PROJECT
AGREEMENT FOR THE CONSTRUCTION OF A BRIDGE [CD1]
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.
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