Draft EPC Agreement
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
between
Public Works Department
Government of Kerala
and
(Contractor)
for
TAGORE CULTURAL CENTRE AT THIRUVANANTHAPURAM, KERALA
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Draft EPC Agreement
This Engineering, Procurement and Construction Agreement entered into on this the _____ day of___________ (Month), Two Thousand and Four at Thiruvananthapuram,
BETWEEN
The Governor of Kerala acting through the Secretary, Public Works Department, Government of Kerala, having its office at South Block, Secretariat, Thirnvananthapuram695001, hereinafter referred to as “PWD”, which expression shall unless repugnant to the context include its successors and assigns, OF THE ONE PART,
AND
Companies Act,
a company/firm incorporated under provisions of the 1956, or a partnership firm1 having its registered office at
hereinafter referred to as “Contractor” which expression shall to the context include its successors and permitted assigns, OF THE
unless repugnant
OTHER PART.
WHEREAS,
A. The Tagore Theatre and the land adjoining thereto admeasuring approximately 6 acres at Vcllayambalam, Thirnvananthapuram, Kerala, more fully described in Schedule 1 (hereinafter referred to as ‘the Site’), is owned by the Government of Kerala;
B. PWD is keen to implement a project envisaging upgradation of the Existing Works (as hereinafter defined) more particularly described in Para (2) of Schedule 2 and to construct Additional Works (as hereinafter defined) more particularly described in Para (3) of Schedule 2 at the Site. The Existing Works and the Additional Works shall be collectively referred to as “the Works”;
C. PWD has carried out project development work in connection with the Works, including engineering studies, assessment of feasibility and preparation of project report;
D. PWD invited competitive proposals from eligible Persons for executing the Works and in response thereto, PWD received proposals from several Persons including the Contractor for executing the Works;
E. PWD after evaluating the above proposals, accepted the proposal submitted by the
Contractor and issued a Letter of Acceptance dated to the Contractor;
In case of a registered partnership firm, the Agreement would be required to be signed by the partner in whose name a resolution has been passed authorising him to sign the Agreement
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F. The Contractor has acknowledged the said Letter of Acceptance vide his letter dated _______ to PWD;
G. In terms of the said Letter of Acceptance, the Parties hereto are required to enter into an Engineering, Procurement and Construction (EPC) Agreement being these presents to record the terms, conditions and covenants subject to which the Contractor shall execute the Works.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, the words and expressions defined below shall have the meanings assigned to them respectively, except where the context requires otherwise:
“Agreement” means this Agreement, and includes any amendments hereto made in accordance with the provisions hereof.
“Additional Works” shall have the meaning ascribed to it in Para 3 of Schedule 2
“Applicable Law” shall mean any statute, law, regulation, ordinance, rule, judgement, rule of common law, clearance, order, decree, by-law, directive, guideline, policy, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration having the force of law of any of the foregoing by any government authority having jurisdiction over the matter in question, whether in effect as of the date of this Agreement or thereafter.
“Commencement Date” shall mean the date on which all the following conditions have been fulfilled:
a. PWD has delivered physical possession of the Site to the Contractor, free from encumbrance;
b. PWD has paid the Mobilisation Advance to the Contactor; and
c. Contractor has furnished the Performance Security.
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“Completion Certificate” shall mean the certificate issued by Project Engineer certifying, inter alia, that the Contractor has executed the Works as per the Construction Requirements.
“Construction Period” means the period commencing on the Commencement Date till the Taking over Date.
“Construction Requirements” shall mean the requirements as to construction of the Works as set out in Schedule 6.
“Contract Price” means the fixed sum of Rs. ___________ payable to the Contractor in accordance with Schedule 3.
“Defects Liability Period” means a period of 12 months commencing from Taking over Date.
“Drawings” shall mean all of the plans, manuals, drawings, designs, calculations, samples, models and documents pertaining to the Works in connection with the execution of the Works.
“Existing Works” shall have the meaning ascribed to it in Para 2 of Schedule 2
“Force Majeure” or “Force Majeure Event” means an act, event, condition, or occurrence as specified in Article 12.
“GoK” shall mean Government of Kcrala
“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight in compliance with the undertakings and obligations under this Agreement which would reasonably and ordinarily be expected of a skilled and an experienced person engaged in the implementation, operation and maintenance or supervision or monitoring thereof of any of them of a project similar to that of the Works.
“Material Adverse Effect” means a material adverse effect on (a) the ability of the Contractor to exercise any of its rights or perform/discharge any of its duties/obligations under and in accordance with the provisions of this Agreement and/or (b) the legality, validity, binding nature or enforceability of this Agreement.
“Mobilization Advance” shall mean the initial advance payable by PWD to the Contractor to the extent specified in Serial No 2A of Schedule 3.
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“Parties” shall mean the parties to this Agreement and “Party” means either of them, as the context may admit or require.
“Performance Security” shall have the meaning ascribed thereto in Article 4.2.
“Person” shall mean (unless otherwise specified or required by the context), any individual, company, corporation, partnership, joint venture, trust, unincorporated organisation, government or government agency or any other legal entity.
“Project Engineer” shall mean a reputed Person appointed by PWD, for supervision and monitoring of compliance by the Contractor with the Construction Requirements, more particularly to undertake, perform, carry out the duties, responsibilities, services and activities set forth in Schedule 5.
“Retention Money” shall mean the amount retained by PWD out of the Contract Price, till the expiry of the Defects Liability Period, to the extant specified in Serial no H in Schedule 3.
“Schedule of Payments” means the schedule of payments specified in Schedule 3.
“Scheduled Project Completion Date” means 18 months from the Commencement Date, including such additional period by which Scheduled Project Completion Date is extended pursuant to Section 5.2 of this Agreement.
“Site” means the immovable property of the description provided in Schedule 1 on which the Works arc required to be executed by the Contractor in accordance with this Agreement.
“Stage Payments” shall mean the payments required to be made by PWD to the Contractor upon completion of each stage of the Works in accordance with Schedule 3
“Stage Completion Certificate” shall mean the certificate issued by the Project Engineer in accordance with Article 7.1
“Taking Over Date” means the day on which Completion Certificate is issued by the Project Engineer.
“Tax” shall mean and includes all taxes, cesscs, duties, levies that may be payable by the Contractor under Applicable Law.
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“Termination” shall mean early termination of this Agreement pursuant to Termination Notice or otherwise in accordance with the provisions of this Agreement but shall not, unless the context otherwise requires, include expiry of this Agreement due to efflux of time in the normal course.
“Termination Date” shall mean the date specified in the Termination Notice as the date on which Termination occurs.
“Termination Notice” shall mean the notice of Termination by either Party to the other Party, in accordance with the applicable provisions of this Agreement.
“Tests” shall mean the tests specified in Part B of Schedule 6 to be carried out by the Contractor in accordance with the Construction Requirements and if not expressly specified, as instructed by the Project Engineer.
“Works” shall mean collectively the Existing Works and the Additional Works.
1.1 Interpretation
a. the words importing singular shall include plural and vice versa, and words denoting natural persons shall include partnerships, firms, companies, corporations, joint ventures, trusts, associations, organisations or other entities (whether or not having a separate legal entity);
b. the headings are for convenience of reference only and shall not be used in, and shall not affect, the construction or interpretation of this Agreement;
c. the words “include” and “including” arc to be construed without limitation;
d. any reference to day, month or year shall mean a reference to a calendar day, 30 days or 365 days respectively;
e. the Schedules to this Agreement form an integral part of this Agreement as though they were expressly set out in the body of this Agreement. In case of any discrepancy between the Schedule and the body of the Agreement, the latter shall prevail.
f. any reference at any time to any agreement, deed, instrument, license or document of any description shall be construed as reference to that agreement, deed, instrument, license or other document as amended, varied, supplemented, modified or suspended at the time of such reference;
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g. references to recitals, Articles, sub-articles, clauses, or Schedules in this Agreement shall, except where the context otherwise requires, be deemed to be references to recitals, Articles, sub-articles, clauses and Schedules of or to this Agreement;
h. any agreement, consent, approval, authorisation, notice, communication, information or report required under or pursuant to this Agreement from or by any Party shall be valid and effectual only if it is in writing under the hands of duly authorised representative of such Party in this behalf and not otherwise;
i. any reference to any period commencing “from” a specified day or date and “till” or “until” a specified day or date shall include both such days or dates.
ARTICLE 2
PWD’S RIGHTS AND OBLIGATIONS
2.1 Rights of PWD
In addition to any of the other rights under this Agreement, PWD shall have the following rights:
a. to appoint Project Engineer within 30 days from the date hereof.
b. to terminate this Agreement, at any time, after giving 30 days prior notice to the Contractor; and
c. to exercise such other rights as specified in this Agreement.
2.2 PWD’s Obligations
In addition to any of the other obligations under this Agreement, PWD shall have the following obligations:
a. to deliver or cause to be delivered possession of the Site to the Contractor, within 30 days from the date hereof;
b. to pay Mobilization Advance to the Contractor;
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c. to make prompt payment of the Stage Payments/Contract Price in accordance with Schedule 3 read with Article 7; and
d. to comply with and perform other obligations specified in this Agreement.
ARTICLE 3
PROJECT ENGINEER
3.1 Powers and Duties
In addition to any of his other powers and duties under this Agreement, the Project
Engineer shall have the powers and duties as set out in Schedule 5 of this
Agreement.
ARTICLE 4
CONTRACTOR’ S OBLIGATIONS
4.1 In executing the Works, the Contractor shall at all times be in compliance with all Applicable Law, follow Good Industry Practice and strictly adhere to Construction Requirements.
4.2 Performance Security
(a) The Contractor shall, for due and punctual performance of its obligations under this Agreement procure and furnish a bank guarantee from a scheduled bank acceptable to PWD, in the form as set forth in Schedule 4, (“Performance Security”2) for a sum of Rs. __________/- (Rupees Only) within 30 days hereof
(b) The Performance Security shall be kept valid till cxpiry of the Defects Liability Period.
Provided that if the Agreement is terminated due to any event other than a breach
or default by the Contractor, the Performance Security if subsisting as of the Termination Date, shall, subject to PWD’s right to receive amounts, if any, due from the Contractor under this Agreement, be duly discharged and released to the Contractor.
2 Equal to the mobilisation advance to be paid to the Contractor
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4.3 Payment of Taxes and Compliance with Applicable Laws
The Contractor shall comply with Applicable Law and pay all Taxes and fees required by Applicable Law.
The Contractor shall at their costs obtain all permits, licenses or approvals required for execution of the whole or any part of the Works for otherwise flilfilling any of its obligations under this Agreement.
4.4 Drawings
(a) Preparation of Drawings
(i) The Contractor shall prepare the Drawings, which are necessary for the execution of the Works, which shall be in accordance with the Construction Requirements.
(ii) All Drawings relating to the Works shall be subject to review by the Project Engineer as hereinafter provided in the succeeding sub-article (b).
(b) Review of Drawings
(i) The Contractor shall promptly and in such sequence as is consistent with the Construction Requirements, submit required number of copies of the Drawings to the Project Engineer and PWD.
(ii) By forwarding the Drawings to the Project Engineer and PWD pursuant to the preceding sub-article (i), the Contractor shall be deemed to have represented that it has verified and determined that the Drawings forwarded arc in conformity with the Construction Requirements.
(iii) Within 15 days of receipt of the Drawings, Project Engineer shall review the same taking into account, interalia, comments of PWD, if any, thereon, and convey its comments/observations to the Contractor on the conformity of Drawings with Construction Requirements. If the comments/observations of the Project Engineer indicate that the Drawings arc not in conformity with the Construction Requirements, such Drawings shall be revised by the Contractor to the extent necessary and resubmitted to Project Engineer for further review. The Project Engineer shall give its observations and comments, if any, within 15 (fifteen) days of receipt of
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such revised Drawings, which shall be taken into account by the Contractor while finalising the Drawings.
(iv) If, within the period stipulated in the preceding sub-article (iii), the Project Engineer does not respond to the Drawings submitted to it by the Contractor, the Contractor shall be entitled to proceed with the Works on the basis of such Drawings submitted by it to the Project Engineer.
(v) Notwithstanding any review or failure to review by or the comments/observations of the Project Engineer or PWD, the Contractor shall be solely responsible for the adequacy of the Drawings and their conformity with the Construction Requirements, and shall not be relieved or absolved in any manner whatsoever of any of its obligations as set forth in this Agreement.
(vi) The Contractor shall be responsible for delays in meeting the Construction Requirements caused by reason of any Drawings not being in conformity with the Construction Requirements, and shall not be entitled to seek any relief in that regard from PWD.
(vii) The Contractor shall in consultation with the Project Engineer finalise a detailed implementation schedule for the Works.
(viii) For the issue of the Completion Certificate, the Contractor shall furnish to PWD, “as-built” Drawings of the Works as per Construction Requirements.
(ix) The Contractor shall be responsible for any errors in the Drawings at all times and shall correct/ rectify any defects or damage to the Works due to such error at his cost.
4.5 Construction Works
a. Contractor shall carry out construction activities to complete the Works in accordance with the Drawings finalised as per provisions of sub-article 4.4
b. The Works executed by the Contractor shall be wholly in accordance with the Construction Requirements as set out in Schedule 6.
c. For the purposes of determining that the Works are being undertaken in accordance with the Construction Requirements, the Contractor shall with due diligence carry out all necessary and periodical Tests in accordance with the instructions and under the supervision of the Project Engineer and the Construction Requirements. The Contractor shall maintain proper record of such Tests and the remedial measures taken to cure the defects or deficiencies, if any, indicated by the Test results.
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