Common use of Procurement of the Site Clause in Contracts

Procurement of the Site. 10.3.1 Pursuant to the notice specified in Clause 4.1.2, the Authority Representative, the Independent Engineer and the Concessionaire shall, on a mutually agreed date and time, inspect the Site and prepare a memorandum containing an inventory of the Site including the vacant and unencumbered land, buildings, structures, road works, trees and any other immovable property on or attached to the Site. Such memorandum shall have appended thereto an appendix (the “Appendix”) specifying in reasonable detail those parts of the Site to which vacant access and Right of Way has not been granted to the Concessionaire. Signing of the memorandum, in two counterparts (each of which shall constitute an original), by the authorised representatives of the Parties shall be deemed to constitute a valid licence and Right of Way to the Concessionaire for free and unrestricted use and development of the vacant and unencumbered Site during the Concession Period under and in accordance with the provisions of this Agreement and for no other purpose whatsoever. For the avoidance of doubt, it is agreed that valid licence and Right of Way with respect to the parts of the Site as set forth in the Appendix shall be deemed to have been granted to the Concessionaire upon vacant access thereto being provided by the Authority to the Concessionaire. 10.3.2 Without prejudice to the provisions of Clause 10.3.1, the Parties hereto agree that on or prior to the Appointed Date, the Authority shall have granted vacant access and Right of Way for minimum 90% of the Construction Zone so that on completion of work in this granted RoW access shall be sufficient to construct and achieve COD of the Project. The Appendix shall not include more than 10% (ten per cent) of the remaining parts of the Construction Zone required and necessary for construction. Further, in the event Financial Close is delayed solely on account of delay in grant of such vacant access and balance Construction Zone, the Authority shall be liable to payment of Damages under and in accordance with the provisions of Clause 4.2. 10.3.3 On and after signing the memorandum and until the Transfer Date, the Concessionaire shall maintain a round-the-clock xxxxx over the Site and shall ensure and procure that no encroachment thereon takes place, and in the event of any encroachment or occupation on any part thereof, the Concessionaire shall report such encroachment or occupation forthwith to the Authority and undertake its removal at its cost and expenses. 10.3.4 The Authority shall make best efforts to provide and grant, no later than 180(one hundred eighty) days from the Appointed Date, the Right of Way to the Concessionaire in respect of all land included in the Appendix, and in the event of delay for any reason beyond 180 days, the works corresponding to RoW in the Appendix not provided shall be removed from the Scope of the Project in accordance with Article 16. 10.3.5 Upon receiving Right of Way in respect of any land included in the Appendix, the Concessionaire shall complete the Construction Works thereon within a reasonable period to be determined by the Independent Engineer in accordance with Good Industry Practice; provided that the issue of Provisional Certificate shall not be affected or delayed on account of vacant access to any part of the Site not being granted to the Concessionaire or any construction on such part of the Site remaining incomplete on the date of Tests on account of the delay or denial of such access thereto. For the avoidance of doubt, it is expressly agreed that Construction Works on all lands for which Right of Way is granted within 120 (one hundred and twenty) days of the Appointed Date shall be completed before the Project Completion Date. It is further agreed that the obligation of the Concessionaire to complete the affected Construction Works shall subsist so long as the Authority continues to pay the Damages specified herein, and upon the Authority ceasing to pay such Damages after giving 60 (sixty) days’ notice thereof to the Concessionaire, the obligation of the Concessionaire to complete such works on such part of the Site shall cease forthwith. 10.3.6 The Concessionaire shall, if so required by the Authority, procure on behalf of the Authority, on the terms and to the extent specified by the Authority, the additional land required for Toll Plazas, Traffic Aid Posts, Medical Aid Posts, under passes and over passes or for construction of works specified in Change of Scope Order issued under Article 16, in accordance with this Agreement and upon procurement, such land shall form part of the Site and vest in the Authority; provided that the Concessionaire may, by notice given to the Authority no later than 60 (sixty) days from the Appointed Date or the date of Change of Scope Order, as the case may be, require the Authority to initiate and undertake proceedings for acquisition of such land under the provisions of the National Highways Act, 1956 and the Authority shall take all such steps as may be reasonably necessary for such land acquisition forthwith; provided further that the cost of land acquired under this Clause 10.3.6 shall be borne by the Authority in accordance with the Act; provided also that the land to be acquired by the Authority hereunder, prior to the Appointed Date, shall be deemed to be included in the Appendix referred to in this Clause 10.3 and dealt with in accordance with the provisions thereof. For the avoidance of doubt, it is agreed that the minimum area of land to be acquired for the Toll Plazas and approach roads thereof shall conform to the provisions of Schedule - B and Schedule - C. It is further agreed that the Authority may, at any time after the Bid Date, suo moto acquire the land required hereunder. 10.3.7 The Concessionaire may procure at its cost and expense and on its own the land that may be required by it for Additional Facilities and the Authority shall have no obligation or liability in respect thereof. For the avoidance of doubt, the Concessionaire shall seek prior consent of the Authority to connect any Additional Facility to the Project Highway and such consent shall not be unreasonably withheld. Provided that cost of procuring such land for construction of additional facilities shall not be the part of Financial Package and the Financial Model.

Procurement of the Site. 10.3.1 Pursuant to the notice specified in Clause 4.1.2, the Authority Representative, the Independent Engineer Railways Representative and the Concessionaire SPD shall, on a mutually agreed date and time, inspect the Site and prepare a memorandum containing an inventory of the Site including the vacant and unencumbered landrooftop space, buildingsassets and equipment on the rooftops, structures, road works, trees and any other immovable property on or attached to the SiteSite (rooftops). Such memorandum shall have appended thereto an appendix (the “Appendix”) specifying in reasonable detail those parts of the Site to which vacant access and Right of Way has not been granted to the ConcessionaireSPD. Signing of the memorandum, in two counterparts (each of which shall constitute an original), by the authorised representatives of the Parties shall shall, subject to the provisions of Clause 10.2.2, be deemed to constitute a valid licence access and Right of Way to the Concessionaire SPD for free and unrestricted use and development of the vacant and unencumbered Site during the Concession Agreement Period under and in accordance with the provisions of this Agreement and for no other purpose whatsoever. For the avoidance of doubt, it is agreed that valid licence access and Right of Way with respect to the parts of the Site as set forth in the Appendix shall be deemed to have been granted to the Concessionaire SPD upon vacant access thereto being provided by the Authority Railways to the ConcessionaireSPD. 10.3.2 Without prejudice to the provisions of Clause 10.3.1, the Parties hereto agree that on or prior to the Appointed Date, the Authority shall have granted vacant access and Right of Way for minimum 90% of the Construction Zone so that on completion of work in this granted RoW access shall be sufficient to construct and achieve COD of the Project. The Appendix shall not include more than 10% (ten per cent) of the remaining parts of the Construction Zone required and necessary for construction. Further, in the event Financial Close is delayed solely on account of delay in grant of such vacant access and balance Construction Zone, the Authority shall be liable to payment of Damages under and in accordance with the provisions of Clause 4.2. 10.3.3 On and after signing the memorandum and until the Transfer Date, the Concessionaire shall maintain a round-the-clock xxxxx over the Site and shall ensure and procure that no encroachment thereon takes place, and in the event of any encroachment or occupation on any part thereof, the Concessionaire shall report such encroachment or occupation forthwith to the Authority and undertake its removal at its cost and expenses. 10.3.4 The Authority Railways shall make best efforts to provide procure and grant, no later than 180(one hundred eighty) [60 (sixty)] days from the Appointed Date, the Right of Way to the Concessionaire SPD in respect of all land access and right of way to the site/s included in the Appendix, and in the event of delay for any reason beyond 180 daysother than Force Majeure or breach of this Agreement by the SPD, it shall pay to the works corresponding to RoW SPD damages in a sum calculated at the Appendix not provided shall be removed rate of Rs.[1,000 (Rupees one thousand)] per day for, commencing from the Scope 91st (ninety first) day of the Project in accordance Appointed Date and until such Right of Way is procured with Article 16. 10.3.5 a limit of upto 20 percent of the bid security. Upon receiving Right of Way in respect Way, the SPD will define the need to undertake construction of any land included in specific infrastructure which needs to be developed and include that as under the AppendixAppendix as well. The SPD shall submit a plan of the required construction work to the Railway Electrical Engineer, get the Concessionaire shall Railway Electrical Engineers sanction for the same and complete the Construction infrastructure development Works thereon within a reasonable period to be determined (proposed by the Independent Engineer SPD and sanctioned by the Railway Electrical Engineer) in accordance with Good Industry Practice; provided that the issue of Provisional Certificate shall not be affected or delayed on account of vacant access to any part of the Site not being granted to the Concessionaire or any construction on such part of the Site remaining incomplete on the date of Tests on account of the delay or denial of such access theretoPractices. For the avoidance of doubt, it is expressly agreed that Construction Works on all lands infrastructure for which Right of Way is granted within 120 60 (one hundred and twentysixty) days of the Appointed Date shall be completed before the Project Completion Date. It is further also expressly agreed that the obligation completion of the Concessionaire to complete the affected respective Construction Works shall subsist so long as within the Authority continues to pay the Damages specified herein, and upon the Authority ceasing to pay such Damages after giving 60 (sixty) days’ notice thereof to the Concessionaire, the obligation of the Concessionaire to complete such works on such part of the Site shall cease forthwith. 10.3.6 The Concessionaire shall, if so required time determined by the Authority, procure on behalf of the Authority, on the terms and to the extent specified by the Authority, the additional land required for Toll Plazas, Traffic Aid Posts, Medical Aid Posts, under passes and over passes or for construction of works specified in Change of Scope Order issued under Article 16, in accordance with this Agreement and upon procurement, such land shall form part of the Site and vest in the Authority; provided that the Concessionaire may, by notice given to the Authority no later than 60 (sixty) days from the Appointed Date or the date of Change of Scope Order, as the case may be, require the Authority to initiate and undertake proceedings for acquisition of such land under the provisions of the National Highways Act, 1956 and the Authority shall take all such steps as may be reasonably necessary for such land acquisition forthwith; provided further that the cost of land acquired under this Clause 10.3.6 shall be borne by the Authority in accordance with the Act; provided also that the land to be acquired by the Authority hereunder, prior to the Appointed Date, Railway Electrical Engineer hereunder shall be deemed to be included in Project Milestones, for the Appendix referred to in this Clause 10.3 purposes of levy and dealt with recovery of Damages under and in accordance with the provisions thereof. For the avoidance of doubt, it is agreed that the minimum area of land to be acquired for the Toll Plazas and approach roads thereof shall conform to the provisions of Schedule - B and Schedule - C. It is further agreed that the Authority may, at any time after the Bid Date, suo moto acquire the land required hereunderin Article 20. 10.3.7 The Concessionaire may procure at its cost and expense and on its own the land that may be required by it for Additional Facilities and the Authority shall have no obligation or liability in respect thereof. For the avoidance of doubt, the Concessionaire shall seek prior consent of the Authority to connect any Additional Facility to the Project Highway and such consent shall not be unreasonably withheld. Provided that cost of procuring such land for construction of additional facilities shall not be the part of Financial Package and the Financial Model.