PROJECT AGREEMENT FOR THE CONSTRUCTION OF A BRIDGE
THIS AGREEMENT made at?????..on this?????..day of........... 2000 between the Governor of State of Maharashtra through the Ministry of Surface Transport and having its office....................(hereinafter referred to as the "Government" which expression shall, unless repugnant to the context or meaning thereof, be deemed to includes its Successors and Assigns) of the ONE PART, Modern Project Co. Ltd., a company incorporated under the Companies Act, 1956 and having its registered office at?????..(hereinafter referred to as the "Project Company" which expression shall, unless repugnant to the context or meaning thereof, be deemed to includes its Successors and Assigns) of the SECOND PART and THE XYZ FINANCE COMPANY LIMITED, a company registered under the Companies Act, 1956 and having its registered off ice at ??????..Delhi (hereinafter referred to as "XYZ" or "Lender"which expression shall, unless it be repugnant to the subject or context thereof, include its successors and assigns). of the THIRD PART;
WHEREAS the Government has developed a new sub-urban known as New Delhi to reduce the population, congestion and pollution in the Metropolitan city of Delhi;
AND WHEREAS there is a sea between Delhi and New Delhi and there is only a big bridge connecting the Delhi with New Delhi;
AND WHEREAS due to passage of time, and due to development of office complexes and residential colonies in New Delhi, the traffic between Delhi and New Delhi has increased many folds and it is not possible for the entire traffic to pass through one bridge and on many occasions, there is big traffic jams for hours on the bridge;
AND WHEREAS it has become necessary that one or two more bridges may be constructed over the sea connecting Delhi to New Delhi and therefore the Government has decided to get the bridge constructed through private entrepreneurs who can construct the said bridge through its own sources and managing finances through Development Banks and then operate the said bridge and recover its expenses and costs for the construction of the bridge by collecting toll tax from the vehicles passing through the said bridge and thereafter transfer the said bridge to the Government after the recovery of the costs, expenses with interest and profits;
AND WHEREAS for the said purpose the Government invited tenders from various big entrepreneurs and contractors who can construct the said bridge over the sea connecting Delhi with New Delhi and after negotiations and discussions, the Government has agreed to award the work of construction and operation of the said bridge to the Project Company on the terms and conditions hereinafter contained;
AND WHEREAS the Lender has agreed to provide finance of Rs. 15 crore to the Project Company for construction of the said bridge and the said Lender has desired to join the Agreement between the Government and the Project Company as Lender for securing its dues;
NOW THEREFORE THESE PRESENTS WITNESS AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:?
In consideration of the Government granting land and right to construct and operate the bridge at the site mentioned in ScheduleI connecting Delhi to New Delhi, hereinafter referred to as the "said bridge" and subject to the terms and conditions and in the manner set forth in this agreement, the Project Company shall execute and complete the said project in accordance with the terms, specifications and amenities set out in Annexure I hereunder written.
2.1 The Government represents and declares that it has already acquired the land admeasuring?????..Sq. Meters for construction of the said bridge and the said land is in its possession from the date of acquisition of the said land. The Government hereby agrees that it will handover the possession of the land at site to the representatives of the Project Company for construction of the said bridge. The Government will also handover the land admeasuring?????..Sq. Meters at both sides of the proposed bridges for construction of the site office and huts for the labourers of the Project Company. The Government hereby declares that (/) the said land which is proposed to be handed over to the Project Company is clear, vacant, and without any encumbrances on the same. If any huts/encroachments are found on the said land, the government will clear the land in all respects, and handover the vacant and peaceful possession to the Project Company for construction of the said bridge (ii) the said land has been tested by undertaking soil tests from M/s?????..Soil Consultants and the said land is fit for construction of the bridge (iii) it has no objection, if the Project Company mortgages the said land with the bridge constructed thereon in favour of the lender for securing the loan amount for the construction of the bridge and the Government will also join as confirming party to the Mortgage deed or any other security documents in favour of the said lender if required. The detailed description of the land to be handed over to the Project Company is given in the Schedule II to this Agreement. The Government agrees that on completion of the said bridge, it will transfer the said land to the Project Company as lessee for a period of years on the terms and conditions set out in the Annexure 11 herein written
2.2 The Government grants the rights to the Project Company to construct the pillars of the said bridge in the sea and for that purpose do any act in the sea. The Government declares and represents that the Central Government, State Government, local or statutory authority will not interfere or stop the Project Company from undertaking the pillars or other construction in the sea for the construction of the said bridge. If the Central Government, State Government, Local or statutory authority interferes or demands any tax, cess, levy, charge or any other cost for undertaking the work in the sea, the State Government will get the problem sorted out of the Project Company from the said authority and if any tax, cess, levy, charge or any other cost is demanded by any authority to undertake the work in the sea, the said tax, cess, levy, charge or any other cost will be reimbursed by the Government on production of receipt for the payment of the same.
3.1 M/s?????..Architects shall be the Architect for the said project, who shall prepare all the necessary site plans, lay out and designs in relation to the said project and supervise the said project in accordance with the terms, specifications and standards and render all services for completing the said project and obtain all the necessary completion and occupation certificates from the concerned authorities for the said project and the Project Company will pay professional fees of the architect
3.2 M/s?????..will be the RCC consultants for the project and the Project Company will pay their professional fees to them in accordance with the terms and conditions settled between the RCC consultants and the project company.
3.3 The Project company will get the site plans for the said project prepared by the Architects and necessary RCC designs by RCC consultants in consultation with and subject to final approval of the Government and get the site plans approved by the concerned authorities at their own cost. However during the execution of the said project, the Government may require the Project Company to make such changes, alterations or modifications in the said plans and the Project company shall get the said alterations or changes duly approved by the local authority or such other authority at their own cost and execute the said alterations, changes or modifications.
3.4 The cost of the entire project is Rs ?????..crores and it is expressly agreed by and between the parties that the project cost shall be inclusive of the cost of the following works:?
(a) Preparation of site plans, architectural, structural and service drawing and obtaining permission for the same from the Municipal Corporation or any other local or statutory authority;
(b) Civil works, including chiseling of earth and construction of pillars;
(c) Finishing, painting and completion of the construction
(d) Fees of the Architects, RCC consultants and other consultants;
(e) Wages for labour, cost of technical supervision for execution of the construction work and all other incidental expenses relating to the execution of the said project;
(f) All other items of work and amenities as per the Second Schedule.
3.5 The Government shall be entitled to appoint its own engineer who is referred to herein as "Government Engineer" to Supervise the progress of the work and inspect the material and workmanship used in the construction work. The said Government Engineer shall be authorized to issue written instructions, details, directions and explanations to the Project Company relating to the following:
(a) Variation, and/or modification of the design, quality or quantity of work or the addition, omissions or substitution of any work;
(b) Removal of any sub-standard material that does not comply with the specifications from the site and to bring the proper material in substitution;
(c) Removal and/or re-execution of any work executed by the Project Company;
(d) Dismissal of any person employed by the Project Company from the works;
(e) Opening up of any works covered up for inspection;
(f) Discrepancy in the drawings between the schedule of quantities and/or drawings and/or specifications
(g) Amending and making good of any defects.
The Project Company shall comply with and carry out the Government Engineer's instructions.
3.6 The Project company shall procure all the equipments and material required for the construction of the said project including sand, cement and steel. However the Government shall co-operate with the Project Company by making applications to the concerned authorities for allotment of commodities like cement, steel, etc. if required. If any equipment or material is to be imported for the construction of the said bridge, the Government will help the Project Company for getting the permission from the Government of India/Reserve Bank of India or any other statutory authority for the same.
3.7 The Project Company shall ensure that during the construction of the bridge, there may be minimum disruption to users of the road near the site of the construction.
3.8 The Project company shall complete the said project within........................ months from the execution of these presents, with the material of best quality and in most substantial and workman like manner and to the satisfaction of the Architect and Government's Engineer and shall abide by the true intent and manner of description, specifications, terms and conditions hereto annexed.
3.9 The Project company shall obtain from the Central or State Government, local or statutory authorities all the licences or permissions required for the construction of the bridge and ensure that all the licences/permits may be renewed and all the terms/conditions laid down in the licences/permits are complied with.
3.10 The Project Company shall also ensure the compliance of the laws, rules, bye-laws and instructions issued by the Government, local or statutory authority in execution of the said project including the labour laws and laws relating to environment.
3.11 The Government shall conduct test from the laboratories mentioned in the Schedule III before issue of acceptance certificate to the Project Company. The Project Company shall give notice to the Government about the completion of the construction work of the project and thereafter the Government shall fix a date for conducting test of various items and for that purpose call the representatives of various laboratories to 'the site and take the samples of the construction material from the site in the presence of representatives of Project Company and the Government. On the date of testing, the representatives of laboratories will come to site and collect the sample of the material as required by them in the presence of the representatives of Government and Project Company. The representatives of Laboratories and Project company shall sign the Memorandum of Sample of the material from the construction site. The project will be inspected and measured jointly by the representatives of the Project Company and the government to ensure that the work has been executed in accordance with the specifications, standards and easurements stated in this agreements and instructions issued by the Architect and RCC Consultant. After the receipt of the report from laboratories, the Government Engineer will issue Certificate of Completion of the Project under his signature with date of issue of the said certificate. If any defect, deficiency or shortcoming is found during the joint inspection of the project or in the report of the laboratories, the Government will intimate the same to the Project Company alongwith the instruction for the rectification of the same, and on receipt of such instructions the Project Company shall immediately rectify such defect, deficiency or shortcoming found. On rectification of such defect, deficiency or shortcoming, the Project company shall intimate to the Government who shall conduct inspection and arrangement for testing of material through laboratories. However the issue of Certificate of Completion of the Project will not relieve the Project Company of responsibility for defects in the construction work.
3.12 The Project Company shall be liable for the payment of all material purchased by it for the construction of the project and the wages of all employees, workmen or staff employed by it for the completion of the said project or for payment to any sub-contractors employed by it, compensation for any injury to person, animals or things which may arise from the operation or neglect of the Project company or their employees, sub-contractors or their employees, whether such injury or damages arise from carelessness, accident or other cause whatsoever, in any way connected with the carrying out of construction of the project and the Government will not be liable for any payment in this regard. The Project Company shall indemnify and keep the Government, its successors and Assigns indemnified from and against all claims, demands, actions, proceedings, losses, damages, recoveries, judgments, costs, charges and expenses which may be made or brought or commenced against the government or which the Government may or may have to bear, pay or suffer, directly or indirectly from the execution of the said project by the said Project Company
3.13 The Project company shall not without written consent of the Government, assign the contract of construction of the project to any other person. However the Project company may appoint subcontractors for completion of specified jobs without any written consent from the Government.
3.14 The Project Company shall furnish performance guarantee for a sum of Rs . ?????.. from some scheduled Bank guaranteeing the completion of the project. If the Project Company fails to complete the project within the stipulated period, the government will be entitled to demand the amount of performance guarantee from the bank furnishing the said performance guarantee. In case the delay is caused owing to acts or omission of the Government, the Government will allow the extension of period of the concession to compensate the delay.
3.15 If an order for compulsory winding up is made against the Project Company or if the Project Company passes a resolution for winding up voluntarily or subject to the supervision of the Court and the official liquidator has been appointed in such acts of winding up as the case may be, or if the Project Company shall suffer execution or other process of court attaching property to be issued against the Project Company or shall suffer any payment under this Agreement to be attached by or on behalf of any creditors of the Project Company or shall assign or sublet this agreement without the consent in writing of the government first hand and obtained, or shall charge, encumber this agreement or any payments due or which may become due to the Project Company hereunder except the Lender; or if the Architect shall certify in writing to the Government that the Project Company has abandoned the work or have failed to commence the works or have suspended the progress of the works for fourteen days, without any lawful excuse or have failed to proceed with the works with due diligence and failed to make such due progress, as would enable the works to be completed within the stipulated time or have failed to remove the materials from the site or pull down and replace work for seven days after receiving from the Architects or Government Engineer written notice that the said material or work is defective or not according to specifications or have neglected or failed persistently to observe and perform all or any of the acts, matters or things by this agreement to be observed and performed by the Project Company requiring them to observe or perform the same, then the Government may determine the contract after giving fifteen days notice in writing to the Project Company. However on such termination of the contract, the powers of the Architect or the obligations and liabilities of the Project Company shall not be affected and shall continue in full force, as fully as if the contract had not been so determined. And the Government by its servants or agents may enter upon and take possession of the works and all material, tools, scaffoldings, sheds, machinery, etc. lying upon the site or the adjoining lands or roads and use the same as their own property or may employ the same in carrying out and completing the works by employing any other Project Company or other person or persons employed for completing the works or using the material and tools for the works. The Architect shall ascertain and certify in writing the value of the work undertaken by the Project Company and the value of material and tools so taken possession of by the Government and the expenses or loss which the Government has been put to in procuring the works to be completed and the amount which shall be so certified, shall become payable by the Government and the Government may handover the work of the project to any other Entrepreneur or other Project Company, who shall make the payment to the Project company on the terms and conditions to be agreed by the other project company, government and the present Project Company.
3.16 In case any dispute or difference arises between the parties, whether in respect of specifications, designs, drawings and instructions mentioned in these presents, as to the quality of material used or the quantity of workmanship or in respect of alterations suggested by the Government or Architect or extra work required to be done or executed or in respect of measurements of work done or otherwise concerning the work or the execution, or failure to execute the same, whether arising during the progress of the work or after the abandonment thereof shall be referred to arbitration and final award of a single arbitrator, if the parties thereto agree in writing (failing which to two arbitrators, one to be appointed by each party) on a reference made to him by any of the parties by notice in writing, a copy whereof shall be sent to the other party. The said notice shall specify the matters which are in dispute or difference and such matters only and no others will be referred to arbitration. The Arbitrators shall appoint Presiding Arbitrator before entering upon the reference. The parties shall produce before the arbitrator/arbitrators all books deeds, papers, accounts, vouchers, site plans, drawings and documents within their possession or control which the arbitrator or arbitrators as the case may be, may require and call for in his or their judgment relating to the matters referred to arbitrator/arbitrators. If any party neglects or refuses to attend on the reference, without having sufficient cause shown to the said arbitrator or arbitrators, the arbitrator or arbitrators shall be at liberty to proceed ex parte. If during the arbitration proceeding, any arbitrator dies or becomes unable to act or refuses to act, the party who had nominated him, shall appoint another arbitrator to fill up vacancy within one week of such event. If no arbitrator is appointed in his place, the remaining arbitrator shall become the sole arbitrator and shall adjudicate upon the disputes referred to arbitration. The arbitrator or arbitrators as the case may be, shall record proceedings in English, a carbon copy whereof shall be furnished to each party free of cost. The parties shall provide necessary secretarial assistance to the arbitrator or arbitrators. The proceedings of the arbitration shall be held in?????..the rent whereof shall be borne by the parties equally. The arbitrator or arbitrators as the case may be, shall be entitled to consult any expert, after previous notice to the parties, the cost whereof shall be borne by the parties equally. The arbitrator or arbitrators as the case may be, shall give his or their award within six months from the date of entering upon the reference or such further extended time as may be decided by them. This reference to arbitrator shall be deemed to a submission to arbitrator within the meaning of Arbitration and Conciliation Act, 1996 or any statutory modification thereof. The award of the arbitrator or arbitrators as the case may be, shall be final, conclusive and binding. The parties agree that arbitration under this clause is a condition precedent before any suit for the enforcement of any right under these presents can be brought in any Court. If any question, dispute or difference is referred to arbitration, the Project Company shall not delay or stop the work but shall proceed with the works with due diligence and the Project Company shall not be relieved from their obligations, unless the Government's Engineer gives a certificate of completion of the work.
3.17 After the completion of the work of the project, the Project Company will demolish the site office and huts constructed near the site for workmen and remove the material lying on the said land roads, adjoining plots or near the said land. The Project Company shall be responsible for clearance of the site after completion of the work.
3.18 The Project Company shall within one week from the date of commencement of the works, insure the works and keep them insured until the project is completed in all respects against loss or damages by fire, earthquake, flood, cyclone, etc. with an insurer in the joint names of the Government, Project Company and the lender for the full amount of the contract and for any further sum, if called upon to do so by the Government. The Project Company shall deposit the insurance policy and receipts for the premia with the Government within fourteen days from the commencement of the works, unless otherwise instructed by the Government. In case the Project Company fails to insure as provided above, the Government may so insure the works and may recover the premium paid from the Project Company.
4.1 After the issue of Certificate of completion of the Project by the Government's Engineer, the Project Company shall commence the operation and maintenance of the contract. The Project Company may assign the right to maintain and operate the project to any other person or company with the prior consent of the Government in writing. The Government may accord its consent to the transfer either without any condition or subject to terms/conditions laid down in the said consent letter.
4.2 The Government hereby grants concession/licence to the Project Company to collect toll from all the vehicles passing through the said bridge for a period of?????.from the commencement of operation of the project for recovery of its costs and expenses incurred by it on the construction of the said bridge along with interest and profits thereon. The toll structure will be decided on the basis of formula given in Schedule III to this agreement. The Government hereby undertakes and confirms that this concession/licence granted to the Project Company shall not be cancelled or suspended under any circumstances except in accordance with the terms of these presents.
4.3 The Project company shall maintain an account of collection of toll regularly and will adjust 60% of the toll collected towards the adjustment of the costs and expenses incurred by it on the construction of the said bridge along with interest and profits thereon and if the total amount spent by the Project Company is not been able to be adjusted during the?????..year period from the commencement of operation of the project, the Project Company may furnish a proposal for extension of concession period along with the copy of the accounts for the entire period and the Government will decide on the proposal and advise the Project Company as to whether the Government has decided to grant concession period granted to it for collection of toll or not. The Government in its decision in this regard shall specify the reasons for rejecting the proposal of the Project Company and the decision of the Government in this regard shall be final and binding on the Project Company.
4.4 During the operation period, the Project Company shall maintain the bridge properly, so that there may not be any damage to the bridge due to normal wear and tear or by use of the said bridge by the motorist and other users. The Government's Engineer will have the right to inspect the bridge during the operation period and if any defect or shortcoming be found by the Government's Engineer in the maintenance of the bridge by the Project Company, the Government's Engineer may issue instructions to the Project Company the manner in which the bridge should be maintained and to do certain act or thing for the proper maintenance of the bridge and the Project Company shall be bound to comply with such instructions issued by the Government's Engineer.
5.1 After the expiry of the concession period, the Project Company shall transfer the entire project along with the lease hold rights to the Government. At the time of transfer of the said bridge, the Project Company shall?
(a) deliver all the plans, detailed drawings including Architecture and RCC drawings and specifications of the project to the Government;
(b) warrant and give guarantee that the bridge is in a good condition, has been properly maintained and meet the minimum construction and performance standards required by the Project Agreement;
(c) deliver the accounts of the collection of toll during the entire operation period;
(d)assign the contracts/warranties available in respect of the project, at the time of the transfer in favour of the Government
5.2 The cost relating to transfer of the project to the government including stamp duty, registration charges, fees for new licences/permits, employee termination cost and legal fee, etc. at the end of concession/licence period will be borne by the Government.
5.3 The Project Company shall while transferring the bridge shall handover the physical possession of the bridge to the representatives of the Government along with the execution of transfer deed in favour of the Government.
6 All the material, equipment, works, amounts payable under these presents shall be subject to lien of the Lender. After the completion of the project, and during the operation period, the toll collected by the Project Company shall be shared by the Project company with the Lender in accordance with the terms and conditions of the agreement proposed to be executed between the Lender and the Project Company. In case the Project Company fails to pay the required portion of the toll collected by it, the Lender may be entitled to take over the operation of the project itself through its representatives and in order to ensure that each and every part of this clause shall be carried out by the Project Company, the Project Company hereby grants to the Lender in accordance with section 10 of the Power of Attorney Act, 1971 the power to take as the Project Company's Attorney any action necessary to ensure the Project company's compliance with this clause.
7.1The Government agrees and undertakes that it will not award any project, which may compete with the Project Company for the license period granted to the Project Company. However if due to some abnormal circumstances, it appears to the Government that the traffic from Delhi to New Delhi has increased to that extent that it has become necessary for it to provide new bridge on the sea, the Government will advise the Project Company and offer the construction of new bridge to the Project Company and in case the Project Company does not accept the offer of construction of new bridge, the said work will be awarded to any other company on the terms/conditions acceptable to the Project Company.
7.2 The Government agrees and undertakes that it will ensure that the construction of the project be protected from any laws, which may be passed in future.
7.3 The Government and Project Company agree that the information and technology of the parties to this agreement relating to the project including drawings, designs, pecifications and standards of the project may be kept confidential and may not be disclosed to any
party, except compelled by law.
7.4 The Government and the Project Company will co-operate with each other in execution of the project work, so that the work relating to construction, operation and maintenance of the project may be executed properly and without any hindrance.
7.5 The parties shall not be responsible for failure to perform the obligations under these presents due to force majeure, which shall include but not to be limited to fires, floods, riots, strikes, labour disputes, freight embargo, or transportation delays, shortage of labour, inability to secure material, equipment or on account of shortage thereof, or any other cause, all of which shall be beyond the reasonable control of such party. If force majeure shall occur, the affected party shall promptly give notice thereof to the other party, and use best efforts to cure or correct such event of force majeure. In the event of force majeure shall continue for a period of six months, either party shall have the right to terminate this agreement.
7.6 This agreement may be amended only by a writing signed by the duly authorized representatives of both parties and specifically referring to itself as amendment to this agreement.
7.7 Notices and other communications under this agreement shall be in writing addressed as indicated in the description of the parties herein or as either party may request in writing and the effective date of each is the date of its prepaid deposit in the mail for dispatch by air orsuch service properly addressed. Any notice sent by cable, telex or facsimile shall be deemed to have been served on the next day following the date of dispatch thereof.
7.8 Any relaxation, forbearance, delay or indulgence on the part of any party in enforcing any of the terms and conditions of this agreement or the granting of time by any party to the other party shall not prejudice, affect or restrict the rights of that party hereunder nor shall any waiver by any party of any breach hereof operate as a waiver of any subsequent or any continuing breach hereof.
7.9 It is hereby agreed between the parties that the time is the essence of this agreement.
7.10 This agreement shall be executed in Triplicate. The original shall be retained by the Project Company, the duplicate by the Government and the triplicate by the Lender.
7.11 The stamp duty and all other expenses in respect of this agreement and duplicate thereof shall be borne and paid by the Project Company
7.12 The headings of the clauses of this agreement are meant only for convenience of reference and shall not in any way be taken into account in the interpretation of these presents,
IN WITNESS WHEREOF the parties hereto have executed these presents and duplicate copy thereof on the day and year hereinabove written.
The Schedules above referred to
Signed and delivered by the within named
The Governor of Maharashtra state, by the hands of Shri?????..authorized signatory
in the presence of
1 .
2.
Signed and delivered by the within named
Modern Project Co. Ltd. by the hands of Shri ?????..Managing Director Thereof in the presence of
1 .
2.
Signed and delivered by the within named ABC Finance Company Ltd. by the hands of
Shri ?????..Managing Director thereof In the presence of
1 .
2.