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    9 views13 pages

    State Support Agreement - 220715 - 160734

    Uploaded by

    Rakesh Shete

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 13
    et DELHI K 663877 STATE SUPPORT AGREEMENT THIS STATE SUPPORT AGREEMENT is entered into on this thets7% day ot April 2010, BETWEEN 1. THE GOVERNOR OF THE STATE MAHARASHTRA acting through the Chief Secretary, Government of MAHARASHTRA (hereinafter referred to as the “State Government” which expression shall unless repugnant to the context or meaning thereof include its successors, assigns and permitted substitutes) of the ‘One Part; and ‘THE PRESIDENT OF INDIA, represented by the Joint Secretary. Department of Road Transport and Highways, and having its principal offices at Transport Bhavan, New Delhi-110001 (hereinafter referred to as the “Authority” which expression shall, unless repugnant to the context or meaning thereof, include its administrators, successors and assigns) of the Other Part; WHERLAS, A) The Government of india proposes to imph nent an extensive programme for development of national highways through Public Private Partnerships on the terms, specified in a Model Concession Agreement either by itself or through the National Highways Authority of India (BH) The Government oF the Authority, as dhe case may’ Be. praposen te Eater fate noms") fr Cones on Agicements with the Coneessionaire (the “Concession Agre upgradiby snd augmenting differen sections af National Highway on bul, operate «nd transfer (BOT) basis on the terms specified in the Model Concession Agreement (the “Projects, (©) The State Government recognises that implementation end operation of the aforesaid Projets in accordance with the Concession Agreements is necessary and ‘equited for the growth and development ofthe State. (P) The State Government acknowledges that implementation of the Projects requires continued support and grant of certain rights and authorities by the State Goverument to the Concessionaires as hereinafter set forth and is an essential pro= condition for mobilisation of resources therefor by the Concessionaites NOW IT IS HEREBY AGREED as follows: 1 DEFINITIONS AND INTERPRETATION 11 Definii In this Agreement, the following words and expressions shall, unless repugaant tothe context or meaning thereof, have the meaning hereinafter respectively assigned to them: "Agreement" means this State Suppor Agreement and any amendment thereto ‘made in accordance with the provisions contained inthis Agreesnent; “Authority” means the Central Government or the National Highways Auihority of India, as the ease may be, which has executed the respective Concession Agreement; “Concession Agreement” incans the concession agreements referred to in the Recitals "Cure Period" means the period specified in this Agreement for curing any breach ‘or default of any provision of this Agreement by the Party responsible for sucls breach or default, and shall commence from the date on which a notice is delivered by one Party to the other Party asking the latter ‘a cure the breach or default specified in such notices “Government Agency" means the Sut Govermmem or any department, commission, board, auth :y OF municipal and other local ty, instrumentality, a authority or statutory body including Panchayat under the control of the State Government “Local Taxes" mean any taxes, duty, cess, fee oF oetroi levied or collected by any Government Agency on the whole or any part af the talfie or goods while in tras 60 the Project Highway Beh, Ms) qt 12 122 123 24 ‘Model Concession Agreement" micas the Mode! Concession Agreement published by the Govemment of dis, Manan, Commission on November 29, 2005 for Public Private Parwerships in national highways and inclides any modifieation, ‘eplication or substitution thereof; "Parties" means the parties to this Agreement collectively and "Party shall mean ‘any of the Parties to this Agreement individually and includes the Concessionaire who isa pany toa Concession Agreement; "State Default" shall have the meaning ascribed thereto in Clause 4.15, “State Government” means the State Government referred to in the Recitals; and "State Support means the obligations assumed and the facilities agreed to be Provided by the State Government to ahe Concessionaire hereunder or pursuant hereto, Interpretation The words and expressions beginning with capital letters and defined in this ‘Agreement shell have the meaning ascribed thereto herein, and the words and expressions used in this Agreement and not defined herein but defined in the Model Concession Agreement shall, unless repugnant to the context, have the meaning ‘scribed thereto in the Model Concession Agreement, References to Clauses are, unless stated otherwise, references 10 Clauses of this Agreement ‘The rules of interpretation stated in Clauses [.2, 1.3 and 1.4 of the Model Concession Agreement shall apply, mutais mucandis, o this Agreement STATE SUPPORT Support by the State Government ‘With effect from the date hereof, the Slate Goverment agrees to provide State Support and undertakes to observe, comply with and perform the following: (2) enable continued access to the Site and Right of Way to the Concessionaire {in accordance with the provisions of the respective Concession Agreements without let or hindrance fiom any Government Agency ar persons claiming ‘through or under its (H) subject (© the Concessionaite complying with Applicable Laws, assist the Concessionaive in obtaining the Applicable Permits to the extent any Government Agency is entitled to issue; (©) _assisi the Concessionaire in procuring such of the Applicable Pennits ax GO! fan grant, in accordance with and subjeet to the Concessionaire complying Ae 89 fu 22 « © 0 © ) @ a ® o (m) ) io} Reser With Applicable Lanes snable and facilitate, subjct wo and iy aecordance with the Applicable Laws, Provision of all Applicable Permits requited from any municipal and other local authorities in the State for implementation and operation of the Pojeet 'ypon written request from the Concessionaire, assist the Concessionaite in obtaining access to all necessary infrasieucture facilities and utili including water and electricity at rates and on terms no less favourable (0 the Concessfonsire than those generally availuble to commercial customers receiving substantially equivalent services; ‘pon writen request fiom the Concessionaire, ensure and procure the shifting of utilities in accordance with Applicable Laws and the Concession Agreement. ensure and procure that no barriers are erected or placed on the Project Highways by any Government Agency or persons claiming through or under it ‘except for reasons of emergency, national security or law and order; sure and procure that municipal and other local authorities including Panchayats do not put any bartiers or other obstructions on the Project Highways and/or levy or impose auy Local Taxes; subject fo and in accordance with the Applicable Laws, grant to the Concessionaire the authority to regulate traffic on the Project Highways provide the Concessionaire with Police assistance in accordance with Applicable Laws and rules thereunder for regulation of traffic, removal of trespassers and security onthe Project Highway; establish ond operate traffic aid posts and mobile Police squads in accordance withthe applicable policies and practices followed by the State Government; establish and operate medical aid posts and ambulance services in accordance with the applicable policies and practices followed by the State Governments ‘make best efforts not te do or omit to do any act, deed oF thing which may in ‘any manner be violative of or cause the Concessionaite to violate ony of the provisions ofthe respective Concession Agreeinent; ‘Support, cooperate with and facilitate the Authority and the Concessionaies in with the the implementation and operation of the Projects in accordance Provisions ofthe Concession Agreement; and ‘observe and comply with all its obligations set for in this Agreement tion on Competing, Roads ‘he Siate Government agrees and undertakes tha it shall not construct or eause be ny Competing Road in violation of the respective Caneession wehbe Py Ine 23 24 28 26 AM Agreenvents, Vor the avoidance of doubt, it is expressly agreed that the: State Goverament may, atthe beginning of each Accounting Year, by notice eanvey tothe Authority the particulars of any Competing Resid that it proposes te evmnstruct ie Fespect of any section of a National Highway far which bids may be invite by the Authority for award of a concession, and upon receipt of such notice, the Authority shall make appropriete provision to enable the State Government to construct such ‘oad without payment of any Damages or compensation tothe Concessionaie. Restriction on construction of Additional Tollway ‘The Stale Govemment agrees and undertakes that it shall not constructor cause to be Constructed any Additional Tollway save and except as provided in the respective Concession Agreements. For the avoidance of doubt, it is expressly agreed that the State Government may, al the beginning of each Accounting Year, by notice convey tw the Authority the particulars of any Additional Tollway tht it proposes to construct In respect of any section of « National Highway for which bids may be invited by the ‘Authority for award of a concession, and upon receipt of such notice, the Authority shall make appropriate provision to enable the State Government to consituct such Additional Tollway without payment of any Damages or compensation to the Concessionaire, Restei mm on Local Taxes ‘The State Government agrees and undertakes that it shall not levy oF impose any Local Tax. tol, or charge on the use of whole or any par of the Project Highways. Substitution of Concessionaire ‘The State Government acknowledges the rights of the lenders of the respective Project Highways and of the Authority 10 undertake substitution of the Concessionaive by the nominated company in accordance with the Concession Agreement and it shall be deemed for the purposes of this Agreement that the ominated company shall have succeeded to the righis and obligations of the Concessionsire under this Agreement on and with effect fiom the date of substitution ‘of the Concessionsire by the nominated company, Right to seck specific performance The State Government acknowledges and agrees that the Concessianaice shall have the Fight o seek specific performance ofthis Agreement. OBLIGATIONS OF THE AUTHORITY Obligations of the Authority ‘he Authority: agrees and undertakes tw procure that the Coneessionaite shall Perform. observe and comply, i all material respects, withthe following: Abs ge (all Applicable fas ana Applicable Pets and (hy the provisions of the respective Concession Agreemem, the Projeet Agreements, and this Agreement 4 STATE DEFAULT State Default 4.1.1 In the event that any Goverment Agency commits any: material breach of this Agreement and fails to eure such breach within a Cure Period of 60 (sixty) days, such breach and failure shall constitute an event of default (a "State Default less such event of default has occurred as a result of Force Majeure or any act or omission of the Concessionaice, 41.2 Upon oicurence of a State Defiult, the consequences thereof shall be dealt with under and in accordance with the provisions ofthe Concession Agreement $_ COMPENSATION AND TERMINATION PAYMENTS 5 Compensation and Termination Payments by the State Government 5.1 Without prejudice to the generality of Clause 4.1, in the event that any act or ‘omission of any Govemment Agency causes a breach of this Agreement of @ State Default, as the ease may be, such breach or State Default shall be deemed to be breach of the respective Concession Agreement and shal entitle the Concessionaite to compensation, Damages or Termination Payments, as the case may be, as if such breach or Slate Default had eccurted under the provisions of the Concession ‘Agreement 5.1.2 The compensation, Damages or Termination Payments, as the ease may be, in respect of any breach of this Agreement or a State Default shall be payable by the State Goverment tothe respective Concessiansire, and the State Gavernment hereby agrees and covenants that it shall make such payments on its own behal and on behalf of the Authority pursuant fo the obligations set forth in the respective Concession Agreement and this Agreement 5.13 Payments due from the State Government under this Agreement shall he made ‘within 60 (sixty) days of receiving a demand from the Concessionaire alongwith the necessary particulars thereof, duly certified by the Stattory Auditors. In the event of delay beyond such period, the State Government shall pay 10 the neessionaire interest for the period of dclay calculated at the cate of 3% (three per cent) above the Bank Rate S14 The make any payments due and payable 10 the the Concessionaiee shall be ented w cluim and receive such payments front the Stale Government acknowledges and agrees that in the event of its failure te neessiongive under this Agreement. Authority, on behalf of the Abbe se Goverment, The State Goverment acknowledges . Ga that disbussement of suet payments hy the Autlwnty- ty the Cingessianite hal onstitte a valid discharge of the obligations ofthe Slate Goverment hereunder 49 the extent of such payments 5:15 The State Government acknowledges and agrees that any’ payments made by: the Authority, on behalf of the State Goverment, 10 1 recovered by the Authority from the Siete Government either directly or through Convessionaite may Fecowse 10 central devolutions payable by Government of India to the Goverament 52 Compensati by the Concessionaire 52.1. In the event of a Concessionaire being in materi default of this Agreement, it shall pay tothe Slate Government as compensation, all direct additional costs sullered or incurred by the State Government as a cbnscquence of such material default, within 30 (thiny) days of receiving the demand supported by necessary particulars thereof duly cetfied by the State Government. In the event of delay beyond such period, the Concestionaire shall pay to the State Government interest for the period of delay calculated a the rte of 3% (three per cent) above the Bank Rate 5.2.2 Ia the event of the Concessionaire’s failure fo make eny payments due and payable to the Stale Government in accordance with this Agreement, the State Government shell be entitled fo claim and receive such payments from the Authority, on behalf of the Concessionaire, 5.2.3 The State Government acknowledges and agrees that if any compensation or Damages have been paid by a Concessionaire to the Authority with respect {0 any act or omission constituting 2 default of the respective Concession Agreement or his Agreement, the State Government shall net demand any compensation from the Concessionaire for the same act or omission. For the avoidance of doubt, if the Damages paid by the Concessionaire to the Authority hereunder relate to any direct additional costs suffered or incurred by the State Government, the Authority shell ‘wansfer to the State Government the amount received hereunder in respect of such ‘costs suffered or incurred by the State Government. 6 DURATION OF THE AGREEMENT 6.1 Duration of the Agreement 6.1.1 This Agreement shall come into force from the date heteof and shall continue 40 be in full force and effect irrevocably until termination of all the Concession ‘Agseements lor projects within the State 612 AML rights and obligations of either Panty under this Agieement, including compensation. Damages and Termination Payments. shall survive termination: to the extent such survival is necessary fw qiving effect to such rights and obligations, 7 INDEMNITY 71 General indemnity TAA The Authority will indemnity, defend and fold the State Government harmless aguinst any and all proceedings, actions and thied pasty claims (or any Foss, damage, cust and expense arising out of any breach by the Authority of ‘any of ts obligations under this Agreement or on account of failure of. ‘Authority to comply with Applicable Laws and Applicable Permits. 742 The State Government will indemnify, defend and hold the Authority harmless against any and all proceedings, actions and third party claims for any Joss, damage, cost and expense arising out of failure of the State Government to fulG) any of ils obligations under this Agreement materially and adversely affecting the performance of the’ Authority's obligations under the cession Agreements or this Agreement other than any loss, damage, cost end ‘expense, arising out of acts done in discharge of their lawful functions by the State Government, its officers, servants and agents 72 Notice und contest of claims In the event tat either Party receives a claim fromm a third party in respect of which it is entitled to the benefit ofan indemnity under Clause 7.1 or in tespect of which itis entitled to reimbursement (the “Indemnified Party"), it shall notify the other Party {the "Indemnifying Party") within 15 (fiteen) days of receipt ofthe claim and shall not setle or pay the el approval not to be unreasonably withheld or delayed. In the event that the Indemnifying pany wishes to contest or dispute the claim, it may conduet the Proceedings in the name of the Indemnified Party and shall bear all costs involved in Contesting the same. The Indemnified Party shall provide all cooperation and assistance in contesting uny claim and shall sign all ch writings and documents as the Indemnifying Party may reasonably require. m without the prior approval ofthe Indemnifying Party, such 8 DISPUTE RESOLUTION 8.1 Dispute resolution 5.1.1 Any dispute, difference or controversy of whotever nature hovsvever arising in ‘connection with this Agreement between the Parties and so notified in writing by either Party to the other Party (the "Dispute") shall, in the first instance, be stlempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 8.2. 81.2 The Parties apree to use their best efforts for resolving sll Disputes arising, under ‘or in respect of this Agreement promptly, equitably and in good fit, and further agree t provide e: cl other with reasonable access during normal business hots tall non-privileyed records, information and date pertaining to any Dispute Abbe ey Gn 82 Concitation 8.2.) The Pontes shall frst seck an amicable seitment af the Disputes by conciliation aeeordance with this Clause 8.2, Such conciliation shall tke place in accordance with the provisions of the Arbittion and Conciliation Act, 1996 and Rules ‘hereunder (be such lesser number as the Parties may agree) to be uppointed according to the Conciliation Rules, ‘Conciliation Rules") and shall he conducted by three coneilitoes (or 8.2.2 Any meetings with the covctiators pursuant to Clause &2.1 slall be held at Delhi and the language of conciliation proceedings shall be English 8.2.3 Each of the Parties hereby gives for the purpose of the conciliation, undertakings ‘and assurances as contained in the Coneiliaion Rules including an undertaking to promptly deposit its share of advance for payment of the casts as estimated by the

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