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Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 0
Bihar State Housing Board (BSHB) Government of Bihar
SCHEDULES
Grant of Lease for Commercial Development of approx. 1.70
acres of Land at L- Sector in Kankarbagh, Patna in Public
Private Partnership (PPP) mode
BY AND BETWEEN
“BIHAR STATE HOUSING BOARD”
AND
NAME & ADDRESS OF THE SPV
“DEVELOPER”
June 2013
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 1
SCHEDULE - I
PART A
SITE DESCRIPTION AND SITE PLAN
The land area for the site admeasures approx. 1.70 Acres. The location of the proposed site for commercial
development lies in the south central part of Patna in Kankarbagh. The site forms part of the locality of
Lohianagar. The Main Road No.2 (indicated below), Main Road No. 3 (indicated below) and two other
peripheral roads of Mithapur Road and Bhoonath Road provide connectivity to the region. Provided below is
a location map for the site location:
The site has a frontage of over 450 ft., and a depth of over 150 ft., and bears a rectangular shape. The site is
bound on all sides as discussed below:
North: The site lies on the Main Road No 4, joining the Main Road No. 1 in the North and Main Road No. 3
in the east. The site has frontage on this main road. The width of the site from front is in excess of 450 ft. The
Kankarbagh tempo stand and the Patna Indoor and Outdoor Stadium are situated near the site region.
South: Thakurji Anukulchandra Mutt is located on the south side of the site. The Chattrapati Shivaji Park is
located adjacent to this shrine on the southern side of the site. A small children’s park is also located further
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 2
south east of the site. The residential colonies of RMS Colony, Ashok Nagar Colony, and Ramakrishna
Nagar are located further south. Main Road No. 3, located south west of the site, connects the site to the new
bypass road.
East: The eastward boundary of the site is open. There is a residential development; a multi-storied
apartment complex of a local private builder; located opposite the eastern boundary. There is an internal 60
ft. wide road that runs parallel to the eastern periphery of the site.
West: Abutting the western periphery of the site is a 40 ft. wide road. Presently, there are LIG residential
houses situated on the west of the site. The residential agglomeration of Defence colony is located nearby.
The Kankarbagh Haat area is located opposite the western corner of the site.
Provided below is a representative map of the Site and its vicinity areas/surroundings:
PART B
SITE INVENTORY
It may be noted that the Nagar Nigam Office building is located in the central part of the site. The eastern
corner of the site has houses a pump house forming part of the subject site. These structures may be
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 3
demolished by the Developer as its sole discretion and as per the requirement of the Project at its own cost.
PART C
SITE DIMENSIONS & LAYOUT PLAN
Attached herewith is the key plan for indicative purposes only.
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 4
SCHEDULE - II
COMPLETION CERTIFICATE
On the basis of certifications procured by the Developer from various relevant governmental agency
including BSHB, permitting the Developer to commence utilization of the Assets and Project Utilities
constructed upon the Site, We, under and in accordance with the terms of the Development Agreement dated
*** (the “Agreement”), for development of undertaking commercial development over a land area of
approx. 17,200 Square Meters of Land at L - Sector in Kankarbagh, Patna, the undersigned hereby
certifies that the Assets and Project Utilities can be safely and reliably placed in commercial service of the
Users thereof on this the *** day of *** 20**.
SIGNED, SEALED AND DELIVERED
For and on behalf of
the Bihar State Housing Board by:
(Signature)
(Name)
(Designation)
(Address)
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 5
SCHEDULE – III
PERFORMANCE BANK GUARANTEE
The Managing Director,
Bihar State Housing Board
Patna
WHEREAS:
(A) ……………….. (the “Developer”) and the Managing Director, Bihar State Housing Board (the
“BSHB”) have entered into a Development Agreement dated …………….. (the “Development
Agreement”) whereby the BSHB has agreed to the Developer undertaking commercial development over a
land area of approx. 17,200 Square Meters of Land at L - Sector in Kankarbagh, Patna, India, subject to
and in accordance with the provisions of the Development Agreement.
(B) The Development Agreement requires the Developer to furnish a Performance Bank Guarantee to
the BSHB in a sum of Rs. 2,99,00,000/- (Two Crores Ninety Nine Lakhs only) (the “Guarantee
Amount”) as security for due and faithful performance of its obligations, under and in accordance with the
Development Agreement, during the Construction Period (as defined in the Development Agreement).
(C) We, ………………….. through our Branch at …………………. (the “Bank”) have agreed to
furnish this Bank Guarantee by way of Performance Bank Guarantee.
NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees and affirms as follows:
1. The Bank hereby unconditionally and irrevocably guarantees the due and faithful performance of
the Developer’s obligations during the Construction Period, under and in accordance with the Development
Agreement, and agrees and undertakes to pay to the BSHB, upon its mere first written demand, and without
any demur, reservation, recourse, contest or protest, and without any reference to the Developer, such sum or
sums upto an aggregate sum of the Guarantee Amount as the BSHB shall claim, without the BSHB being
required to prove or to show grounds or reasons for its demand and/or for the sum specified therein.
2. A letter from the BSHB, under the hand of an Officer not below the rank of Managing Director in
the Bihar State Housing Board, that the Developer has committed default in the due and faithful
performance of all or any of its obligations under and in accordance with the Development Agreement shall
be conclusive, final and binding on the Bank. The Bank further agrees that the BSHB shall be the sole judge
as to whether the Developer is in default in due and faithful performance of its obligations during the
Construction Period under the Development Agreement and its decision that the Developer is in default shall
be final, and binding on the Bank, notwithstanding any differences between the BSHB and the Developer, or
any dispute between them pending before any court, tribunal, arbitrators or any other authority or body, or
by the discharge of the Developer for any reason whatsoever.
3. In order to give effect to this Guarantee, the BSHB shall be entitled to act as if the Bank were the
principal debtor and any change in the constitution of the Developer and/or the Bank, whether by their
absorption with any other body or corporation or otherwise, shall not in any way or manner affect the
liability or obligation of the Bank under this Guarantee.
4. It shall not be necessary, and the Bank hereby waives any necessity, for the BSHB to proceed
against the Developer before presenting to the Bank its demand under this Guarantee.
5. The BSHB shall have the liberty, without affecting in any manner the liability of the Bank under this
Guarantee, to vary at any time, the terms and conditions of the Development Agreement or to extend the
time or period for the compliance with, fulfillment and/ or performance of all or any of the obligations of the
Developer contained in the Development Agreement or to postpone for any time, and from time to time, any
of the rights and powers exercisable by the BSHB against the Developer, and either to enforce or forbear
from enforcing any of the terms and conditions contained in the Development Agreement and/or the
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 6
securities available to the BSHB, and the Bank shall not be released from its liability and obligation under
these presents by any exercise by the BSHB of the liberty with reference to the matters aforesaid or by
reason of time being given to the Developer or any other forbearance, indulgence, act or omission on the part
of the BSHB or of any other matter or thing whatsoever which under any law relating to sureties and
guarantors would but for this provision have the effect of releasing the Bank from its liability and obligation
under this Guarantee and the Bank hereby waives all of its rights under any such law.
6. This Guarantee is in addition to and not in substitution of any other guarantee or security now or
which may hereafter be held by the BSHB in respect of or relating to the Development Agreement or for the
fulfillment, compliance and/or performance of all or any of the obligations of the Developer under the
Development Agreement.
7. Notwithstanding anything contained hereinbefore, the liability of the Bank under this Guarantee is
restricted to the Guarantee Amount and this Guarantee will remain in force until 6 months after the issuance
of the Completion Certificate by BSHB in terms of the Development Agreement and unless a demand or
claim in writing is made by the BSHB on the Bank under this Guarantee, no later than 21 days from the date
of expiry of this Guarantee, all rights of the BSHB under this Guarantee shall be forfeited and the Bank shall
be relieved from its liabilities hereunder.
8. The Performance Bank Guarantee shall cease to be in force and effect when the BSHB shall have
issued Completion Certificate in terms of the Development Agreement, and provided the Developer is not in
breach of the Development Agreement. Upon request made by the Developer for release of the Performance
Bank Guarantee along with the particulars required by BSHB, the BSHB shall release the Performance Bank
Guarantee forthwith.
9. The Bank undertakes not to revoke this Guarantee during its currency, except with the previous
express consent of the BSHB in writing, and declares and warrants that it has the power to issue this
Guarantee and the undersigned has full powers to do so on behalf of the Bank.
10. Any notice by way of request, demand or otherwise hereunder may be sent by post addressed to the
Bank at its above referred Branch, which shall be deemed to have been duly authorized to receive such
notice and to effect payment thereof forthwith, and if sent by post it shall be deemed to have been given at
the time when it ought to have been delivered in due course of post and in proving such notice, when given
by post, it shall be sufficient to prove that the envelope containing the notice was posted and a certificate
signed by an officer of the BSHB that the envelope was so posted shall be conclusive.
11. This Guarantee shall come into force with immediate effect and shall remain in force and effect until
the expiry of 6 months after the issuance of the Completion Certificate by BSHB.
Signed and sealed this ………. day of ……….., 20……… at ………..
SIGNED, SEALED AND DELIVERED
For and on behalf of
the BANK by:
(Signature)
(Name)
(Designation)
(Code Number)
(Address)
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 7
NOTES:
The bank guarantee should contain the name, designation and code number of the officer(s) signing the
guarantee.
The address, telephone number and other details of the Head Office of the Bank as well as of issuing Branch
should be mentioned on the covering letter of issuing Branch.
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 8
ANNEXURE A
LEASE DEED
This Lease Deed (hereinafter referred to as the "Lease Deed") made on this _____ day of __________ 2013
By And Between:
1) THE BIHAR STATE HOUSING BOARD, established under the Bihar State Housing Board Act,
1982, represented by its Managing Director and having its principal office at 6, Sardar Patel Marg, Patna
- 800015(hereinafter referred to as "BSHB" or the "Lessor", which expression shall, unless repugnant
to or inconsistent with the context or meaning thereof, mean and include its administrators,
successors and assigns) of the FIRST PART;
AND
2) (a)* M/s _______________, a Company registered under the Companies Act, 1956 having
its Registered Office at ____________ (mention full address) and Incorporation Certificate No.________
dt. _____.
(hereinafter referred to as "Developer" or the "Lessee", which expression shall, unless repugnant to
or inconsistent with the context or meaning thereof ,mean and include its successors, liquidators
and permitted assigns) of the SECOND PART.
(BSHB and the Developer shall hereinafter individually be referred to as a "Party" and collectively as
"Parties").
WHEREAS
A. Pursuant to the Development Agreement dated [insert], BSHB granted to the Developer the right to
undertake the development of Assets and Project Utilities upon the Site in accordance with the
terms and conditions thereof.
B. Therefore, for purposes of and in accordance with the provisions of the Development
Agreement, the Developer proposes to take on lease from BSHB and BSHB proposes to lease to the
Developer, the Site (as specified in Schedule - I of the Development Agreement) on the terms and
conditions set out herein.
NOW THEREFORE, in consideration of the foregoing and the respective covenants and agreements set
forth in this Lease Deed and other consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 9
ARTICLE I
1.1 Definitions
In this Lease Deed, the following words and expressions shall, unless repugnant to the context or meaning
thereof, have the meaning hereinafter respectively assigned to them:
"Development Agreement" shall mean the agreement dated [insert] entered into between BSHB and the
Developer.
"Appointed Date" shall mean the date of execution of this Lease Deed.
"Lease Period" shall have the meaning ascribed to the term in Section 5.1.1.
"Parties" shall have the meaning ascribed to the term in the preamble to this Lease Deed.
"Party" shall have the meaning ascribed to the term in the preamble to this Lease Deed.
"Possession" shall have the meaning ascribed in Section 2.1.2;
"Site" shall have the meaning ascribed to the term in Section 2.1.1;
The words and expressions beginning with or in capital letters used in this Lease Deed and not defined
herein and defined in the Development Agreement shall, unless repugnant to the context, have the
meaning respectively assigned to them in the Development Agreement.
1.2 Interpretation
In this Lease Deed, unless the context otherwise requires, the rules of interpretation as specified in
Section 1.2 of the Development Agreement shall apply. In case of any inconsistency between the
provisions of this Lease Deed and the provisions of the Development Agreement, the provision of
Development Agreement shall prevail. The Development Agreement executed on………………. form
part integral part of this Lease Deed and shall govern the inter-se relations of the Parties hereto.
1.3 The terms and conditions contained in the Development Agreement executed on……………, in
so far as they relate to the Site and the lease thereof, shall mutatis mutandis, apply to this Lease Deed.
ARTICLE II
2. GRANT OF LEASE
2.1 Lease of the Site
2.1.1 The Lessor, in accordance with the terms and conditions set forth herein, hereby, demise, grant
to the Lessee, commencing from the date hereof, the Lease Rights on the land (along with any
immovable assets, if any, thereon) which is described, delineated, and shown in the Schedule
hereto (hereinafter referred to as the "Site") to hold the said Site, together with all and singular
rights, liberties, privileges, easements, appurtenances and encumbrances what so ever to the
said Site, hereditaments or premises or any part thereof belonging to or in any way appurtenant
Bihar State Housing Board Request for Proposal-Bid Document
Volume –III: Schedules
Development of Commercial Property at L- Sector in Kankarbagh, Patna 10
thereto or enjoyed therewith strictly on an “as is where is basis”, for the duration of the Lease
Period for the sole purpose as provided in the Development Agreement and the Lessee's
obligations there under, and for such other purposes as are permitted under this Lease Deed.
2.1.2 Handing over of the Site by BSHB to the Developer shall be governed as specified in the
Development Agreement. Notwithstanding such handover of possession, the Developer shall
not have any claim whatsoever against BSHB with respect to the Site or any change in the Site
from the date of such handing over.
2.2 Subject to and in accordance with the terms of this Lease Deed and those set out in the
Development Agreement, the Lessee shall have the right and be at liberty to develop, construct,
erect, renovate, repair, alter, or otherwise deal with the Site in accordance with the provision of
the Development Agreement.
2.3 The grant of Lease in terms of this Deed shall entitle the Developer to develop the Project in
terms of the Development Agreement.
2.4 It is hereby expressly understood and recorded between the Parties that mining rights cannot,
and do not, form part of the lease granted to the Lessee under this Lease Deed and the Lessee
hereby acknowledges that it does not, and shall not, have any mining rights under this Lease
Deed or any interest in the underlying minerals, if any.
2.5 The Parties agree that BSHB further reserves to itself, provided that the same is not inconsistent
with the development in accordance with this Lease Deed, the right to grant any easements over
or rights of access or rights of way on, over, under, through or across the Site for:
i. the purpose of supply of electricity, gas, telecommunication cables, water, sewerage,
drainage or other services and utilities; or
ii. the provision of transport or other services to the public.
ARTICLE III
3. USAGE
The Lessee hereby expressly covenants and agrees that, throughout the Lease Period, it shall only
use the Site strictly in accordance with the terms and conditions of the Development Agreement
and this Lease Deed.
ARTICLE IV
4. CONSIDERATION
In consideration for the grant of the Lease by the Lessor to the Lessee under this Lease Deed, the
Lessee shall pay to the Lessor Annual Lease Rent at the rate of Rs. 1,50,000/- (Rupees One
Lakh Fifty Thousand only) annually to the BSHB in accordance with Clause 6.2 of
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 11
Development Agreement. The Annual Lease Rent for the initial year shall be paid before
execution of this Deed, and for every subsequent year the Annual Lease Rent shall be payable by
the end of the first month (i.e. January) of the year failing which penal interest at the rate of 18%
shall be charged for the period of default. The Annual Lease Rent shall be paid by the Developer
till the expiry of the Lease Period of the Lease Deed.
ARTICLE V
5. LEASE PERIOD, LEASE PREMIUM, LEASE RENT AND REVERSION AND RE-ENTRY
5.1 Lease Period
5.1.1 The Lease in pursuance of this Lease Deed shall be for a period of 30 (Thirty) years as specified
in the Development Agreement and to be reckoned from the Appointed Date as defined in the
Development Agreement (the "Lease Period"). Notwithstanding anything contained in this
Lease Deed, lease shall be terminated upon expiry of the Lease Period automatically or early
termination of the Development Agreement without requiring any act, deed or thing on part of
either Party. The lease under this Lease Deed shall neither be renewed nor extended in under any
circumstance whatsoever save and except in the manner provided in the Development Agreement
i.e. renewable for further period 30 (thirty) years subject to payment of Renewal Premium.
5.1.2. Lessee shall have right to transfer the Lease of built up area, grant Sub-Lease, License or enter
into similar arrangements as prescribed in the Development Agreement. Such Sub-Lease,
License or similar arrangements shall be co-terminus with the Lease Deed, Development
Agreement. For the avoidance of doubt, it is clarified that the Developer shall enter into a
sub-lease deed, on or after the achievement of Commercial Operation of the Project, with the
sub-lessees according to the terms and condition of Development Agreement and as per BSHB
rules.
5.1.3. Lessee shall pay the Lease Premium and Annual Lease Rent as provided in the Development
Agreement.
5.1.2 The Lease and/ or Sub-leases shall be renewed on the terms and conditions of Development
Agreement and upon payment of Renewal Premium, Lease Premium and enhanced lease rent and
other conditions contained therein.
5.1.3 The Lease, Sub-Lease, License or similar arrangement for enjoyment of built up area shall be
granted and transferable in a manner provided in the Development Agreement subject to payment
of applicable Transfer Dividend as prescribed in the Development Agreement.
5.2. Reversion
5.2.1 On expiry of the Lease Period, in case the same is not renewed/ extended in terms of the provisions
of Development Agreement or early termination of this Lease Deed, for any reason what so ever,
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 12
the Site, together with all the Assets, buildings, Project Utilities, other utilities and services,
fixtures, all or any singular rights, liberties, privileges, easements and appurtenances whatsoever to
the Site, hereditaments or premises or any part thereof belonging to or in any-way appurtenant
thereto or enjoyed therewith, shall revert to the Lessor or be treated in the manner set forth in the
Development Agreement.
5.2.2 The Lessee shall have only leasehold interests in relation to the Site and shall have no title to the
Site, and the Lessee agrees and acknowledges that it has only leasehold interests in the land,
built-up structures and all other assets erected on the Site to carry out the Project as envisaged in the
Development Agreement.
ARTICLE VI
6. TAXES AND DUTIES
6.1 The Lessee shall, without any limitation, pay all Taxes and other charges, dues,
assessments or outgoings payable in respect of the lease hereunder, the Site or the
structures to be constructed thereon or in respect of the materials stored therein which may be
levied by any Governmental Authority, local authority or other persons from time to time.
Furthermore, any stamp duty, registration charges or other fees, taxes or charges of any kind
whatsoever pertaining to this Lease Deed and execution thereof shall also be borne by the Lessee.
6.2 The Lessee hereby undertakes and confirms that it shall indemnify and keep indemnified the Lessor
from and against all actions, demands, claims, liabilities, losses, damages, costs, expenses and
other liabilities whatsoever brought against, suffered or incurred by the Less or resulting from or by
reason of breach, non-observance or non-performance by the Lessee of any of its obligations set out
in this Article VI.
6.3 The Lessee shall also pay any penalty or damages levied by the Lessor for any default or
non-compliance of the terms and conditions of the Development Agreement and this Lease Deed by
the Lessee.
ARTICLE VII
7. LESSEE'S WARRANTIES
7.1 The Lessee hereby represents, warrants, acknowledges and undertakes, to and for the benefit of
the Lessor, that:
7.1.1 Lessee is duly registered company under the provisions of the Companies Act, 1956 and
authorized and competent to execute into Development Agreement and this Lease Deed and
executed under the valid and proper resolution passed by its board of directors.
7.1.2 Throughout the Lease Period, it shall undertake the development in accordance with
the provisions of the Development Agreement.
7.1.3 It shall use the Site only for the Project as provided in terms of the Development
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 13
Agreement.
7.1.4 It shall obtain or cause to be obtained and shall maintain throughout the Lease Period all
regulatory approvals, clearances, permits and consents, including any and all
environmental approvals, clearances, permits or consents that may be required in order for
the Lessee to undertake its obligations in accordance with the terms of the Development
Agreement.
7.1.5 It shall not do or permit to be done on the Site or the structures thereon, any activities,
which may be contrary to any Applicable Law and Applicable Permits and it shall in
enjoyment of its rights hereunder and fulfillment of its obligations hereunder, shall
always comply with the Applicable Law and Applicable Permits.
7.1.6 It shall regularly pay the Annual Lease Rent as provided for under Section 4.1
hereinabove and shall observe, abide by and fulfill each of its obligations and covenants set
forth herein.
7.1.7 It shall indemnify the Lessor in respect of any applicable charges, deposits and other monies
levied by third parties for and in relation to the provision by such third parties to the
Lessee of water, electricity, telephone, communication facilities and other utilities and
services.
7.1.7 It shall (i) keep and maintain the Site and the buildings and structures thereon in good and
habitable condition at all times and(ii) shall ensure that the Site will be free from
encroachments at all times.
7.1.8 It has conducted due diligence of the Site, along with all structures thereon, and confirms that the
Site along with the structures thereon are fit for the Project. It acknowledges that it shall have no
recourse against the Lessor if at any time, it is found that the Site along with the structures thereon
are deficient in any manner whatsoever or not fit for the Project.
ARTICLE VIII
8. LESSOR'S WARRANTIES
8.1 The Lessor hereby represents, warrants and undertakes, to and for the benefit of the Lessee, that:
8.1.1 BHSB has valid title to the Site and it has the power and authority to grant the lease.
8.1.2 Subject to the fulfillment of Lessee's obligations hereunder and under the Development
Agreement, the Lessee shall, at all times during the Lease Period, hold and enjoy the Site and
the rights specified in this Lease Deed without any interruption or disturbance by (i) the
Lessor; or (ii) any person lawfully claiming through, under or in trust for the Lessor.
8.1.3 During the Lease Period, it shall not take or cause any action or engage in any activities that
will interfere with the construction, installation, operation, inspection, maintenance, repair
and business by the Lessee undertaken in accordance with the provisions of
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 14
the Development Agreement.
ARTICLE IX
9. MISCELLANEOUS
9.1 Notices
All notices, requests, demands or other communication required or permitted to be given under this
Lease Deed and the provisions contained herein shall be written in English and shall be deemed to
be duly sent by registered post, or transmitted by facsimile transmission or email to the other
Parties if the same has been sent to the address and in the manner as provided in the Development
Agreement.
9.2. All the terms and conditions of Development Agreement executed on…………… between the
Parties shall mutate mutandis apply to this Lease Deed. The provisions of Lease Deed and
Development Agreement shall be construed harmoniously and in case of any contradiction
provisions of Development Agreement shall prevail.
9.3 Dispute resolution
Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in
relation to the Lease Deed (including its interpretation) between the Parties shall be resolved in
accordance with the provision of the Development Agreement. This Section 9.2 shall survive the
termination or expiry of the Lease Deed.
9.4 Governing Law and jurisdiction
This Agreement shall be construed and interpreted in accordance with and governed by the laws of
India, and subject to Article IX, the Courts at Patna alone shall have exclusive jurisdiction over
all matters arising out of or relating to this Agreement.
9.5 Amendment
No variation, waiver, amendment or modification of any of the terms of this Lease Deed shall be
valid unless in writing and signed by both Parties.
9.6 No Waiver
Waiver by any Party of a default by another Party in the observance and performance of any
provision of or obligations under the Lease Deed:
(a) shall not operate or be construed as a waiver of any other or subsequent default
hereof or of other provisions of or obligations under the Lease Deed;
(b) shall not be effective unless it is in writing and executed by a duly authorized
representative of the Party; and
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 15
(c) shall not affect the validity or enforceability of the Lease Deed in any manner.
Neither the failure by either Party to insist on any occasion upon the performance of the terms,
conditions and provisions of the Lease Deed or any obligation thereunder nor time or other
indulgence granted by a Party to another Party shall be treated or deemed as waiver of such
breach or acceptance of any variation or the relinquishment of any such right hereunder.
9.7 Severability
The invalidity or enforceability, for any reason, of any part of this Lease Deed shall not
prejudice or affect the validity or enforceability of the remainder. For abundant caution, it is
expressly clarified that if any provision of this Lease Deed is declared to be invalid,
unenforceable or illegal by any competent arbitral tribunal or court, such invalidity,
unenforceability or illegality shall not prejudice or affect the remaining provisions of this Lease
Deed, which shall continue in full force and effect.
9.8 Language
The language and all documents, notices, waivers and any other written communication or
otherwise between the Parties, in connection with the Lease Deed shall be in English.
9.9 Indemnity
The Lessee hereby indemnifies and shall keep indemnified the Lessor from and against all actions,
demands, claims, liabilities, losses, damages, costs, expenses and other liabilities whatsoever
brought against, suffered or incurred by the Lessor resulting from or by reason of (i) any breach of
any representation, warranty or covenant of the Lessee in this Lease Deed; and (ii) any breach,
non-observance or non-performance by the Lessee of any of its obligations under this Lease Deed
or those required in law in relation to the Site. In the event that the Lessor hereto receives a
claims or demands from a third party in respect of which it is entitled to the benefit of an
indemnity under Section 9.8 or in respect of which it is entitled to reimbursement (the
"Indemnified Party"), it shall notify the Lessee of such claim hereunder (the "Indemnifying
Party") within 15 (fifteen) days of receipt of the claim and/ or shall not settle or pay the claim/
demand without the prior approval of the Indemnifying Party, which approval shall not be
unreasonably withheld or delayed. In the event that the Indemnifying Party wishes to contest or
dispute the claim, it may conduct the proceedings in the name of the Indemnified Party and at its
(Indemnifying Party's) risk, costs and expense. The Indemnified Party shall provide all
cooperation and assistance in contesting any claim and shall sign all such writings and
documents as the Indemnifying Party may reasonably require.
9.10 Assignment and sub-lease
The Lessee shall not transfer, assign, sub-lease, part with possession of or Encumber the Site,
structures thereon, Assets and its rights hereunder, to any person, except to the extent provided for
in the Development Agreement. Lessee shall have the right to transfer the Commercial
Property or part thereof on Sub-Lease, License or let-out on tenancy or similar relation basis.
Sub-Lease Deed shall be executed (the “Sub-Lease Deed”), on or after the achievement of
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Commercial Operation of the Project, with the sub-lessees as per the key provisions contained
in Annexure B.
9.11 Power to inspect
9.11.1. The Lessee shall permit the Lessor and its duly authorized representative to enter upon the
Site and the works or structures for the time being constructed or standing thereon to view and
inspect the same without BSHB being obliged to do such inspection or to intimate any defect.
9.11.2. No such inspection or communication of comments or non-communication of comments
by BSHB shall amount to validation or approval or acceptance by BSHB of the
construction by the Developer or its confirmation to the Applicable Law, Applicable
Permits and the terms of
this Development Agreement or waiver by BSHB of any breach by the Developer. It shall
be the obligation of the Developer alone to supervise the construction and to ensure that
the construction is being carried out in conformity with the Applicable Law, Applicable
Permits
and the terms of the Development Agreement.
9.12 Lessee not Lessor's Agents
Nothing in this Lease Deed, whether express or implied, constitutes the Lessee as the agent of
the Lessor in respect of any matter or action taken, or vice-versa.
IN WITNESS WHEREOF, the Parties hereto have executed this Lease Deed at the place and on the
date first above written.
Signed for and on behalf of the LESSOR Signed for and on behalf of the LESSEE
Name:
Designation:
Name:
Designation
Witnesse
Witnesses:
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ANNEXURE B
SUBSTITUTION AGREEMENT
This substitution agreement (hereinafter referred to as "Substitution Agreement") is
entered into on this the [ ] day of [ ], 2013
AMONGST
1) THE BIHAR STATE HOUSING BOARD, established under the Bihar State Housing Board
Act, 1982, represented by its Managing Director and having its principal office at 6, Sardar
Patel Marg, Patna - 800015 (hereinafter referred to as "BSHB", which expression shall, unless
repugnant to or inconsistent with the context or meaning thereof, mean and
include its successors and assigns) of the FIRST PART;
2) (a)* M/s _______________, a Company incorporated under the Indian Companies Act,
1956 having its Registered Office at ____________ (mention full address) and Incorporation
Certificate No.________ dt. _____.
(hereinafter referred to as "Developer" which expression shall, unless repugnant to or
inconsistent with the context or meaning thereof, mean and include its successors,
liquidators and permitted assigns) of the SECOND PART; and
3) [insert name and particulars of Lenders' Representative] [description about
incorporation]and having its registered office at [insert],acting for and on behalf of
the Lenders listed in Appendix 1 hereto as their duly authorized agent with regard
to matters arising out of or in relation to the Substitution Agreement
(hereinafter referred to as the "Lenders' Representative", which
expression shall, unless repugnant to or inconsistent with the context or
meaning thereof, mean and include its successors and substitutes) of
the THIRD PART.
WHEREAS:
(A) BSHB has entered into a Development Agreement dated [ __ ] and Lease Deed
date………..with the Developer(the “Development Agreement"), whereby BSHB has
granted to the Developer rights in terms of the Development Agreement to undertake the
Project upon the Site as defined in the Development Agreement annexed hereto, as
Appendix 2.
(B) As per the provisions of the Development Agreement, it is agreed by and between BSHB
and the Developer that BSHB shall grant Lease Rights of the Site to the Developer in
accordance with the Development Agreement, with the execution of a separate lease deed
(the "Lease Deed"). The Lenders have agreed to finance the Project in accordance with
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the terms and conditions set forth in the respective Financing Agreements.
(C) The Lenders have requested BSHB to enter into the Substitution Agreement for securing
their interests through assignment, transfer of the Grant and substitution of the Developer
by a Nominated Company in accordance with the provisions of the Substitution Agreement
and the Development Agreement.
(D) In order to enable implementation of the Project including its financing and construction,
BSHB has agreed and undertaken to transfer and assign the Grant to a Nominated Company
in accordance with the terms and conditions set forth in the Substitution Agreement and the
Development Agreement.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions
and understandings set forth in this Substitution Agreement and other good and valuable
consideration (the receipt and adequacy of which are hereby mutually acknowledged), the
Parties, with the intent to be legally bound, hereby agree as follows:-
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In the Substitution Agreement, the following words and expressions shall, unless repugnant
to the context or meaning thereof, have the meaning hereinafter respectively assigned to
them:
"Claimant" shall have the meaning ascribed to the term in Section 8.4.2 hereof;
"Financial Default" means occurrence of a material breach of the terms and
conditions of the Financing Agreements or a continuous default in Debt Service by
the Developer for 3 (three) months;
"Development Agreement" shall have the meaning ascribed to the term in the foregoing
Recitals;
"Lenders" means financial institutions, banks, multilateral funding agencies, and similar
bodies undertaking lending business or their trustees/agents including their successors and
assignees, who have agreed to guarantee or provide finance to the Developer under any of
the Financing Agreements for meeting the costs of the Developer in relation to the design,
development and construction of the Assets and Project Utilities;
"Lenders' Representative" means the person referred to as the Lenders'
Representative in the foregoing Recitals;
"Lenders' Substitution Notice" shall have the meaning ascribed to the term in Section
3.2.3;
"Lenders' Substitution Representation" shall have the meaning ascribed to the
term in Section 3.3.2;
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"Nominated Company" means a company, incorporated under the provisions of the
Companies Act, 1956, selected in accordance with the provisions hereof by the Lenders'
Representative, on behalf of the Lenders, and proposed to BSHB for assignment/transfer
of the Grant as provided in the Substitution Agreement;
"Notice of Financial Default" shall have the meaning ascribed thereto in Section 3.2.1;
"Notice of Intent" shall have the meaning ascribed to the term in Section 8.4.2;
"Novation" shall mean the process or the act of replacing the Developer in any agreement or
Sub-Contract in respect of the Project by another party such that the contract transferred by
the novation process transfers all rights, duties and obligations from the Developer, original
obligor, to the new obligor.
"Parties" means the parties to the Substitution Agreement collectively and "Party" shall
mean any of the Parties to the Substitution Agreement individually.
"Respondent" shall have the meaning ascribed to the term in Section 8.4.2;
"Substitution" is the process of replacement of a Nominated Company in place of the
Developer by undertaking the following activities:
a. Grant, to the Nominated Company, the right to develop, design, finance,
construct, operate and maintain the Project (including entering into sub-
contracts), under and in accordance with the terms and conditions set forth in the
Development Agreement and upon the execution of the Lease Deed in accordance
thereof, for the remainder of the Lease Period, by the Novation of the Development
Agreement in favour of the Nominated Company;
b. Grant, to the Nominated Company, the leasehold interest over the Site together with
the Assets and Project Utilities all or any singular rights, liberties, privileges,
easements and appurtenances whatsoever to the Site, for the remainder of the
Lease Period, by the Novation of the Lease Deed in the event of execution of the same
in favour of the Nominated Company;
c. Novation of the contracts and any other agreement needed to be novated for the
purpose of implementing and operating the Project in accordance with the terms and
conditions set forth in the Development Agreement and Lease Deed.
d. The execution of a new Substitution Agreement with the Nominated Company for the
remainder of the Lease Period on the same terms and conditions hereof;
e. Transfer by the Developer all its rights and obligations as provided in the
Development Agreement and in the event the Lease Deed is executed between the
Developer and BSHB, transfer of all rights thereof including possession of all Assets and
Project Utilities of the Project to the Nominated Company;
f. Grant by BSHB to the Nominated Company of all approvals, clearances and
permissions within BSHB's power and necessary for implementing and operating the
Project, provided duly completed application in accordance with Applicable Law is
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submitted to BSHB; and
g. Transfer by the Developer all sub-contracts and Sub-Lease Deeds including its rights and
obligations thereof to the Nominated Company.
"Substitution Agreement" means the Substitution Agreement and any amendment thereto
made in accordance with the provisions contained in the Substitution Agreement;
1.2 Interpretation
1.2.1 References to Lenders' Representative shall, unless repugnant to the context or meaning
thereof, mean references to the Lenders' Representative, acting for and on behalf of the
Lenders.
1.2.2 References to Articles are, unless stated otherwise, references to Articles of the Substitution
Agreement.
1.2.3 The words and expressions beginning with capital letters and defined in the Substitution
Agreement shall have the meaning ascribed thereto herein, and the words and expressions
used in the Substitution Agreement and not defined herein but defined in the Development
Agreement shall, unless repugnant to the context, have the meaning ascribed thereto in the
Development Agreement.
1.2.4 The rules of interpretation stated in Section 1.2 of the Development Agreement, Lease Deed
shall apply, mutatis mutandis, to the Substitution Agreement.
ARTICLE II
ASSIGNMENT
2.1 Assignment of rights and title
The Developer hereby assigns the rights, title and interest in the Grant to, and in favour of,
the Lenders' Representative pursuant to and in accordance with the provisions of the
Substitution Agreement and the Development Agreement by way of security in respect of
financing by the Lenders under the Financing Agreement.
ARTICLE III
SUBSTITUTION OF THE DEVELOPER
3.1 Rights of substitution
3.1.1 Pursuant to the rights, title and interest assigned under Section 2.1, the Lenders'
Representative shall be entitled to substitute the Developer by a Nominated Company under
and in accordance with the provisions of the Substitution Agreement and the Development
Agreement.
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3.1.2 BSHB hereby agrees to substitute the Developer by assignment of the Development
Agreement in favour of the Nominated Company selected by the Lenders' Representative in
accordance with the Substitution Agreement. For the avoidance of doubt, it is clarified that the
Lenders or the Lenders' Representative, either individually or collectively, shall not be entitled
to operate as the Developer.
3.2 Substitution upon occurrence of Financial Default
3.2.1 Upon occurrence of a Financial Default, the Lenders' Representative may issue a notice to the
Developer (the "Notice of Financial Default") along with particulars thereof, and send a copy
to BSHB for its information and record. A Notice of Financial Default under this Article III
shall be conclusive evidence of such Financial Default and it shall be final and binding upon
the Developer for the purposes of the Substitution Agreement.
3.2.2 Upon issue of a Notice of Financial Default hereunder, the Lenders' Representative may,
without prejudice to any of its rights or remedies under the Substitution Agreement or the
Financing Agreements, substitute the Developer by a Nominated Company in accordance
with the provisions of the Substitution Agreement.
3.2.3 At any time after the Lenders' Representative has issued a Notice of Financial Default, it may
make a representation to BSHB, stating that it intends to substitute the Developer by a
Nominated Company ("Lenders' Substitution Notice"). The Lenders' Representative shall be
entitled to undertake and complete the substitution of the Developer by a Nominated
Company in accordance with the provisions of the Substitution Agreement and
the Development Agreement within a period of 180 (one hundred and eighty) days from
the date of Lenders' Substitution Notice, and BSHB shall withhold Termination due to
any Developer Event of Default for the aforesaid period of 180 (one hundred and eighty)
days, and the Developer shall continue to discharge its obligations thereunder for such
period. Lenders' Representative shall forthwith send a copy of the aforesaid Lenders'
Substitution Notice to the Developer.
3.3 Substitution upon occurrence of Developer Event of Default
3.3.1 Upon occurrence of a Developer Event of Default, BSHB shall, by sending a copy of the
Termination Notice to the Lenders' Representative, inform of its intention to terminate the
Development Agreement and grant 15 (fifteen) days’ time to the Lenders' Representative to
make a representation, stating its intention to substitute the Developer by a Nominated
Company.
3.3.2 In the event that the Lenders' Representative make a representation to BSHB within the
period of 15 (fifteen) days specified in Section 3.3.1, stating that it intends to substitute the
Developer by a Nominated Company ("Lenders' Substitution Representation"), the Lenders'
Representative shall be entitled to undertake and complete the substitution of the
Developer by a Nominated Company in accordance with the provisions of the Substitution
Agreement and the Development Agreement within a period of 180 (one hundred and
eighty) days from the date of issue of Lenders' Substitution Representation, and BSHB shall
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withhold Termination for the aforesaid period of 180 (one hundred and eighty) days, and the
Developer shall continue to discharge its obligations there under for such period. Lenders'
Representative shall forthwith send a copy of the Lenders' Substitution Representation to the
Developer.
3.4 Procedure for substitution
3.4.1 BSHB and the Developer hereby agree that on or after the date of Lenders' Substitution
Notice under Section 3.2.3 and/or Lenders' Substitution Representation Section 3.3.2, as the
case may be, the Lenders' Representative may, without prejudice to any of the other rights or
remedies of the Lenders under the Financing Agreements, invite, negotiate and procure offers
for selection of the Nominated Company for the take over and transfer of the Grant to the
Nominated Company upon such Nominated Company's assumption of the liabilities and
obligations of the Developer towards BSHB under the Development Agreement and towards
the Lenders under the Financing Agreements, subject to such Nominated
Company conforming to the qualification criteria prescribed by BSHB at the time of
selection of the Developer. The Nominated Company shall have to bear all the liabilities of
the Developer in terms of the Development Agreement, Financing Agreement, Sub-Lease
Deeds and contracts with the Sub-contractors which shall include but not be limited to
overdue and future payments towards taxes to be paid to the Government, repayment
or refunds to third parties, Annual Lease Rents to be paid to BSHB, Liquidated Damages
to be paid to BSHB, payment to Subcontractors relating to the Project, expenses incurred and
claims by BSHB on the Project due to the Developer's default in terms of the Development
Agreement to be paid to BSHB, servicing of Debt Due to the Lenders.
3.4.2 Upon selection of a Nominated Company, the Lenders' Representative shall request BSHB to:
(a) transfer the Grant to the Nominated Company, on the same terms and conditions,
for the remainder of the Lease Period of the Development Agreement; and
(b) enter into a new Substitution Agreement with the Lenders' Representative and the
Nominated Company on the same terms as are contained in the Substitution
Agreement.
3.4.3 If BSHB has any objection to the transfer of Grant in favour of the Nominated Company in
accordance with the Substitution Agreement, it shall within a period of 30 (thirty) days from
the date of receipt of proposal made by the Lenders' Representative, give a reasoned
decision as regards the acceptability (or objection, as the case may be) of the Nominated
Company. In the event the Nominated Company is acceptable to BSHB, BSHB shall transfer
the Grant within 15 (fifteen) days of its acceptance of the Nominated Company; provided
that in the event of an objection by BSHB, the Lenders' Representative may propose another
Nominated Company whereupon the procedure set forth in this Section 3.4 shall be
followed for substitution of such Nominated Company in place of the Developer.
Provided that it is expressly agreed between the Parties hereto that in any event the process of
Substitution of the Developer shall be completed within a period of 180 (one hundred and
eighty)days from the date of Lenders' Substitution Notice or Lenders' Substitution
Representation.
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3.5 Selection to be binding
3.5.1 The decision of BSHB in selection of the Nominated Company or the approval of the
Nominated Company selected by the Lenders' Representative shall be final and binding on
the Developer and shall be deemed to have been made with the concurrence of the
Developer. The Developer irrevocably agrees and waives any right to challenge the actions of
the Lenders' Representative or the Lenders or BSHB taken pursuant to the Substitution
Agreement including the transfer/assignment of the Grant in favour of the Nominated
Company. It is hereby acknowledged by the Parties that the rights of BSHB and the Lenders'
Representative are irrevocable and the Developer shall have no right or remedy to prevent,
obstruct or restrain BSHB or the Lenders' Representative from effecting or causing the
transfer by substitution and endorsement of the Grant as requested by the Lenders'
Representative or as undertaken by BSHB. No consultation, concurrence or approval with or
of the Developer will be required for such substitution.
3.5.2 All actions of the Lenders' Representative and/or BSHB hereunder shall be deemed to be by
and on behalf of, and expressly authorized by, the Lenders, and be binding upon them.
3.6 Substitution by Nominated Company in other agreements
The Developer shall ensure and procure that each agreement or contract it enters with any
third party in relation to the Grant contains provisions that entitle the Nominated Company
to step into such agreement, in its discretion, in place and substitution of the Developer in the
event of such Nominated Company's assumption of the liabilities and obligations of the
Developer under the Development Agreement. The Nominated Company shall assume the
rights and obligations of the Developer in all such agreements and contracts including
Sub-Lease Deeds pursuant to its receiving the Grant from BSHB.
ARTICLE IV
LENDER'S REPRESENTATIVE'S FAILURE TO SUBSTITUTE
4.1 In the event that no company is nominated by the Lenders' Representative or the company
selected by the Lenders' Representative in terms of Section 3.5 within the period of 180 (one
hundred and eighty) days from the Lenders' Substitution Notice under Section 3.2.3 or the
Lenders' Substitution Representation under Section 3.3.2, is not acceptable to BSHB, it shall
be entitled to terminate the Development Agreement.
ARTICLE V
Deleted
ARTICLE VI
DURATION OF THE AGREEMENT
6.1 Duration of the Substitution Agreement
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The Substitution Agreement shall come into force from the date hereof and shall expire with
the Expiry of the Development Agreement. However the rights and obligations of the
Lenders shall cease to exist on the occurrence of the following events, whichever is earlier:
(i)termination of the Financing Agreements; or
(ii) no sum remains to be advanced, or is outstanding to the Lenders, under the
Financing Agreements; or
(iii) expiry of the Lease Period of the Development Agreement.
ARTICLE VII
INDEMNITY
7.1 General indemnity
7.1.1 The Developer hereby indemnifies and agrees and undertakes to, at all times, indemnify,
defend and hold BSHB and the Lenders' Representative harmless against any and all
proceedings, actions and third party claims or demands for any loss, damage, cost and expense
of whatever kind and nature arising out of any breach by the Developer of any of its obligations
under the Substitution Agreement or the Development Agreement on account of failure of the
Developer to comply with Applicable Laws and Applicable Permits.
7.1.2 BSHB hereby indemnifies and agrees and undertakes to, at all times, indemnify, defend and hold
the Lenders' Representative harmless against any and all proceedings, actions and third party
claims or demands for any loss, damage, cost and expense arising out of failure of BSHB to
fulfill any of its material obligations under the Substitution Agreement, other than any loss,
damage, cost and expense, arising out of lawful acts done in discharge of their functions by
BSHB, its officers, servants and agents.
7.1.3 The Lenders' Representative hereby indemnifies and agrees and undertakes to, at all times,
indemnify, defend and hold BSHB and the Developer harmless against any
and all proceedings, actions and third party claims or demands for any loss, damage, cost
and expense arising out of failure of the Lenders' Representative to fulfill its obligations under
the Substitution Agreement, materially and adversely affecting the
performance of the Developer's obligations or BSHB's obligation under the Development
Agreement or the Substitution Agreement, other than any loss, damage, cost and expense,
arising out of lawful acts done in discharge of their functions by the Lenders' Representative, its
officers, servants and agents.
7.2 Notice and contest of claims
In the event that any Party hereto receives a claims or demands from a third party in respect of
which it is entitled to the benefit of an indemnity under Section 6.1 or in respect of which it is
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entitled to reimbursement (the "'Indemnified Party"), it shall notify the other Party
responsible for indemnifying such claim hereunder (the "'Indemnifying Party") within 15
(fifteen) days of receipt of the claim and/ or shall not settle or pay the claim/ demand
without the prior approval of the Indemnifying Party, which approval shall not be
unreasonably withheld or delayed. In the event that the Indemnifying Party wishes to
contest or dispute the claim, it may conduct the proceedings in the name of the Indemnified
Party and at its (Indemnifying Party's) risk, costs and expense. The Indemnified Party shall
provide all cooperation and assistance in contesting any claim and shall sign all such writings and
documents as the Indemnifying Party may reasonably require.
ARTICLE VIII
DISPUTE RESOLUTION
8.1 DISPUTE RESOLUTION
8.1.1 Disputes-Amicable Settlement
The Parties shall use their respective reasonable endeavors to settle any Dispute amicably.
If a Dispute is not resolved within sixty (60) days after written notice of a Dispute by one
Party to the other Party, then the provisions of Clause 26.2 of Development Agreement shall
apply.
8.1.2 Dispute resolution
Any dispute, difference or controversy, of whatever nature howsoever arising under or
out of or in relation to this Substitution Agreement (including its interpretation) between
the Parties, and so notified in writing by either Party to the other Party (the "Dispute")
shall, in the first instance, be attempted to be resolved amicably in accordance with the
conciliation procedure set forth in Clause 8.1.3 herein below. The Parties agree to use their
best efforts for resolving all Disputes arising under or in respect of this Substitution
Agreement promptly, equitably and in good faith, and further agree to provide each other
with reasonable access during normal business hours to all non-privileged records,
information and data pertaining to any Dispute.
8.1.3 Conciliation
In the event of any Dispute between the Parties, the disputing Parties may call upon each
other amicable settlement and upon such reference, the disputing Parties shall meet no
later than 10 (ten) days from the date of reference to discuss and attempt to amicably resolve the
Dispute. If such meeting does not take place within the 10 (ten) day period or the Dispute is not
amicably settled within 15 (fifteen) days of the meeting or the Dispute is not resolved as
evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in
writing referred to in Clause 8.1.2 or such longer period as may be mutually agreed by the
Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of
Clause 8.2 here-in-below.
8.2 Arbitration
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8.2.2 Any Dispute, which is not resolved amicably by conciliation, as provided in Clause 8.1.3, shall
be finally decided by reference to arbitration by an Arbitral Tribunal appointed in accordance
with Clause 8.2.2. Such arbitration shall be held in accordance with the Rules of Arbitration of
the International Centre for Alternative Dispute Resolution, New Delhi (the "Rules"), or such
other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the
Arbitration and Conciliation Act, 1996. The governing law of the arbitration shall be the laws of
India. The venue of such arbitration shall be Patna, and the language of arbitration proceedings
shall be English.
8.2.3 A notice of the intent (the "Notice of Intent") to refer the dispute to arbitration may be given by
one Party [the "Claimant(s)"] to the other Party [the "Respondent(s)"]. There shall be an Arbitral
Tribunal consisting of three (3) arbitrators. The Claimant(s) and Respondent(s) shall be entitled
to appoint one arbitrator each and the third arbitrator shall be appointed by the two arbitrators so
appointed, and in the event of disagreement between the two arbitrators, the appointment shall
be made in accordance with the Rules.
8.2.4 The Arbitral Tribunal shall make a reasoned award (the "Award"). Any Award made in any
arbitration held pursuant to this Article VIII of Development Agreement shall be final and
binding on the Claimant(s) and Respondent(s) as from the date it is made, and the Parties hereto
agree and undertake to obey and implement such Award without delay.
8.3 Continued Performance
While any Dispute under this Substitution Agreement is pending, including the
commencement and pendency of any Dispute referred to arbitration, the Parties shall
continue to perform all of their respective obligations under this Substitution
Agreement without prejudice to the final determination in accordance with the provisions
under this Article VIII. This Article VIII shall survive the termination or expiry of the
Substitution Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Governing law and jurisdiction
The Substitution Agreement shall be construed and interpreted in accordance with and
governed by the laws of India, and subject to Article VIII, the Courts at Patna alone shall have
exclusive jurisdiction over all matters arising out of or relating to the Substitution Agreement.
9.2 Priority of agreements
In case of any conflict between the provisions of the Development Agreement and the
Substitution Agreement, the provision of the Development Agreement shall have an over-riding
effect over the provisions of the Substitution Agreement and the provisions of the Substitution
Agreement shall be deemed to have been modified to the extent to give effect to the provisions of
the Development Agreement
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9.3 Alteration of terms
All additions, amendments, modifications and variations to the Substitution Agreement shall be
effectual and binding only if in writing and signed by the duly authorized representatives of the
Parties.
9.4 Waiver
9.4.1 Waiver by any Party of a default by another Party in the observance and performance of any
provision of or obligations under the Substitution Agreement:
(a) shall not operate or be construed as a waiver of any other or subsequent default hereof or of
other provisions of or obligations under the Substitution Agreement;
(b) shall not be effective unless it is in writing and executed by a duly authorized
representative of the Party; and
(c) shall not affect the validity or enforceability of the Substitution Agreement in any manner.
9.4.2 Neither the failure by either Party to insist on any occasion upon the performance of the
terms, conditions and provisions of the Substitution Agreement or any obligation there under
nor time or other indulgence granted by a Party to another Party shall be treated or deemed
as waiver of such breach or acceptance of any variation or the relinquishment of any such
right hereunder.
9.5 No third party beneficiaries
The Substitution Agreement is solely for the benefit of the Parties and no other person or
entity shall have any rights hereunder.
9.6 Survival
9.6.1 Termination of the Substitution Agreement:
(a) shall not relieve the Parties of any obligations hereunder which expressly or by
implication survive termination hereof; and
(b) except as otherwise provided in any provision of the Substitution Agreement
expressly limiting the liability of either Party, shall not relieve either Party of any obligations
or liabilities for loss or damage to the other Party arising out of or caused by acts or omissions
of such Party prior to the effectiveness of such termination or arising out of such termination.
9.7 Severability
If for any reason whatever any provision of the Substitution Agreement is or becomes
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invalid, illegal or unenforceable or is declared by any court of competent jurisdiction or any
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected in any manner, and the
Parties will negotiate in good faith with a view to agreeing to one or more provisions which
may be substituted for such invalid, unenforceable or illegal provisions, as nearly as is
practicable to such invalid, illegal or unenforceable provision. Failure to agree upon any such
provisions shall not be subject to dispute resolution under Article VIII of the Substitution
Agreement or otherwise.
9.8 Successors and assigns
The Substitution Agreement shall be binding on and shall inure to the benefit of the Parties and
their respective successors and permitted assigns.
9.9 Notices
All notices, requests, demands or other communication required or permitted to be given
under this Substitution Agreement and the provisions contained herein shall be written in
English and shall be deemed to be duly sent by registered post, or transmitted by facsimile
transmission or email to the other Parties at the address indicated below:
(i)In the case of BSHB, to:
ATTN. OF: Mr. A. K. Suman, IRS
DESIGNATION: Managing Director
ADDRESS: Bihar State Housing Board
6, Sardar Patel Marg
Patna- 800 015 FAX NO: (0612) 2217992
E-MAIL ADDRESS: contactbshb@gmail.com
(ii)In the case of notices to Developer, to:
ATTN. OF: _________________
DESIGNATION: _________________
ADDRESS: _________________
_________________
FAX NO: _________________
E-MAIL ADDRESS: _________________ (iii) In the case of notices to Lenders' Representative, to:
ATTN. OF: _________________
DESIGNATION: _________________
ADDRESS: _________________
_________________
FAX NO: _________________
E-MAIL ADDRESS: _________________
or at such other address as the Party to whom such notices, requests, demands or other
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 29
communication is to be given shall have last notified the Party giving the same in the manner
provided in this Section, but no such change of address shall be deemed to have been given until
it is actually received by the Party sought to be charged with the knowledge of its contents. Any
notice, request, demand or other communication delivered to the Party to whom it is addressed
as provided in this Section 9.9 shall be deemed (unless there is evidence that it has been received
earlier) to have been given and received, if:
(i) Sent by registered post, 3 (Three) Business Days after posting it; and
(ii) Sent by facsimile or e-mail, on the next Business Day, when confirmation of its transmission has been
recorded by the sender's facsimile machine or e-mail account.
9.10 Language
All notices, certificates, correspondence and proceedings under or in connection with the
Substitution Agreement shall be in English.
9.11 Authorized representatives
Each of the Parties shall by notice in writing designate their respective authorized
representatives through whom only all communications shall be made. A Party hereto shall be
entitled to remove and/or substitute or make fresh appointment of such authorized
representative by similar notice.
9.12 Original Document
The Substitution Agreement may be executed in three counterparts, each of which when
executed and delivered shall constitute an original of the Substitution Agreement.
IN WITNESS WHEREOF the Substitution Agreement has been executed by the duly
authorized representatives of the Parties hereto at the place and on the date first above written.
SIGNED AND DELIVERED FOR AND ON BEHALF OF
BY: ______________
Name:
Title:
SIGNED AND DELIVERED FOR AND BEHALF OF DEVELOPER
BY:
Name: Title:
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 30
SIGNED AND DELIVERED FOR AND ON BEHALF OF LENDERS' REPRESENTATIVE
BY: ______________
Name: Title
Witnesses
1.
Name:
Address:
2.
Name:
Address:
APPENDIX 1 & 2 TO THE SUBSTITUTION AGREEMENT
LENDERS (List to be provided as per the Financing Agreement when they are signed)
Copy of Development Agreement
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 31
ANNEXURE – C
Salient Features of the Sub-Lease/ Sub-License
1. The Developer shall be solely responsible for the due performance of its obligations as
specified in the Development Agreement and the Sub-Lease Deed including but not limited to
its obligations pertaining to the timely completion of the construction of the Assets and
Project Utilities, and BSHB shall not be held liable for any claims pursuant to any loss and/or
damages suffered by the sub-lessees or any third party on account of Developer's
performance or non-performance of its obligations pursuant to the terms of the Sub-Lease
Deed.
2. The Consideration for the Sub-Lease shall be paid through account payee cheque in the
nominated account (the "Nominated Account") of the Developer. Any payment made in
a way other than through the Nominated Account shall not be acknowledged as part of the
consideration to the Sub-Lease Deed. The consideration for the sub-lease shall be structured to
have following components:
(i) There shall be a provision of interest free and refundable Security Deposit to be paid
by the Sub-Lessee prior to execution of the Sub-lease Deed. This Security Deposit
shall be returned to the Sub-Lessee on expiry of the sub-lease period or on
termination of the sub- lease prior to the expiry, after delivery of vacant physical
possession by the Sub-lessee, and any amount remains after making adjustments of all
outstanding payments.
(ii) A provision for monthly sub-lease rent to be paid in advance in the first week of the
month.
3. The consideration in a Sub-Lease Deed may be structured with a one-time upfront payment
of monthly sub-lease rent specified here above. However the amount of monthly sub-lease
rent shall still be provided in the Sub-Lease Deed. Such onetime upfront payment may also
be taken in a fixed number of installments. The payment structure shall be so designed that
the present value of all monthly sub-lease rents for the entire period of sub-lease is same as
the present value of the upfront onetime payment taken from the Sub-Lessee on the date of
execution of the Sub-Lease Deed. The present value shall be computed on the basis of an
annual discount rate of 12% (twelve percent).
4. In the event of Termination of the Development Agreement and/or Substitution of the
Developer by the Nominated Company, as the case may be, prior to the Project Completion
Date, all of the Developer's rights and interests in and to the work-in-progress and/or
incomplete Assets and Project Utilities in terms of this Development Agreement shall
automatically vest in BSHB and Lease Deed shall stand terminated, In such an event, BSHB,
may, in its sole discretion, have the right to cancel the Letter of Allotment for grant of sub
lease to the third party without incurring any kind of liability.
5. It shall contain a covenant that the third party with whom the Sub -Lease Deed is
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executed, has perused all the documents pertaining to the Project and has been made
aware of the Developer's rights and obligations pursuant to the Development Agreement.
6. In the event of Termination of the Development Agreement and/or Substitution of the
Developer by the Nominated Company, as the case may be, after the Project Completion
Date but prior to scheduled expiry of the Lease Period, all of the Developer's rights and
interests in the Assets and Project Utilities in terms of this Development Agreement shall
automatically vest in BSHB and Lease Deed shall stand terminated. Upon the vesting of the
Assets and Public Utilities as aforesaid, all Sub-Lease Deeds, all sub-contracts and all other
rights and obligations of the Developer with respect to third party contracts in relation to the
Project, shall either;
(i) automatically stand attorned in favour of BSHB, which shall step in
as the Developer/ sub-lessor/ principal contractor and the third parties/ Sub-Lessees/
Sub-Contractors shall fulfill and perform all their obligations under the Sub-Lease
Deed or sub-contracts or third party contracts towards BSHB as the
Developer/sub-lessor; or
(ii) stand terminated at the sole option of BSHB or the Nominated Company, as the case
may be, without incurring any kind of liability on such third party.
7. The term of the sub-lease shall not exceed beyond the Lease Period of the Development
Agreement. Sub-leases shall be renewed on the terms and conditions of Development
Agreement subject to payment of Renewal Premium, Lease Premium and enhanced Annual
Lease Rent and other conditions contained therein.
8. The Sub-Lease Deed shall contain a clause with regard to the payment schedule according to
which the payment shall be made by the Sub-lessee.
9. All terms and conditions of the Lease Deed and Development Agreement and RFP shall be
incorporated in the sub-lease, license or similar arrangements to be entered by the
Lessee/Developer.
The above list is indicative and not exhaustive.
Bihar State Housing Board Request for Proposal-Bid Document
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ANNEXURE D
Joint Handing Over Note
------joint note to be developer at the time of handover-----------
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ANNEXURE- E
OPERATION & MAINTENANCE STANDARDS FOR PROJECT FACILITIES
A. General & Design Related
1. The designing of the commercial development structures should allow for best possible design
aesthetics in terms of building designs, building façade, floor to floor heights, column free
spaces, natural circulation and lighting etc. The extension of spaces beyond the plinth
areas/floor plates in form of extended balconies etc. shall not be allowed in any form.
2. The designing of the commercial development structures should be undertaken in a manner as
to ensure maximum adherence to building safety standards with regards to structural strength,
earthquake resistance, etc. In addition, the building designs and structures should meet all
requisite guidelines stipulated by Fire Department, Airport Authority, etc. as applicable.
3. The developments should also provide adequate parking spaces within the premises, either in
the form of stilt parking, underground parking, elevated parking or parking spaces in the
boundary areas. The parking requirement from commercial development users and visitors,
having two wheelers and/or four wheelers should be sufficiently provided for by the developer.
The instances of overflow of parking to surrounding areas should be mitigated to the maximum
possible extent.
4. The commercial development should provide for adequate circulation and logistics spaces for
movement of personnel, equipment, machinery, stocks, etc. In addition, the commercial
development should provide adequate open spaces such as basic landscaping, greenery,
pathway etc.
5. The developer should provide adequate spaces for maintenance areas & make provisions for
ensuring round the clock services with regards to internal and external maintenance of the
development. Provisions for proper spaces for housekeeping & cleaning, garbage disposal,
power back up, common area maintenance etc., should be provided by the developer to ensure
hygienic conditions within internal and external spaces of the commercial development.
B. Finishing, Fitment & Fitout Related
1) The developer should endeavor to provide ‘best in class’ facilities with respect to air
conditioning systems, fire-fighting systems, building management systems, security systems
etc., ensuring smooth, automated & least obstructive everyday operations.
2) In case of bare shell structures, the internal fitment and fit outs such as wall finishing,
fire-fighting sprinklers, internal wiring & electrical connections, etc. should be provided as per
the acceptable industry standards, ensuring long term utility and minimalistic maintenance
requirements from actual tenants.
3) In case of warm shell/ready to move in structures, internal fitments, as well as furnishings and
fittings such as electrical plugs/sockets, switches, wiring for telecommunication connections
(such as internal phone lines, broadband wiring, wi-fi wiring etc.) should be provided by
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developer in adherence to acceptable industry standards ensuring minimalistic, recurring
maintenance requirements from actual tenants.
C. Minimum Maintenance Standards
During the Operation Period, the Developer shall be required to do the following:
1) The Developer shall be solely responsible for undertaking regular maintenance of the Assets
and Project Utilities developed on the Site as per the Applicable Law and Good Industry
Practices. In addition, the Developer shall also be required to undertaken periodic major
maintenance for remodelling/refurbishing/renovating internal and external structures as well as
for undertaking major repairs, replacement and maintenance of structures, machinery &
equipment forming part of Assets and project Utilities. The frequency of periodic maintenance
shall be decided as per acceptable industry standards for similar infrastructure facilities.
2) The Developer would be required to undertake commercial development as per environment
friendly norms and shall make provisions for rain water harvesting, effluence & sewage
treatment, etc. as deemed necessary for the commercial development as per acceptable industry
standards.
3) The Developer r would maintain conformity to the established standards & norms for Effluence
Discharge and Treatment as laid down by the Central Public Health Engineering &
Environment Organization/Central Pollution Control Board / State Pollution Control
Board/Patna Municipal Corporation, or any other competent authority, whichever applicable
4) The Developer would maintain conformity to the established standards & norms for Emissions
and Noise Control as prescribed by the Central Pollution Control Board / State Pollution
Control Board/Patna Municipal Corporation, or any other competent authority, whichever
applicable
5) The Developer would maintain conformity to the established standards & norms for
Fire-fighting, fire alarm and fire detection as laid down under the latest edition of National
Building Code
6) The Developer would maintain conformity to the stipulated standards & guidelines for
Disposal of Solid Waste as prescribed by the Central Pollution Control Board / State Pollution
Control Board/Patna Municipal Corporation, or any other competent authority, whichever
applicable
7) The Developer would maintain conformity to the stated guidelines for Air Conditioning,
Heating, Lighting, Illumination, etc. as mentioned in the latest edition of National Building
Code
8) Parking spaces, lift spaces, service areas, circulation spaces and open spaces to be maintained
by Developer as per the guidelines prescribed by the Patna Municipal Corporation/ Patna
Development Authority or as per acceptable norms established by similar Central/State level
Development Authorities/Agencies.
9) In specific instances wherein standards and norms for provision and maintenance of project
facilities /services are not clearly formulated or defined by the State level or city level relevant
agency or authority, provision and maintenance of all services/project facilities would be
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Development of Commercial Property at L- Sector in Kankarbagh, Patna 36
undertaken by the Developer in line with relevant national standards and norms prescribed by
National level agencies and relevant competent National Authorities.
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