Draft Lease Cum Development Agreement - Uttar Pradesh Tourism
Draft Lease Cum Development Agreement - Uttar Pradesh Tourism
Draft Lease Cum Development Agreement - Uttar Pradesh Tourism
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DEPARTMENT OF TOURISM<br />
GOVERNMENT OF UTTAR PRADESH<br />
DRAFT LEASE CUM DEVELOPMENT AGREEMENT<br />
Between<br />
And<br />
For<br />
<strong>Development</strong> of <strong>Tourism</strong> Properties at __________________________<br />
1
This LEASE CUM DEVELOPMENT AGREEMENT mutually agreed and entered into on<br />
the _______ day of _______ (month) ___________ (year) at Lucknow.<br />
Between<br />
Government of <strong>Uttar</strong> <strong>Pradesh</strong> (GoUP) acting through its Director General, Department of<br />
<strong>Tourism</strong> having its office at Paryatan Bhawan, C-13, Vipin Khand, Gomti Nagar, Lucknow:<br />
226 010, (hereinafter referred to as the “Lessor” or “Authority which expression shall<br />
unless repugnant to the context include its successors) of the One Part.<br />
And<br />
____________________________, a company incorporated under the provisions of the<br />
Companies Act, 1956 and having its registered office at __________________, represented<br />
through its authorised representative Mr. __________________(hereinafter referred to as the<br />
“Lessee or Developer” which expression shall include unless repugnant to the context its<br />
successors ) on the Other Part.<br />
Authority and Developer are hereinafter collectively referred to as “Parties” and individually<br />
as “Party”.<br />
2
WHEREAS<br />
1. The Authority is an agency established by Government of <strong>Uttar</strong> <strong>Pradesh</strong> (“GoUP”) for<br />
the purpose of development of tourism, operation, management and maintenance of<br />
tourism properties like Rahi Tourist Bunglows, Hotels, Motels, Resorts, Restaurants<br />
etc. (hereinafter referred to as the “Unit”) and other activities in the state of <strong>Uttar</strong><br />
<strong>Pradesh</strong>.<br />
2. With the objective of providing upgraded facilities to users, better management,<br />
promoting tourism and unlocking the commercial value of the Properties, the Authority<br />
proposes to lease these Properties to private sector party for design, finance,<br />
development, construction, up-gradation, modernisation, operation, maintenance and<br />
management (the “Project”), in accordance with the terms and conditions set forth<br />
herein.<br />
3. Accordingly, the Authority invited proposals from interested parties through a single<br />
stage transparent and competitive bidding process to develop these identified<br />
Properties. In response thereto, the Authority received proposals from various parties<br />
for implementing the Project. Pursuant thereto, after evaluation of all the proposals<br />
received for ________________ Property located at_________________, the Authority<br />
accepted the proposal of the Selected Bidder and accordingly issued a Letter of Award<br />
bearing No. ______ dated _____ requesting the Selected Bidder to execute the <strong>Lease</strong><br />
cum <strong>Development</strong> <strong>Agreement</strong>, which the Selected Bidder has acknowledged through<br />
the Letter of Acceptance No. _______ dated __________.<br />
4. Thereafter, the Authority has agreed to grant the lease to Develop, Operate, Manage<br />
and Maintain the Property throughout the <strong>Lease</strong> Period in accordance with the<br />
provisions of this <strong>Lease</strong> cum <strong>Development</strong> <strong>Agreement</strong>.<br />
5. In lieu of Grant of the <strong>Lease</strong>, the Developer has paid the Annual <strong>Lease</strong> Rent of Rs ___<br />
Crore (Rupees ______ Crore) only to the Authority, through a Demand <strong>Draft</strong><br />
dated____________ drawn on _____________.<br />
6. The Developer has also submitted an Upfront Fee of Rs _________ (Rupees ______<br />
Lakhs) only to the Authority, through a Demand <strong>Draft</strong> dated____________ drawn on<br />
_____________.<br />
7. The Developer has also submitted the requisite Performance Security in the form of an<br />
irrevocable and unconditional Bank Guarantee of Rs _________ (Rupees ______<br />
Lakhs) only dated __________ issued by _____________ to the Authority.<br />
The Developer represents and warrants that they have duly fulfilled all the terms and<br />
conditions necessary for the execution of this <strong>Lease</strong> cum <strong>Development</strong> <strong>Agreement</strong> as per the<br />
terms contained in the RFP documents and are in a position to execute this <strong>Lease</strong> cum<br />
<strong>Development</strong> <strong>Agreement</strong> and implement the Project as envisaged in the RFP and this <strong>Lease</strong><br />
cum <strong>Development</strong> <strong>Agreement</strong>.<br />
The Developer has fulfilled all the Conditions Precedent to signing the <strong>Lease</strong> cum<br />
<strong>Development</strong> <strong>Agreement</strong>.<br />
3
NOW THERFORE in consideration of the foregoing and respective covenants and<br />
agreements set forth in this <strong>Lease</strong> cum <strong>Development</strong> <strong>Agreement</strong>, the sufficiency and<br />
adequacy of which is hereby acknowledged, and intending to be legally bound hereby,<br />
the Parties agree as follows:<br />
ARTICLE 1 : DEFINITIONS AND INTERPRETATION<br />
1.1. Definition<br />
In this <strong>Agreement</strong>, the following words and expressions shall, unless repugnant to the<br />
context or meaning thereof, have the meaning hereinafter respectively ascribed/<br />
assigned to them hereunder:<br />
“<strong>Agreement</strong> or <strong>Lease</strong> cum <strong>Development</strong> <strong>Agreement</strong>” shall mean this <strong>Agreement</strong><br />
including the Schedules hereto, and any amendments thereto made in accordance with<br />
the provisions contained in this <strong>Agreement</strong>.<br />
“Annual <strong>Lease</strong> Rent” shall mean the Annual <strong>Lease</strong> Rent payable by Developer to the<br />
Authority.<br />
“Annual Revenue Share” shall mean 5% (five per cent) of the Gross Revenue of each<br />
Financial Year.<br />
“Applicable Laws” shall mean all laws in force and effect as on date hereof and which<br />
maybe promulgated or brought into force and effect hereinafter in India by Government<br />
of India or Government of <strong>Uttar</strong> <strong>Pradesh</strong> including regulations and rules made<br />
thereunder, and judgements, decrees, injunctions, writs and orders of any court of<br />
record, as may be in force and effect during the subsistence of this <strong>Agreement</strong> and<br />
applicable to the Project.<br />
“Applicable Permits” means all notifications, clearances, permits, authorisations,<br />
licenses, consents, permissions, rulings, exemption, approvals or any other permit of<br />
whatsoever nature which is required to be obtained and maintained by the Developer<br />
under or pursuant to Applicable Laws, in connection with the Project during the<br />
subsistence of this <strong>Agreement</strong>.<br />
“Appointed Date” shall mean the date of execution of this <strong>Agreement</strong>.<br />
“Approval” shall mean all authorisations, consents, approvals, notifications and<br />
permissions and any license, permit, ruling, exemption or other authorization of<br />
whatsoever nature which is required to be granted by, or any registration or filing with,<br />
any authority under Applicable Law for or in respect of this <strong>Agreement</strong> including for<br />
performance of any obligation or exercise of any right by a Party herein but excluding a<br />
Clearance.<br />
“Arbitration Act” means the Arbitration and Conciliation Act, 1996 and shall include<br />
any amendment/modifications to or any re-enactment thereof as in force from time to<br />
time.<br />
“Bid” shall mean the Bid (Technical & Financial) submitted by the Selected Bidder in<br />
response to the Request for Proposal (RFP) issued by the Authority for this Project.<br />
4
“Building” shall mean the building or the built-up spaces forming part of the Property.<br />
“Clearance” means the written consent, licence, approval, permit, rulings, exemption,<br />
notification, no objection certificate or other authorisation or permission of whatsoever<br />
nature which is required to be obtained from any authority from time to time in<br />
connection with the Project.<br />
“Completion Certificate” means the certificate issued by the Authority pursuant to<br />
Clause 11.3.<br />
“Contractor” means the person with whom the Developer has entered into / may enter<br />
into all or any of the Project <strong>Agreement</strong>s other than this <strong>Agreement</strong>, License<br />
<strong>Agreement</strong> and Financing Documents.<br />
“Cure Period” means the period specified in this <strong>Agreement</strong> for curing any breach or<br />
default of any provision of this <strong>Agreement</strong> by the Party responsible for such breach or<br />
default.<br />
“<strong>Development</strong> Phase” shall mean the period of 5 year from the Appointed Date in<br />
which the Developer has to carry out major <strong>Development</strong>/Construction Works.<br />
“Dispute” shall have the meaning ascribed thereto in Article 16.<br />
“Dispute Resolution Procedure” means the procedure for resolution of Dispute set<br />
forth in Article 16.<br />
“Drawings” means all drawings, designs, calculations and documents pertaining to the<br />
Project prepared in accordance with Applicable Law and Good Industry Practice and<br />
submitted by the Developer.<br />
“Due Date” shall mean the date for making payment of Annual <strong>Lease</strong> Rent i.e April<br />
30 th of every Financial Year.<br />
“Emergency” means a condition or situation that is likely to endanger the security of<br />
the individuals on or about the Property and / or Project Facility including users thereof<br />
or which poses an immediate threat of material damage to the Property and / or Project<br />
Facility.<br />
“Encumbrance” means any encumbrance such as mortgage, charge, pledge, lien,<br />
hypothecation, security interest, assignment, privilege or priority of any kind having the<br />
effect of security or other such obligations and shall include without limitation any<br />
designation of loss payees or beneficiaries or any similar arrangement under any<br />
insurance policy pertaining to the Project, physical encumbrances, claims for any<br />
amount due on account of taxes, cesses, electricity, water and other utility charges and<br />
encroachments on the Property and / or Project Facility.<br />
“Escrow Account” shall mean the escrow account established pursuant to/ under the<br />
Escrow <strong>Agreement</strong>.<br />
5
“Escrow <strong>Agreement</strong>” shall mean the escrow agreement to be entered into between the<br />
the Authority, the Developer and a bank in the form set forth in Schedule 7 hereof.<br />
“Existing <strong>Lease</strong>s” shall mean the leases presently valid and subsisting for any portion<br />
of the Property, entered between the the Authority and various third parties, details of<br />
which are set out in Schedule 6 appended hereto;<br />
“Expiry” shall mean expiry of the <strong>Lease</strong> at the end of the <strong>Lease</strong> Period.<br />
“Expiry Date” shall mean the date on which this <strong>Agreement</strong> expires.<br />
“Fair Market Value” in relation to Transfer Date means the market value of the entire<br />
asset prevailing as on the Transfer Date.<br />
“Financing Documents" shall mean the documents executed by the Developer in<br />
respect of financial assistance to be provided by the Lenders by way of loans, advances,<br />
guarantees, risk participation, take-out financing or any other form of credit<br />
enhancement and shall include loan agreements, guarantee agreements, subscription<br />
agreements, notes and any documents providing security for such financial assistance<br />
and includes amendments or modifications made thereto.<br />
“Financial Closure” shall mean the date on which the Financing Documents providing<br />
for funding by the Lenders for the Project have been executed and have become<br />
effective such that the Developer has immediate access to such funding under the<br />
Financing Documents.<br />
“Financial Year” shall mean the period commencing from 1 st April of any given year<br />
and ending on 31 st March of the succeeding year.<br />
“Force Majeure” shall mean events as described in Article 18.<br />
“General Employees” shall mean all the permanent employees of the Authority who<br />
are posted at the Property as on the Appointed Date.<br />
“GoI” shall mean the Government of India and any of its duly authorised agency,<br />
authority, department, inspectorate, ministry or person (whether autonomous or not).<br />
“GoUP” shall mean the Government of the State of <strong>Uttar</strong> <strong>Pradesh</strong> and any of its duly<br />
authorised agency authority, department, inspectorate, ministry or person (whether<br />
autonomous or not) under the lawful and effective control and direction of Government<br />
of <strong>Uttar</strong> <strong>Pradesh</strong><br />
“Good Industry Practice” shall mean the exercise of that degree of skill, diligence,<br />
efficiency, reliability, prudence and foresight in compliance with the undertakings and<br />
obligations under this <strong>Agreement</strong> which would reasonably and ordinarily be expected<br />
of a skilled and an experienced person engaged in the implementation, operation,<br />
maintenance, supervision or monitoring thereof or any of them of a Project similar to<br />
that of this Project.<br />
“Government Agency” means Government of India (GoI), Government of <strong>Uttar</strong><br />
<strong>Pradesh</strong> (GoUP), or any state government or governmental, department, commission,<br />
6
oard, body, bureau, agency, authority, instrumentality, court or other judicial or<br />
administrative body, central, state, or local, having jurisdiction over the Developer, the<br />
Project, the Property, the Project Facility or any portion thereof, or the performance of<br />
all or any of the services or obligations of the Developer under or pursuant to this<br />
<strong>Agreement</strong>.<br />
“Gross Revenue” shall mean the total annual receipts of business and all sources of<br />
revenue or amounts of money, by whatever name called, that arise, accrue to and/or are<br />
received by the Developer from the Project Facility/implementation of the Project by<br />
the Developer at the Property but excluding the service tax, value added tax, sales tax<br />
and luxury tax but not the income tax that are payable/paid by the Developer on such<br />
receipts and amounts of money.<br />
“Handback Requirements” shall have the meaning ascribed thereto in Article 15.<br />
“Hospitality/<strong>Tourism</strong> Services” shall include service activities pertaining to<br />
development, operation, maintenance of hotels, motels, guest houses, tourist<br />
bungalows, resorts, bar & restaurants or such businesses that provide transitional or<br />
short term lodging/fooding and leisure services and/ or facilities, tourism that may be<br />
based on the cultural, historic, and social attractions of a place or on the appeal of a<br />
different environment, and tours and ancillary services for tourists, development of<br />
package holidays, health resorts, medical tourism, Convention/ Banquet Halls.<br />
“Independent Auditor” shall mean a reputed firm of Chartered Accountants<br />
Practising in India that may be appointed by the Authority pursuant to and in<br />
accordance with Article 10.<br />
“Independent Engineer” shall mean a reputed individual / firm / company having<br />
expertise in the field of Engineering and Project Management appointed by the<br />
Authority for supervision and monitoring the compliance by the Developer of the<br />
Project requirements, in accordance with Article 10.<br />
“Initial Phase” shall mean a period of 1 year from the Appointed Date, in which the<br />
Developer has to carry out works related to renovation, restoration, refurbishment of<br />
the Property, Project Facility and Project Asset such that the Property shall be fully<br />
operational by the end of such period. The statement holds good for the closed units<br />
also.<br />
“Implementation Works” shall mean works related to the implementation of the<br />
Project including but not limited to investigation, design, renovation, redevelopment,<br />
augmentation, of the Property into the Project Facility and financing the same.<br />
“Lenders” shall mean financial institutions, banks, funds, trusts or trustees of the<br />
holders of debentures or other securities their successors and assigns, who have<br />
provided financial assistance to the Developer under any of the Financing Documents.<br />
“<strong>Lease</strong>” shall have the meaning ascribed thereto in Clause 3.1.<br />
“<strong>Lease</strong> Period” shall have the meaning ascribed thereto in Clause 3.2.<br />
7
“Material Adverse Effect” shall mean material adverse effect on (a) the ability of the<br />
Developer to exercise any of its rights or perform / discharge any of its duties /<br />
obligations under an in accordance with the provisions of this <strong>Agreement</strong> and/or (b) the<br />
legality, validity, binding nature or enforceability of this <strong>Agreement</strong>.<br />
“Material Breach” shall mean a breach by either Party of any of its obligations under<br />
this <strong>Agreement</strong> which has or is likely to have a Material Adverse Effect on the Project<br />
and which it shall have failed to cure within the Cure Period.<br />
“Operation and Management” shall mean the operation and management of the<br />
Project Facility during the <strong>Lease</strong> Period and includes but is not limited to functions of<br />
operation, maintenance, renovation, upgradation and performance of other services<br />
incidental thereto.<br />
“Performance Security” shall mean the Performance Security as mentioned in Article<br />
7.<br />
“Person” shall mean (unless otherwise specified or required by the context) any<br />
individual, company, corporation, partnership, joint venture, trust, unincorporated<br />
organisation, government or Government Agency or any other legal entity.<br />
“Property” shall mean land admeasuring ______ acres, and the Building titled<br />
“___________________” standing upon it having built up area of ___________sq.ft<br />
(approx), located at __________________, bearing Mouza: ___________________,<br />
Khata: _________, Plot No.: _______,___________, <strong>Uttar</strong> <strong>Pradesh</strong>.<br />
“Project” shall have the meaning ascribed thereto in Clause 2.1.1.<br />
“Project <strong>Agreement</strong>s” shall collectively mean this <strong>Agreement</strong> and any contracts for<br />
engineering, procurement, design, renovation, augmentation, operation or management<br />
of the Project Facility and any other material contract (other than the Financing<br />
Documents) entered into or may hereafter be entered into by the Developer in<br />
connection with the Project.<br />
“Project Assets” means the physical, tangible, intangible and other assets of<br />
whatsoever nature existing at the Property as on the date hereof except working capital<br />
assets other than inventory, stores and spares.<br />
"Project Facility" means the Project Asset and all assets and facilities including<br />
moveable, fittings and fixtures comprised therein which the Developer shall provide or<br />
procure within the Project Asset for compliance to the provisions of this <strong>Agreement</strong> and<br />
for better commercial utilisation of the Project Asset, consistent with the<br />
Hospitality/<strong>Tourism</strong> services and the terms of this <strong>Agreement</strong>. Further, it shall include<br />
all the works related to design, finance, development, construction, up-gradation,<br />
modernisation, operation, maintenance and management of the Property in accordance<br />
with the provisions of this <strong>Agreement</strong>, along with the structures, common areas,<br />
infrastructure and facilities and services relating thereto, that shall be developed,<br />
designed, financed, constructed, completed, commissioned, operated and maintained on<br />
the Property by the Developer.<br />
8
“Rs.” or “Rupees” refers to the lawful currency of the Republic of India.<br />
“SBI Base Rate” means the base rate as declared by State Bank of India from time to<br />
time.<br />
“Specifications and Standards” means the specifications and standards relating to the<br />
Project Facility and forming part of the Minimum <strong>Development</strong> Obligations that the<br />
Developer is required to adhere to.<br />
“Statutory Auditors” means a reputed firm of Chartered Accountants duly licensed to<br />
practice in India.<br />
“Tax or Taxes” shall mean and include all taxes, duties, cess, levies that may be<br />
payable by the Developer under Applicable Law.<br />
“Termination” means termination of this <strong>Agreement</strong> and the <strong>Lease</strong> hereunder pursuant<br />
to the delivery or deemed delivery of a Termination Notice or otherwise in accordance<br />
with the provisions of this <strong>Agreement</strong> but shall not, unless the context otherwise<br />
requires, include the expiry of this <strong>Agreement</strong>/<strong>Lease</strong> due to expiry to the <strong>Lease</strong><br />
<strong>Agreement</strong> in the normal course.<br />
“Termination Date” means the date on which the Termination occurs which shall be<br />
the date on which Termination Notice has been delivered or deemed to have been<br />
delivered by a Party issuing the same to the other Party in accordance with the<br />
provisions of this <strong>Agreement</strong>.<br />
“Termination Notice” means a communication in writing by a Party to the other Party<br />
seeking Termination in accordance with the applicable provisions of this <strong>Agreement</strong>.<br />
“Termination Payment” means the amounts payable by a Party to the other Party<br />
under this <strong>Agreement</strong> upon the Termination of this <strong>Agreement</strong> in accordance with the<br />
provisions of this <strong>Agreement</strong>.<br />
1.2. Interpretation<br />
1.2.1 In this <strong>Agreement</strong>, unless the context otherwise requires<br />
(i) any reference to a statutory provision shall include such provision as is from<br />
time to time modified or re-enacted or consolidated so far as such modification<br />
or re-enactment or consolidation applies or is capable of applying to any<br />
transactions entered into hereunder;<br />
(ii) references to laws of <strong>Uttar</strong> <strong>Pradesh</strong>, laws of India or Indian law or regulations<br />
having the force of law shall include the laws, acts, ordinances, rules,<br />
regulations, bye-laws or notifications which have the force of law in the<br />
territory of India and as from time to time may be amended, modified,<br />
supplemented, extended or re-enacted;<br />
(iii) references to a “person” and words denoting a natural person shall be<br />
construed as a reference to any individual, firm, company, corporation,<br />
society, trust, government, state or agency of a state or any association or<br />
partnership (whether or not having separate legal personality) of two or more<br />
of the above and shall include successors and assigns;<br />
9
(iv)<br />
(v)<br />
(i)<br />
(ii)<br />
(iii)<br />
(iv)<br />
(v)<br />
(vi)<br />
(vii)<br />
(viii)<br />
(ix)<br />
(x)<br />
(xi)<br />
(xii)<br />
(xiii)<br />
(xiv)<br />
the table of contents, headings or sub-headings in this <strong>Agreement</strong> are for<br />
convenience of reference only and shall not be used in and shall not affect the<br />
construction or interpretation of this <strong>Agreement</strong>;<br />
the words importing singular shall include plural and vice versa and a<br />
reference to any gender shall include a reference to the other gender;<br />
terms and words beginning with capital letters and defined in this <strong>Agreement</strong><br />
shall have the meaning ascribed thereto herein and the terms and words<br />
defined in the Clauses/Articles/Schedules and used therein shall have the<br />
meaning ascribed thereto in the Clauses/Articles/Schedules;<br />
the words “include” and “including” are to be construed without limitation and<br />
shall be deemed to be followed by “without limitation” or “but not limited to”<br />
whether or not they are followed by such phrases;<br />
references to “construction, renovation, augmentation” includes, unless the<br />
context otherwise requires, investigation, design, engineering, procurement,<br />
delivery, transportation, installation, processing, fabrication, testing,<br />
commissioning and other activities incidental to the construction;<br />
any reference to any period of time shall mean a reference to that according to<br />
Indian Standard Time;<br />
any reference to day shall mean a reference to a calendar day;<br />
any reference to month shall mean a reference to a calendar month;<br />
reference to a “business day” shall be construed as a reference to a day (other<br />
than Sunday) on which banks in Lucknow are generally open for business;<br />
the Schedules to this <strong>Agreement</strong> form an integral part of this <strong>Agreement</strong> and<br />
will be in full force and effect as though they were expressly set out in the<br />
body of this <strong>Agreement</strong>;<br />
any reference at any time to any agreement, deed, instrument, licence or<br />
document of any description shall be construed as reference to that agreement,<br />
deed, instrument, license or other document as amended, varied,<br />
supplemented, modified or suspended at the time of such reference provided<br />
that this clause shall not operate so as to increase liabilities or obligations of<br />
the Authority hereunder or pursuant hereto in any manner whatsoever;<br />
references to Recitals, Articles, Clauses, Sub-clauses, Paragraphs, or<br />
Schedules in this <strong>Agreement</strong> shall, except where the context otherwise<br />
requires, be deemed to be references to Recitals, Articles, Clauses, Subclauses,<br />
paragraphs, and Schedules of or to this <strong>Agreement</strong>;<br />
any agreement, consent, approval, authorisation, notice, communication,<br />
information or report required under or pursuant to this <strong>Agreement</strong> from or by<br />
any Party shall be valid and effectual only if it is in writing under the hands of<br />
duly authorised representative of such Party, as the case may be, in this behalf<br />
and not otherwise;<br />
any reference to any period commencing “from” a specified day or date and<br />
“till” or “until” a specified day or date shall include both such days or dates;<br />
the damages payable by either Party to the other of them as set forth in this<br />
<strong>Agreement</strong>, whether on per diem basis or otherwise, are mutually agreed<br />
genuine pre-estimated loss and damage likely to be suffered and incurred by<br />
the Party entitled to receive the same and are not by way of penalty („the<br />
Damages”)<br />
“indebtedness” shall be construed so as to include any obligation (whether<br />
incurred as principal or surety) for the payment or repayment of money,<br />
whether present or future, actual or contingent;<br />
10
(xv)<br />
(xvi)<br />
(xvii)<br />
unless otherwise expressly provided in this <strong>Agreement</strong> any documentation<br />
required to be provided or furnished by the Developer to the Authority shall be<br />
provided free of cost and in three copies and if the Authority is required to<br />
return any such documentation with their comments and/or approval, then they<br />
shall be entitled to retain two copies thereof;<br />
The rule of construction, if any, that a contract should be interpreted against<br />
the parties responsible for drafting and preparation thereof, shall not apply;<br />
Any word or expression used in this <strong>Agreement</strong> shall, unless otherwise defined<br />
or construed in this <strong>Agreement</strong>, bear its ordinary English meaning and, for<br />
these purposes, the General Clauses Act, 1897 shall not apply.<br />
1.2.2 Measurements and Arithmetic Conventions<br />
All measurements and calculations shall be in metric system and calculations done to 2<br />
decimal places, with the third digit of 5 or above being rounded up and below 5 being<br />
rounded down.<br />
1.2.3 Priority of contract documents and errors/discrepancies<br />
This <strong>Agreement</strong>, and all other agreements forming part of this <strong>Agreement</strong> are to be<br />
taken as mutually explanatory to one another and, unless otherwise expressly provided<br />
elsewhere in this <strong>Agreement</strong>, the priority of this <strong>Agreement</strong> and other documents and<br />
agreements forming part hereof shall, in the event of any conflict between them, be in<br />
the following order:<br />
i this <strong>Agreement</strong>;<br />
ii Schedules, Annexures and Appendices of this <strong>Agreement</strong>;<br />
iii Bidding/RFP Documents;<br />
iv LOI and other communication issued by the Authority to the Selected Bidder or<br />
to the Developer;<br />
v all other documents forming part of this <strong>Agreement</strong>;<br />
i.e. the agreement at (i) above shall prevail over the agreements and documents at (ii<br />
to v) above.<br />
1.2.4 In case of ambiguities or discrepancies within this <strong>Agreement</strong> the following shall apply:<br />
i between two or more Articles and or Clauses of this <strong>Agreement</strong>, the provisions<br />
of the specific Article and or Clause relevant to the issue under consideration<br />
shall prevail over those in other Articles or Clauses;<br />
ii between the written description on the Drawings and the Specifications and<br />
Standards, the latter shall prevail;<br />
iii between the dimension scaled from the Drawing and its specific written<br />
dimension, the latter shall prevail;<br />
iv between any value written in numerals and that in words, the higher value shall<br />
prevail, whether written in words or numerals;<br />
v between the clauses of this <strong>Agreement</strong> and the Schedules, the Clauses shall<br />
prevail and between Schedules and Annexes, the Schedules shall prevail.<br />
ARTICLE 2: SCOPE OF THE PROJECT<br />
2.1 Project<br />
2.1.1 Project shall mean and include but not limited to:<br />
a. Design, finance, develop, construct, upgrade, modernise, manage, operate, and<br />
maintain the Property exclusively for Hospitality/<strong>Tourism</strong> Services during the<br />
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<strong>Lease</strong> Period and handing over full and peaceful possession of the Property<br />
along with Project Facility to the Authority at the end of the <strong>Lease</strong> Period,<br />
without any Encumbrance and/or liability and at value to the effect that the<br />
Developer shall have no claim on the aforesaid Property.<br />
b. perform and fulfill all the obligations of the Developer in accordance with the<br />
provisions of this <strong>Agreement</strong>.<br />
c. Renovation, upgradation, modernization, value addition and augmentation to be<br />
done in accordance with the Minimum <strong>Development</strong> Obligations specified in<br />
Clause 2.2<br />
2.2 Minimum <strong>Development</strong> Obligations<br />
2.2.1 The Developer shall meet the following minimum development obligations (the<br />
“Minimum <strong>Development</strong> Obligations”) while designing, renovating, developing,<br />
augmenting the Property:<br />
a. The Developer shall upgrade/renovate/modernise the existing Project Facility<br />
and create/add other assets including overall development as required for the<br />
Property and shall make an investment of an amount equal to or greater than Rs<br />
________ (Rupees________________________).<br />
b. Commit to finance, upgrade, develop, operate, manage and maintain the<br />
Property, Project Facility and Project Asset as per Good Industry Practice from<br />
the Appointed Date.<br />
c. The Property, Project Facility and Project Asset under consideration shall be<br />
used only for providing Hospitality/<strong>Tourism</strong> services.<br />
d. Complete the Initial Phase within 1 year from the Appointed Date and<br />
Modernisation Phase within 5 years from Appointed Date.<br />
e. Augmentation/expansion/<strong>Development</strong> of the Property with prior approval from<br />
the Authority to be in line with the local building regulations, and other<br />
Applicable Laws.<br />
f. Follow the Building bye-laws and Regulation of the nearest Urban Area for<br />
additional construction/development in case the Unit/Property is located in<br />
Rural Area.<br />
g. Carry out new construction for providing additional rooms or additional<br />
facilities in the Property.<br />
h. Non-violation of all applicable Environmental Standards and Pollution Control<br />
Norms as laid down by Central / State Pollution Control Board.<br />
i. Existing local development controls, if any, will be binding if they are more<br />
limiting than the Project Specifications / Minimum Requirements.<br />
j. Operate the Project without disturbing the natural surroundings and ensuring<br />
that the local flora and fauna are not disturbed.<br />
k. Create an adequate waste disposal system for management and disposal of the<br />
waste generated through the Project.<br />
l. Responsible for maintaining hygiene and quality standards at the Property and<br />
Project Facilities and providing quality services to tourists.<br />
m. Responsible for providing adequate security for the tourists using the Project<br />
Facilities, and ensuring there is no damage or loss to Project Facilities.<br />
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ARTICLE 3: GRANT OF LEASE<br />
3.1 Grant of <strong>Lease</strong><br />
3.1.1 Subject to and in accordance with the terms and conditions set forth in this<br />
<strong>Agreement</strong>, Applicable Laws and Applicable Permits, the Authority hereby grants to<br />
the Developer possession of the Property, Project Asset and Project Facility as set<br />
forth in Schedule 4 on „as is where is basis‟ for the sole purpose of the Project, and<br />
grants and authorizes the Developer the exclusive rights and privilege to develop,<br />
conceptualise, design, finance, renovate, construct, maintain, operate and manage the<br />
Property and Project Facility and to exercise or to enjoy the rights, powers, benefits,<br />
privileges, authorizations and entitlements as set forth in this <strong>Agreement</strong> (the<br />
“<strong>Lease</strong>”) for the entire duration of the <strong>Lease</strong> Period or until the earlier Termination of<br />
the <strong>Lease</strong> in accordance with the provisions of this <strong>Agreement</strong>, and the Developer<br />
hereby accepts the <strong>Lease</strong> and agrees to implement the Project subject to and in<br />
accordance with the terms and conditions set forth herein.<br />
3.1.2 Subject to and in accordance with the provisions of this <strong>Agreement</strong>, the <strong>Lease</strong> hereby<br />
granted shall entitle the Developer to enjoy and oblige the Developer to undertake the<br />
following in accordance with the provisions of this <strong>Agreement</strong>, the Applicable Laws<br />
and Applicable Permits:<br />
a. to investigate, study, design, engineer, procure, finance, renovate, augment,<br />
commission, operate, maintain and manage the Property, Project Facility and<br />
Project Asset according to the provisions of this <strong>Agreement</strong>. ;<br />
b. demand, collect and appropriate money/charges from persons enjoying the<br />
facilities of the Project Facility or any part thereof;<br />
c. to carry out any activity or business related or ancillary to the activities referred<br />
above or which the Developer considers desirable or appropriate to be carried<br />
on or engaged in connection therewith;<br />
d. perform and fulfil all of the Developer‟s obligations under this <strong>Agreement</strong>;<br />
e. bear and pay all expenses, costs, charges, and taxes incurred in the fulfilment of<br />
the Developer‟s obligations under this <strong>Agreement</strong>;<br />
f. not to assign or create any Encumbrance on the whole or any part of the<br />
Property or Project Facility or Project Asset nor transfer, sub-lease or part<br />
possession therewith save and except as expressly permitted by this <strong>Agreement</strong>.<br />
g. contract and/or sub contract and License with third parties to undertake<br />
functions on behalf of the Developer;<br />
h. not to use the Property, Project Facility and Project Asset for any purpose other<br />
than the purpose of the Project and purposes incidental or ancillary to as<br />
permitted under this <strong>Agreement</strong>.<br />
3.1.3 For the purpose of exercising its rights and/or performing its obligations pursuant to<br />
Clause 3.1.2, the Developer may subject to and in accordance with the provisions of<br />
this <strong>Agreement</strong>, at any time, grant Service Provider Rights to any person for the<br />
purpose of carrying out the activities described in Clause 3.1.2, on such terms and<br />
conditions as the Developer may determine to be reasonably appropriate, subject to<br />
the same being within the framework of this <strong>Agreement</strong> and not being contrary to the<br />
terms and conditions of the <strong>Agreement</strong>. The grant by the Developer of a Service<br />
Provider Right shall not relieve the Developer of any of its responsibilities, duties and<br />
obligations under this <strong>Agreement</strong>.<br />
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3.2 <strong>Lease</strong> Period<br />
3.2.1 The <strong>Lease</strong> hereby granted is for a period of thirty (30) years commencing from the<br />
Appointed Date and ending on the Expiry Date (“the <strong>Lease</strong> Period”). Provided that<br />
in the event of Termination, the <strong>Lease</strong> Period shall mean and be limited to the period<br />
commencing from the Appointed Date and ending with the Termination Date.<br />
3.2.2 At the end of the <strong>Lease</strong> Period, the Authority shall have the right to invite fresh bids<br />
from interested parties to develop, operate and manage the Project. In this scenario,<br />
the Developer shall have the Right of First Refusal i.e. the right to match the highest<br />
financial bid received by the Authority, provided the Authority is satisfied with the<br />
Developer with regard to observance of the terms & conditions of the <strong>Lease</strong><br />
<strong>Agreement</strong> during its validity.<br />
3.2.3 Subject to Clause 3.2.2, the Developer shall on the last date of <strong>Lease</strong> Period hand over<br />
the Project Assets, Project Facilities including the Property on which the same has<br />
been developed and all rights thereto to the Authority at Rs 1/ value and free of all<br />
encumbrances.<br />
3.3 Acceptance of the <strong>Lease</strong><br />
3.3.1 In consideration of the rights, privileges and benefits conferred upon by the Authority<br />
and other Good and valuable consideration expressed herein, the Developer hereby<br />
accepts the <strong>Lease</strong> and agrees and undertakes to implement the Project and to<br />
perform/discharge all of its obligations in accordance with the terms and conditions<br />
set forth in this <strong>Agreement</strong>.<br />
ARTICLE 4: CONDITIONS PRECEDENT<br />
4.1 Conditions Precedent<br />
4.1.1 Save and except as expressly provided in this <strong>Agreement</strong>, the respective rights and<br />
obligations of the Parties under this <strong>Agreement</strong> shall be subject to the satisfaction in<br />
full of the conditions precedent specified in this Clause 4.1 (the “Conditions<br />
Precedent”).<br />
4.1.2 The obligations of the Developer hereunder are subject to the satisfaction by the<br />
Authority of the following Conditions Precedent unless any such condition has been<br />
waived by the Developer as hereinafter provided:<br />
a. provides possession of the Property, Project Asset and Project Facility to the<br />
Developer on „as is where is basis‟.<br />
4.1.3 The obligations of the Authority hereunder are subject to the satisfaction by the<br />
Developer of the following Conditions Precedent unless any such condition has been<br />
waived by the Authority as hereinafter provided:<br />
a. procured all the Applicable Permits/Clearances required for operation of the<br />
Project unconditionally or if subject to conditions then all such conditions shall<br />
have been satisfied in full and such Applicable Permits are in full force and<br />
effect;<br />
b. achieved Financial Close, executed the Financing Documents and delivered to<br />
the Authority 3 (three) copies thereof, duly attested by a Director of the<br />
Developer;<br />
c. delivered to the Authority a legal opinion from the legal counsel of the<br />
Developer with respect to the Developer entering into this <strong>Agreement</strong> and the<br />
enforceability of the provisions thereof;<br />
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d. confirmed in writing that all the representations and warranties of the Selected<br />
Bidder set forth in its Bid are true and correct as on the date of execution of this<br />
<strong>Agreement</strong>;<br />
e. Confirmed in writing that all the representations and warranties of the<br />
Developer setforth in this <strong>Agreement</strong> are true and correct as on the date of<br />
execution of this <strong>Agreement</strong>;<br />
f. Opened the Escrow Account and executed the Escrow <strong>Agreement</strong>;<br />
Provided that upon request in writing by the Developer, the Authority may in its<br />
discretion, waive any of the Conditions Precedent set forth in this Clause 4.1.3.<br />
4.1.4 Each Party shall make all reasonable endeavours to satisfy the Conditions Precedent<br />
within the time stipulated herein and shall provide the other Party with such<br />
reasonable cooperation as may be required to assist that Party in satisfying the<br />
Conditions Precedent for which that Party is responsible.<br />
4.1.5 The Parties shall notify each other in writing at least once a month on the progress<br />
made in satisfying the Conditions Precedent. Each Party shall promptly inform the<br />
other Party when any Condition Precedent for which it is responsible has been<br />
satisfied.<br />
4.2 Obligations to fulfil Conditions Precedent<br />
4.2.1 The Parties shall fulfil the Conditions Precedent within 180 (one hundred and eighty)<br />
days from the Appointed Date, and the date on which both the Parties fulfil the<br />
Conditions Precedent, as forthwith jointly certified in writing by the authorised<br />
representatives of the Parties, shall be the Compliance Date (the “Compliance<br />
Date”).<br />
4.3 Non-fulfilment of Conditions Precedent<br />
4.3.1 In the event of non-fulfilment of Developer Conditions Precedent within 180 (one<br />
hundred and eighty) days from the Appointed Date, the Authority may terminate this<br />
<strong>Agreement</strong> in accordance with the provisions of this <strong>Agreement</strong> and arrogate and<br />
retain the Performance Security and all payments made by the Developer, including<br />
the Upfront Fee and the <strong>Lease</strong> Rent, till the date of termination.<br />
4.3.2 In the event of non-fulfilment of the Authority Conditions Precedent within 180 (one<br />
hundred and eighty) days from the Appointed Date, the Developer may terminate this<br />
<strong>Agreement</strong>, in accordance with the provisions of this <strong>Agreement</strong>, and require, the<br />
Authority to return / refund in full the Performance Security, along with the Upfront<br />
Fee and the <strong>Lease</strong> Rent till the date of termination of this <strong>Agreement</strong>, provided there<br />
are no outstanding claims of the Authority on the Developer.<br />
4.3.3 Notwithstanding anything contained in the Clauses 4.2 and 4.3, the Parties may, by<br />
mutual consent, extend the time for fulfilling the Conditions Precedent subject to a<br />
maximum period of 240 days from Appointed Date.<br />
ARTICLE 5: PROPERTY / PROJECT FACILITY/PROJECT ASSET<br />
5.1 Handover of Property<br />
5.1.1 The Authority hereby undertakes to handover to the Developer physical possession of<br />
the Property along with the Project Asset and Project Facility free from Encumbrance<br />
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within 180 (one eighty) days from the Appointed Date, for the purpose of<br />
implementing the Project in accordance with this <strong>Agreement</strong> on “As-Is-Where-Is”<br />
basis.<br />
5.1.2 The Authority confirms that upon the Property being handed over pursuant to the<br />
clause 5.1.1, the Developer shall have the exclusive right to enter upon, occupy and<br />
use the Property, Project Facility and Project Asset and to make at its costs, charges<br />
and expenses such investigation, design, renovation, development, augmentation and<br />
improvements in the Property as may be necessary or appropriate to implement the<br />
Project and develop the Property, Project Facility in accordance with the provisions of<br />
this <strong>Agreement</strong>.<br />
5.2 Rights, Title and Use of the Property<br />
5.2.1 The Developer shall have exclusive rights to use the Property, Project Asset and the<br />
Project Facility in accordance with the provisions of this <strong>Agreement</strong> and for this<br />
purpose it may regulate the entry and use of the same by third parties.<br />
5.2.2 The Developer shall not part with or create any Encumbrance on the whole or any part<br />
of the Property, Project Facility and Project Asset save and except as set forth and<br />
permitted under this <strong>Agreement</strong>.<br />
5.2.3 The Developer shall be allowed to outsource/ sub-contract functions of operations/<br />
maintenance/ management for the purpose of provision of services at the Project<br />
Facility such as food & beverages (restaurant), laundry, housekeeping, landscaping,<br />
pest control, etc during the term of the <strong>Lease</strong> with such agencies, with established and<br />
relevant track record, as it may deem fit. Such sub-contracting shall not be in any way<br />
detrimental to the <strong>Agreement</strong> entered into between the Developer and the Authority.<br />
Under all circumstances, the Developer would all times be responsible for discharging<br />
all obligations under the <strong>Lease</strong> <strong>Agreement</strong> without any reference to any other party<br />
operating in the Property.<br />
5.2.4 The Property, Project Asset and the Project Facility shall continue to remain under the<br />
ownership of the Authority during the <strong>Lease</strong> Period and its physical possession shall<br />
be transferred to the Authority after expiry of the <strong>Lease</strong> Period or on Termination.<br />
Developer shall take all reasonable due care of the Property, Project Asset and the<br />
Project Facility as the case may be. Developer shall be fully responsible for any loss<br />
or damage to the Property, Project Asset and the Project Facility during the <strong>Lease</strong><br />
Period, caused as a result of any negligence on its part.<br />
5.2.5 Developer declares that in entering into this <strong>Agreement</strong> on the terms and conditions<br />
set out herein, Developer has made its own assessment of the Property and incomepotential<br />
thereof.<br />
5.2.6 Developer shall have to obtain all such Applicable Permits (including but not limited<br />
to building permit, hotel permit, etc) unconditionally or if subject to conditions then<br />
all such conditions have been satisfied in full and such Applicable Permits are and<br />
shall be kept in full force and effect during the <strong>Lease</strong> Period.<br />
5.3 Information about the Property<br />
5.3.1 The information about the Property set out to the extent in this <strong>Agreement</strong> is provided<br />
by the Authority in Good faith and with due regard to the matters for which such<br />
information is required by the Developer. The Authority agrees to provide to the<br />
Developer, upon a reasonable request, any further information relating to the Property,<br />
which the Authority may now possess or may hereafter come to possess. Subject to<br />
this the Authority makes no representation and gives no warranty to the Developer in<br />
respect of the condition of the Property or any information in relation to the same.<br />
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5.4 Peaceful Possession<br />
5.4.1 The Authority warrants that:<br />
a. the Property having been acquired through the due process of law belongs to<br />
and is vested in the Authority, and that the Authority has full powers to hold,<br />
dispose of and deal with the same consistent, inter alia, with the provisions of<br />
this <strong>Agreement</strong>;<br />
b. the Developer shall have no obligation/liability as to payment of any<br />
compensation whatsoever to or the rehabilitation and resettlement of any Person<br />
from whom the Property or any part thereof had been acquired and that the same<br />
shall be the sole responsibility of the Authority; and<br />
c. the Developer shall, subject to complying with the terms and conditions of this<br />
<strong>Agreement</strong>, remain in peaceful possession and enjoyment of the Property,<br />
Project Facility and Project Asset during the <strong>Lease</strong> Period. In the event the<br />
Developer is obstructed by any Person claiming any right to the title or interest<br />
in or over the Property or Project Facility or any part thereof or in the event of<br />
any enforcement action including any attachment, distraint, appointment of<br />
receiver or liquidator being initiated by any Person claiming to have any interest<br />
in/ charge on the Property or Project Facility or any part thereof, the Authority<br />
shall, if called upon by the Developer, defend such claims and proceedings and<br />
also keep the Developer indemnified against loss or damages which the<br />
Developer might suffer, on account of any such right, title, interest or charge.<br />
5.5 Applicable Permits<br />
5.5.1 The Developer shall obtain and maintain all Applicable Permits and Clearances in<br />
such sequence as is consistent with the requirements of the Project.<br />
ARTICLE 6: LEASE RENT & OTHER PAYMENTS<br />
6.1 <strong>Lease</strong> Rent<br />
6.1.1 The Authority acknowledges the receipt of a payment of Rs. ___________ (Rupées<br />
_____________________________________________) DD No. ___________ dated<br />
__________ drawn on ______________________________ towards the Annual<br />
<strong>Lease</strong> Rent prior to the Appointed Date pro rata for the months balance in the current<br />
Financial Year _________.<br />
6.1.2 In consideration of the <strong>Lease</strong> hereby granted, the Developer shall pay to the<br />
Authority, Annual <strong>Lease</strong> Rent on the Due Date.<br />
6.1.3 The Annual <strong>Lease</strong> Rent shall be incremented by 5% (Five percent) each year over that<br />
of the previous year during the <strong>Lease</strong> Period.<br />
6.1.4 However, after the <strong>Development</strong> Phase (5 years after Appointed Date), the Developer<br />
shall pay the higher amount of Annual <strong>Lease</strong> Rent or Annual Revenue Share as<br />
applicable.<br />
6.1.5 All subsequent Annual <strong>Lease</strong> Rent shall be made on or before April 30 th of each<br />
Financial Year.<br />
6.1.6 Any delay in making any Annual <strong>Lease</strong> Rent payment shall, without prejudice to any<br />
other consequences under this <strong>Agreement</strong>, entail payment of interest on the amount in<br />
default at the rate of SBI Base Rate plus 3 percent per annum from the relevant Due<br />
Date till the date of payment/ realisation.<br />
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6.2 Upfront Fee<br />
6.2.1 The Authority acknowledges the receipt of a payment of Rs. ___________ (Rupées<br />
_____________________________________________) DD No. ___________ dated<br />
__________ drawn on ______________________________ towards the Upfront Fee<br />
prior to the Appointed Date.<br />
6.3 Mode of Payment<br />
6.3.1 Annual <strong>Lease</strong> Rent shall be paid by way of Demand <strong>Draft</strong> in favour of<br />
_____________, payable at Lucknow and shall be sent sufficiently in advance of the<br />
Due Date to the following address:<br />
Attn. of<br />
Address<br />
Director General<br />
Department of <strong>Tourism</strong><br />
Government of <strong>Uttar</strong> <strong>Pradesh</strong><br />
Paryatan Bhawan, C-13, Vipin Khand, Gomti Nagar<br />
Lucknow: 226 010<br />
6.4 Taxes, duties & levies<br />
6.4.1 The Developer agrees to pay service tax and/or any applicable taxes, duties, charges,<br />
surcharges or levies in relation to the various payments to be made by the Developer<br />
as also all other duties, taxes and levies related to the <strong>Lease</strong> or the grant of the <strong>Lease</strong><br />
by the appropriate authorized agencies, authorities or bodies.<br />
6.5 Certified Accounts<br />
6.5.1 During the subsistence of this <strong>Agreement</strong>, the Developer shall maintain all documents<br />
and supporting evidences for its financial statements including agreements and<br />
documents with respect to all capital and debt raised by the Developer, capital and<br />
revenue expenses towards the Project. The Developer shall submit to the Authority<br />
periodic reports on financial statement of the Gross Revenue duly certified by its<br />
Statutory Auditors as per the provisions of Clause 8.11.<br />
6.5.2 The Authority shall appoint an Independent Auditor to conduct a special audit of the<br />
Gross Revenue and the financial statements, documents and supporting evidences<br />
thereto as may be mandated by the Authority and report to the Authority such<br />
information as may be desired by the Authority for any period and the Gross Revenue<br />
(“Special Audit”).<br />
6.5.3 In the event that the Gross Revenue reported by the Independent Auditor is higher<br />
than that reported by the Statutory Auditor of the Developer, the auditors shall meet to<br />
resolve such differences and if they are unable to resolve the same, then for the<br />
purpose of calculating the Annual <strong>Lease</strong> Rent, the Gross Revenue reported by the<br />
Independent Auditor shall be considered.<br />
6.6 Escrow Account<br />
6.6.1 The Developer shall maintain an escrow account with a bank approved by the Lenders<br />
(“Escrow Account”), during the subsistence of this <strong>Agreement</strong> and enter into an<br />
agreement substantially in the format prescribed in Schedule 7 with such bank to<br />
ensure that all proceeds for financing the Project and all revenues and other receipts<br />
arising from the Project and under any agreements, including this <strong>Agreement</strong> received<br />
by the Developer are deposited into such Escrow Account.<br />
a) Withdrawals and appropriations during the <strong>Lease</strong> Period, at any relevant time,<br />
from the Escrow Account shall be in the following order of priority<br />
i. for all taxes due payable by the Developer;<br />
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ii. towards payment of Annual <strong>Lease</strong> Rent;<br />
iii. all construction/implementation expenses relating to the Project/Project<br />
Facilities and Services, subject to limits if any set out under the Financing<br />
Documents;<br />
iv. all expenses relating to operations and management of the Project/Project<br />
Facilities and Services, subject to limits if any set out under the Financing<br />
Documents;<br />
v. towards its debt service obligations under the Financing Documents;<br />
vi. towards payment of other sums payable to the Authority and liquidated<br />
damages, if any;<br />
vii. towards any reserve requirements in accordance with the Financing<br />
Documents;<br />
and the Developer shall be at liberty to withdraw any sums outstanding in the<br />
Escrow Account after all the aforesaid payments due in any Quarter have been<br />
made and/or adequate reserves have been created in respect thereof for that<br />
Quarter. Provided, upon issuance of Termination Notice and/or suspension of the<br />
Developer in accordance with the provisions of this <strong>Agreement</strong>, withdrawal from<br />
the Escrow Account shall be made only in accordance with the written<br />
instructions of the Authority and the Lenders.<br />
b) All amounts standing to the credit of the Escrow Account at the end of the <strong>Lease</strong><br />
Period including amounts credited to the Escrow Account towards compensation<br />
payable in accordance with Clause 14.9 shall be appropriated in the following<br />
order of priority:<br />
i. towards taxes and statutory dues payable by the Developer;<br />
ii. compensation to Lenders in terms of the Financing Documents towards<br />
iii.<br />
discharge of the Developer‟s liability under such Financing Documents;<br />
all amounts due to the Authority and amounts payable towards transfer of<br />
the Project Facilities and Services by the Developer in accordance with<br />
this <strong>Agreement</strong>;<br />
and the Developer shall be at liberty to withdraw any sums outstanding in the<br />
Escrow Account after all the aforesaid payments due have been made and/or<br />
adequate reserves have been created in respect thereof to the satisfaction of the<br />
Lenders and the Authority.<br />
ARTICLE 7: PERFORMANCE SECURITY<br />
7.1 Performance Security<br />
7.1.1 The Developer has for due and faithful performance of its obligations during the<br />
<strong>Lease</strong> Period furnished to the Authority, prior to the execution of this <strong>Agreement</strong>, an<br />
irrevocable bank guarantee from a Scheduled/Nationalised bank acceptable to the<br />
Authority (the “Performance Security”). The Performance Security for an amount<br />
equivalent to 5 (five) times the Annual <strong>Lease</strong> Rent for the first year i.e.<br />
Rs._____________ (Rupees_______________________). A valid bank guarantee<br />
should always be in place at any time during the <strong>Lease</strong> Period. The details of above<br />
Bank Guarantee are as follows:<br />
Bank Guarantee Details:<br />
____________________________________________<br />
____________________________________________<br />
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7.1.2 An amount equal to 3 (three) times the Annual <strong>Lease</strong> Rent for the first year shall be<br />
released within 120 days of the successful completion of the Minimum <strong>Development</strong><br />
Obligation (i.e. within 120 days of issuance of Completion Certificate as per Clause<br />
11.3.3) and remaining Performance Security [equal to 2 (two) times the Annual <strong>Lease</strong><br />
Rent for first year] shall be retained till the completion of <strong>Lease</strong> Period and shall be<br />
released after 6 months from the end of <strong>Lease</strong> period.<br />
7.1.3 Provided if the <strong>Agreement</strong> is terminated due to any event other than a Developer<br />
Event of Default, the Performance Guarantee, subject to the Authority‟s right to<br />
receive amounts, if any, due from the Developer under this <strong>Agreement</strong>, shall be<br />
refunded to the Developer.<br />
7.2 Appropriation of Performance Security<br />
7.2.1 Upon occurrence of a Developer Event of Default or as per other provisions stipulated<br />
in this <strong>Agreement</strong>, the Authority shall, without prejudice to its other rights and<br />
remedies hereunder or in law, be entitled to encash, invoke and appropriate the<br />
relevant amounts from the Performance Security as damages. Upon such encashment,<br />
invocation and appropriation from the Performance Security, the Developer shall<br />
within 30 (thirty) days thereof, replenish, in case of partial appropriation, to its<br />
original level the Performance Security, and in case of appropriation of the entire<br />
Performance Security provide a fresh Performance Security as aforesaid failing which<br />
the Authority shall be entitled to terminate this <strong>Agreement</strong> in accordance with<br />
provisions of this <strong>Agreement</strong>.<br />
ARTICLE 8: DEVELOPER’S OBLIGATIONS AND UNDERTAKINGS<br />
In addition to and not in derogation or substitution of any of the obligations set out in this<br />
<strong>Agreement</strong>, the Developer agrees and undertakes as under:<br />
8.1 Performance Security<br />
8.1.1 The Developer has for due and punctual performance of its obligations hereunder<br />
relating to the Project, furnished to the Authority, prior to the execution of this<br />
<strong>Agreement</strong>, Performance Security in accordance with the provisions of Article 7.<br />
8.2 Financing Arrangement<br />
8.2.1 The Developer shall at its own cost; expenses and risk make such financing<br />
arrangements as would be necessary to implement the Project and to meet all of its<br />
obligations under this <strong>Agreement</strong>, in a timely manner.<br />
8.2.2 The Developer shall not in any way transfer, sell, alienate, encumber, mortgage or<br />
create any charge on the Property, Project Facility and Project Asset during the <strong>Lease</strong><br />
Period.<br />
8.3 Drawings<br />
8.3.1 The Developer shall, at its cost, charges and expenses, cause Drawings to be prepared<br />
in accordance with Minimum <strong>Development</strong> Obligations and the Specification and<br />
Standards for providing the Project Facility.<br />
8.3.2 All Drawings whether relating to the Property and Project Facility shall be subject to<br />
review by the Authority.<br />
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8.4 <strong>Development</strong> Phase<br />
8.4.1 The Developer shall at its own cost and expense, investigate, design, finance,<br />
renovate, develop and augment the Property, subject to adherence to Applicable Law<br />
and obtaining Applicable Permits for such renovation, construction, development and<br />
or augmentation;<br />
Provided that such renovation, construction, development and/or augmentation, shall<br />
not at any time cause any damage or have a dangerous effect on either the stability of<br />
the Property or Project Facility or Project Asset or otherwise affect the users of the<br />
Project Facility or Property.<br />
8.4.2 The Developer shall adhere to the Minimum <strong>Development</strong> Obligations and Standards<br />
and Specifications.<br />
8.4.3 The Developer shall, before commencement of <strong>Development</strong> Phase;<br />
a. submit to the Authority, a Detailed Project Report and the Project<br />
Implementation Schedule for the Project;<br />
b. have requisite organisation and designate and appoint suitable officers/<br />
representatives as it may deem appropriate to supervise the <strong>Development</strong> Phase<br />
and to deal with the Authority and to be responsible for all necessary exchange<br />
of information required pursuant to this <strong>Agreement</strong>;<br />
c. undertake, do and perform all such acts, deeds and things as may be necessary<br />
and to achieve completion of <strong>Development</strong> Phase within 5 year from the<br />
Appointed Date;<br />
8.4.4 The Developer shall be responsible for getting all relevant approvals deemed<br />
necessary as per laws of Union of India/State of <strong>Uttar</strong> <strong>Pradesh</strong>/ Local bodies related to<br />
construction, renovation and augmentation of the Property and for operation,<br />
management and maintenance of the Project Facility;<br />
8.4.5 The Developer shall organise shifting of utilities including payment of respective<br />
authority charges if any;<br />
8.4.6 Developer shall co-operate with the Authority and provide all facilities and assistance<br />
required by the Independent Engineer.<br />
8.5 Construction, Alteration and Modification<br />
8.5.1 The Developer shall be at liberty to carry out necessary alterations or modifications to<br />
the Property or undertake new construction in order to meet his obligation of<br />
providing the Project Facilities and, subject to his adherence to Applicable Law and<br />
obtaining Applicable Permits for such alteration, modification or new construction.<br />
Provided however that such alteration, modification or new construction and, shall not<br />
at any time cause any damage or have a dangerous effect on either the stability of the<br />
Property/Project Asset/Project Facilities or otherwise adversely affect the safety of the<br />
users of the Property/Project Asset/Project Facilities.<br />
8.5.2 If in the opinion of the Developer, the said alteration, modification or new<br />
construction requires demolition of any part or whole of the Property/Project<br />
Asset/Project Facilities (including the cutting of trees), then such demolition shall be<br />
undertaken only after obtaining prior written approval from the Authority, which<br />
approval shall not be unreasonably withheld. For this purpose, the Developer shall<br />
submit to the Authority a proposal (hereinafter referred to as Modification Proposal)<br />
clearly describing such demolition and its impact on the structural stability of the<br />
Property/Project Asset/Project Facilities, at least sixty (60) days prior to carrying out<br />
such demolition whereupon the Authority shall respond as per provision of Clause<br />
9.1.<br />
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8.5.3 The Developer would be required to obtain Applicable Permits and adhere to<br />
Applicable Laws for any demolition.<br />
8.5.4 No demolition (including the cutting of trees) would be allowed during the last 5 years<br />
of the <strong>Lease</strong> Period, unless specifically approved by the Authority.<br />
8.6 Environmental Compliance<br />
8.6.1 The Developer shall ensure that all aspects of the Project and Project Facility and<br />
processes employed in the design, renovation, construction, operation and<br />
maintenance thereof shall conform to the laws pertaining to environment, health and<br />
safety including policies and guidelines related thereto.<br />
8.7 Operation Period<br />
8.7.1 Developer shall be responsible for the operation and maintenance of the Project<br />
Facility at its cost and shall provide a high level of service to its guests in accordance<br />
with specifications, standards and instructions of the Authority, if any.<br />
8.7.2 Developer, at its cost during the subsistence of this <strong>Agreement</strong>, would obtain all<br />
requisite licenses/permission for operating the Project Facility, it being understood<br />
that the licenses/permissions and all deposits or securities given or provided in<br />
relation thereto by the Developer shall always be the property of the Authority and<br />
Developer shall have no right or lien or claim to on the same, even if Developer‟s<br />
name is endorsed or mentioned in the license or permission as manager or Developer<br />
of the Project Facility or otherwise;<br />
8.7.3 Developer shall not cause, permit or suffer any use of the Project Facility or any part<br />
thereof for any other purpose other than that authorised by the Authority.<br />
8.7.4 Developer shall protect and promote the image, status and stated aims of the<br />
Authority.<br />
8.7.5 Developer shall be allowed to put up its sign board on the main entrance of the Project<br />
Facility clearly specifying the following in addition to the name and logo of the<br />
Developer:<br />
“Unit of Department of <strong>Tourism</strong>, Government of <strong>Uttar</strong> <strong>Pradesh</strong>”<br />
8.7.6 Developer shall maintain the Project Facility in proper cleanliness and hygienic<br />
surroundings and in accordance with terms and conditions set forth in this <strong>Agreement</strong>;<br />
8.7.7 Developer shall not store any goods not permitted by Applicable Law including<br />
hazardous, explosive, flammable or combustible in nature that may cause risk by fire,<br />
explosion or goods/material which on account of their weight or nature may cause<br />
damage or endanger the safety of the Project Facility and/or Project Asset and or its<br />
inhabitants;<br />
8.7.8 The Developer will not at any time do, cause or permit any nuisance in or around the<br />
Property and Project Facility and/or Project Asset or anything which shall cause<br />
unnecessary annoyance, inconvenience or disturbance to the occupiers of any other<br />
property;<br />
8.7.9 Developer shall at its own cost and expenses pay:<br />
a. All heat, light and power expenses including air-conditioning costs;<br />
b. All costs and expenses of the management and operation of the Project Facility;<br />
c. All expenses for the internal upkeep and maintenance of the Project Facility<br />
including but not limited to painting, polishing, sanitary, plumbing, electric<br />
maintenance, as well as repairs and replacements;<br />
22
d. The Developer shall pay all taxes including Ground Rent, Land Tax, Property<br />
Tax, Service Tax, Duties, Levies etc. which are payable in relation to the<br />
Property / Project Facility;<br />
8.7.10 The Developer shall provide fire fighting equipment in the Project Facility and ensure<br />
that periodic fire drills are conducted in order to guide and inculcate the procedures<br />
and operations of fire fighting/safety;<br />
8.7.11 The Developer shall take necessary action to remedy the lapses, if any, stated in the<br />
Inspection Report issued by the Authority for ensuring compliance with the provisions<br />
of this <strong>Agreement</strong>.<br />
8.7.12 During the Operations Period, the Developer shall:<br />
a. have requisite organisation and designate and appoint suitable officers/<br />
representatives as appropriate to supervise the operation and maintenance and to<br />
deal with the Authority and to be responsible for all necessary exchange of<br />
information required pursuant to this <strong>Agreement</strong>;<br />
b. undertake, do and perform all such acts, deeds and things as may be necessary<br />
or required to adhere to the operation and maintenance Requirements;<br />
8.7.13 The Developer shall be deemed to be in Material Breach of the operation and<br />
maintenance Requirements, if the Authority acting reasonably and in accordance with<br />
the provisions of this <strong>Agreement</strong>, has determined that due to breach of obligations by<br />
the Developer:<br />
a. the maintenance of the Property and Project Facility or any part thereof has<br />
deteriorated to a level which is below the acceptance level of the Authority; and<br />
b. there has been a serious or persistent breach in adhering to the operation and<br />
maintenance Requirements and thereby the Project Facilities or any part thereof<br />
are not safe for operation<br />
For avoidance of doubt, persistent breach shall mean:<br />
a. any breach of operation and maintenance Requirements by the Developer which<br />
has not been remedied by the Developer despite a notice to remedy in respect of<br />
the same issued by the Authority<br />
b. recurrence of a breach by the Developer, during the pendency of the notice to<br />
remedy issued by the Authority<br />
c. repeated occurrence of a breach notwithstanding that earlier breaches have been<br />
remedied or otherwise pursuant to notice to remedy<br />
8.7.14 Upon occurrence of a Material Breach of operation and maintenance Requirements,<br />
the Authority shall without prejudice to and notwithstanding any other consequences<br />
provided thereof under this <strong>Agreement</strong>, be entitled to terminate this <strong>Agreement</strong>.<br />
8.8 Hygiene and Quality Standards<br />
8.8.1 The Developer shall abide by the following Hygiene and Quality Standards<br />
a. Quality of water has to be hygienic.<br />
b. The storage, handling of raw materials and cooking etc will have to be in<br />
extreme hygienic conditions.<br />
c. The provisions of Prevention of Food Adulteration Act, 1954, and any law<br />
relating to hygiene and quality shall be binding.<br />
d. The Authority reserves the right to get the food samples/raw materials tested at<br />
Laboratories at the cost of the Developer.<br />
e. The Developer will be duly bound to reveal the source of procurement of raw<br />
material if asked by the Authority.<br />
23
f. The Developer shall maintain the Property and surrounding areas in proper<br />
cleanliness and hygienic conditions at its own cost and shall also be bound to<br />
follow such directions of the Authority issued from time to time in this respect.<br />
g. The Developer will ensure clearance of all the rubbish and the waste generated<br />
at their location and ensure safe and quick scientific disposal of all such material<br />
and will also coordinate with concerned civic agencies for disposal of garbage<br />
even outside the Property.<br />
h. In case the Developer fails to maintain the hygienic standards, the Developer<br />
shall pay a penalty of Rs 500 per day for the first 10 days and Rs 1000 per day<br />
subsequently to The Authority till such time the hygienic conditions are met.<br />
The penalty will be payable ten days after receipt of written notice from the<br />
Authority.<br />
8.9 Transfer Period<br />
8.9.1 At the end of the <strong>Lease</strong> Period or early termination thereof, the Property, Project Asset<br />
and Project Facility should be in a useable condition and handed over to the Authority<br />
by the Developer as per the terms of this <strong>Agreement</strong>;<br />
8.9.2 The Developer shall not make any modifications to the Property or Project Facility<br />
which could have an adverse impact on the operations of the Property or Project<br />
Facility during the last 5 years of the <strong>Lease</strong> Period;<br />
8.9.3 The Developer shall provide support and further do all such acts including execution<br />
of necessary writings/documents as desired by the Authority for deleting the name of<br />
Developer from, or diluting or dissolving any apparent right or interest, in license or<br />
permission obtained in relation to the Project Facility at the end of <strong>Lease</strong> Period.<br />
8.10 General Obligations<br />
8.10.1 The Developer shall at its own cost, expenses and risk:<br />
a. investigate, study, design, develop, renovate, construct, operate, maintain and<br />
manage the Property / Project Facility/ Project Asset in accordance with the<br />
provisions of this <strong>Agreement</strong>, Good Industry Practice and Applicable Laws;<br />
b. assume responsibility relating to designing, financing, renovation, construction,<br />
augmentation, operation, maintenance and management of the Project Facility to<br />
standards as specified in the guidelines issued by Ministry of <strong>Tourism</strong>,<br />
Government of India and transfer of the Property, Project Facility and Project<br />
Assets after the expiry of the <strong>Lease</strong> Period.<br />
c. The Developer shall get <strong>Lease</strong> <strong>Agreement</strong> registered in two counterparts with<br />
the concerned registration authority within 30 days of the signing of the <strong>Lease</strong><br />
<strong>Agreement</strong> and cost of stamping and registration of this <strong>Lease</strong> <strong>Agreement</strong> shall<br />
be borne by the Developer. The original <strong>Lease</strong> <strong>Agreement</strong> shall be kept with the<br />
Authority and the copy of the counterpart of <strong>Agreement</strong> shall be with the<br />
Developer.<br />
d. pay all taxes and charges including but not limited to utility charges, service tax,<br />
duties, levies etc. which are payable in relation to the design, finance,<br />
renovation, augmentation, operation and management of the Property / Project<br />
Facility during the <strong>Lease</strong> Period..<br />
e. provide required reports to the Authority on regular basis during the<br />
<strong>Development</strong> Phase, Operation and Transfer period;<br />
f. punctually settle and pay amounts owed to the Authority (including but not<br />
limited to Annual <strong>Lease</strong> Rent within the time agreed and not to allow the same<br />
24
to fall in arrears. All such amounts paid after the time agreed will be paid with<br />
interest @ SBI Base Rate plus three percent (3%) per annum;<br />
g. provide at its own cost and expense adequate personnel, qualified and<br />
experienced, for the purposes of design, renovation, augmentation, construction,<br />
operation, management and transfer of the Property and the due discharge of the<br />
obligations of the Developer;<br />
h. Provide Job Training to one trainee per room as per the guidelines of “Hunar Se<br />
Rozgaar Tak” Scheme of Ministry of <strong>Tourism</strong>, GoI. The cost of training shall be<br />
reimbursed to the Developer as per the aforesaid guidelines.<br />
i. ensure and procure that each Project <strong>Agreement</strong> contains provisions that would<br />
entitle the Authority or a nominee of the Authority to step into such agreement<br />
at the Authority‟s discretion, in place and substitution of the Developer in the<br />
event of Termination pursuant to the provisions of this <strong>Agreement</strong>;<br />
j. take all reasonable precautions for the prevention of accidents on or about the<br />
Property / Project Facility and provide all reasonable assistance and Emergency<br />
medical aid to accident victims;<br />
k. indemnify and keep the Authority fully and comprehensively indemnified from<br />
and against all claims and demands, actions, proceedings, damages, costs,<br />
charges and expenses and/or liabilities that may arise after the Appointed Date<br />
or be caused to the Authority in consequence or as a result of an act or default or<br />
breach or non-observance of any laws, rules, regulations, requirements,<br />
conditions etc. of Developer in design, finance, renovation, construction,<br />
operation, management or transfer of the said Project and/or Property and /or<br />
Project Facility and or Project Asset;<br />
l. duly discharge and settle all payments and dues including but not limited to<br />
salary/wages/provident fund/employees insurance and any other dues or claims<br />
whatsoever as per Applicable Law, whether statutory or contractual, and also<br />
including any termination compensation or dues, owed to its personnel and staff<br />
including any contract labour engaged by Developer for the purposes of design,<br />
renovation, constructing, maintaining and operation of the Property / Project<br />
Facility and to keep the Authority fully indemnified against all claims and<br />
demands from or on behalf of any such personnel or staff of the Developer and<br />
all actions, proceedings, damages, costs and expenses resulting from any such<br />
claims and demands.;<br />
m. make efforts to maintain harmony and good industrial relations among the<br />
personnel employed in connection with the performance of the Developer's<br />
obligations under this <strong>Agreement</strong>;<br />
n. be responsible for safety, soundness and durability of the Property and the<br />
Project Facility including all structures forming part thereof and their<br />
compliance with the Specifications and Standards;<br />
o. provide access to the Property / Project Facility/Project Asset to the Authority<br />
and officer of any Government Agency having jurisdiction over the Property,<br />
including those concerned with safety, security or protection to inspect the<br />
Property / Project Facility/Project Asset and to investigate any matter within<br />
their authority and upon reasonable notice. The Developer shall provide to such<br />
persons reasonable assistance necessary to carry out their respective duties and<br />
functions;<br />
p. ensure that the Property, Project Facilities and Project Asset remain free from all<br />
encroachments and take all steps necessary to remover encroachments, if any;<br />
25
q. appoint an authorised representative to take and carry out the instructions given<br />
to it by the Authority and intimate the following about abovesaid authorised<br />
representatives to the Authority of the same :<br />
1. Name:________________<br />
2. Designation:________________<br />
3. Address:________________<br />
r. change the authorised representative, if required and in such event, provide<br />
advance written notice of 30 (thirty) days to the Authority of any such change.<br />
s. be responsible for all health, security, environment and safety aspects of the<br />
Project / Property / Project Facility<br />
8.11 Financial and Project Information<br />
8.11.1 The Developer shall deliver to the Independent Engineer and Independent Auditor and<br />
the Authority the following documents and information at the intervals described<br />
below:<br />
a) Financial Information<br />
a. annual audited accounts (in compliance with Indian General Accounting<br />
Practices) of the Developer duly Certified by its Statutory Auditors,<br />
delivered within 180 days of the end of each Financial Year;<br />
b. unaudited financial statements (in compliance with Indian General<br />
Accounting Practices) of the Developer:<br />
i monthly reports within 15 days of the end of each such period and<br />
ii quarterly reports within 30 days of the end of each such period;<br />
c. notification of any material change in the financial condition of the<br />
Developer and/or the Project promptly following such occurrence.<br />
d. all reports, notifications and information including construction progress<br />
reports with respect to the execution of the Works.<br />
e. all reports, notifications and information including operations reports with<br />
respect to the performance of the operation and management of the Project<br />
Facility.<br />
b) Additional Information<br />
The Developer agrees to provide to the Authority, the Independent Engineer<br />
and the Independent Auditor such further information as any of them may<br />
reasonably request in order for them to monitor the progress and Performance<br />
Standards for the Project.<br />
c) Budgets<br />
At the commencement of each Financial Year the Developer will prepare and<br />
submit to the Independent Engineer and the Independent Auditor a statement<br />
confirming:<br />
(i) the expenditure incurred or committed or to be incurred by the Developer<br />
for the period from the date of the last such statement to and including the<br />
date of the current statement; and<br />
(ii) future expenditure anticipated to be made during the next Financial Year.<br />
d) Financial Year<br />
The Developer shall not change its Financial Year without the prior written<br />
approval of the Authority.<br />
26
8.12 No breach of obligations<br />
8.12.1 The Developer shall not be considered to be in breach of its obligations under this<br />
<strong>Agreement</strong> nor shall it incur or suffer any liability if and to the extent performance of<br />
any of its obligations under this <strong>Agreement</strong> is affected by or on account of any of the<br />
following:<br />
a. Force Majeure Event<br />
b. the Authority Event of Default<br />
c. Compliance with instructions of the the Authority or the directions of any<br />
government agency other than instructions issued as a consequence of a breach<br />
by the Developer of any of its obligations as set forth in this <strong>Agreement</strong>: or<br />
d. Closure of Project Facility or part thereof with the approval of the Authority<br />
ARTICLE 9: THE AUTHORITY’S OBLIGATIONS AND UNDERTAKINGS<br />
In addition to and not in derogation or substitution of any of the obligations set out in this<br />
<strong>Agreement</strong>, the Authority agrees and undertakes as under:<br />
9.1 Obligations and Undertakings<br />
9.1.1 the Authority shall:<br />
a. hand over the physical possession of Property together with necessary right of<br />
way / way leaves to the Developer within 180 (one eighty) days from Appointed<br />
Date, free from any Encumbrance;<br />
b. grant or where appropriate provide necessary assistance to the Developer in<br />
securing applicable permits;<br />
c. grant in a timely manner all such approvals, permissions and authorisations<br />
which the Developer may require or is obliged to seek from the Authority in<br />
connection with implementation of the Project and the performance of the<br />
Developer‟s obligations under this <strong>Agreement</strong>;<br />
d. upon written request from the Developer, assist the Developer in obtaining<br />
access to all necessary infrastructure facilities and utilities, including water,<br />
electricity and telecommunication facilities;<br />
e. ensure peaceful use of the Property by the Developer under and in accordance<br />
with the provisions of this <strong>Agreement</strong> without any hindrance from the Authority<br />
or persons claiming through or under it;<br />
f. Accept the right of the Developer to affix the brand name on the rooftop or any<br />
part or space relating to the Premises upon prior permission from the Authority.<br />
g. observe and comply with all its obligations set forth in this <strong>Agreement</strong>.<br />
9.1.2 The Authority shall inspect the Project Facility at least once every six months and<br />
prepare a report of such inspection (the “Inspection Report”). It shall send a copy of<br />
its Inspection Report to the Developer.<br />
ARTICLE 10: INDEPENDENT ENGINEER AND INDEPENDENT AUDITOR<br />
10.1.1 Appointment<br />
10.1.2 The Authority shall appoint an individual / firm / company as the Independent<br />
Engineer and a reputed firm of Chartered Accountants practising in India as the<br />
Independent Auditor to undertake and perform the duties, work, services and<br />
27
activities set forth in this Article 10 and otherwise as set out in this <strong>Agreement</strong> and<br />
the Schedules. The Authority shall complete the appointment of Independent<br />
Engineer and Independent Auditor within 60 days from the Appointed Date.<br />
10.1.3 The Independent Engineer and the Independent Auditor shall report to the Authority<br />
about their work, services, and activities pursuant hereto through regular periodic<br />
reports as the situation may warrant. Such report of the Independent Engineer and<br />
the Independent Auditor shall include such matters as appropriate to ensure that the<br />
Authority is properly informed.<br />
10.2 Payments of Independent Engineer and Independent Auditor<br />
10.2.1 All fees, costs, charges and expenses payable to the Independent Engineer and<br />
Independent Auditor in accordance with the terms of appointment shall be borne by<br />
the Authority.<br />
ARTICLE 11: PROJECT IMPLEMENTATION AND OPERATIONS<br />
11.1 Preparation of Designs and Drawings<br />
The Developer shall at its cost, charges and expenses, prepare the Designs and<br />
Drawings in conformity with the Project Requirements.<br />
11.2 Review of the Designs and Drawings<br />
a) The Developer shall submit the Designs and Drawings for the review of the<br />
Independent Engineer. Simultaneously, the Developer shall also provide the<br />
Authority with a set of the Designs and Drawings.<br />
b) The Independent Engineer shall review the Designs and Drawings submitted by<br />
the Developer and provide its comments/observations and suggestions on the<br />
same (including taking into account the comments/observations of the<br />
Concessioning Authority in respect thereof as it may in its sole discretion deem<br />
fit) within 21 (twenty one) Days from the date of the receipt of such Designs and<br />
Drawings.<br />
c) In the event that the Independent Engineer has observed that the Designs and<br />
Drawings are not in conformity with the Project Requirements, the Developer<br />
shall promptly and without any undue delay revise and resubmit the Designs and<br />
Drawings or satisfy the Independent Engineer with regards its compliance.<br />
d) If the Independent Engineer does not make any observation/comments with<br />
respect to the Designs and Drawings submitted to it by the Developer within 21<br />
(twenty one) Days of the submission, it shall be deemed that the Independent<br />
Engineer has no suggestions to make with respect to the Designs and Drawings<br />
and the Developer shall be entitled to proceed with the Project accordingly.<br />
e) The Developer shall not be entitled to any extension of time for completing<br />
construction or any other relief on account of delay caused due to providing any<br />
clarification or in resubmitting the Designs and Drawings. Provided however the<br />
Authority at its sole discretion may suitably extend the Construction Phase or<br />
28
provide other relief to compensate for any such delay not attributable to the<br />
Developer.<br />
f) The Developer shall not change any Designs and Drawings reviewed by the<br />
Independent Engineer under this <strong>Agreement</strong>, without submitting such revised<br />
Designs and Drawings for the review of the Independent Engineer.<br />
g) Notwithstanding the review by the Independent Engineer, the Developer shall be<br />
solely responsible for any defect and/or deficiency in the Designs and Drawings<br />
relating to the Project or any part thereof and accordingly the Developer shall at<br />
all times remain responsible for its obligations under this <strong>Agreement</strong>.<br />
h) Any review of the Designs and Drawings conducted by the Authority is solely for<br />
the Authority‟s own information and that by conducting such review, the<br />
Authority does not accept any responsibility for the same.<br />
i) The Developer shall in no way represent to any Person that, as a result of any<br />
review by the Independent Engineer, the Authority has accepted responsibility for<br />
the engineering or soundness of any work relating to the Project/ the Project<br />
Facilities and Services or part thereof carried out by the Developer and the<br />
Developer shall, in accordance with the provisions of this <strong>Agreement</strong>, be solely<br />
responsible for the technical feasibility, operational capability and reliability of<br />
the Project/ the Project Facilities and Services or any part thereof.<br />
11.3 Construction Phase<br />
The Developer shall promptly commence and complete the works, including<br />
installation of equipment in accordance with the Project Schedule and shall also obtain<br />
from the Independent Engineer a certificate as to completion of construction of Project<br />
Facilities and Services in accordance with the provisions of this <strong>Agreement</strong><br />
(“Completion Certificate”) not later than 60 Months (Sixty months) from the date of<br />
commencement of the Appointed Date.<br />
11.4 Obligations of the Developer<br />
Without prejudice to the any other clause in this <strong>Agreement</strong> and in addition to any of<br />
its other obligations under this <strong>Agreement</strong>, during the Construction Phase, the<br />
Developer shall:<br />
a) arrange for, in a timely manner all necessary financial and other resources<br />
required for construction and installation of the Project Facilities and Services.<br />
b) engage professionally competent Persons for project management and<br />
construction and ensure that all works are carried out in compliance with the<br />
Construction Standards;<br />
c) give written notice to the Authority within 7 (seven) Days of any material<br />
modification or change to any of the Financing Documents and/or any Equity<br />
Documents and shall simultaneously therewith also furnish copies of such<br />
29
modified/ amended documents to the Authority. Provided no such<br />
modification/amendment will be made if it in any manner whatsoever has the<br />
effect of imposing an additional financial obligation or increasing the financial<br />
obligation of the Authority in addition to that contemplated under the Financing<br />
Documents provided on Financial Close, without the prior written consent of the<br />
Concessioning Authority. For avoidance of doubt any such<br />
modifications/amendments made without the prior written consent of the<br />
Authority will not be enforceable against the Authority;<br />
d) obtain Applicable Permits, comply with Applicable Laws and Applicable Permits<br />
and give priority to safety in its construction and planning activities in order to<br />
protect life, health, property and environment;<br />
e) provide to the representative(s) of the Authority, at reasonable times and upon<br />
prior intimation, access to the Project Site to review progress in construction and<br />
to ascertain compliance with any of the requirements of this <strong>Agreement</strong>. Provided<br />
that non-inspection by the Authority of any works shall not, in relation to such<br />
works, (i) amount to any consent or approval by the Authority nor shall the same<br />
be deemed to be waiver of any of the rights of the Authority under this<br />
<strong>Agreement</strong>; and (ii) release or discharge the Developer from its obligations or<br />
liabilities under this <strong>Agreement</strong> in respect of such work;<br />
f) provide monthly reports on the progress of Construction Works or such other<br />
relevant information as may be required by the Independent Engineer;<br />
g) promptly carry out at its cost such further works as may be necessary to remove<br />
any defects or deficiencies observed by the Independent Engineer and ensure<br />
timely completion of construction of the Project / the Project Facilities and<br />
Services in all respects in accordance with the provisions of this <strong>Agreement</strong>; and<br />
h) to ensure safe and timely construction and completion of the Project/Project<br />
Facilities and Services, the Developer may, at its cost, interrupt and divert/create<br />
barriers on the flow of water or on the road or port traffic, adjacent to the Project<br />
Site if such interruption and diversion is imperative for the efficient progress of<br />
Construction Works and conforms to Good Industry Practice; provided that such<br />
interruption and diversion shall be undertaken by the Developer only with the<br />
prior written approval of the Independent Engineer which approval shall not be<br />
unreasonably withheld. For the avoidance of doubt, it is agreed that the Developer<br />
shall at all times be responsible for ensuring safe operation of Construction Works<br />
and shall remove the interruption or diversion within the period specified by the<br />
Independent Engineer.<br />
11.5 Obligations of the Authority<br />
In addition to any of its other obligations under this <strong>Agreement</strong>, during the<br />
Construction Phase, the Concessioning Authority shall:<br />
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a) in matters falling within its authority, grant, the Applicable Permits, approvals and<br />
consents as may be required by the Developer and on a best efforts basis<br />
cooperate the Developer in obtaining all other Applicable Permits as may be<br />
required by the Developer;<br />
b) upon written request from the Developer, cooperate the Developer, on a best effort<br />
basis, in obtaining immigration clearances, employment permits and residential<br />
premises for any foreign personnel engaged or employed by the Developer in<br />
connection with the implementation of the Project; and<br />
c) subject to the Developer / Contractor complying with the requirements under the<br />
Applicable Laws including but not limited to payment of customs and any other<br />
duty, cooperate the Developer or Contractor, on a best effort basis, to import into<br />
India all items of equipment and materials required for the Project.<br />
11.6 Suspension of Works<br />
a) Upon recommendation of the Independent Engineer to this effect, the<br />
Concessioning Authority may by notice require the Developer to suspend<br />
forthwith the whole or any part of the Construction Works if, in the reasonable<br />
opinion of the Authority, such work is not in accordance with the Construction<br />
Standards / Safety Standards.<br />
b) The Developer shall, pursuant to the notice under the foregoing provision suspend<br />
the Construction Works or any part thereof for such time and in such manner as<br />
may be specified by the Authority and thereupon represent to the Authority /<br />
Independent Engineer, the remedial measures to remedy the defects notified. The<br />
Developer may by notice require the Independent Engineer to inspect such<br />
remedial measures forthwith and make a report to the Authority recommending<br />
whether or not the suspension hereunder may be revoked. Any dispute as regards<br />
the suspension of works or the remedial measures proposed, if cannot resolved<br />
within 30 (thirty) Days of the suspension or proposal of the remedial measures,<br />
shall be submitted for dispute resolution in accordance with this <strong>Agreement</strong><br />
hereof.<br />
11.7 Issue of Completion Certificate<br />
a) At least 60 (sixty) Days prior to the likely completion of the Project, the<br />
Developer shall notify the Independent Engineer of the date when it intends to<br />
commence commercial operations. The Independent Engineer shall then proceed<br />
to inspect the Construction Works with the intention of issuing the Completion<br />
Certificate and determine and notify to the Developer the schedule and manner of<br />
the tests that it shall carry out to ensure that the Project meets with the<br />
Construction Standards (“the Tests”). The date and time of each of the Tests shall<br />
be determined by the Independent Engineer in consultation with the Developer,<br />
and notified to the Authority who may designate its representative to witness the<br />
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Tests. The Developer shall provide such assistance as the Independent Engineer<br />
may reasonably require for conducting the Tests. In the event of the Developer<br />
and the Independent Engineer failing to mutually agree on the dates for<br />
conducting the Tests, the Developer shall fix the dates by not less than 10 (ten)<br />
Days notice to the Independent Engineer;<br />
b) Upon completion of each Test, the Independent Engineer shall provide to the<br />
Developer and the Authority copies of all Test data including detailed Test results;<br />
c) Upon completion of Construction Works and the Independent Engineer<br />
determining all the Tests to be successful, it shall forthwith issue to the Developer<br />
and the Authority a Completion Certificate;<br />
d) The Independent Engineer may, at the request of the Developer, issue a<br />
provisional certificate of completion substantially (the “Provisional Certificate”) if<br />
the Tests are successful and the Project can be safely and reliably placed in<br />
commercial operation though certain works or things forming part thereof are<br />
outstanding and not yet complete. The Provisional Certificate shall have appended<br />
thereto a list of outstanding items signed jointly by the Independent Engineer and<br />
the Developer (the “Punch List”) to be completed by the Developer within a<br />
stipulated time. All items in the Punch List shall be completed by the Developer<br />
within 90 (ninety) Days of the date of issue of the Provisional Certificate or such<br />
other extended period that the Concessioning Authority may in its sole discretion<br />
determine, failing which the Provisional Certificate shall lose its validity and the<br />
Authority shall be entitled to terminate this <strong>Agreement</strong>;<br />
11.8 Liquidated Damages<br />
Subject to any of the provisions of this <strong>Agreement</strong> providing for extension of time for<br />
performance or excuse from performance, as the case may be, of any of the<br />
obligations of the Developer under this <strong>Agreement</strong>, the Developer shall pay to the<br />
Authority liquidated damages at the rate of 0.1% (zero point one percent) of the<br />
Performance Guarantee for every Day of delay in fulfilling the specified obligations<br />
on or before a Milestone Date including a delay in obtaining the Completion<br />
Certificate or the Provisional Certificate on or before the Scheduled Project<br />
Completion Date. Provided such liquidated damages shall not in aggregate exceed 5%<br />
(five percent) of the Minimum <strong>Development</strong> Obligation and unless the delay is in<br />
obtaining of the Completion Certificate or the Provisional Certificate, shall not be<br />
payable for less than 15 (fifteen) Days of delay from a Milestone Date, in fulfilling a<br />
specified obligation. The Parties agree that the liquidated damages as provided are a<br />
genuine pre-estimate of the damages the Authority is likely to suffer and are not by<br />
way of a penalty. In case the aggregate delay exceeds 180 (one hundred and eighty)<br />
Days or the aggregate liquidated damages paid and/or payable under this provision<br />
exceeds the specified limit of 5% (five percent) of the Minimum <strong>Development</strong><br />
Obligation, the Authority shall be entitled to terminate this <strong>Agreement</strong> and the<br />
32
consequences of termination as laid down in Article 14 shall follow. The<br />
Concessioning Authority may, at its discretion recover any amounts with respect to<br />
liquidated damages from the Performance Guarantee.<br />
11.9 OPERATIONS & MAINTENANCE<br />
11.9.1 Obligations of the Developer<br />
In addition to any of its other obligations under this <strong>Agreement</strong>, the Developer shall<br />
manage, operate, maintain and repair the Project Facilities and Services, entirely at its<br />
cost, charges, expenses and risk in accordance with the provisions of this <strong>Agreement</strong>.<br />
The Developer‟s obligations under this Article shall include but shall not be limited<br />
to the following:<br />
(i)<br />
Operations & Maintenance:<br />
The Developer shall:<br />
a) promptly commence operations upon the Project Facilities and Services being<br />
declared by the Authority as ready for operations;<br />
b) make efforts to achieve optimal utilization of the Project Facilities and Services;<br />
c) ensure compliance of the Project Facilities and Services at least with the Project<br />
Requirements;<br />
d) ensure compliance of the Project Facilities and Services at least with the Good<br />
Industry Practice;<br />
e) ensure that the Project Facilities and Services shall adhere to the Operations and<br />
Maintenance Standards and Safety Standards;<br />
f) make available all necessary financial, technical, technological, managerial and<br />
other resources for operation, maintenance, repair and replacement of the Project<br />
Facilities and Services in a timely manner;<br />
g) ensure maintenance of proper and accurate record/data/accounts relating to<br />
operations of the Project Facilities and Services and the revenue earned therefrom;<br />
h) obtain, maintain and comply with Applicable Permits and comply with the<br />
Applicable Laws including those relating but not limited to safety, health,<br />
environment and labour; and<br />
i) prevent, with the assistance of concerned law enforcement agencies, any<br />
encroachment or unauthorized use of the Project Facilities and Services.<br />
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(ii)<br />
Repairs and Maintenance<br />
The Developer shall at its own cost:<br />
a) repair as necessary and maintain the Project Facilities and Services or any part<br />
thereof in accordance with the Project Requirements and for this purpose carry out<br />
routine preventive measures and maintenance of the Project Facilities and<br />
Services including resurveying of pavement, repair structures and repair and<br />
refurbish equipments; and<br />
b) maintain the Project Facilities and Services in accordance with the provisions of<br />
this <strong>Agreement</strong> and Good Industry Practice with the objective of providing<br />
adequate service standards and ensuring that the Project Facilities and Services to<br />
be transferred to the Authority upon expiry of the <strong>Lease</strong> Period are in good<br />
condition, normal wear and tear excepted.<br />
(iii)<br />
Replacement of Equipment<br />
The Developer shall at its cost, plan for replacement of the equipment well ahead of<br />
the time when the utility thereof is reasonably expected to expire and replace the<br />
equipment in accordance with Good Industry Practice so as to ensure that the Project<br />
facilities and Services commensurate with the Project Requirements, at all times<br />
during the <strong>Lease</strong> Period.<br />
(iv)<br />
Repairs, Replacement or Restoration<br />
The Developer shall at its own costs, promptly and diligently repair, replace or restore<br />
any of the Project Facilities and Services or part thereof which may be lost, damaged,<br />
or destroyed for any reason whatsoever.<br />
(v)<br />
Removal / Replacement of Assets<br />
Except as provided/authorized under this <strong>Agreement</strong> the Developer shall not, without<br />
the prior written permission of the Authority, remove or replace any assets comprised<br />
in the Project Facilities and Services. Such notice shall contain the exact details of the<br />
assets that the Developer intends to remove and/or replace, its reasons for doing so and<br />
the likely period for replacement.<br />
(vi)<br />
Payments to the Concessioning Authority<br />
The Developer shall make/ensure payments to the Concessioning Authority as per<br />
Article 6.<br />
(vii)<br />
Access for Inspection<br />
The Developer shall be obliged to extend all co-operation to Experts appointed by the<br />
34
Authority for purposes of verifying that the Project/the Project Facilities and Services<br />
are operated and maintained in compliance with the Good Industry Practice and<br />
adhere to the operations and maintenance standards and safety standards. Such<br />
verification shall be made annually. Additionally, the Developer shall upon prior<br />
intimation by the Authority provide the authorized representatives of the Authority<br />
access to the Project Facility Assets/the Project Facilities and Services for inspection<br />
and review of operations and also to ascertain compliance with any of the<br />
requirements under this <strong>Agreement</strong>. Without prejudice to the generality of this<br />
provision, it is agreed by the Developer that it shall in particular extend all cooperation<br />
and information required by the Experts appointed by the Authority for<br />
conducting a safety audit and verifying that the Project/Project Facilities and Services<br />
are in strict compliance with the Safety Standards.<br />
(viii) Reports<br />
The Developer shall provide to the Authority, Daily and Monthly reports on revenue<br />
earned and collected in respect of Project Facilities and Services, and any other<br />
information relating to operations which the Authority may require from time to time.<br />
In addition to Physical Copy, the Developer shall provide the reports in prescribed<br />
formats and in electronic form so as to provide online access to the Concessioning<br />
Authority and its representatives.<br />
(ix)<br />
Computer System and On Line Network<br />
The Developer shall install, operate and maintain such computer system and network<br />
(such as Electronic Data Interchange and Real time on line Monitoring System) and<br />
follow such protocol as the Authority may specify from time to time.<br />
(x)<br />
Security Arrangements<br />
The Developer may make his own arrangements for security in the Project Site/Port<br />
Assets and with respect to the Project provided the Developer shall abide by the<br />
security regulations/ procedures prescribed by the Authority or a Government<br />
Authority from time to time.<br />
(xi)<br />
Employment of Personnel<br />
The Developer shall employ qualified and skilled personnel required to operate the<br />
Project Facilities and Services. The terms of employment may be as deemed fit by the<br />
Developer and the Developer shall comply with all Applicable Laws and bear all<br />
costs in this regard. Without prejudice to the generality of this provision, all requisite<br />
approvals for employment of personnel of foreign origin or nationality shall be<br />
obtained by the Developer prior to engaging such personnel. Failure to obtain<br />
approval will not amount to a Force Majeure Event. All employees shall always<br />
35
emain the Developer‟s responsibility. All labour law compliances shall be that of the<br />
Developer alone.<br />
11.9.2 Approvals<br />
The Authority shall promptly grant approvals/ consents sought by the Developer as<br />
required under this <strong>Agreement</strong> subject to the Developer having complied with all<br />
Applicable Laws/requirements in this regard.<br />
ARTICLE 12: FINANCIAL CLOSE<br />
12.1 Financial Close<br />
12.1.1 The Developer hereby agrees and undertakes that it shall achieve Financial Close<br />
within 180 days from the Appointed Date. The Developer shall, upon occurrence of<br />
Financial Close, notify the Authority forthwith, and shall have provided to the<br />
Authority, at least 2 (two) days prior to the Financial Close, 3 (three) true copies of<br />
the Financial Package.<br />
12.1.1 Notwithstanding anything to the contrary contained in this <strong>Agreement</strong>, in the event<br />
that the Financial Close does not occur, for any reason whatsoever, within the period<br />
set forth in Clause 12.1.1, all rights, privileges, claims and entitlements of the<br />
Developer under or arising out of this <strong>Agreement</strong> shall be deemed to have been<br />
waived by and to have ceased with the concurrence of the Developer, and this<br />
<strong>Agreement</strong> shall be deemed to have been terminated by mutual agreement of the<br />
Parties.<br />
12.1.2 For the avoidance of doubt the Parties agree that no amendment made to the<br />
Financing Documents without prior express consent of the Authority shall have the<br />
effect of enlarging in any manner, the obligations of the Authority under this<br />
<strong>Agreement</strong>.<br />
ARTICLE 13: INSURANCES<br />
13.1 Insurance during <strong>Lease</strong> Period<br />
13.1.1 The Developer shall, at its cost and expense, purchase and maintain during the <strong>Lease</strong><br />
Period such insurance policies as are necessary, including but not limited to the<br />
following:<br />
a. Developers‟ all risk insurance;<br />
b. Comprehensive third party liability insurance including injury or death to<br />
personnel / representative of Persons who may enter the Property;<br />
c. Workmen‟s compensation insurance;<br />
d. loss, damage or destruction of the Project Facility, at replacement value;<br />
e. the Developer‟s general liability arising out of the <strong>Lease</strong>;<br />
f. liability to third parties; and<br />
g. any other insurance that may be necessary to protect the Developer, its<br />
employees and its assets against loss, damage, destruction, business<br />
interruption or loss of profit including insurance against all Force Majeure<br />
Events that are insurable and not otherwise covered in items (a) to (f).<br />
13.1.2 The Developer shall at its cost and expense, purchase and maintain by due<br />
reinstatement or otherwise, during the <strong>Lease</strong> Period all insurances in respect of the<br />
36
Property/ Project Asset / Project Facilities in accordance with the Good Industry<br />
Practice. The Developer shall maintain a register of entry in order of premiums paid<br />
towards the Property/ Project Asset / Project Facilities and proof of payments made<br />
shall be submitted to the Authority whenever requested for.<br />
13.2 Insurance Companies<br />
13.2.1 The Developer shall insure all insurable assets comprised in the Project Facility<br />
through insurance companies.<br />
13.3 Evidence of Insurance Cover<br />
13.3.1 The Developer shall, from time to time, in case of demand from the Authority<br />
provide copies of all insurance policies (or appropriate endorsements, certifications<br />
or other satisfactory evidence of insurance) obtained by the Developer in accordance<br />
with this <strong>Agreement</strong>.<br />
13.4 Application of Insurance Proceeds<br />
13.4.1 Subject to the provisions of the Financing Documents and unless otherwise provided<br />
herein, all proceeds received under insurance policies shall be promptly applied by<br />
the Developer towards repair or renovation or re-instatement of the Property /<br />
Project Facility/Project Asset or any part thereof, which may have been damaged or<br />
destroyed. The Developer may designate the Lenders as the loss payees under the<br />
insurance policies / assign the insurance policies in their favour as security for<br />
financial assistance. The Developer shall carry out such repair or renovation or reinstatement<br />
to the extent possible in such a manner that the Property / Project<br />
Facility/Project Asset or any part thereof, shall, after such repair or renovation or<br />
restoration or re-instatement be as far as possible in the same condition as they were<br />
before such damage or destruction, normal wear and tear excepted.<br />
13.5 Validity of the Insurance Cover<br />
13.5.1 The Developer shall pay the premium payable on such insurance policy (or policies)<br />
so as to keep the policy (or policies) in force and valid throughout the <strong>Lease</strong> Period.<br />
ARTICLE 14: EVENTS OF DEFAULT AND TERMINATION<br />
14.1 Event of Default<br />
14.1.1 Event of Default means the Developer Event of Default or the Authority Event of<br />
Default or both as the context may admit or require.<br />
14.2 Developer Event of Default:<br />
14.2.1 The following events shall constitute an event of default by the Developer (a<br />
“Developer Event of Default”) unless such Developer Event of Default has<br />
occurred as a result of the Authority Event of Default or a Force Majeure Event;<br />
a. The Developer fails to satisfy the Conditions Precedent within the time frame<br />
specified in this <strong>Agreement</strong>.<br />
b. The Developer creates any Encumbrance on the Property in favour of any<br />
person save and except as otherwise expressly permitted under this<br />
<strong>Agreement</strong>.<br />
c. The Developer is in Material Breach of any of its other obligations under this<br />
<strong>Agreement</strong> and the same has not been remedied for more than 60 days after<br />
receipt of Notice thereof by the Authority;<br />
37
d. Any representation made or warranties given by the Developer under this<br />
<strong>Agreement</strong> are found to be false or misleading.<br />
e. A resolution is passed by the shareholders of the Developer for voluntary<br />
winding up of the Developer entity;<br />
f. The Developer is adjudged bankrupt or insolvent;<br />
g. Any petition for winding up of the Developer has been admitted and<br />
liquidator or provisional liquidator has been appointed or the Developer has<br />
been ordered to be wound up by Court of competent jurisdiction, except for<br />
the purpose of amalgamation or reconstruction with the prior consent of the<br />
Authority, provided that, as part of such amalgamation or reconstruction the<br />
amalgamated or reconstructed entity has unconditionally assumed all<br />
surviving obligations of the Developer under this <strong>Agreement</strong><br />
h. A default has occurred under any of the Financing Documents and any of the<br />
Lenders has recalled its financial assistance and demanded payment of the<br />
amounts outstanding under the Financing Documents or any of them as<br />
applicable.<br />
i. The Developer repudiates this <strong>Agreement</strong> or otherwise evidences an<br />
intention not to be bound by this <strong>Agreement</strong>.<br />
j. The Developer suffers an attachment being levied on any of its assets causing<br />
a Material Adverse Affect on the Property / Project Facility/Project Assets<br />
and such attachment continues for a period exceeding 90 days.<br />
k. The Developer has delayed any payment that has fallen due under this<br />
<strong>Agreement</strong> and if such delay exceeds 90 (ninety) days from the Due Date.<br />
l. The Developer abandons the operations of the Project Facility for more than<br />
30 (thirty) consecutive days without the prior consent of the Authority.<br />
m. The Developer fails to meet the Minimum <strong>Development</strong> Obligations as set<br />
out in this <strong>Agreement</strong> during the <strong>Lease</strong> Period and has failed to remedy the<br />
same within ninety (90) days.<br />
n. The Developer fails to pay the necessary insurance premium towards the<br />
Property/ Project Facility / Project Assets and thereby causes the insurance<br />
coverage on the Property/ Project Facility / Project Assets to diminish,<br />
terminate or expire.<br />
14.3 The Authority Event of Default:<br />
14.3.1 Any of the following events shall constitute an event of default by the Authority<br />
("Authority Event of Default”), when not caused by a Developer Event of Default<br />
or due to a Force Majeure Event:<br />
a. The Authority fails to fulfil any of its Conditions Precedents in accordance<br />
with the provisions of this <strong>Agreement</strong>;<br />
b. The Authority unlawfully repudiates this <strong>Agreement</strong> or otherwise evidences an<br />
irrevocable intention not to be bound by this <strong>Agreement</strong>;<br />
c. Any representation made or warranties given by the Authority under this<br />
<strong>Agreement</strong> are found to be false or misleading.<br />
d. The Authority fails to adhere to the Authority Obligations as listed in Article 9<br />
within the corresponding stipulated timelines<br />
14.4 Termination Due to Developer Event of Default<br />
14.4.1 Without prejudice to any other right or remedy which the Authority may have in<br />
respect thereof under this <strong>Agreement</strong>, upon the occurrence of a Developer Event of<br />
38
Default, the Authority may terminate this <strong>Agreement</strong> in the manner as set out under<br />
Clause 14.2.1.<br />
14.4.2 If the Authority decides to terminate this <strong>Agreement</strong> pursuant to preceding clause<br />
14.2.1 (i), it shall in the first instance issue Preliminary Notice to the Developer.<br />
Within thirty (30) days of receipt of the Preliminary Notice, the Developer shall<br />
submit to the Authority in sufficient detail, the manner in which it proposes to cure<br />
the underlying Event of Default (the “Developer's Proposal to Rectify”). In case of<br />
on submission of the Developer's Proposal to Rectify within the said period of 30<br />
days, the Authority shall be entitled to terminate this <strong>Agreement</strong> by issuing<br />
Termination Notice, and to appropriate and invoke the Performance Security<br />
14.4.3 If the Developer's Proposal to Rectify is submitted within the period stipulated<br />
therefor, the Developer shall have further period of 30 days to remedy/ cure the<br />
underlying Event of Default. If, however the Developer fails to remedy/cure the<br />
underlying Event of Default within such further period allowed, the Authority shall<br />
be entitled to terminate this <strong>Agreement</strong>, by issue of Termination Notice and to<br />
appropriate and invoke the Performance Security<br />
14.5 Termination for the Authority Events of Default<br />
14.5.1 Without prejudice to any other right or remedy which the Developer may have in<br />
respect thereof under this <strong>Agreement</strong>, upon the occurrence of Authority Event of<br />
Default, the Developer shall be entitled to terminate this <strong>Agreement</strong> by issuing<br />
Termination Notice.<br />
14.5.2 If the Developer decides to terminate this <strong>Agreement</strong> pursuant to preceding clause<br />
14.3.1 it shall in the first instance issue Preliminary Notice to the Authority. Within<br />
30 days of receipt of Preliminary Notice, the Authority shall forward to the<br />
Developer its proposal to remedy/ cure the underlying Event of Default (the<br />
"Authority Proposal to Rectify”). In case of non submission of Authority Proposal to<br />
Rectify within the period stipulated therefore, Developer shall be entitled to<br />
terminate this <strong>Agreement</strong> by issuing Termination Notice.<br />
14.5.3 If the Authority Proposal to Rectify is forwarded to the Developer within the period<br />
stipulated therefor, the Authority shall have further period of 30 days to remedy/<br />
cure the underlying Event of Default. If, however the Authority fails to remedy/ cure<br />
the underlying Event of Default within such further period allowed, the Developer<br />
shall be entitled to terminate this <strong>Agreement</strong> by issuing Termination Notice<br />
14.6 Termination Notice<br />
14.6.1 If a Party having become entitled to do so decides to terminate this <strong>Agreement</strong><br />
pursuant to the preceding Clause 14.2 and 14.3 it shall issue Termination Notice<br />
setting out:<br />
a. in sufficient detail the underlying Event of Default;<br />
b. the Termination Date which shall be a date occurring not earlier than 60 days<br />
from the date of Termination Notice;<br />
c. the estimated termination payment including the details of computation<br />
thereof;<br />
d. And any other relevant information<br />
14.7 Obligation of Parties<br />
14.7.1 Following issue of Termination Notice by either Party, the Parties shall promptly<br />
take all such steps as may be necessary or required to ensure that;<br />
39
a) until Termination the Parties shall, to the fullest extent possible, discharge<br />
their respective obligations so as to maintain the continued operation of the<br />
Project Facilities,<br />
b) the Termination payment, if any, payable by the Authority is paid to the<br />
Developer on the Termination Date and<br />
c) the Property, Project Asset and Project Facilities are handed over to Authority<br />
by the Developer on the Termination Date free from any Encumbrance along<br />
with any payment that may be due by the Developer to the Authority.<br />
14.8 Withdrawal of Termination Notice<br />
14.8.1 Notwithstanding anything inconsistent contained in this <strong>Agreement</strong>, if the Party who<br />
has been served with the Termination Notice cures the underlying Event of Default<br />
to the satisfaction of the other Party at any time before the Termination occurs, the<br />
Termination Notice shall be withdrawn by the Party which had issued the same.<br />
14.8.2 Provided that the Party in breach shall compensate the other Party for any direct<br />
costs/consequences occasioned by the Event of Default which caused the issue of<br />
Termination Notice.<br />
14.9 Termination Payments<br />
14.9.1 Upon Termination by the Authority on account of occurrence of a Developer Event<br />
of Default, the Authority shall be entitled to receive Termination Payment equal to<br />
sum of succeeding two Annual <strong>Lease</strong> Rent Payments and invoke the Performance<br />
Security.<br />
14.9.2 Upon Termination of this <strong>Agreement</strong> by the Developer due to the Authority Event of<br />
Default, the Developer shall be entitled to receive from the Authority, by way of<br />
Termination Payment a sum equal to:<br />
i. the total debt due, plus<br />
ii. 100% (one hundred percent) of the Equity subscribed in cash and actually<br />
spent on the project.<br />
14.10 Rights of the Authority on Termination<br />
14.10.1 Upon Termination of this <strong>Agreement</strong> for any reason whatsoever, the Authority shall<br />
have the power and authority to<br />
a. take possession and control of Property / Project Facility / Project Assets<br />
forthwith;<br />
b. prohibit the Developer and any person claiming through or under the<br />
Developer from entering upon the Property / Project Facility /Project Assets<br />
or any part thereof;<br />
c. Notwithstanding anything contained in this <strong>Agreement</strong>, the Authority shall<br />
not, as a consequence of Termination or otherwise, have any obligation<br />
whatsoever including but not limited to obligations as to compensation for<br />
loss of employment on any ground, in relation to any person in the<br />
employment of or engaged by the Developer in connection with the Project,<br />
and the hand back of the Project/Project Facility/Project Assets by the<br />
Developer to the Authority shall be free from any such obligations.<br />
d. Appoint a third party to step in and succeed upon election by the Authority<br />
without the necessity of any further action by the Developer, to the interests<br />
of the Developer under such of the <strong>Agreement</strong>s as the Authority may in its<br />
discretion deem appropriate with effect from the date of communication of<br />
such election to the counter party to the relative <strong>Agreement</strong>s. Provided any<br />
40
sums claimed by such counter party as being due and owed to for work and<br />
services performed or accruing on account of any act, omission or event prior<br />
to such date of election shall and shall always constitute debt between the<br />
Developer and such counter party and the Authority shall in no way or<br />
manner be liable or responsible for such sums.<br />
14.11 Accrued Rights of Parties<br />
14.11.1 Notwithstanding anything to the contrary contained in this <strong>Agreement</strong>, any<br />
Termination pursuant to the provisions of this <strong>Agreement</strong> shall be without prejudice<br />
to accrued rights of either Party including its right to claim and recover money<br />
damages and other rights and remedies which it may have in law or contract. All<br />
rights and obligations of either Party under this <strong>Agreement</strong>, including without<br />
limitation Termination Payment, shall survive the Termination of this <strong>Agreement</strong> to<br />
the extent such survival is necessary for giving effect to such rights and obligations.<br />
14.12 Lenders’ Step-in Rights<br />
14.12.1 Notwithstanding anything to the contrary contained in this <strong>Agreement</strong>, the Parties<br />
hereby agree that :<br />
a) upon the Lenders recalling and demanding the debt outstanding under the<br />
Financing Documents (following an Event of Default under the Financing<br />
Documents), or<br />
b) upon a Termination Notice being issued by the Authority,<br />
14.12.2 The Lenders shall, without prejudice to any other remedy available to them, have the<br />
option to propose to the Authority the substitution of the Developer by another<br />
developer (Proposed Developer). Any such proposal shall contain in sufficient detail<br />
all the relevant information about the Proposed Developer and the terms and<br />
conditions of the substitution.<br />
14.12.3 Upon receipt of the Lenders‟ proposal pursuant to the preceding Clause 14.2.2, the<br />
Authority shall at its discretion have the right to accept substitution of the Developer<br />
on such terms and conditions as it may deem fit.<br />
Provided that any such substitution shall,<br />
a) be on terms and conditions of the <strong>Lease</strong> which are not less favourable to the<br />
Authority than those prevailing at the time of substitution, and<br />
b) be for the remaining period of <strong>Lease</strong> only.<br />
14.12.4 In the event of substitution as aforesaid, all the rights, privileges and the benefits of<br />
the <strong>Lease</strong> shall be deemed to have been transferred to and vested in the Proposed<br />
Developer and the Authority and the Proposed Developer shall take such steps and<br />
enter into such documents as may be necessary to give effect to the substitution.<br />
14.12.5 Upon Substitution of the Developer becoming effective as aforesaid, the Developer<br />
shall hand back to the Authority or upon instruction of the Authority to the Proposed<br />
Developer and for the purpose of giving effect to this provision, the Authority shall<br />
have all such rights as are provided in this <strong>Agreement</strong>.<br />
ARTICLE 15: HANDBACK OF PROPERTY / PROJECT FACILITY<br />
15.1 Ownership<br />
15.1.1 Without prejudice and subject to the Developer, the ownership of the Property,<br />
Project Facility and Project Assets including all improvements made therein by the<br />
Developer, shall at all times remain that of the Authority.<br />
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15.2 Handing over of the Property<br />
15.2.1 Upon the expiry of the <strong>Lease</strong> in the normal course, the Developer shall within one<br />
month from the end of the <strong>Lease</strong> Period, hand over vacant and peaceful possession<br />
of the Property including Project Facility and Project Assets at no cost to the<br />
Authority in good operable condition. However, the Authority shall pay Rs 1/ to<br />
Developer for the improvement/upgradation etc. made by the Developer in the<br />
Property/Project Assets/Project Facility at the timing of handing over. The<br />
Developer shall have no right, title, claim or interest whatsoever therein nor shall it<br />
have any claim in respect thereof against the Authority.<br />
15.2.2 The Developer shall provide support and further do all such acts including execution<br />
of necessary writings/documents as desired by the Authority for deleting the name of<br />
Developer from, or diluting or dissolving any apparent right or interest, in any<br />
license or permission obtained in relation to the Property/Project Facility/Project<br />
Assets at the end of the <strong>Lease</strong> Period.<br />
15.3 Joint Inspection and Removal of Deficiency<br />
15.3.1 The handing over process shall be initiated at least 12 months before the actual date<br />
of expiry of the <strong>Lease</strong> Period through a joint inspection by the Authority and the<br />
Developer. The Authority shall, within 15 days of such inspection prepare and<br />
furnish to the Developer a list of works/jobs/additions/alterations, if any, to be<br />
carried out to bring the Property, Project Facility and Project Assets at least to the<br />
level of service condition that existed on the date of issuance of Completion<br />
Certificate and these works need to be completed by the Developer at least two<br />
months prior to the date of expiry of the <strong>Lease</strong> Period. In case the Developer fails to<br />
carry out the above works, within the stipulated time period, the Authority shall be at<br />
liberty to get these works executed by any other party at the risk and cost of the<br />
Developer and any cost incurred by the Authority in this regard shall be reimbursed<br />
by the Developer to the Authority within 7 days of receipt of demand. For this<br />
purpose, the Authority shall without prejudice to any other right/remedy available to<br />
it under this <strong>Agreement</strong>, have the right to appropriate and invoke the Performance<br />
Security and/or to set off any amounts due, if any, and payable by the Authority to<br />
the Developer to the extent required/ available and to recover deficit amount, if any,<br />
from the Developer.<br />
15.4 Transfer of Intellectual Property Rights<br />
15.4.1 The Intellectual Property Rights related to the Property / Project Facility/Project<br />
Assets other than the Trade Marks shall automatically stand transferred to the<br />
Authority on termination of this <strong>Lease</strong> <strong>Agreement</strong>.<br />
ARTICLE 16: DISPUTE RESOLUTION<br />
16.1 Amicable Resolution<br />
16.1.1 Save where expressly stated otherwise in this <strong>Agreement</strong>, any dispute, difference or<br />
controversy of whatever nature howsoever arising under, out of or in relation to this<br />
<strong>Agreement</strong>, including non-completion of the Project, between the Parties and so<br />
notified in writing by either Party to the other Party (the "Dispute") in the first<br />
instance shall be attempted to be mutually resolved amicably. Failing resolution of<br />
the same amicably, the dispute resolution would be in accordance with the procedure<br />
set forth in Clause 16.1.2 below.<br />
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16.1.2 Either Party may require the Dispute to be referred to the Director General,<br />
Department of <strong>Tourism</strong>, GoUP and the Chairman of the Board of Directors of the<br />
Developer, for the time being for amicable settlement. Upon such reference, the two<br />
shall meet at the earliest mutual convenience and in any event within 15 days of such<br />
reference to discuss and attempt to amicably resolve the Dispute. If the Dispute is<br />
not amicably settled within 15 (fifteen) days of such meeting between the two, either<br />
Party may refer the Dispute to arbitration in accordance with the provisions below.<br />
16.2 Arbitration<br />
16.2.1 Arbitrators<br />
Any Dispute which is not resolved amicably as provided in Clause 16.1 shall be<br />
finally settled by binding arbitration under the Arbitration and Conciliation Act,<br />
1996. The arbitration shall be by a panel of three arbitrators, one to be appointed by<br />
each Party and the third to be appointed by the two arbitrators appointed by the<br />
Parties. A Party requiring arbitration shall appoint an arbitrator in writing, inform the<br />
other Party about such appointment and call upon the other Party to appoint its<br />
arbitrator. If the other Party fails to appoint its arbitrator within 7 days of the receipt<br />
of notice from the other Party, then the Party appointing the arbitrator shall take<br />
steps in accordance with Arbitration and Conciliation Act, 1996.<br />
16.2.2 Place of Arbitration<br />
The place of arbitration shall be Lucknow but by agreement of the Parties, the<br />
arbitration hearings, if required, can be held elsewhere from time to time.<br />
16.2.3 English Language<br />
The request for arbitration, the answer to the request, the terms of reference, any<br />
written submissions, any orders and rulings shall be in English and, if oral hearings<br />
take place, English shall be the language to be used in the hearings.<br />
16.2.4 Procedure<br />
The procedure to be followed within the arbitration, including appointment of<br />
arbitrator / arbitral tribunal, the rules of evidence which are to apply shall be in<br />
accordance with the Arbitration and Conciliation Act, 1996.<br />
16.2.5 Enforcement of Award<br />
Any decision or award resulting from arbitration shall be final and binding upon the<br />
Parties. The Parties hereto hereby waive, to the extent permitted by law, any rights to<br />
appeal or review of such award by any court or tribunal. The Parties hereto agree<br />
that the arbitral award may be enforced against the Parties to the arbitration<br />
proceeding or their assets wherever they may be found and that a judgement upon<br />
the arbitral award may be entered in any court having jurisdiction thereof.<br />
16.2.6 Fees and Expenses<br />
The fees and expenses of the arbitrators and all other expenses of the arbitration<br />
shall be initially borne and paid by respective Parties subject to determination by the<br />
arbitrators. The arbitrators may provide in the arbitral award for the reimbursement<br />
to the prevailing party of its costs and expenses in bringing or defending the<br />
arbitration claim, including legal fees and expenses incurred by Party.<br />
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16.2.7 Performance during Arbitration<br />
Pending the submission of and / or decision on a Dispute, difference or claim or until<br />
the arbitral award is published; the Parties shall continue to perform all their<br />
obligations under this <strong>Agreement</strong> without prejudice to a final adjustment in<br />
accordance with such award.<br />
ARTICLE 17: REPRESENTATIONS AND WARRANTIES, DISCLAIMER<br />
17.1 Representations and Warranties of the Developer<br />
17.1.1 The Developer represents and warrants to the Authority that:<br />
a. it is duly organised, validly existing and in Good standing under the laws of<br />
India;<br />
b. it has full power and authority to execute, deliver and perform its obligations<br />
under this <strong>Agreement</strong> and to carry out the transactions contemplated hereby;<br />
c. it has taken all necessary corporate and other action under Applicable Laws<br />
and its constitutional documents to authorize the execution, delivery and<br />
performance of this <strong>Agreement</strong>;<br />
d. it has the financial standing and capacity to undertake the Project;<br />
e. this <strong>Agreement</strong> constitutes a legal, valid and binding obligation enforceable<br />
against it in accordance with the terms hereof;<br />
f. it is subject to civil and commercial laws of India with respect to this<br />
<strong>Agreement</strong> and it hereby expressly and irrevocably waives any immunity in<br />
any jurisdiction in respect thereof;<br />
g. the execution, delivery and performance of this <strong>Agreement</strong> will not conflict<br />
with, result in the breach of, constitute a default under or accelerate<br />
performance required by any of the terms of the Developer's Memorandum<br />
and Articles of Association or any Applicable Laws or any covenant,<br />
agreement, understanding, decree or order to which it is a party or by which<br />
it or any of its properties or assets is bound or affected;<br />
h. there are no actions, suits, proceedings, or investigations pending or, to the<br />
Developer's knowledge, threatened against it at law or in equity before any<br />
court or before any other judicial, quasi-judicial or other authority, the<br />
outcome of which may result in the breach of or constitute a default of the<br />
Developer under this <strong>Agreement</strong> or which individually or in the aggregate<br />
may result in any Material Adverse Effect;<br />
i. it has no knowledge of any violation or default with respect to any order,<br />
writ, injunction or any decree of any court or any legally binding order of any<br />
Government Agency which may result in any Material Adverse Effect or<br />
impairment of the Developer's ability to perform its obligations and duties<br />
under this <strong>Agreement</strong>;<br />
j. it has complied with all Applicable Laws and has not been subject to any<br />
fines, penalties, injunctive relief or any other civil or criminal liabilities<br />
which in the aggregate have or may have Material Adverse Effect;<br />
k. subject to receipt by the Developer from the Authority of the Termination<br />
Payment and any other amount due under any of the provisions of this<br />
<strong>Agreement</strong>, in the manner and to the extent provided for under the applicable<br />
provisions of this <strong>Agreement</strong> all rights and interests of the Developer in and<br />
to the Project Facility shall pass to and vest in the Authority on the<br />
Termination Date free and clear of all Encumbrances without any further act<br />
or deed on the part of the Developer or the Authority;<br />
44
l. no representation or warranty by the Developer contained herein or in any<br />
other document furnished to the Authority or to any Government Agency in<br />
relation to Applicable Permits contains or will contain any untrue statement<br />
of material fact or omits or will omit to state a material fact necessary to<br />
make such representation or warranty not misleading; and<br />
m. no sums, in cash or kind, have been paid or will be paid, by or on behalf of<br />
the Developer, to any person by way of fees, commission or otherwise for<br />
securing the <strong>Lease</strong> or entering into this <strong>Agreement</strong> or for influencing or<br />
attempting to influence any officer or employee of the Authority in<br />
connection therewith.<br />
17.2 Representations and Warranties of the Authority<br />
17.2.1 The Authority represents and warrants to the Developer that:<br />
a. The Authority has full power and authority to grant the <strong>Lease</strong>;<br />
b. The Authority has taken all necessary action to authorise the execution,<br />
delivery and performance of this <strong>Agreement</strong>;<br />
c. this <strong>Agreement</strong> constitutes a legal, valid and binding obligation enforceable<br />
against it in accordance with the terms hereof.<br />
17.3 Lock-in<br />
Subject to and in accordance with the terms and conditions set forth in this<br />
<strong>Agreement</strong>, the Developer agrees to the following lock-in restrictions:<br />
17.3.1 Period commencing from the Appointed Date and ending on expiry of first Five (5)<br />
years from Appointed Date shall be the lock-in period (hereinafter referred to as<br />
“Lock-in-Period”) during which neither Party shall have the right to terminate this<br />
<strong>Lease</strong> <strong>Agreement</strong>. Notwithstanding the above, the Authority shall have the exclusive<br />
right to terminate this <strong>Lease</strong> <strong>Agreement</strong> within the Lock-in-Period in the event of a<br />
breach by the Developer of the provisions of the <strong>Lease</strong> <strong>Agreement</strong> or any Applicable<br />
Law .<br />
17.3.2 The Lead Member of the Selected Bidder shall subscribe to and hold at least fifty<br />
one percent (51%) equity shareholding in Developer (SPV) executing the Project<br />
until the expiration of five (5) years from the Appointed Date.<br />
17.4 Disclaimer<br />
17.4.1 Without prejudice to any express provision contained in this <strong>Agreement</strong>, the<br />
Developer acknowledges that prior to the execution of this <strong>Agreement</strong>, the<br />
Developer has after a complete and careful examination made an independent<br />
evaluation of the Specifications and Standards, Property and all the information<br />
provided by the Authority and has determined to the Developer's satisfaction the<br />
nature and extent of such difficulties, risks and hazards as are likely to arise or may<br />
be faced by the Developer in the course of performance of its obligations hereunder<br />
17.4.2 The Developer further acknowledges and hereby accepts the risk of inadequacy,<br />
mistake or error in or relating to any of the matter set forth in Clause 17.4.1 above<br />
and hereby confirms that the Authority shall not be liable for the same in any manner<br />
whatsoever to the Developer.<br />
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17.5 Obligation to Notify Change<br />
17.5.1 In the event that any of the representations or warranties made/given by a Party<br />
ceases to be true or stands changed, the Party who had made such representation or<br />
given such warranty shall promptly notify the other of the same.<br />
ARTICLE 18: FORCE MAJEURE<br />
18.1 Force Majeure Event<br />
As used in this <strong>Agreement</strong>, Force Majeure Event means the occurrence of any of the<br />
Non-Political Events, the Political Events or the Other Events in India, set out in<br />
Clauses 18.1.1, 18.1.2 and 18.1.3 respectively including the impact/consequence<br />
thereof which :<br />
a) is beyond the control of the Party claiming to be affected thereby (the “Affected<br />
Party”);<br />
b) prevents the Affected Party from performing or discharging its obligations under<br />
this <strong>Agreement</strong>; and<br />
c) the Affected Party has been unable to overcome or prevent despite exercise of<br />
due care and diligence.<br />
18.1.1 Non-Political Events<br />
Any of the following events which prevent the Affected Party from performing any<br />
of its obligations for a continuous period of not less than 7 (seven) Days from the<br />
date of its occurrence, shall constitute a Non-Political Event:<br />
a) act of God, epidemic, extremely adverse weather conditions, lightning,<br />
earthquake, cyclone, flood, volcanic eruption, chemical or radioactive<br />
contamination or ionizing radiation, fire or explosion (to the extent of<br />
contamination or radiation or fire or explosion originating from a source<br />
external to the Project Site and by reasons not attributable to the Developer or<br />
the Contractor or any of the employees or agents of the Developer or the<br />
Contractor);<br />
b) strikes or boycotts (other than those involving the Developer, Contractors or<br />
their respective employees/representatives, or attributable to any act or omission<br />
of any of them), and not being an Other Event set forth in Clause 18.1.3, labour<br />
disruptions or any other industrial disturbances not arising on account of the acts<br />
or omissions of the Developer or the Contractor;<br />
c) any failure or delay of a Contractor caused by any of the Non-Political Events,<br />
for which no offsetting compensation is payable to the Developer or on behalf of<br />
the Contractor;<br />
d) the discovery of geological conditions, toxic contamination or archaeological<br />
remains on the Project Site that could not reasonably have been expected to be<br />
discovered through a site inspection; or<br />
e) any event or circumstance of a nature analogous to any of the foregoing.<br />
18.1.2 Political Events<br />
Any of the following events shall constitute Political Event:<br />
a) Change in Law for which no relief is provided under the provisions of this<br />
<strong>Agreement</strong>, resulting in Material Adverse Effect;<br />
b) action of a Government Authority having Material Adverse Effect including but<br />
not limited to (i) acts of expropriation, compulsory acquisition or takeover by<br />
any Government Authority of the Project/Project Facilities and Services or any<br />
46
part thereof or of the Developer‟s or the Contractor‟s rights under any of the<br />
Project Contracts, and (ii) any unlawful, unauthorized or without jurisdiction<br />
refusal to issue or to renew or the revocation of any Applicable Permits, in each<br />
case, for reasons other than the Developer‟s or the Contractor‟s breach or failure<br />
in complying with the Project Requirements, Applicable Laws, Applicable<br />
Permits, any judgment or order of a Governmental Agency or of any contract by<br />
which the Developer or the Contractor as the case may be is bound;<br />
c) early determination of this <strong>Agreement</strong> by the Authority for reasons of national<br />
emergency, national security or the public interest;<br />
d) any failure or delay of a Contractor caused by any of the aforementioned<br />
Political Events, for which no offsetting compensation is payable to the<br />
Developer by or on behalf of the Contractor; or<br />
e) any event or circumstance of a nature analogous to any of the foregoing.<br />
18.1.3 Other Events<br />
Any of the following events which prevents the Affected Party from performing any<br />
of its obligations under this <strong>Agreement</strong> for a continuous period of not less than 7<br />
(seven) Days from the date of its occurrence, shall constitute the Other Event:<br />
a) an act of war (whether declared or undeclared), invasion, armed conflict or act<br />
of foreign enemy, blockade, embargo, riot, insurrection, terrorist or military<br />
action, civil commotion or politically motivated sabotage;<br />
b) industry wide or State wide strikes or industrial action;<br />
c) any civil commotion, boycott or political agitation which prevents collection of<br />
Fee by the Developer;<br />
d) any judgment or order of a court of competent jurisdiction or statutory authority<br />
in India made against the Developer or the Contractor in any proceedings which<br />
is non-collusive and duly prosecuted by the Developer; and any judgment or<br />
order of a court of competent jurisdiction or statutory authority in India made<br />
against the Developer or the Contractor in any proceedings which is noncollusive<br />
and duly prosecuted by the Developer other than relating to<br />
proceedings (i) pursuant to failure of the Developer to comply with any<br />
Applicable Law or Applicable Permit, or (ii) on account of breach of any<br />
Applicable Law or Applicable Permit or of any contract, or (iii) enforcement of<br />
this <strong>Agreement</strong> or (iv) with respect to exercise of any of its rights under this<br />
<strong>Agreement</strong> by the Authority; or<br />
e) any event or circumstance of a nature analogous to any of the foregoing.<br />
18.2 Notice of Force Majeure Event<br />
18.2.1. The Affected Party shall give written notice to the other Party in writing of the<br />
occurrence of any of the Force Majeure Event (the “Notice”) as soon as the same<br />
arises or as soon as reasonably practicable and in any event within 7 (seven) Days<br />
after the Affected Party knew, or ought reasonably to have known, of its occurrence<br />
and the adverse effect it has or is likely to have on the performance of its obligations<br />
under this <strong>Agreement</strong>.<br />
18.2.2. The Notice shall inter-alia include full particulars of:<br />
i. the nature, time of occurrence and extent of the Force Majeure Event with<br />
evidence in respect thereof;<br />
ii. the duration or estimated duration and the effect or probable effect which such<br />
Force Majeure Event has or will have on the Affected Party‟s ability to perform<br />
its obligations or any of them under this <strong>Agreement</strong>;<br />
47
iii. the measures which the Affected Party has taken or proposes to take, to alleviate<br />
the impact of the Force Majeure Event or to mitigate the damage; and<br />
iv. any other relevant information.<br />
18.2.3. So long as the Affected Party continues to claim to be affected by a Force Majeure<br />
Event, it shall provide the other Party with periodic (fortnightly/monthly) written<br />
reports containing the information called for by Clause 18.2.2 and such other<br />
information as the other Party may reasonably request.<br />
18.3 Performance of Obligations<br />
18.3.1. If the Developer is rendered wholly or partially unable to perform any of its<br />
obligations under this <strong>Agreement</strong> because of a Force Majeure Event, it shall be<br />
excused from performance of such obligations to the extent it is unable to perform<br />
the same on account of such Force Majeure Event provided that:<br />
a. due notice of the Force Majeure Event has been given to the Authority as<br />
required by the preceding Article ;<br />
b. the excuse from performance shall be of no greater scope and of no longer<br />
duration than is necessitated by the Force Majeure Event;<br />
c. the Developer has taken all reasonable efforts to avoid, prevent, mitigate and<br />
limit damage, if any, caused or is likely to be caused to the Property/Project<br />
Asset/Project Facilities as a result of the Force Majeure Event and to restore<br />
the Property/Project Asset/Project Facilities, in accordance with the Good<br />
Industry Practice and its relative obligations under this <strong>Agreement</strong>;<br />
d. when the Developer is able to resume performance of its obligations under<br />
this <strong>Agreement</strong>, it shall give to the other Party written notice to that effect<br />
and shall promptly resume performance of its obligations hereunder, the non<br />
issue of such notice being no excuse for any delay for resuming such<br />
performance;<br />
e. the Developer shall continue to perform such of its obligations which are not<br />
affected by the Force Majeure Event and which are capable of being<br />
performed in accordance with this <strong>Agreement</strong>;<br />
f. any insurance proceeds received shall be entirely applied to repair, replace or<br />
restore the assets damaged on account of the Force Majeure Event, in<br />
accordance with Good Industry Practice, unless otherwise agreed to by the<br />
Authority.<br />
ARTICLE 19: MISCELLANEOUS<br />
19.1 Assignment and Charges<br />
19.1.1 The Developer shall not assign in favour of any person this <strong>Agreement</strong> or the rights,<br />
benefits and obligations.<br />
19.1.2 The Developer shall not create nor permit to subsist any Encumbrance over<br />
Property/Project Facility/Project Assets or otherwise transfer or dispose of all or any<br />
of its rights and benefits under this <strong>Agreement</strong>.<br />
19.1.3 Restraint set forth in Clauses 19.1.1 and 19.1.2 above shall not apply to:<br />
a. Liens / encumbrances arising by operation of law in the ordinary course of<br />
business of the Project;<br />
b. Mortgages / pledges / hypothecation of goods / assets other than Property and<br />
Project Facility, as security for indebtedness, in favour of the Lenders and<br />
working capital providers for the Project;<br />
48
c. assignment of Developer‟s rights, title and interest under this <strong>Agreement</strong> to<br />
or in favour of the Lenders pursuant to and in accordance with the<br />
Substitution <strong>Agreement</strong> as security for their financial assistance.<br />
19.1.4 Upon occurrence of the Developer Event of Default, the Lenders shall have the right<br />
of substitution as provided in the Substitution <strong>Agreement</strong>.<br />
19.2 Treatment to Existing Employees<br />
19.2.1 The General employees will have the option of working with the Developer on<br />
mutually agreed terms. In that case the employee will be treated as an employee of<br />
the Authority for the benefit of retiral dues but the current salary and related<br />
emoluments will be paid by the Developer. The statutory deduction will be made<br />
and deposited under relevant heads by the Developer. However, the Developer has<br />
no obligation to accommodate the existing employees.<br />
19.2.2 Employees can opt for Voluntary Retirement Scheme (VRS).<br />
19.2.3 The Employees who are not opting for any of the above options will continue with<br />
the Authority.<br />
19.3 Liability And Indemnity<br />
19.3.1 General Indemnity<br />
a. The Developer shall indemnify, defend and hold the Authority harmless<br />
against any and all proceedings, actions and third party claims arising out of<br />
a breach by Developer of any of its obligations under this <strong>Agreement</strong> except<br />
to the extent that any such claim has arisen due to the Authority Event of<br />
Default.<br />
b. The Authority will, indemnify, defend and hold harmless the Developer<br />
against any and all proceedings, actions, third party claims for loss, damage<br />
and expense of whatever kind and nature arising out of defect in title and/or<br />
the rights of the Authority and/or arising of a breach by the Authority, its<br />
officers, servants and agents of any obligations of the Authority under this<br />
<strong>Agreement</strong> except to the extent that any such claim has arisen due to<br />
Developer Event of Default.<br />
19.3.2 Without limiting the generality of the Clause 19.3, the Developer shall fully<br />
indemnify, hold harmless and defend the Authority including its officers servants,<br />
agents and subsidiaries from and against any and all loss and damages arising out of<br />
or with respect to (a) failure of the Developer to comply with Applicable Laws and<br />
Applicable Permits, (b) payments of taxes relating to the Developer's Contractors,<br />
suppliers and representatives‟ income or other taxes required to be paid by the<br />
Developer without reimbursement hereunder, or (c) non-payment of amounts due as<br />
a result of materials or services furnished to the Developer or any of its Contractors<br />
which are payable by the Developer or any of its Contractors.<br />
19.3.3 Without limiting the generality of the provisions of this Clause 19.3, the Developer<br />
shall fully indemnify, hold harmless and defend the Authority from and against any<br />
and all damages which the Authority may hereafter suffer, or pay by reason of any<br />
demands, claims, suits or proceedings arising out of claims of infringement of any<br />
domestic or foreign patent rights, copyrights or other intellectual property,<br />
proprietary or confidentiality rights with respect to any materials, information,<br />
design or process used by the Developer or by the Developer's Contractors in<br />
performing the Developer‟s obligations or in any way incorporated in or related to<br />
the Project. If in any such suit, claim or proceedings, a temporary restraint order or<br />
49
preliminary injunction is granted, the Developer shall make every reasonable effort,<br />
by giving a satisfactory bond or otherwise, to secure the suspension of the injunction<br />
or restraint order. If, in any such suit claim or proceedings, the Project, or any part,<br />
thereof or comprised therein is held to constitute an infringement and its use is<br />
permanently injuncted, the Developer shall promptly make every reasonable effort to<br />
secure for the Authority a license, at no cost to the Authority, authorising continued<br />
use of the infringe work. If the Developer is unable to secure such license within a<br />
reasonable time, the Developer shall, at its own expense and without impairing the<br />
Specifications and Standards either replace the affected work, or part, or process<br />
thereof with non-infringing work or parts or process, or modify the same so that it<br />
becomes non-infringing.<br />
19.3.4 In the event that either Party receives a claim from a third party in respect of which it<br />
is entitled to the benefit of an indemnity under the Clause 19.3 (the 'Indemnified<br />
Party') it shall notify the other Party ("Indemnifying Party") within 14 (fourteen)<br />
days of receipt of the claim and shall not settle or pay the claim without the prior<br />
approval of the Indemnifying Party - such approval shall not be unreasonably<br />
withheld or delayed. In the event that the Indemnifying Party wishes to contest or<br />
dispute the claim it may conduct proceedings in the name of the Indemnified Party<br />
subject to the Indemnified Party being secured against any costs involved to its<br />
reasonable satisfaction.<br />
19.3.5 Defence of Claims<br />
a. The Indemnified Party shall have the right, but not the obligation, to contest,<br />
defend and litigate any claim, action, suit or proceeding by any third party<br />
alleged or asserted against such party in respect of, resulting from, related to<br />
or arising out of any matter for which it is entitled to be indemnified<br />
hereunder and their reasonable costs and expenses shall be indemnified by<br />
the Indemnifying Party. If the Indemnifying Party acknowledges in writing<br />
its obligation to indemnify the person indemnified in respect of loss to the<br />
full extent provided by the Clause 19.3, the Indemnifying Party shall be<br />
entitled, at its option, to assume and control the defence of such claim,<br />
action, suit or proceeding liabilities, payments and obligations at its expense<br />
and through counsel of its choice provided it gives prompt notice of its<br />
intention to do so to the Indemnified Party and reimburses the Indemnified<br />
Party for the reasonable cost and expenses incurred by the Indemnified Party<br />
prior to the assumption by the Indemnifying Party of such defence. The<br />
Indemnifying Party shall not be entitled to settle or compromise any claim,<br />
action, suit or proceeding without the prior written consent of the<br />
Indemnified Party unless the Indemnifying Party provides such security to<br />
the Indemnified Party as shall be reasonably required by the Indemnified<br />
Party to secure, the loss to be indemnified hereunder to the extent so<br />
compromised or settled.<br />
b. If the Indemnifying Party has exercised its rights under Clause19.3.4 above,<br />
the Indemnified Party shall not be entitled to settle or compromise any claim,<br />
action, suit or proceeding without the prior written consent of the<br />
indemnifying Party (which consent shall not be unreasonably withheld or<br />
delayed).<br />
c. If the Indemnifying Party exercises its rights under Clause 19.3.5 above, then<br />
the Indemnified Party shall nevertheless have the right to employ its own<br />
counsel and such counsel may participate in such action, but the fees and<br />
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expenses of such counsel shall be at the expense of such Indemnified Party,<br />
when and as incurred, unless:<br />
(i) the employment of counsel by such party has been authorised in<br />
writing by the Indemnifying Party; or<br />
(ii) the Indemnified Party shall have reasonably concluded that there may<br />
be a conflict of interest between the Indemnifying Party and the<br />
Indemnified Party in the conduct of the defence of such action; or<br />
(iii) the indemnifying Party shall not in fact have employed independent<br />
counsel reasonably satisfactory to the Indemnified Party to assume<br />
the defence of such action and shall have been so notified by the<br />
Indemnified Party; or<br />
(iv) the Indemnified Party shall have reasonably concluded and<br />
specifically notified the Indemnifying Party either<br />
• that there may be specific defences available to it which are<br />
different from or additional to those available to the<br />
Indemnifying Party; or<br />
• that such claim, action, suit or proceeding involves or could<br />
have a material adverse effect upon it beyond the scope of this<br />
<strong>Agreement</strong>,<br />
provided that if sub-clauses (ii), (iii) or (iv) of Clause 19.3.5 (c) shall be<br />
applicable, counsel for the Indemnified Party shall have the right to direct the<br />
defence of such claim, action, suit or proceeding on behalf of the Indemnified<br />
Party and the reasonable fees and disbursements of such counsel shall<br />
constitute legal or other expenses hereunder.<br />
19.4 Governing Law and Jurisdiction<br />
19.4.1 This <strong>Agreement</strong> shall be construed and interpreted in accordance with and governed<br />
by the laws of Union of India and the Courts at Lucknow, <strong>Uttar</strong> <strong>Pradesh</strong>, India shall<br />
have exclusive jurisdiction over all matters arising out of or relating to this<br />
<strong>Agreement</strong>.<br />
19.5 Waiver<br />
19.5.1 Waiver by either Party of any default by the other Party in the observance and<br />
performance of any provision of or obligations under this <strong>Agreement</strong>:<br />
a. shall not operate or be construed as a waiver of any other or subsequent<br />
default hereof or of other provisions or obligations under this <strong>Agreement</strong>:<br />
b. shall not be effective unless it is in writing and executed by a duly authorised<br />
representative of such Party; and<br />
c. shall not affect the validity or enforceability of this <strong>Agreement</strong> in any<br />
manner.<br />
19.5.2 Neither the failure by either Party to insist on any occasion upon the performance of<br />
the terms, conditions and provisions of this <strong>Agreement</strong> or any obligation there under<br />
nor time or other indulgence granted by a Party to the other Party shall be treated or<br />
deemed as waiver of such breach or acceptance of any variation or the<br />
relinquishment of any such right hereunder.<br />
19.6 Survival<br />
19.6.1 Termination of this <strong>Agreement</strong> (a) shall not relieve the Developer or the Authority of<br />
any obligations hereunder which expressly or by implication survives Termination<br />
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hereof, and (b) except as otherwise provided in any provision of this <strong>Agreement</strong><br />
expressly limiting the liability of either Party, shall not relieve either Party of any<br />
obligations or liabilities for loss or damage to the other Party arising out of or caused<br />
by acts or omissions of such Party prior to the effectiveness of such Termination or<br />
arising out of such Termination.<br />
19.7 Amendments<br />
19.7.1 This <strong>Agreement</strong> and the Schedules together constitute a complete and exclusive<br />
statement of the terms of the <strong>Agreement</strong> between the Parties on the subject hereof<br />
and no amendment or modification hereto shall be valid and effective unless agreed<br />
to by all the Parties hereto and evidenced in writing.<br />
19.8 Notices<br />
19.8.1 Unless otherwise stated, notices to be given under this <strong>Agreement</strong> including but not<br />
limited to a notice of waiver of any term, breach of any term of this <strong>Agreement</strong> and<br />
termination of this <strong>Agreement</strong>, shall be in writing and shall be given by hand<br />
delivery, recognised international courier, mail, telex or facsimile transmission and<br />
delivered or transmitted to the Parties at their respective addresses set forth below:<br />
In the case of the Authority:<br />
The Director General, Department of <strong>Tourism</strong><br />
Government of <strong>Uttar</strong> <strong>Pradesh</strong><br />
Paryatan Bhawan<br />
C-13, Vipin Khand, Gomti Nagar<br />
Lucknow: 226 010<br />
In the case of Developer:<br />
________________<br />
Fax No.________________<br />
Or such address, telex number, or facsimile number as may be duly notified by the<br />
respective Parties from time to time, and shall be deemed to have been made or<br />
delivered (i) in the case of any communication made by letter, when delivered by<br />
hand, by recognised international courier or by mail (registered, return receipt<br />
requested) at that address and (ii) in the case of any communication made by telex or<br />
facsimile, when transmitted properly addressed to such telex number or facsimile<br />
number.<br />
19.9 Severability<br />
19.9.1 If for any reason whatever any provision of this <strong>Agreement</strong> is or becomes invalid,<br />
illegal or unenforceable or is declared by any court of competent jurisdiction or any<br />
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or<br />
enforceability of the remaining provisions shall not be affected in any manner, and<br />
the Parties will negotiate in good faith with a view to agreeing upon one or more<br />
provisions which may be substituted for such invalid, unenforceable or illegal<br />
provisions, as nearly as is practicable. Provided failure to agree upon any such<br />
provisions shall not be subject to dispute resolution under this <strong>Agreement</strong> or<br />
otherwise.<br />
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19.10 No Partnership<br />
Nothing contained in this <strong>Agreement</strong> shall be construed or interpreted as constituting<br />
a partnership between the Parties. Neither Party shall have any authority to bind the<br />
other in any manner whatsoever.<br />
19.11 Language<br />
All notices required to be given under this <strong>Agreement</strong> and all communications,<br />
documentation and proceedings which are in any way relevant to this <strong>Agreement</strong><br />
shall be in writing and in English language.<br />
19.12 Exclusion of implied warranties etc.<br />
This <strong>Agreement</strong> expressly excludes any warranty, condition or other undertaking<br />
implied at law or by custom or otherwise arising out of any other agreement between<br />
the Parties or any representation by any Party not contained in a binding legal<br />
agreement executed by the Parties.<br />
19.13 Counterparts<br />
This <strong>Agreement</strong> may be executed in two counterparts, each of which when executed<br />
and delivered shall constitute an original of this <strong>Agreement</strong>.<br />
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED AND DELIVERED<br />
THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.<br />
Signed on behalf of The Authority<br />
SIGNED, SEALED AND DELIVERED<br />
Developer by the hand of its<br />
Authorized representative<br />
_________________________<br />
(Director General)<br />
Department of <strong>Tourism</strong>, Government of <strong>Uttar</strong><br />
<strong>Pradesh</strong><br />
____________________<br />
pursuant to Resolution dated........ of<br />
its Board of Directors.<br />
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SCHEDULE 1<br />
RFP DOCUMENT ISSUED BY THE AUTHORITY<br />
54
SCHEDULE 2<br />
RFP DOCUMENT SUBMITTED BY THE DEVELOPER/SELECTED BIDDER<br />
55
SCHEDULE 3<br />
LETTER OF AWARD<br />
56
SCHEDULE 4<br />
PROPERTY DETAILS<br />
SITE PLAN, PROJECT ASSET AND PROJECT FACILITY<br />
57
SCHEDULE 5<br />
PERFORMANCE SECURITY<br />
58
SCHEDULE 6<br />
EXISTING LEASES AND LICENSES<br />
59
SCHEDULE 7<br />
ESCROW AGREEMENT<br />
60