AGREEMENT
BETWEEN A FINANCE COMPANY AND THE CONSULTANT FOR CONDUCTING SURVEY FOR THE
CONSIDERATION OF PROPOSAL FOR THE CONSTRUCTION OF AIRPORT[CD1]
This is the agreement
between XYZ Limited, a company incorporated under the laws of…………..having its
Registered office at…………..(hereinafter referred to as "XYZ and ABC Finance
and Industrial Development Company Limited, a company incorporated under the
Companies Act,1956 and having its Registered office at..............Mumbai
(hereinafter referred to as "ABC,") under which ABC has engaged XYZ
to perform services as described herein.
1.
Services
During the term of this
agreement, XYZ will provide to ABC the services described in Attachment A. XYZ
will be pleased to consider and may perform additional or alternative services
but only if and to the extent XYZ acknowledges in writing its intention and
undertaking to do so.
2.
Confidentiality
XYZ acknowledges its,
responsibility, both during and after the term of its engagement hereunder, to
preserve the confidentiality of proprietary or confidential information or data
developed by XYZ on behalf of ABC or disclosed by ABC to XYZ. Nevertheless,
XYZ's obligation to maintain the confidentiality of any -information developed
by XYZ that it maintains in its possession or. control will expire on. the
third anniversary of completion of the engagement, subject to agreement by ABC,
XYZ's obligation under this section 2 will not apply to information that (i) is
or becomes generally available to the public (other than as a result of a
disclosure by XYZ, (ii) was available to XYZ on a non-confidential basis prior
to its disclosure by ABC, (iii) becomes available to XYZ on a non-confidential
basis from a person other than ABC who, to the Knowledge of XYZ, is not bound
by a confidentiality agreement with ABC or otherwise prohibited from
transferring such information to XYZ (iv) ABC agrees that the information may
be disclosed or (v) XYZ is requested pursuant to, or required by, law,
regulation, legal process or regulatory authority to disclose.
3.
Information
ABC acknowledges that XYZ's
work and analysis will be based, to a large extent, upon information furnished
by ABC or that is otherwise publicly available, and that XYZ will rely upon
such information without independent verification of the accuracy, completeness
or truth of such information. ABC acknowledges that XYZ will have no liability
or responsibility for the accuracy or completeness of such information or for
any erroneous analysis or conclusions which are based upon such information,
except to the extent resulting directly from XYZ's gross negligence, bad faith
or willful misconduct.
4. Nature
of Relationship
ABC acknowledges that all
reports opinions and advice (Written or oral) given by [XYZ to ABC in
connection with XYZ's engagement hereunder are intended solely for the benefit
and use of ABC. ABC agrees that no person or entity other than ABC shall be
entitled to make use of or rely upon the reports, opinions or advice provided
by XYZ. No such report, opinion or advice shall be used for any purpose other
than as specified in section 1 or reproduced, disseminated, quoted or referred to
at any time, in any manner or for any purpose not expressly permitted under
section 1, without XYZ's prior written consent. ABC shall not make any public
references to XYZ or uses XYZ's name in any annual reports or any other reports
or releases of ABC, without XYZ's prior written consent.
ABC acknowledges that XYZ
and its affiliates are in the business of providing advisory and consulting
services for hire. The performance by XYZ of services for ABC as contemplated
hereby shall not be (and nothing in this agreement shall be construed to)
limited or restrict XYZ in performing the same or similar services for, others
or otherwise from conducting its business.
XYZ will perform its
services hereunder as an independent contractor and not as an agent, employee
or affiliate of ABC. Any duties of XYZ arising out of its engagement hereunder
are owed solely to ABC.
5.
Compensation
Professional fees for this
assignment will be $30,000. The cost of expenses covering travel,
accommodation, disbursements, copying, data acquisition and related expenses as
incurred will be $10,000. Tax will be additional if applicable.
ABC will be solely
responsible for payment of, and providing documentation for, withholdings or
levies of any kind which may be applicable to XYZ 's invoices to ABC.
including, without limitation, VAT taxes and excise taxes. XYZ will be entitled
to receive full payment, in currency of the United Kingdom and within the
United Kingdom, of its invoices, without any offset or withholding of any
nature whatsoever. Should this provision be determined to be unenforceable,
with the effect that such a deduction or withholding is compulsory, XYZ will be
entitled to retroactively adjust its invoices so that it will receive net
proceeds of payment, after such deduction or withholding, equal to the amounts
stated in its original invoices.
6.
Compensation for Testimony
Should XYZ or its personnel
be required by any person for any default of client or requested by ABC to
provide documentary evidence or testimony in connection with any proceeding
arising from or relating to XYZ's engagement, ABC will pay all reasonable
expenses (including reasonable attorney's fees, charges and disburse merits)
incurred by XYZ in complying therewith and, in addition, ABC will pay, the then
customary hourly rates for XYZ's personnel for. time spent preparing
documentary evidence, giving sworn testimony and preparing therefore.
7.
Billing
The initial 60% of the fees
are payable before commencement of the work. XYZ will provide ABC with an
invoice for, the expenses and remainder of the fees on completion. Payment is
due upon receipt of an invoice.
In the event XYZ does not
receive payment of any invoice within 30 days after delivery of the invoice to
ABC, XYZ may require ABC to pay late charges at the rate of 1.5% per month on
the overdue balance, ABC will reimburse XYZ for all expenses (including
reasonable attorneys fees, charges and disbursements) incurred in enforcing
this agreement or collecting overdue invoices.
8.
Term
Either party to this
agreement may terminate XYZs engagement to perform services hereunder at any
time by delivery to the other party of, written notice to that effect. The
provisions of sections 2, 3, 4, 6. 7, 9, 10 and this section 8 shall survive
any, such termination. Should ABC terminate the engagement prior to completion
of the full scope of services contracted for, ABC shall pay the full amount of
any fixed estimated, and/or contingent compensation specified in section 5.
Should XYZ terminate the engagement prior to completion of the services
contracted for, XYZ shall account for the expenses incurred and refund the
amount not spent.
9.
Miscellaneous
This letter (including the
attachments referred to herein) is the entire agreement between the parties
with respect to its subject matter, supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter and cannot be waived, amended, otherwise modified or terminated
except in writing executed by each party to be bound thereby.
10.
Governing Law
This agreement shall be
governed by and construed in accordance with the laws of the India applicable
to contracts made and to be performed wholly therein and without regard to
conflict of principles of law.
11.
Waivers
In no event shall any party
to this agreement be liable to any other party for any consequential, punitive
or speculative damages (including, without limitation, damages for lost
profits); except that if consequential, punitive or speculative damages are
awarded to a third party, the party suffering the damages shall be indemnified
by the other defaulting party against such damages.
To confirm the foregoing
agreement, kindly date and sign this letter in the spaces provided below and
return one copy to XYZ for our records.
Yours faithfully For XYZ Ltd.,
Vice-President
Accepted and Agreed:
For ABC Finance and
Industrial Development Company Ltd
By:
Name:
Title:
Date:
Attachment A
Requirements
of the Study
Attachment
A
Scope
of Study
The traffic study shall review, extend,
revalidate the traffic studies done earlier for the [ ] airport
(i)
Review the data and assumptions of the earlier study
(ii)
Update passenger traffic statistics.-The
demand baseline to be revised by collecting and analysing Indian passenger
traffic statistics for domestic and international travel (iii) Schedules data analysis.-An analysis shall be made of the air
service levels at the time of the original forecast, and current service
levels. Scheduled and charter service will be examined by route and by airline
for all relevant airports
(iv)
Airline
service Intentions.-Discussions to be held with
relevant airlines regarding their developments since the previous forecast and
projected in terms of fleet development, route development, network, schedule
and alliances. The impact of airport developments at …………..International
Airport to be examined
(v)
Economic
and demographic development-The baseline assumptions for
economic, population and other relevant demographic factors shall be assessed
against current trends. The impact on the growth scenario has to be assessed
(vi)Cargo
development.-All factors relevant to cargo
development will be assessed; in particular economy/trade, air service
development, development of other airports, International Airport facilities
current and projected
(vii)
Other Relevant Factors.-Other relevant factors shall
be examined, as discussed between ABC and XYZ.
(viii)Forecast
categorywise air traffic growth over the next twenty years -Domestic,
International, Cargo,
Aircraft Movement (by type)
(ix)
Peak-hour
and peak day traffic volumes.-The traffic forecasts
should critically assess peak-hour/peak day traffic volume, which would be used
for determining airport capacity.
(x)
All
forecasts shall be done for three scenarios.-Pessimistic,
Moderate and Optimistic based on the relevant demand drivers. These forecasts
would form the primary output of this study, and would be used by the Bidders
as part of their Airport Development models
(x)
Reports.-The data and reports shall be presented to
the Client in the form of Printed Reports and electronic copies. All raw data
shall also be included as annexures to the Reports.
ABC shall provide the
Consultants any data that may be available with them. The Consultant shall have
the full onus (and costs) of any visits required for meetings, discussions and
collection of data. The Consultant shall also use and make available their own
previous study reports and data.
5.2 It is expected that this
programme of work will have the following stages:
• Initial
discussion between ABC, Financers, Government Authorities
• Meeting
with relevant information providers
• Data
collection and analysis
• Presentation
and discussion of draft report
• Finalising
of report
• Clarifications
to Bidders
5.5 All users of the data
shall be made aware that this is a validation of previous forecasts for initial
guidance and that they should undertake their own research and forecasts to
support their investment decisions.
6.
Time Schedule and Payment
It is stressed that the
above study is to be conducted on a fast track to enable Bidder's to use the
data in their time schedule. The study shall be completed within 4 weeks time
from the date of award.
0 Comments
Thank you for your response. It will help us to improve in the future.