that that term has not been defined
in this clause 1.
1.6 Any substantive provisions contained in a definition clause shall
create substantive obligations.
1.7 Where a word or phrase is specifically defined, other parts of
speech and grammatical forms of that word or phrase have
corresponding meanings.
2. Letting and Hiring
2.1 Subject to the terms and conditions of this Agreement, the
Landlord hereby lets the Premises to the Tenant, who hereby
hires it from the Landlord.
2.2 The following special conditions shall apply for the duration of
this Lease:
2.2.1 the Tenant must ensure that the operator and its personnel
are fully qualified and trained to operate and manage a
liquid petroleum-gas (LPG) and/or liquid or compressed
natural gas (LNG or CNG) import, storage and
distribution facility.
2.2.2 the Tenant’s Business shall be conducted so as to cause
the minimum disturbance to marine and aquatic
resources and shall not cause a nuisance or danger to the
occupants of neighbouring properties or to the public at
large and must not amount to a contravention of any
statutory regulations or by-laws.
3-8 Section VII - Contract Forms
2.2.3 the Tenant shall obtain the written permission and
relevant approvals from the relevant Ministry or
statutory body prior to commencing its Business in or on
the Premises, which approvals shall include, amongst
others, a valid environmental clearance certificate issued
by the relevant Ministry.
2.2.4 the Landlord shall not be liable to compensate the
Tenant should any activity, operation or works
whatsoever undertaken by the Landlord or by any
other party, cause mortality of any living marine
resources and/or disruption in the Tenant’s Business.
2.2.5 the Tenant shall not be entitled to require the Landlord
to exercise any legal or other rights it may have
to prevent or reduce contamination of the Premises, the
sea or the marine environment or to require any person
to do or refrain from doing anything, which could affect
the Tenant’s Business as a whole in any manner.
2.2.6 the Landlord accepts no responsibility for any
interruption of the Tenant’s Business in or on the
Premises in any way whatsoever and will under no
circumstances accept any claim by the Tenant for loss
of profit or productivity as a result of any interruption.
2.2.7 notwithstanding what is recorded in sub – clause 22.2.5
below, the Landlord does not guarantee the Tenant any
right of way to or from the Premises across any other
property and the Tenant must, where required, arrange
for such access and access road with the relevant entity
or person at its own cost.
2.2.8 the Tenant shall not, save in so far as it may reasonably
be necessary for the Tenant to conduct its Business on
the Premises, keep or store on the Premises explosives
or flammable goods, substances or liquids.
3. Duration, Renewal and Termination
Duration
3.1 This Lease shall commence on the Signature Date and shall continue
for a period [XXX] years, unless terminated in accordance with this
Lease or extended by written agreement between the Parties, subject
to sub – clause 3.2 below and any other applicable terms herein.
3.2 Should this Lease be extended, the Tenant is required to transmit a
notice of renewal to the Landlord in writing not less than six (6)
calendar months prior to the expiration of the Lease Period and the
Section VII - Contract Forms 3-9
Extended Lease Period shall be entered into on such terms and
conditions as determined by the Landlord.
4. Use of Premises
General
4.1 The Premises shall be solely utilized for the purposes of
establishing, managing and operating a liquid petroleum-gas (LPG)
and/or liquid natural gas (LNG or CNG) import, storage and
distribution facility hereinafter referred to as the “Business”) and for
no other purpose whatsoever, unless the Landlord’s prior written
consent is obtained, which consent shall not unreasonably be
withheld.
4.2 The Tenant shall conduct its Business at the Premises with due
regard to the business and interests of the Landlord, and shall not
do, nor cause, nor permit anything to be done which is or may
become a nuisance to the Landlord, other neighbouring tenants or
the public.
No Warranty for Fitness for Purpose
4.3 The Premises is leased to the Tenant as is and as it stands and lies,
and the Landlord does not warrant that the Premises is suitable for
any specific purpose that may be contemplated by the Tenant, or that
the Premises is suitable for the Tenant’s Business; and the Tenant
shall in any event conduct its Business at the Premises at its own risk
and cost.
Licences and Approvals, Statutes, Regulations and By-Laws
4.4 The Tenant shall be required to hold any and all licences and permits
that may be required under the laws of Namibia for the conduct of
its Business, which licences shall be the duty of the Tenant to obtain.
4.5 The Tenant acknowledges and agrees that it shall not be exempted
from compliance with any statute, regulation or by-law imposing
duties or obligations upon it as Tenant or affecting the use of the
Premises or the Property, or the nature of any Improvements that
may be erected thereon. The Tenant shall therefore not be entitled to
claim relief from any burden or infringement of its rights under this
Agreement resulting from the operation of any such statute,
regulation or by-law or any action lawfully taken thereunder by any
local or other competent authority.
5. Rent and other Charges
3-10 Section VII - Contract Forms
5.1 During the first year of this Lease, the Tenant shall pay to the
Landlord a monthly Rental in the sum of N$ [XXX] per month
(exclusive of Value Added Tax, which shall be added thereon). The
aforesaid Rental amount being equal to the rate of N$ [XXX] per
square metre multiplied by the number of square meters of the
Premises (as recorded in clause 1.1.8).
Escalation
5.2 The monthly Rental referred to in sub – clause 5.1 above shall, on
each anniversary date from the Commencement Date, escalate by a
percentage increase equivalent to [XXX or the percentage increase
in the Namibian Consumer Price Index (“NCPI”) for the preceding
twelve (12) month period, as calculated from the relevant
anniversary of the Commencement Date.]
Deposit
5.3 Notwithstanding the provisions of clause 5.1 above, the Tenant
shall, within seven (7) days of the Signature Date, deposit with the
Landlord an amount equal to one month’s Rental (being
N$[XXX]), which shall bear no interest in favour of the Tenant and
be held by the Landlord as security for the due performance of the
terms of this Agreement.
5.4 Should the Tenant at any time fail to promptly make payment of
any amount due under this Agreement, or should the Tenant cause
damage to the Premises or any of the Landlord’s properties, such
deposit may be appropriated by the Landlord towards such unpaid
amount and/or as compensation for such damage provided that the
Tenant, with the written consent of the Landlord, may provide an
approved guarantee in place of the said deposit.
Payment in Advance
5.5 All Rental shall be payable monthly in advance on or before the first
day of each and every month and without any deductions or set-off
whatsoever for bank or other charges.
Tax on Rentals
5.6 The Rental recorded above excludes all taxes levied from time to
time by any competent authority in relation to such Rental, and the
Landlord shall be entitled to recover, in addition to the Rental
determined as set out above, any and all taxes levied by any
competent authority in relation to such Rental, including, but not
limited to value added tax under the Value Added Tax Act, 2000.
6. Payments and Interest
Section VII - Contract Forms 3-11
6.1 All payments due by the Tenant to the Landlord under this Lease
shall be made, free of deductions or bank exchange and shall be
deposited into the Landlord’s banking account, being:
Bank: Bank Windhoek
Account Name: Namibian Ports Authority
Account No.: 800 140 52 24
Account Type: Cheque Account
Branch: Walvis Bay
Branch Code: 481872
SWIFT CODE: BWLINANX
6.2 The Tenant shall be liable for interest on all overdue amounts
payable under this Lease at two percent (2%) above the prime
lending rate of Bank Windhoek applicable from time to time. In the
event of a dispute as to the interest rate payable, a certificate signed
by any manager, accountant or other relevant official of Bank
Windhoek shall be prima facie proof of such interest rate.
7. Cession and Assignment and Subletting
Cession and Assignment
7.1 The Tenant shall not cede or assign this Lease (and, for the
avoidance of doubt, any of its rights and obligations in terms of this
Agreement), or otherwise dispose of or in any way mortgage or
hypothecate this Lease or the Premises (or any portion thereof).
Sub-Letting
7.2 The Tenant shall not have the right to sublet or otherwise dispose of or
in any way hypothecate this Lease or the Premises or any portion
thereof, without the prior written consent of the Landlord first being
obtained, and if sub-letting is approved, approved sub-tenants shall at
all times be bound by the terms and conditions of this Agreement, and
provided further that that the Tenant shall at all times be responsible
and liable for any and all acts and omissions of any Landlord approved
sub-tenants, as if such acts and omissions of approved sub-tenants are
acts and/or omissions of the Tenant. Any rental contract concluded
with an approved sub-tenant(s) shall not be inconsistent with or
conflict with this Lease.
7.3 For the avoidance of doubt, the Tenant shall not be permitted to
operate a share block scheme in whatever form or enter into any
transaction that has the effect of offering a share(s) in relation to part
of a building erected on the Premises.
3-12 Section VII - Contract Forms
8. Improvements
General
8.1 It is recorded that the Landlord acknowledges that the Tenant may
make Improvements to the Premises during its tenancy.
8.2 For the duration of this Lease, but subject to the further provisions
of this Agreement and all approvals required to be obtained by the
Tenant, the Tenant shall be entitled, at its own risk and at its own
costs, to make Improvements to the Premises. The Landlord shall
provide the Tenant and the construction contractors of the Tenant
with access to the Premises for the construction of the
Improvements, such access being subject to the Landlord’s
reasonable security and other access requirements.
8.3 Any Improvements shall require the prior written approval of the
Landlord at least three (3) months prior to the commencement of
construction unless otherwise agreed to in writing, which approval
shall not unreasonably be withheld by the Landlord.
8.4 All Improvements are subject to any applicable or required statutory
approvals or authorisations from the relevant competent authorities.
8.5 All Improvements shall further be constructed in accordance with
and subject to the terms and conditions of relevant approvals and the
provisions of applicable statutes and regulations of any competent
authority.
8.6 Appropriate and adequate plans and building specifications (herein
jointly referred to as “Plans”) for any proposed Improvements shall
be submitted by the Tenant to the Landlord for its approval, which
approval shall not unreasonably be withheld, within three (3)
months prior to the commencement of any construction envisaged
on the Premises unless otherwise agreed to in writing. The Tenant
undertakes to acquire any additional approvals of Plans or
specifications, if and as may be required from any other relevant
authorities.
8.7 The Landlord reserves the right to inspect any Improvements (both
during the construction phase and thereafter) periodically to ensure
strict adherence to any approved Plans. The Tenant undertakes to
abide by any reasonable directive of the Landlord relating to
reasonable precautionary measures to protect the Landlord’s or
other tenants property, existing assets and services on or near the
Premises during the construction of the Improvements.
Section VII - Contract Forms 3-13
8.8 No Improvements shall be removed, amended or altered by the
Tenant during the currency of this Lease without prior written
approval of the Landlord, which approval shall not unreasonably be
withheld.
8.9 In the event of any Improvements (or alterations or additions
thereto) being made by or on behalf of the Tenant without the
required prior written consent of the Landlord or relevant competent
authority, the Landlord shall have the right to-
8.9.1 require from the Tenant, by way of written notice, to remove
the Improvements (or alterations or additions thereto) and to
promptly reinstate the Premises into its prior condition,
failing which the Landlord may attend thereto at the cost of
the Tenant;
8.9.2 where no written notice in terms of clause 8.9.1 hereof is
given, and the relevant competent authority at any time
during the duration of this Lease imposes certain
requirements for the alteration or removal of Improvements,
require from the Tenant to carry out such alterations or
removals at the own cost of the Tenant.
Improvements on Termination of Lease
8.10 Subject to the further provisions of this Agreement, and in the event
of a termination of this Lease, any Improvements made by the
Tenant and that the Landlord directs or instructs should be removed
shall be removed by the Tenant and the Tenant shall in that event (if
instructed to do so) restore the Premises to its original condition on
or before the expiration of this Lease.
8.11 If the Tenant fails to remove any Improvements it is obliged to
remove in terms of this Agreement, the Landlord may do so and may
reinstate the Premises accordingly at the cost of the Tenant.
8.12 For the avoidance of doubt, if the Parties for whatever reason agree
in writing that (some or all of) the Improvements need not be
removed by the Tenant on termination of this Lease, no
compensation will in such event be payable by the Landlord, and the
Tenant shall not be entitled to claim that the Landlord is obligated
to compensate the Tenant for any such Improvements made or
effected on the Premises.
8.13 Notwithstanding anything to the contrary contained in this
Agreement, subject at all times subject to sub – clause 8.12 and 8.14
and unless otherwise agreed to in writing between the Landlord and
the Tenant, the Tenant shall be entitled, at its cost, to remove any
3-14 Section VII - Contract Forms
Improvements (more specifically any property that can easily be
moved from one location to another and/or is collapsible from the
Premises) upon the termination of this Agreement, subject to its
obligation to restore the Premises, to the satisfaction of the
Landlord, to the same condition to that it was in prior to the Tenant
having made such Improvements (more specifically any property
that can easily be moved from one location to another and/or is
collapsible).
8.14 For the avoidance of doubt, on termination of this Lease any
Improvements that the Landlord opts to retain will become the
property of the Landlord, without payment of any compensation by
the Landlord, and the Tenant shall not be entitled to claim that the
Landlord is obligated to compensate the Tenant for any such
Improvements effected on the Premises.
9. Maintenance and Repairs
9.1 The Tenant shall, during the currency of this Lease, be solely
responsible for the maintenance and repair of the Premises, the
Improvements thereon and the costs thereof.
9.2 The Tenant shall, for as long as Improvements remain on the
Premises, ensure that they are kept and maintained in good order and
condition (fair wear and tear excepted), protected in a proper and
workmanlike manner, and that they shall at no time become
dangerous or unsightly.
10. Services
10.1 All services not rendered by the Landlord, but which may be
required for and in connection with all or any of the activities which
are to be carried out on the Premises (including, but not limited to
water and electricity), shall be acquired or arranged by and at the
sole cost of the Tenant with the relevant local or competent authority
or service provider.
10. 2 For the avoidance of doubt, the Tenant shall at its own cost arrange
or procure competent contractors for such installation, which
installation must be to the Landlord’s satisfaction.
10.3 The Tenant specifically agrees that should it persistently be late in
paying for any Rental, services (water and electricity), the rates and
taxes or any other amount required to be paid in terms of this Lease,
the Landlord shall have the right to:
10.3.1 disconnect the electricity and water supply to the Premises
until payment of the outstanding amount(s) is made;
Section VII - Contract Forms 3-15
10.3.2 proceed with any rights the Landlord has for the recovery
of any amount due and owing by the Tenant;
10.3.3 suspend any or all other services to the Premises for such
time as may be considered necessary.
10.4 Services rendered to the Tenant by the Landlord, or by any relevant
local authority over the Property, may form the subject of a separate
Agreement.
11. Payment of Rates and Taxes
The Tenant shall, within thirty (30) days after being called upon to do so,
refund to the Landlord such payments as the Landlord may have made to
the local or other competent authority in respect of Pro Rates and Taxes or
any other form of taxation which may from time to time be levied by such
authority in connection with the Premises.
12. Limitation of Landlord's Liability
12.1 The Landlord shall not be liable to the Tenant for any losses or
damages of whatsoever nature (including, for the avoidance of
doubt, any direct or indirect losses or damages, or consequential
losses, losses of profit or punitive damages, whether related to the
Tenant’s Business or not), which the Tenant may sustain as a
consequence of any defect coming into existence in or on or around
the Premises or to the exterior or interior of the Improvements
during the currency of this Lease.
12.2 The Tenant shall have no claim of any nature whatsoever against
the Landlord (whether for damages or for remission of rent or
otherwise):–
12.2.1 for any failure of or interruption in any amenities and
services (including, but not limited to the supply of water
and electricity) provided by the Landlord, any statutory
authority or other service provider to the Premises, the
Property or the Improvements, notwithstanding the cause of
such failure or interruption;
12.2.2 by reason of any nuisance or inconvenience occasioned or
suffered by the Tenant on account of maintenance work,
repair work, the effecting of alterations, additions or
removals, any construction or development activity on the
Premises or the Property (or any premises adjoining or in the
vicinity), any restriction of access to the Premises
occasioned by any of the foregoing, any noise, dust or
Landlord’s contractors, staff or servants, or caused by any
other tenants or the local or any other competent authority;
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12.2.3 for any accident, injury, loss or damage caused to the Tenant,
the Tenant’s Assets or Business, the Tenant’s (i) officers, (ii)
agents, (iii) employees, (iv) visitors or guests, in connection
with such persons using any portion of the Premises,
irrespective of whether or not the cause of such accident,
injury, loss or damage arises from the negligence of the
Landlord or the Landlord’s servants, save in the case of the
gross negligence or wilful default on the part of the Landlord
or the Landlord’s contractors, staff or servants.
12.3 The Tenant hereby indemnifies and holds the Landlord harmless
against any and all claims contemplated in 12.2 to the fullest extent
allowed by law.
12.4 Nothing contained in clauses 12.1, 12.2 or 12.3 shall excuse the
Landlord from specific performance of any of its obligations under
this Lease in terms of this Agreement, whether expressed or implied,
and particularly (but not only) its obligations to afford the Tenant
undisturbed occupation and enjoyment of the Premises as
contemplated herein.
13. Tenant’s Further Indemnities
13.1 The Tenant hereby specifically indemnifies and holds the Landlord
harmless against:
13.1.1 liability in respect of the death of or injury to any (i) officers,
(ii) agents, (iii) employees of the Landlord or any third party
or person caused by any act or omission by the Tenant or the
Tenant’s (i) officers, (ii) agents, (iii) employees (iv) visitors
or guests;
13.1.2 liability resulting from claims in respect of the contravention
or non-compliance by the Tenant or its (i) officers, (ii)
agents, (iii) employees, (iv) visitors or guests with the
provisions of environmental laws applicable in Namibia;
13.1.3 any legal costs or any other expenses reasonably incurred in
connection with claims or actions arising out of any of the
foregoing, whenever the damage, injury or death referred to
in sub-clause 13.1.1 or 13.1.2 above, is due to or arises out
of or in connection with this Lease, the occupancy or the use
of the Premises or the Property by the Tenant; provided that
the Tenant shall incur no liability for such legal costs in the
circumstances where the damage, injury or death arises from
the gross negligence or the wilful misconduct of the
Landlord and its (i) officers, (ii) agents, (iii) employees, (iv)
visitors or guests.
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13.2 The Landlord shall notify the Tenant forthwith upon receipt of
information of the occurrence of any damage or consequential
damage or the receipt of any claim or demand for or against which
the Tenant is prima facie liable to indemnify the Landlord in terms
of this Agreement, and shall in respect of such claim or demand
abide by the directions of the Tenant as to whether and on what
terms it shall be settled, compromised or contested; it being agreed
that whatever action may be taken by the Landlord pursuant to such
directions of the Tenant shall be at the Tenant’s risk and expense.
14. Limitation of Tenant’s Liability
14.1 In no event shall the Tenant be liable for unforeseeable, indirect,
incidental or special damages, resulting from any act or omission by
the Landlord in respect of the obligations of the Landlord in terms
of this Lease.
14.2 The Tenant shall not be liable for loss, damage, or injury caused to
third parties by any default attributable to the Landlord or its
employees or agents during the period of this Lease.
14.3 The Tenant acknowledges the Landlord’s right of entry into the
Premises by the Landlord’s representatives, agents, servants, and
contractors, for inspection or to carry out any necessary works, but
should there be a failure on the part of the persons to comply with
the Tenant’s safety and security regulations, the Tenant shall not be
liable for any loss, damage, or injury that may be sustained to such
persons or property entering the Premises, provided that the Tenant
informs the Landlord’s representatives, agents, servants, and
contractors of its applicable safety and security regulations.
15. Indemnities by the Landlord
15.1 The Landlord hereby undertakes to indemnify and keep indemnified
the Tenant against all loss, damage, costs and expenses which the
Tenant may sustain or incur as a result of it remaining in occupation
of the Premises in terms of this Lease, if during the term of this
Lease any claim is made against the Tenant by a third party claiming
to be the lawful owner of the Premises, and such third party seeking
(i) occupation and possession of the Premises,(ii) and the ejectment
from the Premises of the Landlord and of all persons holding
through or under it; (iii) or for Rental therefore; (iv) or for damages
sustained by the third party by reason of the Tenant’s occupation
thereof, and the Landlord shall immediately upon being notified by
the Tenant of such claim, at its own cost and expense undertake the
defence of such claim in the name of and for the benefit of the
Tenant.
15.2 If the Tenant shall, pursuant to the judgment of any competent court
under the circumstances contemplated in clause 15.1, be ordered to
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vacate the Premises at any time before the natural expiration of the
period of this Lease, the Landlord’s undertaking under clause 15.1
to so indemnify the Tenant shall in no way be affected thereby, and
the Landlord shall further be obliged to compensate the Tenant for
all Improvements effected on the Premises.
15.3 The obligations set out in this clause shall survive the completion,
expiration or termination of this Agreement.
16. Insurance
16.1 It is recorded that the Tenant is self-insured, but to the extent that
the Tenant may not be self-insured, the Tenant shall at all times be
responsible to maintain, renew or adjust, if necessary, such
insurance as to provide sufficient cover for or protection of the
Improvements and the contents of the Improvements against
relevant risks.
16.2 The Tenant shall be obliged, at its cost, to take out and keep in force
during the currency of this Lease, adequate public liability and any
other insurance for such amount as will provide adequate indemnity
in respect of claims, which may foreseeably be made against the
Tenant or the Landlord arising out of the Tenant’s Business and use
of the Premises.
16.3 The Tenant shall provide a copy of its insurance cover to the
Landlord upon the Landlord’s request for same and should the
Landlord or the Landlord’s insurers find the Tenant’s insurance
cover not to be adequate, the Tenant shall ensure that it without
delay obtains insurance cover that is reasonable to the satisfaction
of the Landlord or the Landlord’s insurers.
17. Fire Protection
17.1 The Tenant shall arrange, at its own cost, for the installation of
adequate firefighting equipment on the Premises, and shall ensure
during the currency of this Lease that such firefighting equipment
be properly maintained in accordance with the relevant Namibian
standards (currently as outlined in SABS codes) as well as the
directives as may be determined from time to time by the Landlord
and the relevant competent authorities.
17.2 Notwithstanding the fact that the plans of Improvements may not,
when approved by the Landlord, have included adequate provision
for protective risk control measures against fire and allied perils, the
Landlord reserves the right, if at any time during the currency of this
Lease it is reasonably of the opinion that the absence or inadequacy
of such protective risk control measures in the Improvements is or
may become a hazard to the Landlord’s own building(s) or Property
or the buildings or property of third parties, to call upon the Tenant
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by notice in writing to provide and install in such Improvements or
on the Premises any or all such devices, appliances and installations
as the Landlord may reasonably consider necessary to minimise the
risk of any fire occurring therein or thereon or to extinguish or
prevent the spread of any fire, which may occur. The Tenant shall,
when so called upon, comply to the satisfaction of the Landlord with
the requirements set forth in such notice, within the reasonable time
therein specified.
17.3 In the event of a fire occurring on the Premises, the Landlord shall
not be responsible for any cost incurred and shall in no way be under
any obligation to assist in extinguishing the fire.
18. Safety, Health, Environmental and Quality (SHEQ) Management
18.1 The Tenant shall at all times accept and recognise the Landlord’s
commitment towards improved SHEQ performance and business
efficiency, by acquainting itself and adhering to the existing SHEQ
Policy and related policies, relevant laws and regulations as may be
reviewed or amended from time to time. The Tenant is therefore
liable to always ensure that all its activities are consistent with the
Landlord’s SHEQ goals, practices and procedures as well as to
participate and co-operate during the performance of a SHEQ site
assessment prior to or after the effective date of this Lease (where
applicable) to establish the SHEQ standards that the Tenant will be
subject to throughout this Lease.
18.2 In terms of the activities on the Premises, the Tenant has the
responsibility to act under all applicable national, local legislation
and applicable regulations of the Landlord to ensure that the
activities meet with the existing SHEQ regulatory requirements and
the prevailing SHEQ Policies (particularly the management
policies) in respect of the Property.
18.3 Pollution of the sea and/or environmental contamination and/or
pollution on the Premises or any part of the Property or property
adjoining or in the vicinity of the Premises (including substandard
acts on the Premises or premises adjoining the Premises or any part
of the Property), by any means whatsoever is strictly prohibited. In
the event of any pollution or environmental contamination
whatsoever/howsoever occurring, the Tenant shall provide efficient
means of collecting and disposing of all pollutants or contaminants
including any appliances required for this purpose as may be deemed
necessary by the Landlord or other relevant competent authorities.
18.4 In the event that non-compliance with this requirement or any other
relevant condition of this Lease is observed or SHEQ deficiencies
are discovered on the Premises, or on any property adjoining or in
the vicinity of the Premises or on any part of the Property that could
be associated with the Tenant’s operational activities or proof of non-
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compliance with such SHEQ Management Policies, relevant laws
and regulations is discovered, the Landlord shall be entitled, without
prejudice to any of its rights, to institute such breach procedures as
may be appropriate under the circumstances, in terms of this
Agreement or any such procedures or penalties as may be
prescribed or defined within the SHEQ Management Policies,
relevant laws, and other regulations. Furthermore the Tenant shall
in terms of this clause 18, and at its own cost, provide efficient
means to remedy the situation within such time as would be
determined reasonable under the circumstances.
18.5 Failure to effectively execute such remediation strictly in
compliance with the prescribed standards of the Landlord and other
relevant regulatory agency guidelines, the Landlord shall have the
right to execute such remediation but at the cost of the Tenant.
18.6 It is specifically recorded that the Tenant shall prepare the Premises
for its Business as well as for prevention of pollution or
contamination (whether or not environmental) and the Tenant shall
take all such steps as are necessary to ensure that the Premises are
not in any way polluted or contaminated and/or that its Business
(operations) does not pollute or contaminate the Premises or the
commodities of other tenants of the Landlord in any way
whatsoever.
18.7 For the avoidance of doubt, the Tenant records that it is aware of the
possible risk of contamination and warrants that it shall take all
necessary steps to prevent contamination of by any other
contaminant, in, on or around the Premises, including the erection
of the necessary structures to prevent possible pollution and/or
contamination. The Tenant shall notify the Landlord of any
discovery of contamination and should contamination be
discovered, howsoever arising, the Tenant shall bear all costs in
connection therewith, shall take the necessary remedial steps to
remove the contamination (whether or not in or around the
Premises) and the Landlord shall in no way whatsoever be held
liable for any claims related to contamination whether or not such
claim(s) are brought by another tenant(s) on the Premises or any
third party.
18.8 The Tenant shall hold the Landlord harmless in respect of any claims
related to contamination and/or pollution brought by third parties
and shall defend, compromise and/or settle and pay all costs,
damages, awards, fees (including legal fees) and judgments finally
awarded against it or the Landlord arising from such claims, and will
provide the Landlord with notice of any such claims, full authority
to defend, compromise or settle such claims and provide reasonable
assistance necessary to defend such claims, at the Tenant's sole
expense. This indemnity shall apply whether or not the Landlord has
allowed the Tenant to control and manage the defence, compromise
Section VII - Contract Forms 3-21
or settlement of a claim, and the Tenant shall in any event pay all
costs, damages, awards, fees (including legal fees) and judgments
finally awarded against the Landlord arising from such claims.
18.9 The Tenant shall be responsible for its own security arrangements
in respect of the Premises.
19. Inspection
Any officer authorised by the Landlord may, at all reasonable times, but by
prior appointment, enter upon and inspect the Premises for the purposes of
monitoring or ensuring the Tenant’s compliance with the conditions of this
Lease or specifically safety, health and environmental issues as
contemplated in clause 18 hereof, and the Tenant undertakes to afford such
officer all reasonable facilities for such inspection. Such officer, whilst
making use of the said facilities, shall be bound to comply with all safety
and security regulations laid down by the Tenant, provided that the Tenant
informs the Landlord’s representatives, agents, servants, and contractors of
its applicable safety and security regulations.
20. Tenant not to contravene any Laws
During the currency of this Lease the Tenant shall not do, or permit to be
done, anything which may result in a contravention of any law or regulation
affecting the Premises or the Property, or anything which may result in civil
or criminal liability being attached to the Landlord in its capacity as owner
of the Premises.
21. No withholding of Payments
The Tenant shall not, during the currency of this Lease, be entitled to
withhold, delay or defer payment of any amounts due in terms of this Lease,
or apply set off in respect thereof, for any reason whatsoever.
22. Various Obligations
Tenant
22.1 The Tenant shall:
22.1.1 not permit the growth upon the Premises of noxious weeds
and shall comply with the provisions of any law relating to
the eradication of such weeds;
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22.1.2 at all times keep the Premises and the Improvements in a
clean, orderly and sanitary condition to the reasonable
satisfaction of the Landlord;
22.1.3 at all times comply with the Landlord’s environmental
policies, procedures and other applicable regulations (as may
be amended from time to time) and shall do everything
reasonably required to maintain and uphold the
environmental standards applied on the Property as well the
applicable the Petroleum and Gas Standards;
22.1.4 conduct its Business so as not to cause a nuisance or danger
to the occupants of neighbouring properties or third parties
or the public at large or to amount to a contravention of any
statutory regulation or by-law;
22.1.5 not, save in so far as it may reasonably be necessary for the
Tenant to conduct its Business on the Premises, keep or store
on the Premises explosives or flammable goods, substances
or liquids;
22.1.6 not do or display anything, which causes the Premises to
appear unsightly, and
22.1.7 subsequent to the Tenant being in full occupation of the
Premises and the Premises being in full use for the purpose
envisaged not allow the Premises to remain unused for a
period of more than three (3) months without the prior
written consent of the Landlord.
22.1.8 for the duration of this Lease ensure compliance with the
Labour Act No. 11 of 2007 (as amended) including
remuneration and other conditions of work.
22.1.9 maintain good industrial relations with its employees and
take reasonable precautions to prevent any unlawful, riotous
or disorderly conduct by or among its employees and the
Landlord shall forthwith be informed of any labour disputes
or employment issues.
Landlord
22.2. The Landlord shall:
22.2.1 where applicable, provide the Tenant with locality plans of
the Premises and shall be responsible for demarcating the
boundary lines of the Premises by the erection of beacons or
other suitable means.
Section VII - Contract Forms 3-23
22.2.2 where applicable, indicate on the plan the point or points and
the routing by means of which various services are available
to the Premises;
22.2.3 ensure that the Premises are vacant at the time they are to be
ready for occupation by the Tenant;
22.2.4 ensure the Premises delivered shall be that agreed upon;
22.2.5 be obliged to give the Tenant such rights of entry and access
over the Landlord’s Property as is reasonably practicable to
enable the Tenant to enjoy the full use of the Premises;
22.2.6 extend to the Tenant a right to exercise all servitudes (if
any) that may be imposed for the benefit of the Premises;
22.2.5 warrant that no person with a superior title to the Property will
disturb the Tenant’s use of the Premises, unless based on reasons
such as national security, in which event this Lease will be
terminated within the period determined by the Landlord’s
shareholder notwithstanding what is contained elsewhere in this
Agreement.
23. Miscellaneous
Governing Law
23.1 This Agreement is governed by and shall be construed in accordance
with the laws in force in the Republic of Namibia.
Language
23.2 The language used for or in connection with this Agreement shall be
the English language.
Execution
23.3 This Agreement may be executed in any number of counterparts
each of which when executed and delivered shall be an original, but
all the counterparts together shall constitute one and the same
document. For the purposes of establishing whether a document is
an original counterpart, documents delivered by facsimile or by any
means of authenticated electronic transmission shall be deemed an
original counterpart.
23.4 Each Party shall (at its own expense) do and execute or procure to
be done and executed all necessary acts, deeds, documents and
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things within their power as may be reasonably necessary to give
effect to this Agreement.
Costs
23.5 Each Party shall pay its own costs of and incidental to the
negotiation, preparation, execution and implementation by it of this
Agreement.
Unenforceability and Severability
23.6 In the event that any of the terms of this Agreement are found to be
invalid, unlawful or unenforceable, such terms shall be severable
from the remaining terms, which will continue to be valid and
enforceable. In the circumstances contemplated hereinbefore, the
Parties agree to meet and review the matter and if any valid and
enforceable means is reasonably available to achieve the same
object of the invalid provision, to adopt such means by way of
written variation of this Agreement.
No Set-Off
23.7 The Tenant shall not be entitled to set-off any amount due or owing
by the Tenant to the Landlord in terms of this Agreement against
any amount due or owing by the Landlord to the Tenant.
No variation
23.8 No variation of this Agreement shall be valid unless it is in writing
and signed by or on behalf of each of the duly authorised signatories
hereto.
Entire Agreement
23.9 This Agreement constitutes the full and complete consensus
between the Parties in relation to its subject matter and supersedes
all prior negotiations, understandings and agreements with respect
thereto.
No Waiver
23.10 Neither Party shall be regarded as having waived, or be precluded
in any way from exercising, any right under or arising from this
Lease by reason of such Party having at any time granted any
extension of time for, or having shown any indulgence to the other
Party with reference to, any payment or performance hereunder, or
having failed to enforce, or delayed in the enforcement of, any right
of action against the other Party. The failure of either Party to
comply with any provision of this Lease shall not excuse the other
Section VII - Contract Forms 3-25
Party from performing the latter's obligations hereunder fully and
timeously.
Remedies Cumulative
23.11 Except as expressly provided for in this Agreement, the rights and
remedies contained in this Agreement are cumulative and not
exclusive of any rights or remedies provided by law.
Third Parties
23.12 A person who is not a party to this Agreement shall have no rights
to enforce any provision of this Agreement, but this shall not affect
any right which exists or is available apart from this Agreement.
Vis Major
23.13 Neither Party shall be liable for its failure to perform any of its
obligations under this Agreement due to a cause beyond its control
(except those caused by its own lack of funds) including, but not
limited to, war, insurrection, civil unrest, adverse weather
conditions, environmental protests or blockages, acts of God, fire,
flood, explosion, strikes, lockouts or other industrial disturbances,
laws, rules and regulations or orders of any duly constituted
governmental authority or non-availability of materials or
transportation (each of which is an “Intervening Event”).
23.14 All time limits imposed by this Agreement shall be extended by a
period equivalent to the period of delay resulting from an
Intervening Event as contemplated in clause 23.13 above; provided
that a Party relying on the provisions of clause 23.13 above shall
take all reasonable steps to eliminate any Intervening Event and, if
possible, shall perform its obligations under this Agreement as far
as practical, but nothing contained herein shall require such Party to
question or to test the validity of any law, rule, regulation or order
of any duly constituted governmental authority or to complete its
obligations under this Agreement if an Intervening Event renders
performance impossible.
Breach
23.15 In the event of either Party (the “Defaulting Party”) breaching this
Agreement, the other Party (“Aggrieved Party”) may call on the
Defaulting Party by written notice to remedy its breach within
fourteen business (14) days of such notice.
23.16 Should the Defaulting Party fail to so remedy its breach, the
Aggrieved Party shall be entitled to cancel this Agreement by
written notice to the Defaulting Party, such cancellation to be
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without any prejudice to the Aggrieved Party’s right to claim
damages.
23.17 If the Tenant should dispute any termination of this Agreement by
the Landlord and should remain in occupation of the Premises, the
Tenant shall continue paying the Rental and all other amounts due
in terms of this Agreement, and shall continue to fulfil any and all
other obligations in terms of this Agreement pending the
determination of such dispute. The Landlord shall be entitled to
accept such payments without prejudice to any of its other rights or
remedies in terms of law.
23.18 If such dispute is resolved in favour of the Landlord, then any such
payments will be deemed to having been paid on account of
damages suffered by the Landlord as a result of the unlawful holding
over by the Tenant of the Premises.
Dispute Resolution
23.19 In the event of any disputes arising out of this Lease, the Parties shall
first endeavour to resolve such disputes amicably on the highest
possible internal level. If an amicable solution of the dispute is not
possible within a reasonable period of time, the Parties shall follow
the procedure set out hereinafter.
23.19.1 Any dispute between the Parties in connection with the
interpretation or the application of the provisions of this
Lease, its breach or termination, or any documents
furnished by the Parties pursuant to the provisions of or
in connection with this Lease, shall, unless resolved
amongst the Parties, in accordance with clause 23.19 be
referred to and determined by Arbitration (“Arbitration”)
under and in accordance with the provisions of clause
23.19.2 to 23.19.13 below and in line with the Namibian
Arbitration Act of 1965.
23.19.2 The Parties may demand that any dispute referred to in
clause 23.19.1 be determined in terms of this clause by a
written notice to the other Party setting out a brief
description of the nature of the dispute, including the
amount involved, if any, the date on which the dispute
arose, and the relief sought.
23.19.3 The provisions of this dispute resolution clause will not
preclude any of the Parties from obtaining interim relief
on an urgent basis from a court of competent jurisdiction
pending the decision by the Arbitrator.
23.19.4 Arbitration will take place at Walvis Bay or such other
place as the Parties may agree to, with only the legal and
Section VII - Contract Forms 3-27
other representatives of the Parties to the dispute present
thereat.
23.19.5 Any Arbitration shall be conducted in English and in
accordance with the formalities and procedures settled by
the Arbitrator in his or her discretion, and may be held in
an informal and summary manner, on the understanding
that it will not be necessary to observe or carry out the
usual formalities or procedures, pleadings and discovery
or the strict rules of evidence, it being the intention that
the Arbitration will be held and completed promptly and
expediently.
23.19.6 The Arbitrator will be agreed upon by the Parties, and, if
the matter in dispute relates to: -
23.19.6.1 principally an accounting matter, a practising
chartered accountant duly admitted to
practice in Namibia and of at least ten (10)
years standing, and
23.19.6.2 any other matter, a practising legal
practitioner duly admitted to practise in
Namibia and of at least ten (10) years
standing.
23.19.7 Should the Parties fail to agree upon the appointment of
an Arbitrator within ten (10) days after the giving of
Notice in terms of clause 23.19.2 above whether or not
the dispute is principally a legal or accounting matter, the
matter will be deemed to be a legal matter and the
Arbitrator shall be appointed, at the request of either
Party to the dispute, by the President of the Law Society
of Namibia, according to the provisions of this dispute
resolution clause.
23.19.8 The decision of the Arbitrator shall be final and binding
on the Parties to the dispute, and may be made an order
of the High Court of Namibia, subject to either party
having the right to have the decision set aside in terms of
section 33 of the Arbitration Act 42 of 1965. For the
purpose of this Agreement, the Parties hereby submit to
the exclusive jurisdiction of the High Court of Namibia.
23.19.9 The Arbitrator will be entitled to make such award,
including an award for the specific performance, an
interdict, damages or penalty or otherwise as the
Arbitrator in his or her sole discretion may deem fit and
appropriate, and to deal as he or she deems fit with the
question of costs, including, the Arbitrator’s fees. An
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award for costs, made by the Arbitrator is final and
binding upon the Parties and shall be carried into effect
by them.
23.19.10 The provisions of this dispute resolution clause
constitutes an irrevocable consent by the Parties to any
proceedings in terms hereof, the Parties may not consent
to withdraw or claim at any such proceedings that it is
not bound by such provisions and the Parties furthermore
agree that the provisions of this dispute resolution clause
are severable from the rest of this Agreement and will
remain in effect despite the termination of or invalidity
for any reason of this Lease or any part thereof.
23.19.11 The appointed Arbitrator conducting the Arbitration shall
be and remain at all times impartial and independent of
the Parties; and shall not act in the Arbitration as
advocates for any Party. No Arbitrator, whether before or
after appointment, shall advise any Party on the merits or
outcome of the dispute.
23.19.12 The Arbitrator shall make his or her award in writing and,
unless all Parties agree in writing otherwise, shall state
the reasons upon which his or her award is based.
23.19.13 Unless the Parties expressly agree in writing to the
contrary, the Parties undertake as a general principle to
keep confidential all awards in their Arbitration, together
with all materials in the proceedings created for the
purpose of the Arbitration and all other documents
produced by another Party in the proceedings not
otherwise in the public domain, save and to the extent
that disclosure may be required of a Party by legal duty,
to protect or pursue a legal right or to enforce or
challenge an award in bona fide legal proceedings before
a competent court of jurisdiction.
Domicilium citandi et executandi
23.20 All communications and notices by the Tenant to the Landlord shall
be in writing and addressed to:
P.O. Box 361, Walvis Bay, Namibia
Telefax: + 264 – 64 – 208 2302
To be delivered to No. 17 Rikumbi Kandanga Road, Walvis Bay
E-mail address: elzevir@namport.com.na
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and shall be marked for the attention of Elzevir Gelderbloem
Executive : Port Engineering & ICT
23.21 All communications and notices by the Landlord to the Tenant shall
be in writing and addressed to:
P.O. Box [XXX]
Tel: +264 – [XXX] –[XXX]
Telefax: +264 – [XXX] –[XXX]
To be delivered: The Premises/ – [XXX]
E-mail address: –[XXX]
and shall be marked for the attention of –[XXX]
23.22 The Parties choose the addresses as set out in clause 23.20 and 23.21
as their respective domicilium citandi et executandi for all purposes
under this Agreement whether in respect of payment of money, the
service or delivery of court or arbitration process, notices or other
documents or all other communications.
23.23 Any notice or communication required or permitted to be given in
terms of this Agreement will be valid and effective only if it is in
writing, but where, in terms of this Agreement, any communication
is required to be in writing, the term “writing” will include
communications by telefax and e-mail.
23.24 Any Party may by written notice to the other Party change its telefax
number, or the address chosen as its domicilium address, to another
telefax number, address which is not constituted exclusively by a
post office box address; such change will become effective on the
fifth (5th) business day from date of deemed receipt of the notice by
the addressee.
23.25 Any notice to a Party sent by prepaid registered post (by airmail if
appropriate) in a correctly addressed envelope to it at its domicilium
address will be deemed to have been received on the fourteenth
(14th) business day after posting (unless the contrary is proved).
23.26 Any notice to a Party delivered by hand to a responsible person
during ordinary business hours at its domicilium citandi et
executandi will be deemed to have been received on the day of
delivery (unless the contrary is proved).
23.27 Any notice to a Party sent by telefax to its chosen telefax address
will be deemed to have been provided, unless the contrary is proved
at 12h00 noon of the first (1st) business day following the issuance
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by the transmitting telefax machine of a report confirming correct
transmission of all the pages of the document containing the notice.
23.28 Notwithstanding anything to the contrary herein contained, a written
notice or communication actually received by a Party will be an
adequate written notice or communication to it notwithstanding that
it was not sent to or delivered at its chosen domicilium citandi et
executandi.
Review of Agreement
23.29 The Parties acknowledge and agree that due to the long-term nature
of this Agreement circumstances may arise that were neither
contemplated nor foreseen by the Parties at the Signature Date of
this Agreement. Accordingly, and during the currency of this
Agreement, either Party may reasonably and by written notice call
on the other Party to review any particular matter contained in or
relating to this Agreement, in which case the Parties shall
communicate and engage each other in good faith within two (2)
months of such notice with a view of addressing the matter in
question.
Revenue Stamps
23.30 Unless this Lease is lawfully exempted by the Government of the
Republic of Namibia (acting through its relevant Ministry or the
revenue authorities) from payment of stamp duties, the Landlord
shall be entitled to recover from the Tenant stamp duties payable on
this Lease in terms of the provisions of the Stamp Duties Act, 1993,
such stamp duties to be paid on demand by the Landlord but
otherwise in accordance with relevant directives (if any) from the
Government of Namibia (acting through its relevant Ministry or the
revenue authorities).
Termination
23.31 This Agreement shall be terminated in the event that:
23.31.1 the Lease Period has expired;
23.31.2 the Parties mutually agree in writing to terminate this
Agreement;
23.31.3 at the option of the non-defaulting Party, in the event of
the dissolution or liquidation of the other Party or where
a judicial manager, Receiver or similar officer has been
appointed in respect of the defaulting Party or any
material part of the other Party’s assets;
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23.31.4 at the option of the non-defaulting Party, if the other Party
becomes bankrupt or insolvent. As regards the Tenant, it
includes a situation where the Tenant commits or
performs an act which would constitute an act of
insolvency as specified in section 8 of the Insolvency Act
No. 24 of 1936. In the event where sub – letting to a close
corporate or company is approved by the Landlord, and a
resolution is passed in writing for its voluntary winding
up pursuant to section 67 of the Close Corporations Act
No. 26 of 1988 (or section 354 of the Companies Act No.
28 of 2004, whichever is applicable) or where a Party
finds itself in circumstances which would entitle a
competent court to make an order for its winding up under
section 68 of the Close Corporations Act No 26 of 1988
(or section 354 of the Companies Act No. 28 of 2004,
whichever is applicable) (or in the case of a company
where any person entitled by section 351 of the
Companies Act No. 28 of 2004 institutes an application
against the Tenant for winding up.)
23.31.5 at the option of the non-defaulting Party (the "Aggrieved
Party"), in the event that the other Party (the "Defaulting
Party") materially breaches this Agreement and such
material breach is not remedied within thirty (30) days (or
such longer period as the Aggrieved Party may in its sole
discretion decide) of service by the Aggrieved Party of a
written notice demanding such rectification;
23.31.6 at the option of the Landlord (upon giving the Tenant no
less than one month written notice), if the Tenant fails, for
a consecutive three (3) month period, to pay the Rental
Fee in accordance with the terms of this Agreement;
23.31.7 the Premises remains unused (or if there is no activity or
progress) for the period alluded to under sub – clause
22.1.7 without the Landlord’s prior written consent.
23.32 The date on which such termination occurs in accordance with
Clause 23.31 shall be hereinafter referred to as a “Termination
Date”.
23.33 Termination of this Agreement shall be without prejudice to the
rights of any Party accrued prior to such termination, or under any
provision which is expressly stated not to be affected by such
termination including in respect of any prior breach of this
Agreement.
23.34 Notwithstanding anything herein contained, this Agreement may be
terminated by either Party for any reason whatsoever by giving the
other Party at least six (6) months’ notice to that effect.
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Relocation
23.35 It is specifically recorded that the Landlord shall have the option at
any time during the currency of this Agreement to relocate the
Tenant to alternate and reasonably comparable Premises in terms of
land size (“the Alternate Premises”), provided that a notice of
relocation is given to the Tenant in writing.
23.36 The Tenant shall have thirty (30) business days from date of receipt
of a Notice of Relocation to relocate to the Alternate Premises and
the Tenant shall in such event bear the costs of relocation and ensure
that the Premises is restored to the same condition that it was in at
Commencement Date of this Agreement, fair wear and tear
excepted.
23.37 In the event that the Landlord and the Tenant cannot agree on thirty
(30) business days written notice by the Landlord to the Tenant on
the size, location or condition of the Alternate Premises, then the
Landlord shall have the right to terminate this Agreement following
thirty calendar (30) days written notice to the Tenant,
notwithstanding what is recorded in clause 23.31 or 23.34 above.
Confidentiality
23.38 Each Party undertakes not to disclose the contents of this Agreement
in whole or in part to any third party other than its auditors, office
bearers or legal advisor(s) without the prior written consent of the
other Party.
Faxed or Scanned Agreement
23.39 This Agreement shall be valid and binding upon the Parties thereto,
notwithstanding that one or more of the Parties may sign a faxed or
scanned copy thereof, however, such faxed or scanned copy shall
contain the signatures of the both Parties.
Servitude, Wayleaves, Easements, Rights-of-way and related Encumbrances
23.40 The Tenant acknowledges that the Property is and may be subject to
such servitudes, wayleaves, easements and/or rights-of-way and/or
other permitted encumbrances which are currently registered on the
title of the Property and/or may be granted to other tenants throughout
the duration of this Agreement, and which the Tenant agrees to comply
with at all times, subject to sub – clause 23.41 and 23.42 below or any
other reasonable directives that may be issued by the Landlord.
23.41 The Landlord specifically reserves the right to cross the Premises with
servitudes, wayleaves, easements and/or right-of-ways and/or
Section VII - Contract Forms 3-33
easements for drainage, utilities, pipelines, cables, conduits, access or
other purposes required in connection with the operation of other
tenant’s businesses or leases, as long as the exercise of such right does
not substantially interfere with Tenant's use of the Premises, and
where required a separate agreement must be concluded with such
other tenant(s) to the satisfaction of and final approval by the
Landlord.
23.42 The Tenant therefore undertakes that should any approved servitudes,
wayleaves, easements and/or rights-of-way and/or other permitted
encumbrances of another leased premises run across, on, over or under
the Premises, the Tenant shall, if and where required, enter into a
mutual written agreement with such other tenant(s) or grantee(s)
(including in respect of the required access to be granted for
constructing, erecting, furnishing, laying, inspecting, maintaining,
servicing, repairing or decommissioning of any pipes or works), that
is, on terms and conditions that are not inconsistent with this
Agreement and which agreement must finally be approved by the
Landlord and shall not interfere with port operations, safety of
navigation and marine traffic and/or other tenants’ businesses,
operations and/or activities on the Property.
Waiver of Sovereign Immunity
23.43 Any Party that now or hereafter has a right to claim sovereign
immunity for itself or any of its assets hereby waives any such
immunity to the fullest extent permitted by the laws of any applicable
jurisdiction. This waiver includes immunity from (i) any expert
determination, mediation, or arbitration proceeding commenced
pursuant to this Agreement; (ii) any judicial, administrative or other
proceedings to aid the expert determination, mediation, or arbitration
commenced pursuant to this Agreement; and (iii) any effort to
confirm, enforce, or execute any decision, settlement, award,
judgment, service of process, execution order or attachment (including
pre-judgment attachment) that results from an expert determination,
mediation, arbitration or any judicial or administrative proceedings
commenced pursuant to this Agreement. Each Party acknowledges
that its rights and obligations hereunder are of a commercial and not a
governmental nature.
23.44 For the avoidance of doubt, the Tenant acknowledges that the rights
and obligations, as contained in this Agreement, constitute private and
commercial acts by the Tenant. Accordingly, the Tenant hereby
irrevocably waives, for the purposes of the Lease and the provisions
of this Agreement only, any and all rights to claim sovereign immunity
from jurisdiction and execution against the Landlord.
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Change of Ownership
23.45 If at any time during the term of the Agreement there shall be a proposed or
actual Change of Control of one of the Parties, then such Party shall
promptly notify the other Party in writing thereof.
23.46 Within 30 calendar days of becoming aware or receiving notice of the
Change of Control, the Party receiving such notice shall by written notice to
the other Party either consent to the Change of Control or reject the Change
of Control. If such Party rejects the Change of Control, this Agreement shall
terminate by immediate effect, but subject to and upon, the completion of
the actual Change of Control.
23.47 For the purpose of this clause, ‘Change of Control’ means:
23.47.1 the sale of all or substantially all assets of one of the Parties in
connection with any merger, consolidation or acquisition of any of
the Parties with, by or into another corporation, entity or person, or
any direct or indirect change in the ownership of more than fifty per
cent (50%) of the voting shares of any of the Parties in one or more
related transactions; or
23.47.2 the possession, direct or indirect by any person or entity other than
as presently exists, of the power to direct or cause the direction of the
management and policies of any person or entity Controlling any of
the Parties, whether by the ownership of voting share and/or exercise
of voting rights, by contractual rights or otherwise.
23.48 For the avoidance of doubt, any internal reorganisation, restructuring,
change of Accounting Officer (Chief Executive Officer) and change of
Board Members shall not be considered a Change of Control.
No Partnership
23.49 Nothing in this Agreement shall be construed as creating a corporation,
partnership or joint venture between the Parties, and neither Party shall so
represent or hold out to any third party.
23.50 No Party shall act as the agent of the other, and has no authority whatsoever
to incur any liabilities, make contractual commitments or otherwise bind or
commit the other Party in respect of any matter whatsoever. The Parties may
not use or refer to any of the other Party’s marks, or any marks or names of
any of the other Party’s customers, in any way.
23.51 No Party shall appear in court, arbitration or mediation on behalf of the other
Party or accept service of summons, writs or any other notice of legal
proceedings on behalf of the other Party, but shall instead immediately
inform the other Party, should it receive any such proceedings.
Section VII - Contract Forms 3-35
FOR AND ON BEHALF OF THE LANDLORD:
THUS DONE and SIGNED at WALVIS BAY on this the ______ day of
_________________ 2021.
AS WITNESSES:
1._______________________________
ACTING EXECUTIVE: COMMERCIAL
2._______________________________
__________________________________
LEGAL ADVISOR ANDREAS KANIME
CHIEF EXECUTIVE OFFICER
FOR AND ON BEHALF OF THE TENANT:
THUS DONE and SIGNED at _________________ on this the ____ day of
_________________ 2021.
AS WITNESSES:
1._______________________________
2._______________________________
________________________
__________ [XXX]
[XXX]
3-36 Section VII - Contract Forms
SCHEDULE 1
SCHEMATIC DEPICTION OF PREMISES
Section VII - Contract Forms 3-37
SCHEDULE 2
SHEQ Policy
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Section VII - Contract Forms
The forms for Performance Security shall only be completed by the successful Bidder after
contract award.
Section VII - Contract Forms 3-39
APPENDIX TO CONTRACT
PERFORMANCE SECURITY (BANK GUARANTEE)
[The bank, as requested by the successful Bidder, shall fill in this form in accordance
with the instructions indicated]
Date: [insert date (as day, month, and year) of Bid Submission]
Procurement Reference No. and title: [insert no. and title of bidding process]
Bank’s Branch or Office: [insert complete name of Guarantor]
Beneficiary: [insert complete name of Landlord]
PERFORMANCE GUARANTEE No.: [insert Performance Guarantee number]
We have been informed that [insert complete name of Tenant] (hereinafter called "the
Tenant") has entered into Contract No. [insert number] dated [insert day and month],
[insert year] with you, for the lease of property, making of improvements and
conducting of operations and maintenance [description of goods and related services]
(hereinafter called "the Contract").
Furthermore, we understand that, according to the conditions of the Contract, a
Performance Guarantee is required.
At the request of the Supplier, we hereby irrevocably undertake to pay you any sum(s)
not exceeding [insert amount(s) in figures and words] upon receipt by us of your first
demand in writing declaring the Supplier to be in default under the Contract, without
cavil or argument, or your needing to prove or to show grounds or reasons for your
demand or the sum specified therein.
This Guarantee shall expire no later than the [three years after the date of contract
signature], and any demand for payment under it must be received by us at this office
on or before that date.
..........................................Bank’s seal and authorized signature(s)....................................
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