Sample Boiler Plate Clauses - PPIAF

1 T o o l k i t f o r P u b l i c - P r i v a t e P a r t n e r s h i p s i n r o a d s & H i g h w a y s Sample Boiler Plate Clauses The Infrastructure and Law website of the World Bank presents a number of check- lists and annotated concession agreements and BOTs. Infrastructure and Law website (UserID and password required; refer Create account for free access). =21759230&menuPK=5099523&piPK=64860384#s ample Sample Clauses are provided hereafter for Boiler Plate provisions described in the previous section. Sample Contractual Clauses on Liability and Indemnification Option 1: Concession Contract: Liability and Indemnity The concessionaire shall indemnify, defend and hold harmless the contracting authority from and against, all liabilities, damages, losses, expenses and claims of any nature whatsoever for personal injury and for damage to or loss of any property arising out of or in any way connected with the indemnifying party's performance of this agreement except to the extent that such injury, damage or loss is attributable to a negligent or reckless act or omission of the party seeking to be indemnified.

2 Environmental Damage The concessionaire shall be liable for, and shall defend, indemnify and hold the contracting authority harmless from and against, all liabilities, damages, losses, expenses and claims caused by environmental contamination from the construction, operation and maintenance of the Project, except when such losses, expenses or claims are solely attributable to the negligent or reckless act or omission of the contracting authority [or to the very existence of the Motorway itself]. Joint Responsibility In the event that any loss or damage referred to in Clause x or y is caused only in part by the negligent or intentional act or omission of the contracting authority and in part by the act or omission of the concessionaire, each party shall be liable to the other only in proportion to its relative degree of fault. odu odu odu odu 1 2 3 4. M. M. M. M.

3 Le le le le Module 4 : Laws and contracts 83. Updated march 2009. T o o l k i t f o r P u b l i c - P r i v a t e P a r t n e r s h i p s i n r o a d s & H i g h w a y s Liability for information provided by the contracting authority The contracting authority makes no warranty in respect of and shall not be held liable for the accuracy of any information, drawings, designs or other documents of whatever nature relating to the Project provided by the contracting authority. Survival The obligations under Clauses x, y, and z above shall survive termination of this agreement . Option 2: O&M Contract: Operator's Indemnity Save to the extent that the Operator is entitled to an indemnity from the DBFO Co under Clause X (the DBFO Co's Indemnities) and subject to Clause Y, the Operator shall indemnify and keep indemnified the DBFO Co from and against any Claims or Losses of any person (including, without limitation, the Secretary of State) if and to the extent that such Claims or Losses arise out of, or in the course of or in connection with a breach of this agreement or other negligence, omission or default by the Operator, its contractors or subcontractors of any tier or agents or its or their employees (save where and to the extent that the Operator is relieved of liability in respect of any such breach, negligence, omission or default by the terms of this agreement )

4 Including but not limited to any breach of the warranties contained in Clause Z or any other act, neglect or omission of the Operator, its contractors or sub-contractors of any tier or agents or its or their employees except and to the extent that action by the DBFO Co in respect of such Claims or Losses is prohibited by the proviso to Clause XX. Option 3: Design Build Contract: 1. Limitation of operator's liability The aggregate liability of Operator to Developer arising from or in connection with this Contract shall in no circumstances whatsoever exceed an amount equal to six months of the Operation Fee due to Operator under Section 2 of Appendix 5. 2 Operator's indemnity Subject to Sections X and Y hereof, Operator shall indemnify and hold harmless Developer and its officers for all damages, costs, claims, suits, liabilities, expenses or actions suffered or incurred by Developer as a consequence of third party claims to the extend caused by any negligent act or default or omission or Operator, its employees, contractors and/or Subcontractors in the performance of its obligation under this Contract.

5 Subject to Sections X and Y hereof, and without prejudice to the generality of Section odu odu odu odu 1 2 3 4. M. M. M. M. le le le le Module 4 : Laws and contracts 84. Updated march 2009. T o o l k i t f o r P u b l i c - P r i v a t e P a r t n e r s h i p s i n r o a d s & H i g h w a y s Hereof, Operator shall indemnify and hold Developer harmless from any fines, penalties and hold Developer harmless from any fines, penalties and similar charges which may be attributed to or imposed on or asserted against Developer by reason of the failure of Operator to comply fully with all Governmental Approvals, save to the extent such failure was caused by an act or omission of Developer (or its agents, employees or contractors). 3. Developer's indemnity Developer shall indemnify and hold harmless Operator and its officers for all damages, costs, claims, suits, liabilities, expenses or actions ( Claims ) suffered or incurred by Operator as a consequence of the performance of the Services to the extent.

6 A Such Claims arise as a result of the negligence or default or omission of a Developer, its employees, agents and/or contractors (other than Operator); or .. b b Such Claims arise in connection with error or defaults in the design and/or c construction of the Toll Road. the c .. d d Option 4:eO&M agreement : . e . Operator'sff Indemnity . The Operator .. g shall indemnify and hold harmless the Company and its officers for all g damages, costs, claims, suits, liabilities expenses or actions suffered or incurred by the Company .. h h as a consequence of third party claims caused by negligence or default or omission by i the Operator in the performance of its obligations under this agreement .. i .. j j Sample Contractual Clauses on Dispute Resolution .. k k Option 1 l .. l .. m m SECTION n governing Law . n The rights and obligations of the parties under or pursuant to the Operational subsidy.

7 O Agreemento shall be governed by and construed in accordance with the laws of the [Host Country]. p . p SECTION .. q q arbitration The parties .. r hereto will use their best efforts to settle amicably all disputes arising r out of or sin connection with the [Project Agreements] or the interpretation thereof. Any dispute . s which cannot be settled amicably within thirty (30) days after receipt by one party .. t of the other party's request to do so may be submitted by either party t to arbitration . Each dispute submitted by the parties to arbitration shall be heard by .. u an arbitration u panel composed of three (3) arbitrators. Each party shall appoint one arbitrator,vand these two will appoint the third arbitrator who shall chair the arbitration . v w odu odu odu odu w 85 1 2 3 4. M. M. M. M. le le le le Module 4 : Laws and contracts . Updated march . x 2009.

8 X T o o l k i t f o r P u b l i c - P r i v a t e P a r t n e r s h i p s i n r o a d s & H i g h w a y s panel. The third arbitrator shall be able to speak English and shall have a knowledge of [host government] law and financial transactions. arbitration proceedings shall be conducted in [Geographic Location] and in accordance with the rules of procedure for arbitration of the United Nations Commission on International Trade Law (UNCITRAL). as in force at the date of the commencement of the arbitration . arbitration shall be conducted in the English language. Any award provided by the arbitral tribunal shall be final and binding unless otherwise decided by the arbitral tribunal. In the event that the two arbitrators appointed by the parties cannot reach agreement on the appointment of the third arbitrator, the President of the International Court of arbitration of the ICC shall be asked to appoint an appropriate person to act as the third arbitrator.

9 The decision of the President of the International Court of arbitration in respect of such appointment shall be binding on the parties. If, and only to the extent that, [Host Country] law fails to address an issue arising under the [Project Agreements], the parties shall authorize the arbitrators to apply relevant international practices. SECTION Multiparty Dispute Resolution The Parties shall agree to join any dispute resolution proceeding under this agreement with any other dispute resolution pending in respect of any other Project Contract relating to substantially the same matter. SECTION Performance During Dispute Resolution Pending the submission of a dispute, controversy or claim to the arbitration Panel and thereafter until the final decision of the arbitration Panel, the Parties shall continue to perform all of their obligations under this agreement , without prejudice to a final adjustment in accordance with such decision.

10 SECTION Waiver of Sovereign Immunity Each Party hereto unconditionally and irrevocably: a agrees that the execution, delivery and performance by it of this agreement and all other agreements, contracts, documents and writings relating to this b agreement constitute private and commercial acts and not public or governmental a acts;. c b agrees that should any proceedings be brought against it or its assets, d than the assets protected by the diplomatic and consular privileges under other c Foreign Sovereign Immunities Act or any analogous legislation ( Exempted the e Assets ) in any jurisdiction, in relation to this agreement or any transaction d . contemplated f by this agreement , no immunity, sovereign or otherwise, from such a e proceedings, executions, attachment or other legal process shall be claimed by or g behalf of itself or with respect to any of its assets (other than the Exempted on bf Assets).