Lda Dca Final

7/31/2019 Lda Dca Final

1/226

Lucknow Development Authority Draft Concession Agreement (DCA)_____________________________________________________________________________

Page 1 of226

L

Lucknow Development Authority

Development of International Level Cricket Stadium cum

Sports Complex in Lucknow, Uttar Pradesh on Public Private

Partnership (PPP) Basis.

DRAFT CONCESSION AGREEMENT (DCA)

Vice Chairman,

Lucknow Development Authority,

Government of Uttar PradeshPradikaran Bhavan, Gomti Nagar,

Lucknow 226010

Telefax: 0522-2302577,

Email : [email protected]

07.10. 2011


2/226


Page 2 of226

Particulars Page No.

Recitals 4

Article 1 Definitions & Interpretation 7

Article 2 Scope of the Project 11

Article 3 Grant of Concession 12Article 4 Conditions Precedent 15

Article 5 Obligations of the Concessionaire 18

Article 6 Obligations of the Authority 25

Article 7 Representation and Warranties 26

Article 8 Disclaimer 30

Article 9 Performance Security 31

Article 10 Right of Way 33

Article 11 Utilities of the Site and Trees 37

Article 12 Construction of the Sports Infrastructure Project 39

Article 13 Monitoring of Construction 42

Article 14 Completion Certificate 44

Article 15 Entry into Commercial Service 47Article 16 Change of Scope 48Article 17 Operation and Maintenance 50

Article 18 Safety Requirements 56

Article 19 Monitoring of Operation and Maintenance 57

Article 20 Concessionaires Management Responsibilities 59

Article 21 Civil Amenities 63

Article 22 Deleted 64

Article 23 Independent Engineer 65

Article 24 Financial Close 67

Article 25 Upfront Premium 68

Article 26 Fee 69Article 27 Project Account 70

Article 28 Escrow Account 72

Article 29 Insurance 75

Article 30 Accounts & Audit 77

Article 31 Force Majeure 78

Article 32 Suspension of Concessionaires Rights 84

Article 33 Termination 86

Article 34 Divestments of Rights and Interest 91

Article 35 Defects liability after Termination 94Article 36 Assignment and charges 96

Article 37 Liability and indemnity 98

Article 38 Rights and Title Over the Site 102

Article 39 Dispute Resolution 103

Article 40 Redressal of Public Grievances 105

Article 41 Miscellaneous 106

Article 42 Definitions 110


3/226


4/226


Page 4 of226

DRAFT CONCESSION AGREEMENT

THIS AGREEMENT is entered into on this the [*** day of ***, 2011]

BETWEEN

1 Lucknow Development Authority, acting through The Vice Chairman, LucknowDevelopment Authority, established under the Uttar Pradesh Urban Planning andDevelopment Act, 1974, having its main office at Pradikaran Bhavan, GomtiNagar, Lucknow 226010, (hereinafter referred to as Authority whichexpression shall, unless it be repugnant to the context or meaning thereof, includeits successors) of the FIRST PART;

AND

2 [**** LIMITED]1, a company incorporated under the provisions of the

Companies Act, 1956 and having its registered office at ****, (hereinafter

referred to as the Concessionaire which expression shall, unless repugnant tothe context or meaning thereof, include its successors and substitutes) of the OtherPart.

The Authority and the Concessionaire are hereinafter collectively referred to as Partiesand individually as Party.

WHEREAS:

(A) The Authority is desirous of promoting the development of sports infrastructure inthe State of Uttar Pradesh, with a view to enable the growth of sports in the State.In order to enable more efficient use of public resources, the Authority has takenthe decision to support the development of sports infrastructure in the Statethrough public-private-partnership (PPP) route. The Authority has decided tostructure the project for development of sports infrastructure by associating themwith related real estate development, in order to ensure their viability on astandalone basis and to attract private investment in development of sportsinfrastructure.

(B) By Transfer Deed dated [____]of the [ ]Department, Government of UttarPradesh, land aggregating [____]was transferred to the Authority fordevelopment of Sports Infrastructure in the area and thus Authority is the owner

of the said land details of which is mentioned in Schedule I of this ConcessionAgreement.

(C) In furtherance of its objectives, the Authority has resolved to develop SportsInfrastructure Project and Real Estate Project on a design, build, finance, operate


5/226


Page 5 of226

and transfer (DBFOT) basis in accordance with the terms and conditions setforth in this Agreement.

(D) Sports Infrastructure Project includes construction of International CricketStadium which shall also be capable of being used holding the internationalfootball events, Sports Complex including Hockey Stadium, and Indoor Stadium

with playing facilities for basketball, volleyball, squash, badminton, table tennis,gymnasium, outdoor sports fields for lawn tennis and aquatics. Detailed scope ofwork has been defined in Schedule A,B&C in reference with thespecifications laid down in Schedule D.

(E) The Authority had accordingly invited proposals by its [Tender Notice No. 3265(the Tender Notice)/Request for Qualification] dated [___] July 2010 and[] August, 2011 for short listing of bidders for construction of SportsInfrastructure Project and Real Estate Project on Design, Build, Finance, Operateand Transfer (DBFOT) basis and had shortlisted certain bidders including, interalia, the [name of the selected bidder].

(F) The Authority had prescribed the technical and commercial terms and conditions,and invited bids from the shortlisted bidders for undertaking the Project.

(G) After evaluation of the bids received, the Authority had accepted the bid of the[name of the selected bidder] and issued its letter of intent No. *** dated ***(hereinafter called the LOI) to the [name of the selected bidder] requiring, interalia, the execution of this Concession Agreement within 30 (thirty) days of thedate of issue thereof.

(H) [name of the selected bidder] has since promoted and incorporated theConcessionaire as a limited liability company under the Companies Act 1956, andhas requested the Authority to accept the Concessionaire as the entity which shallundertake and perform the obligations and exercise the rights of the [name of theselected bidder] under the LOI, including the obligation to enter into thisConcession Agreement pursuant to the LOI for executing the Project.

(I) By its letter dated ***, the Concessionaire has also joined in the said request ofthe [name of the selected bidder] to the Authority to accept it as the entity whichshall undertake and perform the obligations and exercise the rights of the [nameof the selected bidder] including the obligation to enter into this ConcessionAgreement pursuant to the LOI. The Concessionaire has further represented to theeffect that it has been promoted by the [name of the selected bidder] for thepurposes hereof

(J) The Authority has agreed to the said request of the [name of the selected bidder]and the Concessionaire, and has accordingly agreed to enter into this ConcessionAgreement with the Concessionaire for execution of the Project for constructionof Sports Infrastructure Project and development of Real Estate Project onDesign, Build, Finance, Operate and Transfer (DBFOT) basis, subject to and onthe terms and conditions set forth hereinafter.


6/226


Page 6 of226

(K) The approximate area of the site is [137 acres] of which 80 acres has beenallocated for Sports Infrastructure Project and 57 acres has been allocated for RealEstate Project.

(L) The Concessionaire has submitted the Performance Security to the Authorityunder Article 9.1

(M) The Concessionaire has paid to the Authority the Upfront Bid Value of Rs....................... (Rupees ........................... only) payable by it to the Authority underArticle 25.2.

NOW THEREFORE in consideration of the foregoing and the respective covenants andagreements set forth in this Concession Agreement, the sufficiency and adequacy ofwhich is hereby acknowledged and intending to be legally bound hereby, the Partiesagree as follows:


7/226


Page 7 of226

ARTICLE 1

DEFINITIONS AND INTERPRETATION

1.1 Definitions

The words and expressions beginning with capital letters and defined in thisAgreement (including those in Article 42) shall, unless the context otherwiserequires, have the meaning ascribed thereto herein, and the words and expressionsdefined in the Schedules and used therein shall have the meaning ascribed theretoin 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 includeamendment or re-enactment or consolidation of such legislation or any

provision thereof so far as such amendment or re-enactment orconsolidation applies or is capable of applying to any transaction enteredinto hereunder;

(b) references to laws of India or Indian law or regulation having the force oflaw shall include the laws, acts, ordinances, rules, regulations, bye laws ornotifications which have the force of law in the territory of India and asfrom time to time may be amended, modified, supplemented, extended orre-enacted;

(c) references to a person and words denoting a natural person shall beconstrued as a reference to any individual, firm, company, corporation,society, trust, government, state or agency of a state or any association orpartnership (whether or not having separate legal personality) of two ormore of the above and shall include successors and assigns;

(d) the table of contents, headings or sub-headings in this Agreement are forconvenience of reference only and shall not be used in, and shall notaffect, the construction or interpretation of this Agreement;

(e) the words include and including are to be construed without limitationand shall be deemed to be followed by without limitation or but notlimited to whether or not they are followed by such phrases;

(f) references to construction or building include, unless the contextotherwise requires, investigation, design, developing, 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) any reference to any period of time shall mean a reference to thataccording to Indian Standard Time;


8/226


Page 8 of226

(h) any reference to day shall mean a reference to a calendar day;

(i) references to a business day shall be construed as a reference to a day(other than a Sunday) on which banks in Lucknow are generally open forbusiness;

(j) any reference to month shall mean a reference to a calendar month as perthe Gregorian calendar;

(k) references to any date, period or Project Milestone shall mean and includesuch date, period or Project Milestone as may be extended pursuant to thisAgreement;

(l) any reference to any period commencing from a specified day or dateand till or until a specified day or date shall include both such days ordates; provided that if the last day of any period computed under thisAgreement is not a business day, then the period shall run until the end of

the next business day;

(m) the words importing singular shall include plural and vice versa;

(n) references to any gender shall include the other and the neutral gender;

(o) lakh means a hundred thousand (100,000) and crore means ten million(10,000,000);

(p) indebtedness shall be construed so as to include any obligation (whetherincurred as principal or surety) for the payment or repayment of money,whether present or future, actual or contingent;

(q) references to the winding-up, dissolution, insolvency, orreorganisation of a company or corporation shall be construed so as toinclude any equivalent or analogous proceedings under the law of the

jurisdiction in which such company or corporation is incorporated or anyjurisdiction in which such company or corporation carries on businessincluding the seeking of liquidation, winding-up, reorganisation,dissolution, arrangement, protection or relief of debtors;

(r) any reference, at any time, to any agreement, deed, instrument, licence ordocument 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 suchreference; provided that this Sub-clause shall not operate so as to increaseliabilities or obligations of the Authority hereunder or pursuant hereto inany manner whatsoever;

(s) any agreement, consent, approval, authorisation, notice, communication,information or report required under or pursuant to this Agreement fromor by any Party shall be valid and effective only if it is in writing under the


9/226


10/226


11/226


Page 11 of226

ARTICLE 2

SCOPE OF THE PROJECT

2.1 Scope of the Project

2.1.1 The scope of the Project (the Scope of the Project) shall mean and include,during the Concession Period:

(a) For Sports Infrastructure Project (Mandatory Project):

(i) Designing, engineering, construction of the Project, on the Site asspecified in Schedule A, which shall include the construction &development of Sports Infrastructure Project and other supportfacilities in the manner specified in Schedule B together with theProject Facilities as specified in Schedule C and in conformity withthe Specifications and Standards set forth in Schedule D;

(ii) Operation and Maintenance (O & M) of the Sports InfrastructureProject in accordance with the provisions of this Agreement, as perGood Industry Practice and in a professional manner ensuringmaximum availability of Sports Infrastructure Project during theOperations Period.

(b) For Real Estate Project: Development of the Real Estate Project on theSite as specified in Schedule A in accordance with the manner specified inSchedule B.

(c) performance and fulfilment of all other obligations of the Concessionairein accordance with the provisions of this Agreement and matters incidentalthereto or necessary for the performance of any or all of the obligations ofthe Concessionaire under this Agreement.


12/226


Page 12 of226

ARTICLE 3

GRANT OF CONCESSION

3.1 The Concession

3.1.1 Subject to and in accordance with the provisions of this Agreement, theApplicable Laws and the Applicable Permits, the Authority hereby grants to theConcessionaire the concession set forth herein including the exclusive right,licence and authority during the subsistence of this Agreement to construct,develop, operate and maintain the Project (the Concession). The Concessionhereby granted shall be for a period of:

(a) 35 (thirty five) years commencing from the Appointed Date in the form ofRight of Way over the Site dedicated for Sports Infrastructure Project(minimum 80 acres out of total land area of 137 acres) (hereinafterreferred to as the Concession Period

(b) In consideration of construction, operation and maintenance of the SportsInfrastructure Project for the Concession Period and payment of UpfrontBid Value, the Authority shall provide balance land of about 57 acres on99 (ninety nine) years for Real Estate Project commencing from theAppointed Date (hereinafter referred to as the Lease Period).Concession for Real Estate Project shall be in the form of lease for whicha separate land lease agreement (Land Lease Agreement) shall beexecuted between the Authority and the Concessionaire, substantially asper the format provided in Schedule T.

The Concessionaire hereby accepts the Concession and agrees to implement theProject subject to and in accordance with the terms and conditions set forthherein:

3.1.2 Subject to and in accordance with the provisions of this Agreement andApplicable Laws, the Concession hereby granted shall, without prejudice to theprovisions of Article 3.1.1, entitle the Concessionaire to undertake Real EstateProject in the part of the Site other than that required for the Sports InfrastructureProject, as specified in Schedule A, subject to the conditions stipulated therein,and to exploit such development for commercial purposes and sub-license or sub-lease as the case may be, any or all parts thereof by means of Project Agreements.

3.1.3 The Authority shall facilitate and assist the Concessionaire in obtaining all

approvals and Applicable Permits that may be required by the Concessionairefrom any Government Instrumentality for the implementation, development,construction, operation and maintenance of the Project. The Authority willprovide all reasonable support and assistance to the Concessionaire in procuringApplicable Permits as may be required from time to time, however the principalobligation for obtaining the Applicable Permits shall be that of theConcessionaire.


13/226


Page 13 of226

3.1.4 The Concessionaire cannot transfer or vest title or give possession (onassignment, license or any other basis) in relation to the Real Estate Project or anypart thereof prior to the COD of the Sports Infrastructure Project. Achieving CODfor the Sports Infrastructure Project Facilities in accordance with this Agreementis a pre-condition to the right of the Concessionaire to create any sublease or otherrights in the Real Estate Project or provide possession of Real Estate Project to

third parties through any contractual arrangements. Provided however, theConcessionaire can accept bookings and obtain advance payments in relation toReal Estate Project, after bringing this limitation to the notice of such thirdparties.

3.1.5 Subject to and in accordance with the provisions of this Agreement, theConcession hereby granted shall oblige or entitle (as the case may be) theConcessionaire to:

(a) Right of Way, access, licence and lease, as the case may be to the Site forthe purpose of and to the extent conferred by the provisions of thisAgreement;

(b) investigate, study, design, engineer, procure, finance the Project ;

(c) develop and construct the Project ;

(d) manage, operate and maintain the Project and regulate the use thereof bythird parties;

(e) demand, collect and appropriate Fee from Users liable for payment of Feefor using the Sports Infrastructure Project or any part thereof and refuseentry of any User if the Fee due is not paid;

(f) ensure optimal management, operation, development and maintenance ofthe Project throughout the Concession Period, either by performing theoperation and maintenance itself, or by engaging an O&M Contractor.;

(g) license or sublicense, part or whole of the Real Estate Project andappropriate the proceeds of such license or sublicense in accordance withthe terms of this Agreement. All revenue and expenditure for Real EstateProject shall accrue to the Concessionaire.

(h) bear and pay all costs, expenses and charges in connection with orincidental to the performance of the obligations of the Concessionaire

under this Agreement; and

(i) not assign, transfer or create any lien, charge or Encumbrance on thisAgreement or the Concession hereby granted or on the whole or any partof the Project nor transfer, license or part possession thereof, save andexcept as expressly permitted by this Agreement or the SubstitutionAgreement. Provided further that the Concessionaire can create any lien,charge, mortgage or Encumbrance on the part or whole of the Real EstateProject and on the Site allocated for Real Estate Project. However, in the


14/226


Page 14 of226

event of any default by the Concessionaire upto the COD, all the rights ofall the lenders with respect to the Site for Real Estate Project shall besubject to Authoritys unfettered rights under Articles 31, 33 and 34 andthe Authority may at its absolute discretion terminate this Agreement,Land Lease Agreement and all other agreements and take back the entireSite from the Concessionaire free from all Encumbrances without payment

of any amount/compensation to the Concessionaire and/or to the Lenders.

3.2 Scope of Concession

3.2.1 For Sports Infrastructure Project and Facilities

The Authority hereby grants to the Concessionaire, the exclusive right andauthority during the Concession Period to investigate, study, design, engineer,procure, finance, construct, operate and maintain the Sports Infrastructure Projectas specified in Schedule B at the Site and the Concessionaire hereby agrees toinvestigate, study, procure, finance, construct, operate and maintain the SportsInfrastructure Project and to exercise and/or to enjoy the rights, power, benefits,

privileges, authorization and entitlement including right to collect, retain andappropriate all Fee for the operating the Sports Infrastructure Project and for allother services provided and maintenance charges for the Sports InfrastructureProject Facilities at all time during the Concession Period and to keep the Site ingood repair and operating condition and to perform services and activitiesconstituting Sports Infrastructure Project.

3.2.2 For Real Estate Project and Facilities

The Authority hereby grants to the Concessionaire, the exclusive right andauthority during the Lease Period to develop the Real Estate Project and toexercise and/or to enjoy the rights, benefits, privileges, authorization andentitlement, including right to collect, retain and appropriate all Fee to performservices and activities constituting Real Estate Project as specified in Schedule Bat the Site and the Concessionaire hereby agrees to develop the Real EstateProject and subject to provision of Article 5.8 hereof to exercise and/or to enjoythe rights, power, benefits, privileges, authorization and entitlement includingright to collect, retain and appropriate all Fee for the license or sublicense of RealEstate Project and for all other services provided and maintenance charges for theReal Estate Facilities at all time during the Lease Period and to keep the Site ingood repair and operating condition and to perform services and activitiesconstituting Real Estate Project.


15/226


Page 15 of226

ARTICLE 4

CONDITIONS PRECEDENT

4.1 Conditions Precedent

4.1.1 Save and except as expressly provided in Articles 4, 9, 10, 24, 31, 39 and 41, therespective rights and obligations of the Parties under this Agreement shall besubject to the satisfaction in full of the conditions precedent specified in thisArticle 4.1 (the Conditions Precedent).

4.1.2 The Concessionaire may, upon providing the Performance Security to theAuthority in accordance with Article 9, at any time after the Effective Date, bynotice require the Authority to satisfy any or all of the Conditions Precedent setforth in this Article 4.1.2 within a period of 90 (ninety) days of the notice, or suchlonger period not exceeding 150 (one hundred and fifty) days as may be specifiedtherein, and the Conditions Precedent required to be satisfied by the Authority

prior to the Appointed Date shall be deemed to have been fulfilled when theAuthority shall have:

(a) provided to the Concessionaire the Right of Way of the site for the SportsInfrastructure Project in accordance with the provisions of Article 10.3and executed the Land Lease Agreement as specified in Schedule T, inrespect of the Real Estate Project; and;

(b) procured for the Project the appropriate land conversion approval from thecompetent authority; and

4.1.3 The Conditions Precedent required to be satisfied by the Concessionaire within aperiod of 180 (one hundred and eighty) days from the Effective Date shall bedeemed to have been fulfilled when the Concessionaire shall have:

(a) Deleted

(b) executed and procured execution of the Project Account Agreement andopened the Project Account;

(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 conditionsrequired to be fulfilled by the date specified therein shall have beensatisfied in full and such Applicable Permits are in full force and effect;

(e) executed the Financing Agreements and delivered to the Authority 2 (two)true copies thereof, duly attested by a Director of the Concessionaire;

(f) delivered to the Authority 2 (two) true copies of the Financial Package andthe Financial Model, duly attested by a Director of the Concessionaire,


16/226


Page 16 of226

along with 2 (two) soft copies of the Financial Model in MS Excel versionor any substitute thereof, which is acceptable to the Senior Lenders;

(g) prepare, submit and get approved by the Authority, a detailed projectreport (DPR) in accordance with Article 12.3 of this Agreement. TheDPR shall inter-alia provide:

(i) Details of Sport Infrastructure Project and Real Estate Projectalong with the Project Facilities proposed to be constructed

(ii) Detailed break-up of the project cost separately for each stadium /Sports Infrastructure Project Facilities.

(iii) Lay out plan of the Site

(iv) PERT / Gantt chart for development of the Project.

(v) Demarcation of the Authority Designated Area. AuthorityDesignated Area should preferably be a separate block of buildingfor each category / type of the end use (i.e. residential, commercial,institutional, shopping, etc). In case a separate block of buildingfor Authority Designated Area under each category / type of theend use (i.e. residential, commercial, institutional, shopping, etc) isnot considered feasible, then 20% of saleable built up space in eachfloor of building(s) of such category / type of the end use (i.e.residential, commercial, institutional, shopping, etc) shall bedesignated as Authority Designated Area. The AuthorityDesignated Area should be integrated with the infrastructure andfacilities of the Real Estate Project.

In addition to the above, the Concessionaire may be required to provideany further information as may be reasonably required by the Authority.

(h) delivered to the Authority a confirmation, in original, of the correctness ofits representations and warranties set forth in Sub clauses (k), (l) and (m)of Article 7.1 of this Agreement; and

(i) delivered to the Authority a legal opinion from the legal counsel of theConcessionaire with respect to the authority of the Concessionaire to enterinto this Agreement and the enforceability of the provisions thereof:

4.1.4 Each Party shall make all reasonable endeavours to satisfy the ConditionsPrecedent within the time stipulated and shall provide the other Party with suchreasonable cooperation as may be required to assist that Party in satisfying theConditions 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 progressmade in satisfying the Conditions Precedent. Each Party shall promptly inform the


17/226


Page 17 of226

other Party when any Condition Precedent for which it is responsible has beensatisfied.

4.2 Approval of DPR

4.2.1 The Concessionaire shall submit the DPR to the Authority within 60 (sixty) days

of the Effective Date. On receipt of the DPR, the Authority shall review the DPRsubmitted by the Concessionaire and provide its comments/observations andsuggestions on the same within 15 (fifteen) days from the date of the receipt ofsuch DPR from the Authority. It is clarified that the layout / building plan for RealEstate Project shall be approved by the Authority only after its approval ofbuilding plans for the Sports Infrastructure Project.

4.2.2 In the event that the Authority has observed that the DPR is not in conformitywith the Scope of the Project, the Concessionaire shall promptly and without anyundue delay revise and resubmit the DPR or satisfy the Authority with regards toits compliance.

4.2.3 On review and finalization of the DPR, the Authority shall approve the DPR.

4.2.4 The Concessionaire shall not change the DPR reviewed and approved by theAuthority under this Agreement, without submitting such revised DPR for thereview of the Authority.

4.2.5 The Concessionaire shall not be entitled to any extension of time for developingthe Project or any other relief on account of delay caused due to providing anyclarification or in resubmitting the DPR

4.2.6 Notwithstanding the review by the Authority, the Concessionaire shall be solelyresponsible for any defect and/or deficiency in the DPR relating to the Project orany part thereof and accordingly the Concessionaire shall at all times remainresponsible for its obligations under this Agreement.

4.2.7 The Concessionaire shall in no way represent to any Person that, as a result of anyreview by the Authority, the Authority have accepted responsibility for thetechnical or soundness of any work relating to the Project or part thereof carriedout by the Concessionaire and the Concessionaire shall, in accordance with theprovisions of this Agreement, be solely responsible for the technical feasibility,operational capability and reliability of the Project or any part thereof.

4.3 Damages for delay by the Authority

In the event that (i) the Authority does not procure fulfilment of any or all of theConditions Precedent set forth in Article 4.1.2 within the period specified inrespect thereof, and (ii) the delay has not occurred as a result of breach of thisAgreement by the Concessionaire or due to Force Majeure, the Authority shallextend the period of Concession for a period reckoned on a day to day basis,equivalent to number of days of delay attributable to the Authority.


18/226


19/226


Page 19 of226

ARTICLE 5

OBLIGATIONS OF THE CONCESSIONAIRE

5.1 Obligations of the Concessionaire

5.1.1 In addition to and not in derogation or substitution of any of the obligations,undertakings, terms and conditions or covenants set out elsewhere in thisAgreement, the Concessionaire shall develop, finance, construct, operate,maintain and transfer the Sports Infrastructure Project and develop and transferthe Real Estate Project, including without limitation the necessary infrastructure,services and facilities, during the Concession Period and Lease Periodrespectively in accordance with the approved DPR and the provisions of thisAgreement, including the Specifications and Standards, Applicable Laws, termsof Applicable Permits and Good Industry Practice. The Concessionaire shall, forsuch purposes do all such acts, deeds and things, as may be required under thisAgreement.

5.1.2 The Concessionaire shall comply with all Applicable Laws and ApplicablePermits (including renewals as required) in the performance of its obligationsunder this Agreement.

5.1.3 Subject to Articles 5.1.1 and 5.1.2, the Concessionaire shall discharge itsobligations in accordance with Good Industry Practice and as a reasonable andprudent person.

5.1.4 The Concessionaire shall, at its own cost and expense, in addition to and not inderogation of its obligations elsewhere set out in this Agreement:

(a) make, or cause to be made, necessary applications to the relevantGovernment Instrumentalities with such particulars and details, as may berequired for obtaining all Applicable Permits and obtain and keep in forceand effect such Applicable Permits in conformity with the ApplicableLaws;

(b) procure, as required, the appropriate proprietary rights, licences,agreements and permissions for materials, methods, processes and systemsused or incorporated into the Project

(c) perform and fulfil its obligations under the Financing Agreements;

(d) make reasonable efforts to maintain harmony and good industrial relationsamong the personnel employed by it or its Contractors in connection withthe performance of its obligations under this Agreement;

(e) ensure and procure that its Contractors comply with all Applicable Permitsand Applicable Laws in the performance by them of any of theConcessionaires obligations under this Agreement;


20/226


Page 20 of226

(f) ensure optimal operation and maintenance of the Project throughout theConcession Period and Lease Period, either by performing the operationand maintenance itself, or by making durable, effective and permanentarrangements for due performance of the operation and maintenanceobligations by third party(s);

(g) not do or omit to do any act, deed or thing which may in any manner beviolative of any of the provisions of this Agreement;

(h) support, cooperate with and facilitate the Authority in the implementationand operation of the Project in accordance with the provisions of thisAgreement;

(i) transfer the Sports Infrastructure Project to the Authority upon expiry ofthe Concession Period for Sports Infrastructure Project (i.e.35 years fromthe Appointed Date) and Real Estate Project upon the Termination of thisAgreement occurring prior to COD or expiry of the Lease Period or

termination of the Land Lease Agreement, in accordance with theprovisions thereof.

(j) transfer the Sports Infrastructure Project to the Authority uponTermination of the Concession for Sports Infrastructure Project along withAuthority Designated Area, if such Termination takes place after the CODand prior to the expiry of the Concession Period as provided underArticles 31 and 33 hereof: and

(k) deposit the Sub-Licence Fees for the Authority Designated Area in theEscrow Account, till the Transfer Date of Sports Infrastructure Project or35 (thirty five) years from the Appointed Date, whichever is later.

5.2 Obligations relating to Project Agreements

5.2.1 It is expressly agreed that the Concessionaire shall, at all times, be responsibleand liable for all its obligations under this Agreement notwithstanding anythingcontained in the Project Agreements or any other agreement, and no default underany Project Agreement or agreement shall excuse the Concessionaire from itsobligations or liability hereunder.

5.2.2 The Concessionaire shall submit to the Authority the drafts of all ProjectAgreements including a template for sub-lease of the Real Estate Project to a third

party, or any amendments or replacements thereto for its review and comments,and the Authority shall have the right but not the obligation to undertake suchreview and provide its comments, if any, to the Concessionaire within 30 (thirty)days of the receipt of such drafts. Within 15 (fifteen) days of execution of anyProject Agreement or amendment thereto, the Concessionaire shall submit to theAuthority 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 andcomments hereunder shall be limited to ensuring compliance with the terms ofthis Agreement. It is further agreed that any failure or omission of the Authority


21/226


Page 21 of226

to review and/ or comment hereunder shall not be construed or deemed asacceptance of any such agreement or document by the Authority. No review and/or observation of the Authority and/ or its failure to review and/ or convey itsobservations on any document shall relieve the Concessionaire of its obligationsand liabilities under this Agreement in any manner nor shall the Authority beliable for the same in any manner whatsoever.

5.2.3 The Concessionaire shall not make any replacement or amendments to any of theFinancing Agreements without the prior written consent of the Authority if suchreplacement or amendment has, or may have, the effect of imposing or increasingany financial liability or obligation on the Authority, and in the event that anyreplacement or amendment is made without such consent, the Concessionaireshall not enforce such replacement or amendment nor permit enforcement thereofagainst the Authority. For the avoidance of doubt, the Authority acknowledgesand agrees that it shall not unreasonably withhold its consent for restructuring orrescheduling of the Debt Due.

5.2.4 The Concessionaire shall procure that each of the Project Agreements contains

provisions that entitle the Authority to step into such agreement, in its solediscretion, in substitution of the Concessionaire in the event of Termination orSuspension (the Covenant). For the avoidance of doubt, it is expressly agreedthat in the event the Authority does not exercise such rights of substitution, theProject Agreements shall cease to be in force and effect on the Transfer Datewithout any liability whatsoever on the Authority and the Covenant shallexpressly provide for such eventuality. The Concessionaire expressly agrees toinclude the Covenant in all its Project Agreements and undertakes that it shall, inrespect of each of the Project Agreements, procure and deliver to the Authority anacknowledgment and undertaking, in a form acceptable to the Authority, from thecounter party(s) of each of the Project Agreements, where under such counterparty(s) shall acknowledge and accept the Covenant and undertake to be bound bythe same and not to seek any relief or remedy whatsoever from the Authority inthe event of Termination or Suspension.

5.2.5 Notwithstanding anything to the contrary contained in this Agreement, theConcessionaire agrees and acknowledges that selection or replacement of anO&M Contractor for Sports Infrastructure Project and execution of the O&MContract Sports Infrastructure Project shall be subject to the prior approval of theAuthority from national security and public interest perspective, the decision ofthe Authority in this behalf being final, conclusive and binding on theConcessionaire, and undertakes that it shall not give effect to any such selectionor contract without prior approval of the Authority. For the avoidance of doubt, it

is expressly agreed that approval of the Authority hereunder shall be limited tonational security and public interest perspective, and the Authority shallendeavour to convey its decision thereon expeditiously. It is also agreed that theAuthority shall not be liable in any manner on account of grant or otherwise ofsuch approval and that such approval or denial thereof shall not in any mannerabsolve the Concessionaire or its Contractors from any liability or obligationunder this Agreement.


22/226


Page 22 of226

5.3 Obligations relating to Change in Ownership

5.3.1 The shareholding of the Concessionaire shall be subject to lock-in as provided inthe definition of Change in Ownership (as per Article 42). Accordingly, the

Concessionaire shall not undertake or permit any Change in Ownership, exceptwith the prior approval of the Authority.

5.3.2 Notwithstanding anything to the contrary contained in this Agreement, theConcessionaire agrees and acknowledges that:

(i) all acquisitions of Equity by an acquirer, either by himself or with anyperson acting in concert, directly or indirectly, including by transfer of thedirect or indirect legal or beneficial ownership or control of any Equity, inaggregate of not less than 15% (fifteen per cent) of the total Equity of theConcessionaire; or

(ii) acquisition of any control directly or indirectly of the Board of Directorsof the Concessionaire by any person either by himself or together with anyperson or persons acting in concert with him

shall be subject to prior approval of the Authority from national security andpublic interest perspective, the decision of the Authority in this behalf being final,conclusive and binding on the Concessionaire, and undertakes that it shall notgive effect to any such acquisition of Equity or control of the Board of Directorsof the Concessionaire without such prior approval of the Authority. For theavoidance of doubt, it is expressly agreed that approval of the Authorityhereunder shall be limited to national security and public interest perspective, andthe Authority shall endeavour to convey its decision thereon expeditiously statingthe reasons of denial. It is also agreed that the Authority shall not be liable in anymanner on account of grant or otherwise of such approval and that such approvalor denial thereof shall not in any manner absolve the Concessionaire from anyliability or obligation under this Agreement.

For the purposes of this Article 5.3.2:

(a) the expression acquirer, control and person acting in concert shallhave the meaning ascribed thereto in the Securities and Exchange Boardof India (Substantial Acquisition of Shares and Takeover) Regulations,1997 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 casemay be, of the Concessionaire;

(b) the indirect transfer or control of legal or beneficial ownership of Equityshall mean transfer of the direct or indirect beneficial ownership or controlof any company or companies whether in India or abroad which results inthe acquirer acquiring control over the shares or voting rights of shares ofthe Concessionaire; and


23/226


Page 23 of226

(c) power to appoint, whether by contract or by virtue of control oracquisition of shares of any company holding directly or through one ormore companies (whether situate in India or abroad) the Equity of theConcessionaire, not less than half of the directors on the Board ofDirectors of the Concessionaire or of any company, directly or indirectlywhether situate in India or abroad, having ultimate control of not less than

15% (fifteen per cent) of the Equity of the Concessionaire shall constituteacquisition of control, directly or indirectly, of the Board of Directors ofthe Concessionaire.

5.4 Employment of foreign nationals

The Concessionaire acknowledges, agrees and undertakes that employment offoreign personnel by the Concessionaire and/or its Contractors and their sub-contractors shall be subject to grant of requisite regulatory permits and approvalsincluding employment/residential visas and work permits, if any required, and theobligation to apply for and obtain the same shall and will always be of theConcessionaire and, notwithstanding anything to the contrary contained in this

Agreement, refusal of or inability to obtain any such permits and approvals by theConcessionaire or any of its Contractors or sub-contractors shall not constituteForce Majeure Event, and shall not in any manner excuse the Concessionairefrom the performance and discharge of its obligations and liabilities under thisAgreement.

5.5 Employment of trained personnel

The Concessionaire shall ensure that the personnel engaged by it in theperformance of its obligations under this Agreement are at all times properlytrained for their respective functions.

5.6 Obligations relating to aesthetic quality of the Project

The Concessionaire shall maintain a high standard in the appearance and aestheticquality of the Project and achieve integration of the Project with the character ofthe surrounding landscape through both appropriate design and sensitivemanagement of all visible elements. The Concessionaire shall engage professionalarchitects and town planners of repute for ensuring that the design of the Projectmeets the aforesaid aesthetic standards.

5.7 Sole purpose of the Concessionaire

The Concessionaire having been set up for the sole purpose of exercising therights and observing and performing its obligations and liabilities under thisAgreement, the Concessionaire or any of its subsidiaries shall not, except with theprevious written consent of the Authority, be or become directly or indirectlyengaged, concerned or interested in any business other than as envisaged herein.


24/226


Page 24 of226

5.8 Covenants and undertakings with respect to Authority Designated Area

5.8.1 The Authority Designated Area shall be determined and designated by theConcessionaire with prior written approval of the Authority before undertakingthe construction of any portion of the Real Estate Project. The Concessionaire

shall on quarterly basis provide details of all the constructed area and AuthorityDesignated Area within the Real Estate Project. Subject to the terms andconditions of this Agreement, the Concessionaire shall only be entitled to sublease/sub license the use of the Authority Designated Area to third parties for suchduration not exceeding five years at a time. All contracts, agreements orarrangements with / by sub-lessees/sub licensees with respect to AuthorityDesignated Area shall specifically stipulate that no long term rights can be createdin the Authority Designated Area and that the sub lessee/sub-licensee shall haveno claim whatsoever against the Authority for any termination of their rights,under any circumstances whatsoever. The Concessionaire shall have no right tocreate any long term interest in favour of a third party on the AuthorityDesignated Area except that a sub-lessee/tenancy/sub license for a period not

exceeding five years at a time.

5.8.2 Subject to the provisions of Article 5.8.1, the Concessionaire shall enter intowritten sub-lease/sub-licence agreement with the sub-lessee/sub-licensees for thesub-leasing of the Authority Designated Area. The Concessionaire shall prepare astandard format of the sub-lease/sub-license agreement and shall furnish suchdraft to the Authority for approval and shall incorporate all modifications,suggestions and amendments as may be intimated by the Authority to theConcessionaire (Sub-Licence Agreement Template). The Concessionaireshall enter into sub-lease/sub-license arrangements as per the Sub-LicenceAgreement Template and the Concessionaire shall not alter or change any clausesin the Sub-Licence Agreement Template without the prior written consent of theAuthority. Notwithstanding the Sub-Licence Agreement Template, theConcessionaire shall retain overall responsibility, obligation and liability inrelation to the Authority Designated Area. The Concessionaire shall submit tothe Authority at the beginning of each financial year, a certificate from an Indianlaw firm of repute, acceptable to the Authority, certifying that each sub-lease/sub-licence agreements executed by the Concessionaire in the previous financial yearis in accordance with the provisions of this Agreement are in conformity with theSub-Licence Agreement Template. It is clarified that the Concessionaire shallremain solely liable and responsible for any acts, omissions or defaults of anysub-lessee or sub-licensee of the Authority Designated Area and shall at all timesindemnify and keep indemnified the Authority in respect thereof.

5.8.3 No further sub-lease/sub-licensing of the Authority Designated Area by the sub-lessee/sub-licensees shall be permitted.

5.8.4 The Concessionaire shall collect all rent, sub lease fee, license fee, user chargesetc. with respect to Authority Designated Area (herein referred to as Sub-Licence Fees) from the sub lessees/sub-licensees in the manner prescribed inArticle 28 which shall be directly deposited by the Concessionaire in the EscrowAccount. The Concessionaire shall provide to the Authority a list of the sub


25/226


26/226


Page 26 of226

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 andperform 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 toobserve, comply with and perform, subject to and in accordance with theprovisions of this Agreement and the Applicable Laws, the following:

(a) upon written request from the Concessionaire, and subject to theConcessionaire complying with Applicable Laws, provide reasonablesupport and assistance to the Concessionaire in procuring ApplicablePermits required from any Government Instrumentality for

implementation, development, operation and maintenance of the Project;however the responsibility for obtaining the Applicable Permits shallalways be that of the Concessionaire;

(b) upon written request from the Concessionaire, assist the Concessionaire inobtaining access to all necessary infrastructure facilities and utilities,including water and electricity at rates and on terms no less favourable tothe Concessionaire than those generally available to commercialcustomers receiving substantially equivalent services. All costs, chargesand fees, including developmental charges payable to the relevantdepartment/licensee shall be borne by the Concessionaire;

(c) not do or omit to do any act, deed or thing which may in any manner beviolative of any of the provisions of this Agreement; and

(d) support, cooperate with and facilitate the Concessionaire in theimplementation and operation of the Project in accordance with theprovisions of this Agreement.

(e) upon written request from the Concessionaire and subject to the provisionsof Article 5.4, provide reasonable assistance to the Concessionaire and anyexpatriate personnel of the Concessionaire or its Contractors to obtainapplicable visas and work permits for the purposes of discharge by the

Concessionaire or its Contractors their obligations under this Agreementand the Project Agreements.


27/226


Page 27 of226

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 hasfull power and authority to execute and perform its obligations under thisAgreement and to carry out the transactions contemplated hereby;

(b) it has taken all necessary corporate and other actions under ApplicableLaws to authorise the execution and delivery of this Agreement and tovalidly exercise its rights and perform its obligations under thisAgreement;

(c) it has the financial standing and capacity to undertake the Project inaccordance 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 itsobligations under this Agreement will be legally valid, binding andenforceable obligations against it in accordance with the terms hereof;

(e) it is subject to the laws of India, and hereby expressly and irrevocablywaives any immunity in any jurisdiction in respect of this Agreement ormatters arising there under including any obligation, liability orresponsibility hereunder;

(f) the information furnished in the Bid and as updated on or before the dateof this Agreement is true and accurate in all respects as on the date of thisAgreement;

(g) the execution, delivery and performance of this Agreement will notconflict with, result in the breach of, constitute a default under, oraccelerate performance required by any of the terms of its Memorandumand Articles of Association or, where applicable, those of any member ofthe 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 itsknowledge, threatened against it at law or in equity before any court orbefore any other judicial, quasi-judicial or other authority, the outcome ofwhich may result in the breach of this Agreement or which individually orin the aggregate may result in any material impairment of its ability toperform any of its obligations under this Agreement;


28/226


29/226


Page 29 of226

undertaking and implementing the Project in accordance with thisAgreement;

(o) [insert name of selected bidder] is duly organised and validly existingunder the laws of the jurisdiction of its incorporation, and has requestedthe Authority to enter into this Agreement with the Concessionaire

pursuant to the LOI, and has agreed to and unconditionally accepted theterms and conditions set forth in this Agreement;

(p) all its rights and interests in the Sports Infrastructure Project and RealEstate Project, as the case may be shall pass to and vest in the Authorityon 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 thatnone of the Project Assets shall be retained by it, save and except asexpressly provided in this Agreement;

(q) no representation or warranty by it contained herein or in any otherdocument furnished by it to the Authority or to any Government

Instrumentality in relation to Applicable Permits contains or will containany untrue or misleading statement of material fact or omits or will omit tostate a material fact necessary to make such representation or warranty;and

(r) no sums, in cash or kind, have been paid or will be paid, by it or on itsbehalf, to any person by way of fees, commission or otherwise forsecuring the Concession or entering into this Agreement or for influencingor attempting to influence any officer or employee of the Authority inconnection therewith.

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 itsobligations under this Agreement and to carry out the transactionscontemplated herein and that it has taken all actions necessary to executethis Agreement, exercise its rights and perform its obligations, under thisAgreement;

(b) it has taken all necessary actions under the Applicable Laws to authorisethe execution, delivery and performance of this Agreement;

(c) it has the financial standing and capacity to perform its obligations underthe Agreement;

(d) this Agreement constitutes a legal, valid and binding obligationenforceable against it in accordance with the terms hereof;

(e) there are no actions, suits or proceedings pending or, to its knowledge,threatened against it at law or in equity before any court or before any


30/226


Page 30 of226

other judicial, quasi-judicial or other authority, the outcome of which mayresult in the default or breach of this Agreement or which individually orin the aggregate may result in any material impairment of its ability toperform its obligations under this Agreement;

(f) 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 ofany Government Instrumentality which may result in any MaterialAdverse Effect on the Authoritys ability to perform its obligations underthis Agreement;

(g) it has complied with Applicable Laws in all material respects;

(h) it has the right, power and authority to grant Right of Way, access andpossession of the Site for the Project in accordance with the terms of thisAgreement;

(i) it is the true and lawful owner of the Site and has power and authority togrant a licence in respect thereto to the Concessionaire; and

(j) upon the Concessionaire paying the Upfront Bid Value and performing thecovenants herein, it shall not at any time during the term hereof, interferewith peaceful exercise of the rights and discharge of the obligations by theConcessionaire, in accordance with this Agreement.

7.3 Disclosure

In the event that any occurrence or circumstance comes to the attention of eitherParty that renders any of its aforesaid representations or warranties untrue orincorrect, such Party shall immediately notify the other Party of the same. Suchnotification shall not have the effect of remedying any breach of therepresentation or warranty that has been found to be untrue or incorrect nor shallit adversely affect or waive any obligation of either Party under this Agreement.


31/226


Page 31 of226

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 anindependent evaluation of the Request for Qualification, Request for Proposal,Scope of the Project, Specifications and Standards Site, local conditions, physicalqualities of ground, subsoil and geology and all information provided by theAuthority or obtained or gathered otherwise, and has determined to its satisfactionthe accuracy or otherwise thereof and the nature and extent of difficulties, risksand hazards as are likely to arise or may be faced by it in the course ofperformance of its obligations hereunder. Save as provided in Article 7.2, theAuthority makes no representation whatsoever, express, implicit or otherwise,regarding the accuracy and/or completeness of the information provided by it and

the Concessionaire confirms that it shall have no claim whatsoever against theAuthority 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 Article 8.1.1 aboveand hereby acknowledges and agrees that the Authority shall not be liable for thesame in any manner whatsoever to the Concessionaire, the [insert name ofselected bidder] or any person claiming through or under any of them.


32/226


Page 32 of226

ARTICLE 9

PERFORMANCE SECURITY

9.1 Performance Security

9.1.1 The Concessionaire has for the performance of its obligations hereunder during

the Concession Period, provided to the Authority prior to or on the Effective Date

of this Agreement, an irrevocable and unconditional guarantee from a Bank for a

sum equivalent to Rs. 20 crores (Rupees Twenty crore) in the form set forth in

Schedule-F (the Performance Security).

The details of the above Performance Security as submitted are given below :

(a) Name of the issuing Bank :(b) Date of issue :

(c) Amount :(d) Validity Period :(e) Name in whose favour bank guarantee is issued :(f) Number of bank guarantee :

9.1.2 The Performance Security shall remain valid initially for the period of 3 (three)

years, however the Concessionaire shall be obligated to keep the Performance

Security in force and effect for a period of six months beyond the Transfer Date

of the Sports Infrastructure Project. The Performance Security shall be renewed

atleast 90 (ninety) days prior to its expiry, each time for a period of not less than 3

(three) years.

9.2 Appropriation of Performance Security

Upon occurrence of a Concessionaire Default, the Authority shall, withoutprejudice to its other rights and remedies hereunder or in law, be entitled toencash, invoke and appropriate the relevant amounts from the PerformanceSecurity as Damages for such Concessionaire Default. Upon such encashment,invocation and appropriation from the Performance Security, the Concessionaireshall, within 30 (thirty) days thereof, replenish, in case of partial appropriation, toits original level the Performance Security, and in case of appropriation of theentire Performance Security provide a fresh Performance Security, as the casemay be, and the Concessionaire shall, within the time so granted, replenish or

furnish fresh Performance Security as aforesaid failing which the Authority shallbe entitled to terminate this Agreement in accordance with Article 33. Uponreplenishment or furnishing of a fresh Performance Security, as the case may be,as aforesaid, the Concessionaire shall be entitled to an additional Cure Period of90 (ninety) days for remedying the Concessionaire Default, and in the event of theConcessionaire not curing its default within such Cure Period, the Authority shallbe entitled to encash, invoke and appropriate such Performance Security asDamages, and to terminate this Agreement in accordance with Article 33.


33/226


Page 33 of226

9.3 Release of Performance Security

The Performance Security shall remain in force and effect till six monthsfollowing the Termination or expiry of the Concession Period for the SportsInfrastructure Project, whichever is earlier. At the end of six months after expiry

of the Concession Period the Performance Security shall be released provided theConcessionaire is not in breach of this Agreement.


34/226


Page 34 of226

ARTICLE 10

RIGHT OF WAY

10.1 The Site

The site of the Project shall comprise of the land described in Schedule A and inrespect of site relating to Sports Infrastructure Project, the Right of Way shall beprovided and granted by the Authority to the Concessionaire as a licensee underand in accordance with this Agreement (the Site). The Right of Way for theReal Estate Project shall be granted by the Authority upon the execution of theLand Lease Agreement. For the avoidance of doubt, it is hereby acknowledgedand agreed that references to the Site shall be construed as references to the landas set forth in Schedule A, required for the Sports Infrastructure Project and RealEstate Project.

10.2 Licence, Access and Right of Way

10.2.1 The Authority hereby grants to the Concessionaire access to the Site for carryingout any surveys, investigation, study, design, engineering, procurement,financing, construction, operation and maintenance and all such activities that theConcessionaire may deem necessary during the Development Period, it beingexpressly agreed and understood that the Authority shall have no liabilitywhatsoever in respect of survey, investigations and tests carried out or workundertaken by the Concessionaire on or about the Site pursuant hereto in the eventof Termination or otherwise.

10.2.2 In consideration of the Upfront Bid Value, this Agreement and the covenants andwarranties on the part of the Concessionaire herein contained, the Authority, inaccordance with the terms and conditions set forth herein, hereby grants to theConcessionaire, commencing from the Appointed Date, leave and licence rights inrespect of all the land (along with any buildings, constructions or immovableassets, if any, thereon) comprising the site for Sports Infrastructure Project (theLicensed Premises) for the duration of the Concession Period (i.e. 35 years)with effect from the Appointed Date and leasehold rights in respect of all the land(along with any buildings, constructions or immovable assets, if any, thereon)comprising the Real Estate Project (the Leased Premises) for the duration ofthe Lease Period (i.e. 99 years) with effect from the Appointed Date on an as iswhere is basis, free of any Encumbrances, to operate and maintain the Site,together with all and singular rights, liberties, privileges, easements andappurtenances whatsoever to the Site, hereditaments or premises or any part

thereof belonging to or in anyway appurtenant thereto or enjoyed therewith, and,for the purposes permitted under this Agreement, and for no other purposewhatsoever. The annual Lease Rent of the Leased Premises shall be Re. 1/-(Rupee one) per sq. mtr., per annum.

10.2.3 The licence, access and Right of Way granted by this Agreement to theConcessionaire shall always be subject to existing rights of way and theConcessionaire shall perform its obligations in a manner that alternative right ofway is made available for an existing right of way affected by the Project.


35/226


36/226


Page 36 of226

10.3 Procurement of the Site

10.3.1 Pursuant to the notice specified in Article 4.1.2 and upon completion of theConditions Precedent to be fulfilled by the Concessionaire under Article 4.1.3, theAuthority and the Concessionaire shall, on a mutually agreed date and time,

inspect the Site and prepare a memorandum containing an inventory of the Siteincluding the vacant and unencumbered land, buildings, structures, road works,trees and any other immovable property on or attached to the Site. Signing of thememorandum, in two counterparts (each of which shall constitute an original), bythe authorised representatives of the Parties shall be deemed to constitute a validlicence and Right of Way to the Concessionaire for free and unrestricted use anddevelopment of the vacant and unencumbered Site during the Concession Periodunder and in accordance with the provisions of this Agreement and for no otherpurpose whatsoever.

10.3.2 On and after signing the memorandum and until the Transfer Date, theConcessionaire 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 ofany encroachment or occupation on any part thereof, the Concessionaire shallreport such encroachment or occupation forthwith to the Authority and undertakeits removal at its cost and expenses.

10.4 Site to be free from Encumbrances

Subject to the provisions of Article 10.3, the Site shall be made available by theAuthority to the Concessionaire pursuant hereto free from all Encumbrances andoccupations and without the Concessionaire being required to make any paymentto the Authority on account of any costs, compensation, expenses and charges forthe acquisition and use of such Site for the duration of the Concession Period,except insofar as otherwise expressly provided in this Agreement. For theavoidance of doubt, it is agreed that existing Rights of Way, easements,privileges, liberties and appurtenances to the Licensed Premises shall not bedeemed to be Encumbrances.

10.5 Protection of Site from encroachments

During the Concession Period, the Concessionaire shall protect the Site from anyand all occupations, encroachments or Encumbrances, and shall not place orcreate nor permit any Contractor or other person claiming through or under theConcessionaire 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 Concessionairetherein or under this Agreement, save and except as otherwise expressly set forthin this Agreement.

10.6 Special/temporary Right of Way

The Concessionaire shall bear all costs and charges for any special or temporaryright of way required by it in connection with access to the Site. TheConcessionaire shall obtain at its cost such facilities on or outside the Site as may


37/226


38/226


Page 38 of226

ARTICLE 11

UTILITIES ON THE SITE AND TREES

11.1 Existing utilities and roads

Notwithstanding anything to the contrary contained herein, the Concessionaireshall ensure that the respective entities owning the existing land, Right of Way orutilities on, under or above the Site are enabled by it to keep such utilities incontinuous satisfactory use, if necessary, by providing suitable temporary orpermanent diversions with the authority of the controlling body of that land, Rightof Way or utility and the Authority shall, upon written request from theConcessionaire, initiate and undertake at the Concessionaires cost, legalproceedings for acquisition of any Right of Way necessary for such diversion.

11.2 Shifting of obstructing utilities

The Concessionaire at its own cost shall, subject to Applicable Laws and withassistance of the Authority, undertake shifting of any utility including electriclines, water pipes and telephone cables, to an appropriate location or alignmentwithin or outside the Site if and only if such utility causes a material adverseeffect on the construction, operation or maintenance of the Project.

11.3 New utilities

11.3.1 The Concessionaire shall approach the Appropriate Authorities for layingtelephone lines, water pipes, sewage system, electric cables and other publicutilities and shall bear the cost for the same. The Concessionaire shall proceed to

obtain the Applicable Permits as specified in Schedule E and the Authority shallassist the Concessionaire in obtaining the Applicable Permits. For the avoidanceof doubt, it is agreed that use of the Site under this Article shall not in any mannerrelieve the Concessionaire of its obligation to maintain the Project in accordancewith this Agreement and any damage caused by such use shall be restoredforthwith.

11.3.2 The Concessionaire shall interconnect the Project and all other Project Facilitiesand support systems on the Site through paved roads, as per the approved DPRincluding the lay out drawings, and such connecting roads shall be constructedand maintained by the Concessionaire during the term of this Agreement inaccordance with Good Industry Practice

11.4 Felling of trees

The Authority shall assist the Concessionaire in obtaining the Applicable Permitsfor felling of trees to be identified by the Authority for this purpose if and only ifsuch trees cause a material adverse effect on the construction, operation ormaintenance of the Project. The cost of such felling shall be borne by theConcessionaire. For the avoidance of doubt, the Parties hereto agree that the felledtrees shall be deemed to be owned by the Authority and shall be disposed in such


39/226


40/226


Page 40 of226

ARTICLE 12

CONSTRUCTION OF THE SPORTS INFRASTRUCTURE PROJECT

12.1 Obligations prior to commencement of construction

Prior to commencement of Construction Works, the Concessionaire shall:

(a) submit to the Authority either directly or through the IndependentEngineer its lay out drawings, detailed design, construction methodology,quality assurance procedures, and the procurement, engineering andconstruction time schedule for completion of the Project in accordancewith the Project Completion Schedule as set forth in Schedule-G for itsreview and comments ;

(b) appoint its representative duly authorised to deal with the Authority inrespect of all matters under or arising out of or relating to this Agreement;

(c) obtain all requisite approvals of the Drawings from the competentauthorities;

(d) undertake, do and perform all such acts, deeds and things as may benecessary or required before commencement of construction under and inaccordance with this Agreement, the Applicable Laws and ApplicablePermits;

(e) make its own arrangements for quarrying of materials needed for theProject under and in accordance with the Applicable Laws and ApplicablePermits; and

(f) have requisite organisation and designate and appoint suitable officers /representatives as it may deem appropriate to execute the Project.

12.2 Maintenance during Construction Period

During the Construction Period, the Concessionaire shall maintain, at its cost, theSite and shall undertake the necessary maintenance works for this purpose;

12.3 Drawings

In respect of the Concessionaires obligations with respect to the Drawings of theSports Infrastructure Project as set forth in Schedule-H, the following shall apply:

(a) The Concessionaire shall prepare and submit, with reasonable promptnessand in such sequence as is consistent with the Project CompletionSchedule, three copies each of all Drawings to the Authority for reviewand comments;


41/226


Page 41 of226

(b) Within 45 (forty five) days of the receipt of the Drawings, the Authorityshall review the same and convey its observations to the Concessionairewith particular reference to their conformity or otherwise with the Scopeof the Project, the Specifications and Standards, the DPR. For theavoidance of doubt, the Concessionaire shall be obliged to await theobservations of the Authority on the Drawings submitted pursuant hereto

and the Authority shall not unreasonably withhold its observations beyond45 (forty five) days period and may begin or continue Construction Worksat its own discretion and risk;

(c) If the aforesaid observations of the Authority indicate that the Drawingsare not in conformity with the Scope of the Project or the Specificationsand Standards, and the DPR, such Drawings shall be revised by theConcessionaire and resubmitted to the Authority for review. The Authorityshall give its observations, if any, within 7 (seven) days of receipt of therevised Drawings;

(d) No review and/or observation of the Authority and/or its failure to review

and/or convey its observations on any Drawings shall relieve theConcessionaire of its obligations and liabilities under this Agreement inany manner nor shall the Authority be liable for the same in any manner;

(e) Within 90 (ninety) days of the Project Completion Date, theConcessionaire shall furnish to the Authority a complete set of as-builtDrawings, in 2 (two) hard copies and in micro film form or in such othermedium as may be acceptable to the Authority, reflecting the Project asactually designed, engineered and constructed, including the built up areaillustrating the layout of the Project and setback lines, forming part ofSports Infrastructure Project and Project Facilities.

(f) Any submission of Drawings by the Concessionaire to the Authority underthis Agreement or any other contractual arrangement, shall not amount tosubmission and/or fulfilment of the requirement as laid down underApplicable Law and the Concessionaire shall separately comply withstatutory requirements.

12.4 Scheduled Completion Date

12.4.1 On or after the Appointed Date, the Concessionaire shall undertake constructionof the Mandatory Project and Mandatory Sports Infrastructure Project Facilities asspecified in Schedule B and Schedule C. The 1095 th (One thousand and ninety

fifth)day from the Appointed Date shall be the scheduled date for completion ofthe Mandatory Project and the Mandatory Sports Infrastructure Project Facilities(the Scheduled Completion Date) and the Concessionaire agrees and undertakesthat the construction of the Mandatory Projects and the Mandatory SportsInfrastructure Project Facilities shall be completed on or before the ScheduledCompletion Date.

12.4.2 The Concessionaire shall construct the Mandatory Project and the MandatorySports Infrastructure Project Facilities in accordance with the Project Completion


42/226


Page 42 of226

Schedule. In the event that the Concessionaire fails to achieve any ProjectMilestone within a period of 30 (thirty) days from the date set forth for suchProject Milestone, unless such failure has occurred due to Force Majeure or forreasons solely attributable to the Authority, it shall pay Damages to the Authorityin a sum calculated at the rate of 0.1% (zero point one percent) of the amount ofPerformance Security for delay of each day until such Project Milestone is

achieved; provided that if any or all Project Milestones or the ScheduledCompletion Date are extended in accordance with the provisions of thisAgreement, the dates set forth in the Project Completion Schedule shall bedeemed to be modified accordingly and the provisions of this Agreement shallapply as if the Project Completion Schedule has been amended as above. For theavoidance of doubt, it is agreed that recovery of Damages under this Article12.4.2 shall be without prejudice to the rights of the Authority under thisAgreement, including the right of Termination thereof.

12.4.3 In the event that the Mandatory Project and the Mandatory Sports InfrastructureProject Facilities are not completed by the Scheduled Completion Date, unless thedelay is on account of reasons solely attributable to the Authority or due to Force

Majeure, it shall pay Damages to the Authority in a sum calculated at the rate of0.1% (zero point one per cent) of the amount of Performance Security for delay ofeach day until the Mandatory Project and Mandatory Sports Infrastructure ProjectFacilities are completed. In the event, the Mandatory Project and MandatorySports Infrastructure Project Facilities are not completed within 180 (one hundredand eighty) days of the Scheduled Completion Date, the Authority shall beentitled to terminate this Agreement and appropriate the entire PerformanceSecurity.


43/226


44/226


Page 44 of226

Works with respect to the Sports Infrastructure Project into compliance with theSpecifications and Standards, and the procedure set forth in this Article 13.3 shallbe repeated until such Construction Works with respect to the SportsInfrastructure Project conform to the Specifications and Standards. For theavoidance of doubt, it is agreed that tests pursuant to this Article 13.3 shall beundertaken in addition to and independent of the tests that shall be carried out by

the Concessionaire for its own quality assurance in accordance with GoodIndustry Practice. It is also agreed that a copy of the results of such tests shall besent by the Concessionaire to the Independent Engineer forthwith.

13.4 Delays during construction

13.4.1 If the Concessionaire does not achieve any of the Project Milestones or theAuthority shall have reasonably determined that the rate of progress ofConstruction Works is such that the Mandatory Project and Mandatory SportsInfrastructure Project Facilities are not likely to be completed by the ScheduledCompletion Date, it shall notify the Concessionaire to this effect, and theConcessionaire shall, within 15 (fifteen) days of such notice, by a communication

inform the Authority in reasonable detail about the steps it proposes to take toexpedite progress and the period within which it shall achieve the ScheduledCompletion Date.

13.4.2 In the event the Authority shall have reasonably determined that the rate ofprogress of Construction Works with respect to the Sports Infrastructure Project isnot likely to be achieved by the Scheduled Completion Date, it shall notify theConcessionaire to this effect, and the Concessionaire shall, within 15 (fifteen)days of such notice, by a communication inform the Authority in reasonable detailabout the steps it proposes to take to expedite progress and the period withinwhich it shall achieve the Project Completion Date.

13.5 Video Recording

During the Construction Period of the Sports Infrastructure Project, theConcessionaire shall provide to the Authority for every calendar quarter, a videorecording, which will be compiled into a 3 (three)-hour compact disc or digitalvideo disc, as the case may be, covering the status and progress of theConstruction Works in that quarter. The first such video recording shall beprovided to the Authority within 7 (seven) days of the Appointed Date andthereafter, no later than 15 (fifteen) days after the close of each quarter.


45/226


Page 45 of226

ARTICLE 14

COMPLETION CERTIFICATE

14.1 Tests

14.1.1 At least 30 (thirty) days prior to the likely completion of the Sports InfrastructureProject, the Concessionaire shall notify the Independent Engineer of its intent tosubject the Sports Infrastructure Project to Tests. The date and time of each of theTests shall be determined by the Independent Engineer in consultation with theConcessionaire, and notified to the Authority who may designate itsrepresentative to witness the Tests. The Concessionaire shall provide suchassistance as the Independent Engineer may reasonably require for conducting theTests. In the event of the Concessionaire and the Independent Engineer failing tomutually agree on the dates for conducting the Tests, the Concessionaire shall fixthe dates by not less than 10 (ten) days notice to the Independent Engineer.

14.1.2 All Tests shall be conducted in accordance with Schedule-I. The IndependentEngineer shall observe, monitor and review the results of the Tests to determinecompliance of the Sports Infrastructure Project with Specifications and Standardsand if it is reasonably anticipated or determined by the Independent Engineerduring the course of any Test that the performance of the Sports InfrastructureProject or any part thereof does not meet the Specifications and Standards, it shallhave the right to suspend or delay such Test and require the Concessionaire toremedy and rectify the defects or deficiencies. Upon completion of each Test, theIndependent Engineer shall provide to the Concessionaire and the Authoritycopies of all Test data including detailed Test results. For the avoidance of doubt,it is expressly agreed that the Independent Engineer may require theConcessionaire to carry out or cause to be carried out additional Tests, inaccordance with Good Industry Practice, for determining the compliance of theSports Infrastructure Project with Specifications and Standards.

14.2 Completion Certificate

Upon completion of Construction Works of Sports Infrastructure Project, and theConcessionaire submitting the [Building Occupation Certificate] from theLucknow Development Authority, the Authority shall forthwith issue to theConcessionaire a certificate substantially in the form set forth in Schedule J (theCompletion Certificate).

14.3 Provisional Certificate

14.3.1 The Independent Engineer may, at the request of the Concessionaire, issue aprovisional certificate of completion substantially in the form set forth inSchedule-J (the Provisional Certificate) if the Tests are successful and theSports Infrastructure Project can be safely and reliably placed in commercialoperation though certain works or things forming part thereof are outstanding andnot yet complete. In such an event, the Provisional Certificate shall haveappended thereto a list of outstanding items signed jointly by the Independent


46/226


Page 46 of226

Engineer and the Concessionaire (the Punch List); provided that theIndependent

Lda Dca Final

Documents

Transcript of Lda Dca Final