Concessionaire Agreeement between Bruhat Bengaluru Mahanagara Palike (BBMP) and Maverick Holdings &...

7/29/2019 Concessionaire Agreeement between Bruhat Bengaluru Mahanagara Palike (BBMP) and Maverick Holdings & Inves

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Development of Housing Complex for Economically Weaker Sections in Koramangala, Bangalore Bruhat

Bangalore Mahanagara Palike

CONCESSION AGREEMENT

between

Bruhat Bangalore Mahanagara Palike

and

Maverick Holdings & Investments Private Limited

(Concessionaire)

for

Development of Housing Complex for Economically Weaker Sections at

Koramangala, Bangalore

TABLE OF CONTENTS

11

Concession Agreement


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ARTICLE CONTENTS PAGE

1

1.1

1.2

DEFINITIONS AND INTERPRETATION

Definitions

Interpretation

7

13

22.1

2.2

2.3

CONCESSIONGrant of Concession

Concession Period

Acceptance of Concession

14

15

15

3

3.1

3.2

3.3

3.4

PROJECT SITE

Handover of Project Site

Rights and Use of the Project Site

Peaceful Possession

Applicable Permits

15

16

17

18

4

4.1

4.2

4.3

PROJECT ENGINEER

Procedure for Appointment

Payments to Project Engineer

Replacement of Project Engineer

18

19

19

5

5.1

5.2

CONCESSIONAIRES OBLIGATIONS

Performance Security

Financing Arrangement

20

20

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ARTICLE CONTENTS PAGE5.3

5.4

5.5

5.6

5.7

5.8

5.95.10

Drawings

Project Implementation: Construction Works

Operation and Maintenance

Insurance

Environmental Compliance

General Obligations

Specific ObligationsNo Breach of Obligations

21

22

23

26

28

28

2930

6

6.1

6.2

BBMPs OBLIGATIONS

Specific Obligations

General Obligations

30

31

7

7.1

7.2

QUARTERLY MANAGEMENT PAYMENT

Payment Obligation

Mode of Payment

31

31

8

8.1

8.2

8.3

8.4

8.5

FORCE MAJEURE

Force Majeure Event

Notice of Force Majeure Event

Performance of Obligations

Termination due to Force majeure Event

Liability for other losses, damages etc

32

33

34

35

36

9 EVENTS OF DEFAULT & TERMINATION

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9.2

9.3

9.4

9.5

Events of Default

Termination due to Event of Default

Rights of BBMP on Termination

Accrued Rights of Parties

Lenders Step-in Rights

37

38

41

42

42

1010.1

10.2

10.3

HANDBACK OF PROJECT FACILITIESOwnership

Concessionaires Obligations

BBMPs Obligations

43

43

44

11

11.1

11.2

DISPUTE RESOLUTION

Amicable Resolution

Arbitration

44

45

REPRESENTATIONS & WARRANTIES

Representations & Warranties of the ConcessionaireRepresentations & Warranties of BBMP

Obligation to Notify Change

4647

48

13

13.1

13.2

13.3

13.4

13.5

MISCELLANEOUS

Assignments & Charges

Interest & Right of Set off

Governing Law & Jurisdiction

Waiver

Survival

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48

49

49

50

50

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13.7

13.8

13.9

13.10

13.11

13.12

Amendments

Notices

Severability

No Partnership

Language

Exclusion of Implied Warranties etc.

Counterparts

50

51

51

51

52

52

1.

2.

3.

4.

5.

6.

7.

SCHEDULES

Details of Site

Construction Requirements

O&M Requirements

Performance Security (Proforma of Bank Guarantee)

Format for Letter of Authorisation

Scope of Work of Project Engineer

Quarterly Management Payment

53

54

65

71

74

75

80

This Concession Agreement mutually agreed and entered into on this the ___________day

of ________________, Two Thousand and ____________ ( ) at Bangalore.

BETWEEN

Bruhat Bangalore Mahanagara Palike acting through the Commissioner, Bangalore

Mahanagara Palike, having its office at N.R. Square, Bangalore 560 002, hereinafter

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referred to as the Concessioning Authority or BBMP which expression shall unless

repugnant to the context include his successors and assigns

AND

Maverick Holdings & Investments Private Limited, a company duly incorporated under the

provisions of the Companies Act, 1956 having its registered office at No.78/1, New

K.R.Road, Basavanagudi, Bangalore-560 004 hereinafter referred to as Concessionairewhich expression shall unless repugnant to the context include the successors and permitted

assigns

WHEREAS,

A. BBMP had constructed 1512 flats in Koramangala, Bangalore earmarked for the

economically weaker sections of the society. The flats have developed serious

defects leading to collapse of some of them.

B. BBMP proposes to demolish the flats and construct 1640 flats on the site with

private participation. These flats would be earmarked for economically weaker

sections of the society and for usage by BBMP for purposes of its own.

C. BBMP had invited competitive proposals from eligible Bidders for implementing

the Project (as hereinafter defined) and in response thereto BBMP received

proposals from several persons including the Concessionaire for implementing the

Project.

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D. BBMP, after evaluating the aforesaid Proposals accepted the Proposal submitted by

the Concessionaire and issued Letter of Acceptance No.

BBMP/EIC/PR/3571/2011-12 dated 8.12.2011 to the Concessionaire

for developing the Project.

E. The Parties hereto are required to enter into the Concession Agreement being these

presents to record the terms, conditions and covenants of the Concession.

NOW THIS AGREEMENT WITNESSETH AS FOLLOWS: -

ARTICLE 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 ascribed to them

hereunder:

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Additional Facilities shall mean all facilities, which the Concessionaire may build,

provide or procure in the area remaining in the Site after construction of the EWS Facility,

for commercial / residential purposes consistent with Good Industry Practice and in

accordance with this Agreement, and shall comprise BBMPs Share and Concessionaires

Share.

Affected Party shall mean the Party claiming to be affected by a Force Majeure Event inaccordance with Article 8.1 of this agreement.

Agreement shall mean this Agreement, and includes any amendments hereto made in

accordance with the provisions hereof.

Applicable Law shall mean all laws in force and effect as of the date hereof and which

may be promulgated or brought into force and effect hereinafter in India including

judgements, decrees, injunctions, writs or orders of any court of record, as may be in force

and effect during the subsistence of this Agreement and applicable to the Project/the

Concessionaire in relation to the Project.

Applicable Permits shall mean all clearances, permits, authorisations, consents and

approvals required to be obtained or maintained by the Concessionaire under Applicable

Law, in connection with the Project during the subsistence of this Agreement.

Appointed Date shall mean the date of this Agreement.

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Arbitration Act shall mean the Arbitration and Conciliation Act, 1996 and shall include

any amendment to or any re-enactment thereof as in force from time to time.

BBMP shall mean Bruhat Bangalore Mahanagara Palike, the municipal corporation

established under the provisions of the Karnataka Municipal Corporations Act, 1976.

BBMP Consent shall have the meaning ascribed thereto in Article 4.2(b)(i) of this

agreement.

BBMPs Share shall mean the built up area in the Additional Facilities owned by

BBMP.

Book Value shall mean the value of the capital expenditure incurred on the EWS Facility

and BBMPs Share as per the books of the Concessionaire, net of depreciation charged on

the basis of straight line method and amortized equally over the Operations Period, duly

verified and certified by an independent auditor in accordance with IGAAP (Indian

Generally Accepted Accounting Principles).

COD shall mean the date on which the EWS Facility could be safely occupied, which

shall be the date on which the Project Engineer has issued the Readiness Certificate in

accordance with the provisions of Article 5.4 of this agreement.

Concession shall have the meaning ascribed thereto in Article 2.1 of this Agreement.

Concession Period shall have the meaning ascribed to it in Article 2.2 of this agreement.

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Concessionaire shall mean Maverick Holdings & Investments Private Limited and

includes its successors and permitted assigns.

Concessionaires Share shall mean the built up area, along with common areas,

facilities, attendant benefits, together with proportionate undivided share, right, title and

interest in the site and Additional Facilities owned by the Concessionaire.

Construction Requirements shall mean the requirements as to construction of the EWSFacility set out in Schedule 2 of this agreement.

Construction Works shall mean all works and things required to be undertaken by the

Concessionaire, in accordance with the Construction Requirements.

Contractor shall mean any Person with whom the Concessionaire has entered into/may

enter into any of the Project Agreements.

Drawings shall mean all of the drawings including revised/modified drawings submitted

by the concessionaire from time to time, designs, calculations and documents pertaining to

the Project in accordance with the Construction Requirements and O&M Requirements.

Due Date means each date for making the Quarterly Management Payment as set out in

Schedule 7 of this agreement.

Emergency shall mean a condition or situation that is likely to endanger the safety of the

individuals on or about the Project Facilities including the safety of the users thereof or

which poses an immediate threat of material damage to the Project Facilities.

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Encumbrance shall mean any encumbrance 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 without limitation any

designation of loss payees or beneficiaries or any similar arrangement under any insurance

policy pertaining to the Project, physical encumbrances, claims for any amounts due on

account of taxes, cesses, electricity, water and other utility charges and encroachments on

the Project Facilities.

EWS Facility shall mean the facilities including 1640 EWS Flats and all other related

facilities to be engineered and constructed on the Site, by the Concessionaire in accordance

with the provisions of Schedule 2 of this agreement.

EWS Allottees shall mean the occupants to whom the EWS Flats are to be allotted by

BBMP.

EWS Flats shall mean the houses to be financed, engineered and constructed by the

Concessionaire as per specifications set out in Schedule 2 of this agreement.

Expiry shall mean expiry of the Concession by efflux of time at the end of 32 years from

the date of the receipt of the commencement certificate.

Expiry Date shall mean the date on which the Expiry of this Agreement occurs.

Financing Documents shall mean collectively the documents evidencing Lenders

commitment to finance the Project.

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Financial Year shall mean the period commencing from April 1 of any given year to

March 31 of the succeeding year.

Force Majeure or Force Majeure Event shall mean an act, event, condition or

occurrence as specified in Article 8 of this agreement.

GoI shall mean the Government of India.

GoK shallmean the Government of Karnataka.

Good Industry Practice shall mean the exercise of that degree of skill, diligence,

prudence and foresight in compliance with the undertakings and obligations under this

Agreement which would reasonably and ordinarily be expected of a skilled and an

experienced person engaged in the implementation, operation and maintenance or

supervision or monitoring thereof of any of them of a project similar to that of the Project.

Government Agency shall mean GoI, GoK, BBMP or any governmental department,

commission, board, body, bureau, agency, authority, instrumentality, court or other judicial

or administrative body, central, state, or local, having jurisdiction over the Concessionaire,

the Site / Project Facilities or any portion thereof, or the performance of all or any of the

services or obligations of the Concessionaire under or pursuant to this Agreement.

Handback Requirements shall have the meaning ascribed thereto in Article 10 of this

agreement.

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Implementation Period shall mean the period from the date of receipt of the

commencement certificate from the BBMP subject to clause 3.1 (a), 5.3 (B)(b)(v) and 5.4.

Lenders shall mean financial institutions, banks, funds and trustees for bondholders or

debenture holders, who have provided funds to the Concessionaire for financing any part of

the Project.

Material Adverse Effect shall mean a material adverse effect on (a) the ability of theConcessionaire to exercise any of its rights or perform / discharge any of its duties /

obligations under and in accordance with the provisions of this Agreement and/or (b) the

legality, validity, binding nature or enforceability of this Agreement.

Material Breach shall mean a breach by either Party of any of its obligations under this

Agreement which has or is likely to have a Material Adverse Effect on the Project and

which such Party shall have failed to cure.

Operations Period shall mean the period from the COD until the expiry of the

Concession or Termination, as the case may be.

O&M Requirements shall mean the requirements as to operation and maintenance of

the Project Facilities as set forth in Schedule 3 of this agreement.

Parties shallmean the parties to this Agreement and Party means either of them, as

the context may admit or require.

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Performance Security shall mean the guarantee for performance of its obligations to be

procured by the Concessionaire in accordance with Article 5 of this agreement.

Person shall mean (unless otherwise specified or required by the context), any individual,

company, corporation, partnership, joint venture, trust, unincorporated organisation,

government or Government Agency or any other legal entity.

Preliminary Notice shall mean the notice of intended Termination by the Party entitledto terminate this Agreement to the other Party setting out, inter alia, the underlying Event

of Default.

Project means financing, construction and maintenance of the Project Facilities during

the Concession Period in accordance with the provisions of this Agreement.

Project Agreements shall mean collectively this Agreement, contracts for engineering,

procurement, construction, operation, maintenance and any other material contract (other

than Financing Documents) entered into or may hereafter be entered into by the

Concessionaire in connection with the Project.

Project Engineer shall mean a reputed Person being a firm, company or a body

corporate appointed in accordance with Article 4 for supervision and monitoring of

compliance by the Concessionaire with the Construction Requirements, more particularly

to undertake, perform, carry out the duties, responsibilities, services and activities set forth

in Schedule 6 of this Agreement.

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Project Engineer Invoice shall have the meaning ascribed thereto in Article 4.2(b) of

this Agreement.

Project Facilities shallmean collectively the EWS Facility and Additional Facilities and

all other related facilities located thereon, created for the Project by the Concessionaire.

"Quarter" means a period of 3 calendar months.

Quarterly Management Payment shall mean the amounts payable to BBMP by the

Concessionaire in accordance with Article 7 of this Agreement.

Readiness Certificate shall mean the certificate issued by Project Engineer certifying,

inter alia, that the Concessionaire has constructed all the facilities within the EWS Facility

in accordance with the Construction Requirements.

Remuneration shall mean all fees, costs, charges and expenses payable to the Project

Engineer in accordance with the terms of his appointment.

Rupees orRs. refers to the lawful currency of the Republic of India.

SBI PLR means the prevailing medium term prime lending rate of the State Bank of

India.

Scheduled Project Completion Date means 24 months from the date of receipt of

commencement certificate by the concessionaire from BBMP with a grace period (if any)

provided by BBMP, in its discretion.

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Site shall mean the land admeasuring 15.64 acres including all minor roads/pathways

etc., located in Ejipura, Koramangala, Bangalore (morefully described in Schedule 1)

identified and handed over to the Concessionaire by BBMP for the purpose of financing,

constructing, developing and maintaining the Project Facilities.

Tax shall mean and includes all taxes, cesses, duties, levies that may be payable by the

Concessionaire under Applicable Law.

Termination shall mean early termination of the Concession Period, which shall

immediately result in termination of this Agreement, pursuant to Termination Notice or

otherwise in accordance with the provisions of this Agreement but shall not, unless the

context otherwise requires, include expiry of this Agreement or extendable period if any

due to efflux of time in the normal course.

Termination Date shall mean the date specified in the Termination Notice as the date

on which Termination occurs.

Termination Notice shall mean the notice of Termination by either Party to the other

Party, in accordance with the applicable provisions of this Agreement.

Tests shall mean the tests to be carried out in accordance with the Construction

Requirements or the O&M Requirements.

Third Party/ies shall mean and include individuals, partnership firms, companies,

association of persons, corporates, trusts, proprietary business entities to whom part or full

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of the Additional Facilities may be offered by the Concessionaire, from time to time, during

the subsistence of this Agreement.

1.2 Interpretation

In this Agreement, unless the context otherwise requires,(a) any reference to a statutory provision shall include such provision as is from time to

time modified or re-enacted or consolidated so far as such modification or re-

enactment or consolidation applies to, or is capable of being applied to any

transactions entered into hereunder;

(b) references to Applicable Law shall include the laws, acts, ordinances, rules,

regulations, notifications, guidelines or bylaws which have the force of law;

(c) the words importing singular shall include plural and vice versa, and words denoting

natural persons shall include partnerships, firms, companies, corporations, joint

ventures, trusts, associations, organisations or other entities (whether or not having

a separate legal entity);

(d) the headings 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;

(f) any reference to day, month or year shall mean a reference to a calendar day,

calendar month or calendar year respectively;

(g) 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;

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(h) any reference to any period of time shall mean a reference to that according to

Indian Standard Time (IST).

(i) the Schedules to this Agreement form an integral part of this Agreement as though

they were expressly set out in the body of this Agreement;

(j) any reference at any time to any agreement, deed, instrument, license or documentof any description shall be construed as reference to that agreement, deed,instrument, license or other document as amended, varied, supplemented, modifiedor suspended at the time of such reference;

(k) references to recitals, Articles, sub-articles, clauses, or Schedules in this Agreementshall, except where the context otherwise requires, be deemed to be references torecitals, Articles, sub-articles, clauses and Schedules of or to this Agreement;

(l) any agreement, consent, approval, authorisation, notice, communication,information or report required under or pursuant to this Agreement from or by anyParty or by Project Engineer shall be valid and effectual only if it is in writing underthe hands of duly authorised representative of such Party or Project Engineer in this

behalf and not otherwise;(m) references to Construction includes investigation, design, engineering,

procurement, delivery, transportation, installation, processing, fabrication, testing,commissioning and other activities incidental thereto

ARTICLE 2

CONCESSION2.1 Grant of Concession

a. Subject to and in accordance with the terms and covenants set forth in this

Agreement, the Concessioning Authority hereby grants and authorises theConcessionaire to

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(i) Investigate, study, engineer, procure, finance, construct the entire ProjectFacilities

(ii) Maintain the EWS Facility and BBMPs Share for the Concession Period(iii) Upon transfer of title of Concessionaires Share to the Concessionaire, have

the right to further concession / licence / rent / lease / sell theConcessionaires Share and to exercise and / or enjoy the rights, powers,

benefits, privileges, authorisations and entitlements as set for in thisAgreement (the Concession). However, the concessionaire shall have the

right to enter into agreement to sell, lease, license, franchise agreement etc.,before transfer of title of the concessionaire share to the concessionaire.(iv) And also in regard to BBMPs share in the additional facilities, the

concessionaire is entitled to enter into agreement to lease, license, franchiseagreement etc.

It is clarified that that the transfer of title and stamp duty would be as per the

Karnataka Stamp Act, 1957. Stamp duty would be payable by the

concessionaire. BBMP shall transfer the title to the Concessionaire or grant a

power of attorney, in favour of the concessionaire and not to their nominees.

Upon completion of EWS facility and BBMPs share in the additional

facilities, the BBMP shall register and convey the concessionaire share of the

additional facilities in accordance with law. Only on the execution and

registration of such an instrument of conveyance of the concessionaire share

of the additional facilities, there shall be vesting of the title in the

concessionaire of its share in the additional facilities.

BBMP shall assist the Concessionaire to get exemptions under the various

policies of the Government of Karnataka and Government of India.

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b. The rights, powers, benefits, privileges, authorizations and entitlements accruing tothe Concessionaire under this Agreement shall also include the right to offer part orfull of the Additional Facilities to Third Parties during the Concession Period, andConcessionaires Share thereafter, under appropriate arrangements and collect andretain all tariffs, revenues, incomes, gains, profits, fees and charges for the facilities /services / privileges / benefits without causing any Encumbrances of the ProjectFacilities excluding the share of the concessionaire. Provided that the tenure of sucharrangements for BBMPs Share shall not exceed the Expiry date or Termination

Date, as may be the case, and a provision of this limitation shall be a part of thearrangement between the Concessionaire and Third Parties.

It is clarified that, upon transfer of the Concessionaires Share to theConcessionaire, the Concessionaire shall have the right to further concession /license / rent / lease sell the Concessionaires Share, as the title would betransferred to the Concessionaire.

The consideration for the present agreement in so far as the concessionaire isconcerned on account of the concessionaire performing its obligations under thecontract, is the transfer of title to the concessionaire in respect of its share in theadditional facilities and also the right to hold, use, lease to third parties the

BBMPs share in the additional facilities during the period of the concessionagreement and to collect and retain all tariffs, revenues, incomes, gains, fees andcharges for the facilities/services/ privileges/benefits without causing anyencumbrances on the BBMPs share of the additional facilities.

2.2 Concession Period

The Concession hereby granted is for the period commencing from the receipt ofthe commencement certificate by the concessionaire and ending on the expiry date("the Concession Period") during which the Concessionaire is authorised to design,

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finance, construct and maintain the EWS Facility and Additional Facilities inaccordance with the provisions hereof.

Concession Payments: Payment of Quarterly Concession Payments shall beginon COD.

Provided that in the event of Termination, the Concession Period shall mean and belimited to the period commencing from the Appointed Date and ending with the

Termination Date.

2.3 Acceptance of Concession

In consideration of the rights, powers, benefits, privileges, entitlements andauthorisations conferred upon by the Concessioning Authority and other good andvaluable consideration expressed herein, the Concessionaire hereby accepts theConcession and agrees and undertakes to perform / discharge all of its obligations inaccordance with the provisions hereof.

ARTICLE 3

PROJECT SITE

3.1 Handover of Project Site(a) BBMP shall, within 30 days from the Appointed Date, handover to the

Concessionaire on as-is-where-is basis, peaceful physical possession of the Site forthe purpose of implementing the Project, however after removing all theunauthorized structures, permanent constructions etc., except for the 1640 EWSfamilies, for whom this project is being implemented. If there is any delay, on the

part of the BBMP, in handover of the site, the scheduled project completion date,

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shall also stand automatically postponed, corresponding to the delay in handover ofsite by the BBMP.

(b) Upon the Site being handed over pursuant to the preceding sub-article (a), theConcessionaire shall have the right to enter upon, occupy and use the same and tomake at its costs, charges and expenses such investigation, development andimprovements in the Site as may be necessary or appropriate to implement theProject in accordance with the provisions of this Agreement.

3.2 Rights, Title and Use of the Site

(a) The Concessionaire shall have the right to the use of the Site in accordance with theprovisions of this Agreement and for this purpose it may regulate the entry into anduse of the same by Third Parties.

(b) BBMPs Share shall be equal to 50% of the built up area based on equivalentcommercial bifurcation of the built up commercial area. In case of any change inapplicable law The Division of the additional facilities in the ratio of 50:50 betweenthe BBMP and Concessionaire shall be carried out in such a manner, so that share

of each of the party to this agreement is equal in all respects, viz., economicimportance, frontage, facade etc. Incase of any change in Applicable Law resultingin an increase of built up area possible to be constructed and the Concessionaireconstructs the same by mutual consent of the Parties, 50% of such built up areashall be transferred to BBMP, free of cost, as per the provisions of this Agreement.Any modification to the Project Facilities shall be carried out with prior written

permission of BBMP. The Quarterly Management Payment shall be increasedproportionately.

(c) BBMP shall transfer the title of the Concessionaires Share to the Concessionaireupon completion of construction and issue of Readiness Certificates for both theEWS Facility and Additional Facilities.

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(d) The Concessionaire shall have the right to further concession / licence / rent theBBMPs Share or any part thereof to such Person/s as it may deem fit and to collectfrom such Persons concession fees, license fees, maintenance charges, rents andother amounts during the Concession Period or extended period if any.

Provided further that the tenure of such further concession / licence shall not exceedthe Expiry Date or extended period if any, as may be the case, and a provision of

this limitation shall be a part of the arrangement between the Concessionaire andsuch Persons.

(e) The EWS Facility and BBMPs Share shall continue to be the property of BBMP.

(f) The Concessionaire shall not part with or create any Encumbrance on the whole orany part of the Site save and except as set forth and permitted under thisAgreement.

(g) The Concessionaire shall not without the prior written approval of BBMP use theSite / Project Facilities for any purpose other than for the purpose of the Projectand purposes incidental or ancillary thereto.

3.3 Peaceful Possession

The Concessioning Authority hereby warrants that:

(a) The Project Site

i. has been acquired through the due process of law

ii. belongs to and is vested in BBMP and that BBMP has full powers to hold,dispose of and deal with the same consistent, inter alia, with the provisions

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of this Agreement, and that the Concessionaire shall, in respect of theProject Site, have no liability regarding any compensation payment onaccount of rehabilitation/ resettlement or land acquisition of any Personsaffected thereby.

(b) The Concessionaire shall, subject to complying with the terms and conditions of this

Agreement, remain in peaceful possession and enjoyment of the Site / Project

Facilities during the Concession Period. In the event the Concessionaire is

obstructed by any Person claiming any right, title or interest in or over the Project

Facilities or any part thereof, or in the event of any enforcement action including

any attachment, distraint, appointment of receiver or liquidator being initiated by

any Person claiming to have any interest in/charge or the Site / Project Facilities or

any part thereof, BBMP shall, if called upon by the Concessionaire, defend such

claims and proceedings and also keep the Concessionaire indemnified against any

consequential loss or damages which the Concessionaire may suffer, on account of

any such right, title, interest or charge.

3.4 Applicable Permits

The Concessionaire shall obtain and maintain all Applicable Permits in such

sequence as is consistent with the requirements of the Project.

ARTICLE 4

PROJECT ENGINEER

4.1 Procedure for Appointment

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(a) BBMP shall within 30 days hereof forward to the Concessionaire a list consisting of

the names accompanied by their respective profile in brief of atleast three (3)

Persons who are eligible to act as Project Engineer for the Project.

(b) Within 15 days of receipt of the panel forwarded by BBMP, the Concessionaire

shall appoint one of the Persons named in such panel as the Project Engineer. The

Concessionaire shall, in consultation with BBMP, finalise the fees and other termsof appointment of the Project Engineer. The scope of work of the Project Engineer

shall include that set out in Schedule 6.

(c) The term of the Project Engineer shall extend upto one year after COD or

completion of construction of Additional Facilities, whichever is later.

4.2 Payments to Project Engineer

(a) All fees, costs, charges and expenses payable to the Project Engineer in accordance

with the terms of its appointment (collectively "the Remuneration") shall be borne

by the Concessionaire.

(b) The Project Engineer shall, simultaneous with submitting to the Concessionaire its

invoice for payment of the Remuneration (hereinafter referred to as Project

Engineer Invoice), submit a copy of the same to BBMP for its approval. Within 15

days of receipt of the same, BBMP shall respond in writing to the Concessionaire

and the Project Engineer communicating either,

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i. BBMPs consent for payment of the Remuneration (BBMP Consent), or

ii. BBMPs non-approval of the Project Engineer Invoice, clearly stating the

reason/s for such non-approval.

(c) The Concessionaire shall make payment to the Project Engineer within ten working

days of receipt of BBMP Consent. In case BBMP does not respond, in the manner

set out in 4.2 (b) above, then BBMP Consent shall be deemed to have been granted

and the Concessionaire shall pay the Project Engineer as specified hereinabove.

4.3 Replacement of the Project Engineer

(a) The Parties, by mutual consent, may replace the Project Engineer in any of the

following circumstances:

(i) if BBMP or the Concessionaire has reason to believe that the Project

Engineer has not discharged its duties in a fair, appropriate and diligent

manner;

(ii) if, in accordance with the terms of its appointment the Project Engineer

resigns or notifies its intention not to continue as the Project Engineer;

(iii) any other circumstance which in the opinion of the Parties warrants

replacement of the Project Engineer.

(c) Subject to the attendant circumstances and unless the Parties otherwise agree, the

procedure laid down in Article 4.1 shall, as far as possible, be adhered to for

replacement of the Project Engineer, and the replacement shall be so effected as to

maintain continuity in the supervision and monitoring of the Project Facilities.

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ARTICLE 5

CONCESSIONAIRES OBLIGATIONS

In addition to and not in derogation or substitution of any of its other obligationsunder this Agreement, the Concessionaire shall have the following obligations:

5.1 Performance Security

(a) The Concessionaire shall, for due and punctual performance of its obligationsrelating to the Project, deliver to BBMP, simultaneously with the execution of thisAgreement, a revolving bank guarantee for each year and to be valid throughout theConcession Period, from a nationalised Scheduled bank acceptable to BBMP in theform as set forth in Schedule 4, ("Performance Security). The amount of thePerformance Security shall be for a sum equal to the sum of the four QuarterlyManagement Payments for the succeeding year.

Performance Security:Provided that the amount of Performance Security handed over to BBMP bythe Concessionaire upon execution of the Concession Agreement shall be for a

sum of first four Quarterly Concession Payments and shall be valid till theCOD. The value of the performance Security subsequently would be as perClause 5.1 above.

(b) The Performance Security shall remain with BBMP, throughout the ConcessionPeriod and shall be returned to the Concessionaire after eight weeks of the ExpiryDate.

Provided that if the Agreement is terminated due to any event other than aConcessionaire Event of Default, the Performance Security if subsisting as of theTermination Date shall, subject to BBMPs right to receive amounts, if any, due

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from the Concessionaire under this Agreement, be duly discharged and released tothe Concessionaire.

5.2 Financing Arrangement

The Concessionaire shall at its cost, expenses and risk make such financingarrangement as would be necessary to implement the Project and to meet all of itsobligations under this Agreement, in a timely manner, based on this agreement and

in accordance with the provisions of this agreement.

5.3 Drawings

A. EWS Facility

The Concessionaire shall adopt the Drawings prepared in accordance with thepresent CDP 2015 and annexed to this agreementfor the construction of the EWSFlats in accordance with the Construction Requirements. The Concessionaire shall

be solely responsible for compliance of the Drawings with Applicable Laws and inprocuring Applicable Permits.

B. Additional Facilities

(a) Preparation of Drawings

The Concessionaire shall prepare its own Drawings including revised/modifieddrawings for construction of the Additional Facilities. The Concessionaire shall besolely responsible for compliance of all such Drawings with Applicable Laws and in

procuring Applicable Permits.

(b) Review of Drawings

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(i) The Concessionaire shall promptly submit a copy each of the Drawings tothe Project Engineer and BBMP.

(ii) Within 15 days of receipt of the Drawings, Project Engineer shall review thesame taking into account, interalia, comments of BBMP, if any, thereon, andconvey its comments / observations to the Concessionaire on the Drawings.The Concessionaire shall incorporate the comments / suggestions, in any, inthe Drawings.

(iii) If, within the period stipulated in the preceding sub-article (ii), the ProjectEngineer does not respond to the Drawings submitted to it by theConcessionaire, the Concessionaire shall be entitled to proceed with theProject on the basis of such Drawings submitted by it to the ProjectEngineer.

(iv) Notwithstanding any review or failure to review by or the comments /observations of the Project Engineer or BBMP, the Concessionaire shall besolely responsible for the adequacy of the Drawings and shall not be relievedor absolved in any manner whatsoever of any of its obligations as set forthin this Agreement.

(v) The Concessionaire shall be responsible for delays excluding the delay if any

caused by force majeure events and other acts of god in meeting the COD

caused by reason of any Drawings and shall not be entitled to seek any relief

in that regard from BBMP.

(vi) The Concessionaire shall in consultation with the Project Engineer finalise

an implementation schedule for the Project in accordance with the

Construction Requirements.

(vii) The Concessionaire shall furnish to BBMP three copies of "as built"

Drawings illustrating the layout of the Project Facilities and setback lines, if

any, of the buildings and structures forming part of Project Facilities

reflecting the Project as actually designed, engineered and constructed.

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5.4 Project Implementation: Construction Works

(i) Unless otherwise permitted by BBMP, no Construction Works shall begin

until the Project Engineer is in place and has assumed charge.(ii) The Concessionaire shall adhere to the Construction Requirements and

achieve COD before the Scheduled Project Completion Date

(iii) The Concessionaire may undertake Construction Works by itself or through

a Contractor possessing requisite technical, financial and managerial

expertise / capability; but in either case, the Concessionaire shall remain

solely responsible to meet the Construction Requirements.

(iv) The Concessionaire shall, before commencement of Construction Works;

(a) have requisite organisation and designate and appoint suitable

officers / representatives as it may deem appropriate to supervise the

Project, to deal with the Project Engineer / BBMP and to be

responsible for all necessary exchange of information required

pursuant to this Agreement;

(b) provide and maintain a reasonably furnished site office

accommodation for the Project Engineer, at the Project Site.

(v) For the purposes of determining whether the Construction Works are being

undertaken in accordance with the Construction Requirements, the

Concessionaire shall with due diligence carry out all necessary and

periodical Tests in accordance with the instructions and under the

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supervision of the Project Engineer and the Construction Requirements. The

Concessionaire shall maintain proper record of such Tests and the remedial

measures taken to cure the defects or deficiencies, if any, indicated by the

Test results.

(vi) If the Tests are successful and it is ascertained that the Project Facilities can

be safely and reliably opened for operation as the case may be, the Project

Engineer shall issue the Readiness Certificates, as the case may be.

(vii) The Project Engineer, may, by written notice of 60 days, require theConcessionaire to suspend forthwith the whole or any part of the

Construction Works, if in its reasonable opinion the same is being carried on

in a manner that is not in conformity with the Construction Requirements. If

however the project engineer, causes a wrongful notice, the BBMP, shall

reimburse the loss occasioned to the concessionaire and also pay penalty,

besides BBMP shall also extend the time for performance of the contract.

(viii) The EWS Facility and Additional Facilities shall be deemed to be complete

and ready for operations only when respective Readiness Certificates are

issued by the Project Engineer in accordance with the provisions hereof.

However, COD shall be deemed to have been achieved only after issue of

Readiness Certificate for EWS Facility.

Provided if the COD is delayed beyond 90 days of the Scheduled Project

Completion Date, BBMP shall, subject to the provisions of Article 5.9, be

entitled to terminate this Agreement and to appropriate the Performance

Security.

Provided that if on account of any litigation, either against the project or

against the BBMP, by reason of which the implementation of the project, is

delayed, the scheduled project completion date, shall stand automatically

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extended by such period, which is corresponding to the delay caused by the

litigation.

(ix) Upon issue of COD for Additional Facilities, Concessionaire and BBMP

shall measure and demarcate BBMPs Share. Upon written approval of the

same from BBMP, BBMP shall handover the BBMPs Share to the

Concessionaire for maintenance.

5.5 Operation and Maintenance

A. Common Areas within EWS Facility

(a) The Concessionaire shall maintain the EWS Facility in accordance with the O&M

Requirements as set out in Schedule 3.

(b) The Concessionaire shall, by itself or through a Contractor possessing requisite

technical, financial and managerial expertise / capability, maintain the EWS Facility,

but in either case, the Concessionaire shall remain solely responsible to meet the

O&M Requirements.

(c) The Concessionaire shall, during the Concession Period:

(i) have requisite organisation and designate and appoint suitable officers /

representatives as it may deem appropriate to supervise the Project

Facilities, to deal with the Project Engineer / BBMP and to be responsible

for all necessary exchange of information required pursuant to this

Agreement;

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(ii) Construct, provide and maintain a reasonably furnished site office

accommodation for the Project Engineer during its term;

(iii) For the purposes of determining that the EWS Facility is being maintained in

accordance with O&M Requirements, the Concessionaire shall with due

diligence carry out all necessary and periodical Tests in accordance with the

applicable laws. The Concessionaire shall maintain proper record of such

Tests and the remedial measures taken to cure the defects or deficiencies, if

any, indicated by the Test results.

(d) In the event the Concessionaire has failed to operate and maintain the EWS Facility

in accordance with O&M Requirements, and such failure has not been remedied

despite a 60 days notice to that effect issued by the Project Engineer / BBMP

(Notice to Remedy), the Concessionaire shall be deemed to be in material breach

of O&M Requirements.

(e) BBMP, acting reasonably and in accordance with the provisions of this Agreement,

determines that due to breach of its obligations by the Concessionaire,

(i) the maintenance of the EWS Facility or any part thereof has deteriorated to

a level which is below the acceptance level by the Project Engineer / BBMP;

and

(ii) there has been a serious or persistent breach in adhering to the O&M

Requirements and thereby the EWS Facility or any part thereof are not safe

for operations;

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Upon occurrence of a Material Breach of O&M Requirements, BBMP shall,

without prejudice to and notwithstanding any other consequences provided therefor

under this Agreement, be entitled to terminate this Agreement.

For avoidance of doubt, persistent breach shall mean:

a. any breach of O&M Requirements by the Concessionaire which has not been

remedied by the Concessionaire despite a Notice to Remedy in respect thereofissued by the BBMP;

b. recurrence of a breach by the Concessionaire, during the pendency of Notice to

Remedy by the BBMP requiring the Concessionaire to remedy a breach, and

c. repeated occurrence of a breach, notwithstanding that earlier breaches havebeen remedied pursuant to Notice to Remedy or otherwise.

B. Additional Facilities

(i) The Concessionaire shall manage the Additional Facilities inaccordance with Good Industry Practice and provisions of this Agreement.

(ii) Alterations and Modifications

i. The Concessionaire shall at his own costs and expenses, carry out necessaryalterations or modifications to the BBMPs Share, after handover to theConcessionaire for maintenance, in order to meet his obligation under thisAgreement, subject to his adherence to Applicable Law and obtainingApplicable Permits for such alteration or modification. Provided however thatsuch alteration or modification, shall not at any time cause any damage or

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have a dangerous effect on either the stability of the BBMPs Share orotherwise adversely affect the safety of the users of the BBMPs Share.

ii. The aforesaid alterations or modifications shall be undertaken only afternotifying the BBMP. For this purpose, the Concessionaire shall submit toBBMP a proposal (hereinafter referred to as Modification Proposal) clearlydescribing such alteration or modification and its impact on the structuralstability of the BBMPs Share, atleast sixty (60) days prior to carrying outsuch alteration or modification whereupon BBMP shall act as per the

procedure set out in Clause 6.1(b).

The Concessionaire shall be required to obtain Applicable Permits and adhereto Applicable Laws for alteration or modification of any part of the AdditionalFacilities.

5.6 Insurance

(a) Implementation PeriodThe Concessionaire shall at its cost and expense, purchase and maintain by due re-instatement or otherwise, during the Implementation Period, such insurance for theProject Facilities as are necessary including but not limited to the following:(i) builders all risk insurance;(ii) comprehensive third party liability insurance including injury or death to

personnel / representatives of Persons who may enter the Project Site;(iii) workmens compensation insurance;(iv) any other insurance that may be necessary to protect the Concessionaire, its

employees and its assets against loss, damage, destruction, businessinterruption or loss of profit including insurance against all Force MajeureEvents that are insurable.

(b) Operations Period

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The Concessionaire shall at its cost and expense, purchase and maintain by re-instatement or otherwise, for the Operations Period, insurance against:

(i) loss, damage or destruction of the Project Facilities, at replacement value;(ii) the Concessionaires general liability arising out of the Concession;(iii)liability to third parties;(iv) any other insurance that may be necessary to protect the Concessionaire, its

employees and its assets against loss, damage, destruction, businessinterruption or loss of profit including insurance against all Force MajeureEvents that are insurable.

It is clarified that the Concessionaire shall at its cost and expense, purchase andmaintain insurance for the Project Facilities. BBMP, however, would reimburse,upon submission of proof for the same, the cost incurred towards premiums

paid towards EWS Facility and BBMPs Share.

(c) Evidence of Insurance

The Concessionaire shall, from time to time, provide to BBMP copies of allinsurance policies (or appropriate endorsements, certifications or other satisfactoryevidence of insurance) obtained by the Concessionaire in accordance with thisAgreement.

(d) Validity of Insurance

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The Concessionaire is expected to purchase and maintain insurance only for theConcession Period.

The Concessionaire shall from time to time promptly pay insurance premium, keepthe insurance policies in force and valid throughout the Concession Period, andfurnish copies thereof to BBMP. The insurance policy shall not be cancelled orterminated unless 60 days' clear notice of cancellation is provided to BBMP inwriting.

If at any time the Concessionaire fails to obtain or maintain in full force and effectany and all of the insurance required under this Agreement, BBMP may at its option(but not being obliged to do so) obtain and maintain such insurance and all sumsincurred by BBMP thereof shall be reimbursed by the Concessionaire to BBMPtogether with interest thereon at 5% over SBI PLR from the date the respectivesums were incurred by BBMP, within 7 days from the receipt of claim in respectthereof made by BBMP.

(e) Application of Insurance Proceeds

Subject to the provisions of the Financing Documents and unless otherwise

provided herein, the proceeds of all insurance policies received shall be promptly

applied by the Concessionaire towards repair, renovation, restoration or re-

instatement of the Project Facilities or any part thereof which may have been

damaged or destroyed. The Concessionaire shall designate BBMP as the loss payee

for EWS Facility and BBMPs Share and may designate the Lenders as the loss

payees under the insurance policies or assign the insurance policies in their favour as

security for the financial assistance provided by them to the Project. The

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Concessionaire shall carry out such repair, renovation, restoration or re-instatement

to the extent possible in such manner that the Project Facilities after such repair,

renovation, restoration or re-instatement be as far as possible in the same condition

as it were prior to such damage or destruction, normal wear and tear excepted.

(f) Un-insurable Risks

If during the Concession Period, any risk which has been previously insuredbecomes un-insurable due to the fact that the insurers have ceased to insure such a

risk and therefore insurance cannot be maintained/re-instated in respect of such risk,

the Concessionaire shall not be deemed to be in breach of its obligations regarding

insurance under this Agreement.

5.7 Environmental Compliance

The Concessionaire shall, ensure that all aspects of the Project Facilities during the

Concession Period, as the case may be, and processes employed in the construction,

operation and maintenance thereof shall conform to the laws pertaining to

environment, health and safety aspects including, policies and guidelines related

thereto.

5.8 General Obligations

The Concessionaire shall at its own cost and expense:

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(a) investigate, study, design, develop, operate and manage the Project Facilitiesin accordance with the provisions hereof;

(b) obtain all Applicable Permits as required by or under the Applicable Lawand be in compliance thereof at all times during the Concession Period;

The Concessionaire shall obtain and maintain all applicable permits for the ProjectFacility. The Concessionaire, however, is expected to incur expenses in the EWSFacility to the extent of only common areas and common facilities.

The Concessionaire shall pay all deposits for obtaining relevant utility connections.BBMP would reimburse, upon submission of proof for the same, the cost incurredtowards such deposits for EWS Facility and BBMPs Share.

(c) comply with Applicable Law governing the operations of related to theProject at all times during the Concession Period as the case may be;

(d) procure and maintain in full force and effect, as necessary, appropriateproprietary rights, licenses, agreements and permissions for materials,methods, processes and systems used in or incorporated in the Project;

(e) appoint, supervise, monitor and control as necessary, the activities of

Contractors under the respective Project Agreements;(f) make efforts to maintain harmony and good industrial relations among thepersonnel employed in connection with the performance of its obligationsunder this Agreement and shall be solely responsible for compliance with alllabour laws and solely liable for all possible claims and employment relatedliabilities of its staff employed in relation with the Project and herebyindemnifies BBMP against any claims, damages, expenses or losses in thisregard and that in no case and shall for no purpose shall BBMP be treated asemployer in this regard;

(g) make its own arrangements for construction materials and observe and fulfilthe environmental and other requirements under the Applicable Law andApplicable Permits;

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(h) be responsible for all the health, security, environment and safety aspects ofthe Project at all times during the Concession Period.

(i) ensure that the Project Facilities remain free from all encroachments andtake all steps necessary to remove encroachments, if any;

(j) upon receipt of a request thereof, afford access to the Project Facilities tothe authorised representatives of BBMP for the purpose of ascertainingcompliance with the terms, covenants and conditions of this Agreement.

(k) pay all Taxes and outgoings, including utility charges relating to the

Additional Facilities and common areas of EWS Facility as applicable in thetenure of the Concession Period.

The Concessionaire is expected to maintain the EWS facility to the extent ofcommon facilities. The Concessionaire is not expected to maintain facilitiesinside the flats.

5.9 Specific Obligations

(a) Relocation of Existing Residents

The Concessionaire shall at its cost and expense prepare appropriate facility toenable BBMP to relocate the current residents during Implementation Period inaccordance with the Technical Proposal attached herein (schedule- )by theconcessionaire.

(b) Allocation of EWS Flats

The concessionaire shall build the EWS facility at its own cost in accordance withthe terms of this agreement and hand it over to the BBMP. The BBMP shall

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thereafter allot the same to the respective applicants and send the list of all theallotments.

(c) Others

The Concessionaire shall be at liberty to,(i) demolish all other structures within the Site subject to Construction

Requirements, Applicable Laws and Applicable Permits, and

(ii) use, sell or dispose in accordance with Applicable Laws and ApplicablePermits, the material obtained as a result of demolition under sub-clause(i)above.

(d) Property Tax

The Concessionaire is not required to pay Property Tax for the BBMPs Share andEWS Facility. The Concessionaire shall pay Property Tax for the ConcessionairesShare.

5.10 No Breach of Obligations

The Concessionaire shall not be considered to be in breach of its obligations underthis Agreement nor shall it incur or suffer any liability if and to the extent

performance of any of its obligations under this Agreement is affected by or onaccount of any of the following:(i) Force Majeure Event, subject to Article 8.3;(ii) BBMP Event of Default;(iii) Compliance with the instructions of the Project Engineer/BBMP or the

directions of any Government Agency other than instructions issued as aconsequence of a breach by the Concessionaire of any of its obligations asset forth in this Agreement;

(iv) Closure of the Project Facilities or part thereof with the approval of BBMP.

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ARTICLE 6

BBMPs OBLIGATIONS

In addition to and not in derogation or substitution of any of its other obligations under thisAgreement, BBMP shall have the following obligations:

6.1 Specific Obligations

(a) BBMP shall handover the peaceful possession of the Site on as is where isbasis condition, to the Concessionaire within 30 days of Appointed Date, howeverafter removing all unauthorized structures, permanent constructions, except for1640 EWS families. If there is delay in handover of the site, the scheduled projectcompletion date shall stand extended, corresponding to such delays, caused by theBBMP in handover of the site.

(b) BBMP shall grant in a timely manner all such approvals including revised/modifiedplans which will be submitted by the concessionaire from time to time, permissions

and authorizations which the Concessionaire may require or is obliged to seek fromBBMP under this Agreement, in connection with implementation of the Project andthe performance of its obligations. Provided where authorisation for availment ofutilities such as power, water, sewerage, telecommunications or any other incidentalservices / utilities is required, the same shall be provided by BBMP in the form asset out in Schedule 5, within fifteen days (15) days from receipt of request from theConcessionaire to make available such authorisation.

(c) BBMP shall simultaneously on execution of this Agreement provide to theConcessionaire the list of EWS Allottees, which would enable the concessionaire torelocate these allottees only.

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6.2 General ObligationsBBMP shall:

(a) wherever appropriate provide necessary assistance to the Concessionaire in securingApplicable Permits, regulatory approvals and any benefits and or concessions as perapplicable state or central policy from time to time;

(b) observe and comply with all its obligations set forth in this Agreement.

ARTICLE 7

QUARTERLY MANAGEMENT PAYMENT

7.1 Payment Obligation

a. Subject to the provisions of this Agreement and in consideration of the Concessionhereby granted, the Concessionaire agrees and undertakes to pay to BBMP, theagreed Quarterly Management Payment upon COD to be paid on Due Date as setout in Schedule 7.

b. The Quarterly Management Payment agreed between the parties is an amount of Rs1,72,64,000/- (Rupees One Crore Seventy Two Lakhs Sixty Four Thousand only)which includes Revenue from Residential and Commercial buildings

Rs.1,35,00,000/- (Rupees One Crore Thirty Five Lakhs only) and Revenue fromAdditional Car Parking facility Rs.37,64,000/- (Rupees Thirty Seven Lakhs SixtyFour Thousand only). The said enhanced amount was agreed to by both the parties.In view of the new CDP 2015 and taking in to consideration the additional FSI, ifthe concessionaire increases the built-up area of the additional facilities, then theQuarterly Management Payment shall be accordingly increased on a pro-rata basisand the concessionaire is liable to pay such increased Quarterly ManagementPayment as set out in Schedule 7.

c. Any delay in making Quarterly Management Payment shall, without prejudice to any otherconsequences under this Agreement, entail payment of interest on the amount in default atthe SBI PLR plus 2% per annum from the relevant Due Date till the date of payment/realisation.

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7.2 Mode of Payment

The Quarterly Management Payment shall be made by way of cheque/demand draft infavour of Commissioner, Bruhat Bangalore Mahanagara Palike, payable at Bangalore andshall be sent sufficiently in advance to the address specified in Article 13.7 so as to ensurerealisation/ encashment thereof on or before Due Date.

ARTICLE 8

FORCE MAJEURE

8.1 Force Majeure Event

Any of the events which is beyond the control of the Party claiming to be affected thereby(Affected Party) and which the Affected Party has been unable to overcome or preventdespite exercise of due care and diligence, and prevents the Affected Party from performingor discharging its obligations under this Agreement including the following, shall constituteForce Majeure Event:

(a) earthquake, flood, inundation and landslide

(b) storm, tempest, hurricane, cyclone, lightning, thunder or other extreme atmosphericdisturbances

(c) fire caused by reasons not attributable to the Concessionaire or any of theemployees, Contractors or agents appointed by the Concessionaire for purposes ofthe Project;

(d) acts of terrorism;(e) strikes, labour disruptions, riots or any other industrial disturbances not

arising on account of the acts or omissions of the Concessionaire or theContractor, war, hostilities (whether declared or not), invasion, act of foreignenemy, rebellion, weapon conflict or military actions, civil war, ionising radiation,contamination by radioactivity from nuclear fuel, any nuclear waste, radioactivetoxic explosion, volcanic eruptions, any failure or delay of a Contractor caused by

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the events mentioned in this subclause for which no offsetting compensation ispayable to the Concessionaire by or on behalf of the Contractor.

(f) action of a Government Agency having Material Adverse Effect including

but not limited to

i. acts of expropriation, compulsory acquisition or takeover by

any Government Agency of the Project Facility or any part thereof

or of the Concessionaires or the Contractors rights in relation to

the Project Facility.ii. any judgement or order of a court of competent jurisdiction

or statutory authority in India made against the Concessionaire or

the Contractor in any proceedings which is non-collusive and duly

prosecuted by the Concessionaire, and

iii. any unlawful, unauthorised or without jurisdiction refusal to

issue or to renew or the revocation of any Applicable Permits, in

each case, for reasons other than Concessionaires or the

Contractors breach or failure in complying with the Project

Requirements, Applicable Laws, Applicable Permits, any judgement

or order of a Governmental Agency or of any contract by which theConcessionaire or the Contractor as the case may be is bound.

(g) early determination of this Agreement by BBMP for reasons of national

emergency, national security or the national interest.

8.2 Obligations of the Parties

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(a) As soon as practicable and in any case within 7 days of the date of occurrence of a

Force Majeure Event or the date of knowledge thereof, the Affected Party shall

notify the Project Engineer and the other Party of the same setting out, inter alia,

the following in reasonable detail:

i. the nature and extent of the Force Majeure Event;

ii. the estimated Force Majeure Period;

iii. the nature of and the extent to which, performance of any of its obligations

under this Agreement is affected by the Force Majeure Event;iv. the measures which the Affected Party has taken or proposes to take to

alleviate/mitigate the impact of the Force Majeure Event and to resume

performance of such of its obligations affected thereby; and

v. any other relevant information concerning the Force Majeure Event, and /or

the rights and obligations of the Parties under this Agreement.

(b) As soon as practicable and in any case within 5 days of notification by the Affected

Party in accordance with the preceding sub-article 8.2 (a), the Parties along with the

Project Engineer, shall meet and hold discussions in good faith and where necessary

conduct physical inspection/survey of the Project Facilities in order to:

i. assess the impact of the underlying Force Majeure Event,

ii. to determine the likely duration of Force Majeure Period and,

iii. to formulate damage mitigation measures and steps to be undertaken by the

Parties for resumption of obligations, the performance of which shall have

been affected by the underlying Force Majeure Event.

(c) The Affected Party shall during the Force Majeure Period provide to the other Party

with regular (not less than fortnightly) reports concerning the matters set out in the

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preceding sub-article (b) as also any information, details or document, which the

Parties may reasonably require.

8.3 Performance of Obligations

If the Affected Party is rendered wholly or partially unable to perform any of its

obligations under this Agreement because of a Force Majeure Event, it shall be

excused from performance of such obligations to the extent it is unable to performthe same on account of such Force Majeure Event provided that:

(a) due notice of the Force Majeure Event has been given as required by the preceding

Sub-article 8.2;

(b) the excuse from performance shall be of no greater scope and of no longer duration

than is necessitated by the Force Majeure Event;

(c) the Affected Party has taken all reasonable efforts to avoid, prevent, mitigate and

limit damage, if any, caused or is likely to be caused to the Project Facilities as a

result of the Force Majeure Event and to restore the Project Facilities, in

accordance with the Good Industry Practice and its relative obligations under this

Agreement;

(d) when the Affected Party is able to resume performance of its obligations under this

Agreement, it shall give to the other Party and the Project Engineer / BBMP, a

written notice to that effect and shall promptly resume performance of its

obligations hereunder, the non issue of such notice being no excuse for any delay

for resuming such performance;

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(e) the Affected Party shall continue to perform such of its obligations which are not

affected by the Force Majeure Event and which are capable of being performed in

accordance with this Agreement;

(f) any insurance proceeds received shall, subject to the provisions of Financing

Documents, be entirely applied to repair, replace or re-instate the assets damaged

on account of the Force Majeure Event, or in accordance with Good Industry

Practice.

8.4 Termination due to Force Majeure Event

(a) Termination

(i) If a Force Majeure Event, is an event described under article 8.1,

continues or is in the reasonable judgement of the Parties likely to continue

beyond a period of 120 days, the Parties may mutually decide to terminate

this Agreement or continue this Agreement on mutually agreed revised

terms.

(ii) If the Force Majeure Event is an event described in 8.1 (f) or 8.1 (g) and

the Concessionaire having exhausted the remedies available to him under the

Applicable Laws, has been unable to secure the remedy, the Concessionaire

shall be entitled to terminate this Agreement.

Provided that the Parties may by mutual agreement, decide to continue this

Agreement on revised terms or to terminate this Agreement, if the event

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described in 8.1 (f) or 8.1 (g) subsists or is likely to subsist for a period

exceeding 180 days.

(b) Termination Notice

If either Party, having become entitled to do so, decides to terminate this

Agreement pursuant to the preceding sub-article (a) (i) or (a) (ii), it shall issue

Termination Notice setting out ;

i. in sufficient detail the underlying Force Majeure Event;

ii. the Termination Date which shall be a date occurring not earlier than 60 days

from the date of Termination Notice;

iii. the estimated Termination Payment including the details of computation thereof

and;

iv. any other relevant information.

(c) Obligation of Parties

Following issue of Termination Notice by either Party, the Parties shall promptly

take all such steps as may be necessary or required to ensure that;

i. the Termination Payment, if any, payable by BBMP in accordance with the

following sub-article (d) is paid to the Concessionaire on the Termination Date

and

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ii. the Project Facilities, excepting for the share of the concessionaire are handed

back to BBMP by the Concessionaire on the Termination Date, under the

provisions of this agreement.

(d) Termination Payment

Upon Termination of this Agreement due to a Force Majeure Event, Termination

Payment shall be made to the Concessionaire by BBMP in accordance with thefollowing:

i. If Termination is due to a Force Majeure Event, described under article 8.1, no

Termination Payment shall be made by BBMP to the Concessionaire but, the

Concessionaire shall be entitled to receive and appropriate the proceeds of any

amounts under insurance policies.

ii. If Termination is due to the occurrence of any event described under Sub-articles

8.1(f) or 8.1(g), BBMP shall pay to the Concessionaire Termination Payment

equal to 100% of the Book Value

Provided BBMP shall be entitled to deduct from the Termination Payment any

amount due and recoverable by BBMP from the Concessionaire as on the

Termination Date.

8.5 Liability for other losses, damages etc.

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Save and except as expressly provided in this Article, neither Party hereto 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.

ARTICLE 9

EVENTS OF DEFAULT AND TERMINATION

9.1 Events of Default

Event of Default means either Concessionaire Event of Default or BBMP Event of

Default or both as the context may admit or require.

a. Concessionaire Event of Default

Any of the following events shall constitute an event of default by the

Concessionaire ("Concessionaire Event of Default") unless such event has occurred

as a result of a Force Majeure Event or BBMP Event of Default or any

governmental action for reasons other than any breach, default or lapse on the part

of the Concessionaire:

(i) The Concessionaire has failed to make any Concession Payment on Due Date

therefor and more than 30 days have elapsed since such default;

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(ii) The Concessionaire is in Material Breach of any of its other obligations under this

Agreement on account of its own acts of ommission or commission or on account

of any act of ommission or commision of the Person to whom the Concessionaire

has further concessioned / licensed the Additional Facilities and the same has not

been remedied for more than 60 days;

(iii) Any representation made or warranty given by the Concessionaire under this

Agreement is found to be false or misleading;

(iv) A resolution for voluntary windi

Concessionaire Agreeement between Bruhat Bengaluru Mahanagara Palike (BBMP) and Maverick Holdings &...

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