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TRIPARTITE AGREEMENT

By Calvin Daniels,2014-12-29 15:21
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TRIPARTITE AGREEMENT

    TRIPARTITE AGREEMENT

    BY AND AMONGST

    [;]

    ( as Utility”)

    And

    [;]

    (as Investor”)

    And

    Bureau of Energy Efficiency

    (as Co-ordinating and Managing Entity)

    Dated: [______________]

    J. SAGAR ASSOCIATES advocates and solicitors

    1[Stamp paper]

    TRIPARTITE AGREEMENT

This Tripartite Agreement (“TPA”) is made on this [•] day of [•] (“Effective Date”) at [•]:

    BY AND AMONGST

[?], a company incorporated under the laws of India, having its registered office at [?],

    represented through its authorized signatory [?], (hereinafter referred to as the Utility,

    which expression shall, unless it be repugnant to the subject or the context thereof, be deemed

    to mean and include its successors and permitted assigns);

    AND

    [?], a company incorporated under the laws of [?], having its registered office at [?], represented through its authorized signatory [?], (hereinafter referred to as the Investor

    which expression shall, unless it be repugnant to the subject or the context thereof, be deemed

    to mean and include its successors and permitted assigns);

     1 Drafting Note: On a stamp paper of appropriate value of the state where this TPU is being executed.

    _______________________ ______________________ __________________

    Bureau of Energy Efficiency Utility Investor

    Page 2 of 8

    AND

BUREAU OF ENERGY EFFICIENCY, a statutory body established by the Government of thIndia, under the provisions of Energy Conservation Act, 2001, having its office at 4 floor,

    Sewa Bhavan, R. K. Puram, New Delhi 110 066, India, represented through its authorized signatory [?], in its capacity as the Bachat Lamp Yojana Co-ordinating and Managing Entity (hereinafter referred to as “BEE”, which expression shall, unless it be repugnant to the subject or the context thereof, be deemed to mean and include its successors and assigns);

    As the context may require, the Utility, the Investor, and BEE, may hereinafter be referred to individually as a Party”, and collectively as the “Parties”.

WHEREAS:

    A. BEE, while acting as the coordinating and managing entity, has developed a Small

    Scale CDM based programmatic approach scheme called Bachat Lamp Yojana

    (“BLY-PoA”), in accordance with the Clean Development Mechanism (“CDM”)

    defined under Article 12 of the Kyoto Protocol.

B. BLY-PoA was approved by India’s Designated National Authority (“DNA”) on

    September 5, 2009 (“Host Country Approval”).

    C. BLY-PoA was registered with the CDM Executive Board formed under UNFCCC

    (“EB”) on April 29, 2010, as a Small Scale Programme of Activities Design

    Document (“SSC-PoA-DD”), setting out the framework for the implementation of the

    BLY-PoA.

D. A Small Scale CDM Programme Activity Design Document (“SSC-CPA-DD”) was

    also prepared by BEE on the basis of the provisions stated in SSC-PoA-DD, which

    SSC-CPA-DD was registered with EB along with the SSC-PoA-DD.

    E. After following the empanelment process, BEE has prepared a list of eligible CFL

    manufacturers, traders, and small scale clean development programme activity

    (“SSC-CPA”) financers (collectively known as “Empanelled Investors”), which list

    has been circulated to all states and electricity distribution companies by BEE via its

    website.

    F. Being desirous of facilitating SSC-CPA(s) using the SSC-CPA-DD template in the

    defined project area within its licensed area of supply (“Project Area”) based on the

    scheme parameters laid down by BEE under the BLY-PoA, the Utility invited the

    Empanelled Investors through its selection process, and selected the Investor out of

    such Empanelled Investors in this regard.

    G. [The Investor has, in accordance with the terms of the Host Country Approval,

    [established an Indian entity in the name of [•] having its registered office at [•]/

    entered into an arrangement with an Indian entity [•] having its registered office at _______________________ ______________________ __________________

    Bureau of Energy Efficiency Utility Investor

    Page 3 of 8

    23[•]].]

H. [The Investor and/ or [•] shall implement the SSC-CPA in accordance with the terms 4of the Host Country Approval and this TPA (“SSC-CPA Implementer”).]

    I. In furtherance of its empanelment with BEE and the selection by the Utility for the

    development and implementation of the SSC-CPA(s), the Investor has entered into 2

    (two) separate bilateral agreements, namely: (i) with BEE, on [?], setting out the

    terms and conditions for the implementation of the SSC-CPA in accordance with the

    terms of the BLY-PoA (“Bilateral Agreement 1”); and (ii) with the Utility, on [?],

    setting out the terms and conditions for implementation of the SSC-CPA(s)

    (“Bilateral Agreement 2”).

    J. The rights and obligations of BEE and the Investor inter-se are provided in the

    Bilateral Agreement 1, and in terms of Clause 19 of the Bilateral Agreement 1, the

    Investor is under an obligation to enter into a Tripartite Agreement with BEE along

    with the Utility, providing for the duties and obligations of itself and the Utility inter-

    se under the Bilateral Agreement 2.

    K. The Parties are now desirous of entering into this TPA setting out the duties and

    obligations of the Utility and the Investor inter-se, as has been agreed between them

    in the Bilateral Agreement 2 for the purpose of the implementation of the SSC-

    CPA(s) in the Project Area(s).

    NOW THEREFORE, in consideration of, and subject to the mutual covenants, the Parties agree as follows:

1. PURPOSE AND INTERPRETATION

    1.1 The purpose of this TPA is to provide and set out an indicative list of the duties and

    obligations of the Utility and the Investor inter-se, as has been agreed between them

    in the Bilateral Agreement 2 for the purpose of the implementation of the SSC-

    CPA(s) in the Project Area(s).

    1.2 Unless otherwise defined herein, the capitalised terms used in this TPA, shall have the

    same meaning, as has been assigned to such term in the Bilateral Agreement 1.

    1.3 The rules of interpretation provided in Clause 1 of the Bilateral Agreement 1 shall

    continue to apply in this TPA.

     2 Drafting Note: Appropriate part only to be retained. The choice of structuring of vehicle of the foreign Investors will be left to them at their own peril. The issues relating compliance with all applicable laws regarding entering into India by foreign Investors including issues relating to FEMA would be the sole responsibility of the Investor concerned 3 Drafting Note: This Recital to be retained only if the Investor and SSC-CPA Implementer are two different entities. If both entities are same, then this Recital needs to be deleted and Investor needs to be defined to include SSC-CPA Implementer. 4 Drafting Note: This Recital needs to be appropriately modified as per the actual position.

    _______________________ ______________________ __________________

    Bureau of Energy Efficiency Utility Investor

    Page 4 of 8

    52. DUTIES AND OBLIGATIONS OF THE PARTIES

    2.1 Investor towards the Utility

The Investor shall:

    (i) ensure the continuous and uninterrupted empanelment of itself with BEE

    during the term of the Bilateral Agreement 2;

    (ii) be bound by operation and management arrangements and such other rules,

    regulations and modalities, as established by BEE for effective

    implementation of the BLY-PoA, and all other decisions taken by COP/ MOP

    to the UNFCCC and EB, from time to time;

(iii) [be responsible for all compliances by the SSC-CPA Implementer of the 8applicable laws during the term of the Bilateral Agreement 2;]

    (iv) ensure that the SSC-CPA-DD meets the requirements of the concerned Indian

    authorities;

    (v) provide to BEE to all the SSC-CPA related data and information upto 2 (two)

    years from the end of SSC-CPA crediting period, as defined under the SSC-

    CPA-DD, or from the last date of issuance of CERs for the SSC-CPA,

    whichever is later;

    (vi) subject to constraints referred to within approved small-scale methodology

    namely AMS II-J (as may be amended by the EB from time to time), a copy

    whereof has been provided to the Investor by BEE, decides to provide a free

    replacement/ warranty for the CFLs to be distributed for implementation of the

    SSC-CPA as per BLY-PoA;

    (vii) the BLY logo marking is displayed on the CFLs to aid monitoring surveys. It

    is recommended that the ink to be used for the logo marking have a life similar

    to that of the expected SSC-CPA crediting period;

    (viii) secure financing, wholly at its own risk and cost, for meeting the investment

    for the SSC-CPAs and the cost differential between the purchasing and

    distribution cost of CFLs;

(ix) make proper arrangements for (a) collection, storage and destruction of

    replaced ICLs, and collection of fused CFLs through appropriate schemes,

    ensuring their safe storage, transportation and disposal, as per the applicable

    environmental laws and other regulatory norms;

    (x) generate awareness about the uses of CFL in all the residential households

    within the Project Area;

     5 Drafting Note: The Investor and the Utility to provide for any other duties and obligations that they may have

    mutually agreed under the Bilateral Agreement 2. 8 Drafting Note: This clause to be retained only if the Investor and SSC-CPA Implementer are different entities.

    _______________________ ______________________ __________________

    Bureau of Energy Efficiency Utility Investor

    Page 5 of 8

    (xi) carry out monitoring and/ or survey of residential households on regular

    intervals as required under the SSC-PoA-DD;

    (xii) maintain appropriate records and develop procedures to implement the SSC-

    CPA within the Project Area including monitoring report, process/ procedure

    for preparation of the monitoring report, verification of emission reduction and

    CER entitlement;

    (xiii) take such steps as are deemed necessary to remedy any defects/ short comings

    in the SSC-CPA-DD as informed to BEE by the DOE and/or the EB;

    (xiv) promptly pay all the fees, costs and expenses, if any, associated with the

    preparation, validation, inclusion and verification of the SSC-CPA-DD,

    including but not limited to the fees demanded by the DOE, EB, survey

    agency, any liability/ expense as may be decided/ demanded by BEE or any

    agency, etc.; and

    (xv) take steps to expeditiously implement the BLY-PoA, distribute CFLs in the

    Project Area.

    2.2 Utility towards the Investor/ SSC-CPA Implementer

The Utility shall:

    (i) have identified and selected the Investor out of the Empanelled Investors

    available on the website of BEE to develop SSC-CPA(s) in the Project Area;

    (ii) define the Project Area with the specifications for the project geographic

    boundary e.g. circle, division, etc for the SSC-CPA wherein the SSC-CPA

    Implementer would be distributing the CFLs to the grid-connected residential

    households and communicate the same to SSC-CPA Implementer;

    (iii) not offer or allow anyone, except the SSC-CPA Implementer, to develop and/

    or implement the SSC-CPA in any part of the Project Area and/ or commence

    or pursue any scheme/ arrangement in parallel for residential household

    lighting in the Project Area, having an adverse impact on the SSC-CPA(s);

(iv) define the category of “residential household” based on state level definition

    and electricity tariff category;

    (v) provide on Investor’s written request, all such necessary information that may

    be needed by the Investor to prepare the SSC-CPA-DD or to fulfill its

    obligations under the terms of the Bilateral Agreement 2 within a reasonable

    period of time, database of all grid connected residential households including

    the name of the users along with their unique consumer numbers, address,

    their average annual electricity consumption and the transmission and

    distribution losses (without commercial losses, where available) for the Project

    Area to the Investor in a reasonable period of time;

    _______________________ ______________________ __________________

    Bureau of Energy Efficiency Utility Investor

    Page 6 of 8

    (vi) provide all necessary support, access and the authority to Investor’s team to

    implement the SSC-CPA in the Project Area;

    (vii) assist monitoring and/ or survey of residential households any Investor

    organized survey/ monitoring of residential households;

    (viii) establish time-lines for carrying out the various tasks to implement the SSC-

    CPA(s);

    (ix) assist in generating awareness amongst residential households on the use of

    CFL by providing Utility personnel to attend any awareness meeting

    organized by the Investor, or through the media space through its notice

    boards within its office/ billing centres, bills and web-site(s);

    (x) extend facilities for distribution of the CFLs, collection of ICLs, and provide

    space in its offices/ billing centres to carry out CFL distribution;

    (xi) make a provision for temporary safe storage of CFLs delivered to the Investor

    until distribution. The Investor may in its sole discretion organise for security

    personnel, insurance cover and take such other measure as it may deem fit

    until the distribution of CFLs. All costs in this regard, shall exclusively be

    borne by the Investor;

    (xii) make a provision for temporary safe storage of replaced ICLs until inspection

    and destruction of ICLs by the Investor;

    (xiii) at its sole discretion, take a decision of automatic cancellation of this

    Agreement if the CFLs have not been distributed within a specified period of

    time as agreed in the Bilateral Agreement 2 between the Investor and the

    Utility.

2.3 Change in Duties and Obligations

    The Investor and the Utility hereby undertake to inform BEE of any change in any of

    the aforesaid duties and obligations, within 15 (fifteen) days of such change.

3. TERMINATION

3.1 This TPA shall automatically stand terminated at the earlier of (a) completion of all

    duties and obligations in the Bilateral Agreement 1 and Bilateral Agreement 2, or (b)

    an early termination of either of Bilateral Agreement 1 or Bilateral Agreement 2.

4. VALIDITY OF OTHER PROVISIONS

    4.1 The other provisions of the Bilateral Agreement 1 and Bilateral Agreement 2, as may

    be applicable herein, shall be mutatis mutandis applicable on the Parties.

_______________________ ______________________ __________________

    Bureau of Energy Efficiency Utility Investor

    Page 7 of 8

IN WITNESS WHEREOF this Tripartite Agreement has been executed on the day and

    year first above written.

UTILITY

    Authorised Representative: Designation:

    Signature:

Company Seal:

Witness:

    Name:

    Signature:

INVESTOR

    Authorised Representative: Designation:

    Signature:

Company Seal:

Witness:

    Name:

    Signature:

BEE

    Authorised Representative: Designation:

    Signature:

Company Seal:

Witness:

    Name:

    Signature:

    _______________________ ______________________ __________________

    Bureau of Energy Efficiency Utility Investor

    Page 8 of 8

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