water and sanitation concession agreement - example 1 annexures ...

upgrading, expansion, rehabilitation, maintenance, operation and management
of water and Sanitation Services forming the subject matter of the Concession
Contract;
iii. “Contract” means the written Concession agreement for the award of the
Concession to and the exercise thereof by the Concessionaire, concluded
between the Council and the Concessionaire dated [ ], in terms of which this
guarantee is issued;
iv. “Council” means ;
v. “guarantor” means ;
vi. “Lender” means ;
vii. “maximum amount” means the amount referred to in paragraph 5 hereof.
c. expressions defined in this Performance Guarantee shall bear the same meanings
as defined in the Contract which do not themselves contain their own definitions.
i. if any provision in a definition is a substantive provision conferring rights or
imposing obligations on any Party, notwithstanding that it is only in the
definition clause, effect shall be given to it as if it were a substantive provision
in the body of the Contract;
ii. when any number of days is prescribed in this Contract, same shall be
reckoned exclusively of the first and inclusively of the last day unless the last
day falls on a Saturday, Sunday or public holiday in [country], in which case
the last day shall be the next succeeding day which is not a Saturday, Sunday
or public holiday in [country].
iii. where figures are referred to in numerals and in words, if there is any conflict
between the two, the words shall prevail.
2. GUARANTEE
On the terms and conditions set out herein, the guarantor hereby guarantees and
undertakes to pay to the Council and/or the Lenders an amount calculated in
accordance with 26.4 of the Contract on account of the Concessionaire’s failure to
perform or non-performance of its obligations in terms of or pursuant to the Contract.
3. PROCEDURE
a. Should the Concessionaire breach any of its obligations to the Council in terms of
or pursuant to the Contract, which breach entitles the Council and/or the Lenders
to call upon the guarantor to pay in terms of clause 57 of the Contract and should
the Council and/or the Lenders wish to claim an amount from the guarantor
hereunder, then the Council and/or the Lenders shall -
i. in addition to any requirement of the Contract, deliver a written notice to the
Concessionaire, with a copy simultaneously sent to the guarantor and to the
other of the Council and/or the Lenders, notifying the Concessionaire of the
breach giving rise to the enforcement of the Performance Guarantee and
requesting the Concessionaire to remedy the breach within 60 (sixty) days of
receipt of such notice.
22
PPP in Infrastructure Resource Center for Contracts, Laws and Regulations (PPPIRC) Reviewed: Victoria R. Delmon, LEGPS
http://www.worldbank.org/ppp November 2007