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1
GOVERNMENT OF INDIA
NITI Aayog
(National Institute for Transforming India)
(PPP Vertical)
Sansad Marg, New Delhi 110001 - Dated: 10
th
April 2019
***************************************************
STAKEHOLDERS CONSULTATION
Subject: Inviting comments/ suggestions from the General Public, State Agencies & all the other
concerned Stakeholders on the Revised Draft Model Concession Agreement (hereinafter referred as
“MCA” or “Document”) on Public-Private Partnership (“PPP”) framework for implementing Ropeway
Projects in India – Reg.
Reference is invited to the draft MCA on Ropeways that was uploaded on NITI Aayog’s
website on 26th March 2018, NITI Aayog PPP Vertical has since then conducted several stakeholder
interactions to further improve the proposed draft MCA. The suggestions from stakeholders have been
well appreciated and many of those have been incorporated in the revised draft document.
2. The revised draft document is based on basic principles for attracting private investment
ensuring bankability of the project and also balancing risk for both the Government as well as the private
entrepreneurs. Emphasis has been laid on safety and affordability of the services for passengers.
Formulation of manual on Standards & Specifications for Ropeways is to be carried out as a separate
exercise in future in consultation with technical experts and stakeholders.
3. The aforementioned, document has now been uploaded on NITI Aayog’s website
(http://NITI.gov.in). You are requested to kindly share your comments and feedback, if any, in the
enclosed format, on the following email ppp-niti@nic.in and with a copy to aman.hans@nic.in , latest
by 30th April 2019. In this regard, a stakeholder’s meet shall also be organised at Room no. 122 at NITI
Aayog, New Delhi on 13th of May 2019 at 11:00am. All those who shall be interested are requested
send a line of confirmation latest by 9th May 2019.
2
3
Comments on Daft Concession Agreement
Draft Model Concession Agreement (MCA) for
Public-Private Partnership (PPP) in Ropeways
Name of the comments/ suggestion provider :
Designation :
Organization :
Sl.
No.
Item
Clause
reference
Existing clause/
provision
Comments/ suggestions
1.
2.
3.
4.
5.
Please add or delete rows as required
4
5
Public Private Partnership in
Operation and Maintenance
of
Electric Buses in cities
(OPEX Model)
MODEL CONCESSION AGREEMENT
NITI Aayog
Government of India
Planning Commission
Authority of India
6
7
Public Private Partnership in
Passenger Ropeways
MODEL CONCESSION AGREEMENT
(*includes Aerial, Funicular, Cable Propelled Automated Passenger Movers (APM), Aerial Ropeway
Transit (ART) Systems, Hybrid Systems including all cable propelled systems)
Government of xxx
State capital
8
9
TABLE OF CONTENTS
PART I: PRELIMINARY .................................................................................................................. 19
ARTICLE 1: DEFINITIONS AND INTERPRETATION .............................................................. 21
1.1 Definitions ............................................................................................................................... 21
1.2 Interpretation ............................................................................................................................ 21
1.3 Measurements and arithmetic conventions .............................................................................. 23
1.4 Priority of agreements, clauses and schedules ......................................................................... 23
PART II: THE CONCESSION .......................................................................................................... 25
ARTICLE 2: SCOPE OF THE PROJECT ...................................................................................... 27
2.1 Scope of the Project ................................................................................................................... 27
ARTICLE 3: GRANT OF CONCESSION ....................................................................................... 29
3.1 The Concession ......................................................................................................................... 29
ARTICLE 4: CONDITIONS PRECEDENT .................................................................................... 31
4.1 Conditions Precedent ............................................................................................................... 31
4.2 Damages for delay by the Authority .......................................................................................... 32
4.3 Damages for delay by the Concessionaire ................................................................................. 32
ARTICLE 5: OBLIGATIONS OF THE CONCESSIONAIRE ..................................................... 33
5.1 Obligations of the Concessionaire ............................................................................................ 33
5.2 Obligations relating to Project Agreements ............................................................................... 34
5.3 Obligations relating to Change in Ownership ........................................................................... 35
5.4 Employment of foreign nationals ............................................................................................. 36
5.5 Employment of trained personnel ............................................................................................ 36
5.6 Obligations relating to medical aid .......................................................................................... 36
5.7 Obligations relating to basic amenities .................................................................................... 36
5.8 Obligations relating to noise control ........................................................................................ 37
5.9 Sole purpose of the Concessionaire ......................................................................................... 37
5.10 Branding of XXX Ropeway ..................................................................................................... 37
5.11 Facilities for physically challenged and elderly persons ......................................................... 37
ARTICLE 6: OBLIGATIONS OF THE AUTHORITY ................................................................. 39
6.1 Obligations of the Authority ..................................................................................................... 39
ARTICLE 7: REPRESENTATIONS AND WARRANTIES .......................................................... 41
7.1 Representations and warranties of the Concessionaire ............................................................. 41
7.2 Representations and warranties of the Authority ..................................................................... 42
7.3 Disclosure ................................................................................................................................. 43
ARTICLE 8: DISCLAIMER ............................................................................................................. 45
8.1 Disclaimer .................................................................................................................................. 45
PART III: DEVELOPMENT AND OPERATIONS ......................................................................... 47
ARTICLE 9: PERFORMANCE SECURITY .................................................................................. 49
9.1 Performance Security ................................................................................................................ 49
9.2 Appropriation of Performance Security ................................................................................... 49
9.3 Release of Performance Security ............................................................................................... 49
ARTICLE 10: RIGHT OF WAY ...................................................................................................... 51
10
10.1 The Site .................................................................................................................................... 51
10.2 Licence, Access and Right of Way .......................................................................................... 51
10.3 Procurement of the Site ............................................................................................................. 52
10.4 Site to be free from Encumbrances .......................................................................................... 53
10.5 Protection of Site from encroachments .................................................................................... 53
10.6 Special/temporary right of way ................................................................................................ 53
10.7 Access to the Authority ............................................................................................................ 53
ARTICLE 11: UTILITIES, ASSOCIATED ROADS AND TREES .............................................. 55
11.1 Existing utilities and roads ....................................................................................................... 55
11.2 Shifting of obstructing utilities ................................................................................................ 55
11.3 New utilities and roads............................................................................................................. 55
11.4 Felling of trees .......................................................................................................................... 55
ARTICLE 12: CONSTRUCTION OF THE XXX ROPEWAY ..................................................... 57
12.1 Obligations prior to commencement of construction ............................................................... 57
12.2 Drawings .................................................................................................................................. 57
12.3 Construction of the Ropeway ................................................................................................... 58
ARTICLE 13: MONITORING OF CONSTRUCTION ................................................................. 59
13.1 Monthly progress reports ......................................................................................................... 59
13.2 Inspection ................................................................................................................................. 59
13.3 Tests ......................................................................................................................................... 59
13.4 Delays during construction ...................................................................................................... 59
13.5 Suspension of unsafe Construction Works .............................................................................. 60
13.6 Video recording ....................................................................................................................... 60
ARTICLE 14: COMPLETION CERTIFICATE ............................................................................. 61
14.1 Tests ......................................................................................................................................... 61
14.2 Completion Certificate ............................................................................................................. 61
14.3 Provisional Certificate ............................................................................................................. 61
14.4 Completion of Punch List items .............................................................................................. 61
14.5 Rescheduling of Tests .............................................................................................................. 62
ARTICLE 15: ENTRY INTO COMMERCIAL SERVICE ........................................................... 63
15.1 Commercial Operation Date (COD) ........................................................................................ 63
15.2 Damages for delay ................................................................................................................... 63
ARTICLE 16: CHANGE OF SCOPE ............................................................................................... 65
16.1 Change of Scope ...................................................................................................................... 65
16.2 Procedure for Change of Scope ............................................................................................... 65
16.3 Payment for Change of Scope .................................................................................................... 66
16.4 Restrictions on certain works ................................................................................................... 66
16.5 Power of the Authority to undertake works ............................................................................. 67
16.6 Reduction in Scope of the Project ............................................................................................. 67
ARTICLE 17: OPERATION AND MAINTENANCE .................................................................... 69
17.1 O&M obligations of the Concessionaire ................................................................................... 69
17.2 Maintenance Requirements ...................................................................................................... 70
17.3 Maintenance Manual ................................................................................................................ 70
11
17.4 Maintenance Programme ......................................................................................................... 70
17.5 Safety, breakdowns and accidents ............................................................................................ 71
17.6 De-commissioning due to Emergency ..................................................................................... 71
17.7 Damages for breach of maintenance obligations ..................................................................... 71
17.8 Authority’s right to take remedial measures ............................................................................ 72
17.9 Overriding powers of the Authority ......................................................................................... 72
17.10 Restoration of loss or damage to XXX Ropeway .................................................................... 73
17.11 Modifications to the XXX Ropeway ....................................................................................... 73
17.12 Excuse from performance of obligations ................................................................................. 73
17.13 Barriers and diversions ............................................................................................................ 73
17.14 Advertising on the Site............................................................................................................. 74
ARTICLE 18: SAFETY REQUIREMENTS ................................................................................... 75
18.1 Safety Requirements ................................................................................................................ 75
18.2 Expenditure on Safety Requirements ....................................................................................... 75
[18.3 Safety Manual .......................................................................................................................... 75
ARTICLE 19: MONITORING OF OPERATION AND MAINTENANCE ................................. 77
19.1 Monthly status reports.............................................................................................................. 77
19.2 Inspection ................................................................................................................................. 77
19.3 Tests ......................................................................................................................................... 77
19.4 Remedial measures .................................................................................................................. 77
19.5 Monthly Fee Statement ............................................................................................................. 78
19.6 Reports of unusual occurrence ................................................................................................. 78
ARTICLE 20: KEY PERFORMANCE INDICATORS ................................................................. 79
20.1 Key Performance Indicators .................................................................................................... 79
20.2 Operation of Ropeway Cabins ................................................................................................. 79
20.3 Provisions of Cabins ................................................................................................................ 79
20.4 Operation of Terminal Stations ................................................................................................ 79
20.5 Monthly status report ............................................................................................................... 80
20.6 Penalty for shortfall in performance ........................................................................................ 80
20.7 Passenger Charter..................................................................................................................... 80
ARTICLE 21: EMERGENCY MEDICAL AID .............................................................................. 81
21.1 Medical Aid Posts .................................................................................................................... 81
ARTICLE 22: INDEPENT ENGINEER .......................................................................................... 83
22.1 Appointment of Independent Engineer .................................................................................... 83
22.2 Duties and functions ................................................................................................................ 83
22.3 Remuneration ........................................................................................................................... 83
22.4 Termination of appointment .................................................................................................... 83
22.5 Authorised signatories ............................................................................................................. 84
22.6 Dispute resolution .................................................................................................................... 84
PART IV: FINANCIAL COVENANTS ............................................................................................ 85
ARTICLE 23 FINANCIAL CLOSE ................................................................................................ 87
23.1 Financial Close ........................................................................................................................ 87
23.2 Termination due to failure to achieve Financial Close ............................................................ 87
12
ARTICLE 24 : GRANT ...................................................................................................................... 89
24.1 Grant ........................................................................................................................................ 89
24.2 Equity Support ......................................................................................................................... 89
24.3 Premium
$
.................................................................................................................................. 89
ARTICLE 25 : CONCESSION FEE ................................................................................................. 91
25 .1 Concession Fee ........................................................................................................................ 91
25.2 Additional Concession Fee
$
..................................................................................................... 91
25.3 Payment of Concession Fee ..................................................................................................... 91
ARTICLE 26: USER FEE .................................................................................................................. 93
26.1 Collection and appropriation of Fee......................................................................................... 93
26.2 Revision of Fee ........................................................................................................................ 93
26.3 Display of Fee Rates ................................................................................................................ 93
ARTICLE 27: EFFECT OF VARIATIONS IN TRAFFIC GROWTH ........................................ 95
27.1 Effect of variations in traffic growth........................................................................................ 95
27.2 Modification in the Concession Period .................................................................................... 95
ARTICLE 28: ESCROW ACCOUNT .............................................................................................. 99
28.1 Escrow Account ....................................................................................................................... 99
28.2 Deposits into Escrow Account ................................................................................................. 99
28.3 Withdrawals during Concession Period ................................................................................... 99
28.4 Withdrawals upon Termination .............................................................................................. 100
ARTICLE 29: INSURANCE ........................................................................................................... 101
29.1 Insurance during Concession Period ...................................................................................... 101
29.2 Notice to the Authority .......................................................................................................... 101
29.3 Evidence of Insurance Cover ................................................................................................. 102
29.4 Remedy for failure to insure .................................................................................................. 102
29.5 Waiver of subrogation............................................................................................................ 102
29.6 Concessionaire’s waiver ........................................................................................................ 102
29.7 Application of insurance proceeds .......................................................................................... 102
ARTICLE 30: ACCOUNTS AND AUDIT ..................................................................................... 105
30.1 Audited accounts .................................................................................................................... 105
30.2 Appointment of auditors ........................................................................................................ 105
30.3 Certification of claims by Statutory Auditors ........................................................................ 106
30.4 Set-off .................................................................................................................................... 106
30.5 Dispute resolution .................................................................................................................. 106
PART V: FORCE MAJEURE AND TERMINATION .................................................................. 107
ARTICLE 31: FORCE MAJEURE ................................................................................................ 109
31.1 Force Majeure ........................................................................................................................ 109
31.2 Non-Political Event ................................................................................................................ 109
31.3 Indirect Political Event .......................................................................................................... 109
31.4 Political Event ........................................................................................................................ 110
31.5 Duty to report Force Majeure Event ........................................................................................ 110
31.6 Effect of Force Majeure Event on the Concession ................................................................ 111
31.7 Allocation of costs arising out of Force Majeure ................................................................... 111
13
31.8 Termination Notice for Force Majeure Event ......................................................................... 112
31.9 Termination Payment for Force Majeure Event .................................................................... 112
31.10 Dispute resolution .................................................................................................................. 113
31.11 Excuse from performance of obligations ............................................................................... 113
ARTICLE 32: COMPENSATION FOR BREACH OF AGREEMENT ..................................... 115
32.1 Compensation for default by the Concessionaire .................................................................. 115
32.2 Compensation for default by the Authority ........................................................................... 115
32.3 Extension of Concession Period ............................................................................................ 115
ARTICLE 33: SUSPENSION OF CONCESSIONAIRE’S RIGHTS .......................................... 117
33.1 Suspension upon Concessionaire Default .............................................................................. 117
33.2 Authority to act on behalf of Concessionaire......................................................................... 117
33.3 Revocation of Suspension ...................................................................................................... 117
33.4 Substitution of Concessionaire .............................................................................................. 118
33.5 Termination ............................................................................................................................ 118
ARTICLE 34: TERMINATION ..................................................................................................... 119
34.1 Termination for Concessionaire Default ................................................................................. 119
34.2 Termination for Authority Default .......................................................................................... 121
34.3 Termination Payment .............................................................................................................. 122
34.4 Other rights and obligations of the Authority ......................................................................... 123
34.5 Certain limitations on Termination Payment ......................................................................... 124
34.6 Survival of rights ................................................................................................................... 124
ARTICLE 35: DIVESTMENT OF RIGHTS AND INTEREST .................................................. 127
35.1 Divestment Requirements ...................................................................................................... 127
35.2 Inspection and cure ................................................................................................................ 128
35.3 Cooperation and assistance on transfer of Project ................................................................. 128
35.4 Vesting Certificate ................................................................................................................. 128
35.5 Additional Facilities ............................................................................................................... 128
35.6 Divestment costs etc. ............................................................................................................. 129
ARTICLE 36: DEFECTS LIABILITY AFTER TERMINATION .............................................. 131
36.1 Liability for defects after Termination ................................................................................... 131
36.2 Retention in Escrow Account ................................................................................................ 131
PART VI: OTHER PROVISIONS .................................................................................................. 133
ARTICLE 37: ASSIGNMENT AND CHARGES .......................................................................... 135
37.1 Restrictions on assignment and charges................................................................................. 135
37.2 Permitted assignment and charges ......................................................................................... 135
37.3 Substitution Agreement ......................................................................................................... 135
37.4 Assignment by the Authority ................................................................................................. 136
ARTICLE 38: CHANGE IN LAW .................................................................................................. 137
38.1 Increase in costs ..................................................................................................................... 137
38.2 Reduction in costs .................................................................................................................. 137
38.3 Protection of NPV .................................................................................................................. 138
38.4 Restriction on cash compensation .......................................................................................... 138
38.5 No claim in the event of recovery from Users ....................................................................... 138
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ARTICLE 39: LIABILITY AND INDEMNITY ............................................................................ 139
39.1 General indemnity .................................................................................................................. 139
39.2 Indemnity by the Concessionaire ........................................................................................... 139
39.3 Notice and contest of claims .................................................................................................. 140
39.4 Defence of claims .................................................................................................................... 140
39.5 No consequential claims ........................................................................................................ 141
39.6 Survival on Termination ........................................................................................................ 141
ARTICLE 40: RIGHTS AND TITLE OVER THE SITE ............................................................. 143
40.1 Licensee rights ....................................................................................................................... 143
40.2 Access rights of the Authority and others .............................................................................. 143
40.3 Property taxes ........................................................................................................................ 143
40.4 Restriction on sub-letting ....................................................................................................... 143
ARTICLE 41:DISPUTE RESOLUTION ....................................................................................... 145
41.1 Dispute resolution .................................................................................................................. 145
41.2 Conciliation ............................................................................................................................ 145
41.3 Arbitration .............................................................................................................................. 145
41.4 Adjudication by Regulatory Authority or Commission ......................................................... 146
ARTICLE 42: DISCLOSURE ......................................................................................................... 147
42.1 Disclosure of Specified Documents ....................................................................................... 147
42.2 Disclosure of Documents relating to safety ........................................................................... 147
ARTICLE 43: REDRESSAL OF PUBLIC GRIEVANCES ......................................................... 149
43.1 Complaints Register ............................................................................................................... 149
43.2 Redressal of complaints ......................................................................................................... 149
ARTICLE 44: MISCELLANEOUS ................................................................................................ 151
44.1 Governing law and jurisdiction .............................................................................................. 151
44.2 Waiver of immunity ............................................................................................................... 151
44.3 Depreciation and Interest ....................................................................................................... 151
44.4 Delayed payments .................................................................................................................. 151
44.5 Waiver .................................................................................................................................... 152
44.6 Liability for review of Documents and Drawings ................................................................. 152
44.7 Exclusion of implied warranties etc. ...................................................................................... 152
44.8 Survival .................................................................................................................................. 152
44.9 Entire Agreement ................................................................................................................... 153
44.10 Severability ............................................................................................................................ 153
44.11 No partnership ........................................................................................................................ 153
44.12 Third parties ........................................................................................................................... 153
44.13 Successors and assigns ........................................................................................................... 153
44.14 Notices ................................................................................................................................... 153
44.15 Language ................................................................................................................................ 154
44.16 Counterparts ........................................................................................................................... 154
ARTICLE 45: DEFINITIONS ......................................................................................................... 155
45.1 Definitions ............................................................................................................................. 155
SCHEDULES .................................................................................................................................... 171
15
SCHEDULE – A ................................................................................................................................ 173
SITE OF THE PROJECT ................................................................................................................ 173
SCHEDULE – B ................................................................................................................................ 179
DEVELOPMENT OF THE ROPEWAY ....................................................................................... 179
SCHEDULE – C ................................................................................................................................ 185
PROJECT FACILITIES .................................................................................................................. 185
SCHEDULE – D ................................................................................................................................ 187
SPECIFICATIONS ANDSTANDARDS ......................................................................................... 187
Specifications and Standards for the Ropeway .............................................................................. 189
SCHEDULE –E ................................................................................................................................. 191
APPLICABLE PERMITS ................................................................................................................ 191
SCHEDULE –F ................................................................................................................................. 193
PERFORMANCE SECURITY ....................................................................................................... 193
SCHEDULE –G ................................................................................................................................ 197
PROJECT COMPLETION SCHEDUL E ...................................................................................... 197
SCHEDULE –H ................................................................................................................................ 201
DRAWINGS ...................................................................................................................................... 201
SCHEDULE – I ................................................................................................................................. 205
SCHEDULE – J................................................................................................................................. 215
TEST .................................................................................................................................................. 215
SCHEDULE – K ............................................................................................................................... 217
COMPLETION CERTIFICATE .................................................................................................... 217
SCHEDULE – L ................................................................................................................................ 220
PERFORMANCE AND MAINTENA NCE REQUIREMENTS .................................................. 220
SCHEDULE-M ................................................................................................................................. 225
SCHEDULE – N ................................................................................................................................ 233
VESTING CERTIFICATE .............................................................................................................. 233
SCHEDULE – O ............................................................................................................................... 235
SUBSTITUTION AGREEMENT ................................................................................................... 235
SCHEDULE – P ................................................................................................................................ 247
FEENOTIFICATION ....................................................................................................................... 247
SCHEDULE – Q ............................................................................................................................... 255
MONTHLY FEE STATEMENT ..................................................................................................... 255
SCHEDULE – R ................................................................................................................................ 261
ESCROW AGREEMENT ................................................................................................................ 261
SCHEDULE – S ................................................................................................................................ 276
PANEL OF CHARTERED ACCOUNTANTS .............................................................................. 276
SCHEDULE- T.................................................................................................................................. 278
PASSENGER CHARTER ............................................................................................................... 278
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17
CONCESSION AGREEMENT
THIS AGREEMENT
1
is entered into on this the ……….. day of ………, 20…..
BETWEEN
1 The Department of Tourism/Ministry of Tourism including Agencies in Urban
Transport/Urban Local Body, Government of XXX, with its office located at XXX, YYY,
City:________ Pincode: __________(hereinafter referred to as the “Authority” which
expression shall, unless repugnant to the context or meaning thereof, include its administrators,
successors and assigns)of One Part;
AND
2 {…………..LIMITED}
$
, a company incorporated under the provisions of the[Companies Act,
1956][Companies Act, 2013]and having its registered office at ……………, (herein after
referred to as the “Concessionaire” which expression shall, unless repugnant to the context or
meaning thereof, include its successors and permitted assigns and substitutes) of the Other Part.
WHEREAS:
(A) The Government of XXX has decided to construct a ropeway from xxx to yyy, (hereinafter
referred to as XXX Ropeway) on PPP basis.
(B) The Authority had accordingly invited proposals by its [Notice/ Request for Qualification No.
*** dated ***] (the “Request for Qualification” or “RFQ”) for short listing of bidders for
construction, operation and maintenance of the XXX Ropeway on DBFOT basis and had
shortlisted certain bidders including, inter alia, the {the selected bidder/ consortium comprising
……………………., …………………….and …………………………(collectively the
“Consortium”) with ………………….. as its lead member (the “Lead Member”)}.
(C) The Authority had prescribed the technical and commercial terms and conditions, and invited
bids (the “Request for Proposals” or “RFP”) from the bidders shortlisted pursuant to the RFQ
for undertaking the Project.
(D) After evaluation of the bids received, the Authority had accepted the bid of the {selected bidder/
Consortium} and issued its Letter of Award No. ……. dated ………. (hereinafter called the
“LOA”) to the {selected bidder/ Consortium} requiring, inter alia, the execution of this
Concession Agreement within 45 (forty-five) days of the date of issue thereof.
(E) {The selected bidder/ Consortium has since promoted and incorporated the Concessionaire as
a limited liability company under the Companies Act 2013, and has requested the Authority to
accept the Concessionaire as the entity which shall undertake and perform the obligations and
exercise the rights of the selected bidder/ Consortium under the LOA,}including the obligation
to enter into this Concession Agreement pursuant to the LOA for executing the Project.
(F) {By its letter dated …………., the Concessionaire has also joined in the said request of the
selected bidder/ Consortium to the Authority to accept it as the entity which shall undertake
and perform the obligations and exercise the rights of the selected bidder/ Consortium including
1
Serially numbered footnotes in this Model Concession Agreement are for guidance of the Authority and should
be omitted from the draft Concession Agreement forming part of Bid Documents. Footnotes marked “$” or in
other non-numerical characters shall be retained in the draft Concession Agreement.
$
The provisions in curly parenthesis and the blank spaces shall be retained in the draft Concession Agreement and
shall be suitably modified/ filled after completion of the bid process to reflect the particulars relating to the selected
bidder.
18
the obligation to enter into this Concession Agreement pursuant to the LOA. The
Concessionaire has further represented to the effect that it has been promoted by the selected
bidder/ Consortium for the purposes hereof.}
(G) The Authority has agreed to the said request of the {selected bidder/Consortium and the}
Concessionaire and has accordingly agreed to enter into this Concession Agreement with the
Concessionaire for execution of the Project on DBFOT basis, subject to and on the terms and
conditions set forth hereinafter.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements
set forth in this Concession Agreement, the receipt and sufficiency of which is hereby acknowledged,
and intending to be legally bound hereby, the Parties agree as follows:
19
PART I: PRELIMINARY
20
21
ARTICLE 1: DEFINITIONS AND INTERPRETATION
1.1 Definitions
The words and expressions beginning with capital letters and defined in this Agreement
(including those in Article 48) shall, unless the context otherwise requires, have the meaning
ascribed thereto herein, and the words and expressions defined in the Schedules and used
therein shall have the meaning ascribed thereto in the Schedules.
1.2 Interpretation
1.2.1 In this Agreement, unless the context otherwise requires,
(a) references to any legislation or any provision thereof shall include amendment or re-
enactment or consolidation of such legislation or any provision thereof so far as such
amendment or re-enactment or consolidation applies or is capable of applying to any
transaction entered into hereunder;
(b) references to laws of India or Indian law or regulation having the force of law shall
include the laws, acts, ordinances, rules, regulations, bye laws or notifications which
have the force of law in the territory of India and as from time to time may be amended,
modified, supplemented, extended or re-enacted;
(c) references to a “person” and words denoting a natural person shall be construed as a
reference to any individual, firm, company, corporation, society, trust, government,
state or agency of a state or any association or partnership (whether or not having
separate legal personality) of two or more of the above and shall include successors
and assigns;
(d) the table of contents, headings or sub-headings in this Agreement are for convenience
of reference only and shall not be used in, and shall not affect, the construction or
interpretation of this Agreement;
(e) the words “include” and “including” are to be construed without limitation and shall
be deemed to be followed by “without limitation” or “but not limited to” whether or
not they are followed by such phrases;
(f) references to “construction” or “building” include, unless the context otherwise
requires, investigation, design, engineering, procurement, delivery, transportation,
installation, processing, fabrication, testing, commissioning and other activities
incidental to the construction, and “construct” or “build” shall be construed
accordingly;
(g) references to “development” include, unless the context otherwise requires,
construction, renovation, refurbishing, augmentation, upgradation and other activities
incidental thereto, and “develop” shall be construed accordingly;
(h) any reference to any period of time shall mean a reference to that according to Indian
Standard Time;
(i) any reference to day shall mean a reference to a calendar day;
(j) references to a “business day” shall be construed as a reference to a day (other than a
Sunday) on which banks in Delhi are generally open for business;
22
(k) any reference to month shall mean a reference to a calendar month as per the Gregorian
calendar;
(l) references to any date, period or Project Milestone shall mean and include such date,
period or Project Milestone as may be extended pursuant to this Agreement;
(m) any reference to any period commencing “from” a specified day or date and “till” or
“until” a specified day or date shall include both such days or dates; provided that if
the last day of any period computed under this Agreement is not a business day, then
the period shall run until the end of the next business day;
(n) the words importing singular shall include plural and vice versa;
(o) references to any gender shall include the other and the neutral gender;
(p) “lakh” means a hundred thousand (100,000) and “crore” means ten million
(10,000,000);
(q) “indebtedness” shall be construed so as to include any obligation (whether incurred as
principal or surety) for the payment or repayment of money, whether present or future,
actual or contingent;
(r) references to the “winding-up”, “dissolution”, “insolvency”, or “reorganisation” of
a company or corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such company or
corporation is incorporated or any jurisdiction in which such company or corporation
carries on business including the seeking of liquidation, winding-up, reorganisation,
dissolution, arrangement, protection or relief of debtors;
(s) save and except as otherwise provided in this Agreement, any reference, at any time,
to any agreement, deed, instrument, licence or document of any description shall be
construed as reference to that agreement, deed, instrument, licence or other document
as amended, varied, supplemented, modified or suspended at the time of such
reference; provided that this Sub-clause shall not operate so as to increase liabilities or
obligations of the Authority hereunder or pursuant hereto in any manner whatsoever;
(t) any agreement, consent, approval, authorisation, notice, communication, information
or report required under or pursuant to this Agreement from or by any Party or the
Independent Engineer shall be valid and effective only if it is in writing under the hand
of a duly authorised representative of such Party or the Independent Engineer, as the
case may be, in this behalf and not otherwise;
(u) the Schedules and Recitals to this Agreement form an integral part of this Agreement
and will be in full force and effect as though they were expressly set out in the body of
this Agreement;
(v) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this Agreement
shall, except where the context otherwise requires, mean references to Recitals,
Articles, Clauses, Sub-clauses and Schedules of or to this Agreement, and references
to a Paragraph shall, subject to any contrary indication, be construed as a reference to
a Paragraph of this Agreement or of the Schedule in which such reference appears;
(w) the damages payable by either Party to the other of them, as set forth in this Agreement,
whether on per diem basis or otherwise, are mutually agreed genuine pre-estimated loss
23
and damage likely to be suffered and incurred by the Party entitled to receive the same
and are not by way of penalty (the “Damages”); and
(x) time shall be of the essence in the performance of the Parties’ respective obligations. If
any time period specified herein is extended, such extended time shall also be of the
essence.
1.2.2 Unless expressly provided otherwise in this Agreement, any Documentation required to be
provided or furnished by the Concessionaire to the Authority and/or the Independent Engineer
shall be provided free of cost and in three copies, and if the Authority and/or the Independent
Engineer is required to return any such Documentation with their comments and/or approval,
they shall be entitled to retain two copies thereof.
1.2.3 The rule of construction, if any, that a contract should be interpreted against the parties
responsible for the drafting and preparation thereof, shall not apply.
1.2.4 Any word or expression used in this Agreement shall, unless otherwise defined or construed in
this Agreement, bear its ordinary English meaning and, for these purposes, the General Clauses
Act, 1897 shall not apply.
1.3 Measurements and arithmetic conventions
All measurements and calculations shall be in the metric system and calculations done to 2
(two) decimal places, with the third digit of 5 (five) or above being rounded up and below 5
(five) being rounded down.
1.4 Priority of agreements, clauses and schedules
1.4.1 This Agreement, and all other agreements and documents forming part of or referred to in this
agreement are to be taken as mutually explanatory and, unless otherwise expressly provided
elsewhere in this Agreement, the priority of this Agreement and other documents and
agreements forming part hereof or referred to herein shall, in the event of any conflict between
them, be in the following order:
(a) this Agreement; and
(b) all other agreements and documents forming part hereof or referred to herein;
i.e. the Agreement at (a) above shall prevail over the agreements and documents at (b)
above.
1.4.2 Subject to the provisions of Clause 14.1, in case of ambiguities or discrepancies within this
Agreement, the following shall apply:
(a) between two or more Clauses of this Agreement, the provisions of a specific Clause
relevant to the issue under consideration shall prevail over those in other Clauses;
(b) between the Clauses of this Agreement and the Schedules, the Clauses shall prevail and
between Schedules and Annexes, the Schedules shall prevail;
(c) between any two Schedules, the Schedule relevant to the issue shall prevail;
24
(d) between the written description on the Drawings and the Specifications and Standards,
the latter shall prevail;
(e) between the dimension scaled from the Drawing and its specific written dimension, the
latter shall prevail; and
(f) between any value written in numerals and that in words, the latter shall prevail.
25
PART II: THE CONCESSION
26
27
ARTICLE 2: SCOPE OF THE PROJECT
2.1 Scope of the Project
The scope of the Project (the “Scope of the Project”) shall mean and include, during the
Concession Period:
(a) construction and procurement of the [****] Ropeway and [Real Estate Development]
on the Site set forth in Schedule-A and as specified in Schedule-B together with
provision of Project Facilities as specified in Schedule-C, and in conformity with the
Specifications and Standards set forth in Schedule-D;
(b) operation and maintenance of the XXX Ropeway in accordance with the provisions of
this Agreement; and
(c) performance and fulfilment of all other obligations of the Concessionaire in accordance
with the provisions of this Agreement and matters incidental thereto or necessary for
the performance of any or all of the obligations of the Concessionaire under this
Agreement.
28
29
ARTICLE 3: GRANT OF CONCESSION
3.1 The Concession
3.1.1 Subject to and in accordance with the provisions of this Agreement, the Applicable Laws and
the Applicable Permits, the Authority hereby grants to the Concessionaire the concession set
forth herein including the exclusive right, licence and authority to construct, operate and
maintain the Project (the “Concession”) for a period of [30 (thirty)] years commencing from
the Appointed Date, and the Concessionaire hereby accepts the Concession and agrees to
implement the Project subject to and in accordance with the terms and conditions set forth
herein:
Provided that, in the event the Concessionaire shall have discharged its obligations without any
material breach for a period of 25 (twenty-five) years from the Appointed Date, it may, by
notice to be given no later than the 26
th
(twenty-sixth) anniversary of the Appointed Date, seek
extension of the Concession Period and in such an event, it shall be entitled to additional
Concession Period of 20 (twenty) years beyond the 30 (thirty) year period in accordance with
the terms of the Concession Agreement. For the avoidance of doubt, material breach shall for
the purpose thereof mean inter-alia suspension of Concessionaire and/or levy of damages in
aggregate exceeding a sum equivalent to 50% (fifty percent) of the Performance Security, over
the Concession Period.
3.1.2 Subject to and in accordance with the provisions of this Agreement, the Concession hereby
granted shall oblige or entitle (as the case may be) the Concessionaire to:
(a) Right of Way, access and licence to the Site for the purpose of and to the extent
conferred by the provisions of this Agreement;
(b) finance and construct the XXX Ropeway;
(c) manage, operate and maintain the XXX Ropeway and regulate the use thereof by third
parties;
(d) demand, collect and appropriate Fee from users for using the XXX Ropeway and refuse
usage if the Fee due is not paid;
(e) perform and fulfil all of the Concessionaire’s obligations under and in accordance with
this Agreement;
(f) save as otherwise expressly provided in this Agreement, bear and pay all costs,
expenses and charges in connection with or incidental to the performance of the
obligations of the Concessionaire under this Agreement; and
(g) neither assign, transfer or sublet or create any lien or encumbrance on this Agreement,
or the Concession hereby granted or on the whole or any part of the XXX Ropeway
nor transfer, lease or part possession thereof, save and except as expressly permitted by
this Agreement or the Substitution Agreement.
3.1.3 Subject to and in accordance with the provisions of this Agreement and Applicable Laws, the
Concession hereby granted shall, without prejudice to the provisions of Clause 3.1.2, entitle the
Concessionaire to undertake development, operation and maintenance of the real estate
30
specified in Schedule-A, [subject to the conditions stipulated in Schedule-B and Schedule-D,]
and to exploit such development for commercial purposes (the “Real Estate Development”)
with the right to sub-license any or all parts thereof by means of Project Agreements.
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ARTICLE 4: CONDITIONS PRECEDENT
4.1 Conditions Precedent
4.1.1 Save and except as expressly provided in Articles 4, 9, 10, 23, 31, 41 and 44, or unless the
context otherwise requires, the respective rights and obligations of the Parties under this
Agreement shall be subject to the satisfaction in full of the conditions precedent specified in
this Clause 4.1 (the “Conditions Precedent”).
4.1.2 The Concessionaire may, upon providing the Performance Security to the Authority in
accordance with Article 9, at any time after [90 (ninety)] days from the date of this Agreement
or on an earlier day acceptable to the Authority, by notice require the Authority to satisfy any
or all of the Conditions Precedent set forth in this Clause 4.1.2 within a period of 30 (thirty)
days of the notice, or such longer period not exceeding 60 (sixty) days as may be specified
therein, and the Conditions Precedent required to be satisfied by the Authority shall be deemed
to have been fulfilled when the Authority shall have:
(a) procured for the Concessionaire the Right of Way to the Site in accordance with the
provisions of Clause 10.3.1;
(b) issued the Fee Notification;
[(c) procured for the Concessionaire the Right of Way to *****;]
2
[(d) procured all Applicable Permits relating to environmental protection and conservation
of the Site:]
4.1.3 The Conditions Precedent required to be satisfied by the Concessionaire prior to the Appointed
Date shall be deemed to have been fulfilled when the Concessionaire shall have:
(a) provided Performance Security to the Authority;
(b) executed and procured execution of the Escrow Agreement;
(c) executed and procured execution of the Substitution Agreement;
(d) procured all the Applicable Permits specified in Schedule-E unconditionally or if
subject to conditions, then all such conditions required to be fulfilled by the date
specified therein shall have been satisfied in full and such Applicable Permits are in
full force and effect;
(e) executed the Financing Agreements and delivered to the Authority 3 (three) true copies
thereof, duly attested by a Director of the Concessionaire;
(f) delivered to the Authority 3 (three) true copies of the Financial Package and the
Financial Model, duly attested by a Director of the Concessionaire, along with 3 (three)
2
If completion of construction on any part of the Site is considered critical for issue of Provisional/ Completion
Certificate, such part shall be specified in this Sub-clause so that it does not form part of the Appendix referred
to in Clause 10.3.1, on or after the Appointed Date.
32
soft copies of the Financial Model in MS Excel version or any substitute thereof, which
is acceptable to the Senior Lenders;
(g) delivered to the Authority from {the Consortium Members, their respective}
confirmation, in original, of the correctness of their representations and warranties set
forth in Sub clauses (k), (l) and (m) of clause 7.1 of this Agreement; and
(h) delivered to the Authority a legal opinion from the legal counsel of the Concessionaire
with respect to the authority of the Concessionaire to enter into this Agreement and the
enforceability of the provisions thereof:
Provided that upon request in writing by the Concessionaire, the Authority may, in its
discretion, waive any of the Conditions Precedent set forth in this Clause 4.1.3. For the
avoidance of doubt, the Authority may, in its sole discretion, grant any waiver hereunder with
such conditions as it may deem fit.
4.1.4 Each Party shall make all reasonable endeavours to satisfy the Conditions Precedent within the
time stipulated and shall provide the other Party with such reasonable cooperation as may be
required to assist that Party in satisfying the Conditions Precedent for which that Party is
responsible.
4.1.5 The Parties shall notify each other in writing at least once a month on the progress made in
satisfying the Conditions Precedent. Each Party shall promptly inform the other Party when any
Condition Precedent for which it is responsible has been satisfied.
4.2 Damages for delay by the Authority
In the event that (i) the Authority does not procure fulfilment of any or all of the Conditions
Precedent set forth in Clause 4.1.2 within the period specified in respect thereof, and (ii) the
delay has not occurred as a result of breach of this Agreement by the Concessionaire or due to
Force Majeure, the Authority shall pay to the Concessionaire Damages in an amount calculated
at the rate of 0.1% (zero point one per cent) of the Performance Security for each day’s delay
until the fulfilment of such Conditions Precedent, subject to a maximum of 100% (hundred
percent) of the Performance Security.
4.3 Damages for delay by the Concessionaire
In the event that (i) the Concessionaire does not procure fulfilment of any or all of the
Conditions Precedent set forth in Clause 4.1.3 within a period of 180 (one hundred and eighty)
days from the date of this Agreement, and (ii) the delay has not occurred as a result of failure
to fulfil the obligations under Clause 4.1.2 or other breach of this Agreement by the Authority,
or due to Force Majeure, the Concessionaire shall pay to the Authority, Damages in an amount
calculated at the rate of 0.2% (zero point two per cent) of the Performance Security for each
day’s delay until the fulfilment of such Conditions Precedent, subject to a maximum of 100%
(hundred percent) of the Performance Security.
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ARTICLE 5: OBLIGATIONS OF THE CONCESSIONAIRE
5.1 Obligations of the Concessionaire
5.1.1 Subject to and on the terms and conditions of this Agreement, the Concessionaire shall, at its
own cost and expense, procure finance for and undertake the design, engineering, procurement,
construction, operation and maintenance of the XXX Ropeway and observe, fulfil, comply with
and perform all its obligations set out in this Agreement or arising hereunder.
5.1.2 The Concessionaire shall comply with all Applicable Laws and Applicable Permits (including
renewals as required) in the performance of its obligations under this Agreement.
5.1.3 Subject to the provisions of Clauses 5.1.1 and 5.1.2, the Concessionaire shall discharge its
obligations in accordance with Good Industry Practice and as a reasonable and prudent person.
5.1.4 The Concessionaire shall, at its own cost and expense, in addition to and not in derogation of
its obligations elsewhere set out in this Agreement:
(a) make, or cause to be made, necessary applications to the relevant Government
Instrumentalities with such particulars and details as may be required for obtaining
Applicable Permits (other than those set forth in Clause 4.1.2), and obtain and keep in
force and effect such Applicable Permits in conformity with the Applicable Laws;
(b) procure, as required, the appropriate proprietary rights, licences, agreements and
permissions for materials, methods, processes and systems used or incorporated into
the XXX Ropeway;
(c) perform and fulfil its obligations under the Financing Agreements;
(d) make reasonable efforts to maintain harmony and good industrial relations among the
personnel employed by it or its Contractors in connection with the performance of its
obligations under this Agreement;
(e) make reasonable efforts for acquisition of land required for the purposes of the
Agreement;
(f) ensure and procure that its Contractors comply with all Applicable Permits and
Applicable Laws in the performance by them of any of the Concessionaire’s obligations
under this Agreement;
(g) not do or omit to do any act, deed or thing which may in any manner be violative of
any of the provisions of this Agreement;
(h) support, cooperate with and facilitate the Authority in the implementation and
operation of the Project in accordance with the provisions of this Agreement; and
(i) transfer the XXX Ropeway to the Authority upon Termination of this Agreement, in
accordance with the provisions thereof.
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5.2 Obligations relating to Project Agreements
5.2.1 It is expressly agreed that the Concessionaire shall, at all times, be responsible and liable for all
its obligations under this Agreement notwithstanding anything contained in the Project
Agreements or any other agreement, and no default under any Project Agreement or agreement
shall excuse the Concessionaire from its obligations or liability hereunder.
5.2.2 The Concessionaire shall submit to the Authority the drafts of all Project Agreements, or any
amendments or replacements thereto, for its review and comments, and the Authority shall have
the right but not the obligation to undertake such review and provide its comments, if any, to
the Concessionaire within 15 (fifteen) days of the receipt of such drafts. Within 7 (seven) days
of execution of any Project Agreement or amendment thereto, the Concessionaire shall submit
to the Authority a true copy thereof, duly attested by a Director of the Concessionaire, for its
record. For the avoidance of doubt, it is agreed that the review and comments hereunder shall
be limited to ensuring compliance with the terms of this Agreement. It is further agreed that no
review and/or observation of the Authority and/or its failure to review and/or convey its
observations on any document shall relieve the Concessionaire of its obligations and liabilities
under this Agreement in any manner nor shall the Authority be liable for the same in any manner
whatsoever.
5.2.3 The Concessionaire shall not make any addition, replacement or amendments to any of the
Financing Agreements without the prior written consent of the Authority if such addition,
replacement or amendment has, or may have, the effect of imposing or increasing any financial
liability or obligation on the Authority, and in the event that any replacement or amendment is
made without such consent, the Concessionaire shall not enforce such replacement or
amendment nor permit enforcement thereof against the Authority. For the avoidance of doubt,
the Authority acknowledges and agrees that it shall not unreasonably withhold its consent for
restructuring or rescheduling of the debt of the Concessionaire.
5.2.4 Notwithstanding anything to the contrary contained in this Agreement, the Concessionaire shall
not sub-licence, assign or in any manner create an Encumbrance on any Project Asset forming
part of Real Estate Development without prior written approval of the Authority, which
approval the Authority may, in its discretion, deny if such sub-licence, assignment or
Encumbrance has or may have a material adverse effect on the rights and obligations of the
Authority under this Agreement or Applicable Laws; provided that the provisions of this Clause
5.2.4 shall not apply where the Concessionaire grants a sub-licence for a cumulative period,
including any renewals thereof, not exceeding 11 (eleven) months. For the avoidance of doubt,
it is agreed that if the Authority does not deny the approval required under this Clause 5.2.4
within a period of 60 (sixty) days from the date of receiving a notice alongwith full particulars
and documents from the Concessionaire, the approval shall be deemed to have been granted to
the extent such sub-licence, assignment or Encumbrance, as the case may be, is in accordance
with the provisions of this Agreement.
5.2.5 Notwithstanding anything to the contrary contained in Clause 5.2.4, the Concessionaire shall
not sub–licence, assign or in any manner create an Encumbrance on any Project Asset forming
part of Real Estate Development at any time prior to the [3rd (third) anniversary] of the
Appointed Date. For the avoidance of doubt, the restriction imposed herein shall not apply to
assignment under the Substitution Agreement.
5.2.6 The Concessionaire shall procure that each of the Project Agreements contains provisions that
entitle the Authority to step into such agreement, in its sole discretion, in substitution of the
Concessionaire in the event of Termination or Suspension (the “Covenant”). For the avoidance
35
of doubt, it is expressly agreed that in the event the Authority does not exercise such rights of
substitution within a period not exceeding 90 (ninety) days from the Transfer Date, the Project
Agreements shall be deemed to cease to be in force and effect on the Transfer Date without any
liability whatsoever on the Authority and the Covenant shall expressly provide for such
eventuality. The Concessionaire expressly agrees to include the Covenant in all its Project
Agreements and undertakes that it shall, in respect of each of the Project Agreements, procure
and deliver to the Authority an acknowledgment and undertaking, in a form acceptable to the
Authority, from the counter party(ies) of each of the Project Agreements, whereunder such
counter party(ies) shall acknowledge and accept the Covenant and undertake to be bound by
the same and not to seek any relief or remedy whatsoever from the Authority in the event of
Termination or Suspension.
5.3 Obligations relating to Change in Ownership
5.3.1 The Concessionaire shall not undertake or permit any Change in Ownership, except with the
prior approval of the Authority.
5.3.2 Notwithstanding anything to the contrary contained in this Agreement, the Concessionaire
agrees and acknowledges that:
(i) all acquisitions of Equity by an acquirer, either by himself or with any person acting in
concert, directly or indirectly, including by transfer of the direct or indirect legal or
beneficial ownership or control of any Equity, in aggregate of not less than 25% (twenty
five per cent) of the total Equity of the Concessionaire; or
(ii) acquisition of any control directly or indirectly of the Board of Directors of the
Concessionaire by any person either by himself or together with any person or persons
acting in concert with him;
shall constitute a Change in Ownership requiring prior approval of the Authority from national
security and public interest perspective, the decision of the Authority in this behalf being final,
conclusive and binding on the Concessionaire, and undertakes that it shall not give effect to any
such acquisition of Equity or control of the Board of Directors of the Concessionaire without
such prior approval of the Authority. For the avoidance of doubt, it is expressly agreed that
approval of the Authority hereunder shall be limited to national security and public interest
perspective, and the Authority shall endeavour to convey its decision thereon expeditiously. It
is also agreed that the Authority shall not be liable in any manner on account of grant or
otherwise of such approval and that such approval or denial thereof shall not in any manner
absolve the Concessionaire from any liability or obligation under this Agreement.
For the purposes of this Clause 5.3.2:
(a) the expression “acquirer”, “control” and “person acting in concert” shall have the
meaning ascribed thereto in the Securities and Exchange Board of India (Substantial
Acquisition of Shares and Takeover) Regulations, 2011 or any statutory re-enactment
thereof as in force as on the date of acquisition of Equity, or the control of the Board
of Directors, as the case may be, of the Concessionaire;
(b) the indirect transfer or control of legal or beneficial ownership of Equity shall mean
transfer of the direct or indirect beneficial ownership or control of any company or
36
companies whether in India or abroad which results in the acquirer acquiring control
over the shares or voting rights of shares of the Concessionaire; and
(c) power to appoint, whether by contract or by virtue of control or acquisition of shares
of any company, holding directly or through one or more companies (whether situated
in India or abroad) the Equity of the Concessionaire, not less than half of the directors
on the Board of Directors of the Concessionaire or of any company, directly or
indirectly whether situate in India or abroad, having ultimate control of not less than
25% (twenty five per cent) of the Equity of the Concessionaire, shall constitute
acquisition of control, directly or indirectly, of the Board of Directors of the
Concessionaire.
5.4 Employment of foreign nationals
The Concessionaire acknowledges, agrees and undertakes that employment of foreign
personnel by the Concessionaire and/or its contractors and their sub-contractors shall be subject
to grant of requisite regulatory permits and approvals including employment/residential visas
and work permits, if any required, and the obligation to apply for and obtain the same shall and
will always be of the Concessionaire and, notwithstanding anything to the contrary contained
in this Agreement, refusal of or inability to obtain any such permits and approvals by the
Concessionaire or any of its contractors or sub-contractors shall not constitute Force Majeure
Event, and shall not in any manner excuse the Concessionaire from the performance and
discharge of its obligations and liabilities under this Agreement.
5.5 Employment of trained personnel
The Concessionaire shall ensure that the personnel engaged by it in the performance of its
obligations under this Agreement are at all times properly trained for their respective functions.
5.6 Obligations relating to medical aid
For providing medical aid to the Users, the Concessionaire shall, set up and operate a medical
aid post at the Project Site equipped to render first aid and to assist in accessing emergency
medical aid from hospitals/ clinics in the vicinity.
5.7 Obligations relating to basic amenities
5.7.1 The Concessionaire shall, during the entire term of the Concession Period, in addition to the
infrastructure required to be developed, operated and maintained by it under this Agreement,
provide and maintain amenities, in adequate numbers in accordance with Good Industry
Practice for non-discriminatory use by the Users of the Project. These shall include drinking
water facilities, sanitation facilities, toilets, telephone and communication facilities.
5.7.2 The Concessionaire shall, during the entire term of the Concession Period, provide and procure
hygienic and safe low-cost eateries and canteens, in adequate numbers and in accordance with
Good Industry Practice.
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5.8 Obligations relating to noise control
The Concessionaire shall take all such measures as may be necessary in accordance with
Applicable Laws and Good Industry Practice to control and mitigate the noise arising from the
Project and its impact on Users and the neighbourhood.
5.9 Sole purpose of the Concessionaire
The Concessionaire having been set up for the sole purpose of exercising the rights and
observing and performing its obligations and liabilities under this Agreement, the
Concessionaire or any of its subsidiaries shall not, except with the previous written consent of
the Authority, be or become directly or indirectly engaged, concerned or interested in any
business other than as envisaged herein.
5.10 Branding of XXX Ropeway
The XXX Ropeway or any part thereof shall not be branded in any manner to advertise, display
or reflect the name or identity of the Concessionaire or its shareholders. The Concessionaire
undertakes that it shall not, in any manner, use the name or entity of XXX Ropeway to advertise
or display its own identity, brand equity or business interests, including those of its
shareholders, save and except as may be necessary in the normal course of business. For the
avoidance of doubt, it is agreed that the Concessionaire may display its own name at a spot
where other public notices are displayed for the Users. It is further agreed that the XXX
Ropeway shall be known, promoted, displayed and advertised by the name of *****.
5.11 Facilities for physically challenged and elderly persons
The Concessionaire shall, in conformity with the guidelines issued from time to time by the
Ministry of Social Justice and Empowerment, or a substitute thereof, procure a barrier free
environment for the physically or visually challenged and for elderly persons using the XXX
Ropeway.
5.12 Obligations relating to maintenance of the Ropeway
The Concessionaire agrees that it shall enter into a maintenance agreement with the original
equipment or technical supplier of the equipment for a term of 5 (five) years following COD.
The Concessionaire shall furnish an undertaking to certify that it is in compliance with this
obligation under Clause 5.12 no later than [****] days prior to COD.
38
39
ARTICLE 6: OBLIGATIONS OF THE AUTHORITY
6.1 Obligations of the Authority
6.1.1 The Authority shall, at its own cost and expense undertake, comply with and perform all its
obligations set out in this Agreement or arising hereunder.
6.1.2 The Authority agrees to provide support to the Concessionaire and undertakes to observe,
comply with and perform, subject to and in accordance with the provisions of this Agreement
and the Applicable Laws, the following:
(a) upon written request from the Concessionaire, and subject to the Concessionaire
complying with Applicable Laws, provide reasonable support and assistance to the
Concessionaire in procuring Applicable Permits required from any Government
Instrumentality for implementation and operation of the Project;
(b) upon written request from the Concessionaire, provide reasonable assistance to the
Concessionaire in obtaining access to all necessary infrastructure facilities and utilities,
including water and electricity at rates and on terms no less favourable to the
Concessionaire than those generally available to commercial customers receiving
substantially equivalent services;
(c) procure that no barriers are erected or placed on or about the XXX Ropeway by any
Government Instrumentality or persons claiming through or under it, except for reasons
of Emergency, national security, law and order or collection of inter-state taxes;
(d) make best endeavours to procure that no local Tax, or charge is levied or imposed on
the use of whole or any part of the XXX Ropeway;
(e) subject to and in accordance with the Applicable Laws, grant to the Concessionaire the
authority to regulate traffic on the XXX Ropeway;
(f) assist the Concessionaire in procuring police assistance for regulation of traffic,
removal of trespassers and security on or at the XXX Ropeway;
(g) not do or omit to do any act, deed or thing which may in any manner be violative of
any of the provisions of this Agreement;
(h) support, cooperate with and facilitate the Concessionaire in the implementation and
operation of the Project in accordance with the provisions of this Agreement; and
(i) upon written request from the Concessionaire and subject to the provisions of Clause
5.4, provide reasonable assistance to the Concessionaire and any expatriate personnel
of the Concessionaire or its Contractors to obtain applicable visas and work permits for
the purposes of discharge by the Concessionaire or its Contractors their obligations
under this Agreement and the Project Agreements.
40
41
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
7.1 Representations and warranties of the Concessionaire
The Concessionaire represents and warrants to the Authority that:
(a) it is duly organised and validly existing under the laws of India, and has full power and
authority to execute and perform its obligations under this Agreement and to carry out
the transactions contemplated hereby;
(b) it has taken all necessary corporate and other actions under Applicable Laws to
authorise the execution and delivery of this Agreement and to validly exercise its rights
and perform its obligations under this Agreement;
(c) it has the financial standing and capacity to undertake the Project in accordance with
the terms of this Agreement;
(d) this Agreement constitutes its legal, valid and binding obligation, enforceable against
it in accordance with the terms hereof, and its obligations under this Agreement will be
legally valid, binding and enforceable obligations against it in accordance with the
terms hereof;
(e) it is subject to the laws of India, and hereby expressly and irrevocably waives any
immunity in any jurisdiction in respect of this Agreement or matters arising thereunder
including any obligation, liability or responsibility hereunder;
(f) the information furnished in the Bid and as updated on or before the date of this
Agreement is true and accurate in all respects as on the date of this Agreement;
(g) the execution, delivery and performance of this Agreement will not conflict with, result
in the breach of, constitute a default under, or accelerate performance required by any
of the terms of its Memorandum and Articles of Association {or those of any member
of the Consortium} or any Applicable Laws or any covenant, contract, agreement,
arrangement, understanding, decree or order to which it is a party or by which it or any
of its properties or assets is bound or affected;
(h) there are no actions, suits, proceedings, or investigations pending or, to its knowledge,
threatened against it at law or in equity before any court or before any other judicial,
quasi-judicial or other authority, the outcome of which may result in the breach of this
Agreement or which individually or in the aggregate may result in any material
impairment of its ability to perform any of its obligations under this Agreement;
(i) it has no knowledge of any violation or default with respect to any order, writ,
injunction or decree of any court or any legally binding order of any Government
Instrumentality which may result in any material adverse effect on its ability to perform
its obligations under this Agreement and no fact or circumstance exists which may give
rise to such proceedings that would adversely affect the performance of its obligations
under this Agreement;
(j) it has complied with Applicable Laws in all material respects and has not been subject
to any fines, penalties, injunctive relief or any other civil or criminal liabilities which
42
in the aggregate have or may have a material adverse effect on its ability to perform its
obligations under this Agreement;
(k) it shall at no time undertake or permit any Change in Ownership except in accordance
with the provisions of Clause 5.3 and that the {selected bidder/ Consortium Members},
together with{its/ their} Associates, hold not less than 51% (fifty-one percent) of its
issued and paid up Equity as on the date of this Agreement; and that no member of the
Consortium whose technical and financial capacity was evaluated for the purposes of
pre-qualification and short-listing in response to the Request for Qualification shall
hold less than 26% (twenty six per cent) of such Equity during the Construction Period;
(l) {the selected bidder/ Consortium Members and its/their} Associates have the financial
standing and resources to fund the required Equity and to raise the debt necessary for
undertaking and implementing the Project in accordance with this Agreement;
(m) {the selected bidder/ each Consortium Member} is duly organised and validly existing
under the laws of the jurisdiction of its incorporation, and has requested the Authority
to enter into this Agreement with the Concessionaire pursuant to the Letter of Award,
and has agreed to and unconditionally accepted the terms and conditions set forth in
this Agreement;
(n) all its rights and interests in the XXX Ropeway shall pass to and vest in the Authority
on the Transfer Date free and clear of all liens, claims and Encumbrances, without any
further act or deed on its part or that of the Authority, and that none of the Project
Assets shall be acquired by it, subject to any agreement under which a security interest
or other lien or Encumbrance is retained by any person, save and except as expressly
provided in this Agreement;
(o) no representation or warranty by it contained herein or in any other document furnished
by it to the Authority or to any Government Instrumentality in relation to Applicable
Permits contains or will contain any untrue or misleading statement of material fact or
omits or will omit to state a material fact necessary to make such representation or
warranty not misleading;
(p) no sums, in cash or kind, have been paid or will be paid, by it or on its behalf, to any
person by way of fees, commission or otherwise for securing the Concession or
entering into this Agreement or for influencing or attempting to influence any officer
or employee of the Authority in connection therewith; and
(q) all information provided by the {selected bidder/ Consortium Members} in response to
the Request for Qualification and Request for Proposals or otherwise, is to the best of
its knowledge and belief, true and accurate in all material respects.
7.2 Representations and warranties of the Authority
The Authority represents and warrants to the Concessionaire that:
(a) it has full power and authority to execute, deliver and perform its obligations under this
Agreement and to carry out the transactions contemplated herein and that it has taken
all actions necessary to execute this Agreement, exercise its rights and perform its
obligations, under this Agreement;
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(b) it has taken all necessary actions under the Applicable Laws to authorise the execution,
delivery and performance of this Agreement;
(c) it has the financial standing and capacity to perform its obligations under this
Agreement;
(d) this Agreement constitutes a legal, valid and binding obligation enforceable against it
in accordance with the terms hereof;
(e) it has no knowledge of any violation or default with respect to any order, writ,
injunction or any decree of any court or any legally binding order of any Government
Instrumentality which may result in any material adverse effect on the Authority’s
ability to perform its obligations under this Agreement;
(f) it has complied with Applicable Laws in all material respects;
(g) it has the right, power and authority to manage and operate the XXX Ropeway up to
the Appointed Date; and
(h) it has good and valid right to the Site and has power and authority to grant a licence in
respect thereto to the Concessionaire.
7.3 Disclosure
In the event that any occurrence or circumstance comes to the attention of either Party that
renders any of its aforesaid representations or warranties untrue or incorrect, such Party shall
immediately notify the other Party of the same. Such notification shall not have the effect of
remedying any breach of the representation or warranty that has been found to be untrue or
incorrect nor shall it adversely affect or waive any right, remedy or obligation of either Party
under this Agreement.
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ARTICLE 8: DISCLAIMER
8.1 Disclaimer
8.1.1 The Concessionaire acknowledges that prior to the execution of this Agreement, the
Concessionaire has, after a complete and careful examination, made an independent evaluation
of the Request for Qualification, Request for Proposals, Scope of the Project, Specifications
and Standards, Site, existing structures, local conditions, physical qualities of ground, subsoil
and geology, traffic volumes and all information provided by the Authority or obtained,
procured or gathered otherwise, and has determined to its satisfaction the accuracy or otherwise
thereof and the nature and extent of difficulties, risks and hazards as are likely to arise or may
be faced by it in the course of performance of its obligations hereunder. The Authority makes
no representation whatsoever, express, implicit or otherwise, regarding the accuracy, adequacy,
correctness, reliability and/or completeness of any assessment, assumptions, statement or
information provided by it and the Concessionaire confirms that it shall have no claim
whatsoever against the Authority in this regard.
8.1.2 The Concessionaire acknowledges and hereby accepts the risk of inadequacy, mistake or error
in or relating to any of the matters set forth in Clause 8.1.1 above and hereby acknowledges
and agrees that the Authority shall not be liable for the same in any manner whatsoever to the
Concessionaire, {the Consortium Members and their} Associates or any person claiming
through or under any of them.
8.1.3 The Parties agree that any mistake or error in or relating to any of the matters set forth in Clause
8.1.1 above shall not vitiate this Agreement or render it voidable.
8.1.4 In the event that either Party becomes aware of any mistake or error relating to any of the
matters set forth in Clause 8.1.1 above, that Party shall immediately notify the other Party,
specifying the mistake or error; provided, however, that a failure on part of the Authority to
give any notice pursuant to this Clause 8.1.4 shall not prejudice the disclaimer of the Authority
contained in Clause 8.1.1 and shall not in any manner shift to the Authority any risks assumed
by the Concessionaire pursuant to this Agreement.
8.1.5 Except as otherwise provided in this Agreement, all risks relating to the Project shall be borne
by the Concessionaire and the Authority shall not be liable in any manner for such risks or the
consequences thereof.
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PART III: DEVELOPMENT AND OPERATIONS
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ARTICLE 9: PERFORMANCE SECURITY
9.1 Performance Security
9.1.1 The Concessionaire shall, for the performance of its obligations hereunder during the
Construction Period, provide to the Authority no later than 180 (one hundred and eighty) days
from the date of this Agreement, an irrevocable and unconditional guarantee from a Bank for a
sum equivalent to Rs. ***** crore (Rupees ***** crore)
3
in the form set forth in Schedule-F
(the “Performance Security”). Until such time the Performance Security is provided by the
Concessionaire pursuant hereto and the same comes into effect, the Bid Security shall remain
in force and effect, and upon such provision of the Performance Security pursuant hereto, the
Authority shall release the Bid Security to the Concessionaire.
9.1.2 Notwithstanding anything to the contrary contained in this Agreement, in the event
Performance Security is not provided by the Concessionaire within a period of 180 (one
hundred and eighty) days from the date of this Agreement, the Authority may encash the Bid
Security and appropriate the proceeds thereof as Damages, and thereupon all rights, privileges,
claims and entitlements of the Concessionaire under or arising out of this Agreement shall be
deemed to have been waived by, and to have ceased with the concurrence of the Concessionaire,
and this Agreement shall be deemed to have been terminated by mutual agreement of the
Parties.
9.2 Appropriation of Performance Security
Upon occurrence of a Concessionaire Default or failure to meet any Condition Precedent, the
Authority shall, without prejudice to its other rights and remedies hereunder or in law, be
entitled to encash and appropriate the relevant amounts from the Performance Security as
Damages for such Concessionaire Default or failure to meet any Condition Precedent. Upon
such encashment and appropriation from the Performance Security, the Concessionaire shall,
within 30 (thirty) days thereof, replenish, in case of partial appropriation, to its original level
the Performance Security, and in case of appropriation of the entire Performance Security
provide a fresh Performance Security, as the case may be, and the Concessionaire shall, within
the time so granted, replenish or furnish fresh Performance Security as aforesaid, failing which
the Authority shall be entitled to terminate this Agreement in accordance with Article 34 Upon
replenishment or furnishing of a fresh Performance Security, as the case may be, as aforesaid,
the Concessionaire shall be entitled to an additional Cure Period of 90 (ninety) days for
remedying the Concessionaire Default or to meet any Condition Precedent, and in the event of
the Concessionaire not curing its default or meeting such Condition Precedent within such Cure
Period, the Authority shall be entitled to encash and appropriate such Performance Security as
Damages, and to terminate this Agreement in accordance with Article 34 .
9.3 Release of Performance Security
The Performance Security shall remain in force and effect for a period of one year from the
Appointed Date, but shall be released earlier upon the Concessionaire expending on Project
construction an aggregate sum that is not less than 20% (twenty per cent) of the Total Project
Cost; provided, however, that the Performance Security shall not be released if the
Concessionaire is in breach of this Agreement. Upon request made by the Concessionaire for
release of the Performance Security along with the particulars which establish satisfaction of
3
Calculated @ 5% (five per cent) of the amount specified in the definition of Total Project Cost.
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the requirements specified under this Clause 9.3, the Authority shall release the Performance
Security forthwith.
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ARTICLE 10: RIGHT OF WAY
10.1 The Site
The site of the XXX Ropeway shall comprise of the real estate described in Schedule-A and in
respect of which the Right of Way shall be provided and granted by the Authority to the
Concessionaire as a licensee under and in accordance with this Agreement (the “Site”). For the
avoidance of doubt, it is hereby acknowledged and agreed that references to the Site shall be
construed as references to the real estate required for the XXX Ropeway as set forth in
Schedule-A and includes Real Estate Development.
10.2 Licence, Access and Right of Way
10.2.1 The Authority hereby grants to the Concessionaire access to the Site for carrying out any
surveys, investigations and soil tests that the Concessionaire may deem necessary during the
Development Period, it being expressly agreed and understood that the Authority shall have no
liability whatsoever in respect of survey, investigations and tests carried out or work undertaken
by the Concessionaire on or about the Site pursuant hereto in the event of Termination or
otherwise.
10.2.2 In consideration of the Concession Fee, this Agreement and the covenants and warranties on
the part of the Concessionaire herein contained, the Authority, in accordance with the terms
and conditions set forth herein, hereby grants to the Concessionaire, commencing from the
Appointed Date, leave and licence rights in respect of all the land (along with any buildings,
constructions or immovable assets, if any, thereon) comprising the Site which is described,
delineated and shown in Schedule-A hereto (the “Licensed Premises”), on an “as is where is”
basis, free of any Encumbrances, to develop, operate and maintain the said Licensed Premises,
together with all and singular rights, liberties, privileges, easements and appurtenances
whatsoever to the said Licensed Premises, hereditaments or premises or any part thereof
belonging to or in any way appurtenant thereto or enjoyed therewith, for the duration of the
Concession Period and, for the purposes permitted under this Agreement, and for no other
purpose whatsoever.
10.2.3 It is expressly agreed that the licence granted hereunder shall terminate automatically and
forthwith, without the need for any action to be taken by the Authority to terminate the licence,
upon the Termination of this Agreement for any reason whatsoever. For the avoidance of doubt,
the Parties expressly agree that notwithstanding any temporary or permanent structures erected
on the Site by the Concessionaire or its sub-licensees, the licence in respect of the Site shall
automatically terminate, without any further act of the Parties, upon Termination of this
Agreement.
10.2.4 The Concessionaire hereby irrevocably appoints the Authority (acting directly or through a
nominee) to be its true and lawful attorney, to execute and sign in the name of the
Concessionaire a transfer or surrender of the licence granted hereunder at any time after the
Concession Period has expired or has been terminated earlier in terms hereof, a sufficient proof
of which will be the declaration of any duly authorised officer of the Authority, and the
Concessionaire consents to it being registered for this purpose.
10.2.5 It is expressly agreed that trees on the Site are property of the Authority except that the
Concessionaire shall be entitled to exercise usufructory rights thereon during the Concession
Period.
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10.3 Procurement of the Site
10.3.1 Pursuant to the notice specified in Clause 4.1.2, the Authority Representative and the
Concessionaire shall, on a mutually agreed date and time, inspect the Site and prepare a
memorandum containing an inventory of the Site including the vacant and unencumbered land,
buildings, structures, road works, trees and any other immovable property on or attached to the
Site. Such memorandum shall have appended thereto an appendix (the “Appendix”) specifying
in reasonable detail those parts of the Site to which vacant access and Right of Way has not
been granted to the Concessionaire. Signing of the memorandum, in two counterparts (each of
which shall constitute an original), by the authorised representatives of the Parties shall, subject
to the provisions of Clause 10.2.2, be deemed to constitute a valid licence and Right of Way to
the Concessionaire for free and unrestricted use and development of the vacant and
unencumbered Site during the Concession Period under and in accordance with the provisions
of this Agreement and for no other purpose whatsoever. For the avoidance of doubt, it is agreed
that valid licence and Right of Way with respect to the parts of the Site as set forth in the
Appendix shall be deemed to have been granted to the Concessionaire upon vacant access
thereto being provided by the Authority to the Concessionaire.
10.3.2 Without prejudice to the provisions of Clause 10.3.1, the Parties hereto agree that on or prior
to the Appointed Date, the Authority shall have granted vacant access and Right of Way such
that the Appendix shall not include more than 20% (twenty per cent) of the total area of the Site
required and necessary for the XXX Ropeway, and in the event Financial Close is delayed
solely on account of delay in grant of such vacant access and Right of Way, the Authority shall
be liable to payment of Damages under and in accordance with the provisions of Clause 4.2.
10.3.3 On and after signing the memorandum referred to in Clause 10.3.1, and until the Transfer Date,
the Concessionaire shall maintain a round-the-clock vigil over the Site and shall ensure and
procure that no encroachment thereon takes place, and in the event of any encroachment or
occupation on any part thereof, the Concessionaire shall report such encroachment or
occupation forthwith to the Authority and undertake its removal at its cost and expenses.
10.3.4 The Authority shall make best efforts to procure and grant, no later than 90 (ninety) days from
the Appointed Date, the Right of Way to the Concessionaire in respect of all land included in
the Appendix, and in the event of delay for any reason other than Force Majeure or breach of
this Agreement by the Concessionaire, it shall pay to the Concessionaire Damages in a sum
calculated at the rate of Rs. 50 (Rupees fifty) per day for every 1,000 (one thousand) square
metres or part thereof, commencing from the 91st (ninety first) day of the Appointed Date and
until such Right of Way is procured.
10.3.5 Upon receiving Right of Way in respect of any land included in the Appendix, the
Concessionaire shall complete the Construction Works thereon within a reasonable period, to
be determined by the Independent Engineer, in accordance with Good Industry Practice;
provided that the issue of Provisional Certificate shall not be affected or delayed on account of
vacant access to any part of the Site not being granted to the Concessionaire or any construction
on such part of the Site remaining incomplete on the date of Tests on account of the delay or
denial of such access thereto. For the avoidance of doubt, it is expressly agreed that
Construction Works on all lands, for which Right of Way is granted within 90 (ninety) days of
the Appointed Date, shall be completed before the Project Completion Date. It is further agreed
that the obligation of the Concessionaire to complete the affected Construction Works shall
subsist so long as the Authority continues to pay the Damages specified herein, and upon the
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Authority ceasing to pay such Damages after giving 60 (sixty) days’ notice thereof to the
Concessionaire, the obligation of the Concessionaire to complete such works on such part of
the Site shall cease forthwith. It is also expressly agreed that completion of the respective
Construction Works, within the time determined by the Independent Engineer hereunder, shall
be deemed to be Project Milestones for the purposes of levy and recovery of Damages under
and in accordance with the provisions of Clause 12.3.2.
10.3.6 [The Concessionaire may procure at its cost and expense and on its own, the land that may be
required by it for additional facilities and the Authority shall have no obligation or liability in
respect thereof. For the avoidance of doubt, the Concessionaire shall seek prior consent of the
Authority to connect any Additional Facility to the Project Facilities and such consent shall not
be unreasonably withheld. For avoidance of doubt, the land procured by the Concessionaire for
Additional Facilities shall not form part of the Site and the ownership of such land shall remain
with the Concessionaire in the event of Termination or otherwise.]
10.4 Site to be free from Encumbrances
Subject to the provisions of Clause 10.3, the Site shall be made available by the Authority to
the Concessionaire pursuant hereto free from all Encumbrances and occupations and without
the Concessionaire being required to make any payment to the Authority on account of any
costs, compensation, expenses and charges for the acquisition and use of such Site for the
duration of the Concession Period, except insofar as otherwise expressly provided in this
Agreement. For the avoidance of doubt, it is agreed that existing rights of way, easements,
privileges, liberties and appurtenances to the Licensed Premises shall not be deemed to be
Encumbrances. It is further agreed that the Concessionaire accepts and undertakes to bear any
and all risks arising out of the inadequacy or physical condition of the Site.
10.5 Protection of Site from encroachments
During the Concession Period, the Concessionaire shall protect the Site from any and all
occupations, encroachments or Encumbrances, and shall not place or create nor permit any
Contractor or other person claiming through or under the Concessionaire to place or create any
Encumbrance or security interest over all or any part of the Site or the Project Assets, or on any
rights of the Concessionaire therein or under this Agreement, save and except as otherwise
expressly set forth in this Agreement.
10.6 Special/temporary right of way
The Concessionaire shall bear all costs and charges for any special or temporary right of way
required by it in connection with access to the Site. The Concessionaire shall obtain at its cost
such facilities on or outside the Site as may be required by it for the purposes of the XXX
Ropeway and the performance of its obligations under this Agreement.
10.7 Access to the Authority
10.7.1 The licence, right of way and right to the Site granted to the Concessionaire hereunder shall
always be subject to the right of access of the Authority and their employees and agents for
inspection, viewing and exercise of their rights and performance of their obligations under this
Agreement.
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10.7.2 The Concessionaire shall allow free access to the Site at all times for the authorised
representatives of the Authority, lenders, Independent Engineer, and for the persons duly
authorised by any Government Instrumentality to inspect the Project or Project Facilities or to
investigate any matter within their authority, and upon reasonable notice, the Concessionaire
shall provide to such persons, reasonable assistance necessary to carry out their respective
duties and functions.
10.7.3 The Concessionaire shall, for the purpose of operation and maintenance of any utility specified
in Article 11, allow free access to the Site at all times for the authorised persons of the
controlling body of such utility.
10.8 Geological and archaeological finds
It is expressly agreed that mining, geological or archaeological rights do not form part of the
license granted to the Concessionaire under this Agreement and the Concessionaire hereby
acknowledges that it shall not have any mining rights or interest in the underlying minerals,
fossils, antiquities, structures or other remnants or things either of particular geological or
archaeological interest and that such rights, interest and property on or under the Site shall vest
in and belong to the Authority or the concerned Government Instrumentality. The
Concessionaire shall take all reasonable precautions to prevent its workmen or any other person
from removing or damaging such interest or property and shall inform the Authority forthwith
of the discovery thereof and comply with such instructions as the concerned Government
Instrumentality may reasonably give for the removal of such property. For the avoidance of
doubt, it is agreed that any reasonable expenses incurred by the Concessionaire hereunder shall
be reimbursed by the Authority. It is also agreed that the Authority shall ensure that the
instructions hereunder are issued by the concerned Government Instrumentality within a
reasonable period.
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ARTICLE 11: UTILITIES, ASSOCIATED ROADS AND TREES
11.1 Existing utilities and roads
Notwithstanding anything to the contrary contained herein, the Concessionaire shall ensure that
the respective entities owning the existing roads, right of way or utilities on, under or above the
Site are enabled by it to keep such utilities in continuous satisfactory use, if necessary, by
providing suitable temporary or permanent diversions with the authority of the controlling body
of that road, right of way or utility, and the Authority shall, upon written request from the
Concessionaire, initiate and undertake at the Concessionaire’s cost, legal proceedings for
acquisition of any right of way necessary for such diversion.
11.2 Shifting of obstructing utilities
The Concessionaire shall, subject to Applicable Laws and with assistance of the Authority,
undertake shifting of any utility including electric lines, water pipes and telephone cables, to an
appropriate location or alignment within or outside the Site if and only if such utility causes or
shall cause a material adverse effect on the construction, operation or maintenance of the XXX
Ropeway. The cost of such shifting shall be borne by the Authority or by the entity owning
such utility, if the Authority so directs, and in the event of any delay in shifting thereof, the
Concessionaire shall be excused for failure to perform any of its obligations hereunder if such
failure is a direct consequence of delay on the part of the entity owning such electric lines, water
pipes or telephone cables, as the case may be.
11.3 New utilities and roads
11.3.1 The Concessionaire shall allow, subject to such conditions as the Authority may specify, access
to, and use of the Site for laying telephone lines, water pipes, electric cables or other public
utilities. Where such access or use causes any financial loss to the Concessionaire, it may
require the user of the Site to pay compensation or damages as per Applicable Laws. For the
avoidance of doubt, it is agreed that use of the Site under this Clause 11.3.1 shall not in any
manner relieve the Concessionaire of its obligation to maintain the XXX Ropeway in
accordance with this Agreement and any damage caused by such use shall be restored forthwith.
11.4 Felling of trees
The Authority shall assist the Concessionaire in obtaining the Applicable Permits for felling of
trees to be identified by the Authority for this purpose if and only if such trees cause a material
adverse effect on the construction, operation or maintenance of the XXX Ropeway. The cost
of such felling shall be borne by the Authority, and in the event of any delay in felling thereof
for reasons beyond the control of the Concessionaire, it shall be excused for failure to perform
any of its obligations hereunder if such failure is a direct consequence of delay in the felling of
trees. For the avoidance of doubt, the Parties hereto agree that the felled trees shall be deemed
to be owned by the Authority and shall be disposed in such manner and subject to such
conditions as the Authority may in its sole discretion deem appropriate.
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ARTICLE 12: CONSTRUCTION OF THE XXX ROPEWAY
12.1 Obligations prior to commencement of construction
Prior to commencement of Construction Works, the Concessionaire shall:
(a) submit to the Authority and the Independent Engineer its detailed design, construction
methodology, quality assurance procedures, and the procurement, engineering and
construction time schedule for completion of the Project in accordance with the Project
Completion Schedule as set forth in Schedule-G;
(b) appoint its representative duly authorised to deal with the Authority in respect of all
matters under or arising out of or relating to this Agreement;
(c) undertake, do and perform all such acts, deeds and things as may be necessary or
required before commencement of construction under and in accordance with this
Agreement, the Applicable Laws and Applicable Permits and Specifications and
Standards; and
(d) make its own arrangements for quarrying of materials needed for the XXX Ropeway
under and in accordance with the Applicable Laws and Applicable Permits.
12.2 Drawings
In respect of the Concessionaire’s obligations relating to the Drawings of the XXX Ropeway
as set forth in Schedule-H, the following shall apply:
(a) The Concessionaire shall prepare and submit, with reasonable promptness and in such
sequence as is consistent with the Project Completion Schedule, 3 (three) copies each
of all Drawings to the Independent Engineer for review.
(b) By submitting the Drawings for review to the Independent Engineer, the
Concessionaire shall be deemed to have represented that it has determined and verified
that the design and engineering, including field construction criteria related thereto, are
in conformity with the Scope of the Project and Specifications and Standards.
(c) Within 15 (fifteen) days of the receipt of the Drawings, the Independent Engineer shall
review the same and convey its observations to the Concessionaire with particular
reference to their conformity or otherwise with the Scope of the Project and
Specifications and Standards. The Concessionaire shall not be obliged to await the
observations of the Independent Engineer on the Drawings submitted pursuant hereto
beyond the said 15 (fifteen) days period and may begin or continue Construction Works
at its own discretion and risk.
(d) If the aforesaid observations of the Independent Engineer indicate that the Drawings
are not in conformity with the Scope of the Project or Specifications and Standards,
such Drawings shall be revised by the Concessionaire and resubmitted to the
Independent Engineer for review. The Independent Engineer shall give its
observations, if any, within 7 (seven) days of receipt of the revised Drawings.
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(e) No review and/or observation of the Independent Engineer and/or its failure to review
and/or convey its observations on any Drawings shall relieve the Concessionaire of its
obligations and liabilities under this Agreement in any manner nor shall the
Independent Engineer or the Authority be liable for the same in any manner.
(f) Without prejudice to the foregoing provisions of this Clause 12.2, the Concessionaire
shall submit to the Authority for review and comments, its Drawings relating to
alignment of the XXX Ropeway and the Authority shall have the right but not the
obligation to undertake such review and provide its comments, if any, within 30 (thirty)
days of the receipt of such Drawings. The provisions of this Clause 12.2 shall apply
mutatis mutandis to the review and comments hereunder.
(g) Within 90 (ninety) days of the Project Completion Date, the Concessionaire shall
furnish to the Authority and the Independent Engineer a complete set of as-built
Drawings, in 2 (two) hard copies and in micro film form or in such other medium as
may be acceptable to the Authority, reflecting the XXX Ropeway as actually designed,
engineered and constructed, including an as-built survey illustrating the layout of the
XXX Ropeway and setback lines, if any, of the buildings and structures forming part
of Project Facilities.
12.3 Construction of the Ropeway
12.3.1 On or after the Appointed Date, the Concessionaire shall undertake construction of the XXX
Ropeway as specified in Schedule-B and Schedule-C, and in conformity with the Specifications
and Standards set forth in Schedule-D. The [**** day] from the Appointed Date shall be the
scheduled date for completion of the XXX Ropeway (the “Scheduled Date”) and the
Concessionaire agrees and undertakes that construction of the XXX Ropeway shall be
completed on or before the Scheduled Date. For the avoidance of doubt, it is agreed that the
Project Completion Schedule and Scheduled Date shall not apply to Real Estate Development.
12.3.2 The Concessionaire shall construct the XXX Ropeway in accordance with the Project
Completion Schedule set forth in Schedule-G. In the event that the Concessionaire fails to
achieve any Project Milestone within a period of 90 (ninety) days from the date set forth for
such Milestone in Schedule-G, unless such failure has occurred due to Force Majeure or for
reasons solely attributable to the Authority, it shall pay Damages to the Authority in a sum
calculated at the rate of 0.1% (zero point one per cent) of the amount of Performance Security
for delay of each day until such Milestone is achieved; provided that if any or all Project
Milestones or the Scheduled Date are extended in accordance with the provisions of this
Agreement, the dates set forth in Schedule-G shall be deemed to be modified accordingly and
the provisions of this Agreement shall apply as if Schedule-G has been amended as above;
provided further that in the event Project Completion Date is achieved on or before the
Scheduled Date, the Damages paid under this Clause 12.3.2 shall be refunded by the Authority
to the Concessionaire, but without any interest thereon. For the avoidance of doubt, it is agreed
that recovery of Damages under this Clause 12.3.2 shall be without prejudice to the rights of
the Authority under this Agreement, including the right of Termination thereof.
12.3.3 In the event that the XXX Ropeway is not completed within [270 (two hundred and seventy)]
days from the Scheduled Date, unless the delay is on account of reasons solely attributable to
the Authority or due to Force Majeure, the Authority shall be entitled to terminate this
Agreement.
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ARTICLE 13: MONITORING OF CONSTRUCTION
13.1 Monthly progress reports
During the Construction Period, the Concessionaire shall, no later than 7 (seven) days after the
close of each month, furnish to the Authority and the Independent Engineer a monthly report
on progress of the Construction Works and shall promptly give such other relevant information
as may be required by the Independent Engineer.
13.2 Inspection
During the Construction Period, the Independent Engineer shall inspect the XXX Ropeway
periodically as per Specifications and Standards and submit a report of such inspection (the
“Inspection Report”) to the Authority stating in reasonable detail the defects or deficiencies,
if any, with particular reference to the Scope of the Project and Specifications and Standards.
It shall send a copy of the Inspection Report to the Authority and the Concessionaire within 7
(seven) days of such inspection and upon receipt thereof, the Concessionaire shall rectify and
remedy the defects or deficiencies, if any, stated in the Inspection Report. Such inspection or
submission of Inspection Report by the Independent Engineer shall not relieve or absolve the
Concessionaire of its obligations and liabilities hereunder in any manner whatsoever. The scope
of work for the Independent Engineer is provided in Schedule-I.
13.3 Tests
13.3.1 For determining that the Construction Works conform to the Specifications and Standards, the
Independent Engineer shall require the Concessionaire to carry out or cause to be carried out
tests, at such time and frequency and in such manner as may be specified by the Independent
Engineer from time to time, in accordance with Good Industry Practice for quality assurance.
The Concessionaire shall, with due diligence, carry out or cause to be carried out all the tests
in accordance with the instructions of the Independent Engineer and furnish the results thereof
to the Independent Engineer. One half of the costs incurred on such tests, and to the extent
certified by the Independent Engineer as reasonable, shall be reimbursed by the Authority to
the Concessionaire. For the avoidance of doubt, the costs to be incurred on any Test which is
undertaken for determining the rectification of any defect or deficiency in construction shall be
borne solely by the Concessionaire.
13.3.2 In the event that results of any tests conducted under this Clause 13.3 establish any defects or
deficiencies in the Construction Works, the Concessionaire shall carry out remedial measures
and furnish a report to the Independent Engineer in this behalf. The Independent Engineer shall
require the Concessionaire to carry out or cause to be carried out tests to determine that such
remedial measures have brought the Construction Works into compliance with Specifications
and Standards, and the procedure set forth in this Clause 13.3, shall be repeated until such
Construction Works conform to the Specifications and Standards. For the avoidance of doubt,
it is agreed that tests pursuant to this Clause 13.3 shall be undertaken in addition to and
independent of the tests that shall be carried out by the Concessionaire for its own quality
assurance in accordance with Good Industry Practice. It is also agreed that a copy of the results
of such tests shall be sent by the Concessionaire to the Independent Engineer forthwith.
13.4 Delays during construction
Without prejudice to the provisions of Clause 12.3.2, if the Concessionaire does not achieve
any of the Project Milestones or the Independent Engineer shall have reasonably determined
60
that the rate of progress of Construction Works is such that commissioning of XXX Ropeway
is not likely to be achieved by the Scheduled Date, it shall notify the Concessionaire to this
effect, and the Concessionaire shall, within 15 (fifteen) days of such notice, by a communication
inform the Independent Engineer in reasonable detail about the steps it proposes to take to
expedite progress and the period within which it shall achieve the Project Completion Date.
13.5 Suspension of unsafe Construction Works
13.5.1 Upon recommendation of the Independent Engineer to this effect, the Authority may by notice
require the Concessionaire to suspend forthwith the whole or any part of the Construction
Works if, in the reasonable opinion of the Authority, such work threatens the safety of the Users
and pedestrians.
13.5.2 The Concessionaire shall, pursuant to the notice under Clause 13.5.1, suspend the Construction
Works or any part thereof for such time and in such manner as may be specified by the Authority
and thereupon carry out remedial measures to secure the safety of suspended works and the
Users. The Concessionaire may, by notice, require the Independent Engineer to inspect such
remedial measures forthwith and make a report to the Authority recommending whether or not
the suspension hereunder may be revoked. Upon receiving the recommendations of the
Independent Engineer, the Authority shall either revoke such suspension or instruct the
Concessionaire to carry out such other and further remedial measures as may be necessary in
the reasonable opinion of the Authority, and the procedure set forth in this Clause 13.5 shall be
repeated until the suspension hereunder is revoked.
13.5.3 Subject to the provisions of Clause 31.7, all reasonable costs incurred for maintaining and
protecting the Construction Works or part thereof during the period of suspension (the
“Preservation Costs”), shall be borne by the Concessionaire; provided that if the suspension
has occurred as a result of any breach of this Agreement by the Authority, the Preservation
Costs shall be borne by the Authority.
13.5.4 If suspension of Construction Works is for reasons not attributable to the Concessionaire, the
Independent Engineer shall determine any extension of the dates set forth in the Project
Completion Schedule to which the Concessionaire is reasonably entitled, and shall notify the
Authority accordingly whereupon the Authority shall extend such Project Completion Schedule
dates in accordance with the recommendations of the Independent Engineer. In the event that
the Scheduled Date is extended pursuant hereto, the Concession Period shall be deemed to be
extended by a period equal in length to the period of extension of the Scheduled Date.
13.6 Video recording
During the Construction Period, the Concessionaire shall provide to the Authority for every
calendar quarter, a video recording, which will be compiled into a 3 (three)-hour compact disc
or digital video disc, as the case may be, covering the status and progress of Construction Works
in that quarter. The first such video recording shall be provided to the Authority within 7 (seven)
days of the Appointed Date and thereafter, no later than 15 (fifteen) days after the close of each
quarter.
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ARTICLE 14: COMPLETION CERTIFICATE
14.1 Tests
14.1.1 At least 30 (thirty) days prior to the likely completion of the XXX Ropeway, the Concessionaire
shall notify the Independent Engineer of its intent to subject the XXX Ropeway to Tests. The
date and time of each of the Tests shall be determined by the Independent Engineer in
consultation with the Concessionaire and notified to the Authority who may designate its
representative to witness the Tests. The Concessionaire shall provide such assistance as the
Independent Engineer may reasonably require for conducting the Tests. In the event of the
Concessionaire and the Independent Engineer failing to mutually agree on the dates for
conducting the Tests, the Concessionaire shall fix the dates by giving not less than 10(ten)day
notice to the Independent Engineer. For the avoidance of doubt, it is agreed that the provisions
of this Article 14 shall not apply to Real Estate Development.
14.1.2 All Tests shall be conducted in accordance with Schedule-J. The Independent Engineer shall
observe, monitor and review the results of the Tests to determine compliance of the XXX
Ropeway with Specifications and Standards and if it is reasonably anticipated or determined by
the Independent Engineer during the course of any Test that the performance of the XXX
Ropeway or any part thereof does not meet the Specifications and Standards, it shall have the
right to suspend or delay such Test and require the Concessionaire to remedy and rectify the
defects or deficiencies. Upon completion of each Test, the Independent Engineer shall provide
to the Concessionaire and the Authority copies of all Test data including detailed Test results.
For the avoidance of doubt, it is expressly agreed that the Independent Engineer may require
the Concessionaire to carry out or cause to be carried out additional Tests, in accordance with
Good Industry Practice, for determining the compliance of the XXX Ropeway with
Specifications and Standards.
14.2 Completion Certificate
Upon completion of Construction Works and the Independent Engineer determining the Tests
to be successful, it shall forthwith issue to the Concessionaire and the Authority a certificate
substantially in the form set forth in Schedule-K (the “Completion Certificate”).
14.3 Provisional Certificate
14.3.1 The Independent Engineer may, at the request of the Concessionaire, issue a provisional
certificate of completion substantially in the form set forth in Schedule-K (the “Provisional
Certificate”) if the Tests are successful and the XXX Ropeway can be safely and reliably
placed in commercial operation though certain associated works and / or facilities for users
forming part thereof are outstanding and not yet complete. In such an event, the Provisional
Certificate shall have appended thereto a list of outstanding items signed jointly by the
Independent Engineer and the Concessionaire (the “Punch List”); provided that the
Independent Engineer shall not withhold the Provisional Certificate for reason of any work
remaining incomplete if the delay in completion thereof is attributable to the Authority.
14.4 Completion of Punch List items
14.4.1 All items in the Punch List shall be completed by the Concessionaire within 90 (ninety) days
of the date of issue of the Provisional Certificate and for any delay thereafter, other than for
reasons solely attributable to the Authority or due to Force Majeure, the Authority shall be
entitled to recover Damages from the Concessionaire to be calculated and paid for each day of
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delay until all items are completed, at the lower of (a) 0.1% (zero point one per cent) of the
Performance Security, and (b) 0.2% (zero point two per cent) of the cost of completing such
items as estimated by the Independent Engineer. Subject to payment of such Damages, the
Concessionaire shall be entitled to a further period not exceeding 120 (one hundred and twenty)
days for completion of the Punch List items. For the avoidance of doubt, it is agreed that if
completion of any item is delayed for reasons solely attributable to the Authority or due to
Force Majeure, the completion date thereof shall be determined by the Independent Engineer
in accordance with Good Industry Practice, and such completion date shall be deemed to be the
date of issue of the Provisional Certificate for the purposes of Damages, if any, payable for
such item under this Clause 14.4.1.
14.4.2 Upon completion of all Punch List items, the Independent Engineer shall issue the Completion
Certificate. Failure of the Concessionaire to complete all the Punch List items within the time
set forth in Clause 14.4.1 for any reason, other than conditions constituting Force Majeure or
for reasons solely attributable to the Authority, shall entitle the Authority to terminate this
Agreement.
14.5 Rescheduling of Tests
If the Independent Engineer certifies to the Authority and the Concessionaire that it is unable
to issue the Completion Certificate or Provisional Certificate, as the case may be, because of
events or circumstances on account of which the Tests could not be held or had to be suspended,
the Concessionaire shall be entitled to re-schedule the Tests and hold the same as soon as
reasonably practicable.
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ARTICLE 15: ENTRY INTO COMMERCIAL SERVICE
15.1 Commercial Operation Date (COD)
Commissioning of XXX Ropeway shall be deemed to be complete when the Completion
Certificate or the Provisional Certificate, as the case may be, is issued under the provisions of
Article 14, and accordingly the commercial operation date of the Project shall be the date on
which such Completion Certificate or the Provisional Certificate is issued]
4
(the “COD”). The
XXX Ropeway shall enter into commercial service on COD whereupon the Concessionaire
shall be entitled to demand and collect Fee in accordance with the provisions of Article 26 .
15.2 Damages for delay
Subject to the provisions of Clause 12.3, if COD does not occur prior to the 91
st
(ninety first)
day after the Scheduled Date, unless the delay is on account of reasons solely attributable to the
Authority or due to Force Majeure, the Concessionaire shall pay Damages to the Authority in
a sum calculated at the rate of 0.1% (zero point one per cent) of the amount of Performance
Security for delay of each day until COD is achieved.
4
This provision may be suitably modified in case of a project where Fee is being levied and collected prior to the
Appointed Date. In such a case, clause 15.2 shall be omitted.
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ARTICLE 16: CHANGE OF SCOPE
16.1 Change of Scope
16.1.1 The Authority may, notwithstanding anything to the contrary contained in this Agreement,
require the provision of additional works and services which are not included in the Scope of
the Project as contemplated by this Agreement (the “Change of Scope”). Any such Change of
Scope shall be made in accordance with the provisions of this Article 16 and the costs thereof
shall be expended by the Concessionaire and reimbursed to it by the Authority in accordance
with Clause 16.3.
16.1.2 If the Concessionaire determines at any time that a Change of Scope is necessary for providing
safer and improved services to the Users, it shall by notice in writing require the Authority to
consider such Change of Scope. The Authority shall, within 60 (sixty) days of receipt of such
notice, either accept such Change of Scope with modifications, if any, and initiate proceedings
therefor in accordance with this Article 16 or inform the Concessionaire in writing of its reasons
for not accepting such Change of Scope.
16.1.3 Any works or services which are provided under and in accordance with this Article 16 shall
form part of the XXX Ropeway and the provisions of this Agreement shall apply mutatis
mutandis to such works or services.
16.2 Procedure for Change of Scope
16.2.1 In the event of the Authority determining that a Change of Scope is necessary, it shall issue to
the Concessionaire a notice specifying in reasonable detail the works and services contemplated
thereunder (the “Change of Scope Notice”). Any change of scope of work will also comply
with requisite Specifications and Standards wherever applicable.
16.2.2 Upon receipt of a Change of Scope Notice, the Concessionaire shall, with due diligence, provide
to the Authority such information as is necessary, together with preliminary Documentation in
support of:
(a) the impact, if any, which the Change of Scope is likely to have on the Project
Completion Schedule if the works or services are required to be carried out during the
Construction Period; and
(b) the options for implementing the proposed Change of Scope and the effect, if any, each
such option would have on the costs and time thereof, including a detailed breakdown
by work classifications specifying the material and labour costs calculated in
accordance with the schedule of rates applicable to the works assigned by the Authority
to its contractors, along with the proposed premium/discount on such rates; provided
that the cost incurred by the Concessionaire in providing such information shall be
reimbursed by the Authority to the extent such cost is certified by the Independent
Engineer as reasonable.
16.2.3 Upon receipt of information set forth in Clause 16.2.2, if the Authority decides to proceed with
the Change of Scope, it shall convey its preferred option to the Concessionaire, and the Parties
shall, with the assistance of the Independent Engineer thereupon make good faith efforts to
agree upon the time and costs for implementation thereof. Upon reaching an agreement, the
Authority shall issue an order (the “Change of Scope Order”) requiring the Concessionaire to
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proceed with the performance thereof. In the event that the Parties are unable to agree, the
Authority may, by issuing a Change of Scope Order, require the Concessionaire to proceed with
the performance thereof pending resolution of the Dispute, or carry out the works in accordance
with Clause 16.5.
16.2.4 The provisions of this Agreement, insofar as they relate to Construction Works and Tests, shall
apply mutatis mutandis to the works undertaken by the Concessionaire under this Article 16.
16.3 Payment for Change of Scope
16.3.1 Within 30 (thirty) days of issuing a Change of Scope Order, the Authority shall make an
advance payment to the Concessionaire in a sum equal to 20% (twenty per cent) of the cost of
Change of Scope as agreed hereunder, and in the event of a Dispute, 20% (twenty per cent) of
the cost assessed by the Independent Engineer. The Concessionaire shall, after commencement
of work, present to the Authority bills for payment in respect of the works in progress or
completed works, as the case may be, supported by such Documentation as is reasonably
sufficient for the Authority to determine the accuracy thereof. Within 30 (thirty) days of receipt
of such bills, the Authority shall disburse to the Concessionaire such amounts after making a
proportionate deduction for the advance payment made hereunder, and in the event of any
Dispute, final adjustments thereto shall be made under and in accordance with the Dispute
Resolution Procedure.
16.3.2 Notwithstanding anything to the contrary contained in Clause 16.3.1, all costs arising out of
any Change of Scope Order issued during the Construction Period shall be borne by the
Concessionaire, subject to an aggregate ceiling of 0.25% (zero point two five per cent) of the
Total Project Cost. Any costs in excess of the ceiling shall be reimbursed by the Authority in
accordance with Clause 16.3.1. In the event that the total cost arising out of Change of Scope
Orders (if any) issued prior to the Project Completion Date is less than 0.25% (zero point two
five per cent) of the Total Project Cost, the difference thereof shall be credited by the
Concessionaire to the Safety Fund within a period of 180 (one hundred and eighty) days of the
Project Completion Date. For the avoidance of doubt, it is agreed that the aforesaid 0.25% (zero
point two five per cent) of the Total Project Cost shall, to the extent borne by the
Concessionaire, be deemed to form part of the actual capital cost of the Project.
16.4 Restrictions on certain works
16.4.1 Notwithstanding anything to the contrary contained in this Article 16, but subject to the
provisions of Clause 16.4.2, the Authority shall not require the Concessionaire to undertake any
works or services if such works or services are likely to delay completion of the XXX Ropeway;
provided that in the event that the Authority considers such works or services to be essential, it
may issue a Change of Scope Order, subject to the condition that the works forming part of or
affected by such Order shall not be reckoned for purposes of determining completion of XXX
Ropeway and issuing the Provisional Certificate.
16.4.2 Notwithstanding anything to the contrary contained in this Article 16, the Concessionaire shall
be entitled to nullify any Change of Scope Order if it causes the cumulative costs relating to all
the Change of Scope Orders to exceed 5% (five per cent) of the Total Project Cost in any
continuous period of 3 (three) years immediately preceding the date of such Change of Scope
Order or if such cumulative costs exceed 20% (twenty per cent) of the Total Project Cost at any
time during the Concession Period.
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16.5 Power of the Authority to undertake works
16.5.1 Notwithstanding anything to the contrary contained in Clauses 16.1.1, 16.2 and 16.3, the
Authority may, after giving notice to the Concessionaire and considering its reply thereto,
award any works or services, contemplated under Clause 16.1.1, to any person on the basis of
open competitive bidding; provided that the Concessionaire shall have the option of matching
the first ranked bid in terms of the selection criteria, subject to payment of 2% (two per cent)
of the bid amount to the Authority
$
, and thereupon securing the award of such works or services.
For the avoidance of doubt, it is agreed that the Concessionaire shall be entitled to exercise such
option only if it has participated in the bidding process and its bid does not exceed the first
ranked bid by more than 10% (ten percent) thereof. It is also agreed that the Concessionaire
shall provide access, assistance and cooperation to the person who undertakes the works or
services hereunder.
16.5.2 The works undertaken in accordance with this Clause 16.5 shall conform to the Specifications
and Standards and shall be carried out in a manner that minimises the disruption in operation
of the XXX Ropeway. The provisions of this Agreement, insofar as they relate to Construction
Works and Tests, shall apply mutatis mutandis to the works carried out under this Clause 16.5.
16.6 Reduction in Scope of the Project
16.6.1 If the Concessionaire shall have failed to complete any Construction Works on account of Force
Majeure or for reasons solely attributable to the Authority, the Authority may, in its discretion,
require the Concessionaire to pay 80% (eighty percent) of the sum saved therefrom, and upon
such payment to the Authority, the obligations of the Concessionaire in respect of such works
shall be deemed to have been fulfilled. For the avoidance of doubt, it is agreed that in the event
such reduction in Scope of the Project causes or will cause a reduction in net after-tax return of
the Concessionaire, the Parties shall meet, as soon as reasonably practical, and agree on a full
or partial waiver of the aforesaid payment of 80% (eighty per cent) so as to place the
Concessionaire in the same financial position as it would have enjoyed had there been no
reduction in Scope of the Project. It is further agreed that the liability of the Authority under
this Clause 16.6 shall not extend beyond waiver of the aforesaid 80% (eighty per cent). It is
also agreed that in the event of a dispute, the Dispute Resolution Procedure shall apply.
16.6.2 For determining the obligations of the Concessionaire under this Clause 16.6, the provisions of
Clauses 16.1, 16.2 and 16.4 shall apply mutatis mutandis, and upon issue of Change of Scope
Order by the Authority hereunder, the Concessionaire shall pay forthwith the sum specified
therein.
$
The Authority shall transfer 75% (seventy five percent) of the amount so received to the first ranked bidder
whose bid shall have been matched by the Concessionaire.
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ARTICLE 17: OPERATION AND MAINTENANCE
17.1 O&M obligations of the Concessionaire
17.1.1 During the Operation Period, the Concessionaire shall operate and maintain the XXX Ropeway
in accordance with this Agreement either by itself, or through the O&M Contractor and if
required, modify, repair or otherwise make improvements to the XXX Ropeway to comply with
the provisions of this Agreement, Applicable Laws and Applicable Permits, and conform to
Specifications and Standards and Good Industry Practice. The obligations of the Concessionaire
hereunder shall include:
(a) permitting safe, smooth and uninterrupted flow of passengers on the XXX Ropeway
during normal operating conditions;
(b) collecting and appropriating the Fee;
(c) minimising disruption to traffic in the event of accidents or other incidents affecting
the safety and use of the XXX Ropeway by providing a rapid and effective response
and maintaining liaison with emergency services of the State;
(d) carrying out periodic preventive maintenance of the XXX Ropeway;
(e) undertaking routine maintenance of the XXX Ropeway;
(f) undertaking major maintenance of the XXX Ropeway;
(g) preventing, with the assistance of concerned law enforcement agencies, any
unauthorised use of the XXX Ropeway;
(h) preventing, with the assistance of the concerned law enforcement agencies, any
encroachments on the XXX Ropeway;
(i) protection of the environment and provision of equipment and materials therefore;
(j) operation and maintenance of all communication, control and administrative systems
necessary for the efficient operation of the XXX Ropeway;
(k) maintaining a public relations unit to interface with and attend to suggestions from the
Users, government agencies, media and other agencies; and
(l) complying with Safety Requirements in accordance with Article 18.
17.1.2 The Concessionaire shall remove, promptly from the Project Site, all surplus construction
machinery and materials, waste materials (including hazardous materials and waste water),
rubbish and other debris (including, without limitation, accident debris) and keep the Project
Site in a clean, tidy and orderly condition, and in conformity with the Applicable Laws,
Applicable Permits and Good Industry Practice. [For the avoidance of doubt, it is agreed that
the debris and material excavated shall be carried to and deposited at ****]
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17.2 Maintenance Requirements
The Concessionaire shall procure that at all times during the Operation Period, the XXX
Ropeway conforms to the maintenance requirements set forth in Schedule-L (the
“Maintenance Requirements”).
17.3 Maintenance Manual
17.3.1 No later than 180 (one hundred and eighty) days prior to the Scheduled Date, the
Concessionaire shall submit the authorised repair and maintenance manual (the “Maintenance
Manual”) of the technology and equipment supplier which shall be in compliance with
Specifications and Standards for the regular and preventive maintenance of the XXX Ropeway
in conformity with the Specifications and Standards, Maintenance Requirements, Safety
Requirements and Good Industry Practice, and shall provide 5 (five) copies thereof to the
Authority and 2 (two) copies to the Independent Engineer. The Maintenance Manual shall be
revised and updated once every 3 (three) years and the provisions of this Clause 17.3 shall
apply, mutatis mutandis.
17.3.2 Without prejudice to the provision of Clause 17.3.1, the Maintenance Manual shall, in
particular, include provisions for maintenance of Project Assets and shall provide for life cycle
maintenance, routine maintenance and reactive maintenance which may be reasonably
necessary for maintenance and repair of the Project Assets, including replacement thereof, such
that their overall condition conforms to Good Industry Practice.
17.4 Maintenance Programme
17.4.1 On or before COD and no later than 45 (forty five) days prior to the beginning of each
Accounting Year during the Operation Period, as the case may be, the Concessionaire shall
provide to the Authority and the Independent Engineer, its proposed annual programme of
preventive, urgent and other scheduled maintenance (the “Maintenance Programme”) to
comply with the Maintenance Requirements, Maintenance Manual and Safety Requirements as
per Specifications and Standards. Such Maintenance Programme shall include:
(a) preventive maintenance schedule;
(b) arrangements and procedures for carrying out urgent repairs;
(c) criteria to be adopted for deciding maintenance needs;
(d) intervals and procedures for carrying out inspection of all elements of the XXX
Ropeway;
(e) intervals at which the Concessionaire shall carry out periodic maintenance;
(f) arrangements and procedures for carrying out safety related measures; and
(g) intervals for major maintenance works and the scope thereof.
17.4.2 Within 15 (fifteen) days of receipt of the Maintenance Programme, the Independent Engineer
shall review the same and convey its comments to the Concessionaire with particular reference
to its conformity with the Maintenance Requirements, Maintenance Manual and Safety
Requirements.
71
17.4.3 The Concessionaire may modify the Maintenance Programme as may be reasonable in the
circumstances, and the procedure specified in Clauses 17.4.1 and 17.4.2 shall apply mutatis
mutandis to such modifications.
17.5 Safety, breakdowns and accidents
17.5.1 The Concessionaire shall ensure safe conditions for the Users, and in the event of unsafe
conditions, it shall follow the relevant operating procedures as per Specifications and Standards,
and removal of obstruction and debris without delay. Such procedures shall conform to the
provisions of this Agreement, Applicable Laws, Applicable Permits and Good Industry
Practice.
17.5.2 The Concessionaire’s responsibility for rescue operations on the XXX Ropeway shall be
limited to getting the passengers to the nearest station for disembarkation. The technology
provider shall define procedure/ capability under such circumstances. Alternatively, rescue
operations procedure to be followed as per Specifications and Standards with the responsibility
of the Concessionaire to get people safely on the ground.
17.6 De-commissioning due to Emergency
17.6.1 If, in the reasonable opinion of the Concessionaire, there exists an Emergency which warrants
de-commissioning and closure to traffic of the whole or any part of the XXX Ropeway, the
Concessionaire shall be entitled to de-commission and close the whole or any part of the XXX
Ropeway to traffic for so long as such Emergency and the consequences thereof warrant;
provided that such decommissioning and particulars thereof shall be notified by the
Concessionaire to the Authority without any delay, and the Concessionaire shall diligently carry
out and abide by any reasonable directions that the Authority may give for dealing with such
Emergency.
17.6.2 The Concessionaire shall re-commission the XXX Ropeway or the affected part thereof as
quickly as practicable after the circumstances leading to its decommissioning and closure have
ceased to exist or have so abated as to enable the Concessionaire to re-commission the XXX
Ropeway and shall notify the Authority of the same without any delay.
17.6.3 Any decommissioning or closure of any part of the XXX Ropeway and the re-commissioning
thereof shall, as soon as practicable, be brought to the notice of affected persons by means of
public announcements/notice.
17.7 Damages for breach of maintenance obligations
17.7.1 In the event that the Concessionaire fails to repair or rectify any defect or deficiency set forth
in the Maintenance Requirements within the period specified therein, it shall be deemed to be
in breach of this Agreement and the Authority shall be entitled to recover Damages, to be
calculated and paid for each day of delay until the breach is cured, at the higher of (a) 0.5%
(zero point five per cent) of Average Daily Fee, and (b) 0.1% (zero point one per cent) of the
cost of such repair or rectification as estimated by the Independent Engineer. Recovery of such
Damages shall be without prejudice to the rights of the Authority under this Agreement,
including the right of Termination thereof.
17.7.2 The Damages set forth in Clause 17.7.1 may be assessed and specified forthwith by the
Independent Engineer; provided that the Authority may, in its discretion, demand a smaller sum
72
as Damages, if in its opinion, the breach has been cured promptly and the Concessionaire is
otherwise in compliance with its obligations hereunder. The Concessionaire shall pay such
Damages forthwith and, in the event, that it contests such Damages, the Dispute Resolution
Procedure shall apply.
17.8 Authority’s right to take remedial measures
17.8.1 In the event the Concessionaire does not maintain and/or repair the XXX Ropeway or any part
thereof in conformity with the Maintenance Requirements, the Maintenance Manual or the
Maintenance Programme, as the case may be, and fails to commence remedial works within 15
(fifteen) days of receipt of the O&M Inspection Report or a notice in this behalf from the
Authority or the Independent Engineer, as the case may be, the Authority shall, without
prejudice to its rights under this Agreement including Termination thereof, be entitled to
undertake such remedial measures at the risk and cost of the Concessionaire, and to recover its
cost from the Concessionaire. In addition to recovery of the aforesaid cost, a sum equal to 20%
(twenty per cent) of such cost shall be paid by the Concessionaire to the Authority as Damages.
For the avoidance of doubt, the right of the Authority under this Clause 17.8.1 shall be without
prejudice to its rights and remedies provided under Clause 17.7.
17.8.2 The Authority shall have the right, and the Concessionaire hereby expressly grants to the
Authority the right, to recover the costs and Damages specified in Clause 17.8.1 directly from
the Escrow Account as if such costs and Damages were O&M Expenses, and for that purpose,
the Concessionaire hereby agrees to give irrevocable instructions to the Escrow Bank to make
payment from the Escrow Account in accordance with the instructions of the Authority under
this Clause 17.8.2 and debit the same to O&M Expenses.
17.9 Overriding powers of the Authority
17.9.1 If in the reasonable opinion of the Authority, the Concessionaire is in material breach of its
obligations under this Agreement and, in particular, the Maintenance Requirements, and such
breach is causing or likely to cause material hardship or danger to the Users, the Authority may,
without prejudice to any of its rights under this Agreement including Termination thereof, by
notice require the Concessionaire to take reasonable measures immediately for rectifying or
removing such hardship or danger, as the case may be.
17.9.2 In the event that the Concessionaire, upon notice under Clause 17.9.1, fails to rectify or remove
any hardship or danger within a reasonable period, the Authority may exercise overriding
powers under this Clause 17.9.2 and take over the performance of any or all the obligations of
the Concessionaire to the extent deemed necessary by it for rectifying or removing such
hardship or danger; provided that the exercise of such overriding powers by the Authority shall
be of no greater scope and of no longer duration than is reasonably required hereunder; provided
further that any costs and expenses incurred by the Authority in discharge of its obligations
hereunder shall be deemed to be O&M Expenses, and the Authority shall be entitled to recover
them from the Concessionaire in accordance with the provisions of Clause 17.8 along with the
Damages specified therein.
17.9.3 In the event of a national emergency, civil commotion or any other act specified in Clause 31.3,
the Authority may take over the performance of any or all the obligations of the Concessionaire
to the extent deemed necessary by it or as directed by the Government, and exercise such control
over the XXX Ropeway or give such directions to the Concessionaire as may be deemed
necessary; provided that the exercise of such overriding powers by the Authority shall be of no
73
greater scope and of no longer duration than is reasonably required in the circumstances which
caused the exercise of such overriding power by the Authority. For the avoidance of doubt, it
is agreed that the consequences of such action shall be dealt in accordance with the provisions
of Article 31 It is also agreed that the Concessionaire shall comply with such instructions as
the Authority may issue in pursuance of the provisions of this Clause 17.9, and shall provide
assistance and cooperation to the Authority, on a best effort basis, for performance of its
obligations hereunder.
17.10 Restoration of loss or damage to XXX Ropeway
Save and except as otherwise expressly provided in this Agreement, in the event that the XXX
Ropeway or any part thereof suffers any loss or damage during the Concession Period from any
cause whatsoever, the Concessionaire shall, at its cost and expense, rectify and remedy such
loss or damage forthwith so that the XXX Ropeway conforms to the provisions of this
Agreement.
17.11 Modifications to the XXX Ropeway
The Concessionaire shall not carry out any material modifications to the XXX Ropeway save
and except where such modifications are necessary for the XXX Ropeway to operate in
conformity with the Specifications and Standards, Maintenance Requirements, Good Industry
Practice and Applicable Laws; provided that the Concessionaire shall notify the Independent
Engineer of the proposed modifications along with particulars thereof at least 15 (fifteen) days
before commencing work on such modifications and shall reasonably consider any suggestions
that the Independent Engineer may make within 15 (fifteen) days of receiving the
Concessionaire’s proposal. For the avoidance of doubt, all modifications made hereunder shall
comply with Specifications and Standards, Applicable Laws and the provisions of this
Agreement.
17.12 Excuse from performance of obligations
The Concessionaire shall not be considered in breach of its obligations under this Agreement if
any part of the XXX Ropeway is not available to traffic on account of any of the following for
the duration thereof:
(a) an event of Force Majeure;
(b) measures taken to ensure the safe use of the XXX Ropeway except when unsafe
conditions occurred because of failure of the Concessionaire to perform its obligations
under this Agreement; or
(c) compliance with a request from the Authority or the directions of any Government
Instrumentality, the effect of which is to close all or any part of the XXX Ropeway.
Notwithstanding the above, the Concessionaire shall keep all unaffected parts of the XXX
Ropeway open to traffic provided they can be operated safely.
17.13 Barriers and diversions
The Authority shall procure that during the Operation Period, no barriers are erected or placed
by any Government Instrumentality on the XXX Ropeway except for reasons of Emergency,
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national security, law and order or collection of inter-state taxes. The Authority shall also make
best endeavours to procure that no Government Instrumentality shall undertake or cause to be
undertaken, except for reasons of Emergency, national security or law and order, any diversions
of traffic from, or closing down of approach roads to the XXX Ropeway that may cause a
material adverse effect on the flow of traffic to and from the XXX Ropeway.
17.14 Advertising on the Site
The Concessionaire shall be permitted commercial advertising, display or hoarding at specific
places on the Site. All advertising on the XXX Ropeway shall also conform to Good Industry
Practice. For the avoidance of doubt, it is agreed that the rights of the Concessionaire hereunder
shall be subject to Applicable Laws, as in force and effect from time to time, and no
compensation shall be claimed on account thereof.
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ARTICLE 18: SAFETY REQUIREMENTS
18.1 Safety Requirements
18.1.1 The Concessionaire shall comply with the provisions of this Agreement, Applicable Laws,
Applicable Permits, Safety Manual and conform to Good Industry Practice for securing the
safety of the Users. In particular, the Concessionaire shall develop, implement and administer
a surveillance and safety programme for providing a safe environment on or about the XXX
Ropeway, and shall comply with the safety requirements set forth in Schedule-M (the “Safety
Requirements”).
18.1.2 The Authority shall appoint an experienced and qualified firm or organisation (“Safety
Consultant”) for carrying out safety audit of the XXX Ropeway in accordance with the Safety
Requirements and shall take all other actions necessary for securing compliance with the Safety
Requirements.
18.2 Expenditure on Safety Requirements
All costs and expenses arising out of or relating to Safety Requirements shall be borne by the
Concessionaire to the extent such costs and expenses form part of the works and services
included in the Scope of the Project, and works and services, if any, not forming part of the
Scope of the Project shall be undertaken in accordance with the provisions of Article 16. Costs
and expenses on works and services not covered hitherto before and arising out of Safety
Requirements shall, subject to the provisions of Clause 16.3.2, be borne from out of a dedicated
safety fund (the “Safety Fund”) to be funded, owned and operated by the Authority or a
substitute thereof.
[18.3 Safety Manual
18.3.1 The Authority shall lay emphasis on aspects of User safety, system reliability and availability
for the XXX Ropeways and require the Concessionaire to submit a safety manual ( the “Safety
Manual”) no later than 180 (one hundred and eighty) days prior to the Scheduled Date which
shall be in compliance with the requirements specified in Schedule – M. The Concessionaire
shall provide 5 (five) copies thereof to the Authority and 2 (two) copies to the Independent
Engineer. The Safety Manual shall be revised and updated once every 3 (three) years and the
provisions of this Clause 18.3 shall apply, mutatis mutandis.]
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ARTICLE 19: MONITORING OF OPERATION AND MAINTENANCE
19.1 Monthly status reports
During Operation Period, the Concessionaire shall, no later than 7 (seven) days after the close
of each month, furnish to the Authority and the Independent Engineer a monthly report stating
in reasonable detail the condition of the XXX Ropeway including its compliance or otherwise
with the Maintenance Requirements, Maintenance Manual, Safety Manual, Maintenance
Programme and Safety Requirements, and shall promptly give such other relevant information
as may be required by the Independent Engineer. In particular, such report shall separately
identify and state in reasonable detail the defects and deficiencies that require rectification.
19.2 Inspection
The Independent Engineer shall inspect the XXX Ropeway at least once a month. It shall make
a report of such inspection (the “O&M Inspection Report”) stating in reasonable detail the
defects or deficiencies, if any, with particular reference to the Maintenance Requirements,
Maintenance Manual, Safety Manual, the Maintenance Programme and Safety Requirements,
and send a copy thereof to the Authority and the Concessionaire within 7 (seven) days of such
inspection.
19.3 Tests
Any tests warranted by maintenance requirements have to comply with applicable
Specifications and Standards which will be carried out by the Concessionaire and furnish results
of such tests to the Independent Engineer.
One half of the costs incurred on such tests, and to the extent certified by the Independent
Engineer as reasonable, shall be reimbursed by the Authority to the Concessionaire.
19.4 Remedial measures
19.4.1 The Concessionaire shall repair or rectify the defects or deficiencies, if any, set forth in the
O&M Inspection Report or in the test results referred to in Clause 19.3 and furnish a report in
respect thereof to the Independent Engineer and the Authority within 15 (fifteen) days of
receiving the O&M Inspection Report or the test results, as the case may be; provided that
where the remedying of such defects or deficiencies is likely to take more than 15 (fifteen)
days, the Concessionaire shall submit progress reports of the repair works once every week
until such works are completed in conformity with this Agreement.
19.4.2 The Independent Engineer shall require the Concessionaire to carry out or cause to be carried
out tests, at its own cost, to determine that such remedial measures have brought the XXX
Ropeway into compliance with the Maintenance Requirements and the procedure set forth in
this Clause 19.4 shall be repeated until the XXX Ropeway conforms to the Maintenance
Requirements. In the event that remedial measures are not completed by the Concessionaire in
conformity with the provisions of this Agreement, the Authority shall be entitled to recover
Damages from the Concessionaire under and in accordance with the provisions of Clause 17.8.
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19.5 Monthly Fee Statement
During the Operation Period, the Concessionaire shall furnish to the Authority, within 7 (seven)
days of completion of each month, a statement of Fee substantially in the form set forth in
Schedule-Q (the “Monthly Fee Statement”).The Concessionaire shall also furnish to the
Authority such other information as the Authority may reasonably require, at specified
intervals, in discharge of its statutory functions.
19.6 Reports of unusual occurrence
The Concessionaire shall, prior to the close of each day, send to the Authority and the
Independent Engineer, by facsimile or e-mail, a report stating accidents and unusual
occurrences on the XXX Ropeway relating to the safety and security of the Users and XXX
Ropeway. A weekly and monthly summary of such reports shall also be sent within 3 (three)
days of the closing of each week and month, as the case may be. For the purposes of this Clause
19.6, accidents and unusual occurrences on the XXX Ropeway shall include:
(a) death or injury to any person;
(b) damaged or dislodged fixed equipment;
(c) any obstruction on the XXX Ropeway, which results in slow down of the services being
provided by the Concessionaire;
(d) disablement of any equipment during operation;
(e) communication failure affecting the operation of XXX Ropeway;
(f) smoke or fire; and
(g) such other relevant information as may be required by the Authority or the Independent
Engineer.
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ARTICLE 20: KEY PERFORMANCE INDICATORS
20.1 Key Performance Indicators
Without prejudice to the obligations specified in this Agreement, the Concessionaire shall
operate the XXX Ropeways such that it achieves or exceeds the performance indicators
specified in this Article 20 (the “Key Performance Indicators”)
20.2 Operation of Ropeway Cabins
20.2.1 The XXX Ropeways shall be operated such that the service shall operate between [XXX hours]
and [YYY hours] at the service levels specified in this Clause 20.2; provided that the duration
of services may be customized as per the requirements specified in RFP.
20.2.2 The rope speed is variable and can be adjusted to meet the traffic requirements subject to a
maximum of 6 (six) meters/second for monocable systems, 8 (eight) meters/second for tricable
systems, 12 (twelve) meters/second for aerial tramway systems and 14 (fourteen)
meters/second for cable liners (automated people mover) systems.
20.2.3 The Concessionaire shall at all times ensure that:
(a) the ropeway cabins are clean, hygienic and free of odour; and
(b) there is adequate lighting within the cabin and station in conformity with the
Specifications and Standards.
20.3 Provisions of Cabins
The number of passengers shall not exceed the design capacity of the cabin.
20.4 Operation of Terminal Stations
20.4.1 The Parties hereto agree that the primary purpose of the station is to provide space for the Users
who normally stay at a station for a period of time no longer than necessary, to wait for and
enter the cabin or to exit the station or after exiting from the cabin.
20.4.2 The design, construction, operation and maintenance of the stations shall be such that:
(a) a User alighting at the platform should be able to reach a point outside the station in
not more than [3 (three)] minutes of brisk walking and a User crossing the fee
collection point should be able to reach the platform in not more than [2 (two)] minutes
of brisk walking; and
(b) in case of emergency, evacuation from any point on the platform to a point of safety
in an open space within or outside the station shall not exceed [100 (one hundred)]
meters.
20.4.3 The entry and exit gates, including the automatic ticket verification machines, shall be so
designed and operated that the waiting time for the Users shall not exceed [2 (two)] minutes.
20.4.4 The Concessionaire shall provide adequate number of ticket vending machines and ticket
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counters such that waiting time for the Users shall not exceed [2 (two)] minutes.
20.4.5 The Concessionaire shall at all times ensure that:
(a) the stations and its toilets are clean, hygienic and free of odour;
(b) there is adequate lighting within the stations in conformity with the Specifications and
Standards;
(c) the temperature in common areas within the station is maintained in accordance with
Maintenance Requirements;
(d) all entry and exit points, passages, circulation areas and vehicular traffic are so
managed that they do not have a queue with a waiting time exceeding 5 (five) minutes;
(e) all lifts, escalators, walkalators, train information systems, public address systems and
lighting systems function efficiently, and their availability is no less than 98% (ninety
eight per cent) in a month; and
(f) 50% (fifty) percent of all phone calls relating to the XXX Ropeway are answered within
30 (thirty) seconds.
20.5 Monthly status report
During Operation Period, the Concessionaire shall, no later than 7 (Seven) days after the close
of each month, furnisha monthly report stating in detail the compliance with all the Key
Performance Indicators specified in this Article 20 along with an analysis of the reasons for
failures, if any, and the strategies for addressing the same and for otherwise improving the
operational performance of the XXX Ropeway.
20.6 Penalty for shortfall in performance
The Concessionaire shall ensure and procure compliance of each of the Key Performance
Indicators specified in this Article 20 and for any shortfall in average performance during a
quarter, it shall pay Damages within 30 (thirty) days of the quarter in which the shortfall
occurred. The Damages due and payable under this Clause 20.6 shall be determined at the rate
of [1% (one per cent) of the total revenue from fee in the respective quarter for every shortfall
of 10% (ten per cent)] in any single performance indicator specified in this Article 20;
provided, however, that the Authority may waive the Damages, in part or full, if it is satisfied
that the Concessionaire has been carrying out its obligations diligently and efficiently and that
the shortfall to be waived was on account of reasons beyond the control of the Concessionaire.
20.7 Passenger Charter
The Concessionaire shall publish and implement a charter articulating the rights and
expectations of Users (the “Passenger Charter”) substantially in the form specified in
Schedule-T. The Concessionaire shall at all times be accountable and liable to Users in
accordance with the provisions of the Passenger Charter and Applicable Laws.
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ARTICLE 21: EMERGENCY MEDICAL AID
21.1 Medical Aid Posts
The Concessionaire shall have requisite first aid kits at each station as well as the basic
first aid training to the ropeway operators (similar to first aid kits and training of air
hostesses in airlines).
For providing emergency medical aid during the Operation Period, as set forth in this
Agreement, the Concessionaire shall assist the State Government [or a substitute
thereof to be designated by the Authority] in setting up and operating a medical aid
post (the “Medical Aid Post”) at [each of the terminals with round-the-clock
ambulance services for victims of accidents on the XXX Ropeway.]
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ARTICLE 22: INDEPENT ENGINEER
22.1 Appointment of Independent Engineer
The Authority shall appoint a consulting engineering firm, from a panel of 10 (ten)
firms or bodies corporate, constituted by the Authority substantially in accordance with
the selection criteria set forth in Schedule-I, to be the independent consultantunder this
Agreement (the “Independent Engineer”). The appointment shall be made no later
than 90 (ninety) days from the date of this Agreement and shall be for a period of 3
(three) years. On expiry or termination of the aforesaid period, the Authority may in its
discretion renew the appointment, or appoint another firm from a fresh panel
constituted pursuant to Schedule-I to be the Independent Engineerfor a term of 3 (three)
years, and such procedure shall be repeated after expiry of each appointment.
22.2 Duties and functions
22.2.1 The Independent Engineer shall discharge its duties and functions substantially in
accordance with the terms of reference set forth in Schedule-I. For the avoidance of
doubt, the Parties expressly agree that the functions of the Independent Engineer under
this Article 22 shall not include Real Estate Development.
22.2.2 The Independent Engineer shall submit regular periodic reports (at least once every
month) to the Authority in respect of its duties and functions set forth in Schedule-I.
22.2.3 True copy of all communications sent by the Authority to the Independent Engineer
and by the Independent Engineer to the Authority, shall be sent forthwith by the
Independent Engineer to the Concessionaire.
22.2.4 True copy of all communications sent by the Independent Engineer to the
Concessionaire and by the Concessionaire to the Independent Engineer shall be sent
forthwith by the Independent Engineer to the Authority.
22.2.5 Independent Engineer shall periodically submit data on the progress / status of
construction works, financial progress and other requisite details at such interval, as
mentioned in the TOR, which shall enable the Authority for updating the project
specific website.
22.3 Remuneration
The remuneration, cost and expenses of the Independent Engineer shall be paid by the
Authority. One-half of such remuneration, cost and expenses shall be reimbursed by
the Concessionaire to the Authority within 15 (fifteen) days of receiving a statement of
expenditure from the Authority.
22.4 Termination of appointment
22.4.1 The Authority may, in its discretion, terminate the appointment of the Independent
Engineer at any time, but only after appointment of another Independent Engineer in
accordance with Clause 22.1.
22.4.2 If the Concessionaire has reason to believe that the Independent Engineer is not
discharging its duties and functions in a fair, efficient and diligent manner, it may make
a written representation to the Authority and seek termination of the appointment of
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the Independent Engineer. Upon receipt of such representation, the Authority shall hold
a tripartite meeting with the Concessionaire and Independent Engineer for an amicable
resolution of the Dispute, and if any difference or disagreement between the Authority
and the Concessionaire remains unresolved, the Dispute shall be settled in accordance
with the Dispute Resolution Procedure. In the event that the appointment of the
Independent Engineer is terminated hereunder, the Authority shall appoint forthwith
another Independent Engineer in accordance with Clause 22.1.
22.5 Authorised signatories
The Authority shall require the Independent Engineer to designate and notify to the
Authority and the Concessionaire up to 2 (two) persons employed in its firm to sign for
and on behalf of the Independent Engineer, and any communication or document
required to be signed by the Independent Engineer shall be valid and effective only if
signed by any of the designated persons; provided that the Independent Engineer may,
by notice in writing, substitute any of the designated persons by any of its employees.
22.6 Dispute resolution
If either Party disputes any advice, instruction, decision, direction or award of the
Independent Engineer, or, as the case may be, the assertion or failure to assert
jurisdiction, the Dispute shall be resolved in accordance with the Dispute Resolution
Procedure.
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PART IV: FINANCIAL COVENANTS
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ARTICLE 23: FINANCIAL CLOSE
23.1 Financial Close
23.1.1 The Concessionaire hereby agrees and undertakes that it shall achieve Financial Close
within 180 (one hundred and eighty) days from the date of this Agreement and in the
event of delay, it shall be entitled to a further period not exceeding [120 (one hundred
and twenty)] days, subject to payment of Damages to the Authority in a sum calculated
at the rate of 0.1% (zero point one per cent) of the Performance Security for each day
of delay, and for a further period not exceeding [80 (eighty)] days, subject to payment
of Damages at the rate specified in Clause 4.3; provided that the Damages specified
herein shall be payable every week in advance and the period beyond the said 180 (one
hundred and eighty) days shall be granted only to the extent of Damages so paid;
provided further that no Damages shall be payable if such delay in Financial Close has
occurred solely as a result of any default or delay by the Authority in procuring
satisfaction of the Conditions Precedent specified in Clause 4.1.2 or due to Force
Majeure. For the avoidance of doubt, the Damages payable hereunder by the
Concessionaire shall be in addition to the Damages, if any, due and payable under the
provisions of Clause 4.3.
23.1.2 The Concessionaire shall, upon occurrence of Financial Close, notify the Authority
forthwith, and shall have provided to the Authority, at least 2 (two) days prior to
Financial Close, 3 (three) true copies of the Financial Package and the Financial Model,
duly attested by a Director of the Concessionaire, along with 3 (three) soft copies of
the Financial Model in MS Excel version or any substitute thereof, which is acceptable
to the Senior Lenders.
23.2 Termination due to failure to achieve Financial Close
23.2.1 Notwithstanding anything to the contrary contained in this Agreement, but subject to
Clause 31.6.1 , in the event that Financial Close does not occur, for any reason
whatsoever, within the period set forth in Clause 23.1.1 or the extended period
provided thereunder, all rights, privileges, claims and entitlements of the
Concessionaire under or arising out of this Agreement shall be deemed to have been
waived by, and to have ceased with the concurrence of the Concessionaire, and the
Concession Agreement shall be deemed to have been terminated by mutual agreement
of the Parties. For the avoidance of doubt, it is agreed that in the event the Parties hereto
have, by mutual consent, determined the Appointed Date to precede the Financial
Close, the provisions of this Clause23.2.1 shall not apply.
23.2.2 Upon Termination under Clause 23.2.1 1, the Authority shall be entitled to encash the
Bid Security and appropriate the proceeds thereof as Damages; provided, however, that
if Financial Close has not occurred solely as a result of the Authority being in default
of any of its obligations under Clause 4.2, it shall, upon Termination, return the Bid
Security forthwith along with the Damages due and payable under Clause 4.2. For the
avoidance of doubt, it is expressly agreed that if the Bid Security shall have been
substituted by Performance Security, the Authority shall be entitled to encash therefrom
an amount equal to Bid Security.
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ARTICLE 24: GRANT
24.1 Grant
24.1.1 The Authority agrees to provide to the Concessionaire cash support by way of an
outright grant equal to the sum set forth in the Bid, namely, Rs. ………… (Rupees in
words……………………), in accordance with the provisions of this Article 24 (the
“Grant”).
24.1.2 The Grant shall be disbursed to the Concessionaire by way of Equity Support in
accordance with the provisions of Clause 24.2
24.2 Equity Support
24.2.1 Subject to the conditions specified in this Clause 24.2, the Grant shall be credited to
the Escrow Account and shall be applied by the Concessionaire for meeting the Total
Project Cost (the “Equity Support”).
24.2.2 The Equity Support shall not exceed the sum specified in the Bid and as accepted by
the Authority but shall in no case be greater than twice the Equity and shall be further
restricted to a sum not exceeding 40% (forty per cent) of the Total Project Cost.
Provided, however that in the event Equity Support shall exceed 20% (twenty per cent)
of the Total Project Cost, the amount in excess of such 20% (twenty per cent) shall be
released against an irrevocable bank guarantee for 2 (two) years which may be invoked
if the Concessionaire commits any breach of the obligations specified in this
Agreement. For the avoidance of doubt, the Total Project Cost to be reckoned for the
purposes of this Clause 24.2.2 shall include Equity Support.
24.2.3 Equity Support shall be due and payable to the Concessionaire after it has expended
the Equity and shall be disbursed proportionately along with the loan funds thereafter
remaining to be disbursed by the Senior Lenders under the Financing Agreements. The
Authority shall disburse each tranche of the Equity Support as and when due, but no
later than 15 (fifteen) days of receiving a request from the Concessionaire along with
necessary particulars.
24.2.4 In the event of occurrence of a Concessionaire Default, disbursement of Equity Support
shall be suspended till such Concessionaire Default has been cured by the
Concessionaire.
24.3 Premium
$
The Concessionaire acknowledges and agrees that as set forth in the Bid, it shall pay to
the Authority for each year of the Concession Period, but commencing from the day
falling after ......... (........) days from the COD, a premium (the “Premium”) in the form
of an additional Concession Fee, as set forth in Clause 25.2.1 , and in the manner set
forth in Clause 25.3 .}
$
In the event that the Concessionaire does not seek any Grant from the Government and offers to pay a
Premium instead, the provisions of Clauses 25.1, 25.2 and 25.3 relating to Grant shall be substituted by
the provisions of Clause 25.4 relating to Premium, which Clause shall be renumbered.
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ARTICLE 25: CONCESSION FEE
25 .1 Concession Fee
In consideration of the grant of Concession, the Concessionaire shall pay to the
Authority by way of concession fee (the “Concession Fee”) a sum of Re. 1 (Rupee
one) per annum {and the Premium specified in Clause 25.2}.
25.2 Additional Concession Fee
$
25.2.1 Without prejudice to the provisions of Clause 25.1 the Concessionaire agrees to pay to
the Authority on COD , a Premium in the form of an additional Concession Fee equal
to Rs.______________(in words) as due to the Authority during that year, due and
payable on a pro rata basis, for the period remaining in that year; and for each
subsequent year throughout the Concession Period, the Premium shall be determined
by increasing the amount of Premium in the respective year by an additional 5% (five
percent) as compared to the immediately preceding year.
For the avoidance of doubt, it is clarified the term ‘Premium’ as referred in para above
shall be as applicable for one financial year. In accordance with and in compliance with
the terms of this Agreement, if payment of such ‘Premium’ is due and payable only for
part of such financial year, then only pro-rata payments @ 1/12th of such Premium
shall be payable for each month of such part financial year for which such Premium
payments are due and payable. For the purpose of assessing the amount due for
payment on such payment of Premium, part of the month shall be deemed to be a full
month. In such circumstances the subsequent year as referred to in para above, for the
purpose of annual escalation, shall commence on 1st April of the immediately
succeeding financial year.
25.2.2 The Premium payable under Clause 25.2.1 shall be deemed to be part of the Concession
Fee for the purposes of this Agreement.
25.3 Payment of Concession Fee
The Concession Fee payable under the provisions of this Article 25 shall be due and
payable in half yearly instalments within 7 (seven) days from 30 September and 31
March of each year.
$
In the event of the Concessionaire seeking a Grant under Clause 25.1 of this Agreement, Clauses 26.2
to 26.5 shall be omitted.
.
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ARTICLE 26: USER FEE
26.1 Collection and appropriation of Fee
26.1.1 On and from the COD till the Transfer Date, the Concessionaire shall have the sole and
exclusive right to demand, collect and appropriate Fee from the Users subject to and in
accordance with the Fee Notification as issued by the Authority.
26.1.2 The Concessionaire acknowledges and agrees that upon payment of Fee, any User shall
be entitled to use the XXX Ropeway and the Concessionaire shall not place, or cause
to be placed, any restriction on such use, except to the extent specified in any
Applicable Law, Applicable Permit or the provisions of this Agreement.
26.2 Revision of Fee
26.2.1 The Parties hereto acknowledge and agree that the Fee shall be revised annually on
April 1 subject to and in accordance with the provisions of the Fee Notification.
26.3 Display of Fee Rates
26.3.1 The Concessionaire shall conspicuously display the Fee structure at each of the
terminal stations of the Project at least in English, Hindi and local language.
26.3.2 The Concessionaire shall, from time to time, inform the Authority of the applicable
Fee. Such information shall be communicated at least **** days prior to the revision
of Fee under and in accordance with this Agreement.
26.3.3 The Concessionaire shall not revise, display or collect any amounts in excess of the
rates of Fee payable under this Agreement. In the event any excess amounts are
collected by or on behalf of the Concessionaire, it shall, upon receiving a notice to this
effect from the Authority, refund such excess amounts to the Authority along with
Damages equal to ****percent thereof.
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ARTICLE 27: EFFECT OF VARIATIONS IN TRAFFIC GROWTH
27.1 Effect of variations in traffic growth
27.1.1 The Authority and the Concessionaire acknowledge that the traffic on the last day of
the month of [month, year] (the “Target Date 1”)
4
is estimated to be ***** passengers
per day (the “Target Traffic 1”)
5
and hereby agree that for determining the
modifications to the Concession Period under this Article 27, the actual traffic on
Target Date 1 shall be derived by computing the average of the traffic, on the date that
falls one year prior to the Target Date 1, on Target Date 1 and on the first anniversary
of Target Date 1 (the “Actual Average Traffic 1”).
27.1.2 Further, the Authority and the Concessionaire acknowledge that the traffic on the last
day of the month of [month, year] (the “Target Date 2”)
6
is estimated by increasing
the Actual Average Traffic 1 by 5% (five per cent) per annum from the Target Date 1
till Target Date 2 (the “Target Traffic 2”) and hereby agree that for determining the
modifications to the revised Concession Period, modified as per Target Traffic 1 and
Actual Average Traffic 1 in Clause 27.2.1 (A) ) or Clause 27.2.2 (A) ), the actual traffic
on Target Date 2 shall be derived by computing the average of the traffic , on the date
that falls one year prior to the Target Date 2, on Target Date 2 and on the first
anniversary of Target Date 2 (the “Actual Average Traffic 2”).
27.1.3 In the event that the Actual Average Traffic 1 shall have fallen short of the Target
Traffic 1 by more than [2.5% (two point five per cent)] thereof or exceeded the Target
Traffic 1 by more than [2.5% (two point five per cent)] thereof, the Concession Period
shall be deemed to be modified in accordance with Clause 27.2 For the avoidance of
doubt, in the event of any Dispute relating to Actual Average Traffic, the Dispute
Resolution Procedure shall apply.
27.1.4 In the event that the Actual Average Traffic 2 shall have fallen short of the Target
Traffic 2 by more than [2.5% (two point five per cent)] thereof or exceeded the Target
Traffic 2 by more than [2.5% (two point five per cent)] thereof, the Concession Period
shall be deemed to be modified in accordance with Clause 27.2 For the avoidance of
doubt, in the event of any Dispute relating to Actual Average Traffic, the Dispute
Resolution Procedure shall apply.
27.2 Modification in the Concession Period
27.2.1 Subject to the provisions of Clause 27.1.2 or 27.1.3 in case Actual Average Traffic falls
short of Target Traffic, the modification shall be as under:
(A) In the event Actual Average Traffic 1 shall have fallen short of the respective Target
Traffic 1, then for every 1% (one per cent) shortfall as compared to the Target Traffic
4
The Target Date 1 to be specified here shall be between 7 (seven) and 10 (ten) years from the date of
this Agreement.
5
The Target Traffic 1 shall be a number based on the traffic report prepared by the Technical Consultant
for the XXX Ropeway. [It shall be based on 5% Compounded Annual Growth Rate (CAGR) over the
base traffic estimated by the Technical Consultant for the XXX Ropeway].
6
The Target Date 2 to be specified here shall be the minimum of 10 (ten) years from Target Date 1 or 7
(seven) years prior to the date of expiry of the Concession Period, whichever is earlier.
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1, the Concession Period shall, subject to payment of Concession Fee in accordance
with this Agreement, be increased by 1.5% (one point five per cent) thereof; provided
that such increase in Concession Period shall not in any case exceed 20% (twenty per
cent) of the Concession Period. For the avoidance of doubt, and by way of illustration,
it is agreed that in the event of a shortfall of 10.6% (ten point six per cent) in Target
Traffic 1, the Concession Period shall be increased by 15% (fifteen per cent) thereof.
Notwithstanding anything to the contrary contained in this Agreement, the Authority
and the Concessionaire agree and acknowledge that upon modification as per Target
Traffic 1 and Actual Average Traffic 1, the modified Concession Period shall become
the Concession Period for the purpose of this XXX Ropeway.
(B) In the event Actual Average Traffic 2 shall have fallen short of the respective Target
Traffic 2, then for every 1% (one per cent) shortfall as compared to the Target Traffic
2, the Concession Period shall, subject to payment of Concession Fee in accordance
with this Agreement, be increased by 1.5% (one point five per cent) thereof; provided
that such increase in Concession Period shall not in any case exceed 20% (twenty per
cent) of the Concession Period. Notwithstanding anything to the contrary contained in
this Agreement, the Authority and the Concessionaire agree and acknowledge that upon
modification as per Target Traffic 2 and Actual Average Traffic 2, the modified
Concession Period shall become the Concession Period for the purpose of this XXX
Ropeway.
27.2.2 Subject to the provisions of Clause 27.1.2 or 27.1.3, in case Actual Average Traffic
exceeds the Target Traffic, the modification shall be as under
(A) In the event Actual Average Traffic 1, shall have exceeded the respective Target Traffic
1, then for every 1% (one per cent) excess as compared to the respective Target Traffic
1, the Concession Period shall be reduced by 0.75% (zero point seven five per cent)
thereof; provided that such reduction in Concession Period shall not in any case exceed
10% (ten per cent) thereof. For the avoidance of doubt and by way of illustration, it is
agreed that in the event of an excess of 8.7% (eight point seven per cent) in Target
Traffic 1, the Concession Period shall be reduced by 6% (six per cent) thereof.
Notwithstanding anything to the contrary contained in this Agreement, the Authority
and the Concessionaire agree and acknowledge that upon modification as per Target
Traffic 1 and Actual Average Traffic 1, the modified Concession Period shall become
the Concession Period for the purpose of this XXX Ropeway.
(B) In the event Actual Average Traffic 2, shall have exceeded the respective Target Traffic
2, then for every 1% (one per cent) excess as compared to the respective Target Traffic
2, the Concession Period shall be reduced by 0.75% (zero point seven five per cent)
thereof; provided that such reduction in Concession Period shall not in any case exceed
10% (ten per cent) thereof. Notwithstanding anything to the contrary contained in this
Agreement, the Authority and the Concessionaire agree and acknowledge that upon
modification as per Target Traffic 2 and Actual Average Traffic 2, the modified
Concession Period shall become the Concession Period for the purpose of this XXX
Ropeway.
[Provided further that in lieu of a reduction in Concession Period under this Clause
27.2.2 the Concessionaire may elect to pay, in addition to the Concession Fee that
would be due and payable if the Concession Period were not reduced hereunder, a
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further premium equal to [25% (twenty five per cent)] of the Realisable Fee in the
respective year(s), and upon notice given to this effect by the Concessionaire no later
than 2 (two) years prior to the Transfer Date contemplated under this Clause 27.2.2 the
Authority shall waive the reduction in Concession Period hereunder and recover the
Concession Fee and the aforesaid premium for the period waived hereunder.]
27.2.3 Notwithstanding anything to the contrary contained in this Agreement, if the average
daily passenger traffic in any Accounting Year shall exceed the designed capacity of
the XXX Ropeway, the Authority, at its option and discretion, may cause preparation
of a detailed project report (DPR) for another ropeway in the vicinity of the XXX
Ropeway. For the avoidance of doubt, it is agreed that the Authority shall invite bids
for the construction of such additional ropeway.
27.2.4 If the Concessionaire participates in the bid process for the additional ropeway as set
out in Clause 27.2.3 above and its bid is within a range of [10% (ten per cent)] of the
most competitive bid received, the Concessionaire shall be given the first right of
refusal to match the preferred offer for the development of another ropeway in the
vicinity of the XXX Ropeway, provided that the Concessionaire has satisfactorily
discharged its obligations under the Agreement without any material default (being a
default entitling the Authority to suspend obligations and/ or terminate the Agreement).
If the Concessionaire matches the preferred offer, the Parties shall enter into a suitable
agreement supplemental to this Agreement to give effect to the changes in scope of the
Project, Concession Period and all other necessary and consequential changes.
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ARTICLE 28: ESCROW ACCOUNT
28.1 Escrow Account
28.1.1 The Concessionaire shall, prior to the Appointed Date, open and establish an Escrow
Account with a Bank (the “Escrow Bank”) in accordance with this Agreement read
with the Escrow Agreement.
28.1.2 The nature and scope of the Escrow Account are fully described in the agreement (the
“Escrow Agreement”) to be entered into amongst the Concessionaire, the Authority,
the Escrow Bank and the Senior Lenders through the Lenders’ Representative, which
shall be substantially in the form set forth in Schedule-R.
28.2 Deposits into Escrow Account
The Concessionaire shall deposit or cause to be deposited the following inflows and
receipts into the Escrow Account:
(a) all funds constituting the Financial Package;
(b) all Fee and any other revenues from or in respect of the XXX Ropeway, including
the proceeds of any rentals, deposits, capital receipts or insurance claims; and
(c) all payments by the Authority, after deduction of any outstanding Concession
Fee:
Provided that the Senior Lenders may make direct disbursements to the EPC Contractor
in accordance with the express provisions contained in this behalf in the Financing
Agreements.
28.3 Withdrawals during Concession Period
28.3.1 The Concessionaire shall, at the time of opening the Escrow Account, give irrevocable
instructions, by way of an Escrow Agreement, to the Escrow Bank instructing, inter
alia, that the deposits in the Escrow Account shall be appropriated in the following
order every month, or at shorter intervals as necessary, and if not due in a month then
appropriated proportionately in such month and retained in the Escrow Account and
paid out therefrom in the month when due:
(a) all taxes due and payable by the Concessionaire for and in respect of the XXX
Ropeway;
(b) all payments relating to construction of the XXX Ropeway, subject to and in
accordance with the conditions, if any, set forth in the Financing Agreements;
(c) O&M Expenses, subject to the ceiling, if any, set forth in the Financing
Agreements;
(d) O&M Expenses and other costs and expenses incurred by the Authority in
accordance with the provisions of this Agreement, and certified by the
Authority as due and payable to it;
(e) Concession Fee due and payable to the Authority;
(f) monthly proportionate provision of Debt Service due in an Accounting Year;
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(g) all payments and Damages certified by the Authority as due and payable to it
by the Concessionaire;
(h) Monthly proportionate provision of debt service payments due in an
Accounting Year in respect of Subordinated Debt;
(i) any reserve requirements set forth in the Financing Agreements; and
(j) balance, if any, in accordance with the instructions of the Concessionaire.
28.3.2 The Concessionaire shall not in any manner modify the order of payment specified in
Clause 28.3.1 except with the prior written approval of the Authority.
28.4 Withdrawals upon Termination
28.4.1 Notwithstanding anything to the contrary contained in this Agreement, all amounts
standing to the credit of the Escrow Account shall, upon Termination, be appropriated
in the following order:
(a) all taxes due and payable by the Concessionaire for and in respect of the XXX
Ropeway;
(b) 90% (ninety per cent) of Debt Due excluding Subordinated Debt if required to
be as per the terms of this Agreement;
(c) outstanding Concession Fee;
(d) all payments and Damages certified by the Authority as due and payable to it
by the Concessionaire, including {Premium};
(e) retention and payments relating to the liability for defects and deficiencies set
forth in Article 39;
(f) outstanding Debt Service including the balance of Debt Due;
(g) outstanding Subordinated Debt;
(g) incurred or accrued O&M Expenses;
(h) any other payments required to be made under this Agreement; and
(i) balance, if any, in accordance with the instructions of the Concessionaire:
Provided that no appropriations shall be made under Sub-clause (j) of this Clause 28.4.1
until a Vesting Certificate has been issued by the Authority under the provisions of
Article 38.
28.4.2 The provisions of this Article 28 and the instructions contained in the Escrow
Agreement shall remain in full force and effect until the obligations set forth in Clause
28.4.1 have been discharged.
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ARTICLE 29: INSURANCE
29.1 Insurance during Concession Period
29.1.1 The Concessionaire shall effect and maintain at its own cost, during the Construction
Period and the Operation Period, such insurances for such maximum sums as may be
required under the Financing Agreements, and the Applicable Laws, and such
insurances as may be necessary or prudent in accordance with Good Industry Practice.
The Concessionaire shall also effect and maintain such insurances as may be necessary
for mitigating the risks that may devolve on the Authority as a consequence of any act
or omission of the Concessionaire during the Construction Period. The Concessionaire
shall procure that in each insurance policy, the Authority shall be a co-insured and that
the insurer shall pay the proceeds of insurance into the Escrow Account. For the
avoidance of doubt, the level of insurance to be maintained by the Concessionaire after
repayment of Senior Lenders’ dues in full shall be determined on the same principles
as applicable for determining the level of insurance prior to such repayment of Senior
Lenders’ dues.
29.1.2 The Concessionaire shall, procure and maintain insurance cover including but not
limited to the following:
(a) Standard fire and special perils policy with earthquake cover to insure loss,
damage or destruction of the Project Assets;
(b) Machinery break-down insurance policy for insuring critical plant &
equipment against any damage;
(c) comprehensive third-party liability insurance including injury to or death of
personnel of the Authority or others who may enter the Project;
(d) the Concessionaire's general liability arising out of the Concession;
(e) workmen's compensation insurance, personal accident insurance and medical
insurance;
(f) passenger accident insurance for the passengers on-board the ropeway
project having a valid ticket; and
(g) any other insurance that may be necessary to protect the Concessionaire and
its employees, including all Force Majeure Events that are insurable at
commercially reasonable premiums and not otherwise covered in items (a) to
(f) above.
29.2 Notice to the Authority
No later than 45 (forty-five) days prior to commencement of the Construction Period
or the Operation Period, as the case may be, the Concessionaire shall by notice furnish
to the Authority, in reasonable detail, information in respect of the insurances that it
proposes to effect and maintain in accordance with this Article 29. Within 30 (thirty)
days of receipt of such notice, the Authority may require the Concessionaire to effect
and maintain such other insurances as may be necessary pursuant hereto, and in the
event of any difference or disagreement relating to any such insurance, the Dispute
Resolution Procedure shall apply.
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29.3 Evidence of Insurance Cover
All insurances obtained by the Concessionaire in accordance with this Article 29 shall
be maintained with insurers on terms consistent with Good Industry Practice. Within
15 (fifteen) days of obtaining any insurance cover, the Concessionaire shall furnish to
the Authority, notarised true copies of the certificate(s) of insurance, copies of
insurance policies and premia payment receipts in respect of such insurance, and no
such insurance shall be cancelled, modified, or allowed to expire or lapse until the
expiration of at least 45 (forty five) days after notice of such proposed cancellation,
modification or non-renewal has been delivered by the Concessionaire to the Authority.
29.4 Remedy for failure to insure
If the Concessionaire shall fail to effect and keep in force all insurances for which it is
responsible pursuant hereto, the Authority shall have the option to either keep in force
any such insurances, and pay such premia and recover the costs thereof from the
Concessionaire, or in the event of computation of a Termination Payment, treat an
amount equal to the Insurance Cover as deemed to have been received by the
Concessionaire.
29.5 Waiver of subrogation
All insurance policies in respect of the insurance obtained by the Concessionaire
pursuant to this Article 29 shall include a waiver of any and all rights of subrogation or
recovery of the insurers thereunder against, inter alia, the Authority, and its assigns,
successors, undertakings and their subsidiaries, affiliates, employees, insurers and
underwriters, and of any right of the insurers to any set-off or counterclaim or any other
deduction, whether by attachment or otherwise, in respect of any liability of any such
person insured under any such policy or in any way connected with any loss, liability
or obligation covered by such policies of insurance.
29.6 Concessionaire’s waiver
The Concessionaire hereby further releases, assigns and waives any and all rights of
subrogation or recovery against, inter alia, the Authority and its assigns, undertakings
and their subsidiaries, affiliates, employees, successors, insurers and underwriters,
which the Concessionaire may otherwise have or acquire in or from or in any way
connected with any loss, liability or obligation covered by policies of insurance
maintained or required to be maintained by the Concessionaire pursuant to this
Agreement (other than third party liability insurance policies) or because of deductible
clauses in or inadequacy of limits of any such policies of insurance.
29.7 Application of insurance proceeds
The proceeds from all insurance claims, except life and injury, shall be paid to the
Concessionaire by credit to the Escrow Account and it shall, notwithstanding anything
to the contrary contained in Clause 28.3 apply such proceeds for any necessary repair,
reconstruction, reinstatement, replacement, improvement, delivery or installation of the
XXX Ropeway, and the balance remaining, if any, shall be applied in accordance with
the provisions contained in this behalf in the Financing Agreements.
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ARTICLE 30: ACCOUNTS AND AUDIT
30.1 Audited accounts
30.1.1 The Concessionaire shall maintain books of accounts recording all its receipts
(including all fees and other revenues derived/collected by it from or on account of the
XXX Ropeway and/or its use), income, expenditure, payments (including payments
from the Escrow Account), assets and liabilities, in accordance with this Agreement,
Good Industry Practice, Applicable Laws and Applicable Permits. The Concessionaire
shall provide 2 (two) copies of its Balance Sheet, Cash Flow Statement and Profit and
Loss Account, along with a report thereon by its Statutory Auditors, within 90 (ninety)
days of the close of the Accounting Year to which they pertain and such audited
accounts, save and except where expressly provided to the contrary, shall form the basis
of payments by either Party under this Agreement. The Authority shall have the right
to inspect the records of the Concessionaire during office hours and require copies of
relevant extracts of books of accounts, duly certified by the Statutory Auditors, to be
provided to the Authority for verification of basis of payments, and in the event of any
discrepancy or error being found, the same shall be rectified and such rectified account
shall form the basis of payments by either Party under this Agreement.
30.1.2 The Concessionaire shall, within 30 (thirty) days of the close of each quarter of an
Accounting Year, furnish to the Authority its unaudited financial results in respect of
the preceding quarter, in the manner and form prescribed by the Securities and
Exchange Board of India for publication of quarterly results by the companies listed on
a stock exchange.
30.1.3 On or before the 31
st
(thirty-first) day of May each Year, the Concessionaire shall
provide to the Authority, for the preceding Accounting Year, a statement duly audited
by its Statutory Auditors giving summarised information on (a) the number of
passengers using the XXX Ropeway and liable for payment of Fee therefor, (b) Fee
charged and received and other revenues derived from the XXX Ropeway, and (c) such
other information as the Authority may reasonably require.
30.2 Appointment of auditors
30.2.1 The Concessionaire shall appoint, and have during the subsistence of this Agreement
as its Statutory Auditors, a firm chosen by it from the mutually agreed list of 10 (ten)
reputable firms of chartered accountants (the “Panel of Chartered Accountants”),
such list to be prepared substantially in accordance with the criteria set forth in
Schedule-S . All fees and expenses of the Statutory Auditors shall be borne by the
Concessionaire.
30.2.2 The Concessionaire may terminate the appointment of its Statutory Auditors after a
notice of 45 (forty-five) days to the Authority, subject to the replacement Statutory
Auditors being appointed from the Panel of Chartered Accountants.
30.2.3 Notwithstanding anything to the contrary contained in this Agreement, the Authority
shall have the right, but not the obligation, to appoint at its cost from time to time and
at anytime, another firm (the “Additional Auditors”) from the Panel of Chartered
Accountants to audit and verify all those matters, expenses, costs, realisations and
things which the Statutory Auditors are required to do, undertake or certify pursuant to
this Agreement.
30.2.4 In the event that the Grant exceeds 20% (twenty per cent) of the Total Project Cost, the
Authority shall have the right, but not the obligation, to appoint at its cost, for the
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duration of the Construction Period, another firm (the “Concurrent Auditors”) from
the Panel of Chartered Accountants to undertake concurrent audit of the
Concessionaire’s accounts.
30.3 Certification of claims by Statutory Auditors
Any claim or document provided by the Concessionaire to the Authority in connection
with or relating to receipts, income, payments, costs, expenses, accounts or audit, and
any matter incidental thereto shall be valid and effective only if certified by its Statutory
Auditors. For the avoidance of doubt, such certification shall not be required for
exchange of information in the normal course of business including the submission of
Monthly Fee Statements under Clause 19.5.
30.4 Set-off
In the event any amount is due and payable by the Authority to the Concessionaire, it
may set-off any sums payable to it by the Concessionaire and pay the balance
remaining. Any exercise by the Authority of its rights under this Clause shall be without
prejudice to any other rights or remedies available to it under this Agreement or
otherwise.
30.5 Dispute resolution
In the event of there being any difference between the findings of the Additional
Auditors or the Concurrent Auditors, as the case may be, and the certification provided
by the Statutory Auditors, such Auditors shall meet to resolve the differences and if
they are unable to resolve the same, such Dispute shall be resolved by the Authority by
recourse to the Dispute Resolution Procedure.
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PART V: FORCE MAJEURE AND TERMINATION
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ARTICLE 31: FORCE MAJEURE
31.1 Force Majeure
As used in this Agreement, the expression “Force Majeure” or “Force Majeure
Event” shall mean occurrence in India of any or all of Non-Political Event, Indirect
Political Event and Political Event, as defined in Clauses 31.2, 31.3, 31.4 respectively,
if it affects the performance by the Party claiming the benefit of Force Majeure (the
“Affected Party”) of its obligations under this Agreement and which act or event (i) is
beyond the reasonable control of the Affected Party, and (ii) the Affected Party could
not have prevented or overcome by exercise of due diligence and following Good
Industry Practice, and (iii) has Material Adverse Effect on the Affected Party.
31.2 Non-Political Event
A Non-Political Event shall mean one or more of the following acts or events:
(a) act of God, epidemic, extremely adverse weather conditions, lightning,
earthquake, landslide, cyclone, flood, volcanic eruption, chemical or
radioactive contamination or ionising radiation, fire or explosion (to the extent
of contamination or radiation or fire or explosion originating from a source
external to the Site);
(b) strikes or boycotts (other than those involving the Concessionaire, Contractors
or their respective employees/representatives, or attributable to any act or
omission of any of them) interrupting supplies and services to the XXX
Ropeway for a continuous period of 24 (twenty four) hours and an aggregate
period exceeding 7 (seven) days in an Accounting Year, and not being an
Indirect Political Event set forth in Clause 31.3
(c) any failure or delay of a Contractor but only to the extent caused by another
Non-Political Event and which does not result in any offsetting compensation
being payable to the Concessionaire by or on behalf of such Contractor;
(d) any judgement or order of any court of competent jurisdiction or statutory
authority made against the Concessionaire in any proceedings for reasons other
than (i) failure of the Concessionaire to comply with any Applicable Law or
Applicable Permit, or (ii) on account of breach of any Applicable Law or
Applicable Permit or of any contract, or (iii) enforcement of this Agreement,
or (iv) exercise of any of its rights under this Agreement by the Authority;
(e) the discovery of geological conditions, toxic contamination or archaeological
remains on the Site that could not reasonably have been expected to be
discovered through a site inspection; or
(f) any event or circumstances of a nature analogous to any of the foregoing.
31.3 Indirect Political Event
An Indirect Political Event shall mean one or more of the following acts or events:
(a) an act of war (whether declared or undeclared), invasion, armed conflict or act
of foreign enemy, blockade, embargo, riot, insurrection, terrorist or military
action, civil commotion or politically motivated sabotage;
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(b) industry-wide or State-wide strikes or industrial action for a continuous period
of 24 (twenty-four) hours and exceeding an aggregate period of 7 (seven) days
in an Accounting Year;
(c) any civil commotion, boycott or political agitation which prevents collection
of Fee by the Concessionaire for an aggregate period exceeding 7 (seven) days
in an Accounting Year;
(d) any failure or delay of a Contractor to the extent caused by any Indirect
Political Event and which does not result in any offsetting compensation being
payable to the Concessionaire by or on behalf of such Contractor;
(e) any Indirect Political Event that causes a Non-Political Event; or
(f) any event or circumstances of a nature analogous to any of the foregoing.
31.4 Political Event
A Political Event shall mean one or more of the following acts or events by or on
account of any Government Instrumentality:
(a) Change in Law, only if consequences thereof cannot be dealt with under and
in accordance with the provisions of Article 41 and its effect, in financial terms,
exceeds the sum specified in Clause 38.1
(b) compulsory acquisition in national interest or expropriation of any Project
Assets or rights of the Concessionaire or of the Contractors;
(c) unlawful or unauthorised or without jurisdiction revocation of, or refusal to
renew or grant without valid cause, any clearance, licence, permit,
authorisation, no objection certificate, consent, approval or exemption required
by the Concessionaire or any of the Contractors to perform their respective
obligations under this Agreement and the Project Agreements; provided that
such delay, modification, denial, refusal or revocation did not result from the
Concessionaire’s or any Contractor’s inability or failure to comply with any
condition relating to grant, maintenance or renewal of such clearance, licence,
authorisation, no objection certificate, exemption, consent, approval or permit;
(d) any failure or delay of a Contractor but only to the extent caused by another
Political Event and which does not result in any offsetting compensation being
payable to the Concessionaire by or on behalf of such Contractor; or
(e) any event or circumstance of a nature analogous to any of the foregoing.
31.5 Duty to report Force Majeure Event
31.5.1 Upon occurrence of a Force Majeure Event, the Affected Party shall by notice report
such occurrence to the other Party forthwith. Any notice pursuant hereto shall include
full particulars of:
(a) the nature and extent of each Force Majeure Event which is the subject of any
claim for relief under this Article 31 with evidence in support thereof;
(b) the estimated duration and the effect or probable effect which such Force
Majeure Event is having or will have on the Affected Party’s performance of
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its obligations under this Agreement;
(c) the measures which the Affected Party is taking or proposes to take for
alleviating the impact of such Force Majeure Event; and
(d) any other information relevant to the Affected Party’s claim.
31.5.2 The Affected Party shall not be entitled to any relief for or in respect of a Force Majeure
Event unless it shall have notified the other Party of the occurrence of the Force
Majeure Event as soon as reasonably practicable, and in any event no later than 7
(seven) days after the Affected Party knew, or ought reasonably to have known, of its
occurrence, and shall have given particulars of the probable material effect that the
Force Majeure Event is likely to have on the performance of its obligations under this
Agreement.
31.5.3 For so long as the Affected Party continues to claim to be materially affected by such
Force Majeure Event, it shall provide the other Party with regular (and not less than
weekly) reports containing information as required by Clause 31.5.1 and such other
information as the other Party may reasonably request the Affected Party to provide.
31.6 Effect of Force Majeure Event on the Concession
31.6.1 Upon the occurrence of any Force Majeure Event prior to the Appointed Date, the
period set forth in Clause 4.1 for fulfilment of Conditions Precedent and in 23.1.1 for
achieving Financial Close shall be extended by a period equal in length to the duration
of the Force Majeure Event.
31.6.2 At any time after the Appointed Date, if any Force Majeure Event occurs:
(a) before COD, the Concession Period and the dates set forth in the Project
Completion Schedule shall be extended by a period equal in length to the
duration for which such Force Majeure Event subsists; or
(b) after COD, whereupon the Concessionaire is unable to collect Fee despite
making best efforts or it is directed by the Authority to suspend the collection
thereof during the subsistence of such Force Majeure Event, the Concession
Period shall be extended by a period, equal in length to the period during which
the Concessionaire was prevented from collection of Fee on account thereof;
provided that in the event of partial collection of Fee where the daily collection
is less than 90% (ninety per cent) of the Average Daily Fee, the Authority shall
extend the Concession Period in proportion to the loss of Fee on a daily basis.
For the avoidance of doubt, loss of 25% (twenty-five per cent) in collection of
Fee as compared to the Average Daily Fee for four days shall entitle the
Concessionaire to extension of one day in the Concession Period.
31.7 Allocation of costs arising out of Force Majeure
31.7.1 Upon occurrence of any Force Majeure Event prior to the Appointed Date, the Parties
shall bear their respective costs and no Party shall be required to pay to the other Party
any costs thereof.
31.7.2 Upon occurrence of a Force Majeure Event after the Appointed Date, the costs incurred
and attributable to such event and directly relating to the Project (the “Force Majeure
Costs”) shall be allocated and paid as follows:
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(a) upon occurrence of a Non-Political Event, the Parties shall bear their respective
Force Majeure Costs and neither Party shall be required to pay to the other
Party any costs thereof;
(b) upon occurrence of an Indirect Political Event, all Force Majeure Costs
attributable to such Indirect Political Event, and not exceeding the Insurance
Cover for such Indirect Political Event, shall be borne by the Concessionaire,
and to the extent Force Majeure Costs exceed such Insurance Cover, one half
of such excess amount shall be reimbursed by the Authority to the
Concessionaire; and
(c) upon occurrence of a Political Event, all Force Majeure Costs attributable to
such Political Event shall be reimbursed by the Authority to the
Concessionaire.
For the avoidance of doubt, Force Majeure Costs may include interest payments on
debt, O&M Expenses, any increase in the cost of Construction Works on account of
inflation and all other costs directly attributable to the Force Majeure Event but shall
not include loss of Fee revenues or debt repayment obligations and for determining
such costs information contained in the Financial Package may be relied upon to the
extent that such information is relevant.
31.7.3 Save and except as expressly provided in this Article 31, neither Party shall be liable
in any manner whatsoever to the other Party in respect of any loss, damage, cost,
expense, claims, demands and proceedings relating to or arising out of occurrence or
existence of any Force Majeure Event or exercise of any right pursuant hereto.
31.8 Termination Notice for Force Majeure Event
If a Force Majeure Event subsists for a period of 180 (one hundred and eighty) days or
more within a continuous period of 365 (three hundred and sixty five) days, either Party
may in its discretion terminate this Agreement by issuing a Termination Notice to the
other Party without being liable in any manner whatsoever, save as provided in this
Article 31, and upon issue of such Termination Notice, this Agreement shall,
notwithstanding anything to the contrary contained herein, stand terminated forthwith;
provided that before issuing such Termination Notice, the Party intending to issue the
Termination Notice shall inform the other Party of such intention and grant 15 (fifteen)
days’ time to make a representation, and may after the expiry of such 15 (fifteen) days
period, whether or not it is in receipt of such representation, in its sole discretion issue
the Termination Notice.
31.9 Termination Payment for Force Majeure Event
31.9.1 If Termination is on account of a Non-Political Event, the Authority shall make a
Termination Payment to the Concessionaire in an amount equal to 90% (ninety per
cent) of the Debt Due less Insurance Cover.
31.9.2 If Termination is on account of an Indirect Political Event, the Authority shall make a
Termination Payment to the Concessionaire in an amount equal to:
(a) Debt Due less Insurance Cover; provided that if any insurance claims forming
part of the Insurance Cover are not admitted and paid, then 80% (eighty per
cent) of such unpaid claims shall be included in the computation of Debt Due;
and
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(b) 110% (one hundred and ten per cent) of the Adjusted Equity.
31.9.3 If Termination is on account of a Political Event, the Authority shall make a
Termination Payment to the Concessionaire in an amount that would be payable under
Clause 34.3.2 as if it were an Authority Default.
31.10 Dispute resolution
In the event that the Parties are unable to agree in good faith about the occurrence or
existence of a Force Majeure Event, such Dispute shall be finally settled in accordance
with the Dispute Resolution Procedure; provided that the burden of proof as to the
occurrence or existence of such Force Majeure Event shall be upon the Party claiming
relief and/or excuse on account of such Force Majeure Event.
31.11 Excuse from performance of obligations
If the Affected Party is rendered wholly or partially unable to perform its obligations
under this Agreement because of a Force Majeure Event, it shall be excused from
performance of such of its obligations to the extent it is unable to perform on account
of such Force Majeure Event; provided that:
(a) the suspension of performance shall be of no greater scope and of no longer
duration than is reasonably required by the Force Majeure Event;
(b) the Affected Party shall make all reasonable efforts to mitigate or limit damage
to the other Party arising out of or as a result of the existence or occurrence of
such Force Majeure Event and to cure the same with due diligence; and
(c) when the Affected Party is able to resume performance of its obligations under
this Agreement, it shall give to the other Party notice to that effect and shall
promptly resume performance of its obligations hereunder.
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ARTICLE 32: COMPENSATION FOR BREACH OF AGREEMENT
32.1 Compensation for default by the Concessionaire
In the event of the Concessionaire being in material breach or default of this
Agreement, it shall pay to the Authority by way of compensation, all direct costs
suffered or incurred by the Authority as a consequence of such material breach or
default, within 30 (thirty) days of receipt of the demand supported by necessary
particulars thereof; provided that no compensation shall be payable under this Clause
32.1 for any material breach or default in respect of which Damages are expressly
specified and payable under this Agreement or for any consequential losses incurred
by the Authority.
32.2 Compensation for default by the Authority
In the event of the Authority being in material breach or default of this Agreement at
any time after the Appointed Date, it shall pay to the Concessionaire by way of
compensation, all direct costs suffered or incurred by the Concessionaire as a
consequence of such material breach or default within 30 (thirty) days of receipt of the
demand supported by necessary particulars thereof; provided that no such
compensation shall be payable for any material breach or default in respect of which
Damages have been expressly specified in this Agreement. For the avoidance of doubt,
compensation payable may include interest payments on debt, O&M Expenses, any
increase in capital costs on account of inflation and all other costs directly attributable
to such material breach or default but shall not include loss of Fee revenues, debt
repayment obligations or other consequential losses, and for determining such
compensation, information contained in the Financial Package and the Financial Model
may be relied upon to the extent it is relevant.
32.3 Extension of Concession Period
In the event that a material breach or default of this Agreement set forth in Clause 32.2
causes delay in achieving COD or leads to suspension of or reduction in collection of
Fee, as the case may be, the Authority shall, in addition to payment of compensation
under Clause 32.2 extend the Concession Period, such extension being equal in
duration to the period by which COD was delayed or the collection of Fee remained
suspended on account thereof, as the case may be; and in the event of reduction in
collection of Fee where the daily collection is less than 90% (ninety per cent) of the
Average Daily Fee, the Authority shall, in addition to payment of compensation under
Clause 32.2 , extend the Concession Period in proportion to the loss of Fee on a daily
basis. For the avoidance of doubt, loss of 25% (twenty-five per cent) in collection of
Fee as compared to the Average Daily Fee for four days shall entitle the Concessionaire
to extension of one day in the Concession Period.
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ARTICLE 33: SUSPENSION OF CONCESSIONAIRE’S RIGHTS
33.1 Suspension upon Concessionaire Default
Upon occurrence of a Concessionaire Default, the Authority shall be entitled, without
prejudice to its other rights and remedies under this Agreement including its rights of
Termination hereunder, to (i) suspend all rights of the Concessionaire under this
Agreement including the Concessionaire’s right to collect Fee, and other revenues
pursuant hereto, and (ii) exercise such rights itself and perform the obligations
hereunder or authorise any other person to exercise or perform the same on its behalf
during such suspension (the “Suspension”). Suspension hereunder shall be effective
forthwith upon issue of notice by the Authority to the Concessionaire and may extend
up to a period not exceeding 180 (one hundred and eighty) days from the date of issue
of such notice; provided that upon written request from the Concessionaire and the
Lenders’ Representative, the Authority shall extend the aforesaid period of 180 (one
hundred and eighty) days by a further period not exceeding 90 (ninety) days.
33.2 Authority to act on behalf of Concessionaire
33.2.1 During the period of Suspension, the Authority shall, on behalf of the Concessionaire,
collect all Fee and revenues under and in accordance with this Agreement and deposit
the same in the Escrow Account. The Authority shall be entitled to make withdrawals
from the Escrow Account for meeting the costs incurred by it for remedying and
rectifying the cause of Suspension, and thereafter for defraying the expenses specified
in Clause 28.3
33.2.2 During the period of Suspension hereunder, all rights and liabilities vested in the
Concessionaire in accordance with the provisions of this Agreement shall continue to
vest therein and all things done or actions taken, including expenditure incurred by the
Authority for discharging the obligations of the Concessionaire under and in
accordance with this Agreement and the Project Agreements, shall be deemed to have
been done or taken for and on behalf of the Concessionaire and the Concessionaire
undertakes to indemnify the Authority for all costs incurred during such period. The
Concessionaire hereby licences and sub-licences respectively, the Authority or any
other person authorised by it under Clause 33.1 to use during Suspension, all
Intellectual Property belonging to or licenced to the Concessionaire with respect to the
XXX Ropeway and its design, engineering, construction, operation and maintenance,
and which is used or created by the Concessionaire in performing its obligations under
the Agreement.
33.3 Revocation of Suspension
33.3.1 In the event that the Authority shall have rectified or removed the cause of Suspension
within a period not exceeding 90 (ninety) days from the date of Suspension, it shall
revoke the Suspension forthwith and restore all rights of the Concessionaire under this
Agreement. For the avoidance of doubt, the Parties expressly agree that the Authority
may, in its discretion, revoke the Suspension at any time, whether or not the cause of
Suspension has been rectified or removed hereunder.
33.3.2 Upon the Concessionaire having cured the Concessionaire Default within a period not
exceeding 90 (ninety) days from the date of Suspension, the Authority shall revoke the
Suspension forthwith and restore all rights of the Concessionaire under this Agreement.
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33.4 Substitution of Concessionaire
At any time during the period of Suspension, the Lenders’ Representative, on behalf of
Senior Lenders, shall be entitled to substitute the Concessionaire under and in
accordance with the Substitution Agreement, and upon receipt of notice thereunder
from the Lenders’ Representative, the Authority shall withhold Termination for a
period not exceeding 180 (one hundred and eighty) days from the date of Suspension,
and any extension thereof under Clause 33.1 for enabling the Lenders’ Representative
to exercise its rights of substitution on behalf of Senior Lenders.
33.5 Termination
33.5.1 At any time during the period of Suspension under this Article 33, the Concessionaire
may by notice require the Authority to revoke the Suspension and issue a Termination
Notice. Subject to the rights of the Lenders’ Representative to undertake substitution
in accordance with the provisions of this Agreement and within the period specified in
Clause 33.4, the Authority shall, within 15 (fifteen) days of receipt of such notice,
terminate this Agreement under and in accordance with Article 37.
33.5.2 Notwithstanding anything to the contrary contained in this Agreement, in the event that
Suspension is not revoked within 180 (one hundred and eighty) days from the date of
Suspension hereunder or within the extended period, if any, set forth in Clause 33.1,
the Concession Agreement shall, upon expiry of the aforesaid period, be deemed to
have been terminated by mutual agreement of the Parties and all the provisions of this
Agreement shall apply, mutatis mutandis, to such Termination as if a Termination
Notice had been issued by the Authority upon occurrence of a Concessionaire Default.
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ARTICLE 34: TERMINATION
34.1 Termination for Concessionaire Default
34.1.1 Save as otherwise provided in this Agreement, in the event that any of the defaults
specified below shall have occurred, and the Concessionaire fails to cure the default
within the Cure Period set forth below, or where no Cure Period is specified, then
within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in
default of this Agreement (the “Concessionaire Default”), unless the default has
occurred solely as a result of any breach of this Agreement by the Authority or due to
Force Majeure. The defaults referred to herein shall include:
(a) the Performance Security has been encashed and appropriated in accordance
with Clause 9.2 and the Concessionaire fails to replenish or provide fresh
Performance Security within a Cure Period of 30 (thirty) days;
(b) subsequent to the replenishment or furnishing of fresh Performance Security
in accordance with Clause 9.2, the Concessionaire fails to cure, within a Cure
Period of 90 (ninety) days, the Concessionaire Default for which whole or part
of the Performance Security was appropriated;
(c) the Concessionaire does not achieve the latest outstanding Project Milestone
due in accordance with the provisions of Schedule-G and continues to be in
default for 120 (one hundred and twenty) days;
(d) the Concessionaire abandons or manifests intention to abandon the
construction or operation of the XXX Ropeway without the prior written
consent of the Authority;
(e) Project Completion Date does not occur within the period specified in Clause
12.3.3;
(f) the Punch List items have not been completed within the period set forth in
Clause 14.4.1;
(g) the Concessionaire is in breach of the Maintenance Requirements or the Safety
Requirements, as the case may be;
(h) the Concessionaire has failed to make any payment to the Authority within the
period specified in this Agreement;
(i) an Escrow Default has occurred, and the Concessionaire fails to cure the
default within a Cure Period of 15 (fifteen) days;
(j) upon occurrence of a Financial Default, the Lenders’ Representative has by
notice required the Authority to undertake Suspension or Termination, as the
case may be, in accordance with the Substitution Agreement and the
Concessionaire fails to cure the default within the Cure Period specified
hereinabove;
(k) a breach of any of the Project Agreements by the Concessionaire has caused a
Material Adverse Effect;
(l) the Concessionaire creates any Encumbrance in breach of this Agreement;
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(m) the Concessionaire repudiates this Agreement or otherwise takes any action or
evidences or conveys an intention not to be bound by the Agreement;
(n) a Change in Ownership has occurred in breach of the provisions of Clause5.3;
(o) there is a transfer, pursuant to law either of (i) the rights and/or obligations of
the Concessionaire under any of the Project Agreements, or of (ii) all or part
of the assets or undertaking of the Concessionaire, and such transfer causes a
Material Adverse Effect;
(p) an execution levied on any of the assets of the Concessionaire has caused a
Material Adverse Effect;
(q) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver
is appointed for the Concessionaire or for the whole or material part of its assets
that has a material bearing on the Project;
(r) the Concessionaire has been, or is in the process of being liquidated, dissolved,
wound-up, amalgamated or reconstituted in a manner that would cause, in the
reasonable opinion of the Authority, a Material Adverse Effect;
(s) a resolution for winding up of the Concessionaire is passed, or any petition for
winding up of the Concessionaire is admitted by a court of competent
jurisdiction and a provisional liquidator or receiver is appointed and such order
has not been set aside within 90 (ninety) days of the date thereof or the
Concessionaire is ordered to be wound up by Court except for the purpose of
amalgamation or reconstruction; provided that, as part of such amalgamation
or reconstruction, the entire property, assets and undertaking of the
Concessionaire are transferred to the amalgamated or reconstructed entity and
that the amalgamated or reconstructed entity has unconditionally assumed the
obligations of the Concessionaire under this Agreement and the Project
Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and
operating experience necessary for the performance of its obligations
under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to
perform its obligations under this Agreement and the Project
Agreements and has a credit worthiness at least as good as that of the
Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect;
(t) any representation or warranty of the Concessionaire herein contained which
is, as of the date hereof, found to be materially false, incorrect or misleading
or the Concessionaire is at any time hereafter found to be in breach thereof;
(u) the Concessionaire submits to the Authority any statement, notice or other
document, in written or electronic form, which has a material effect on the
Authority’s rights, obligations or interests and which is false in material
particulars;
(v) the Concessionaire has failed to fulfil any obligation, for which failure
Termination has been specified in this Agreement; or
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(w) the Concessionaire commits a default in complying with any other provision
of this Agreement if such a default causes a Material Adverse Effect on the
Authority.
34.1.2 Without prejudice to any other rights or remedies which the Authority may have under
this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be
entitled to terminate this Agreement by issuing a Termination Notice to the
Concessionaire; provided that before issuing the Termination Notice, the Authority
shall by a notice inform the Concessionaire of its intention to issue such Termination
Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and
may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such
representation, issue the Termination Notice, subject to the provisions of clause 34.1.3.
34.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to
issue a Termination Notice referred to in Clause 34.1.2 to inform the Lenders’
Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making
a representation on behalf of the Senior Lenders stating the intention to substitute the
Concessionaire in accordance with the Substitution Agreement. In the event the
Authority receives such representation on behalf of Senior Lenders, it shall, in its
discretion, either withhold Termination for a period not exceeding 180 (one hundred
and eighty) days from the date of such representation or exercise its right of Suspension,
as the case may be, for enabling the Lenders’ Representative to exercise the Senior
Lenders’ right of substitution in accordance with the Substitution Agreement:
Provided that the Lenders’ Representative may, instead of exercising the Senior
Lenders’ right of substitution, procure that the default specified in the notice is cured
within the aforesaid period of 180 (one hundred and eighty) days, and upon such curing
thereof, the Authority shall withdraw its notice referred to above and restore all the
rights of the Concessionaire:
Provided further that upon written request from the Lenders’ Representative and the
Concessionaire, the Authority shall extend the aforesaid period of 180 (one hundred
and eighty) days by such further period not exceeding 90 (ninety) days, as the Authority
may deem appropriate.
34.2 Termination for Authority Default
34.2.1 In the event that any of the defaults specified below shall have occurred, and the
Authority fails to cure such default within a Cure Period of 90 (ninety) days or such
longer period as has been expressly provided in this Agreement, the Authority shall be
deemed to be in default of this Agreement (the “Authority Default”) unless the default
has occurred as a result of any breach of this Agreement by the Concessionaire or due
to Force Majeure. The defaults referred to herein shall include:
(a) The Authority commits a material default in complying with any of the
provisions of this Agreement and such default has a Material Adverse Effect
on the Concessionaire;
(b) the Authority has failed to make any payment to the Concessionaire within the
period specified in this Agreement; and
(c) the Authority repudiates this Agreement or otherwise takes any action that
amounts to or manifests an irrevocable intention not to be bound by this
Agreement.
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34.2.2 Without prejudice to any other right or remedy which the Concessionaire may have
under this Agreement, upon occurrence of an Authority Default, the Concessionaire
shall, subject to the provisions of the Substitution Agreement, be entitled to terminate
this Agreement by issuing a Termination Notice to the Authority; provided that before
issuing the Termination Notice, the Concessionaire shall by a notice inform the
Authority of its intention to issue the Termination Notice and grant 15 (fifteen) days to
the Authority to make a representation, and may after the expiry of such 15 (fifteen)
days, whether or not it is in receipt of such representation, issue the Termination Notice.
34.3 Termination Payment
34.3.1 Upon Termination on account of a Concessionaire Default during the Operation Period,
the Authority shall pay to the Concessionaire, by way of Termination Payment, an
amount equal to:
(a) 90% (ninety per cent) of the Debt Due less Insurance Cover; and
(b) 70% (seventy per cent) of the amount representing the Additional Termination
Payment:
Provided that if any insurance claims forming part of the Insurance Cover are not
admitted and paid, then 80% (eighty per cent) of such unpaid claims shall be included
in the computation of Debt Due.
34.3.2 Notwithstanding the provisions of Clause 34.3.1, upon Termination on account of
Concessionaire Default during the Construction Period, the Authority shall pay
Termination Payment corresponding to the Physical Progress of the Project made by
the Concessionaire, calculated on the basis of the last achieved Project Milestone as
follows:
Project Milestone Termination Payment
For the avoidance of doubt, it is clarified that if Termination occurs between Project
Milestones, the Termination Payment would be calculated on the basis of the last
Project Milestone achieved by the Concessionaire.
37.3.3 Upon Termination on account of an Authority Default, the Authority shall pay to the
Concessionaire, by way of Termination Payment, an amount equal to:
(i) If Termination occurs prior to COD
(a) Debt Due calculated as per the table below less Insurance Cover; provided that
if any insurance claims forming part of the Insurance Cover are not admitted and
paid, 80% (eighty per cent) of such unpaid claims shall be included in the
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computation of Deb Due and would be calculated as follows:
Project Milestone Basis of calculation for Debt Due
For the avoidance of doubt, it is clarified that if Termination occurs between Project
Milestones, the Termination Payment would be calculated on the basis of the last
Project Milestone achieved by the Concessionaire; and
(b) 150% (one hundred and fifty per cent) of the Adjusted Equity.
(ii) If Termination occurs after COD:
(a) Debt Due;
(b) 150% (one hundred and fifty per cent) of the Adjusted Equity; and
(c) 115% (one hundred and fifteen per cent) of the amount representing the
Additional Termination Payment .
34.3.4 Termination Payment shall become due and payable to the Concessionaire within15
(fifteen) days of a demand being made by the Concessionaire to the Authority with the
necessary particulars, and in the event of any delay, the Authority shall pay interest at
a rate equal to 3% (three per cent) above the Bank Rate on the amount of Termination
Payment remaining unpaid; provided that such delay shall not exceed 90 (ninety) days.
For the avoidance of doubt, it is expressly agreed that Termination Payment shall
constitute full discharge by the Authority of its payment obligations in respect thereof
hereunder.
34.3.5 The Concessionaire expressly agrees that Termination Payment under this Article 37
shall constitute a full and final settlement of all claims of the Concessionaire on account
of Termination of this Agreement for any reason whatsoever and that the
Concessionaire or any shareholder thereof shall not have any further right or claim
under any law, treaty, convention, contract or otherwise.
34.4 Other rights and obligations of the Authority
Upon Termination for any reason whatsoever, the Authority shall:
(a) be deemed to have taken possession and control of the XXX Ropeway
forthwith;
(b) take possession and control of all materials, stores, implements, construction
plants and equipment on or about the Site;
(c) be entitled to restrain the Concessionaire and any person claiming through or
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under the Concessionaire from entering upon the Site or any part of the Project;
(d) require the Concessionaire to comply with the Divestment Requirements set
forth in Clause 35.1; and
(e) succeed upon election by the Authority, without the necessity of any further
action by the Concessionaire, to the interests of the Concessionaire under such
of the Project Agreements as the Authority may in its discretion deem
appropriate, and shall upon such election be liable to the Contractors only for
compensation accruing and becoming due and payable to them under the terms
of their respective Project Agreements from and after the date the Authority
elects to succeed to the interests of the Concessionaire. For the avoidance of
doubt, the Concessionaire acknowledges and agrees that all sums claimed by
such Contractors as being due and owing for works and services performed or
accruing on account of any act, omission or event prior to such date shall
constitute debt between the Concessionaire and such Contractors, and the
Authority shall not in any manner be liable for such sums. It is further agreed
that in the event the Authority elects to cure any outstanding defaults under
such Project Agreements, the amount expended by the Authority for this
purpose shall be deducted from the Termination Payment.
34.5 Certain limitations on Termination Payment
34.5.1 Termination Payment, not being Additional Termination Payment, due and payable
under this Agreement shall be limited to the Debt Due and Adjusted Equity, as the case
may be, which form part of the Total Project Cost in accordance with the provisions of
this Agreement; provided that the amount payable in respect of any Debt Due expressed
in foreign currency shall be computed at the Reference Exchange Rate for conversion
into the relevant foreign currency as on the date of Termination Payment. For the
avoidance of doubt, it is agreed that within a period of 60 (sixty) days from COD, the
Concessionaire shall notify to the Authority, the Total Project Cost as on COD and its
disaggregation between Debt Due and Equity, and only the amounts so conveyed shall
form the basis of computing Termination Payment, and it is further agreed that in the
event such disaggregation is not notified to the Authority, Equity shall be deemed to be
the amount arrived at by subtracting Debt Due from Total Project Cost.
34.5.2 Additional Termination Payment due and payable in respect of Real Estate
Development forming part of Specified Assets shall be limited to the lowest of:
(a) Adjusted Depreciated Value thereof;
(b) the replacement value thereof, as assessed by an Approved Valuer, who shall
be selected and appointed by the Authority, within 15 (fifteen) days of
Termination, for submitting his assessment within 30 (thirty) days of his
appointment hereunder; and
(c) [40% (forty per cent)] of the sum of Total Project Cost and Equity Support, if
any.]
34.6 Survival of rights
Notwithstanding anything to the contrary contained in this Agreement, but subject to
the provisions of Clause 34.3 , any Termination pursuant to the provisions of this
Agreement shall be without prejudice to the accrued rights of either Party including its
right to claim and recover money damages, insurance proceeds, security deposits, and
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other rights and remedies, which it may have in law or contract. All rights and
obligations of either Party under this Agreement, including Termination Payments and
Divestment Requirements, shall survive the Termination to the extent such survival is
necessary for giving effect to such rights and obligations.
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ARTICLE 35: DIVESTMENT OF RIGHTS AND INTEREST
35.1 Divestment Requirements
35.1.1 Upon Termination, the Concessionaire shall comply with and conform to the following
Divestment Requirements:
(a) notify to the Authority forthwith the location and particulars of all Project
Assets;
(b) deliver forthwith the actual or constructive possession of the XXX Ropeway,
free and clear of all Encumbrances, save and except to the extent set forth in
the Substitution Agreement;
(c) cure all Project Assets, including the road, bridges, structures and equipment,
of all defects and deficiencies so that the XXX Ropeway is compliant with the
Maintenance Requirements; provided that in the event of Termination during
the Construction Period, all Project Assets shall be handed over on ‘as is where
is’ basis after bringing them to a safe condition;
(d) deliver and transfer relevant records, reports, Intellectual Property and other
licences pertaining to the XXX Ropeway and its design, engineering,
construction, operation and maintenance, including all programmes and
manuals pertaining thereto, and complete ‘as built’ Drawings as on the
Transfer Date. For the avoidance of doubt, the Concessionaire represents and
warrants that the Intellectual Property delivered hereunder shall be adequate
and complete for the design, engineering, construction, operation and
maintenance of the XXX Ropeway and shall be assigned to the Authority free
of any encumbrance;
(e) transfer and/or deliver all Applicable Permits to the extent permissible under
Applicable Laws;
(f) execute such deeds of conveyance, documents and other writings as the
Authority may reasonably require for conveying, divesting and assigning all
the rights, title and interest of the Concessionaire in the XXX Ropeway,
including manufacturers’ warranties in respect of any plant or equipment and
the right to receive outstanding insurance claims to the extent due and payable
to the Authority, absolutely unto the Authority or its nominee; and
(g) comply with all other requirements as may be prescribed or required under
Applicable Laws for completing the divestment and assignment of all rights,
title and interest of the Concessionaire in the XXX Ropeway, free from all
Encumbrances, absolutely unto the Authority or to its nominee.
35.1.2 Subject to the exercise by the Authority of its rights under this Agreement or under any
of the Project Agreements to perform or procure the performance by a third party of
any of the obligations of the Concessionaire, the Parties shall continue to perform their
obligations under this Agreement, notwithstanding the giving of any Termination
Notice, until the Termination of this Agreement becomes effective in accordance with
its terms.
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35.2 Inspection and cure
Not earlier than 90 (ninety) days prior to Termination but not later than 15 (fifteen)
days prior to the effective date of such Termination, the Independent Engineer shall
verify, after giving due notice to the Concessionaire of the time, date and venue of such
verification, compliance by the Concessionaire with the Maintenance Requirements,
and if required, cause appropriate tests to be carried out at the Concessionaire’s cost
for this purpose. Defaults, if any, in the Maintenance Requirements shall be cured by
the Concessionaire at its cost and the provisions of Article 39 shall apply, mutatis
mutandis, in relation to curing of defects or deficiencies under this Article 35.
35.3 Cooperation and assistance on transfer of Project
35.3.1 The Parties shall cooperate on a best effort basis and take all necessary measures, in
good faith, to achieve a smooth transfer of the Project in accordance with the provisions
of this Agreement so as to protect the safety of and avoid undue delay or inconvenience
to the Users, other members of the public or the lawful occupiers of any part of the Site.
35.3.2 The Parties shall provide to each other, 9 (nine) months prior to the Transfer Date in
the event of Termination by efflux of time and immediately in the event of either Party
conveying to the other Party its intent to issue a Termination Notice, as the case may
be, as much information and advice as is reasonably practicable regarding the proposed
arrangements for operation of the Project following the Transfer Date. The
Concessionaire shall further provide such reasonable advice and assistance as the
Authority, its concessionaire or agent may reasonably require for operation of the
Project until the expiry of 6 (six) months after the Transfer Date.
35.3.3 The Authority shall have the option to purchase or hire from the Concessionaire at a
fair market value and free from any encumbrance all or any part of the plant and
machinery used in connection with the Project, but which does not form part of the
assets specified in Clause 35.1.1 and is reasonably required in connection with
operation of the Project. For the avoidance of doubt, in the event of dispute or
difference relating to fair market value, the Dispute Resolution Procedure shall apply.
35.4 Vesting Certificate
The divestment of all rights, title and interest in the XXX Ropeway shall be deemed to
be complete on the date when all of the Divestment Requirements have been fulfilled,
and the Authority shall, without unreasonable delay, thereupon issue a certificate
substantially in the form set forth in Schedule-N (the “Vesting Certificate”), which
will have the effect of constituting evidence of divestment by the Concessionaire of all
of its rights, title and interest in the XXX Ropeway, and their vesting in the Authority
pursuant hereto. It is expressly agreed that any defect or deficiency in the Divestment
Requirements shall not in any manner be construed or interpreted as restricting the
exercise of any rights by the Authority or its nominee on, or in respect of, the XXX
Ropeway on the footing that all Divestment Requirements have been complied with by
the Concessionaire.
35.5 Additional Facilities
Notwithstanding anything to the contrary contained in this Agreement, all Additional
Facilities shall continue to vest in the Concessionaire upon and after Termination.
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35.6 Divestment costs etc.
35.6.1 The Concessionaire shall bear and pay all costs incidental to divestment of all of the
rights, title and interest of the Concessionaire in the XXX Ropeway in favour of the
Authority upon Termination, save and except that all stamp duties payable on any deeds
or Documents executed by the Concessionaire in connection with such divestment shall
be borne by the Authority.
35.6.2 In the event of any dispute relating to matters covered by and under this Article 35, the
Dispute Resolution Procedure shall apply.
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ARTICLE 36: DEFECTS LIABILITY AFTER TERMINATION
36.1 Liability for defects after Termination
The Concessionaire shall be responsible for all defects and deficiencies in the XXX
Ropeway for a period of 120 (One hundred and twenty) days after Termination, and it
shall have the obligation to repair or rectify, at its own cost, all defects and deficiencies
observed by the Independent Engineer in the XXX Ropeway during the aforesaid
period. In the event that the Concessionaire fails to repair or rectify such defect or
deficiency within a period of 15 (fifteen) days from the date of notice issued by the
Authority in this behalf, the Authority shall be entitled to get the same repaired or
rectified at the Concessionaire’s risk and cost so as to make the XXX Ropeway
conform to the Maintenance Requirements. All costs incurred by the Authority
hereunder shall be reimbursed by the Concessionaire to the Authority within 15
(fifteen) days of receipt of demand thereof, and in the event of default in reimbursing
such costs, the Authority shall be entitled to recover the same from the Escrow
Account.
36.2 Retention in Escrow Account
36.2.1 Notwithstanding anything to the contrary contained in this Agreement, but subject to
the provisions of Clause 36.2.3 , a sum equal to 5% (five per cent) of the total revenues
for the year immediately preceding the Transfer Date shall be retained in the Escrow
Account for a period of 120 (one hundred and twenty) days after Termination for
meeting the liabilities, if any, arising out of or in connection with the provisions of
Clause 36.1
36.2.2 Without prejudice to the provisions of Clause 36.2.1 , the Independent Engineer shall
carry out an inspection of the XXX Ropeway at any time between 210 (two hundred
and ten) and 180 (one hundred and eighty) days prior to the Termination and if it
recommends that the status of the XXX Ropeway is such that a sum larger than the
amount stipulated in Clause 36.2. should be retained in the Escrow Account and for a
period longer than the aforesaid 120 (one hundred and twenty) days, the amount
recommended by the Independent Engineer shall be retained in the Escrow Account
for the period specified by it.
36.2.3 The Concessionaire may, for the performance of its obligations under this Article 36,
provide to the Authority a guarantee from a Bank for a sum equivalent to the amount
determined under Clause 36.2.1 or 36.2.2 as the case may be, and for the period
specified therein, substantially in the form set forth in Schedule-F(the “Performance
Guarantee”), to be modified, mutatis mutandis, for this purpose, and the Authority
shall, without prejudice to its other rights and remedies hereunder or in law, be entitled
to encash and appropriate the required amounts from the Performance Guarantee for
undertaking the repairs or rectification at the Concessionaire’s risk and cost in
accordance with the provisions of this Article 36. Upon furnishing of a Performance
Guarantee under this Clause 36.2.3, the retention of funds in the Escrow Account in
terms of Clause 36.2.1 or 36.2.2, as the case may be, shall be dispensed with.
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PART VI: OTHER PROVISIONS
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ARTICLE 37: ASSIGNMENT AND CHARGES
37.1 Restrictions on assignment and charges
37.1.1 Subject to Clauses 37.2 and 37.3 this Agreement shall not be assigned by the
Concessionaire to any person, save and except with the prior consent in writing of the
Authority, which consent the Authority shall be entitled to decline without assigning
any reason.
37.1.2 Subject to the provisions of Clause 37.2 the Concessionaire shall not create nor permit
to subsist any Encumbrance, or otherwise transfer or dispose of all or any of its rights
and benefits under this Agreement or any Project Agreement to which the
Concessionaire is a party except with prior consent in writing of the Authority, which
consent the Authority shall be entitled to decline without assigning any reason.
37.2 Permitted assignment and charges
The restraints set forth in Clause 37.1 shall not apply to:
(a) liens arising by operation of law (or by an agreement evidencing the same) in
the ordinary course of business of the XXX Ropeway;
(b) mortgages/pledges/hypothecation of goods/assets other than Project Assets
and their related documents of title, arising or created in the ordinary course of
business of the XXX Ropeway, and as security only for indebtedness to the
Senior Lenders under the Financing Agreements and/or for working capital
arrangements for the XXX Ropeway;
(c) assignment of rights, interest and obligations of the Concessionaire to or in
favour of the Lenders’ Representative as nominee and for the benefit of the
Senior Lenders, to the extent covered by and in accordance with the
Substitution Agreement as security for financing provided by Senior Lenders
under the Financing Agreements; and
(d) liens or encumbrances required by any Applicable Law.
37.3 Substitution Agreement
37.3.1 The Lenders’ Representative, on behalf of Senior Lenders, may exercise the right to
substitute the Concessionaire pursuant to the agreement for substitution of the
Concessionaire (the “Substitution Agreement”) to be entered into amongst the
Concessionaire, the Authority and the Lenders’ Representative, on behalf of Senior
Lenders, substantially in the form set forth in Schedule-O.
37.3.2 Upon substitution of the Concessionaire under and in accordance with the Substitution
Agreement, the Nominated Company substituting the Concessionaire shall be deemed
to be the Concessionaire under this Agreement and shall enjoy all rights and be
responsible for all obligations of the Concessionaire under this Agreement as if it were
the Concessionaire; provided that where the Concessionaire is in breach of this
Agreement on the date of such substitution, the Authority shall by notice grant a Cure
Period of 120 (one hundred and twenty) days to the Concessionaire for curing such
breach.
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37.4 Assignment by the Authority
Notwithstanding anything to the contrary contained in this Agreement, the Authority
may, after giving 60 (sixty) days’ notice to the Concessionaire, assign and/ or transfer
any of its rights and benefits and/or obligations under this Agreement to an assignee
who is, in the reasonable opinion of the Authority, capable of fulfilling all of the
Authority’s then outstanding obligations under this Agreement.
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ARTICLE 38: CHANGE IN LAW
38.1 Increase in costs
If as a result of Change in Law, the Concessionaire suffers an increase in costs or
reduction in net after-tax return or other financial burden, the aggregate financial effect
of which exceeds the higher of Rs. 1 crore (Rupees one crore)
7
and 0.5% (zero point
five percent) of the revenues in any Accounting Year, the Concessionaire may so notify
the Authority and propose amendments to this Agreement so as to place the
Concessionaire in the same financial position as it would have enjoyed had there been
no such Change in Law resulting in the cost increase, reduction in return or other
financial burden as aforesaid. Upon notice by the Concessionaire, the Parties shall
meet, as soon as reasonably practicable but no later than 30 (thirty) days from the date
of notice, and either agree on amendments to this Agreement or on any other mutually
agreed arrangement:
Provided that if no agreement is reached within 90 (ninety) days of the aforesaid notice,
the Concessionaire may by notice require the Authority to pay an amount that would
place the Concessionaire in the same financial position that it would have enjoyed had
there been no such Change in Law, and within 15 (fifteen) days of receipt of such
notice, along with particulars thereof, the Authority shall pay the amount specified
therein; provided that if the Authority shall dispute such claim of the Concessionaire,
the same shall be settled in accordance with the Dispute Resolution Procedure. For the
avoidance of doubt, it is agreed that this Clause 38.1 shall be restricted to changes in
law directly affecting the Concessionaire’s costs of performing its obligations under
this Agreement.
38.2 Reduction in costs
If as a result of Change in Law, the Concessionaire benefits from a reduction in costs
or increase in net after-tax return or other financial gains, the aggregate financial effect
of which exceeds the higher of Rs. 1 crore (Rupees one crore) and 0.5% (zero point
five percent) of the revenues in any Accounting Year, the Authority may so notify the
Concessionaire and propose amendments to this Agreement so as to place the
Concessionaire in the same financial position as it would have enjoyed had there been
no such Change in Law resulting in the decreased costs, increase in return or other
financial gains as aforesaid. Upon notice by the Authority, the Parties shall meet, as
soon as reasonably practicable but no later than 30 (thirty) days from the date of notice,
and either agree on such amendments to this Agreement or on any other mutually
agreed arrangement:
Provided that if no agreement is reached within 90 (ninety) days of the aforesaid notice,
the Authority may by notice require the Concessionaire to pay an amount that would
place the Concessionaire in the same financial position that it would have enjoyed had
there been no such Change in Law, and within 15 (fifteen) days of receipt of such
notice, along with particulars thereof, the Concessionaire shall pay the amount
specified therein to the Authority; provided that if the Concessionaire shall dispute such
claim of the Authority, the same shall be settled in accordance with the Dispute
Resolution Procedure. For the avoidance of doubt, it is agreed that this Clause 38.2
shall be restricted to changes in law directly affecting the Concessionaire’s costs of
performing its obligations under this Agreement.
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This amount may, in the discretion of the Authority, be suitably increased, but in no case exceeding a
ratio of Rs. 1 cr. for every Rs. 500 cr. of Total Project Cost.
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38.3 Protection of NPV
Pursuant to the provisions of Clauses 38.1 and 38.2 and for the purposes of placing
the Concessionaire in the same financial position as it would have enjoyed had there
been no Change in Law affecting the costs, returns or other financial burden or gains,
the Parties shall rely on the Financial Model to establish a net present value (the
“NPV”) of the net cash flow and make necessary adjustments in costs, revenues,
compensation or other relevant parameters, as the case may be, to procure that the NPV
of the net cash flow is the same as it would have been if no Change in Law had occurred.
38.4 Restriction on cash compensation
The Parties acknowledge and agree that the demand for cash compensation under this
Article 38 shall be restricted to the effect of Change in Law during the respective
Accounting Year and shall be made at any time after commencement of such year, but
no later than one year from the close of such Accounting Year. Any demand for cash
compensation payable for and in respect of any subsequent Accounting Year shall be
made after the commencement of the Accounting Year to which the demand pertains,
but no later than 2 (two) years from the close of such Accounting Year.
38.5 No claim in the event of recovery from Users
Notwithstanding anything to the contrary contained in this Agreement, the Authority
shall not in any manner be liable to reimburse to the Concessionaire any sums on
account of a Change in Law if the same are recoverable from the Users.
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ARTICLE 39: LIABILITY AND INDEMNITY
39.1 General indemnity
39.1.1 The Concessionaire will indemnify, defend, save and hold harmless the Authority and
its officers, servants, agents, Government Instrumentalities and Government owned
and/or controlled entities/enterprises, (the “Authority Indemnified Persons”) against
any and all suits, proceedings, actions, demands and claims from third parties for any
loss, damage, cost and expense of whatever kind and nature, whether arising out of any
breach by the Concessionaire of any of its obligations under this Agreement or any
related agreement or on account of any defect or deficiency in the provision of services
by the Concessionaire to any User or from any negligence of the Concessionaire under
contract or tort or on any other ground whatsoever, except to the extent that any such
suits, proceedings, actions, demands and claims have arisen due to any negligent act or
omission, or breach or default of this Agreement on the part of the Authority
Indemnified Persons.
39.1.2 The Authority will indemnify, defend, save and hold harmless the Concessionaire
against any and all suits, proceedings, actions, demands and claims from third parties
for any loss, damage, cost and expense of whatever kind and nature arising out of (i)
defect in title and/or the rights of the Authority in the land comprised in the Site, and/or
(ii) breach by the Authority of any of its obligations under this Agreement or any related
agreement, which materially and adversely affect the performance by the
Concessionaire of its obligations under this Agreement, save and except that where any
such claim, suit, proceeding, action, and/or demand has arisen due to a negligent act or
omission, or breach of any of its obligations under any provision of this Agreement or
any related agreement and/or breach of its statutory duty on the part of the
Concessionaire, its subsidiaries, affiliates, contractors, servants or agents, the same
shall be the liability of the Concessionaire.
39.2 Indemnity by the Concessionaire
39.2.1 Without limiting the generality of Clause 39.1 the Concessionaire shall fully
indemnify, hold harmless and defend the Authority and the Authority Indemnified
Persons from and against any and all loss and/or damages arising out of or with respect
to:
(a) failure of the Concessionaire to comply with Applicable Laws and Applicable
Permits;
(b) payment of taxes required to be made by the Concessionaire in respect of the
income or other taxes of the Concessionaire’s contractors, suppliers and
representatives; or
(c) non-payment of amounts due as a result of materials or services furnished to
the Concessionaire or any of its contractors which are payable by the
Concessionaire or any of its contractors.
39.2.2 Without limiting the generality of the provisions of this Article 39, the Concessionaire
shall fully indemnify, hold harmless and defend the Authority Indemnified Persons
from and against any and all suits, proceedings, actions, claims, demands, liabilities
and damages which the Authority Indemnified Persons may hereafter suffer, or pay by
reason of any demands, claims, suits or proceedings arising out of claims of
infringement of any domestic or foreign patent rights, copyrights or other intellectual
property, proprietary or confidentiality rights with respect to any materials,
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information, design or process used by the Concessionaire or by the Concessionaire’s
Contractors in performing the Concessionaire’s obligations or in any way incorporated
in or related to the Project. If in any such suit, action, claim or proceedings, a temporary
restraint order or preliminary injunction is granted, the Concessionaire shall make
every reasonable effort, by giving a satisfactory bond or otherwise, to secure the
revocation or suspension of the injunction or restraint order. If, in any such suit, action,
claim or proceedings, the XXX Ropeway, or any part thereof or comprised therein, is
held to constitute an infringement and its use is permanently enjoined, the
Concessionaire shall promptly make every reasonable effort to secure for the Authority
a licence, at no cost to the Authority, authorising continued use of the infringing work.
If the Concessionaire is unable to secure such licence within a reasonable time, the
Concessionaire shall, at its own expense, and without impairing the Specifications and
Standards, either replace the affected work, or part, or process thereof with non-
infringing work or part or process or modify the same so that it becomes non-infringing.
39.3 Notice and contest of claims
In the event that either Party receives a claim or demand from a third party in respect
of which it is entitled to the benefit of an indemnity under this Article 39 (the
“Indemnified Party”) it shall notify the other Party (the “Indemnifying Party”)
within 15 (fifteen) days of receipt of the claim or demand and shall not settle or pay the
claim without the prior approval of the Indemnifying Party, which approval shall not
be unreasonably withheld or delayed. In the event that the Indemnifying Party wishes
to contest or dispute the claim or demand, it may conduct the proceedings in the name
of the Indemnified Party, subject to the Indemnified Party being secured against any
costs involved, to its reasonable satisfaction.
39.4 Defence of claims
39.4.1 The Indemnified Party shall have the right, but not the obligation, to contest, defend
and litigate any claim, action, suit or proceeding by any third party alleged or asserted
against such Party in respect of, resulting from, related to or arising out of any matter
for which it is entitled to be indemnified hereunder, and reasonable costs and expenses
thereof shall be indemnified by the Indemnifying Party. If the Indemnifying Party
acknowledges in writing its obligation to indemnify the Indemnified Party in respect
of loss to the full extent provided by this Article 39, the Indemnifying Party shall be
entitled, at its option, to assume and control the defence of such claim, action, suit or
proceeding, liabilities, payments and obligations at its expense and through the counsel
of its choice; provided it gives prompt notice of its intention to do so to the Indemnified
Party and reimburses the Indemnified Party for the reasonable cost and expenses
incurred by the Indemnified Party prior to the assumption by the Indemnifying Party
of such defence. The Indemnifying Party shall not be entitled to settle or compromise
any claim, demand, action, suit or proceeding without the prior written consent of the
Indemnified Party, unless the Indemnifying Party provides such security to the
Indemnified Party as shall be reasonably required by the Indemnified Party to secure
the loss to be indemnified hereunder to the extent so compromised or settled.
39.4.2 If the Indemnifying Party has exercised its rights under Clause 39.3 the Indemnified
Party shall not be entitled to settle or compromise any claim, action, suit or proceeding
without the prior written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld or delayed).
39.4.3 If the Indemnifying Party exercises its rights under Clause 39.3 the Indemnified Party
shall nevertheless have the right to employ its own counsel, and such counsel may
participate in such action, but the fees and expenses of such counsel shall be at the
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expense of the Indemnified Party, when and as incurred, unless:
(a) the employment of counsel by such party has been authorised in writing by the
Indemnifying Party; or
(b) the Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the Indemnified Party
in the conduct of the defence of such action; or
(c) the Indemnifying Party shall not, in fact, have employed independent counsel
reasonably satisfactory to the Indemnified Party, to assume the defence of such
action and shall have been so notified by the Indemnified Party; or
(d) the Indemnified Party shall have reasonably concluded and specifically
notified the Indemnifying Party either:
(i) that there may be specific defences available to it which are different
from or additional to those available to the Indemnifying Party; or
(ii) that such claim, action, suit or proceeding involves or could have a
material adverse effect upon it beyond the scope of this Agreement:
Provided that if Sub-clauses (b), (c) or (d) of this Clause 39.4.3 shall be applicable, the
counsel for the Indemnified Party shall have the right to direct the defence of such
claim, demand, action, suit or proceeding on behalf of the Indemnified Party, and the
reasonable fees and disbursements of such counsel shall constitute legal or other
expenses hereunder.
39.5 No consequential claims
Notwithstanding anything to the contrary contained in this Article 39, the indemnities
herein provided shall not include any claim or recovery in respect of any cost, expense,
loss or damage of an indirect, incidental or consequential nature, including loss of
profit, except as expressly provided in this Agreement.
39.6 Survival on Termination
The provisions of this Article 39 shall survive Termination.
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ARTICLE 40: RIGHTS AND TITLE OVER THE SITE
40.1 Licensee rights
For the purpose of this Agreement, the Concessionaire shall have rights to the use of
the Site as sole licensee subject to and in accordance with this Agreement, and to this
end, it may regulate the entry and use of the XXX Ropeway by third parties in
accordance with and subject to the provisions of this Agreement.
40.2 Access rights of the Authority and others
40.2.1 The Concessionaire shall allow free access to the Site at all times for the authorised
representatives and vehicles of the Authority, Senior Lenders, and the Independent
Engineer, and for the persons and vehicles duly authorised by any Government
Instrumentality to inspect the XXX Ropeway or to investigate any matter within their
authority, and upon reasonable notice, the Concessionaire shall provide to such persons
reasonable assistance necessary to carry out their respective duties and functions.
40.3 Property taxes
All property taxes on the Site shall be payable by the Authority as owner of the Site;
provided, however, that any such taxes payable by the Concessionaire under
Applicable Laws for use of the Site shall not be reimbursed or payable by the Authority.
40.4 Restriction on sub-letting
The Concessionaire shall not sublicense or sublet the whole or any part of the Site, save
and except as may be expressly set forth in this Agreement; provided that nothing
contained herein shall be construed or interpreted as restricting the right of the
Concessionaire to appoint Contractors for the performance of its obligations hereunder
including for operation and maintenance of all or any part of the XXX Ropeway.
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ARTICLE 41: DISPUTE RESOLUTION
41.1 Dispute resolution
41.1.1 Any dispute, difference or controversy of whatever nature howsoever arising under or
out of or in relation to this Agreement (including its interpretation) between the Parties,
and so notified in writing by either Party to the other Party (the “Dispute”) shall, in the
first instance, be attempted to be resolved amicably in accordance with the conciliation
procedure set forth in Clause 41.2
41.1.2 The Parties agree to use their best efforts for resolving all Disputes arising under or in
respect of this Agreement promptly, equitably and in good faith, and further agree to
provide each other with reasonable access during normal business hours to all non-
privileged records, information and data pertaining to any Dispute.
41.2 Conciliation
In the event of any Dispute between the Parties, either Party may call upon the
Independent Engineer to mediate and assist the Parties in arriving at an amicable
settlement thereof. Failing mediation by the Independent Engineer or without the
intervention of the Independent Engineer, either Party may require such Dispute to be
referred to the Chairman of the Authority and the Chairman of the Board of Directors
of the Concessionaire for amicable settlement, and upon such reference, the said
persons shall meet no later than 7 (seven) days from the date of reference to discuss
and attempt to amicably resolve the Dispute. If such meeting does not take place within
the 7 (seven) day period or the Dispute is not amicably settled within 15 (fifteen) days
of the meeting or the Dispute is not resolved as evidenced by the signing of written
terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause
41.1.1 or such longer period as may be mutually agreed by the Parties, either Party
may refer the Dispute to arbitration in accordance with the provisions of Clause 41.3
41.3 Arbitration
41.3.1 Any Dispute which is not resolved amicably by conciliation, as provided in Clause 41.2
2, shall be finally decided by reference to arbitration by a Board of Arbitrators
appointed in accordance with Clause 41.3.2 Such arbitration shall be held in
accordance with the Rules of Arbitration of the International Centre for Alternative
Dispute Resolution, New Delhi (the “Rules”), or such other rules as may be mutually
agreed by the Parties and shall be subject to the provisions of the Arbitration Act. The
venue of such arbitration shall be Delhi, and the language of arbitration proceedings
shall be English.
41.3.2 There shall be a Board of three arbitrators, of whom each Party shall select one, and
the third arbitrator shall be appointed by the two arbitrators so selected, and in the event
of disagreement between the two arbitrators, the appointment shall be made in
accordance with the Rules.
41.3.3 The arbitrators shall make a reasoned award (the “Award”). Any Award made in any
arbitration held pursuant to this Article 41 shall be final and binding on the Parties as
from the date it is made, and the Concessionaire and the Authority agree and undertake
to carry out such Award without delay.
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41.3.4 The Concessionaire and the Authority agree that an Award may be enforced against
the Concessionaire and/or the Authority, as the case may be, and their respective assets
wherever situated.
41.3.5 This Agreement and the rights and obligations of the Parties shall remain in full force
and effect, pending the Award in any arbitration proceedings hereunder.
41.4 Adjudication by Regulatory Authority or Commission
In the event of constitution of a statutory Regulatory Authority or Commission with
powers to adjudicate upon disputes between the Concessionaire and the Authority, all
Disputes arising after such constitution shall, instead of reference to arbitration under
Clause 41.3, be adjudicated upon by such Regulatory Authority or Commission in
accordance with the Applicable Law and all references to Dispute Resolution
Procedure shall be construed accordingly. For the avoidance of doubt, the Parties hereto
agree that the adjudication hereunder shall not be final and binding until an appeal
against such adjudication has been decided by an appellate tribunal or High Court, as
the case may be, or no such appeal has been preferred within the time specified in the
Applicable Law.
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ARTICLE 42: DISCLOSURE
42.1 Disclosure of Specified Documents
The Concessionaire shall make available for inspection by any person, copies of this
Concession Agreement, the Maintenance Manual, the Maintenance Programme and the
Maintenance Requirements (hereinafter collectively referred to as the “Specified
Documents”), free of charge, during normal business hours on all working days at the
Concessionaire’s Registered Office. The Concessionaire shall provide copies of the
same to any person upon payment of copying charges on a ‘no profit no loss’ basis.
42.2 Disclosure of Documents relating to safety
The Concessionaire shall make available for inspection by any person copies of all
Documents and data relating to safety of the XXX Ropeway, free of charge, during
normal business hours on all working days, at the Concessionaire’s Registered Office.
The Concessionaire shall make copies of the same available to any person upon
payment of copying charges on a ‘no profit no loss’ basis.
Notwithstanding the provisions of Clauses 42.1 and 42.2, the Authority shall be entitled
to direct the Concessionaire, from time to time, to withhold the disclosure of Protected
Documents (as defined hereinbelow) to any person in pursuance of the aforesaid
Clauses.
Explanation:
The expression Protected Documents shall mean such of the Specified Documents or
documents referred to in Clauses 42.1 and 42.2, or portions thereof, the disclosure of
which the Authority is entitled to withhold under the provisions of the Right to
Information Act, 2005.
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ARTICLE 43: REDRESSAL OF PUBLIC GRIEVANCES
43.1 Complaints Register
43.1.1 The Concessionaire shall maintain a public relations office at each of the terminals
where it shall keep a register (the “Complaint Register”) open to public access at all
times for recording of complaints by any person (the “Complainant”). Information
relating to the availability of and access to the Complaint Register shall be prominently
displayed by the Concessionaire at each terminal so as to bring it to the attention of all
Users.
43.1.2 The Complaint Register shall be securely bound, and each page thereof shall be duly
numbered. It shall have appropriate columns including the complaint number, date,
name and address of the Complainant, substance of the complaint and the action taken
by the Concessionaire. Immediately after a complaint is registered, the Concessionaire
shall give a receipt to the Complainant stating the date and complaint number.
43.1.3 Without prejudice to the provisions of Clauses 43.1.1 and 43.1.2, the Authority may,
in consultation with the Concessionaire, specify the procedure for making complaints
in electronic form and for responses thereto.
43.2 Redressal of complaints
43.2.1 The Concessionaire shall inspect the Complaint Register every day and take prompt
and reasonable action for redressal of each complaint. The action taken shall be briefly
noted in the Complaint Register and a reply stating the particulars thereof shall be sent
by the Concessionaire to the Complainant under a certificate of posting.
43.2.2 Within 7 (seven) days of the close of each month, the Concessionaire shall send to the
Authority and to the Independent Engineer a true photocopy each of all the pages of
the Complaint Register on which any entry has been recorded during the course of such
month, and upon perusal thereof, the Authority may, in its discretion, advise the
Concessionaire to take such further action as the Authority may deem appropriate for
a fair and just redressal of any grievance. The Concessionaire shall consider such
advice and inform the Authority of its decision thereon, and if the Authority is of the
opinion that the Complainant is entitled to further relief, it may refer the matter to the
competent forum for its disposal under the Consumer Protection Act, 1986, and advise
the Complainant to pursue the complaint at his own risk and cost.
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ARTICLE 44: MISCELLANEOUS
44.1 Governing law and jurisdiction
This Agreement shall be construed and interpreted in accordance with and governed
by the laws of India, and the courts at Delhi shall have exclusive jurisdiction over
matters arising out of or relating to this Agreement.
44.2 Waiver of immunity
Each Party unconditionally and irrevocably:
(a) agrees that the execution, delivery and performance by it of this Agreement
constitute commercial acts done and performed for commercial purpose;
(b) agrees that, should any proceedings be brought against it or its assets, property
or revenues in any jurisdiction in relation to this Agreement or any transaction
contemplated by this Agreement, no immunity (whether by reason of
sovereignty or otherwise) from such proceedings shall be claimed by or on
behalf of the Party with respect to its assets;
(c) waives any right of immunity which it or its assets, property or revenues now
has, may acquire in the future or which may be attributed to it in any
jurisdiction; and
(d) consents generally in respect of the enforcement of any judgement or award
against it in any such proceedings to the giving of any relief or the issue of any
process in any jurisdiction in connection with such proceedings (including the
making, enforcement or execution against it or in respect of any assets,
property or revenues whatsoever irrespective of their use or intended use of
any order or judgement that may be made or given in connection therewith).
44.3 Depreciation and Interest
44.3.1 For the purposes of depreciation under the Applicable Laws, the property representing
the capital investment made by the Concessionaire in the Project shall be deemed to be
acquired and owned by the Concessionaire. For the avoidance of doubt, the Authority
shall not in any manner be liable in respect of any claims for depreciation to be made
by the Concessionaire under the Applicable Laws.
44.3.2 Unless otherwise specified, any interest payable under this Agreement shall accrue on
a daily outstanding basis and shall be compounded on the basis of quarterly rests.
44.4 Delayed payments
The Parties hereto agree that payments due from one Party to the other Party under the
provisions of this Agreement shall be made within the period set forth therein, and if
no such period is specified, within 30 (thirty) days of receiving a demand along with
the necessary particulars. In the event of delay beyond such period, the defaulting Party
shall pay interest for the period of delay calculated at a rate equal to 5% (five per cent)
above the Bank Rate, and recovery thereof shall be without prejudice to the rights of
the Parties under this Agreement including Termination thereof.
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44.5 Waiver
44.5.1 Waiver, including partial or conditional waiver, by either Party of any default by the
other Party in the observance and performance of any provision of or obligations under
this Agreement: -
(a) shall not operate or be construed as a waiver of any other or subsequent default
hereof or of other provisions of or obligations under this Agreement;
(b) shall not be effective unless it is in writing and executed by a duly authorised
representative of the Party; and
(c) shall not affect the validity or enforceability of this Agreement in any manner.
44.5.2 Neither the failure by either Party to insist on any occasion upon the performance of
the terms, conditions and provisions of this Agreement or any obligation thereunder
nor time or other indulgence granted by a Party to the other Party shall be treated or
deemed as waiver of such breach or acceptance of any variation or the relinquishment
of any such right hereunder.
44.6 Liability for review of Documents and Drawings
Except to the extent expressly provided in this Agreement:
(a) no review, comment or approval by the Authority or the Independent Engineer
of any Project Agreement, Document or Drawing submitted by the
Concessionaire nor any observation or inspection of the construction, operation
or maintenance of the XXX Ropeway nor the failure to review, approve,
comment, observe or inspect hereunder shall relieve or absolve the
Concessionaire from its obligations, duties and liabilities under this
Agreement, the Applicable Laws and Applicable Permits; and
(b) the Authority shall not be liable to the Concessionaire by reason of any review,
comment, approval, observation or inspection referred to in Sub-clause (a)
above.
44.7 Exclusion of implied warranties etc.
This Agreement expressly excludes any warranty, condition or other undertaking
implied at law or by custom or otherwise arising out of any other agreement between
the Parties or any representation by either Party not contained in a binding legal
agreement executed by both Parties.
44.8 Survival
44.8.1 Termination shall:
(a) not relieve the Concessionaire or the Authority, as the case may be, of any
obligations hereunder which expressly or by implication survive Termination
hereof; and
(b) except as otherwise provided in any provision of this Agreement expressly
limiting the liability of either Party, not relieve either Party of any obligations
or liabilities for loss or damage to the other Party arising out of, or caused by,
acts or omissions of such Party prior to the effectiveness of such Termination
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or arising out of such Termination.
44.8.2 All obligations surviving Termination shall only survive for a period of 3 (three)years
following the date of such Termination.
44.9 Entire Agreement
This Agreement and the Schedules together constitute a complete and exclusive
statement of the terms of the agreement between the Parties on the subject hereof, and
no amendment or modification hereto shall be valid and effective unless such
modification or amendment is agreed to in writing by the Parties and duly executed by
persons especially empowered in this behalf by the respective Parties. All prior written
or oral understandings offers or other communications of every kind pertaining to this
Agreement are abrogated and withdrawn. For the avoidance of doubt, the Parties hereto
agree that any obligations of the Concessionaire arising from the Request for
Qualification or Request for Proposals, as the case may be, shall be deemed to form
part of this Agreement and treated as such.
44.10 Severability
If for any reason whatever, any provision of this Agreement is or becomes invalid,
illegal or unenforceable or is declared by any court of competent jurisdiction or any
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected in any manner, and the
Parties will negotiate in good faith with a view to agreeing to one or more provisions
which may be substituted for such invalid, unenforceable or illegal provisions, as nearly
as is practicable to such invalid, illegal or unenforceable provision. Failure to agree
upon any such provisions shall not be subject to the Dispute Resolution Procedure set
forth under this Agreement or otherwise.
44.11 No partnership
This Agreement shall not be interpreted or construed to create an association, joint
venture or partnership between the Parties, or to impose any partnership obligation or
liability upon either Party, and neither Party shall have any right, power or authority to
enter into any agreement or undertaking for, or act on behalf of, or to act as or be an
agent or representative of, or to otherwise bind, the other Party.
44.12 Third parties
This Agreement is intended solely for the benefit of the Parties, and their respective
successors and permitted assigns, and nothing in this Agreement shall be construed to
create any duty to, standard of care with reference to, or any liability to, any person not
a Party to this Agreement.
44.13 Successors and assigns
This Agreement shall be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns.
44.14 Notices
Any notice or other communication to be given by any Party to the other Party under
or in connection with the matters contemplated by this Agreement shall be in writing
and shall:
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(a) in the case of the Concessionaire, be given by facsimile or e-mail and by letter
delivered by hand to the address given and marked for attention of the person set
out below or to such other person as the Concessionaire may from time to time
designate by notice to the Authority; provided that notices or other
communications to be given to an address outside Delhi may, if they are
subsequently confirmed by sending a copy thereof by registered
acknowledgement due, air mail or by courier, be sent by facsimile or e-mail to
the number as the Concessionaire may from time to time designate by notice to
the Authority;
Attention:
Designation:
Address:
Fax No:
Email:
(b) in the case of the Authority, be given by facsimile or e-mail and by letter
delivered by hand at the address given below and be addressed to the Chairman
of the Authority with a copy delivered to the Authority Representative or such
other person as the Authority may from time to time designate by notice to the
Concessionaire; provided that if the Concessionaire does not have an office in
Delhi it may send such notice by facsimile or e-mail and by registered
acknowledgement due, air mail or by courier;
Address:
Fax No:
Email:
(c) any notice or communication by a Party to the other Party, given in accordance
herewith, shall be deemed to have been delivered when in the normal course of
post it ought to have been delivered and in all other cases, it shall be deemed to
have been delivered on the actual date and time of delivery; provided that in the
case of facsimile or e-mail, it shall be deemed to have been delivered on the
working day following the date of its delivery.
44.15 Language
All notices required to be given by one Party to the other Party and all other
communications, Documentation and proceedings which are in any way relevant to this
Agreement shall be in writing and in English language.
44.16 Counterparts
This Agreement may be executed in two counterparts, each of which, when executed
and delivered, shall constitute an original of this Agreement.
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ARTICLE 45: DEFINITIONS
45.1 Definitions
In this Agreement, the following words and expressions shall, unless repugnant to the
context or meaning thereof, have the meaning hereinafter respectively assigned to
them:
“Accounting Year” means the financial year commencing from the first day of April
of any calendar year and ending on the thirty-first day of March of the next calendar
year;
"Actual Average Traffic 1" shall have the meaning set forth in Clause 27.1.1
"Actual Average Traffic 2" shall have the meaning set forth in Clause 27.1.1
"Additional Auditors" shall have the meaning set forth in Clause 30.2.3
“Additional Facilities” means the facilities such as service stations, motels,
restaurants, shopping areas and amusement parks which the Concessionaire may, in its
discretion and subject to Applicable Laws, provide or procure for the benefit of the
Users, and which are in addition to the Project Facilities, and not situated on the Site;
“Additional Termination Payment” means the amount, if any, payable upon
Termination, on account of the Adjusted Depreciated Value of Specified Assets, as
further limited by the provisions of Clauses 34.5.2, 34.5.3 and 34.5.4, as the case may
be;
“Adjusted Depreciated Value” means the amount arrived at after adjusting the
depreciated book value of an asset (as stated in the books of account of the
Concessionaire, save and except, in the case of buildings and permanent structures
where the depreciated book value shall be determined by applying an annual
depreciation rate of 3% based on the written down value method) to reflect the variation
occurring in WPI between the date of purchase thereof and the Transfer Date;
“Adjusted Equity” means the Equity funded in Indian Rupees and adjusted on the first
day of the current month (the “Reference Date”), in the manner set forth below, to
reflect the change in its value on account of depreciation and variations in WPI, and for
any Reference Date occurring:
(a) on or before COD, the Adjusted Equity shall be a sum equal to the Equity
funded in Indian Rupees and expended on the Project, revised to the extent of
one half of the variation in WPI occurring between the first day of the month
of Appointed Date and the Reference Date;
(b) from COD and until the 4th (fourth) anniversary thereof, an amount equal to
the Adjusted Equity as on COD shall be deemed to be the base (the “Base
Adjusted Equity”) and the Adjusted Equity hereunder shall be a sum equal to
the Base Adjusted Equity, revised at the commencement of each month
following COD to the extent of variation in WPI occurring between COD and
the Reference Date;
(c) after the 4th (fourth) anniversary of COD, the Adjusted Equity hereunder shall
be a sum equal to the Base Adjusted Equity, reduced by 0.42% (zero point four
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two per cent)
8
thereof at the commencement of each month following the 4th
(fourth) anniversary of COD and the amount so arrived at shall be revised to
the extent of variation in WPI occurring between COD and the Reference Date;
“Affected Party” shall have the meaning set forth in Clause 31.1
“Agreement” or “Concession Agreement” means this Agreement, its Recitals, the
Schedules hereto and any amendments thereto made in accordance with the provisions
contained in this Agreement;
“Appendix” shall have the meaning set forth in Clause 10.3.1;
“Applicable Laws” means all laws, brought into force and effect by GOI or the State
Government including rules, regulations and notifications made thereunder, and
judgements, decrees, injunctions, writs and orders of any court of record, applicable to
this Agreement and the exercise, performance and discharge of the respective rights
and obligations of the Parties hereunder, as may be in force and effect during the
subsistence of this Agreement;
“Applicable Permits” means all clearances, licences, permits, authorisations, no
objection certificates, consents, approvals and exemptions required to be obtained or
maintained under Applicable Laws in connection with the construction, operation and
maintenance of the XXX Ropeway during the subsistence of this Agreement;
“Appointed Date” means the date on which Financial Close is achieved or an earlier
date that the Parties may by mutual consent determine and shall be deemed to be the
date of commencement of the Concession Period. For the avoidance of doubt, every
Condition Precedent shall have been satisfied or waived prior to the Appointed Date
and in the event all Conditions Precedent are not satisfied or waived, as the case may
be, the Appointed Date shall be deemed to occur only when each and every Condition
Precedent is either satisfied or waived, as the case may be;
“Approved Valuer” means a firm of valuers recognized as such by the Income Tax
Department and having experience of valuing at least 5 (five) properties exceeding Rs.
100 cr. (Rupees one hundred crore) each in value;
“Arbitration Act” means the Arbitration and Conciliation Act, 1996 and shall include
modifications to or any re-enactment thereof, as in force from time to time;
“Associate” or “Affiliate” means, in relation to either Party {and/or Consortium
Members}, a person who controls, is controlled by, or is under the common control
with such Party {or Consortium Member} (as used in this definition, the expression
“control” means, with respect to a person which is a company or corporation, the
ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares
of such person, and with respect to a person which is not a company or corporation, the
power to direct the management and policies of such person, whether by operation of
law or by contract or otherwise);
“Authority” shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals;
8
This number shall be substituted in each case by the figure arrived at upon dividing 100 by the number
of months comprising the Concession Period. For example, the figure for a 20 year Concession Period
shall be 100/ 240 = 0.416 rounded off to two decimal points i.e. 0.42.
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“Authority Default” shall have the meaning set forth in Clause34.2.1
“Authority Indemnified Persons” shall have the meaning set forth in Clause 39.1.1
“Authority Representative” means such person or persons as may be authorised in
writing by the Authority to act on its behalf under this Agreement and shall include any
person or persons having authority to exercise any rights or perform and fulfil any
obligations of the Authority under this Agreement;
“Average Daily Fee” means the amount arrived at after dividing the total revenues of
the immediately preceding Accounting Year by 365 (three hundred and sixty-five), and
increasing the result thereof by 5% (five per cent);
provided that the Average Daily Fee for any period prior to completion of the first
Accounting Year following COD shall be a simple average of the Fee collected every
day during the period between COD and the last day of the month preceding the date
on which the event requiring calculation hereof occurred;
“Bank” means a bank incorporated in India and having a minimum net worth of Rs.
1,000 crore (Rupees one thousand crore) or any other bank acceptable to Senior
Lenders, but does not include a bank in which any Senior Lender has an interest;
“Bank Rate” means the rate of interest specified by the Reserve Bank of India from
time to time in pursuance of section 49 of the Reserve Bank of India Act, 1934 or any
replacement of such Bank Rate for the time being in effect;
“Bid” means the documents in their entirety comprised in the bid submitted by the
{selected bidder/Consortium} in response to the Request for Proposal in accordance
with the provisions thereof;
“Bid Security” means the security provided by the Concessionaire to the Authority
along with the Bid in a sum of Rs. ***** crore (Rupees ***** crore)
9
, in accordance
with the Request for Proposal, and which is to remain in force until substituted by the
Performance Security;
“Change in Law” means the occurrence of any of the following after the date of Bid:
(a) the enactment of any new Indian law;
(b) the repeal, modification or re-enactment of any existing Indian law;
(c) the commencement of any Indian law which has not entered into effect until
the date of Bid;
(d) a change in the interpretation or application of any Indian law by a judgement
of a court of record which has become final, conclusive and binding, as
compared to such interpretation or application by a court of record prior to the
date of Bid; or
(e) any change in the rates of any of the Taxes that have a direct effect on the
9
Calculated @1% (one per cent) of the amount specified in the definition of Total Project Cost.The
Authority may, if deemed necessary, prescribe a higher Bid Security not exceeding 2% of the Total
Project Cost. In the case of a project having a Total Project Cost of Rs. 2,000 cr. or above, the Authority
may reduce the Bid Security, but not less than 0.5% of the Total Project Cost in any case.
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Project;
“Change in Ownership” means a transfer of the direct and/or indirect legal or
beneficial ownership of any shares, or securities convertible into shares, that causes the
aggregate holding of the {selected bidder/Consortium Members}, together with
{its/their} Associates, in the total Equity to decline below (i) 51% (fifty one per cent)
thereof during Construction Period, (ii) 33% (thirty three per cent) thereof during a
period of 3 (three) years following COD, and (iii) 26% (twenty six per cent) thereof, or
such lower proportion as may be permitted by the Authority during the remaining
Concession Period; provided that any material variation (as compared to the
representations made by the Concessionaire during the bidding process for the purposes
of meeting the minimum conditions of eligibility or for evaluation of its application or
Bid, as the case may be,) in the proportion of the equity holding of {the selected
bidder/any Consortium Member} to the total Equity, if it occurs prior to COD, shall
constitute Change in Ownership;
“Change of Scope” shall have the meaning set forth in Clause 16.1;
“Change of Scope Note” shall have the meaning set forth in Clause 16.2.1;
“Change in Scope Order” shall have the meaning set forth in Clause 16.2.3
“Company” means the company acting as the Concessionaire under this Agreement;
“Completion Certificate” shall have the meaning set forth in Clause 14.2;
“Concession” shall have the meaning set forth in Clause 3.1.1;
“Concessionaire” shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals;
“Concession Fee” shall have the meaning set forth in Clause 25.1
“Concession Period” means the period starting on and from the Appointed Date and
ending on the Transfer Date;
“Concessionaire Default” shall have the meaning set forth in Clause 34.1.1;
“COD” or “Commercial Operation Date” shall have the meaning set forth in Clause
15.1;
“Complainant” shall have the meaning set forth in Clause 43.1.1;
“Complain Register” shall have the meaning set forth in Clause 43.1.1;
“Concurrent Auditors” shall have the meaning set forth in Clause 30.2.4
“Conditions Precedent” shall have the meaning set forth in Clause 4.1.1;
{“Consortium” shall have the meaning set forth in Recital (B);}
{“Consortium Member” means a company specified in Recital (_B) as a member of
the Consortium;}
“Construction Period” means the period beginning from the Appointed Date and
ending on the COD;
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“Construction Works” means all works and things necessary to complete the XXX
Ropeway in accordance with this Agreement;
“Contractor” means the person or persons, as the case may be, with whom the
Concessionaire has entered into any of the EPC Contract, the O&M Contract or any
other material agreement or contract for construction, operation and/or maintenance of
the XXX Ropeway or matters incidental thereto, but does not include a person who has
entered into an agreement for providing financial assistance to the Concessionaire;
“Covenant” shall have the meaning set forth in Clause 5.2.5
“Cure Period” means the period specified in this Agreement for curing any breach or
default of any provision of this Agreement by the Party responsible for such breach or
default and shall:
(a) commence from the date on which a notice is delivered by one Party to the
other Party asking the latter to cure the breach or default specified in such
notice;
(b) not relieve any Party from liability to pay Damages or compensation under the
provisions of this Agreement; and
(c) not in any way be extended by any period of Suspension under this Agreement;
provided that if the cure of any breach by the Concessionaire requires any
reasonable action by the Concessionaire that must be approved by the
Authority or the Independent Engineer hereunder, the applicable Cure Period
shall be extended by the period taken by the Authority or the Independent
Engineer to accord their approval;
“DBFOT” or “Design, Build, Finance, Operate and Transfer” shall have the
meaning set forth in Recital (B);
“Damages” shall have the meaning set forth in Sub-clause (w) of Clause 1.2.1;
“Debt Due” means the aggregate of the following sums expressed in Indian Rupees
outstanding on the Transfer Date:
(a) the principal amount of the debt provided by the Senior Lenders under the
Financing Agreements for financing the Total Project Cost (the “principal”)
but excluding any part of the principal that had fallen due for repayment two
years prior to the Transfer Date;
(b) all accrued interest, financing fees and charges payable under the Financing
Agreements on, or in respect of, the debt referred to in Sub-clause (a) above
until the Transfer Date but excluding (i) any interest, fees or charges that had
fallen due one year prior to the Transfer Date, (ii) any penal interest or charges
payable under the Financing Agreements to any Senior Lender, and (iii) any
pre-payment charges in relation to accelerated repayment of debt except where
such charges have arisen due to Authority Default; and
(c) any Subordinated Debt which is included in the Financial Package and
disbursed by lenders for financing the Total Project Cost;
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Provided that if all or any part of the Debt Due is convertible into Equity at the option
of the Senior Lenders and/or the Concessionaire, it shall for the purposes of this
Agreement be deemed to be Debt Due even after such conversion and the principal
thereof shall be dealt with as if such conversion had not been undertaken;
“Debt Service” means the sum of all payments on account of principal, interest,
financing fees and charges due and payable in an Accounting Year to the Senior
Lenders under the Financing Agreements;
“Development Period” means the period from the date of this Agreement until the
Appointed Date;
“Dispute” shall have the meaning set forth in Clause 41.1.1
“Dispute Resolution Procedure” means the procedure for resolution of Disputes set
forth in Article 44;
“Divestment Requirements” means the obligations of the Concessionaire for and in
respect of Termination as set forth in Clause 35.1
“Document” or “Documentation” means documentation in printed or written form, or
in tapes, discs, drawings, computer programmes, writings, reports, photographs, films,
cassettes, or expressed in any other written, electronic, audio or visual form;
“Drawings” means all of the drawings, calculations and documents pertaining to the
XXX Ropeway as set forth in Schedule-H, and shall include ‘as built’ drawings of the
XXX Ropeway;
“EPC Contract” means the engineering, procurement and construction contract or
contracts entered into by the Concessionaire with one or more Contractors for, inter
alia, engineering and construction of the XXX Ropeway in accordance with the
provisions of this Agreement;
“EPC Contractor” means the person with whom the Concessionaire has entered into
an EPC Contract;
“Emergency” means a condition or situation that is likely to endanger the security of
the individuals on or about the XXX Ropeway, including Users thereof, or which poses
an immediate threat of material damage to any of the Project Assets;
“Encumbrances” means, in relation to the XXX Ropeway and Real Estate
Development, any encumbrances such as mortgage, charge, pledge, lien,
hypothecation, security interest, assignment, privilege or priority of any kind having
the effect of security or other such obligations, and shall include any designation of
loss payees or beneficiaries or any similar arrangement under any insurance policy
pertaining to the XXX Ropeway, where applicable herein but excluding utilities
referred to in Clause 11.1;
“Equity” means the sum expressed in Indian Rupees representing the paid up equity
share capital of the Concessionaire for meeting the equity component of the Total
Project Cost, and shall for the purposes of this Agreement include convertible
instruments or other similar forms of capital, which shall compulsorily convert into
equity share capital of the Company, and any interest-free funds advanced by any
shareholder of the Company for meeting such equity component, but does not include
Equity Support;
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“Equity Support” shall have the meaning set forth in Clause 24.2.1;
“Escrow Account” means an Account which the Concessionaire shall open and
maintain with a Bank in which all inflows and outflows of cash on account of capital
and revenue receipts and expenditures shall be credited and debited, as the case may
be, in accordance with the provisions of this Agreement, and includes the Sub-
Accounts of such Escrow Account;
“Escrow Agreement” shall have the meaning set forth in Clause 28.1.2
“Escrow Bank” shall have the meaning set forth in Clause 28.1.1;
“Escrow Default” shall have the meaning set forth in Schedule-R;
“Fee” means the charge levied on and payable for using the XXX Ropeway or a part
thereof, in accordance with the Fee Rules and this Agreement;
“Fee Notification” means the Notification No. …………dated……..issued by the
Authority in exercise of the powers conferred by Section **** of the **** Act, 20**
in respect of the levy and collection of Fee during the Concession Period and a copy of
which is at Schedule P and includes any subsequent notifications issued from time to
time for levy and collection of Fee contemplated by the provisions of this Agreement;
“Financial Close” means the fulfilment of all conditions precedent to the initial
availability of funds under the Financing Agreements;
“Financial Default” shall have the meaning set forth in Schedule O;
“Financial Model” means the financial model adopted by Senior Lenders, setting forth
the capital and operating costs of the Project and revenues therefrom on the basis of
which financial viability of the Project has been determined by the Senior Lenders, and
includes a description of the assumptions and parameters used for making calculations
and projections therein;
“Financial Package” means the financing package indicating the total capital cost of
XXX Ropeway and the means of financing thereof, as set forth in the Financial Model
and approved by the Senior Lenders, and includes Equity, all financial assistance
specified in the Financing Agreements, Subordinated Debt and Equity Support, if any;
“Financing Agreements” means the agreements executed by the Concessionaire in
respect of financial assistance to be provided by the Senior Lenders by way of loans,
guarantees, subscription to non-convertible debentures and other debt instruments
including loan agreements, guarantees, notes, debentures, bonds and other debt
instruments, security agreements, and other documents relating to the financing
(including refinancing) of the Total Project Cost, and includes amendments or
modifications made in accordance with Clause 5.2.2;
“Force Majeure” or “Force Majeure Event” shall have the meaning ascribed to it in
Clause 34.1;
“Force Majeure Costs” shall have the meaning set forth in Clause 31.7.2;
“GOI” or “Government” means the Government of India;
“Good Industry Practice” means the practices, methods, techniques, designs,
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standards, skills, diligence, efficiency, reliability and prudence which are generally and
reasonably expected from a reasonably skilled and experienced operator engaged in the
same type of undertaking as envisaged under this Agreement and which would be
expected to result in the performance of its obligations by the Concessionaire in
accordance with this Agreement, Applicable Laws and Applicable Permits in reliable,
safe, economical and efficient manner;
“Government Instrumentality” means any department, division or sub-division of
the Government or the State Government and includes any commission, board,
authority, agency or municipal and other local authority or statutory body including
Panchayat under the control of the Government or the State Government, as the case
may be, and having jurisdiction over all or any part of the XXX Ropeway or the
performance of all or any of the services or obligations of the Concessionaire under or
pursuant to this Agreement;
“Grant” shall have the meaning set forth in Clause 24.1.1
“Indemnified Party” means the Party entitled to the benefit of an indemnity pursuant
to Article 42;
“Indemnifying Party” means the Party obligated to indemnify the other Party pursuant
to Article 42;
“Independent Engineer” shall have the meaning set forth in Article 22;
“Indirect Political Event” shall have the meaning set forth in Clause 31.3;
“Inspection Report” shall have the meaning set forth in Clause 13.2;
“Insurance Cover” means the aggregate of the maximum sums insured under the
insurances taken out by the Concessionaire pursuant to Article 32, and includes all
insurances required to be taken out by the Concessionaire under Clause 29.1 but not
actually taken, and when used in the context of any act or event, it shall mean the
aggregate of the maximum sums insured and payable or deemed to be insured and
payable in relation to such act or event;
“Intellectual Property” means all patents, trademarks, service marks, logos, get-up,
trade names, internet domain names, rights in designs, blue prints, programmes and
manuals, drawings, copyright (including rights in computer software), database rights,
semi-conductor, topography rights, utility models, rights in know-how and other
intellectual property rights, in each case whether registered or unregistered and
including applications for registration, and all rights or forms of protection having
equivalent or similar effect anywhere in the world;
“Key Performance Indicators” shall have the meaning set forth in Clause 20;
“LOA” or “Letter of Award” means the letter of award referred to in Recital (D);
“Lead Member” shall have the meaning set forth in Recital (B);
“Lenders’ Representative” means the person duly authorised by the Senior Lenders
to act for and on behalf of the Senior Lenders with regard to matters arising out of or
in relation to this Agreement, and includes his successors, assigns and substitutes;
“Licensed premises” shall have the meaning set forth in Clause 10.2.2;
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“Local User” means a person living in the geographical area comprising the districts
of XXX, YYY and ZZZ;
“Maintenance Manual” shall have the meaning ascribed to it in Clause 17.3;
“Maintenance Programme” shall have the meaning ascribed to it in Clause 17.4.1;
“Maintenance Requirements” shall have the meaning set forth in Clause 17.2;
“Material Adverse Effect” means a material adverse effect of any act or event on the
ability of either Party to perform any of its obligations under and in accordance with
the provisions of this Agreement and which act or event causes a material financial
burden or loss to either Party;
“Medical Aid Pose” shall have the meaning set forth in Clause 21.1;
“Monthly Fee Statement” shall have the meaning set forth in Clause 19.5;
“Nominated Company” means a company selected by the Lenders’ Representative
and proposed to the Authority for substituting the Concessionaire in accordance with
the provisions of the Substitution Agreement;
“Non-Political Event” shall have the meaning set forth in Clause 31.2;
“NPV” shall have the meaning set forth in Clause 38.3;
“O&M” means the operation and maintenance of the XXX Ropeway and includes all
matters connected with or incidental to such operation and maintenance, provision of
services and facilities, and collection of Fee in accordance with the provisions of this
Agreement;
“O&M Contract” means the operation and maintenance contract that may be entered
into between the Concessionaire and the O&M Contractor for performance of all or
any of the O&M obligations;
“O&M Contractor” means the person, if any, with whom the Concessionaire has
entered into an O&M Contract for discharging O&M obligations for and on behalf of
the Concessionaire;
“O&M Expenses” means expenses incurred by or on behalf of the Concessionaire or
by the Authority, as the case may be, for all O&M including (a) cost of salaries and
other compensation to employees, (b) cost of materials, supplies, utilities and other
services, (c) premia for insurance, (d) all taxes, duties, cess and fees due and payable
for O&M, (e) all repair, replacement, reconstruction, reinstatement, improvement and
maintenance costs, (f) payments required to be made under the O&M Contract or any
other contract in connection with or incidental to O&M, and (g) all other expenditure
required to be incurred under Applicable Laws, Applicable Permits or this Agreement;
“O&M Inspection Report” shall have the meaning set forth in Clause 19.2;
“Operation Period” means the period commencing from COD and ending on the
Transfer Date;
“Panel of Chartered Accountants” shall have the meaning set forth in Clause 30.2.1;
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“Parties” means the parties to this Agreement collectively and “Party” shall mean any
of the parties to this Agreement individually;
“Passenger Charter” shall have the meaning set forth in Clause 20.7;
“Performance Security” shall have the meaning set forth in Clause 9.1;
“Performance Security” shall have the meaning set forth in Clause 36.2.3;
“Political Event” shall have the meaning set forth in Clause 31.4
“Physical Progress” shall mean the physical construction of the Project completed by
the Concessionaire and shall be measured as per the assessment done by the
Independent Engineer based on the relevant guidances/ guidelines issued by [Indian
Road Congress] from time to time;
{“Premium” shall have the meaning set forth in Clause 24.4;}
“Preservation Costs” shall have the meaning set forth in Clause 13.5.3;
“Project” means the construction, operation and maintenance of the XXX Ropeway in
accordance with the provisions of this Agreement, and includes all works, services and
equipment relating to or in respect of the Scope of the Project;
“Project Agreements” means this Agreement, the Financing Agreements, EPC
Contract, O&M Contract, all agreements relating to Real Estate Development and any
other material agreements or contracts that may be entered into by the Concessionaire
with any person in connection with matters relating to, arising out of or incidental to
the Project, but does not include the Escrow Agreement, Substitution Agreement, or
any agreement for procurement of goods and services involving a consideration of upto
Rs.[5(five)] crore;
“Project Assets” means all physical and other assets relating to and forming part of the
Site including (a) rights over the Site in the form of licence, Right of Way or otherwise;
(b) tangible assets such as civil works and equipment; (c) Project Facilities situated on
the Site; (d) all rights of the Concessionaire under the Project Agreements; (e)financial
assets, such as receivables, security deposits etc.; (f) insurance proceeds; and (g)
Applicable Permits and authorisations relating to or in respect of the XXX Ropeway,
but does not include Additional Facilities;
“Project Completion Date” means the date on which the Completion Certificate or
the Provisional Certificate, as the case may be, is issued under the provisions of Article
14;
“Project Completion Schedule” means the progressive Project Milestones set forth in
Schedule-G for completion of the XXX Ropeway on or before the Scheduled Date;
“Project Facilities” means all the amenities and facilities situated on the Site, as
described in Schedule-C;
“XXX Ropeway” means the [****] system built, or to be built, and operated on theSite
and includes civil, mechanical and electrical works, signaling and telecommunication
equipment, and all Project Assets, necessary for and associated with operation of
ropeways on the Site, and shall include Real Estate Development;
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“Project Milestones” means the project milestones set forth in Schedule-G;
“Provisional Certificate” shall have the meaning set forth in Clause 14.3;
“Punch List” shall have the meaning ascribed to it in Clause 14.3;
“RBI” means the Reserve Bank of India, as constituted and existing under the Reserve
Bank of India Act, 1934, including any statutory modification or replacement thereof,
and its successors;
“Re.”, “Rs.” or “Rupees” or “Indian Rupees” means the lawful currency of the
Republic of India;
“Real Estate Development” shall have the meaning set forth in Clause 3.1.3;
“Reference Exchange Rate” means, in respect of any one currency that is to be
converted into another currency in accordance with the provisions of this Agreement,
the exchange rate as of 12.00 (twelve) noon on the relevant date quoted in Delhi by the
State Bank of India, and in the absence of such rate, the average of similar rates quoted
in Delhi by the Bank of India and the Bank of Baroda;
"Regulatory Authority"
“Request for Proposals” or “RFP” shall have the meaning set forth in Recital (C);
“Request for Qualification” or “RFQ” shall have the meaning set forth in Recital (B);
“Right of Way” means the constructive possession of the Site, together with all way
leaves, easements, unrestricted access and other rights of way, howsoever described,
necessary for construction, operation and maintenance of the XXX Ropeway and Real
Estate Development in accordance with this Agreement;
“Rules” shall have the meaning set forth in Clause 41.3.1;
“Safety Consultant” shall have the meaning set forth in Clause 18.1.2;
“Safety Requirements” shall have the meaning set forth in Clause 18.1.1;
“Safety Fund” shall have the meaning set forth in Clause 18.2;
“Safety Manual” shall have the meaning set forth in Clause 18.3;
“Scheduled Date” shall have the meaning set forth in Clause12.3.1;
“Scope of the Project” shall have the meaning set forth in Clause 2.1;
“Senior Lenders” means the financial institutions, banks, multilateral lending
agencies, trusts, funds and agents or trustees of debenture holders, including their
successors and assignees, who have agreed to guarantee or provide finance to the
Concessionaire under any of the Financing Agreements for meeting all or any part of
the Total Project Cost and who hold pari passu charge on the assets, rights, title and
interests of the Concessionaire;
“Site” shall have the meaning set forth in Clause 10.1;
“Specifications and Standards” means the specifications and standards relating to the
166
quality, quantity, capacity and other requirements for the XXX Ropeway, as set forth
in Schedule-D, and any modifications thereof, or additions thereto, as included in the
design and engineering for the XXX Ropeway submitted by the Concessionaire to, and
expressly approved by, the Authority;
“Specified Assets” means and includes all buildings and immovable fixtures or
structures forming part of Real Estate Development, but shall in no case include land;
“Specified Documents” shall have the meaning set forth in Clause 42.1;
“State” means the State of ***** and “State Government” means the government of
that State;
“Statutory Auditors” means a reputable firm of chartered accountants acting as the
statutory auditors of the Concessionaire under the provisions of the Companies Act,
1956 including any statutory modification or re-enactment thereof, for the time being
in force, and appointed in accordance with Clause 30.2.1
“Subordinated Debt” means the aggregate of the following sums expressed in Indian
Rupees or in the currency of debt, as the case may be, outstanding as on the Transfer
Date:
(a) the principal amount of debt provided by lenders or the Concessionaire’s
shareholders for meeting the Total Project Cost and subordinated to the
financial assistance provided by the Senior Lenders; and
(b) all accrued interest on the debt referred to in Sub-clause (a) above but restricted
to the lesser of actual interest rate and a rate equal to [5% (five per cent)] above
the Bank Rate in case of loans expressed in Indian Rupees and lesser of the
actual interest rate and [6 (six) month] LIBOR (London Inter-Bank Offer Rate)
plus [2% (two per cent)] in case of loans expressed in foreign currency, but
does not include any interest that had fallen due [1 (one) year] prior to the
Transfer Date;
provided that if all or any part of the Subordinated Debt is convertible into Equity at
the option of the lenders and/or the Concessionaire’s shareholders, it shall for the
purposes of this Agreement be deemed to be Subordinated Debt even after such
conversion and the principal thereof shall be dealt with as if such conversion had not
been undertaken.
“Substitution Agreement” shall have the meaning set forth in Clause 37.3
“Suspension” shall have the meaning set forth in Clause 33.1;
“Target Date 1” shall have the meaning set forth in Clause 27.1.1
"Target Date 2” shall have the meaning set forth in Clause 27.1.1
“Target Traffic 1” shall have the meaning set forth in Clause 27.1.1
“Target Traffic 2” shall have the meaning set forth in Clause 27.1.1
“Taxes” means any Indian taxes including excise duties, customs duties, value added
tax, sales tax, local taxes, cess and any impost or surcharge of like nature (whether
Central, State or local) on the goods, materials, equipment and services incorporated in
167
and forming part of the XXX Ropeway charged, levied or imposed by any Government
Instrumentality, but excluding any interest, penalties and other sums in relation thereto
imposed on any account whatsoever. For the avoidance of doubt, Taxes shall not
include taxes on corporate income;
“Termination” means the expiry or termination of this Agreement and the Concession
hereunder;
“Termination Notice” means the communication issued in accordance with this
Agreement by one Party to the other Party terminating this Agreement;
“Termination Payment” means the amount payable by the Authority to the
Concessionaire upon Termination and may consist of payments on account of and
restricted to the Debt Due and Adjusted Equity, as the case may be, which form part of
the Total Project Cost in accordance with the provisions of this Agreement; provided
that the amount payable in respect of any Debt Due expressed in foreign currency shall
be computed at the Reference Exchange Rate for conversion into the relevant foreign
currency as on the date of Termination Payment. For the avoidance of doubt, it is agreed
that within a period of 60 (sixty) days from COD, the Concessionaire shall notify to the
Authority, the Total Project Cost as on COD and its disaggregation between Debt Due
and Equity, and only the amounts so conveyed shall form the basis of computing
Termination Payment, and it is further agreed that in the event such disaggregation is
not notified to the Authority, Equity shall be deemed to be the amount arrived at by
subtracting Debt Due from Total Project Cost;
“Tests” means the tests set forth in Schedule-J to determine the completion of XXX
Ropeway
“Total Project Cost” means the capital cost incurred on construction and financing of
the Project, excluding Real Estate Development, and shall be limited to lowest of:
(a) the capital cost of the Project, {less Equity Support} as set forth in the Financial
Package;
(b) the actual capital cost of the Project upon completion of the XXX Ropeway
{less Equity Support}; and
(c) a sum of Rs. ***** crore (Rupees ***** crore), less Equity Support
10
;
provided that in the event of Termination, the Total Project Cost shall be deemed to be
modified to the extent of variation in WPI or Reference Exchange Rate occurring in
respect of Adjusted Equity and Debt Due, as the case may be, in accordance with the
provisions of this Agreement; provided further that in the event WPI increases, on an
average, by more than 6% (six per cent) per annum for the period between the date
hereof and COD, the Parties shall meet, as soon as reasonably practicable, and agree
upon revision of the amount hereinbefore specified such that the effect of increase in
WPI, in excess of such 6% (six per cent), is reflected in the Total Project Cost;
“Transfer Date” means the date on which this Agreement and the Concession
hereunder expires pursuant to the provisions of this Agreement or is terminated by a
10
This amount may be indicated on the basis of project-specific cost estimates, including financing
charges; and this amount shall, after bidding, be reduced by a sum equivalent to the Equity Support. In
determining this amount, the estimated cost of construction shall be increased by 25% thereof to account
for contingencies, risk premia and financing costs. These costs should be reviewed and firmed up during
pre-bid consultations.
168
Termination Notice;
“User” means a person who travels or intends to travel on the XXX Ropeway on
payment of Fee or in accordance with the provisions of this Agreement and Applicable
Laws;
“Vesting Certificate” shall have the meaning set forth in Clause 35.4 and
“WPI” means the Wholesale Price Index for all commodities as published by the
Ministry of Industry, GOI and shall include any index which substitutes the WPI, and
any reference to WPI shall, unless the context otherwise requires, be construed as a
reference to the latest monthly WPI published no later than 30 (thirty) days prior to the
date of consideration hereunder.
169
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED
THIS AGREEMENT AS OF THE DAY, MONTH AND YEAR FIRST ABOVE
WRITTEN.
SIGNED, SEALED AND
DELIVERED
For and on behalf of
THE AUTHORITY by:
(Signature)
(Name)
(Designation)
In the presence of:
1.
THE COMMON SEAL OF
CONCESSIONAIRE has been affixed
pursuant to the resolution passed by the Board
of Directors of the Concessionaire at its
meeting held on the ……… day of 20……
hereunto affixed in the presence of
………......………, Director, who has signed
these presents in token thereof and
……………………, Company Secretary /
Authorised Officer who has countersigned the
same in token thereof
$
:
2.
$
To be affixed in accordance with the articles of association of the Concessionaire.
170
171
SCHEDULES
172
173
SCHEDULE – A
(See Clause 10.1)
SITE OF THE PROJECT
1 The Site
1.1 Site of the XXX Ropeway shall include the land, buildings, structures and road works
as described in Annex-I of this Schedule-A
1.2 An inventory of the Site including the land, buildings, structures, road works, trees and
any other immovable property on, or attached to, the Site shall be prepared jointly by
the Authority Representative and the Concessionaire, and such inventory shall form
part of the memorandum referred to in Clause 10.3.1of the Agreement.
2 Real Estate Development
The land earmarked for Real Estate Development has been described in Annex-II of
this Schedule-A, and such land shall form part of the Site.
[Note: Through suitable drawings and description in words, the land, buildings, structures and
roadworks comprising the Site shall be specified briefly but precisely.]
174
175
Annex - I
(Schedule-A)
Site for the Ropeway
Note: Through suitable drawings and description in words, the land, buildings, structures and
road works comprising the Site shall be specified briefly but precisely in this Annex-I.]
176
177
Annex-II
(Schedule-A)
(See Clause 3.1.3)
Site for Real Estate Development
[Note 1: Through suitable drawings and description in words, that part of the Site on which
Real Estate Development may be undertaken by the Concessionaire shall be specified
precisely.]
[Note 2: The purposes for which such land may be developed by the Concessionaire shall be
specified precisely in conformity with Applicable Laws and the provisions of this Agreement]
[Note 3: This Annex-II may be omitted if Real Estate Development is not contemplated.]
178
179
SCHEDULE – B
(See Clause 2.1)
DEVELOPMENT OF THE ROPEWAY
1. Development of the Ropeway
Development of the ropeway shall include construction of the XXX Ropeways as
described in this Schedule-B and in Schedule-C.
2. Ropeway
2.1 Ropeway shall include construction of the XXX Ropeway as described in Annex-I of
this Schedule-B and Schedule-C.
2.2 Ropeway shall be completed by the Concessionaire in conformity with the
Specifications and Standards set forth in Annex-I of Schedule-D.
3. Real Estate Development
3.1 Real Estate Development shall be undertaken in accordance with and subject to the
terms and conditions specified in Annex-II of this Schedule-B.
3.2 Real Estate Development shall be undertaken and completed by the Concessionaire in
conformity with the Specifications and Standards set forth in Schedule-D.
[Note 1: Paragraph 3 may be omitted if Real Estate Development is not contemplated.]
180
181
Annex - I
(Schedule-B)
Description of Ropeways
1. Length of the Ropeways
2. Project Facilities
Project Facilities shall be constructed in conformity with Schedule-C.
3. Specifications and Standards
The XXX Ropeway shall be constructed in conformity with the Specifications and
Standards specified in Annex-I of Schedule-D.
182
183
Annex - II
(Schedule-B)
Description of Real Estate Development
[Note 1: Describe the land use, floor area, FSI, height restrictions, open spaces, parking and
other terms of Real Estate Development in conformity with local laws and municipal
regulations.]
[Note 2: Describe the terms and conditions of Real Estate Development.]
[Note 3: This Annex-II may be omitted if Real Estate Development is not contemplated.]
184
185
SCHEDULE – C
(See Clause 2.1)
PROJECT FACILITIES
1 Project Facilities
1.1 The Concessionaire shall construct the Project Facilities in accordance with the
provisions of this Agreement. Such Project Facilities shall include:
• Ropeway from XXX to YYY, the XXX Ropeway
• X number of cable cars – with an hourly capacity of x passengers
• Facilities at passenger handling area in locations A, B and C – limited to total
constructed commercial area as follows –
o Location A – xxx sq. m.
o Location B – yyy sq. m.
o Location C – zzz sq. m.
• eateries
• street lighting;
• parking and pedestrian facilities;
• landscaping and tree plantation;
186
187
SCHEDULE – D
(See Clause 2.1)
SPECIFICATIONS ANDSTANDARDS
1 Ropeways
The Concessionaire shall comply with the Specifications and Standards set forth in
Annex-I of this Schedule-D for construction of the XXX Ropeways.
2. Real Estate Development shall be undertaken in accordance with Applicable Laws,
Good Industry Practice and the provisions of building construction codes widely
followed in India, [UK or USA, as the case may be].
[Note 1: The Authority shall prepare a “Manual of Specifications and Standards for
the XXX Ropeway”. Only the basic/fundamental requirements of design and
construction shall be laid down in the manual, and greater emphasis shall be placed on
prescribing the output specifications that have a direct bearing on the level and quality
of service for Users. The manual shall be published and applied to the ropeway by
reference hereunder. This would remove the element of uncertainty in project design
and help in laying down cost-effective specifications and standards across the country.]
[Note 2: Paragraph 2 may be omitted if Real Estate Development is not contemplated.]
188
189
Annex - I
(Schedule-D)
Specifications and Standards for the Ropeway
1 Manual of Specifications and Standards to apply
Subject to the provisions of Paragraph 2 of this Annex-I, the ropeway shall conform to
the Manual of Specifications and Standards for the XXX Ropeway published by [the
Authority] (An authenticated copy of the manual has been provided to the
Concessionaire as part of the bid documents.)
2 [Deviations from the Manual
Notwithstanding anything to the contrary contained in the aforesaid manual, the
following Specifications and Standards shall apply to the ropeway, and for purposes of
this Agreement, the aforesaid manual shall be deemed to be amended to the extent set
forth below:]
[Note 1: Deviations from the aforesaid manual shall be listed out here. Such deviations
shall be specified only if they are considered essential in view of project-specific
requirements.]
190
191
SCHEDULE –E
(See Clause 4.1.3)
APPLICABLE PERMITS
1 Applicable Permits
1.1 The Concessionaire shall obtain, as required under the Applicable Laws, the following
Applicable Permits on or before the Appointed Date, save and except to the extent of a
waiver granted by the Authority in accordance with Clause 4.1.3 of the Agreement.
Unless otherwise specified in this Agreement, Applicable Permits, if any, relating to
environmental protection and conservation with respect to XXX Ropeways, excluding
the Real Estate Development, shall have been procured by the Authority as a Condition
Precedent.
Sr.
No.
Description
Approvals Required.
1.
No Objection Certificate from the State Government.
2. Consent to Establish and Consent to Operate under the Air (Prevention and
Control of Pollution) Act, 1981 and Water (Prevention and Control of
Pollution) Act, 1974 from State Pollution Control Board (State and Centre).
3. Compliance under the Building and Other Construction Workers (Regulation
of Employment and Conditions of Service) Act, 1996.
4. Forest clearance from Ministry of Environment and Forest.
5. No-Objection certificate from relevant panchayat in whose territorial limits
the project is located, if applicable.
6. Clearance of fire safety standards and protection apparatus and system under
the Factories Act, 1948, and standards mandated by the local fire department,
if applicable from Chief Inspector of Factories or any other designated
authority appointed.
7. Compliance under Maternity Benefit Act, 1961.
8. License for usage and storage of fuel oil storage tank, pressurized vessels,
explosive and inflammable liquids, gases and chemicals under (a) Explosives
Act, 1884 read with Explosives Rules, 2008 and Gas Cylinder Rules, 2004;
and (b) Petroleum Act, 1934 read with Petroleum Rules, 2002, if applicable
from Chief Controller of Explosives, GoI, if applicable.
9. Approval under the Electricity Act 2003 for electrical installations and works
form Chief Electrical Inspector.
10. Other facilitation that could be obtained from the nodal agency is statutory
clearances from Govt. Departments/Agencies, Evacuation approval from
State Transmission Utility (STU), Connectivity to the substation of STU,
clearances from State Pollution Control Board (SPCB), whenever feasible.
11. Certificate of Registration from the labour department issued under the Inter-
State Migrant Workmen (Regulations of Employment and Conditions of
Services) Act, 1979 in relation to employment of migrant workmen.
192
12. Registration under Section 7 of Contract Labour (Regulation and Abolition)
Act, 1970.
13. Registration under Employees Provident Fund and Miscellaneous Provisions
Act, 1952.
14. Authorization for management and handling of hazardous waste under
Hazardous Waste (Management, Handling & Transboundary Movement)
Rules, 2016.
15. Registration under Employee State Insurance Act, 1948.
16. Consent for Right of Way under applicable law.
17. NOC for height clearance from directorate of air traffic management, Airport
Authority of India when project lies within 20Kms radius of air strips/funnel.
18. Approval under Ancient Monuments and Archaeological Sites and Remains
Act, 1958 with subsequent amendments
1.2 Applicable Permits, if any, relating to environmental protection and conservation
during the development of the XXX Ropeway, excluding the Real Estate Development,
shall have been procured by the Authority [as a Condition Precedent].
[Note 1: Every ropeway project will need specific approval/permits from the master list of
permits detailed in this schedule. The government body will define the applicable permits based
on specific needs of the project. Ropeway applications viz. the use of ropeway will require
permits/approvals from various agencies. The applications could be urban transit, tourism,
adventure, leisure, material transport etc. While some permits are common to all ropeway
systems, others will have to be defined as per local conditions and laws of land of various state
governments/Central Government.]
[Note 2: The above approvals are a broad list required for installation of ropeway project. The
concessionaire will have to define the ropeway terms of reference, activities planned to draw
out a comprehensive list of permits required for setting up the ropeway project. Standard
approvals for electricity, water, sewage disposal as per local rules and regulations will apply
for the ropeway project.]
193
SCHEDULE –F
(See Clause 9.1)
PERFORMANCE SECURITY
The Chairman,
Authority
WHEREAS:
(A) ……………….. (the “Concessionaire”) and The Department of Tourism/Ministry of
Tourism including Agencies Urban Transport/Urban Local Body, XXX State (the
“Authority”) have entered into a Concession Agreement dated …………….. (the
“Agreement”) whereby the Authority has agreed to the Concessionaire undertaking
XXX Ropeway on design, build, finance, operate and transfer (the “DBFOT”) basis,
subject to and in accordance with the provisions of the Agreement.
(B) The Agreement requires the Concessionaire to furnish a Performance Security to the
Authority in a sum of Rs. ***** cr.(Rupees ***** crore) (the “Guarantee Amount”) as
security for due and faithful performance of its obligations, under and in accordance
with the Agreement, during the Construction Period (as defined in t he Agreement).
(C) We, ………………….. through our Branch at …………………. (the “ Bank”) have
agreed to furnish this Bank Guarantee by way of Performance Security.
NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees and
affirms as follows:
1. The Bank hereby unconditionally and irrevocably guarantees the due and faithful
performance of the Concessionaire’s obligations during the Construction Period, under
and in accordance with the Agreement, and agrees and undertakes to pay to the
Authority, upon its mere first written demand, and without any demur, reservation,
recourse, contest or protest, and without any reference to the Concessionaire, such sum
or sums upto an aggregate sum of the Guarantee Amount as the Authority shall claim,
without the Authority being required to prove or to show grounds or reasons for its
demand and/or for the sum specified therein.
2. A letter from the Authority, that the Concessionaire has committed default in the due
and faithful performance of all or any of its obligations under and in accordance with
the Agreement shall be conclusive, final and binding on the Bank. The Bank further
agrees that the Authority shall be the sole judge as to whether the Concessionaire is in
default in due and faithful performance of its obligations during the Construction
Period under the Agreement and its decision that the Concessionaire is in default shall
be final, and binding on the Bank, notwithstanding any differences between the
Authority and the Concessionaire, or any dispute between them pending before any
court, tribunal, arbitrators or any other authority or body, or by the discharge of the
Concessionaire for any reason whatsoever.
194
3. In order to give effect to this Guarantee, the Authority shall be entitled to act as if the
Bank were the principal debtor and any change in the constitution of the Concessionaire
and/or the Bank, whether by their absorption with any other body or corporation or
otherwise, shall not in any way or manner affect the liability or obligation of the Bank
under this Guarantee.
4. It shall not be necessary, and the Bank hereby waives any necessity, for the Authority
to proceed against the Concessionaire before presenting to the Bank its demand under
this Guarantee.
5. The Authority shall have the liberty, without affecting in any manner the liability of
the Bank under this Guarantee, to vary at any time, the terms and conditions of the
Agreement or to extend the time or period for the compliance with, fulfilment and/ or
performance of all or any of the obligations of the Concessionaire contained in the
Agreement or to postpone for any time, and from time to time, any of the rights and
powers exercisable by the Authority against the Concessionaire, and either to enforce
or forbear from enforcing any of the terms and conditions contained in the Agreement
and/or the securities available to the Authority, and the Bank shall not be released from
its liability and obligation under these presents by any exercise by the Authority of the
liberty with reference to the matters aforesaid or by reason of time being given to the
Concessionaire or any other forbearance, indulgence, act or omission on the part of the
Authority or of any other matter or thing whatsoever which under any law relating to
sureties and guarantors would but for this provision have the effect of releasing the
Bank from its liability and obligation under this Guarantee and the Bank hereby waives
all of its rights under any such law.
6. This Guarantee is in addition to and not in substitution of any other guarantee or
security now or which may hereafter be held by the Authority in respect of or relating
to the Agreement or for the fulfilment, compliance and/or performance of all or any of
the obligations of the Concessionaire under the Agreement.
7. Notwithstanding anything contained hereinbefore, the liability of the Bank under this
Guarantee is restricted to the Guarantee Amount and this Guarantee will remain in force
until the earlier of the 1
st
(first) anniversary of the Appointed Date or compliance of the
conditions specified in paragraph 8 below and unless a demand or claim in writing is
made by the Authority on the Bank under this Guarantee, no later than 6 (six) months
from the date of expiry of this Guarantee, all rights of the Authority under this
Guarantee shall be forfeited and the Bank shall be relieved from its liabilities
hereunder.
8. The Performance Security shall cease to be in force and effect when the Concessionaire
shall have expended on Project construction an aggregate sum not less than 20%
(twenty per cent) of the Total Project Cost which is deemed to be Rs.*** cr. (Rupees
***** crore) for the purposes of this Guarantee, and provided the Concessionaire is not
in breach of this Agreement. Upon request made by the Concessionaire for release of
the Performance Security along with the particulars required hereunder, duly certified
by a statutory auditor of the Concessionaire, the Authority shall release the
Performance Security forthwith.
195
9. The Bank undertakes not to revoke this Guarantee during its currency, except with the
previous express consent of the Authority in writing and declares and warrants that it
has the power to issue this Guarantee and the undersigned has full powers to do so on
behalf of the Bank.
10. Any notice by way of request, demand or otherwise hereunder may be sent by post
addressed to the Bank at its above referred Branch, which shall be deemed to have been
duly authorised to receive such notice and to effect payment thereof forthwith, and if
sent by post it shall be deemed to have been given at the time when it ought to have
been delivered in due course of post and in proving such notice, when given by post, it
shall be sufficient to prove that the envelope containing the notice was posted and a
certificate signed by an officer of the Authority that the envelope was so posted shall
be conclusive.
11. This Guarantee shall come into force with immediate effect and shall remain in force
and effect for a period of one year and six months from the date hereof or until it is
released earlier by the Authority pursuant to the provisions of the Agreement.
Signed and sealed this ………. day of ……….., 20……… at ………..
SIGNED, SEALED AND DELIVERED
For and on behalf of
the BANK by:
(Signature)
(Name)
(Designation)
(Code Number)
(Address)
NOTES:
(i) The bank guarantee should contain the name, designation and code number of the
officer(s) signing the guarantee.
The address, telephone number and other details of the Head Office of the Bank as well as of
issuing Branch should be mentioned on the covering letter of issuing Branch.
196
197
SCHEDULE –G
(See Clause 12.1)
PROJECT COMPLETION SCHEDULE
1 Project Completion Schedule
During Construction Period, the Concessionaire shall comply with the requirements set
forth in this Schedule-G for each of the Project Milestones and the Scheduled Date (the
“Project Completion Schedule”). Within 15 (fifteen) days of the date of each Project
Milestone, the Concessionaire shall notify the Authority of such compliance along with
necessary particulars thereof. For the avoidance of doubt, it is agreed that the provisions
of this Schedule shall not apply to Real Estate development.
[Note 1: Every ropeway project will fulfill the conditions precedent as per the RFP.
Ropeway projects typically take 24 (twenty-four) months (active execution) for
installation from day zero. Day zero is defined as the day of fulfillment of all the
conditions within the scope of the Concession Agreement.]
[Note 2: Specific project completion schedule will vary for each project. The timelines
for execution will be decided by the team of different stakeholders depending on the
local conditions. The list of activities from concept to commissioning are listed in this
schedule and will determine the project milestones.]
2 Project Milestone-I
2.1 Project Milestone-I shall occur on the date falling on the [180th (one hundred and
eightieth)] day from the Appointed Date (the “Project Milestone-I”).
2.2 Prior to the occurrence of Project Milestone-I, the Concessionaire shall have
commenced construction of the XXX Ropeway and expended not less than [25%
(twenty-five per cent)] of the Total Project Cost set forth in the Financial Package.
2.3 Project Milestone- I includes the completion of the following activities:
2.3.1 Design checking of the XXX Ropeway, which includes:
• Counterproof of the design and the project of the supplier
• Design and technology check of the planning documents of the supplier, including
design check of all drawings according to the European ropeway directive
2000/9/EC and according to the Concession Agreement (scope of supply of the
ropeway supplier)
• Check of all descriptions, safety analysis.
• Counterproof of the line calculation according to EN 12930, EN 12929-1 and
EN13223 with an independent line calculation software.
• Counterproof of all static calculations of the steel parts and concrete works of the
ropeway according to Eurocode 3
• Check of all safety reports (technical studies of Schedule D viz. geological report,
meteorological report)
• Final detailed project report (DPR)
• One site visits to check the local situation
At this stage the Concessionaire should have fulfilled Conditions Precedent provided
198
under the Concession Agreement and expended amount to the Independent Engineer
as per the terms and conditions set out under Schedule I.
3 Project Milestone-II
3.1 Project Milestone-II shall occur on the date falling on the [365th (three hundred and
sixty fifth)] day from the Appointed Date (the “Project Milestone-II”).
3.2 Prior to the occurrence of Project Milestone-II, the Concessionaire shall have
commenced [construction of *****, and expended not less than 50% (fifty per cent)]
of the Total Project Cost set forth in the Financial Package.
3.3 Project Milestone- II includes the completion of the following activities:
3.3.1 Quality check during execution phase, which includes:
Check and control of the quality of the execution of the ropeway on site, monitoring of
the time schedule, factory acceptance test. In detail, this phase will include following
items:
• To monitor contractor’s supervision of the construction activities as per
predetermined Inspection test plan;
• Quality planning and quality assurance;
• Quality check and final approval of the ropeway foundations;
• Check of the correct position of all anchor frames and foundation positions;
• Quality check of the foundation reinforcement steel bars and concrete material;
• To review and approve construction schedules proposed & periodically updated by
contractors;
• To review and approve contractors’ method statement, erection procedures & work
plans;
• To monitor quality of the work being executed through good engineering practices;
• Check of the correct assembly of all ropeway components; and
• Factory acceptance test of all ropeway components before dispatching to India.
4 Project Milestone-III
4.1 Project Milestone-III shall occur on the date falling on the [550th (five hundred and
fiftieth)] day from the Appointed Date (the “Project Milestone-III”).
4.2 Prior to the occurrence of Project Milestone-III, the Concessionaire shall have
commenced [construction of **** and expended not less than 75% (seventy-five per
cent)] of the Total Project Cost set forth in the Financial Package.
4.3 Project Milestone- II includes the completion of the following activities:
4.3.1 System testing for commissioning of the system, whereby, after the internal tests of the
supplier, the notified and accredited inspection body, will do the final safety tests on
the installation which includes:
• check of the correct execution and assembly of the ropeway;
• check the final documentation of the supplier including certificates and
conformity declaration of all safety parts and subsystems;
• check all safety devices of the ropeway including the correct setting;
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• check the electrical safety control system;
• check the correct settings of all brakes and drives;
• check the emergency drive;
• check the smooth and safe running of the rope and cabins on the line and on the
roller batteries;
• check of the operation and maintenance manual;
• check the experience and the knowledge of the service staff for the operation;
• check the correct, safe and smooth running of the garage system, the conveyor
system and the coupling system; and
• check the rescue equipment and do a rescue exercise on the installation.
5. Scheduled Date
5.1 The Scheduled Date shall occur on the [730th (seven hundred and thirty)] day from the
Appointed Date. On or before the Scheduled Date, the Concessionaire shall have
completed the XXX Ropeway in accordance with this Agreement.
5.2 On or before the Scheduled Date, the Concessionaire shall have completed the XXX
Ropeway in accordance with this Agreement.
6 Extension of period
Upon extension of any or all of the aforesaid Project Milestones or the Scheduled Date,
as the case may be, under and in accordance with the provisions of this Agreement, the
Project Completion Schedule shall be deemed to have been amended accordingly.
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SCHEDULE –H
(See Clause 12.2)
DRAWINGS
1. Drawings
In compliance of the obligations set forth in Clause 12.2 of this Agreement, the
Concessionaire shall furnish to the Independent Engineer, free of cost, all Drawings
listed in Annex-I of this Schedule-H.
2. Additional drawings
If the Independent Engineer determines that for discharging its duties and functions
under this Agreement, it requires any drawings other than those listed in Annex-I, it
may by notice require the Concessionaire to prepare and furnish such drawings
forthwith. Upon receiving a requisition to this effect, the Concessionaire shall promptly
prepare and furnish such drawings to the Independent Engineer, as if such drawings
formed part of Annex-I of this Schedule.
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203
Annex - I
(Schedule-H)
List of Drawings
[Note: The Authority shall describe in this Annex-I, all the Drawings that the Concessionaire
is required to furnish under Clause 12.2.]
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205
SCHEDULE – I
(See Clauses 22.1 and 22.2
I. SELECTION OF INDEPENDENT ENGINEER
1. Selection of Independent Engineer
1.1 The provisions of the Model Request for Proposals for selection of technical
consultants, issued by the Ministry of Finance, Government of India vide OM
24(23)/PF-II/ 2008 dated 21, May 2009, or any substitute thereof shall apply for
selection of an experienced firm to discharge the functions and duties of an Independent
Engineer. Provided, however, that no entity which is owned or controlled by the
Authority shall be eligible for appointment as the Independent Engineer.
1.2 In the event of termination of an Independent Engineer appointed in accordance with
the provisions of Paragraph 1.1, the Authority shall appoint another firm of technical
consultants forthwith or may engage a government-owned entity in accordance with
the provisions of Paragraph 5 of this Schedule-I.
1.3 The Concessionaire may, in its discretion, nominate a representative to participate in
the process of selection to be undertaken by the Authority under this Schedule-I.
2. Terms of Reference
2.1 The Terms of Reference for the Independent Engineer shall substantially conform with
Annex -1 to this Schedule-I.
3. Fee and expenses
3.1 In determining the nature and quantum of duties and services to be performed by the
Independent Engineer during the Development Period and Construction Period, the
Authority shall endeavour that payments to the Independent Engineer on account of fee
and expenses do not exceed [1% (one per cent)] of the Total Project Cost, including
Equity Support, if any. Payments not exceeding such [1% (one per cent)] shall be borne
equally by the Authority and the Concessionaire in accordance with the provisions of
this Agreement and any payments in excess thereof shall be borne entirely by the
Authority.
3.2 The nature and quantum of duties and services to be performed by the Independent
Engineer during the Operation Period shall be determined by the Authority in
conformity with the provisions of this Agreement and with due regard for economy in
expenditure. All payments made to the Independent Engineer on account of fee and
expenses during the Operation Period, including the construction of system
augmentation, shall be borne equally by the Authority and the Concessionaire.
4. Selection every three years
4.1 No later than 3 (three) years from the date of appointment of the Independent Engineer,
in accordance with the provisions of Paragraph 1 of this Schedule-I, the Authority shall
engage another firm in accordance with the criteria set forth in this Schedule-I.
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5. Appointment of government entity as Independent Engineer
5.1 [Notwithstanding anything to the contrary contained in this Schedule - I, the Authority
may in its discretion appoint a government-owned entity as the Independent Engineer;
provided that such entity shall be a body corporate having as one of its primary
function the provision of consulting, advisory and supervisory services for engineering
projects; provided further that a government- owned entity which is owned or
controlled by the Authority shall not be eligible for appointment as an Independent
Engineer.]
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(Annex-1)
I. TERMS OF REFERENCE FOR INDEPENDENT ENGINEER
1. Scope
1.1 These Terms of Reference for the Independent Engineer (the “TOR”) are being
specified in accordance with the Concession Agreement dated.……….(the
“Agreement”), which has been entered into between the Authority and………………..
(the “Concessionaire”) for XXX Ropeway at ..………. corridor in city of .………. on
design, build, finance, operate and transfer (the “DBFOT”) basis, and a copy of which
is annexed hereto and marked as Annex-A to form part of this TOR.
1.2 This TOR shall apply to construction, operation and maintenance of the XXX
Ropeway, and shall apply, mutatis mutandis, to system augmentation thereof.
The TOR for the appointment of the Independent Engineer will be as follows:
2. Definitions and Interpretation
2.1 The words and expressions beginning with or in capital letters used in this TOR and
not defined herein but defined in the Agreement shall have, unless repugnant to the
context, the meaning respectively assigned to them in the Agreement.
2.2 References to Articles, Clauses and Schedules in this TOR shall, except where the
context otherwise requires, be deemed to be references to the Articles, Clauses and
Schedules of the Agreement, and references to Paragraphs shall be deemed to be
references to Paragraphs of this TOR.
The rules of interpretation stated in Clauses 1.2, 1.3 and 1.4 of the Agreement shall apply,
mutatis mutandis, to this TOR.
3. Role and functions of the Independent Engineer
3.1 The role and functions of the Independent Engineer shall include the following:
Phase 1: Design Checking of Ropeway
• Counterproof of the design and the project of the supplier;
• Design and technology check of the planning documents of the supplier,
including
design check of all drawings and according to the contract (Scope of supply of the
ropeway supplier);
• Check of all descriptions, safety analysis;
• Counterproof of the line calculation with an independent line calculation software;
• Counterproof of all static calculations of the steel parts and concrete works of the
ropeway;
• Check of all safety reports (technical studies of Schedule D viz. geological report,
meteorological report, etc.,);
• Final detailed project report (DPR); and
• One site visits to check the local situation.
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Phase 2: Quality Check during Execution Phase
Check and control of the quality of the execution of the ropeway on site, monitoring of
the time schedule, factory acceptance test. In detail this phase will include following
items:
• To monitor contractor’s supervision of the construction activities as per
predetermined inspection test plan;
• Quality planning and quality assurance;
• Quality check and final approval of the ropeway foundations;
• Check of the correct position of all anchor frames and foundation positions;
• Quality check of the foundation reinforcement steel bars and concrete material;
• To review and approve construction schedules proposed & periodically updated by
contractors;
• To review and approve contractors’ method statement, erection procedures & work
plans;
• To monitor quality of the work being executed through good engineering practices;
• Check of the correct assembly of all ropeway components; and
• Factory acceptance test of all ropeway components before dispatching to India.
Phase 3: System Testing for Commissioning of the System
After the internal tests of the supplier, the notified and accredited inspection body, will
do the final safety tests on the installation which includes:
• check of the correct execution and assembly of the ropeway;
• check the final documentation of the supplier including certificates and
conformity declaration of all safety parts and subsystems;
• check all safety devices of the ropeway including the correct setting;
• check the electrical safety control system;
• check the correct settings of all brakes and drives;
• check the emergency drive;
• check the smooth and safe running of the rope and cabins on the line and on the
roller batteries;
• check of the operation and maintenance manual;
• check the experience and the knowledge of the service staff for the operation;
• check the correct, safe and smooth running of:
(a) the garage system;
(b) the conveyor system; and
(c) the coupling system.
• check the rescue equipment and do a rescue exercise on the installation
The Independent Engineer shall discharge its duties in a fair, impartial and efficient
manner, consistent with the highest standards of professional integrity and Good
Industry Practice.
4 Development Period
4.1 During the Development Period, the Independent Engineer shall undertake a detailed
review of the Drawings to be furnished by the Concessionaire along with supporting
data, including the geo-technical and hydrological investigations, characteristics of
materials, topographical surveys and traffic surveys. The Independent Engineer shall
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complete such review and send its comments/observations to the Authority and the
Concessionaire within 15 (fifteen) days of receipt of such Drawings. In particular, such
comments shall specify the conformity or otherwise of such Drawings with the Scope
of the Project and Specifications and Standards.
4.2 The Independent Engineer shall review any modified Drawings or supporting
Documents sent to it by the Concessionaire and furnish its comments within 7 (seven)
days of receiving such Drawings or Documents.
4.3 The Independent Engineer shall review the Drawings sent to it by the Safety Consultant
in accordance with Schedule-M and furnish its comments thereon to the Authority and
the Concessionaire within 7 (seven) days of receiving such Drawings. The Independent
Engineer shall also review the Safety Report and furnish its comments thereon to the
Authority within 15 (fifteen) days of receiving such report.
4.4 The Independent Engineer shall review the detailed design, construction methodology,
quality assurance procedures and the procurement, engineering and construction time
schedule sent to it by the Concessionaire and furnish its comments within 15 (fifteen)
days of receipt thereof.
4.5 The Independent Engineer shall review the detailed design, manufacturing, installation,
testing and commissioning plans for the XXX Ropeway sent to it by the Concessionaire
and furnish its comments within 15 (fifteen) days of receipt thereof.
4.6 Upon reference by the Authority, the Independent Engineer shall review and comment
on the EPC contract or any other contract for construction, operation and maintenance
of the XXX Ropeway and furnish its comments within 7 (seven) days from receipt of
such reference from the Authority.
5. Construction Period
5.1 In respect of the Drawings, Documents and Safety Report received by the Independent
Engineer for its review and comments during the Construction Period, the provisions
of Paragraph 4 shall apply, mutatis mutandis.
5.2 The Independent Engineer shall review the monthly progress report furnished by the
Concessionaire and send its comments thereon to the Authority and the Concessionaire
within 7 (seven) days of receipt of such report.
5.3 The Independent Engineer shall inspect the construction works and electromechanical
equipment (if any) once every month, preferably after receipt of the monthly progress
report from the Concessionaire, but before the 20
th
(twentieth)day of each month in any
case, and make out a report of such inspection (the “Inspection Report”) setting forth
an overview of the status, progress, quality and safety of construction, including the
work methodology adopted, the materials used and their sources, and conformity of
Construction Works and electromechanical with the Scope of the Project and the
Specifications and Standards. In a separate section of the Inspection Report, the
Independent Engineer shall describe in reasonable detail the lapses, defects or
deficiencies observed by it in the construction of the XXX Ropeway or the deficiencies
in the electromechanical equipment. The Independent Engineer shall send a copy of its
Inspection Report to the Authority and the Concessionaire within 7 (seven) days of the
inspection.
5.4 The Independent Engineer may inspect the XXX Ropeway more than once in a month
if any lapses, defects or deficiencies require such inspections. In the event that the
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Concessionaire carries out any remedial works for removal or rectification of any
defects or deficiencies, the Independent Engineer shall require the Concessionaire to
carry out, or cause to be carried out, tests to determine that such remedial works have
brought the Construction Works into conformity with the Specifications and Standards,
and the provisions of this Paragraph 5 shall apply to such tests.
5.5 In the event that the Concessionaire fails to achieve any of the Project Milestones, the
Independent Engineer shall undertake a review of the progress of construction and
identify potential delays, if any. If the Independent Engineer shall determine that
completion of the XXX Ropeway is not feasible within the time specified in the
Agreement, it shall require the Concessionaire to indicate within 15 (fifteen) days the
steps proposed to be taken to expedite progress, and the period within which COD shall
be achieved. Upon receipt of a report from the Concessionaire, the Independent
Engineer shall review the same and send its comments to the Authority and the
Concessionaire forthwith.
5.6 If at any time during the Construction Period, the Independent Engineer determines
that the Concessionaire has not made adequate arrangements for the safety of workers
and Users in the zone of construction or that any work is being carried out in a manner
that threatens the safety of the workers and the Users, it shall make a recommendation
to the Authority forthwith, identifying the whole or part of the Construction Works that
should be suspended for ensuring safety in respect thereof.
5.7 In the event that the Concessionaire carries out any remedial measures to secure the
safety of suspended works and Users, it may, by notice in writing, require the
Independent Engineer to inspect such works, and within 3 (three) days of receiving
such notice, the Independent Engineer shall inspect the suspended works and make a
report to the Authority forthwith, recommending whether or not such suspension may
be revoked by the Authority.
5.8 If suspension of Construction Works is for reasons not attributable to the
Concessionaire, the Independent Engineer shall determine the extension of dates set
forth in the Project Completion Schedule, to which the Concessionaire is reasonably
entitled, and shall notify the Authority and the Concessionaire of the same.
5.9 The Independent Engineer shall carry out, or cause to be carried out, all the Tests
specified in Schedule-I and issue a Completion Certificate.
5.10 For carrying out its functions under this Paragraph 5.10 and all matters incidental
thereto, the Independent Engineer shall act under and in accordance with the provisions
of Article 14 and Schedule-I.
5.11 Upon reference from the Authority, the Independent Engineer shall make a fair and
reasonable assessment of the costs of providing information, works and services as set
forth in Article 16 and certify the reasonableness of such costs for payment by the
Authority to the Concessionaire. The Independent Engineer shall aid and advise the
Concessionaire in preparing the Maintenance Manual.
6 Operation Period
6.1 In respect of the Drawings, Documents and Safety Report received by the Independent
Engineer for its review and comments during the Operation Period, the provisions of
Paragraph 4 shall apply, mutatis mutandis.
6.2 The Independent Engineer shall review the annual Maintenance Programme furnished
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by the Concessionaire and send its comments thereon to the Authority and the
Concessionaire within 15 (fifteen) days of receipt of the Maintenance Programme.
6.3 The Independent Engineer shall review the monthly status report furnished by the
Concessionaire and send its comments thereon to the Authority and the Concessionaire
within 7 (seven) days of receipt of such report.
6.4 The Independent Engineer shall inspect the XXX Ropeway, including cabins and
stations, once every month, preferably after receipt of the monthly status report from
the Concessionaire, but before the 20
th
(twentieth) day of each month in any case,
and make out an O&M Inspection Report setting forth an overview of the status, quality
and safety of O&M including its conformity with the Key Performance Indicators,
Maintenance Requirements and Safety Requirements. In a separate section of the O&M
Inspection Report, the Independent Engineer shall describe in reasonable detail the
lapses, defects or deficiencies observed by it in O&M of the XXX Ropeway. The
Independent Engineer shall send a copy of its O&M Inspection Report to the Authority
and the Concessionaire within 7 (seven) days of the inspection.
6.5 The Independent Engineer may inspect the XXX Ropeway more than once in a month,
if any lapses, defects or deficiencies require such inspections.
6.6 The Independent Engineer shall in its O&M Inspection Report specify the tests, if any,
that the Concessionaire shall carry out, or cause to be carried out, for the purpose of
determining that the XXX Ropeway is in conformity with the Maintenance
Requirements. It shall monitor and review the results of such tests and the remedial
measures, if any, taken by the Concessionaire in this behalf. In respect of any defect or
deficiency referred to in Paragraph 3 of Schedule - L, the Independent Engineer shall,
in conformity with Good Industry Practice, specify the permissible limit of deviation
or deterioration with reference to the Specifications and Standards and shall also
specify the time limit for repair or rectification of any deviation or deterioration beyond
the permissible limit.
6.7 The Independent Engineer shall determine if any delay has occurred in completion of
repair or remedial works in accordance with the Agreement, and shall also determine
the Damages, if any, payable by the Concessionaire to the Authority for such delay.
6.8 The Independent Engineer shall examine the request of the Concessionaire for closure
of the XXX Ropeway for undertaking maintenance/repair thereof, keeping in view the
need to minimize disruption in traffic and the time required for completing such
maintenance/repair in accordance with Good Industry Practice. It shall grant
permission with such modifications, as it may deem necessary, within 3 (three) days of
receiving a request from the Concessionaire. Upon expiry of the permitted period of
closure, the Independent Engineer shall monitor the re-opening of such rope(s), and in
case of delay, determine the Damages payable by the Concessionaire to the Authority
under Clause 17.7.
6.9 The Independent Engineer shall monitor and review the curing of defects and
deficiencies by the Concessionaire as set forth in Clause 19.4.
6.10 In the event that the Concessionaire notifies the Independent Engineer of any
modifications that it proposes to make to the XXX Ropeway, the Independent Engineer
shall review the same and send its comments to the Authority and the Concessionaire
within 15 (fifteen) days of receiving the proposal.
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7. Audit of Fee collection system
7.1 The Independent Engineer shall, at least once every month, conduct an audit of the
working of the automatic fee collection system installed by the Concessionaire, to
check its accuracy in recording the entry and exit of Users and in recording the fee.
8. Termination
8.1 At any time, not earlier than 90 (ninety) days prior to Termination but not later than 15
(fifteen) days prior to such Termination, the Independent Engineer shall, in the
presence of a representative of the Concessionaire, inspect the XXX Ropeway for
determining compliance by the Concessionaire with the Divestment Requirements set
forth in Clause 35.1 and, if required, cause tests to be carried out at the
Concessionaire’s cost for determining such compliance. If the Independent Engineer
determines that the status of the XXX Ropeway is such that its repair and rectification
would require a larger amount than the sum set forth in Clause 36.2, it shall recommend
retention of the required amount in the Escrow Account and the period of retention
thereof.
8.2 The Independent Engineer shall inspect the XXX Ropeway once in every 15(fifteen)
days during a period of 90 (ninety) days after Termination for determining the liability
of the Concessionaire under Article 39, in respect of the defects or deficiencies
specified therein. If any such defect or deficiency is found by the Independent Engineer,
it shall make a report in reasonable detail and send it forthwith to the Authority and the
Concessionaire.
9. Determination of costs and time
9.1 The Independent Engineer shall determine the costs, and/or their reasonableness, that
are required to be determined by it under the Agreement. The Independent Engineer
shall determine the period, or any extension thereof, that is required to be determined
by it under the Agreement.
10. Assistance in Dispute resolution
10.1 When called upon by either Party in the event of any Dispute, the Independent Engineer
shall mediate and assist the Parties in arriving at an amicable settlement. In the event
of any disagreement between the Parties regarding the meaning, scope and nature of
Good Industry Practice, as set forth in any provision of the Agreement, the Independent
Engineer shall specify such meaning, scope and nature by issuing a reasoned written
statement relying on good industry practice and authentic literature.
11. Other duties and functions
11.1 The Independent Engineer shall perform all other duties and functions specified in the
Agreement.
12. Miscellaneous
12.1 The Independent Engineer shall notify its programme of inspection to the Authority
and to the Concessionaire, who may, in their discretion, depute their respective
representatives to be present during the inspection.
12.2 A copy of all communications, comments, instructions, Drawings or Documents sent
by the Independent Engineer to the Concessionaire pursuant to this TOR, and a copy
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of all the test results with comments of the Independent Engineer thereon shall be
furnished by the Independent Engineer to the Authority forthwith.
12.3 The Independent Engineer shall obtain and the Concessionaire shall furnish in 2 (two)
copies thereof, all communications and reports required to be submitted, under this
Agreement, by the Concessionaire to the Independent Engineer, whereupon the
Independent Engineer shall send 1 (one) of the copies to the Authority along with its
comments thereon.
12.4 The Independent Engineer shall retain at least one copy each of all Drawings and
Documents received by it, including ‘as-built’ Drawings, and keep them in its safe
custody.
12.5 Upon completion of its assignment hereunder, the Independent Engineer shall duly
classify and list all Drawings, Documents, results of tests and other relevant records,
and hand them over to the Authority or such other person as the Authority may specify
and obtain written receipt thereof. Two copies of the said documents shall also be
furnished in editable digital format or in such other medium or manner as may be
acceptable to the Authority.
12.6 Wherever no period has been specified for delivery of services by the Independent
Engineer, the Independent Engineer shall act with the efficiency and urgency necessary
for discharging its functions in accordance with Good Industry Practice.
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215
SCHEDULE – J
(See Clause 14.1.2)
TEST
1 Schedule for Tests
1.1 The Concessionaire shall, no later than 60 (sixty) days prior to the likely completion of
the XXX Ropeway, notify the Independent Engineer and the Authority of its intent to
subject the XXX Ropeway to Tests, and no later than 7 (seven) days prior to the actual
date of Tests, furnish to the Independent Engineer and the Authority detailed inventory
and particulars of all works and equipment forming part of the XXX Ropeway.
1.2 The Concessionaire shall notify the Independent Engineer of its readiness to subject
the XXX Ropeway to Tests at any time after 7 (seven) days from the date of such
notice, and upon receipt of such notice, the Independent Engineer shall, in consultation
with the Concessionaire, determine the date and time for each Test and notify the same
to the Authority who may designate its representative to witness the Tests. The
Independent Engineer shall thereupon conduct the Tests itself or cause any of the Tests
to be conducted in accordance with Article 14 and this Schedule-J.
2 Tests
2.1 The Independent Engineer shall conduct, or cause to be conducted, the Tests in
accordance with Applicable Law, Good Industry Practice and Specifications and
Standards. The tests to be conducted shall include inter alia:
• check of the correct execution and assembly of the ropeway
• check the final documentation of the supplier including certificates and conformity
declaration of all safety parts and subsystems
• check all safety devices of the ropeway including the correct setting
• check the electrical safety control system
• check the correct settings of all brakes and drives
• check the emergency drive
• check the smooth and safe running of the rope and cabins on the line and on the
roller batteries
• check of the operation and maintenance manual
• check the experience and the knowledge of the service staff for the operation
• check the correct, safe and smooth running ofthe garage system, the conveyor
system and the coupling system
• Check the rescue equipment and do a rescue exercise on the installation
Any other Test as may be prescribed under Applicable Laws, Good Industry Practice
and Specifications and Standards.
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217
SCHEDULE – K
(See Clause 14.2 & 14.3)
COMPLETION CERTIFICATE
1. I/We, ……………… (Name of the Independent Engineer), under and in accordance with
the Concession Agreement dated …………. (the “Agreement”), for development and
operation of the XXX Ropeways for ............ corridor in city of ............ on design, build,
finance, operate and transfer (the “DBFOT”) basis, through …………………… (Name of
Concessionaire), hereby certify that the Tests specified in Article 14 and Schedule-J of the
Agreement have been successfully undertaken to determine compliance of the XXX
Ropeway with Specifications and Standards and with the provisions of the Agreement, and
I/We am/are satisfied that the XXX Ropeway can be safely and reliably placed in
commercial service of the Users thereof.
2. It is certified that, in terms of the aforesaid Agreement, all works forming part of XXX
Ropeway have been completed, and the XXX Ropeway is ready for entry into commercial
operation on this the ………… day of ……… 20……
SIGNED, SEALED AND DELIVERED
For and on behalf of INDEPENDENT ENGINEER by:
(Signature)
(Name)
(Designation)
(Address)
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219
PROVISIONAL CERTIFICATE
1 I, …………………… ( Name of the Independent Engineer), under and in accordance
with the Concession Agreement dated ……………. (the “ Agreement”), for
***ropeway (the “XXX Ropeway”) on design, build, finance, operate and transfer (the
“DBFOT”) basis through …………………… (Name of Concessionaire ), hereby
certify that the Tests specified in Article 14 and Schedule-J of the Agreement have been
undertaken to determine compliance of the XXX Ropeway with the provisions of the
Agreement.
2 Construction Works that were found to be incomplete and/or deficient have been
specified in the Punch List appended hereto, and the Concessionaire has agreed and
accepted that it shall complete and/or rectify all such works in the time and manner set
forth in the Agreement. (Some of the incomplete works have been delayed as a result
of reasons attributable to the Authority or due to Force Majeure and the Provisional
Certificate cannot be withheld on this account. Though the remaining incomplete works
have been delayed as a result of reasons attributable to the Concessionaire,)
@
I am
satisfied that having regard to the nature and extent of such incomplete works, it would
not be prudent to withhold commercial operation of the XXX Ropeway, pending
completion thereof.
3 In view of the foregoing, I am satisfied that the XXX Ropeway can be safely and
reliably placed in commercial service of the Users thereof, and in terms of the
Agreement, the XXX Ropeway is hereby provisionally declared fit for entry into
commercial operation on this the ………… day of ……….. 20…...
ACCEPTED, SIGNED, SEALED SIGNED, SEALED AND
AND DELIVERED DELIVERED
For and on behalf of For and on behalf of
CONCESSIONAIRE by: INDEPENDENT ENGINEER by:
(Signature)(Signature)
(Name and Designation) (Name and (Designation)
(Address)(Address)
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SCHEDULE – L
(See Clause 17.2)
PERFORMANCE AND MAINTENANCE REQUIREMENTS
1. Maintenance Requirements
1.1 The Concessionaire shall, at all times, operate and maintain the XXX Ropeway in
accordance with the provisions of the Agreement, Applicable Laws and Applicable
Permits. In particular, the Concessionaire shall, at all times during the Operation
Period, conform to the maintenance requirements set forth in this Schedule-L (the
“Maintenance Requirements”).
Performance and Maintenance Requirements
The list of performance and maintenance requirements of key ropeway components to
optimize ropeway efficiency during its operational life time. Each equipment supplier
will provide service schedule which the Concessionaire will follow for trouble free and
safe performance of the ropeway. Checks are recommended for daily, weekly, monthly,
quarterly, half yearly, yearly, 3-year, 6-year basis etc.
1. Check the loading and unloading points as well as the access and exit areas and
fix them if need be;
2. Towers: Check the platforms, handrails, catwalks, anemometers, ladders and
rope lifting frames for cracks, rust, deformation, correct position or any
deviation from the standard ;
3. Overhead Cables - Signal Cables: Check for any visual deviation in terms of
physical damage such as breakage, color deformation, cuts, correct position,
overhead cable for oscillations;
4. Lighting Protection Cable inspection as Overhead Cables at Serial No.3;
5. Main Gear Box: Follow gear box manufacturers recommendation for
maintenance schedule;
6. Universal Shaft: Check for any unusual noise (technician should be trained to
differentiate between a normal and abnormal noise during shaft operation);
7. Main Motor: refer to manufacturer’s manual schedule of activities;
8. Gear Rim: General check for any physical damage or aberration;
9. Hydraulic Unit for emergency drive / brakes;
10. Service Brake: check for correct functioning by actuating the switch
'EMERGENCY STOP' check stopping distance. Check the brake and
hydraulic lines for any leaks;
11. Emergency Brake: Check for correct functioning by actuating the switch
'EMERGENCY STOP' check stopping distance. Check the brake release
cylinder and the hydraulic lines for any leaks;
12. Rope Tensioner Hydraulic Unit: check tension on display and visual check for
leaks;
13. Drive and Return Bull wheels: Check for any unusual noise, wobble or
eccentricity in the motion of the bull wheel, etc;
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14. Bull wheel coupling, positioning monitoring unit, axle position monitoring
unit, bearing;
15. Tension Carriage: Check tension carriage position;
16. Grip Opening/Closing Equipment: Check for Normal Operation as per
approved manufacturer’s process; other components associated with
functioning of the grips such as grip fault before launch limit switch, not open
limit switch, grip gauge, grip operating lever fault, electronic grip force testing
device;
17. Outer Guide Rail: Functional check of the dampened outer guide rail;
18. Tyre Conveyors: General inspection as per schedule of maintenance;
19. Hydraulic Lifting Unit: Check for leaks and loose pipe connections;
20. Clutch/Brake Combination/Safety Clutch: Check the clutch/brake
combination/safety clutch for correct functioning;
21. Line components such as rope, sheave assemblies, hangar, grip mechanism,
tacho drive, counting sheave, haul rope grounding, towers, overhead cables,
signal cables, lightning protection rope, gear rim, rope tensioner hydraulic unit,
power take off (PTO) drive, break fork switch etc. including all safety features
listed in Schedule M to be checked and technical specifications of the
equipment suppliers;
22. Door opening closing of gondolas, access control barriers and passenger
control systems; and
23. Magnetic Particle Testing of components to ensure safety of the operations.
1.2 The Concessionaire shall repair or rectify any defect or deficiency set forth in
Paragraph 2 of this Schedule-L within the time limit specified therein and any failure
in this behalf shall constitute a breach of the Agreement. Upon occurrence of any
breach hereunder, the Authority shall be entitled to recover Damages as set forth in
Clause 17.7 of the Agreement, without prejudice to the rights of the Authority under
the Agreement, including Termination thereof.
2. Repair/rectification of defects and deficiencies
The obligations of the Concessionaire in respect of Maintenance Requirements shall
include repair and rectification of the defects and deficiencies specified in Annex - I of
this Schedule - L within the time limit set forth therein. The Concessionaire shall at all
times maintain an adequate inventory of spares and consumables to meet the
Maintenance Requirements.
3. Other defects and deficiencies
3.1 In respect of any defect or deficiency not specified in Annex - I of this Schedule-L, the
Concessionaire shall undertake repair or rectification in accordance with Good Industry
Practice and within the time limit specified by the Independent Engineer.
3.2 In respect of any defect or deficiency not specified in Annex - I of this Schedule-L, the
Independent Engineer may, in conformity with Good Industry Practice, specify the
permissible limit of deviation or deterioration with reference to the Specifications and
Standards, and any deviation or deterioration beyond the permissible limit shall be
repaired or rectified by the Concessionaire within the time limit specified by the
Independent Engineer.
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4. Extension of time limit
Notwithstanding anything to the contrary specified in this Schedule-L, if the nature and
extent of any defect or deficiency justifies more time for its repair or rectification than
the time specified herein, the Concessionaire shall be entitled to additional time in
conformity with Good Industry Practice and Specification and Standards. Such
additional time shall be determined by the Independent Engineer and conveyed to the
Concessionaire and the Authority with reasons thereof.
5. Emergency repairs/restoration
Notwithstanding anything to the contrary contained in this Schedule-L, if any defect,
deficiency or deterioration in the XXX Ropeway poses a hazard to safety or risk of
damage to property, the Concessionaire shall promptly take all reasonable measures for
eliminating or minimizing such danger.
6. Daily Inspection by the Concessionaire
The Concessionaire shall, through its engineer, undertake a daily visual inspection of
the XXX Ropeway and maintain a record thereof in a register to be kept in such form
and manner as the Independent Engineer may specify. Such record shall be kept in safe
custody of the Concessionaire and shall be open to inspection by the Authority and the
Independent Engineer at any time during office hours.
7. Divestment Requirements
All defects and deficiencies specified in this Schedule-L shall be repaired and rectified
by the Concessionaire so that the XXX Ropeway conforms to the Maintenance
Requirements on the Transfer Date.
8. Display of Schedule - L
The Concessionaire shall display a copy of this Schedule-L at every station along with
the Complaint Register stipulated in Article 43.
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Annex - I
(Schedule-L)
Repair/Rectification of Defects and Deficiencies
Any deficiency leading to stoppage of XXX Ropeway shall be rectified in accordance with
Applicable Laws, Good Industry Practice and Specifications and Standards.
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225
SCHEDULE-M
(See Clause 18.1)
SAFETY REQUIREMENTS
1 Guiding principles
1.1 Safety Requirements aim at reduction in injuries, loss of life and damage to property
resulting from accidents on the XXX Ropeway, irrespective of the person(s) at fault.
1.2 Users of the XXX Ropeway include staff of the Concessionaire and its contractors
working on the XXX Ropeway.
1.3 Safety Requirements apply to all phases of construction, operation and maintenance
with emphasis on identification of factors associated with accidents, consideration of
the same, and implementation of appropriate remedial measures.
1.4 Safety Requirements include measures associated with safe movement, safety
management, safety equipment, fire safety, enforcement and emergency response, with
particular reference to the safety guidelines specified in Annex - I of this Schedule - M.
1.5 The XXX Ropeway shall be especially designed, operated and serviced in such a way
so as to:.
(a) eliminate and reduce risks by means of design and construction features;
(b) implement necessary measures to protect against risks that cannot be
completely eliminated; and
(c) lay down precautions to be taken to avoid any risks.
2 Obligations of the Concessionaire
The Concessionaire shall abide by the following insofar as they relate to safety of the
Users:
(a) Applicable Laws and Applicable Permits;
(b) Manual for safety, issued by the Authority;
(c) provisions of this Agreement; and
(d) relevant Standards/Guidelines contained in internationally accepted codes; and
(e) Good Industry Practice.
3 Appointment of Safety Consultant
For carrying out safety audit of the XXX Ropeway under and in accordance with this
Schedule-M, the Authority shall appoint from time to time, one or more qualified firms
or organisations as its consultants (the “Safety Consultant”). The Safety Consultant
shall employ a team comprising, without limitation, one ropeway safety expert and one
traffic planner to undertake safety audit of the XXX Ropeway.
4 Safety measures during Development Period
4.1 No later than 90 (ninety) days from the date of this Agreement, the Authority shall
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appoint a Safety Consultant for carrying out safety audit at the design stage of the
Project.
4.2 The Concessionaire shall provide to the Safety Consultant, in four copies, the relevant
drawings containing the design details that have a bearing on safety of Users (the
“Safety Drawings”). Such design details shall include ropeway alignments; horizontal
and vertical forces, layouts of ropeway profile, foundation drawings, inertia forces,
bending moments in global coordinates, tower loads, sheave loads, effects of forces
caused by winds, snow, ice or any other external factors, station forces and design,
people movement and safety procedures at stations along with other incidental or
consequential information. The Safety Consultant shall review the design details and
forward 3 (three) copies of the Safety Drawings with its recommendations, if any, to
the Independent Engineer who shall record its comments, if any, and forward one copy
each to the Authority and the Concessionaire.
4.3 The design and equipment details shall be compiled, analysed and used by the Safety
Consultant for evolving a package of recommendations consisting of safety related
measures for the XXX Ropeways. The safety audit shall be completed in a period of 3
(three) months and a report thereof (the “Safety Report”) shall be submitted to the
Authority, in 5 (five) copies. One copy each of the Safety Report shall be forwarded by
the Authority to the Concessionaire and the Independent Engineer forthwith.
4.4 The Concessionaire shall endeavour to incorporate the recommendations of the Safety
Report in the design of the XXX Ropeways, as may reasonably be required in
accordance with Applicable Laws, Applicable Permits, Manuals and Guidelines of the
Authority, Specifications and Standards, and Good Industry Practice. If the
Concessionaire does not agree with any or all of such recommendations, it shall state
the reasons thereof and convey them to the Authority forthwith. In the event that any
or all of the works and services recommended in the Safety Report fall beyond the
scope of Schedule-C, Schedule-D or Schedule-E, the Concessionaire shall make a
report thereon and seek the instructions of the Authority for funding such works in
accordance with the provisions of Article 18.
4.5 Without prejudice to the provisions of Paragraph 4, the Concessionaire and the
Independent Engineer shall, within 15 (fifteen) days of receiving the Safety Report,
send their respective comments thereon to the Authority, and no later than 15 (fifteen)
days of receiving such comments, the Authority shall review the same along with the
Safety Report and by notice direct the Concessionaire to carry out any or all of the
recommendations contained therein with such modifications as the Authority may
specify; provided that any works or services required to be undertaken hereunder shall
be governed by the provisions of Article 18.
5 Safety measures during Construction Period
5.1 A Safety Consultant shall be appointed by the Authority, no later than 6 (six) months
prior to the expected Project Completion Date, for carrying out a safety audit of the
completed Construction Works.
5.2 The Safety Consultant shall study the Safety Report for the Development Period and
inspect the XXX Ropeway to assess the adequacy of safety measures. The Safety
Consultant shall complete the safety audit within a period of 4 (four) months and submit
a Safety Report recommending a package of additional safety measures, if any, that are
considered essential for reducing accident hazards on the XXX Ropeway. Such
recommendations shall be processed, mutatis mutandis, and acted upon in the manner
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set forth in Paragraphs 4.3, 4.4 and 4.5 of this Schedule-M.
5.3 The Concessionaire shall make adequate arrangements during the Construction Period
for the safety of workers and road users in accordance with Applicable Laws and Good
Industry Practice for safety in construction zones and notify the Authority and the
Independent Engineer about such arrangements.
5.4 Layout, speed, distance between vehicles
5.4.1 The XXX Ropeways shall be designed taking into account the characteristics of the
terrain and its surroundings i.e., atmospheric and meteorological conditions.
5.4.2 Sufficient distance shall be maintained laterally and vertically between vehicles,
towing devices, tracks, cables, etc., and possible structures and obstacles located in the
vicinity either on the ground or in the air, taking account of the vertical, longitudinal
and lateral movement of the cables and vehicles or of the towing devices under the
most adverse foreseeable operating conditions.
5.4.3 The maximum distance between vehicles and ground shall take account of the nature
of the XXX Ropeway, the type of vehicles and the rescue procedures. In the case of
open cars, it shall also take account of the risk of fall as well as the psychological
aspects associated with the distance between vehicles and ground.
5.4.4 The maximum speed of the vehicles or towing devices, the minimum distance between
the two and their acceleration and braking performance shall be decided in a way to
ensure the safety of Users and safe operation of the XXX ropeways.
5.5 Cables and their supports
5.5.1. All measures shall be taken in line with the latest technological developments:
(a) to avoid cables or their attachments breaking;
(b) to cover their minimum and maximum stress values;
(c) to ensure that they are safely mounted on their supports and prevent derailment;
and
(d) to enable them to be monitored.
5.5.2. Measures to be taken to ensure that cables can be retrieved in case of any cable
derailement and that the XXX Ropeways can be shut down without any risks to any
persons in the event of such derailment.
5.6. Mechanical installations
5.6.1. Drives
The drive system of the XXX Ropeways shall be of a suitable performance and
capability, adapted to the various operating systems and modes.
5.6.2. Standby drive
The XXX Ropeways shall have a standby drive with an energy supply which is
independent of that of the main drive system.
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5.6.3. Braking
5.6.3.1. In an emergency, it shall be possible to shut down the XXX Ropeways and/or the
vehicles at any moment, under the most unfavourable conditions in terms of authorised
load and pulley adhesion during operation. The stopping distance shall be as short as
the security of the XXX Ropeways dictates.
5.6.3.2. Deceleration values shall be within adequate limits fixed in such a way as to ensure
both the safety of the Users and the satisfactory functioning of the vehicles, cables and
other parts of the XXX Ropeways.
5.6.3.3. In all XXX Ropeways there shall be 2 (two) or more braking systems, each capable of
bringing the it to a halt, and coordinated in such a way that they automatically replace
the active system when its efficiency becomes inadequate. The XXX Ropeways’ last
braking system shall act as close as possible to the traction cable.
5.6.3.4. The XXX Ropeways shall be fitted with an effective clamp and locking mechanism to
guard against premature restarts.
5.7 Control devices
The control devices shall be designed and constructed in a way that they are safe and
reliable, and able to withstand normal operating stresses and external factors such as
humidity, extreme temperatures or electromagnetic interference.
5.8 Communication devices
The Concessionaire to ensure that the operational staff is provided with equipment to
communicate with one another and the Users in case of an emergency.
5.9 Vehicles and Towing devices
5.9.1 The fittings of vehicles and towing devices shall be dimensioned and constructed so as
not to:
a) damage the cable, or
b) slip, except where slippage does not significantly affect the safety of the
vehicle, the towing device or the installation, under the most unfavorable
conditions.
5.9.2 Vehicle doors (on cars, cabins) shall be designed and constructed in such a way as to
make it possible to close and lock them. The vehicle floor and walls shall be designed
and constructed so as to withstand pressure and loads exerted by Users and operating
staff under any circumstances.
5.9.3 The vehicle shall be fitted with the suitable equipment if, for reasons of operational
safety, an operator is required on board.
5.9.4 Vehicles and/or towing devices and, in particular, their suspension mechanisms shall
be designed and fitted so as to ensure the safety of personnel servicing them in
accordance with appropriate rules and instructions.
5.9.5 In the case of vehicles equipped with disconnectable fittings, all measures shall be
taken to bring to a halt, without risk to Users or operating staff, at the moment of
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departure, any vehicle whose fitting has been incorrectly connected to the cable and, at
the moment of arrival, any vehicle whose fitting has not been disconnected, and to
prevent the vehicle from falling.
5.9.6 The installations which have their vehicles running on a fixed track (such as funicular
vehicles and multi-rope cable cars) shall be equipped with an automatic braking device
on the track.
5.9.7 Where all risk of derailment of the vehicle cannot be eliminated by other measures, the
vehicle shall be fitted with an anti-derailment device which enables the vehicle to be
brought to a halt without risk to persons.
6 Safety measures during Operation Period
6.1 The Concessionaire shall develop, implement and administer a surveillance and safety
programme for Users, including correction of safety violations and deficiencies and all
other actions necessary to provide a safe environment in accordance with this
Agreement.
6.2 The Concessionaire shall establish a Ropeway Safety Management Unit (the “RSMU”)
to be functional on and after COD and designate one of its officers to be in-charge of
the RSMU. Such officer shall have specialist knowledge and training in ropeway
system safety by having attended a course conducted by a reputed organisation on the
subject.
6.3 The Concessionaire shall keep a copy of every FIR recorded by the Police with respect
to any accident occurring on the XXX Ropeway. In addition, the Concessionaire shall
also collect data for all cases of accidents not recorded by the Police. The information
so collected shall be summarised in the form prescribed by the Authority for this
purpose. The Concessionaire shall also record the exact location of each accident on a
route map. The aforesaid data shall be submitted to the Authority at the conclusion of
every quarter and to the Safety Consultant as and when appointed.
6.4 The Concessionaire shall submit to the Authority before the 31st (thirty first) May of
each year, an annual report (in ten copies) containing, without limitation, a detailed
listing and analysis of all accidents of the preceding Accounting Year and the measures
taken by the Concessionaire pursuant to the provisions of Paragraph 6.1 of this
Schedule-M for averting or minimising such accidents in future.
6.5 Once in every Accounting Year, a safety audit shall be carried out by the Safety
Consultant to be appointed by the Authority. It shall review and analyse the annual
report and accident data of the preceding year and undertake an inspection of the XXX
Ropeway. The Safety Consultant shall complete the safety audit within a period of 1
(one) month and submit a Safety Report recommending specific improvements, if any,
required to be made in the XXX Ropeway. Such recommendations shall be processed,
mutatis mutandis, and acted upon in the manner set forth in Paragraphs 4.3, 4.4 and 4.5
of this Schedule-M.
6.6 The Safety Manual and the corresponding notes shall be drawn up in a vernacular
language of a Member State or any language which can be easily understood by Users,
as determined by the Member State in the territory of which the XXX Ropeway is
constructed and installed.
6.7 The workspace for the construction and operation of the XXX Ropeways shall be
designed in such a way so as to prevent trained personnel from any accidents by way
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of falling. The Concessionare shall provide its appointed personnel with adequate
protective gear to prevent workplace accidents.
7 Costs and expenses
Costs and expenses incurred in connection with the Safety Requirements set forth
herein, including the provisions of Paragraph 2 of this Schedule, shall be met in
accordance with Article 18, and in particular, the remuneration of the Safety
Consultant, safety audit, and costs incidental thereto, shall be met by the
Concessionaire.
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Annex - I
(Schedule-M)
Safety Guidelines
1. Safe movement
1.1. In the design, construction and operation of stations and ropeway system, particular
care shall be taken to ensure safety of users in entry and exit; while waiting, boarding
or alighting; and in moving systems in case of any immobilization. This shall include
facilities for safe and efficient evacuation in case of emergency. In particular, ropeways
shall be designed and tested for safe movement.
2. System integrity
2.1 In the design of power supply, ropeway, circuits and equipments, particular care shall
be taken to minimise the likely incidence of failure.
2.2 All noxious gases, noise emissions and vibrations fall within the prescribed limit set by
the Member State in whose territory the ropeway system is installed and should be in
accordance with Applicable Law.
3. Safety management
3.1 A safety statement shall be prepared by the Concessionaire once every quarter to bring
out clearly the system of management of checks and maintenance tolerances for various
assets including cabins, and compliance thereof. The statement shall also bring out the
nature and extent of, staff training and awareness in dealing with such checks and
tolerances. Two copies of the statement shall be sent to the Independent Engineer
within 15 (fifteen) days of the close of every quarter.
4. Safety equipment
4.1 The following equipment shall be provided at every station:
a. Fire extinguishers and fire alarms at the appropriate locations on the platforms;
b. Two fire extinguishers in the station office;
c. Two stretchers and two standard first aid boxes; and
d. Such other equipment as may be required in conformity with Good Industry
Practice.
4.2 Any defect in the ropeway installation which could result in a failure endangering
safety shall, where practicable, be detected, reported and processed by a safety device.
4.3 The ropeway installation shall be designed in a way to ensure that it can be shut down
manually
5. Emergency
5.1 A set of emergency procedures shall be formulated to deal with different emergency
situations and the operations staff shall be trained to respond appropriately during
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emergency through periodic simulated exercises as laid down in a manual for
management of disasters (the “Disaster Management Manual”) to be prepared and
published by the Concessionaire prior to COD. The Concessionaire shall provide 5
(five) copies each of the Disaster Management Manual to the Authority and the
independent expert no later than 30 (thirty) days prior to COD.
6. Fire safety
6.1 The Concessionaire shall adopt provisions in a combination of the National Fire
Protection Association (NFPA) 130 standard & Fire Safety Recommendations for
Passenger Ropeway Systems.
6.2 To prevent fire in the passenger areas, the Concessionaire shall use fire resistant
materials in the construction thereof and shall avoid use of materials which are to some
extent flammable, or which emit smoke and harmful gases when burning.
6.3 Emergency exit should be accessible without any obstructions and the exit doors should
be kept locked in the ordinary course. The exit doors shall be easy to open from inside
the station in case of emergency.
6.4 Escape routes shall be clearly marked by arrows in the correct direction and no cryptic
symbols shall be used. In complying with the provisions of this Clause 6.4, the
possibility of poor visibility due to smoke shall be duly taken into account. All notices
and signages shall be uniform and standardized.
7 User safety and information system:
7.1 The Concessionaire shall provide the RSMU with the facilities required for supervising
passenger areas and cabins, and shall provide visual information to Users, both onboard
and on the stations. The Concessionaire shall also provide one way communication to
Users at the stations through a Public Announcement (PA) system. The User call points
should be located on all platforms at convenient locations to allow Users to contact the
RSMU in emergencies.
7.2 The User information system shall comprise dynamic visual displays and loudspeakers.
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SCHEDULE – N
(See Clause 35.4)
VESTING CERTIFICATE
The Chairman, Department of Tourism, XXX State (the “Authority”) refers to the Concession
Agreement dated ………………. (the “Agreement”) entered into between the Authority and
……………………. (the “Concessionaire”) for *** ropeway (the “XXX Ropeway”) on
design, build, finance, operate and transfer (the “DBFOT”) basis.
The Authority hereby acknowledges compliance and fulfilment by the Concessionaire of the
Divestment Requirements set forth in Clause 35.1 of the Agreement on the basis that upon
issue of this Vesting Certificate, the Authority shall be deemed to have acquired, and all title
and interest of the Concessionaire in or about the XXX Ropeway shall be deemed to have vested
unto the Authority, free from any encumbrances, charges and liens whatsoever.
Notwithstanding anything to the contrary contained hereinabove, it shall be a condition of this
Vesting Certificate that nothing contained herein shall be construed or interpreted as waiving the
obligation of the Concessionaire to rectify and remedy any defect or deficiency in any of the
Divestment Requirements and/or relieving the Concessionaire in any manner of the same.
Signed this ……………. day of …………., 20………. at Delhi.
AGREED, ACCEPTED AND SIGNED SIGNED, SEALED AND DELIVERED
For and on behalf of For and on behalf of
CONCESSIONAIRE by: AUTHORITY by:
(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address)
In the presence of:
1. 2.
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235
SCHEDULE – O
(See Clause 40.3)
SUBSTITUTION AGREEMENT
THIS SUBSTITUTION AGREEMENT is entered into on this the ……………. day of ……….
20….
AMONGST
1 The Chairman, Department of Tourism, XXX State and having its principal offices at
xxx, State Capital – Pin code (hereinafter referred to as the “Authority” which
expression shall unless repugnant to the context or meaning thereof include its
administrators, successors and assigns);
2 …………………. LIMITED, a company incorporated under the provisions of the
Companies Act, 1956 or Companies Act, 2013, as the case may be and having its
registered office at …………….., (hereinafter referred to as the “Concessionaire”
which expression shall unless repugnant to the context or meaning thereof include its
successors and permitted assigns and substitutes);
3 ………………… …..name and particulars of Lenders’ Representative and having its
registered office at ……………………, acting for and on behalf of the Senior Lenders
as their duly authorised agent with regard to matters arising out of or in relation to this
Agreement (hereinafter referred to as the “Lenders’ Representative”, which
expression shall unless repugnant to the context or meaning thereof include its
successors and substitutes);
WHEREAS:
(A) The Authority has entered into a Concession Agreement dated ……………… with the
Concessionaire (the “Concession Agreement”) for ***** ropeway (“XXX
Ropeway”) on design, build, finance, operate and transfer basis (the “DBFOT”), and
a copy of which is annexed hereto and marked as Annex-A to form part of this
Agreement.
(B) Senior Lenders have agreed to finance the Project in accordance with the terms and
conditions set forth in the Financing Agreements.
(C) Senior Lenders have requested the Authority to enter into this Substitution Agreement
for securing their interests through assignment, transfer and substitution of the
Concession to a Nominated Company in accordance with the provisions of this
Agreement and the Concession Agreement.
(D) In order to enable implementation of the Project including its financing, construction,
operation and maintenance, the Authority has agreed and undertaken to transfer and
assign the Concession to a Nominated Company in accordance with the terms and
conditions set forth in this Agreement and the Concession Agreement.
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NOW, THEREFORE, in consideration of the foregoing and the respective covenants and
agreements set forth in this Agreement, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Substitution Agreement, the following words and expressions shall, unless
repugnant to the context or meaning thereof, have the meaning hereinafter respectively
assigned to them:
“Agreement” means this Substitution Agreement and any amendment thereto made in
accordance with the provisions contained in this Agreement;
“Financial Default” means occurrence of a material breach of the terms and conditions
of the Financing Agreements or a continuous default in Debt Service by the
Concessionaire for a minimum period of 3 (three) months;
“Lenders’ Representative” means the person referred to as the Lenders’
Representative in the foregoing Recitals;
“Nominated Company” means a company, incorporated under the provisions of the
Companies Act, 1956, selected by the Lenders’ Representative, on behalf of Senior
Lenders, and proposed to the Authority for assignment/transfer of the Concession as
provided in this Agreement;
“Notice of Financial Default” shall have the meaning ascribed thereto in Clause 3.2.1;
and
“Parties” means the parties to this Agreement collectively and “Party” shall mean any
of the Parties to this Agreement individually.
1.2 INTERPRETATION
1.2.1 References to Lenders’ Representative shall, unless repugnant to the context or
meaning thereof, mean references to the Lenders’ Representative, acting for and on
behalf of Senior Lenders.
1.2.2 References to Clauses are, unless stated otherwise, references to Clauses of this
Agreement.
1.2.3 The words and expressions beginning with capital letters and defined in this Agreement
shall have the meaning ascribed thereto herein, and the words and expressions used in
this Agreement and not defined herein but defined in the Concession Agreement shall,
unless repugnant to the context, have the meaning ascribed thereto in the Concession
Agreement.
1.2.4 The rules of interpretation stated in Clauses 1.2, 1.3 and 1.4 of the Concession
Agreement shall apply, mutatis mutandis, to this Agreement.
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2 ASSIGNMENT
2.1 Assignment of rights and title
The Concessionaire hereby agrees to assign the rights, title and interest in the
Concession to, and in favour of, the Lenders’ Representative pursuant to and in
accordance with the provisions of this Agreement and the Concession Agreement by
way of security in respect of financing by the Senior Lenders under the Financing
Agreements.
3 SUBSTITUTION OF THE CONCESSIONAIRE
3.1 Rights of substitution
3.1.1 Pursuant to the rights, title and interest assigned under Clause 2.1, the Lenders’
Representative shall be entitled to substitute the Concessionaire by a Nominated
Company under and in accordance with the provisions of this Agreement and the
Concession Agreement.
3.1.2 The Authority hereby agrees to substitute the Concessionaire by endorsement on the
Concession Agreement in favour of the Nominated Company selected by the Lenders’
Representative in accordance with this Agreement. For the avoidance of doubt, the
Senior Lenders or the Lenders’ Representative shall not be entitled to operate and
maintain the XXX Ropeway as Concessionaire either individually or collectively.
3.2 Substitution upon occurrence of Financial Default
3.2.1 Upon occurrence of a Financial Default, the Lenders’ Representative may issue a notice
to the Concessionaire (the “Notice of Financial Default”) along with particulars
thereof and send a copy to the Authority for its information and record. A Notice of
Financial Default under this Clause 3 shall be conclusive evidence of such Financial
Default and it shall be final and binding upon the Concessionaire for the purposes of
this Agreement.
3.2.2 Upon issue of a Notice of Financial Default hereunder, the Lenders’ Representative
may, without prejudice to any of its rights or remedies under this Agreement or the
Financing Agreements, substitute the Concessionaire by a Nominated Company in
accordance with the provisions of this Agreement.
3.2.3 At any time after the Lenders’ Representative has issued a Notice of Financial Default,
it may by notice require the Authority to suspend all the rights of the Concessionaire
and undertake the operation and maintenance of the XXX Ropeway in accordance with
the provisions of Article 36 of the Concession Agreement, and upon receipt of such
notice, the Authority shall undertake Suspension under and in accordance with the
provisions of the Concession Agreement. The aforesaid Suspension shall be revoked
upon substitution of the Concessionaire by a Nominated Company, and in the event
such substitution is not completed within 180 (one hundred and eighty) days from the
date of such Suspension, the Authority may terminate the Concession Agreement
forthwith by issuing a Termination Notice in accordance with the provisions of the
Concession Agreement; provided that upon written request from the Lenders’
Representative and the Concessionaire, the Authority may extend the aforesaid period
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of 180 (one hundred and eighty) days by a period not exceeding 90 (ninety) days.For
the avoidance of doubt, the Authority expressly agrees and undertakes to terminate the
Concession Agreement forthwith, upon receipt of a written request from the Lenders’
Representative at any time after 240 (two hundred and forty) days from the date of
Suspension hereunder.
3.3 Substitution upon occurrence of Concessionaire Default
3.3.1 Upon occurrence of a Concessionaire Default, the Authority shall, by a notice, inform
the Lenders’ Representative of its intention to issue a Termination Notice and grant 15
(fifteen) days’ time to the Lenders’ Representative to make a representation, stating the
intention to substitute the Concessionaire by a Nominated Company.
3.3.2 In the event that the Lenders’ Representative makes a representation to the Authority
within the period of 15 (fifteen) days specified in Clause 3.3.1, stating that it intends to
substitute the Concessionaire by a Nominated Company, the Lenders’ Representative
shall be entitled to undertake and complete the substitution of the Concessionaire by a
Nominated Company in accordance with the provisions of this Agreement within a
period of 180 (one hundred and eighty) days from the date of such representation, and
the Authority shall either withhold Termination or undertake Suspension for the
aforesaid period of 180 (one hundred and eighty) days; provided that upon written
request from the Lenders’ Representative and the Concessionaire, the Authority shall
extend the aforesaid period of 180 (one hundred and eighty) days by a period not
exceeding 90 (ninety) days.
3.4 Procedure for substitution
3.4.1 The Authority and the Concessionaire hereby agree that on or after the date of Notice
of Financial Default or the date of representation to the Authority under Clause 3.3.2,
as the case may be, the Lenders’ Representative may, without prejudice to any of the
other rights or remedies of the Senior Lenders, invite, negotiate and procure offers,
either by private negotiations or public auction or tenders for the take over and transfer
of the XXX Ropeway including the Concession to the Nominated Company upon such
Nominated Company’s assumption of the liabilities and obligations of the
Concessionaire towards the Authority under the Concession Agreement and towards
the Senior Lenders under the Financing Agreements.
3.4.2 To be eligible for substitution in place of the Concessionaire, the Nominated Company
shall be required to fulfil the eligibility criteria that were laid down by the Authority
for shortlisting the bidders for award of the Concession; provided that the Lenders’
Representative may represent to the Authority that all or any of such criteria may be
waived in the interest of the Project, and if the Authority determines that such waiver
shall not have any material adverse effect on the Project, it may waive all or any of such
eligibility criteria.
3.4.3 Upon selection of a Nominated Company, the Lenders’ Representative shall request
the Authority to:
(a) accede to transfer to the Nominated Company the right to construct, operate
and maintain the XXX Ropeway in accordance with the provisions of the
Concession Agreement;
239
(b) endorse and transfer the Concession to the Nominated Company, on the same
terms and conditions, for the residual Concession Period; and
(c) enter into a Substitution Agreement with the Lenders’ Representative and the
Nominated Company on the same terms as are contained in this Agreement.
3.4.4 If the Authority has any objection to the transfer of Concession in favour of the
Nominated Company in accordance with this Agreement, it shall within 15 (fifteen)
days from the date of proposal made by the Lenders’ Representative, give a reasoned
order after hearing the Lenders’ Representative. If no such objection is raised by the
Authority, the Nominated Company shall be deemed to have been accepted. The
Authority thereupon shall transfer and endorse the Concession within 15 (fifteen) days
of its acceptance/deemed acceptance of the Nominated Company; provided that in the
event of such objection by the Authority, the Lenders’ Representative may propose
another Nominated Company whereupon the procedure set forth in this Clause 3.4 shall
be followed for substitution of such Nominated Company in place of the
Concessionaire.
3.5 Selection to be binding
The decision of the Lenders’ Representative and the Authority in selection of the
Nominated Company shall be final and binding on the Concessionaire. The
Concessionaire irrevocably agrees and waives any right to challenge the actions of the
Lenders’ Representative or the Senior Lenders or the Authority taken pursuant to this
Agreement including the transfer/assignment of the Concession in favour of the
Nominated Company. The Concessionaire agrees and confirms that it shall not have
any right to seek revaluation of assets of the Project or the Concessionaire’s shares. It
is hereby acknowledged by the Parties that the rights of the Lenders’ Representative
are irrevocable and shall not be contested in any proceedings before any court or
Authority and the Concessionaire shall have no right or remedy to prevent, obstruct or
restrain the Authority or the Lenders’ Representative from effecting or causing the
transfer by substitution and endorsement of the Concession as requested by the
Lenders’ Representative.
4 PROJECT AGREEMENTS
4.1 Substitution of Nominated Company in Project Agreements
The Concessionaire shall ensure and procure that each Project Agreement contains
provisions that entitle the Nominated Company to step into such Project Agreement, in
its discretion, in place and substitution of the Concessionaire in the event of such
Nominated Company’s assumption of the liabilities and obligations of the
Concessionaire under the Concession Agreement.
5 TERMINATION OF CONCESSION AGREEMENT
5.1 Termination upon occurrence of Financial Default
At any time after issue of a Notice of Financial Default, the Lenders’ Representative
may by a notice in writing require the Authority to terminate the Concession Agreement
forthwith, and upon receipt of such notice, the Authority shall undertake Termination
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under and in accordance with the provisions of Article 37 of the Concession
Agreement.
5.2 Termination when no Nominated Company is selected
In the event that no Nominated Company acceptable to the Authority is selected and
recommended by the Lenders’ Representative within the period of 180 (one hundred
and eighty) days or any extension thereof as set forth in Clause 3.3.2, the Authority
may terminate the Concession Agreement forthwith in accordance with the provisions
thereof.
5.3 Realisation of Debt Due
The Authority and the Concessionaire hereby acknowledge and agree that, without
prejudice to their any other right or remedy, the Lenders’ Representative is entitled to
receive from the Concessionaire, without any further reference to or consent of the
Concessionaire, the Debt Due upon Termination of the Concession Agreement. For
realisation of the Debt Due, the Lenders’ Representative shall be entitled to make its
claim from the Escrow Account in accordance with the provisions of the Concession
Agreement and the Escrow Agreement.
6 DURATION OF THE AGREEMENT
6.1 Duration of the Agreement
This Agreement shall come into force from the date hereof and shall expire at the
earliest to occur of the following events:
(a) Termination of the Agreement; or
(b) no sum remains to be advanced and no sum is outstanding to the Senior
Lenders, under the Financing Agreements.
7 INDEMNITY
7.1 General indemnity
7.1.1 The Concessionaire will indemnify, defend and hold the Authority and the Lenders’
Representative harmless against any and all proceedings, actions and third party claims
for any loss, damage, cost and expense of whatever kind and nature arising out of any
breach by the Concessionaire of any of its obligations under this Agreement or on
account of failure of the Concessionaire to comply with Applicable Laws and
Applicable Permits.
7.1.2 The Authority will indemnify, defend and hold the Concessionaire harmless against
any and all proceedings, actions and third party claims for any loss, damage, cost and
expense arising out of failure of the Authority to fulfil any of its obligations under this
Agreement, materially and adversely affecting the performance of the Concessionaire’s
obligations under the Concession Agreement or this Agreement, other than any loss,
damage, cost and expense, arising out of acts done in discharge of their lawful functions
by the Authority, its officers, servants and agents.
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7.1.3 The Lenders’ Representative will indemnify, defend and hold the Concessionaire
harmless against any and all proceedings, actions and third party claims for any loss,
damage, cost and expense arising out of failure of the Lenders’ Representative to fulfil
its obligations under this Agreement, materially and adversely affecting the
performance of the Concessionaire’s obligations under the Concession Agreement,
other than any loss, damage, cost and expense, arising out of acts done in discharge of
their lawful functions by the Lenders’ Representative, its officers, servants and agents.
7.2 Notice and contest of claims
In the event that any Party hereto receives a claim from a third party in respect of which
it is entitled to the benefit of an indemnity under Clause 7.1 or in respect of which it is
entitled to reimbursement (the “Indemnified Party”), it shall notify the other Party
responsible for indemnifying such claim hereunder (the “Indemnifying Party”) within
15 (fifteen) days of receipt of the claim and shall not settle or pay the claim without the
prior approval of the Indemnifying Party, such approval not to be unreasonably
withheld or delayed. In the event that the Indemnifying Party wishes to contest or
dispute the claim, it may conduct the proceedings in the name of the Indemnified Party
and shall bear all costs involved in contesting the same. The Indemnified Party shall
provide all cooperation and assistance in contesting any claim and shall sign all such
writings and documents as the Indemnifying Party may reasonably require.
8 DISPUTE RESOLUTION
8.1 Dispute resolution
8.1.1 Any dispute, difference or claim arising out of or in connection with this Agreement
which is not resolved amicably shall be decided by reference to arbitration to a Board
of Arbitrators comprising one nominee each of the Authority, Concessionaire and the
Lenders’ Representative. Such arbitration shall be held in accordance with the Rules of
Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi
(the “Rules”) or such other rules as may be mutually agreed by the Parties, and shall
be subject to provisions of the Arbitration and Conciliation Act, 1996.
8.1.2 The Arbitrators shall issue a reasoned award and such award shall be final and binding
on the Parties. The venue of arbitration shall be Delhi and the language of arbitration
shall be English.
9 MISCELLANEOUS PROVISIONS
9.1 Governing law and jurisdiction
This Agreement shall be construed and interpreted in accordance with and governed by
the laws of India, and the Courts at Delhi shall have jurisdiction over all matters arising
out of or relating to this Agreement.
9.2 Waiver of sovereign immunity
The Authority unconditionally and irrevocably:
(a) agrees that the execution, delivery and performance by it of this Agreement
242
constitute commercial acts done and performed for commercial purpose;
(b) agrees that, should any proceedings be brought against it or its assets, property
or revenues in any jurisdiction in relation to this Agreement or any transaction
contemplated by this Agreement, no immunity (whether by reason of
sovereignty or otherwise) from such proceedings shall be claimed by or on
behalf of the Authority with respect to its assets;
(c) waives any right of immunity which it or its assets, property or revenues now
has, may acquire in the future or which may be attributed to it in any
jurisdiction; and
(d) consents generally in respect of the enforcement of any judgement or award
against it in any such proceedings to the giving of any relief or the issue of any
process in any jurisdiction in connection with such proceedings (including the
making, enforcement or execution against it or in respect of any assets,
property or revenues whatsoever irrespective of their use or intended use of
any order or judgement that may be made or given in connection therewith).
9.3 Priority of agreements
In the event of any conflict between the Concession Agreement and this Agreement,
the provisions contained in the Concession Agreement shall prevail over this
Agreement.
9.4 Alteration of terms
All additions, amendments, modifications and variations to this Agreement shall be
effectual and binding only if in writing and signed by the duly authorised
representatives of the Parties.
9.5 Waiver
9.5.1 Waiver by any Party of a default by another Party in the observance and performance
of any provision of or obligations under this Agreement:
(a) shall not operate or be construed as a waiver of any other or subsequent default
hereof or of other provisions of or obligations under this Agreement;
(b) shall not be effective unless it is in writing and executed by a duly authorised
representative of the Party; and
(c) shall not affect the validity or enforceability of this Agreement in any manner.
9.5.2 Neither the failure by either Party to insist on any occasion upon the performance of
the terms, conditions and provisions of this Agreement or any obligation thereunder
nor time or other indulgence granted by a Party to another Party shall be treated or
deemed as waiver of such breach or acceptance of any variation or the relinquishment
of any such right hereunder.
243
9.6 No third party beneficiaries
This Agreement is solely for the benefit of the Parties and no other person or entity
shall have any rights hereunder.
9.7 Survival
9.7.1 Termination of this Agreement:
(a) shall not relieve the Parties of any obligations hereunder which expressly or by
implication survive termination hereof; and
(b) except as otherwise provided in any provision of this Agreement expressly
limiting the liability of either Party, shall not relieve either Party of any
obligations or liabilities for loss or damage to the other Party arising out of or
caused by acts or omissions of such Party prior to the effectiveness of such
termination or arising out of such termination.
9.7.2 All obligations surviving the cancellation, expiration or termination of this Agreement
shall only survive for a period of 3 (three) years following the date of such termination
or expiry of this Agreement.
9.8 Severability
If for any reason whatever any provision of this Agreement is or becomes invalid,
illegal or unenforceable or is declared by any court of competent jurisdiction or any
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected in any manner, and the
Parties will negotiate in good faith with a view to agreeing to one or more provisions
which may be substituted for such invalid, unenforceable or illegal provisions, as nearly
as is practicable to such invalid, illegal or unenforceable provision. Failure to agree
upon any such provisions shall not be subject to dispute resolution under Clause 8 of
this Agreement or otherwise.
9.9 Successors and assigns
This Agreement shall be binding on and shall inure to the benefit of the Parties and
their respective successors and permitted assigns.
9.10 Notices
All notices or other communications to be given or made under this Agreement shall
be in writing, shall either be delivered personally or sent by courier or registered post
with an additional copy to be sent by facsimile or e-mail. The address for service of
each Party, its facsimile number and e-mail address are set out under its name on the
signing pages hereto. A notice shall be effective upon actual receipt thereof, save that
where it is received after 5.30 (five thirty) p.m. on any day, or on a day that is a public
holiday, the notice shall be deemed to be received on the first working day following
the date of actual receipt. Without prejudice to the foregoing, a Party giving or making
a notice or communication by facsimile or e-mail shall promptly deliver a copy thereof
personally or send it by courier or registered post to the addressee of such notice or
244
communication. It is hereby agreed and acknowledged that any Party may by notice
change the address to which such notices and communications to it are to be delivered
or mailed. Such change shall be effective when all the Parties have notice of it.
9.11 Language
All notices, certificates, correspondence and proceedings under or in connection with
this Agreement shall be in English.
9.12 Authorised representatives
Each of the Parties shall by notice in writing designate their respective authorised
representatives through whom only all communications shall be made. A Party hereto
shall be entitled to remove and/or substitute or make fresh appointment of such
authorised representative by similar notice.
9.13 Original Document
This Agreement may be executed in three counterparts, each of which when executed
and delivered shall constitute an original of this Agreement.
[Signature page follows]
245
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED
THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.
THE COMMON SEAL OF
CONCESSIONAIRE has been affixed
pursuant to the resolution passed by the Board
of Directors of the Concessionaire at its
meeting held on the ……… day of 20……
hereunto affixed in the presence of ………,
Director, who has signed these presents in
token thereof and ………, Company Secretary
/ Authorised Officer who has countersigned the
same in token thereof
$
:
SIGNED, SEALED AND DELIVERED
For and on behalf of
AUTHORITY by:
(Signature)
(Name)
(Designation)
(Address)
(Fax No.)
(e-mail address)
SIGNED, SEALED AND DELIVERED
For and on behalf of
SENIOR LENDERS by the Lenders’ Representative:
(Signature)
(Name)
(Designation)
(Address)
(Fax)
(e-mail address)
In the presence of:
1. 2.
$
To be affixed in accordance with the articles of association of the Concessionaire.
246
247
SCHEDULE – P
(See Clause 26.1.1)
FEE NOTIFICATION
[The Fee Rules/Notification issued by the State Government shall constitute Schedule- P of the
Agreement and shall be in accordance with the local legislation governing ropeways in the
applicable state.]
[Note 1: Fee Rules/ Notification shall be included in the draft concession agreement to be
provided to the bidders before inviting bids and would broadly cover the following:
The notification shall specify the fee payable for each category of Users using the XXX
Ropeway. The fee shall be based on the rates approved by Government/Authority and escalated
to reflect the increase in price index as specified therein.
The notification shall specify that the fee structure shall be modified to reflect the variation in
price index as specified in Clause 26.2 and the fee notification shall be issued and gazetted by
the concerned department.
The notification shall provide for rounding off of the fee to the nearest one rupee, and for
escalation of fee, in line with the provisions of Article 27.
Discounted fee rates for frequent Users, additional charge for evasion of fee and differential fee
structure for peak and off- peak hours should be provided in the notification.]
[Note 2: For assistance in drafting the fee rules for the project, a model notification is provided
at Annex-I for consideration of the respective State Governments.]
248
249
Annex - I
(Schedule-P)
[Model Rules/Notification]27
GOVERNMENT OF ***
****** DEPARTMENT
The Passenger Ropeway (Collection of Fee by Concessionaires) Rules, 20**
In exercise of the powers conferred by [section ** of the ***** Act, 20**] (hereinafter referred
to as the “Act”), and all other powers enabling him in this behalf, the Governor of *** makes
the following rules (hereinafter referred to as the “Rules”) for collection of fee for use of
passenger ropeway system, namely: -
1. Short title, commencement and application:
These Rules may be called the Passenger Ropeway (Collection of Fee by
Concessionaires) Rules, 20**.
These Rules shall come into force on the date of their publication in the Official Gazette
and shall apply to all concessions granted by the State Government after such date.
2. Definitions
2.1 In these Rules, unless the context otherwise requires,
(a) “Act” means the ***** Act, 20**
(b) “Appellate Authority” means any officer not below the rank of
superintending engineer or equivalent designated as such by the Government;
(c) “Authority” means an agency appointed by the Government under the
provisions of the Act, which will enter into an agreement with the
Concessionaire for construction, operation or maintenance of a Ropeway
system for transportation;
(d) “CPI (IW)” means the Consumer Price Index for Industrial Workers as
published by the Labour Bureau, Government of India or any Index published
in substitution thereof by the Government of India;
(e) “Concession Agreement” means an agreement entered into between the
Authority and any person or persons for construction, operation or
maintenance of a Ropeway system for transportation;
(f) “Concessionaire” means a person who has entered into a Concession
Agreement with the Authority under the provisions of the Act;
(g) “Government” means the Government of ***;
(h) “Price Index” shall comprise:
[(a) 70% (seventy per cent) of WPI; and
250
(b) 30% (thirty per cent) of CPI (IW)],
which constituents may be substituted by such alternative index or indices
as the Parties may by mutual consent determine;
(i) “Ropeway system” means the Ropeway system that is constructed, operated
or maintained under a Concession Agreement for transporting commuters;
(j) “Unauthorised Collection” means the collection of any amount not provided
for in these Rules, by the concessionaire;
(k) “User” means a person who uses the Ropeway system or any part thereof on
payment of fee; and
(l) “WPI” means the Wholesale Price Index as published by the Ministry of
Industry, Government of India or any Index published in substitution thereof
by the Government of India.
(m) “Year” means a period from 1st April of a year and ending on 31st March of
the following year.
Words and expressions used herein but not defined in these Rules shall have the meaning
respectively assigned to them in the Act.
3. Levy and Collection of Fee
3.1 It shall be levied and paid to the Concessionaire by every User, a fee under and in
accordance with the provisions of these Rules.
3.2 Every User, upon payment of the fee shall be issued a ticket / token / smart card by the
Concessionaire.
4. Basic Fee
4.1 The Concessionaire will communicate the fee for Ropeway system in the Concession
Agreement. Basic fee for parking at any designated parking area within a station of the
Ropeway system shall be as specified in column (4) below and will be revised from
time to time.
Serial No.
(1)
Vehicle
(2)
Time period of parking
(3)
Basic fee (in Rs.) (4)
1. Car Upto 2 hours
For every hour in excess of the
first 2 hours 105
10
5
2. Motorised 2-
wheeler
Upto 2 hours
For every hour in excess of the
first 2 hours
4
2
The basic fee for parking specified in sub-rule (2) above shall be increased by 50%
(fifty per cent) thereof for parking provided in the basement or on a floor above the
ground floor.
251
5. Annual revision of basic fee
5.1 The basic fee referred to in Rule 4 shall be increased annually, without compounding,
by 5% (five per cent) thereof for a period of 15 (fifteen) successive years commencing
from April 1, 2019. The first increase of 5% (five per cent) hereunder shall take effect
on April 1, 2020, and the last and fifteenth such increase shall be affected on April 1,
2034. Such increased rates shall be deemed to be the base rates for the purpose of these
rules.
6. Peak and off-peak fee
6.1 Every Concessionaire may, after obtaining prior written approval of the Authority,
which approval the Authority may in its discretion deny, levy and collect a higher and
discounted fee (the “Differential Fee”) for use of the Ropeway system, during peak
and off-peak hours respectively in accordance with this Rule 6:
Provided, however, that such Differential Fee shall not apply to Users availing of a
lower fee under Rule 9.
6.2 The Concessionaire shall, for the purposes of these Rules, designate not more than 4
(four) hours in a day as peak hours and a period equal to twice the peak hours as off-
peak hours. During peak hours, the Concessionaire may levy and collect a premium of
upto 25% (twenty-five per cent) on the applicable fee or such higher premium as the
Authority may by order permit. Simultaneously, with levy of such premium for peak
hours, the Concessionaire shall offer a discount during off-peak hours for an amount
equal to the premium for peak hours. For the avoidance of doubt, the determination of
Differential Fee shall be with reference to the time of entry of a user in the Ropeway
system.
6.3 If the determination and collection of Differential Fee results in an increase in the fee
revenues of the Concessionaire, then 80% (eighty per cent) of the additional revenue
in each year resulting from the Differential Fee shall be deposited in the Safety Fund
and used in accordance with provisions of the respective concession agreement. For
the purposes of this Rule 6.3, additional revenue from Differential Fee shall mean the
gross amount collected at differential fee pursuant to this Rule 6, less gross revenues
which would have been collected at the applicable fee on footing that the option to levy
and collect Differential Fee pursuant to this Rule 6 has not been exercised by the
Concessionaire.
7. Fee collection points
7.1 For collection of fee under these Rules, the Concessionaire shall establish and operate
ticket counters and ticket vending machines in accordance with the provisions of its
Concession Agreement. The Concessionaire may install fee collection gates for
checking evasion of fee.
8. Remittance and Utilisation of fee
8.1 The fee collected shall be appropriated by the Concessionaire in accordance with and
for the performance of its obligations under and in accordance with the provisions of
the Concession Agreement.
9. Discounted rates for frequent users
9.1 Upon request from any person, the Concessionaire shall issue a return ticket on
payment of a sum equal to 180% (one hundred and eighty per cent) of the fee payable
252
if it were to undertake a single one-way trip on the Ropeway system. Such return pass
shall entitle the User to undertake a return journey on the same day as the outward
journey.
9.2 Upon request from any person, the Concessionaire shall issue a daily pass on payment
of a sum equal to twice the fee payable if it were to undertake a single one-way trip on
the longest route of the Ropeway system. Such daily pass shall entitle the user to
unlimited travel on the Ropeway system for the date of issue.
9.3 The Concessionaire shall, upon request from any person for issue of a weekly pass,
issue such pass on payment of a sum equal to ten times the fee payable if it were to
undertake a single one-way trip on the selected section of the Ropeway system. Such
weekly pass shall entitle the user to unlimited travel on such section of the Ropeway
system for one week from the date of issue. The Concessionaire shall, upon request
from any person for issue of a monthly pass, issue such pass on payment of a sum equal
to forty times the fee payable if it were to undertake a single one-way trip on the
selected section of the Ropeway system. Such monthly pass shall entitle the user to
unlimited travel on such section of the Ropeway system for one month from the date
of issue.
[In addition to the above, the Authority may prescribe any other scheme of discounted
fee under these Rules.]
10. Luggage
10.1 A User may carry upto 7 (seven) kg of hand luggage without any payment for such
luggage. A User can carry 50 (fifty) kg of luggage on a payment of an amount equal to
the cost of one ticket. The cabins are designed to carry a fixed number of riders. The
assumption for luggage is that the weight of 50 (fifty) kg luggage will occupy one seat
equivalent of weight in the cabin. Therefore, one person carrying 50 (fifty) kg luggage
will deemed to buy tickets for 2 (two) travelling riders. The Concessionaire can levy a
per kilogram charge equal to or more than the cost of ticket for a single rider. e.g.users
may, at any time other than peak hours, carry luggage in excess of 7 (seven) kilograms,
but not exceeding 50 (fifty) kg, upon payment of basic fee calculated at the rate of Rs.
2 (two) per kilogram, which rate may be revised by the Concessionaire in accordance
with Rule 5; provided that any luggage which is hazardous, unhygienic or in any
manner offensive to other users shall not be permitted on the train.
11. Increase in fee due to increase in insurance premium
11.1 In the event of a significant rise in the risk premium for insurance on account of a
change in the security environment, the Concessionaire shall be entitled to recover 80%
(eighty percent) of such increase in premium from the Users by means of a
corresponding increase in fee with the prior written approval of the Authority which
approval shall not be unreasonably withheld.
12. Additional charge for evasion of fee
12.1 The Concessionaire shall be entitled to levy and collect an additional sum equal to the
greater of three times the applicable fee [or Rs. 200] from a person found to be evading
payment of fee due. Such additional sum shall be deemed to be fee due and payable
under these Rules and may be used for defraying the expenses on prevention of such
evasion.
Provided that the Concessionaire shall not be entitled to any reduction in its liability on
253
account of any amount payable by it to the Authority or to any other relief from or any
claim against the Authority for its failure to stop evasion of fee; and its failure to collect
fee prescribed under these Rules.
13. Rounding off of the fee
13.1 Fee to be collected under these Rules shall be rounded off to the nearest Rupee.
14. Commencement of fee collection
14.1 Levy and collection of fee shall commence upon completion/ provisional completion
of construction of the Ropeway system for entry into commercial service, in accordance
with the provisions of the Concession Agreement.
15. Display of Fee
15.1 The Concessionaire shall, near the entry point of each station, prominently display the
applicable fee for information of Users approaching from either side of the station. The
Concessionaire shall from time to time, by written notice, inform the Authority of the
applicable fee and the detailed calculation thereof. Such information shall be
communicated at least 30 (thirty) days prior to the date of initial levy of fee or revision
thereof, as the case may be.
15.2 The Concessionaire shall, at least 15 (fifteen) days prior to the commencement of
collection of fee or revised fee, as the case may be, publish a notice specifying the
actual amount of fee to be charged from Users, in at least one newspaper each in
English and local language of the area and having a wide circulation in such area.
16. Unauthorised collection
16.1 In the event that a Concessionaire collects from any person a sum of money not due
and payable hereunder, the Concessionaire shall be liable to refund to such person
forthwith the amount so collected along with a sum computed @ 0.5 % (zero point five
per cent) of the amount so collected, for each day from the date of collection till the
date of refund, by way of damages. In the event that such amount together with
damages computed in the manner as aforesaid is not paid to such person for any reason
whatsoever, the same shall be deposited with the Authority within a period of 15
(fifteen) days from the date of such collection.
16.2 Any User aggrieved with the collection of unauthorised fee, may lodge a complaint
with the authorised representative of the Concessionaire who shall, after hearing the
Parties pass an order on such complaint within 30 (thirty) days of receiving the
complaint and appeal, if any, against such order may be made to the Appellate
Authority designated as such by the Authority within 45 (forty five) days of the date
on which the order of the authorised representative was received by such User. In
passing an order under this Rule, the authorised representative or the Appellate
Authority may, after giving an opportunity of hearing to the complainant and the
Concessionaire, direct the Concessionaire to refund the excess payment and may also
award damages for the inconvenience suffered by an applicant.
16.3 The Concessionaire shall keep a record of all complaints received and action taken
thereon with respect to the fee collection, and forward a copy on a fortnightly basis to
the authorised representative of the Authority.
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16.4 The Authority may assess the excess fee collection, if any, made by a Concessionaire
and take appropriate action for recovering the same from such Concessionaire along
with an additional sum equal to the 25% (twenty five per cent) of the excess fee
collection. Such additional sum shall be deemed to be predetermined liquidated
damages for assessment and recovery of the excess fee collection.
17. Power of Authority to verify records
17.1 The Authority shall have the power to verify, through any of its designated officers, the
collection of fee and for this purpose, inspect any document, records, other information
or reports of the Concessionaire.
18. Exempted Users
18.1 The following categories of Users shall be exempted from payment of fee:
• Employees of the concessionaire on duty; and
• Security personnel on station duty.
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SCHEDULE – Q
(See Clause 19.5)
MONTHLY FEE STATEMENT
Ropeway System: Month:
For corresponding
month of previous year
For preceding month For the month reported upon
No. of
Users
(2)
Fee
collected (in
lakh Rs.)
(3)
No. of
Users
(4)
Fee
collected
(in lakh
Rs.)
(5)
Fee per
User
(in Rs.)
(6)
No. of
Users
(7)
Fee collected
(in lakh Rs.)
(8)
Note 1: Monthly Fee Statements for Monthly Passes and Daily Passes have been prepared
separately in the above format and are enclosed.
Remarks, if any:
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WEEKLY TRAFFIC CENSUS
Ropeway System: Week ending:
PKM and No. of Users using the Ropeway System during the week (total) (in
thousand)
Corresponding
week/last year
Preceding week week of report
PKM
(2)
No. of
Users
(3)
PKM
(4)
No. of
Users
(5)
PKM
(6)
No. of Users
(7)
Remarks, if any:
258
259
DAILY REPORT FOR Ropeway OPERATIONS
Ropeway System: Date:
Time During the
Day (peak hours
are 6.00 am to 10
am & 5 pm to
9.00 pm)*
Carrying
capacity
(in User nos.)
No. of Users
(In thousand)
People Per Hour
(PPH)
5.00 am to 6.00
am
6.00 am to 10 am
10 am to 11 am
11 am to 12 noon
12 noon to 1 pm
1 pm to 2 pm
2 pm to 3 pm
3 pm to 4 pm
4 pm to 5 pm
5 pm to 9 pm
9 pm to 10 pm
10 pm to 11 pm
Remarks, if any:
260
261
SCHEDULE – R
(See Clause 28.1.2)
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is entered into on this the ………….. day of ……………..
20……
AMONGST
1 …………………………… Limited, a company incorporated under the provisions of
the Companies Act, 1956/ Companies Act, 2013 and having its registered office at
…………………….(hereinafter referred to as the “Concessionaire” which expression
shall, unless repugnant to the context or meaning thereof, include its successors,
permitted assigns and substitutes);
2 …………………………. (name and particulars of Lenders’ Representative ) and
having its registered office at ………………………. acting for and on behalf of the
Senior Lenders as their duly authorised agent with regard to matters arising out of or in
relation to this Agreement (hereinafter referred to as the “Lenders’ Representative”
which expression shall, unless repugnant to the context or meaning thereof, include its
successors and substitutes);
3 ……………………… (name and particulars of the Escrow Bank) and having its
registered office at …………………………… (hereinafter referred to as the “Escrow
Bank” which expression shall, unless repugnant to the context or meaning thereof,
include its successors and substitutes); and
4 The Governor of *****, represented by [Secretary, Public Works Department and
having its principal offices at ******] (hereinafter referred to as the “Government”
which expression shall, unless repugnant to the context or meaning thereof, include its
administrators, successors and assigns).
WHEREAS:
(A) The Government has entered into a Concession Agreement dated …………………..
with the Concessionaire (the “Concession Agreement”) for **** ropeway (the “XXX
Ropeway”) in the State on design, build, finance, operate and transfer (“DBFOT”)
basis, and a copy of which is annexed hereto and marked as Annex-A to form part of
this Agreement.
(B) Senior Lenders have agreed to finance the Project in accordance with the terms and
conditions set forth in the Financing Agreements.
(C) The Concession Agreement requires the Concessionaire to establish an Escrow
Account, inter alia, on the terms and conditions stated therein.
NOW THEREFORE , in consideration of the foregoing and the respective covenants and
agreements set forth in this Agreement, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
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1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, the following words and expressions shall, unless repugnant to the
context or meaning thereof, have the meaning hereinafter respectively assigned to
them:
“Agreement” means this Escrow Agreement and any amendment thereto made in
accordance with the provisions contained herein;
“Concession Agreement” means the Concession Agreement referred to in Recital (A)
above and annexed hereto as Annex-A, and shall include all of its Recitals and
Schedules and any amendments made thereto in accordance with the provisions
contained in this behalf therein;
“Cure Period” means the period specified in this Agreement for curing any breach or
default of any provision of this Agreement by the Concessionaire, and shall commence
from the date on which a notice is delivered by the Government or the Lenders’
Representative, as the case may be, to the Concessionaire asking the latter to cure the
breach or default specified in such notice;
“Escrow Account” means an escrow account established in terms of and under this
Agreement, and shall include the Sub-Accounts;
“Escrow Default” shall have the meaning ascribed thereto in Clause 6.1;
“Lenders’ Representative” means the person referred to as the Lenders’
Representative in the foregoing Recitals;
“Parties” means the parties to this Agreement collectively and “Party” shall mean any
of the Parties to this Agreement individually;
“Payment Date” means, in relation to any payment specified in Clause 4.1, the date(s)
specified for such payment; and
“Sub-Accounts” means the respective Sub-Accounts of the Escrow Account, into
which the monies specified in Clause 4.1 would be credited every month and paid out
if due, and if not due in a month then appropriated proportionately in such month and
retained in the respective Sub Accounts and paid out therefrom on the Payment Date(s).
1.2 Interpretation
1.2.1 References to Lenders’ Representative shall, unless repugnant to the context or
meaning thereof, mean references to the Lenders’ Representative, acting for and on
behalf of Senior Lenders.
1.2.2 The words and expressions beginning with capital letters and defined in this Agreement
shall have the meaning ascribed thereto herein, and the words and expressions used in
this Agreement and not defined herein but defined in the Concession Agreement shall,
unless repugnant to the context, have the meaning ascribed thereto in the Concession
Agreement.
1.2.3 References to Clauses are, unless stated otherwise, references to Clauses of this
Agreement.
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1.2.4 The rules of interpretation stated in Clauses 1.2, 1.3 and 1.4 of the Concession
Agreement shall apply, mutatis mutandis, to this Agreement.
2 ESCROW ACCOUNT
2.1 Escrow Bank to act as trustee
2.1.1 The Concessionaire hereby appoints the Escrow Bank to act as trustee for the
Government, the Lenders’ Representative and the Concessionaire in connection
herewith and authorises the Escrow Bank to exercise such rights, powers, authorities
and discretion as are specifically delegated to the Escrow Bank by the terms hereof
together with all such rights, powers, authorities and discretion as are reasonably
incidental hereto, and the Escrow Bank accepts such appointment pursuant to the terms
hereof.
2.1.2 The Concessionaire hereby declares that all rights, title and interest in and to the Escrow
Account shall be vested in the Escrow Bank and held in trust for the Government, the
Lenders’ Representative and the Concessionaire, and applied in accordance with the
terms of this Agreement. No person other than the Government, the Lenders’
Representative and the Concessionaire shall have any rights hereunder as the
beneficiaries of, or as third-party beneficiaries under this Agreement.
2.2 Acceptance of Escrow Bank
The Escrow Bank hereby agrees to act as such and to accept all payments and other
amounts to be delivered to and held by the Escrow Bank pursuant to the provisions of
this Agreement. The Escrow Bank shall hold and safeguard the Escrow Account during
the term of this Agreement and shall treat the amount in the Escrow Account as monies
deposited by the Concessionaire, Senior Lenders or the Government with the Escrow
Bank. In performing its functions and duties under this Agreement, the Escrow Bank
shall act in trust for the benefit of, and as agent for, the Government, the Lenders’
Representative and the Concessionaire or their nominees, successors or assigns, in
accordance with the provisions of this Agreement.
2.3 Establishment and operation of Escrow Account
2.3.1 Within 30 (thirty) days from the date of this Agreement, and in any case prior to the
Appointed Date, the Concessionaire shall open and establish the Escrow Account with
the **** (name of Branch) Branch of the Escrow Bank. The Escrow Account shall be
denominated in Rupees.
2.3.2 The Escrow Bank shall maintain the Escrow Account in accordance with the terms of
this Agreement and its usual practices and applicable regulations, and pay the
maximum rate of interest payable to similar customers on the balance in the said
account from time to time.
2.3.3 The Escrow Bank and the Concessionaire shall, after consultation with the Lenders’
Representative, agree on the detailed mandates, terms and conditions, and operating
procedures for the Escrow Account, but in the event of any conflict or inconsistency
between this Agreement and such mandates, terms and conditions, or procedures, this
Agreement shall prevail.
2.4 Escrow Bank’s fee
The Escrow Bank shall be entitled to receive its fee and expenses in an amount, and at
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such times, as may be agreed between the Escrow Bank and the Concessionaire. For
the avoidance of doubt, such fee and expenses shall form part of the O&M Expenses
and shall be appropriated from the Escrow Account in accordance with Clause 4.1.
2.5 Rights of the parties
The rights of the Government, the Lenders’ Representative and the Concessionaire in
the monies held in the Escrow Account are set forth in their entirety in this Agreement
and the Government, the Lenders’ Representative and the Concessionaire shall have no
other rights against or to the monies in the Escrow Account.
2.6 Substitution of the Concessionaire
The Parties hereto acknowledge and agree that upon substitution of the Concessionaire
with the Nominated Company, pursuant to the Substitution Agreement, it shall be
deemed for the purposes of this Agreement that the Nominated Company is a Party
hereto and the Nominated Company shall accordingly be deemed to have succeeded to
the rights and obligations of the Concessionaire under this Agreement on and with
effect from the date of substitution of the Concessionaire with the Nominated
Company.
3 DEPOSITS INTO ESCROW ACCOUNT
3.1 Deposits by the Concessionaire
3.1.1 The Concessionaire agrees and undertakes that it shall deposit into and/or credit the
Escrow Account with:
(a) all monies received in relation to the Project from any source, including the
Senior Lenders, lenders of Subordinated Debt and the Government;
(b) all funds received by the Concessionaire from its share-holders, in any manner
or form;
(c) all Fee levied and collected by the Concessionaire;
(d) any other revenues, rentals, deposits or capital receipts, as the case may be,
from or in respect of the XXX Ropeway; and
(e) all proceeds received pursuant to any insurance claims.
3.1.2 The Concessionaire may at any time make deposits of its other funds into the Escrow
Account, provided that the provisions of this Agreement shall apply to such deposits.
3.2 Deposits by the Government
The Government agrees and undertakes that, as and when due and payable, it shall
deposit into and/or credit the Escrow Account with:
(a) Grant and any other monies disbursed by the Government to the
Concessionaire;
(b) all Fee collected by the Government in exercise of its rights under the
Concession Agreement; and
(c) Termination Payments:
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Provided that, notwithstanding the provisions of Clause 4.1.1, the Government shall be
entitled to appropriate from the aforesaid amounts, any Concession Fee due and
payable to it by the Concessionaire, and the balance remaining shall be deposited into
the Escrow Account.
3.3 Deposits by Senior Lenders
The Lenders’ Representative agrees, confirms and undertakes that the Senior Lenders
shall deposit into and/or credit the Escrow Account with all disbursements made by
them in relation to or in respect of the Project; provided that notwithstanding anything
to the contrary contained in this Agreement, the Senior Lenders shall be entitled to
make direct payments to the EPC Contractor under and in accordance with the express
provisions contained in this behalf in the Financing Agreements.
3.4 Interest on deposits
The Escrow Bank agrees and undertakes that all interest accruing on the balances of
the Escrow Account shall be credited to the Escrow Account; provided that the Escrow
Bank shall be entitled to appropriate therefrom the fee and expenses due to it from the
Concessionaire in relation to the Escrow Account and credit the balance remaining to
the Escrow Account.
4 WITHDRAWALS FROM ESCROW ACCOUNT
4.1 Withdrawals during Concession Period
4.1.1 At the beginning of every month, or at such shorter intervals as the Lenders’
Representative and the Concessionaire may by written instructions determine, the
Escrow Bank shall withdraw amounts from the Escrow Account and appropriate them
in the following order by depositing such amounts in the relevant Sub-Accounts for
making due payments, and if such payments are not due in any month, then retain such
monies in such Sub-Accounts and pay out therefrom on the Payment Date(s):
(a) all taxes due and payable by the Concessionaire for and in respect of the XXX
Ropeway;
(b) all payments relating to construction of the XXX Ropeway, subject to and in
accordance with the conditions, if any, set forth in the Financing Agreements;
(c) O&M Expenses, subject to the ceiling, if any, set forth in the Financing
Agreements;
(d) O&M Expenses incurred by the Government, provided it certifies to the
Escrow Bank that it had incurred such expenses in accordance with the
provisions of the Concession Agreement and that the amounts claimed are due
to it from the Concessionaire;
(e) Concession Fee due and payable to the Government;
(f) monthly proportionate provision of Debt Service due in an Accounting Year;
{(g) Premium due and payable to the Government;}
(h) all payments and Damages certified by the Government as due and payable to
it by the Concessionaire pursuant to the Concession Agreement;
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(i) monthly proportionate provision of debt service payments due in an Accounting
Year in respect of Subordinated Debt;
(j) any reserve requirements set forth in the Financing Agreements; and
(k) balance, if any, in accordance with the instructions of the Concessionaire.
4.1.2 No later than 60 (sixty) days prior to the commencement of each Accounting Year, the
Concessionaire shall provide to the Escrow Bank, with prior written approval of the
Lenders’ Representative, details of the amounts likely to be required for each of the
payment obligations set forth in this Clause 4.1; provided that such amounts may be
subsequently modified, with prior written approval of the Lenders’ Representative, if
fresh information received during the course of the year makes such modification
necessary.
4.2 Withdrawals upon Termination
Upon Termination of the Concession Agreement, all amounts standing to the credit of
the Escrow Account shall, notwithstanding anything in this Agreement, be appropriated
and dealt with in the following order:
(a) all taxes due and payable by the Concessionaire for and in respect of the XXX
Ropeway;
(b) 90% (ninety per cent) of Debt Due excluding Subordinated Debt;
(c) outstanding Concession Fee;
(d) all payments and Damages certified by the Government as due and payable to
it by the Concessionaire pursuant to the Concession Agreement, including
{Premium,} and any claims in connection with or arising out of Termination;
(e) retention and payments arising out of, or in relation to, liability for defects and
deficiencies set forth in Article 39 of the Concession Agreement;
(f) outstanding Debt Service including the balance of Debt Due;
(g) outstanding Subordinated Debt;
(h) incurred or accrued O&M Expenses;
(i) any other payments required to be made under the Concession Agreement; and
(j) balance, if any, in accordance with the instructions of the Concessionaire:
Provided that the disbursements specified in Sub-clause (j) of this Clause 4.2 shall be
undertaken only after the Vesting Certificate has been issued by the Government.
4.3 Application of insufficient funds
Funds in the Escrow Account shall be applied in the serial order of priority set forth in
Clauses 4.1 and 4.2, as the case may be. If the funds available are not sufficient to meet
all the requirements, the Escrow Bank shall apply such funds in the serial order of
priority until exhaustion thereof.
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4.4 Application of insurance proceeds
Notwithstanding anything in this Agreement, the proceeds from all insurance claims,
except life and injury, shall be deposited into and/or credited to the Escrow Account
and utilised for any necessary repair, reconstruction, reinstatement, replacement,
improvement, delivery or installation of the XXX Ropeway, and the balance remaining,
if any, shall be applied in accordance with the provisions contained in this behalf in the
Financing Agreements.
4.5 Withdrawals during Suspension
Notwithstanding anything to the contrary contained in this Agreement, the Government
may exercise all or any of the rights of the Concessionaire during the period of
Suspension under Article 36 of the Concession Agreement. Any instructions given by
the Government to the Escrow Bank during such period shall be complied with as if
such instructions were given by the Concessionaire under this Agreement and all
actions of the Government hereunder shall be deemed to have been taken for and on
behalf of the Concessionaire.
5 OBLIGATIONS OF THE ESCROW BANK
5.1 Segregation of funds
Monies and other property received by the Escrow Bank under this Agreement shall,
until used or applied in accordance with this Agreement, be held by the Escrow Bank
in trust for the purposes for which they were received, and shall be segregated from
other funds and property of the Escrow Bank.
5.2 Notification of balances
7 (seven) business days prior to each Payment Date (and for this purpose the Escrow
Bank shall be entitled to rely on an affirmation by the Concessionaire and/or the
Lenders’ Representative as to the relevant Payment Dates), the Escrow Bank shall
notify the Lenders’ Representative of the balances in the Escrow Account and Sub-
Accounts as at the close of business on the immediately preceding business day.
5.3 Communications and notices
In discharge of its duties and obligations hereunder, the Escrow Bank:
(a) may, in the absence of bad faith or gross negligence on its part, rely as to any
matters of fact which might reasonably be expected to be within the knowledge
of the Concessionaire upon a certificate signed by or on behalf of the
Concessionaire;
(b) may, in the absence of bad faith or gross negligence on its part, rely upon the
authenticity of any communication or document believed by it to be authentic;
(c) shall, within 5 (five) business days after receipt, deliver a copy to the Lenders’
Representative of any notice or document received by it in its capacity as the
Escrow Bank from the Concessionaire or any other person hereunder or in
connection herewith; and
(d) shall, within 5 (five) business days after receipt, deliver a copy to the
Concessionaire of any notice or document received by it from the Lenders’
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Representative in connection herewith.
5.4 No set off
The Escrow Bank agrees not to claim or exercise any right of set off, banker’s lien or
other right or remedy with respect to amounts standing to the credit of the Escrow
Account. For the avoidance of doubt, it is hereby acknowledged and agreed by the
Escrow Bank that the monies and properties held by the Escrow Bank in the Escrow
Account shall not be considered as part of the assets of the Escrow Bank and being
trust property, shall in the case of bankruptcy or liquidation of the Escrow Bank, be
wholly excluded from the assets of the Escrow Bank in such bankruptcy or liquidation.
5.5 Regulatory approvals
The Escrow Bank shall use its best efforts to procure, and thereafter maintain and
comply with, all regulatory approvals required for it to establish and operate the Escrow
Account. The Escrow Bank represents and warrants that it is not aware of any reason
why such regulatory approvals will not ordinarily be granted to the Escrow Bank.
6 ESCROW DEFAULT
6.1 Escrow Default
6.1.1 Following events shall constitute an event of default by the Concessionaire (an
“Escrow Default”) unless such event of default has occurred as a result of Force
Majeure or any act or omission of the Government or the Lenders’ Representative:
(a) the Concessionaire commits breach of this Agreement by failing to deposit any
receipts into the Escrow Account as provided herein and fails to cure such
breach by depositing the same into the Escrow Account within a Cure Period
of 5 (five) business days;
(b) the Concessionaire causes the Escrow Bank to transfer funds to any account of
the Concessionaire in breach of the terms of this Agreement and fails to cure
such breach by depositing the relevant funds into the Escrow Account or any
Sub-Account in which such transfer should have been made, within a Cure
Period of 5 (five) business days; or
(c) the Concessionaire commits or causes any other breach of the provisions of
this Agreement and fails to cure the same within a Cure Period of 5 (five)
business days.
6.1.2 Upon occurrence of an Escrow Default, the consequences thereof shall be dealt with
under and in accordance with the provisions of the Concession Agreement.
7 TERMINATION OF ESCROW AGREEMENT
7.1 Duration of the Escrow Agreement
This Agreement shall remain in full force and effect so long as any sum remains to be
advanced or is outstanding from the Concessionaire in respect of the debt, guarantee or
financial assistance received by it from the Senior Lenders, or any of its obligations to
the Government remain to be discharged, unless terminated earlier by consent of all the
Parties or otherwise in accordance with the provisions of this Agreement.
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7.2 Substitution of Escrow Bank
The Concessionaire may, by not less than 45 (forty five) days prior notice to the Escrow
Bank, the Government and the Lenders’ Representative, terminate this Agreement and
appoint a new Escrow Bank, provided that the new Escrow Bank is acceptable to the
Lenders’ Representative and arrangements are made satisfactory to the Lenders’
Representative for transfer of amounts deposited in the Escrow Account to a new
Escrow Account established with the successor Escrow Bank.
The termination of this Agreement shall take effect only upon coming into force of an
Escrow Agreement with the substitute Escrow Bank.
7.3 Closure of Escrow Account
The Escrow Bank shall, at the request of the Concessionaire and the Lenders’
Representative made on or after the payment by the Concessionaire of all outstanding
amounts under the Concession Agreement and the Financing Agreements including the
payments specified in Clause 4.2, and upon confirmation of receipt of such payments,
close the Escrow Account and Sub-Accounts and pay any amount standing to the credit
thereof to the Concessionaire. Upon closure of the Escrow Account hereunder, the
Escrow Agreement shall be deemed to be terminated.
8 SUPPLEMENTARY ESCROW AGREEMENT
8.1 Supplementary escrow agreement
The Lenders’ Representative and the Concessionaire shall be entitled to enter into a
supplementary escrow agreement with the Escrow Bank providing, inter alia, for
detailed procedures and documentation for withdrawals from Sub-Accounts pursuant
to Clause 4.1.1 and for matters not covered under this Agreement such as the rights and
obligations of Senior Lenders and lenders of Subordinated Debt, investment of surplus
funds, restrictions on withdrawals by the Concessionaire in the event of breach of this
Agreement or upon occurrence of an Escrow Default, procedures relating to operation
of the Escrow Account and withdrawal therefrom, reporting requirements and any
matters incidental thereto; provided that such supplementary escrow agreement shall
not contain any provision which is inconsistent with this Agreement and in the event
of any conflict or inconsistency between provisions of this Agreement and such
supplementary escrow agreement, the provisions of this Agreement shall prevail.
9 INDEMNITY
9.1 General indemnity
9.1.1 The Concessionaire will indemnify, defend and hold the Government, Escrow Bank
and the Senior Lenders, acting through the Lenders’ Representative, harmless against
any and all proceedings, actions and third party claims for any loss, damage, cost and
expense arising out of any breach by the Concessionaire of any of its obligations under
this Agreement or on account of failure of the Concessionaire to comply with
Applicable Laws and Applicable Permits.
9.1.2 The Government will indemnify, defend and hold the Concessionaire harmless against
any and all proceedings, actions and third party claims for any loss, damage, cost and
expense arising out of failure of the Government to fulfil any of its obligations under
this Agreement materially and adversely affecting the performance of the
Concessionaire’s obligations under the Concession Agreement or this Agreement other
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than any loss, damage, cost and expense arising out of acts done in discharge of their
lawful functions by the Government, its officers, servants and agents.
9.1.3 The Escrow Bank will indemnify, defend and hold the Concessionaire harmless against
any and all proceedings, actions and third party claims for any loss, damage, cost and
expense arising out of failure of the Escrow Bank to fulfil its obligations under this
Agreement materially and adversely affecting the performance of the Concessionaire’s
obligations under the Concession Agreement other than any loss, damage, cost and
expense, arising out of acts done in discharge of their lawful functions by the Escrow
Bank, its officers, servants and agents.
9.2 Notice and contest of claims
In the event that any Party hereto receives a claim from a third party in respect of which
it is entitled to the benefit of an indemnity under Clause 9.1 or in respect of which it is
entitled to reimbursement (the “Indemnified Party”), it shall notify the other Party
responsible for indemnifying such claim hereunder (the “Indemnifying Party”) within
15 (fifteen) days of receipt of the claim and shall not settle or pay the claim without the
prior approval of the Indemnifying Party, which approval shall not be unreasonably
withheld or delayed. In the event that the Indemnifying Party wishes to contest or
dispute the claim, it may conduct the proceedings in the name of the Indemnified Party
and shall bear all costs involved in contesting the same. The Indemnified Party shall
provide all cooperation and assistance in contesting any claim and shall sign all such
writings and documents as the Indemnifying Party may reasonably require.
10 DISPUTE RESOLUTION
10.1 Dispute resolution
10.1.1 Any dispute, difference or claim arising out of or in connection with this Agreement,
which is not resolved amicably, shall be decided finally by reference to arbitration to a
Board of Arbitrators comprising one nominee of each Party to the dispute, and where
the number of such nominees is an even number, the nominees shall elect another
person to such Board. Such arbitration shall be held in accordance with the Rules of
Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi
(the “Rules”) or such other rules as may be mutually agreed by the Parties, and shall be
subject to the provisions of the Arbitration and Conciliation Act, 1996, as amended
from time to time.
10.1.2 The Arbitrators shall issue a reasoned award and such award shall be final and binding
on the Parties. The venue of arbitration shall be [***] and the language of arbitration
shall be English.
11. MISCELLANEOUS PROVISIONS
11.1 Governing law and jurisdiction
This Agreement shall be construed and interpreted in accordance with and governed by
the laws of India, and the Courts at *** shall have jurisdiction over all matters arising
out of or relating to this Agreement.
11.2 Waiver of sovereign immunity
The Government unconditionally and irrevocably:
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(a) agrees that the execution, delivery and performance by it of this Agreement
constitute commercial acts done and performed for commercial purpose;
(b) agrees that, should any proceedings be brought against it or its assets, property
or revenues in any jurisdiction in relation to this Agreement or any transaction
contemplated by this Agreement, no immunity (whether by reason of
sovereignty or otherwise) from such proceedings shall be claimed by or on
behalf of the Government with respect to its assets;
(c) waives any right of immunity which it or its assets, property or revenues now
has, may acquire in the future or which may be attributed to it in any
jurisdiction; and
(d) consents generally in respect of the enforcement of any judgement or award
against it in any such proceedings to the giving of any relief or the issue of any
process in any jurisdiction in connection with such proceedings (including the
making, enforcement or execution against it or in respect of any assets,
property or revenues whatsoever irrespective of their use or intended use of
any order or judgement that may be made or given in connection therewith).
11.3 Priority of agreements
In the event of any conflict between the Concession Agreement and this Agreement,
the provisions contained in the Concession Agreement shall prevail over this
Agreement.
11.4 Alteration of terms
All additions, amendments, modifications and variations to this Agreement shall be
effectual and binding only if in writing and signed by the duly authorised
representatives of the Parties.
11.5 Waiver
11.5.1 Waiver by any Party of a default by another Party in the observance and performance
of any provision of or obligations under this Agreement:
(a) shall not operate or be construed as a waiver of any other or subsequent default
hereof or of other provisions of or obligations under this Agreement;
(b) shall not be effective unless it is in writing and executed by a duly authorised
representative of the Party; and
(c) shall not affect the validity or enforceability of this Agreement in any manner.
11.5.2 Neither the failure by any Party to insist on any occasion upon the performance of the
terms, conditions and provisions of this Agreement or any obligation thereunder nor
time or other indulgence granted by any Party to another Party shall be treated or
deemed as waiver of such breach or acceptance of any variation or the relinquishment
of any such right hereunder.
11.6 No third-party beneficiaries
This Agreement is solely for the benefit of the Parties and no other person or entity
shall have any rights hereunder.
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11.7 Survival
11.7.1 Termination of this Agreement:
(a) shall not relieve the Parties of any obligations hereunder which expressly or by
implication survive termination hereof; and
(b) except as otherwise provided in any provision of this Agreement expressly
limiting the liability of either Party, shall not relieve either Party of any
obligations or liabilities for loss or damage to the other Party arising out of, or
caused by, acts or omissions of such Party prior to the effectiveness of such
termination or arising out of such termination.
11.7.2 All obligations surviving the cancellation, expiration or termination of this Agreement
shall only survive for a period of 3 (three) years following the date of such termination
or expiry of this Agreement.
11.8 Severability
If for any reason whatever any provision of this Agreement is or becomes invalid,
illegal or unenforceable or is declared by any court of competent jurisdiction or any
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected in any manner, and the
Parties will negotiate in good faith with a view to agreeing to one or more provisions
which may be substituted for such invalid, unenforceable or illegal provisions, as nearly
as is practicable to such invalid, illegal or unenforceable provision. Failure to agree
upon any such provisions shall not be subject to dispute resolution under Clause 10.1
of this Agreement or otherwise.
11.9 Successors and assigns
This Agreement shall be binding on and shall inure to the benefit of the Parties and
their respective successors and permitted assigns.
11.10 Notices
All notices or other communications to be given or made under this Agreement shall
be in writing and shall either be delivered personally or sent by courier or registered
post with an additional copy to be sent by facsimile or e-mail. The address for service
of each Party, its facsimile number and e-mail are set out under its name on the signing
pages hereto. A notice shall be effective upon actual receipt thereof, save that where it
is received after 5.30 (five thirty) p.m. on a business day, or on a day that is not a
business day, the notice shall be deemed to be received on the first business day
following the date of actual receipt. Without prejudice to the foregoing, a Party giving
or making a notice or communication by facsimile or e-mail shall promptly deliver a
copy thereof personally or send it by courier or registered post to the addressee of such
notice or communication. It is hereby agreed and acknowledged that any Party may by
notice change the address to which such notices and communications to it are to be
delivered or mailed. Such change shall be effective when all the Parties have notice of
it.
11.11 Language
All notices, certificates, correspondence and proceedings under or in connection with
this Agreement shall be in English.
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11.12 Authorised representatives
Each of the Parties shall, by notice in writing, designate their respective authorised
representatives through whom only all communications shall be made. A Party hereto
shall be entitled to remove and/or substitute or make fresh appointment of such
authorised representative by similar notice.
11.13 Original Document
This Agreement may be executed in four counterparts, each of which when executed
and delivered shall constitute an original of this Agreement.
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IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED
THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.
THE COMMON SEAL OF
CONCESSIONAIRE has been affixed pursuant
to the resolution passed by the Board of Directors
of the Concessionaire at its meeting held on the
……… day of 20…… hereunto affixed in the
presence of ………, Director, who has signed
these presents in token thereof and ………,
Company Secretary / Authorised Officer who has
countersigned the same in token thereof in the
presence of
$
:
SIGNED, SEALED AND DELIVERED
For and on behalf of
SENIOR LENDERS by the
Lenders’ Representative:
(Signature)
(Name)
(Designation)
(Address)
(Fax No.)
(e-mail address)
SIGNED, SEALED AND SIGNED, SEALED AND
DELIVERED DELIVERED
For and on behalf of For and on behalf of
ESCROW BANK by: THE GOVERNMENT OF *** by:
(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address)
(Fax No.) (Fax No.)
address)
(e-mail address)
In the presence of:
1. 2.
$
To be affixed in accordance with the articles of association of the Concessionaire.
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SCHEDULE – S
(See Clause 30.2.1)
PANEL OF CHARTERED ACCOUNTANTS
1. Panel of Chartered Accountants
Pursuant to the provisions of Clause 30.2.1 of the Agreement, the Authority and the
Concessionaire shall prepare a mutually agreed panel of 10 (ten) reputable firms of
Chartered Accountants having their registered offices in India (the “Panel of
Chartered Accountants”). The criteria for preparing such Panel and the procedure to
be adopted in this behalf shall be as set forth in this Schedule- S
2. Invitation for empanelment
2.1 The Authority shall invite offers from all reputable firms of Chartered Accountants
who fulfil the following eligibility criteria, namely:
(a) the firm should have conducted statutory audit of the annual accounts of at
least one hundred companies registered under the Companies Act, 1956 or
Companies Act 2013, as the case may be, of which at least ten should have
been public sector undertakings;
(b) the firm should have at least 5 (five) practicing Chartered Accountants on its
rolls, each with a minimum experience of ten years in the profession;
(c) the firm or any of its partners should not have been disqualified or black-listed
by the Comptroller and Auditor General of India or the Authority; and
(d) the firm should have an office in the State or in an adjacent State with at least
2 (two) practicing Chartered Accountants on its rolls in such State.
2.2 Interested firms meeting the eligibility criteria shall be required to submit a statement
of their capability including the bio-data of all the practicing Chartered Accountants on
its rolls. In particular, each firm shall be required to furnish year-wise information
relating to the names of all the companies with an annual turnover exceeding Rs.
25,00,00,000 (Rs. twenty-five crore) whose annual accounts were audited by such firm
in any of the preceding 5 (five) Accounting Years.
3. Evaluation and selection
3.1 The information furnished by each firm shall be scrutinised and evaluated by the
Authority and 1 (one) point shall be awarded for each annual audit of the companies
specified in Paragraph 2.2 above. (For the avoidance of doubt, a firm which has
conducted audit of the annual accounts of any such company for five years shall be
awarded five points).
3.2 The Authority shall prepare a list of all the eligible firms along with the points scored
by each such firm and 10 (ten) firms scoring the highest points shall be identified and
included in the draft Panel of Chartered Accountants.
4. Consultation with the Concessionaire
The Authority shall convey the aforesaid panel of firms to the Concessionaire for
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scrutiny and comments, if any. The Concessionaire shall be entitled to scrutinise the
relevant records of the Authority to ascertain whether the selection of firms has been
undertaken in accordance with the prescribed procedure and it shall send its comments,
if any, to the Authority within 15 (fifteen) days of receiving the aforesaid panel.
5. Mutually agreed panel
5.1 The Authority shall, after considering all relevant factors including the comments, if
any, of the Concessionaire, finalise and constitute a panel of 10 (ten) firms which shall
be deemed to be the mutually agreed Panel of Chartered Accountants.
5.2 After completion of every five years from the date of preparing the mutually agreed
Panel of Chartered Accountants, or such earlier period as may be agreed between the
Authority and the Concessionaire, a new panel shall be prepared in accordance with
the provisions of this Schedule-S.
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SCHEDULE- T
(See Clause 20.8)
PASSENGER CHARTER
XXX Ropeways
At your service
Our Passenger Charter explains our commitments to you and sets out the targets that these are
based upon. It is not legally binding and does not affect your legal rights, which are set under
the Applicable Law. Copies of the conditions can be obtained from all staffed stations or from
our customer service center. They can also be viewed online at www [please mention the
website]
Contents
1 Introduction
2 Our standards for ropeway service performance
3 Information and planning for your journey
4 Passengers who require assistance
5 Buying a ticket
6 Your journey
7 Claims for delays and cancellations
8 Listening to your views
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1. Introduction
We want to give our passengers excellent service!
This is a bold statement, but its intention is to focus the mind of every employee of the
………… XXX Ropeway, on what is important - our passengers. We aim to provide
you with:
i. Safe, clean, reliable services
ii. Clean and safe stations
iii. Reliable, timely and easy to understand information
iv. Polite, friendly and helpful staff
Inevitably, there will be times when problems occur, and we are not able to achieve the
standards we aim for. Our charter explains what we will do for you when this happens.
2. Our Standards for Ropeway Service Performance
We will continue to work hard at improving our performance to provide you with a
consistently reliable service.
2.1 Peak Hour Operation
The Concessionaire will define the peak hours based on the RFP specifications and
ridership. Typically, [0600 and 1000] hours inclusive, or between [1700 and 2100]
inclusive, Monday to Friday only are peak hours. The aforesaid time definition may be
modified from time to time depending on average daily traffic volumes during these
hours. The peak hour operation will be suitably dealt by increasing or decreasing the
maximum speed limit of the ropeway system.
2.2 Reliability
Our target is 99% (Ninety-nine) percent availability of the transport system for all the
7 (seven) days of the week. You can view our performance results for the previous four
weeks and 12 (twelve) months on ‘Track Record’ posters displayed at every station of
the ………… XXX Ropeway. The results are also available for inspection on request,
at all our stations and are published in our season ticket (discounted fee) section.
The method of monitoring our performance is independently audited annually. We do
not include disruption caused by matters out of the ropeway industry’s control, such as
trespass, vandalism and terrorism.
3. Information and Planning the Usage of the Ropeway
We will provide you with accurate information about the ropeway services, fees and
facilities to help you plan your journey. You can obtain this information in a number
of ways.
………… Ropeway Enquiries - telephone: ………. (24 hours)
………… Ropeway Enquiries on the fees applicable for the system
Calls are charged at a local rate and may be monitored.
You can also obtain online information about train times and up-to-the- minute train-
running information by visiting www. ………….
Customer Service Centre – Tel: …………
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In addition to the ropeway enquiries, customer service centre also provides information
on the ropeway service. The customer service centre is open 24 hours a day except on
national holidays. Calls are charged at a local rate and may be monitored.
3.1 At Stations
Staff in our ticket offices and travel centres can provide you with information to help
you plan your journey. We will display up-to-date timetable posters at all stations.
These will include the locations serviced by the ropeway and connecting transport
systems available at each ropeway station locations to plan your journey ahead.
3.2 Engineering work
Planned engineering work
From time to time, ………… XXX Ropeway has to carry out planned engineering and
improvement work to maintain the system. This can cause alterations to our services,
especially on weekends and public holidays.
The maintenance work on ropeway systems is done during shutdown hours which
means that system functions at peak performance during the operation hours. However,
in case of any specific instances when planned engineering work time extends beyond
the shutdown time viz affecting operations during service time, advance information
along with notification will be posted on the display system and website.
Information on services will also be available from:
Ropeway Enquiries
Customer Service Centre
Under best effort circumstances, we will try to post information well in advance for
you to plan your trips.
3.3 Help and advice during your journey
Our customer service helpline is available during operation hours and equipped to
handle all enquiries.
4. Passengers who Require Assistance
We are committed to meeting the travelling needs of our disabled passengers. We
recognise that many of our passengers may have special needs which require us to
adjust the way we provide our service. The ropeway station is equipped to handle
requirements of all riders and the ropeway system, cabins are designed to accommodate
wheel chairs, baby prams, prosthetics etc. The design facilitates seamless travel from
start to finish.
4.1 Advance information and assistance for disabled passengers
We advise passengers who would like assistance to contact our customer service centre
in advance.
Telephone (24 hours): ………………
Fax: …………………
Textphone: …………..
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Ropeway Enquiries textphone: ……………….
4.2 Car Parking
Every station that has a tarmac or concrete surfaced car park for customers has
designated parking spaces [for either blue or orange badge holders].
4.3 On-Board Information
We are committed to providing information to provide a safe and pleasurable ride in a
variety of ways so that it can be accessed by as wide a group of passengers as possible.
Cabins are equipped with public address systems to provide audible announcements to
hearing passengers and equipped with a passenger information system that uses visual
displays to enable hearing-impaired passengers to access information.
We recognize that good announcements are essential to visually impaired passengers,
so our employees are trained to speak clearly.
4.4 Disability awareness training
All our frontline staff and managers receive training in disability awareness.
Further Information
………… Rail System Disabled Persons’ Protection Policy (DPPP) sets out our full
arrangements for passengers with disabilities. It can be supplied in a range of formats
(large print, braille and audio), available from our customer service centre.
We have also produced a leaflet containing useful information, called ‘Our Service for
Passengers with Impairments’. It is available at staffed stations and from our customer
service centre.
5. Buying a ticket
We will sell you the most appropriate ticket for your journey. To purchase a ticket, visit
any of our staffed stations or telephone our customer service centre.
5.1 At stations
• Our ticket office opening hours are displayed at every staffed station. They are
also available from our website or by telephoning our customer service centre.
• You can pay by cash or major credit and debit cards.
• Many stations also have self-service ticket machines, which sell a range of
tickets to main destinations.
We will try to ensure that you do not need to queue for more than five minutes at busy
times and no more than three minutes during less busy times. Details of busy times are
displayed at each staffed station.
At major stations, our travel centres enable you to buy tickets, get travel information
and also purchase other travel services.
Tickets can also be purchased from our authorised travel agents.
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5.2 By Telephone
Season tickets can also be purchased over the telephone by calling our customer service
centre. We accept most major credit and debit cards. Please allow at least five working
days for delivery of your tickets.
5.3 Tickets online
You can also buy your season ropeway tickets (Discounted Fee) online.
5.4 Penalty fees
………… XXX Ropeway has a duty to its fee-paying passengers to ensure that no-one
travels for free.
To help us achieve this, we operate a penalty fees scheme across our network. If you
travel without a valid ticket you may be liable to a penalty fee of [Rs.200 or three times
of the single fee (whichever is the greater)].
6. Your journey
Getting a seat
We operate a ‘walk-on’ service, which means you can board the next arriving cabin
provided you have a valid ticket. The seat is guaranteed as the ropeway cabin is
designed not to allow more people to board than its capacity. In Aerial Tramway
(ATW), Cable Liners (Automated People Movers) are designed to allow sitting and
standing passengers.
6.1 Security
We work very closely with the local authorities to improve security at our stations and
car parks.
We aim to reduce levels of crime, trespass and vandalism and we are investing to
achieve this. Initiatives include:
• Teams of Travel Safe Officers, trained and co-ordinated by the Police
• Installation of CCTV at stations
• Installation of CCTV in the cabins
• Lighting at stations and car parks
• Help points at our stations
• Security guards at key locations.
More information can be found in the safety and security section of our website.
6.2 Cycles
We welcome the opportunity to integrate ropeway and cycle travel by providing cycle
parking at most of our stations.
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Cycles are also welcome on our services, except during peak hours.
Our guards do have the right to refuse a cycle if there is insufficient space available or
where the cycles cannot be accommodated safely.
Our cycle policy is published in our timetable book and shows those services where
cycles are not permitted. Information can be found at staffed stations and from our
customer service centre, and in our travel information section.
6.3 Smoking
Smoking is not permitted anywhere on the XXX Ropeway.
6.4 Lost Property
Our lost property office at …………….. is open from 0730 -1900 Monday to Friday.
Telephone the office on …………….... All property found on our services and at our
stations is forwarded to our lost property office.
To make an enquiry, complete our lost property online form.
6.5 Service Disruption
Unfortunately, things do sometimes go wrong, causing disruption that cannot always
be foreseen or avoided. Incase emergency maintenance is required, we will host the
information on relevant media to ensure that the riders of the ropeway are informed
well in advance to avoid any inconvenience.
Other causes of disruption include:
• Emergency engineering work
• Trespass and vandalism
• Security alerts.
Under such circumstances we may have to make changes to our services without giving
prior warning to protect your safety and that of our staff. We will always try to minimise
disruption, keep you informed and provide or recommend alternative means of travel.
If a problem does occur mid-way in the ropeway journey, we will ensure that you reach
the nearest station with minimum inconvenience.
All our cabins are fitted with public address systems are equipped to provide all
information on real time basis and most of our staff are linked by telephone systems.
We aim to let you know what is happening.
7. Claims for delays or cancellations
7.1 Season Tickets Valid for one month or longer ‘Void’ day refunds
As a holder of a season ticket valid for one month or longer, we may provide you with
the appropriate refund for exceptional days when there has been widespread serious,
extended disruption. This is known as a ‘void’ day. In these cases, the period of
disruption will be excluded from our performance statistics.
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When we have declared a ‘void’ day we will tell you through ‘Track Record’ posters
displayed at key stations.
When you renew your season ticket you will be advised by staff at your local ticket
office to apply for ‘void’ day refunds if they have been declared. You will be given a
‘void’ day refund application form, which you can complete and submit along with
your expired season ticket.
7.2 Availability and Reliability discounts for Season Tickets (Discounted Fee)
We have certain performance standards for reliability. If we fail to meet these
standards, we will offer you a discount from the cost of your season ticket renewal.
Discounts will be paid automatically at the time of renewal.
Delays and cancellations that are caused by incidents beyond the control of the ropeway
industry are excluded from our performance results. Incidents that are beyond our
control include security alerts, vandalism and trespass. We will display the number of
trains affected on posters at key stations and also on our website.
5% discount
We will offer you a 5% discount if, on average, over the previous 12 months if there is
deficient service as per the performance parameters (system availability of 99%) has
been more than 10% below the standard or reliability has been more than 5% below
the standard.
10% discount
We will offer you a 10% discount if performance parameters for system availability
are below these discount threshold levels.
To obtain your discount, you must renew your season ticket within four weeks of the
previous ticket’s expiry.
Other tickets and weekly seasons
We will treat all claims on their merits and give consideration to any problems you
encounter. However, for your guidance, you can expect us to offer the following:
Please send us your travel tickets to support your claim. This will also help to speed up
your claim. Completed claims should be sent to our customer service centre.
8. Listening to your views
We carry out and analyse passenger survey research to provide information about what
you think of different aspects of our service.
We hold regular ‘Meet the Manager’ events, which enable you to speak directly to
managers to put your views to them or ask them questions. Details of Meet the Manager
events will be advertised on station posters, in our passenger magazine e-motion,
through our customer service centre and also online.
We will listen to your views and communicate through correspondence and by
telephone. We have a specially trained customer service centre team able to respond to
you and we also liaise with passenger representative bodies and user groups that exist
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to protect your interests.
Making a comment or complaint
We welcome your comments, suggestions, complaints and praise about any aspect of
our service. We also welcome comments about our charter. Senior managers monitor
the number and type of complaints and comments that you make. They are also
responsible for delivering continuous improvement to customer service. Your feedback
can therefore help us to achieve this. If you are commenting on a journey, please
remember to include your ropeway tickets and any other details, as this will help us to
provide you with a swift response.
Further information:
We have a full Customer Comments and Complaints Handling Procedure (CCCHP).
copies which can be obtained from our customer service centre or from our website
www. ………….
Contacting our Customer Service Centre
Please visit ‘Contact Us’ section for details.
Our promised response times
If you write to us, you should hear from us within five working days of us receiving
your communication.
However, it may take longer to provide a full reply (e.g. if an investigation is required)
and if this happens, we will send you an acknowledgement within five working days
and reply within twenty working days.
If a full reply cannot be made within twenty working days, we will contact you again
to update you.
If you are unhappy with our reply
We will work hard to deal with your concerns to your satisfaction but if you are
unhappy with our response, please let us know.
Alternatively, you can approach the consumer courts or other similar fora set up under
Applicable Laws.