IMPLEMENTATION AGREEMENT, ENGINEERING ·PROCUREMENT AND CONSTRUCTION AGREEMENT, 영문계약서, 실행계약서

 

IMPLEMENTATION AGREEMENT

[ENGINEERING ·PROCUREMENT AND CONSTRUCTION AGREEMENT]

 

[Name of the Project]

 

 

 

[[AAA] Co., Ltd]

 

 

[[BBB] Corp.]

 

 

 

Dated as of [•],   20[•]

 

 

TABLE OF CONTENTS

 

Page

Article 1 (Purpose of Agreement and Scope of Project) ··································· 1

Article 2 (Definitions) ·········································································· 1

Article 3 (Entrusting/Being Entrusted with Tasks) ········································· 3

Article 4 (Observance of the Concession Agreement and Implementation Plan) ······ 3

Article 5 (Fund-Raising) ······································································· 3

Article 6 (Development Project Cost) ························································ 4

Article 7 (Advance Payment of the Land Price) ············································ 4

Article 8 (Land Price) ·········································································· 5

Article 9 (Responsibility for Taxes and Dues) ·············································· 5

Article 10 (Calculation and Acceptance of the Investment Made) ······················· 5

Article 11 (Advance Supply and Sale of Lots) ·············································· 6

Article 12 (Construction) ······································································ 6

Article 13 (Supervision of Works) ···························································· 8

Article 14 (Construction Period) ······························································ 8

Article 15 (Commencement of Work) ························································ 9

Article 16 (Disposal of Relics, etc.) ·························································· 9

Article 17 (Project Performance Guarantee) ················································ 9

Article 18 (Partial Completion and Approval of Use before Completion) ·············· 9

Article 19 (Timely Completion and Penalty for Delay) ··································· 10

Article 20 (Completion Procedures) ························································· 10

Article 21 (Default Services) ································································· 11

Article 22 (Changes in Implementation Plan and Design) ······························· 11

Article 23 (Transfer of Ownership and Registration of the Land in the Support Area) 12

Article 24 (Maintenance and Management of the Support Area) ······················· 12

Article 25 (Transfer of Public Facilities) ··················································· 12

Article 26 (Business Management) ·························································· 13

Article 27 ([AAA]’s Support) ································································· 14

Article 28 (Implementation of Procedures under Related Laws and Regulations) ···· 14

Article 29 (Compensation) ···································································· 15

Article 30 (Civil Complaints) ································································ 15

Article 31 (Cancellation of Agreement and Management) ······························· 15

Article 32 (Compensation for Damage, etc.) ················································16

Article 33 (Changes in the Implementation Agreement, etc.) ···························· 17

Article 34 (Transfer, Assignment, etc. of Rights and Duties) ···························· 17

Article 35 (Partial Nullification) ····························································· 17

Article 36 (Applicable Rules) ································································ 17

Article 37 (Settlement of Disputes) ························································· 18

Article 38 (Confidentiality) ··································································· 18

Article 39 (Validity of the Agreement) ·······················································19

 

Appendix 1 Location and Area of the Support Area ······································· 20

Appendix 2 Land Use Plan under the Implementation Plan ······························ 21

Appendix 3 Statement of Development Project Cost and Advance Payment of Land Price  22

Appendix 4 Area of the Land to be Sold in Lots ··········································· 23

 

 

 

IMPLEMENTATION AGREEMENT

 

The [AAA] Co., Ltd. (hereinafter referred to as “[AAA]”) and the [BBB] Corporation (hereinafter referred to as “[BBB]”) hereby agree to entrust and to be entrusted, respectively, to implement the [•] Project, for which [AAA] is designated as the Concessionaire by the government in accordance with the [•], and enter into this Implementation Agreement (hereinafter referred to as the “Implementation Agreement”).

 

 

Article 1 (Purpose of Agreement and Scope of Project)

 

(1)         The purpose of this Implementation Agreement is to prescribe matters necessary for [AAA] and [BBB] to entrust and to be entrusted, respectively, with tasks related to the Support Area Project, part of the Private Investment Project for the Development of the [•] New Port, which is based on the [•] Act, the [•] Act, the 20[•] Annual Plan for Private Participation in the Infrastructure of the [•] New Port, the Instructions for Proposal, and the Concession Agreement.

 

(2)         Tasks of the Support Area Project, conducted through entrustment under this Agreement, shall concern the survey and design of the Support Area, compensation for land, construction and other ancillary tasks (hereinafter referred to as “support area development”).

 

Article 2 (Definitions)

 

For the purpose of this Agreement, the terms used in this Agreement, unless otherwise defined herein, shall be based on the definitions under the [•], the Instructions for Proposal, and the Concession Agreement of the Private Investment Project for the Development of the [•] New Port (hereinafter referred to as the “[•] New Port Project”).

 

1.          “Instructions for Proposal” shall mean [•]

2.          “Concession Agreement” shall mean the concession agreement of the Private Investment Project for the Development of the [•] New Port [•],  20[•] signed by and between the government and [AAA].

3.          “Implementation plan” shall mean the implementation plan for the Private Investment Project for the Development of the [•] New Port, for which [AAA] obtained approval from the [Government Agency] Harbor Policy No. [•].

4.          “Support Area (or Support Area)” shall mean the land of [•] square meters ( [•] pyong) to be reclaimed, as shown in Appendix 1, comprising of various land in [•], all adjacent to the port facilities under the Private Investment Project for the Development of the [•] New Port.

5.          “Land Use Plan” under the Implementation Plan shall mean the land use plan under the Implementation Plan (Appendix 2), which is based upon the land use plan of the Support Area (finalized as the [Government Agency’s] Harbor Policy No. [•] on [•], 20[•]).

6.          “Basic Harbor Plan” shall mean the Master Plan of the [•] Port (Master Plan of the [•] New Port), based on the [Government Agency’s] Notice No. [•], dated [•], 20[•].

7.          “Advance” shall mean part or all of the price [AAA] shall receive upon provision of the Support Area to [BBB] pursuant to Article [•] of the [•] Act. In the event [BBB], in turn, supplies the land to end-users, it shall be called “advance from end-users.”

8.          “Sale in lots” shall mean [BBB]’s sale or disposal of the developed Support Area to end-users, etc., and also include the sales or disposal before completion thereof.

9.          “Development project cost” shall mean costs of survey and design, construction (including ground stabilization and maintenance), supervision, measurement (including the creation of the preliminary development drawing), etc., as shown in Appendix 3 (Statement of Development Project Cost and Advance Payment of Land Price), which [BBB] shall bear in connection with the development of the Support Area.

10.        “Advance payment of land price” shall mean the advance payment of the land price, as shown in Appendix 3 (Statement of Development Project Cost and Advance Payment of Land Price), which is the land price, excluding the development project cost.

11.         “Land price” shall mean the price of the land [AAA] is to supply to [BBB].

12.        “Construction period” shall mean the period from the day of the [Government Agency’s] acceptance of the report on commencement of support area construction that [AAA] submits in accordance with the Concession Agreement and the Implementation Plan through the day before application for the confirmation of completion of the support area. 

13.        “Land for sale in lots” shall mean the land [AAA] supplies to [BBB] for value in accordance with this Agreement, as shown in Appendix 4 (Land for Supply for Value of Support Area). However, if there is an increase or decrease in the area due to changes in the Concession Agreement and the Implementation Plan, it shall refer to the increased or decreased area of land. 

 

 

 

Article 3 (Entrusting/Being Entrusted with Tasks)

 

(1)         [AAA] shall entrust the development of the support area to [BBB], pursuant to Article [•] of the Concession Agreement.

(2)         [BBB] shall develop the support area through its own efforts and expenses, and [AAA] shall sell the support area, if developed, to [BBB] at the price equivalent to the land price as stated in Article 8.

(3)         [BBB] shall purchase the support area from [AAA] and sell it in lots to end-users to recover the investment, etc.

(4)         As regards the implementation of the Support Area Project, [AAA] shall retain the rights and duties as the Concessionaire, while [BBB] shall carry out the financing, development and other substantial tasks for implementation of the Support Area Project.

(5)         [AAA] shall neither realize any profits nor bear any losses that might arise from the implementation of the entrusted Support Area Project.

(6)         [AAA] and [BBB] shall sign and execute a separate business agreement, if necessary, for the successful implementation of the Support Area Project pursuant to this Agreement.

 

Article 4 (Observance of the Concession Agreement and Implementation Plan)

 

(1)         In conducting this project, [BBB] shall observe the Concession Agreement and the Implementation Plan signed between [AAA] and the government. The Concession Agreement shall control matters that are not prescribed herein. In the event any content of this Implementation Agreement is not consistent with the Concession Agreement and the Implementation Plan, it shall be deemed that such inconsistent parts are so modified as to comply with the Concession Agreement and the Implementation Plan.

(2)         [BBB] shall observe all terms and conditions of the Implementation Plan concerning the land use plan, designs, environmental impact assessment, traffic impact assessment, energy use plan, etc.

 

Article 5 (Fund-Raising)

 

[BBB] shall raise funds for the development project cost, advance payment for land, etc., related to the development of the support area, under its own responsibilities and expenses.

 

 

Article 6 (Development Project Cost)

 

(1)         The development project cost that [BBB] is to bear under this Agreement shall be [•] won, based on the constant price of the year 20[•], and the statement of the project cost shall be shown in Appendix 3 (Statement of Development Project Cost and Advance Payment of Land Price).

(2)         In the event the development project cost, stated in Paragraph (1), needs to be adjusted, the Parties hereto shall make said adjustments through mutual consultation by the end of March annually.

 

Article 7 (Advance Payment of the Land Price)

 

(1)         Advance payment of the land price for the support area under this Agreement shall be [•] won (based on the constant price of the year 20[•]), based on the itemization as listed below, and the statement thereof shall be as shown in Appendix 3 (Statement of Development Project Cost and Advance Payment of Land Price). Adjustment of prices among items, payment time and methods, and other matters related to the advance payment of land price by [BBB] to [AAA] shall be determined through separate agreement between the Parties hereto.

 

A.   Survey and design expenses paid by [AAA] before the signing of this Agreement;

B.    The cost of construction for the development of the support area (the forced settlement zone in the northern portion of the northeast dike) of the North Container Terminal [AAA] used before the signing of this Agreement;

C.    Compensation for the required land on [•], site for the plant on [•], and the site for the distribution center on [•];

D.   Ancillary expenses (charges, general management cost, and electrical wiring costs);

E.    Taxes and dues (acquisition tax and registration tax) paid in the name of [AAA] in connection with the Support Area Project;

F.    Monitoring costs of EIA (environmental impact assessment);

G.   General management costs for future implementation and management of the Support Area Project;

H.   Proceeds of the Support Area Project that are reflected in the Implementation Plan (Net present value (NPV) based on the year 20[•]); and

I.     Other costs and expenses that might arise in the name of [AAA] in connection with implementation of the Support Area Project.

 

(2)         The payment [BBB] makes to [AAA] in connection with the Support Area Project shall be included in the calculation of advance payment of land price, no matter how it may be called.

 

Article 8 (Land Price)

 

(1)         The land price that [BBB] is to pay to [AAA] shall be the development project cost plus advance payment of the land price, which totals [•] [Currency] (based on the constant price of [•], 20[•]), and the statement thereof shall be as shown in Appendix 3 (Statement of Development Project Cost and Advance Payment of Land Price). However, the adjustment between the development project cost and advance payment of land price, as well as the adjustments among constituent items may be made through mutual consultation as required.

(2)         The land to be sold in lots, which [BBB] receives from [AAA] pursuant to Paragraph (1), shall be the entire area for supply for value at the time of the completion of development, regardless of any increase or decrease in the total area during the development process.

 

Article 9 (Responsibility for Taxes and Dues)

 

(1)         If acquisition, registration, corporation (including special surcharges), value-added, and other taxes and dues, including those listed in Appendix 3 (Statement of Development Project Cost and Advance Payment of Land Price) in connection with the Support Area Project, are incurred by [AAA], [BBB] shall pay them to [AAA] so that they can be reflected in the land price.  (National and local taxes shall be limited to those that might arise from the Support Area Project itself, regardless of [AAA]’s port facility project.)

(2)         When [AAA] is required to pay the taxes and dues, as stated in Paragraph (1), [BBB] shall pay them to [AAA] before the due date.

 

Article 10 (Calculation and Acceptance of the Investment Made)

 

(1)         [BBB] shall calculate the investment progress rate (which refers to the investment made, divided by the land price) as related to the land price, based on the already-paid development project cost and advance payment of the land price, and submit such calculation to [AAA] at the end of each quarter.

(2)         Unless there is a special reason, [AAA] shall accept the investment progress rate, submitted pursuant to Paragraph (1), as the investment made.

 

Article 11 (Advance Supply and Sale of Lots)

 

(1)         [BBB] shall consult [AAA] regarding the location and area of the land it desires to obtain during the construction period, establish the schedule of receipt of advances from end users and submit such to [AAA].

(2)         [AAA] shall obtain the approval of the [Government Agency] about the down payment plan for the support area, pursuant to Article [•] of the [•] Act, and then further consult [BBB] and finalize the plan for supplying the land to be sold in lots. 

(3)         [AAA] and [BBB] shall calculate the area to be supplied, based on the investment made, as stated in Article 10, at the end of each quarter during the construction period, and draw up and sign the land supply agreement.  

(4)         Should the total land area to be sold to end users exceed the area to be supplied based on the investment made under Paragraph (1) of Article 10, [BBB] and [AAA] shall enter into a separate agreement so as not to disturb the advance supply of land to end users.

(5)         [BBB] shall agree to supply the area received from [AAA] to be sold in lots to end users in accordance with the Concession Agreement, the Land Use Plan under the Implementation Plan, and relevant laws and regulations.

(6)         Legal and administrative matters and expenses, etc., related to the sale in lots of the land [BBB] receives from [AAA], shall be the responsibility of [BBB] at its own efforts and expenses.

 

Article 12 (Construction)

 

(1)         [BBB] shall conduct construction under the Support Area Project, in compliance with the [•] Act, [•] Act, Concession Agreement, Implementation Plan and this Implementation Agreement.

(2)         [BBB] may commission a third party to manage the construction (hereinafter referred to as “subcontract construction”) under the Support Area Project.

(3)         Selection of subcontractors, signing of contracts, payment of accounts, etc., in connection with the construction subcontract, as stated in Paragraph (2), shall be the responsibility of [BBB].

(4)         Under [BBB]’s assumption of any duty, debt, or liability under this Agreement, it shall not assert exemption therefrom on the ground that a third party has designed or constructed any part of the Support Area Project, and shall take every measure so as to shield [AAA] from incurring any damage.

(5)         [AAA] shall take measures for [BBB] to receive the sand available from the [•] New Port terminal construction on a timely basis in accordance with the Work Schedule of the Implementation Plan.  If any change is expected in the smooth supply plan of sea sand, dredged soil, and other landfill materials, the Parties hereto shall immediately discuss countermeasures.

(6)         [AAA] shall provide [BBB] with the following information and materials, related to the planning and designing of the already implemented Support Area Project, within one (1) month from the signing of this Agreement.

A.   Information on the basic field surveys and tests;

B.    Information on the selection of major work methods (review, consulting, tests, etc., of work methods);

C.    Information on the calculation of the work period, and the types, combination, capacity and procurement of the equipment to be used, etc.;

D.   Information on the calculation of work expenses, including major material costs;

E.    Results of commissioned services, including reports, design documents (including reference materials), etc.; and

F.    Other materials requested by [BBB].

(7)         [AAA] shall extend full support so that borrow-pits, construction roads, etc. may not disturb [BBB]’s work under the Support Area Project.

(8)         The Parties hereto shall use the surface soil of the rocky [•] Mountain that is temporarily accumulated in the support area (P2 and P4) for constructing port facilities and support area. Regarding planting/replanting of trees at [•] Mountain and on [•] as part of the Support Area Project under the Implementation Plan, [BBB] shall consult [AAA] to take necessary measures, including delegating the work to local governments at [BBB]’s responsibilities and expenses.

(9)         Upon completion of the development of Support Area (the forced settlement zone in the northern portion of the northeast dike: [•] km) for which [AAA] placed an order with a third party before the signing of this Agreement, [BBB] shall take over the rights and duties related to the facilities from [AAA]. However, all defects in the forced settlement zone construction and their related matters shall be the [AAA]’s responsibility in accordance with relevant laws and regulations.

(10)       Should [AAA] desire to use a part of the commercial area of the support area, it shall establish the plan of utilizing the area and consult [BBB] in advance. However, in the event ground sinking and other problems occur due to the use of the area after the signing of this Agreement, such problems shall be corrected upon the responsibilities and at the expenses of the party who causes the problems.

 

Article 13 (Supervision of Works)

 

(1)         With consideration of the viewpoints of [AAA], [BBB] shall select a construction supervisor from among those determined to be eligible by the [Government Agency’s] in accordance with relevant laws and regulations, following the procedures under the [•] Act, and notify [AAA] of the result thereof.

(2)         [BBB] shall ensure that the construction is supervised in accordance with the [•] Act, [•] Act and other relevant laws and regulations, and undertake the management/superintendence, payment, etc. regarding the commissioned supervision.

(3)         [AAA] may from time to time express its viewpoints to [BBB] with regard to the supervisor’s performance.

 

Article 14 (Construction Period)

 

(1)         The construction period of the support area shall be for [•] months from the date (commencement date) of receipt of the commencement report to the [Government Agency].

(2)         In the event the port facility construction period is to be changed in accordance with the Concession Agreement, Implementation Plan, etc., the construction period may be adjusted upon agreement between the Parties hereto.

(3)         In the event the construction period needs to be extended, due to delay or suspension of the Support Area Project for reasons attributable to the government, [AAA], or force majeure, the Parties hereto shall agree to adjust the construction period.

(4)         [BBB] shall abide by the master construction progress schedule and the pocket work schedule of the Support Area Project, as established by the Implementation Plan.

(5)         [BBB] shall take all necessary measures to ensure that the construction of the CFS (Container Freight Station) and other distribution support facilities directly related to the operation of port facilities does not disturb the operation of Phase 1-1 port facilities, as determined in the Implementation Plan.

 

 

 

Article 15 (Commencement of Work)

 

(1)         [BBB] shall commence work under the Support Area Project within the time limit set in the Implementation Plan. However, if the commencement needs to be delayed, due to the government’s uncompleted administrative procedures and for reasons not attributable to [BBB], the Parties hereto may adjust the commencement date through mutual consultation.

(2)         [BBB] shall submit the commencement report to [AAA] no later than 10 days before commencement, and [AAA] shall submit such to the [Government Agency’s] no later than [•] days before commencement.

 

Article 16 (Disposal of Relics, etc.)

 

If relics, dangerous objects, or impediments (hereinafter referred to as “relics, etc.”) are discovered in the process of implementation of the Support Area Project, [BBB] shall deal with them in accordance with the principles and procedures prescribed in the Concession Agreement.

 

Article 17 (Project Performance Guarantee)

 

(1)         [BBB] shall submit the performance guarantee or the performance guarantee insurance policy for [•] % of the construction cost, issued by a bank or guarantee insurance company, to [AAA] within [•] month from the signing of this Agreement, in order to guarantee the implementation of the Support Area Project under this Agreement.

(2)         In the event the construction cost is adjusted after the performance guarantee, stated in Paragraph (1), the performance guarantee amount shall also be adjusted.

(3)         In the event this Agreement is cancelled due to reasons attributable to [BBB], [AAA] may retain the project performance guarantee deposit or claim the deposit or insurance money under the conditions of the performance guarantee or performance guarantee insurance policy submitted by [BBB].

 

Article 18 (Partial Completion and Approval of Use before Completion)

 

(1)         [BBB] shall divide and complete the Support Area construction project by pockets in accordance with the Construction Progress Schedule, as determined in the Implementation Plan.

(2)         Should [BBB] desire to obtain the confirmation of partial (or pocket-specific) completion, pursuant to Paragraph (1), it shall apply for the confirmation of completion in the name of [AAA] pursuant to Article [•] of the [•] Act, in conformity with the principles of Articles [•] of the Concession Agreement, and obtain the Confirmation of Partial (or Pocket-Specific) Completion.

(3)         In the event [BBB] requests the use of land before completion for the sake of end-users’ construction licensing procedures, etc., [AAA] shall agree to the use of the land absent some compelling reason. [BBB] shall report the use before completion to the [Government Agency], or receive approval of the [Government Agency] for the use before completion, in the name of [AAA], pursuant to Article [•] of the [•] Act. 

(4)         The management/superintendence and all the other matters that are entailed by end-users’ use of land, pursuant to the report or approval of land use before completion, stated in Paragraph (3), shall be addressed by [BBB] at its own responsibilities and expenses.

 

Article 19 (Timely Completion and Penalty for Delay)

 

(1)         In the event [BBB] fails to complete P1, specified in Appendix 1, within [•] months from the date of receipt of the Report on Commencement of Construction, due to reasons attributable to itself, it shall pay to [AAA] as liquidated damages, the equivalence to the daily penalty ( [•] % of the remaining work calculated by subtracting the cost of completed construction from the total construction cost) multiplied by the number of days delayed.  The total liquidated damages shall be less than [•] % of the construction cost concerned.

(2)         The construction cost referred to in Paragraph (1) shall be the construction cost of the Development Project Cost under Article 6, multiplied by the ratio of the P1 area (P1 area divided by the total Support Area), and the construction cost shall be calculated as of the date of liquidated damages calculation. 

(3)         In the event construction delays due to reasons attributable to [AAA] or force majeure event, the liquidated damages shall not apply.

 

Article 20 (Completion Procedures)

 

(1)         When construction under the Support Area Project is completed in accordance with this Agreement and the Implementation Plan, [BBB] shall carry out the completion confirmation procedures in the name of [AAA], pursuant to the provisions of Article 22 of the [•], and [AAA] shall actively cooperate.

(2)         [BBB] shall collate and submit the Support Area construction record to [AAA] within [•] months from partial and whole project completions, respectively.

 

 

Article 21 (Default Services)

 

(1)         Defaults that may arise in connection with construction after completion of the Support Area Project, except the matters provided for in Paragraph 9 of Article 12, shall be addressed at [BBB]’s responsibilities and expenses.

(2)         The guarantee against default for each construction type shall be in conformity with the period provided for in Article [•] of the [•] Act. 

 

Article 22 (Changes in Implementation Plan and Design)

 

(1)         If the government’s approval is needed to change the Implementation Plan (hereinafter including design change) in the process of project implementation, [BBB] shall prepare the related documents and proceed to obtain the government’s approval in the name of [AAA], and [AAA] shall actively cooperate with such procedures.

(2)         As to minor changes in the Implementation Plan in accordance with relevant laws, [BBB] shall prepare and submit related documents to [AAA], and [AAA] shall then notify the government without delay.

(3)         If the Implementation Plan or Design needs to be changed in the process of implementation of the Support Area Project, the following principles shall be observed:

 

A.         If defects in the design commissioned before the signing of this Agreement affect the construction schedule, cost, etc., [AAA], at the request of [BBB], shall have the designer to review, supplement, redesign and take other necessary measures, in accordance with the [•] Act and related laws and regulations.

B.          If the design is to be changed due to reasons other than those attributable to willful acts or negligence of [BBB] (including those of subcontractors thereof), the construction period may be extended.

C.          If the plan and design are to be changed as required by civil complaints or [BBB], the cost and responsibility thereof shall be borne by [BBB].

 

(4)         In the event consultation with central and local governments is needed in connection with Paragraph (1), [BBB] shall consult with [AAA] to implement administrative procedures.

(5)         If [AAA] desires to change the Implementation Plan, it shall consult with [BBB] in advance.

 

Article 23 (Transfer of Ownership and Registration of the Land in the Support Area)

 

(1)         The land reclaimed under the Support Area Project shall be registered for preservation of ownership in the name of [AAA], simultaneously with the completion (including partial completion) in accordance with related laws and regulations, and the non-reclaimed land in the Support Area shall be registered for transfer of ownership in the name of [AAA] at the time of purchase. However, [BBB] may apply provisional registrations, floating sum mortgage registrations and other measures necessary for the preservation of rights related to this Agreement.

(2)         As for the land to be sold in lots supplied by [AAA] to [BBB], the registration for transfer of ownership to the name of [BBB] shall be made simultaneously with the registration for preservation of ownership. However, roads, green tracts, public facilities, etc., which are to be contributed to related management offices in accordance with related laws and regulations, shall be excluded.

(3)         Notwithstanding the provisions of Paragraphs (1) and (2), if original acquisition of the land for sale can be made in the name of [BBB] after completion (including partial completion) of the Support Area Project in accordance with related laws and regulations, the Parties hereto shall consult each other and register such lands for preservation of ownership in the name of [BBB].

(4)         [AAA] shall not delay the registration for transfer of ownership to the name of [BBB] after completion (including partial completion) without due reasons, just because the advance payment of land price is not determined by then.

 

Article 24 (Maintenance and Management of the Support Area)

 

[BBB] shall maintain the functions of the reclaimed Support Area (the area completed in the case of partial completion) with the care and duties of a good manager until the ownership is transferred to end-users and public facilities are transferred, and maintain and manage the area under its own responsibilities and expenses.

 

Article 25 (Transfer of Public Facilities)

 

[BBB] shall take necessary procedures in the name of [AAA] so that public facilities under the Support Area Project may be transferred to local governments and other management offices, simultaneously with the completion (including partial completion) thereof, and [AAA] shall actively cooperate with [BBB] to ensure smooth proceeding.

 

Article 26 (Business Management)

 

(1)         In connection with the Support Area Project, [BBB] shall submit each of the following documents to [AAA] in accordance with the Concession Agreement, Implementation Plan and this Agreement.

 

A.   Financing Plan of the Support Area Project (within [•] month after the signing of this Implementation Agreement);

B.    Selection and Change of Contractor and Supervisor;

C.    Report on Commencement of Construction;

D.   Changes in the Implementation Plan and Design;

E.    Current Status and Future Plan of Quarterly Work Progress (including completed portions);

F.    Annual Project Performance Reports and Plan;

G.   Construction Suspension and Other Major Issues and Problems of the Project;

H.   Plan for Sale in Lots and Quarterly Performance Reports of Sale in Lots to End-Users;

I.     Current Status and Performance Reports of Monitoring;

J.     Biannual Investment Performance and Changes in Financing Plan; and

K.   Other matters [AAA] deems as necessary.

 

(2)         [AAA] may have access to or copy documents related to the Support Area Project, or ask [BBB] to submit such. [AAA] may ask [BBB] to correct, improve, review, or discuss matters in such documents, if deemed necessary for successful project implementation.

(3)         [AAA] shall provide [BBB] with the following items for the successful implementation of the Support Area Project.

 

A.   Changes in the Company’s equity ratio;

B.    Documents related to the Support Area project;

C.    External consulting about the Support Area project;

D.   Commencement, suspension and resumption of port facility construction, quarterly work progress and future plans;

E.    Implementation Plan and changes in design of port facilities;

F.    Annual project performance reports and plans for the port facilities;

G.   Plans, performance reports and changes in the collection of sand, dumping of dredged soil, and bringing-in of sand for use; and

H.   Other matters [BBB] deems as necessary.

 

(4)         For the successful implementation of the Support Area Project, [AAA] shall establish and operate a task force that is within the means of the general management budget under Subparagraph D of Paragraph (1) of Article 7, which [BBB] is obligated to pay to [AAA].

(5)         In discussing the Support Area Project with the government, [AAA] shall take measures so that [BBB] may participate in meetings, events, etc., so as to accommodate the opinions thereof, if deemed necessary.

 

Article 27 ([AAA]’s Support)

 

(1)         [AAA] shall make every effort for the government to timely construct the infrastructure in the Support Area under the Implementation Plan in accordance with the Concession Agreement. 

(2)         If [BBB] seeks to issue bonds, issue bonds redeemable in the form of land, or induce foreign capital in order to raise funds, [AAA] shall cooperate in seeking government support and other requests that [BBB] may make.

(3)         [AAA] shall take measures in order to expedite procedures for approval of supply in advance, partial completion, use before completion, etc., for those portions that are completed successfully in accordance with the [•] Act, if requested by [BBB].

(4)         In the event a supportive measure or institutional improvement is introduced or made to enhance the profitability of the private investment project for SOC facilities after the signing of this Agreement, in accordance with changes in the [•], the [•] Act, the [•] Plan or other related laws and regulations, [AAA] shall make utmost efforts to make the supportive measure or institutional improvement applicable to this Project within the scope permissible under related laws and regulations.

 

Article 28 (Implementation of Procedures under Related Laws and Regulations)

 

(1)         Licensing procedures of changing urban planning, etc., in connection with the implementation of the Support Area Project, provided for by related laws and regulations shall be taken at [BBB]’s responsibilities and expenses.

(2)         [AAA] and [BBB] shall actively cooperate regarding the implementation of the [•] Act in areas under the jurisdiction of [•] cities.

 

 

 

Article 29 (Compensation)

 

(1)         Compensation for land, impediments, and other losses in the Support Area, which the Concession Agreement defines as [AAA]’s responsibilities, shall be made by [BBB] under this Agreement.

(2)         Matters related to compensation for the Support Area Project, which are not prescribed in this Agreement, shall be governed by the provisions of the Concession Agreement.

(3)         [AAA] shall actively cooperate so that any government compensation, provided for in this Agreement, may not be delayed.

 

Article 30 (Civil Complaints)

 

(1)         All civil complaints that might arise due to infringement upon the vested rights or interests of a third party in connection with the implementation of the Support Area Project shall be addressed directly by the government or upon the government’s responsibilities with the support of related organizations, in accordance with Article [•] of the Concession Agreement. In such case, [AAA] shall allow the government to take necessary measures for addressing civil complaints.

(2)         Civil complaints that might arise in connection to the process of construction under the Support Area Project shall be addressed at [BBB]’s responsibility and expenses.

(3)         Upon receipt of a third party civil complaints or claims that are within the responsibility of [AAA] or [BBB] in connection with the implementation of the Support Area Project, [BBB] shall take measures in order to address such third party civil complaints or claims.

(4)         Expenses, compensation, etc. to address civil complaints that might arise, due to [BBB]’s violation of laws, related agency’s licensing or approval in connection with the implementation of the Support Area Project shall be paid by [BBB].

 

Article 31 (Cancellation of Agreement and Management)

 

(1)         A Party hereto may provide notice, in writing, of the cancellation of this Agreement, at least [•] days in advance, if it is deemed impossible to conduct the Support Area Project, due to reasons not attributable to the party giving such notice. In such case, this Agreement shall terminate upon the expiration of the time limit stated in the notice. However, the Parties hereto shall make their utmost efforts to rectify the cause of cancellation and consider all options to enable the Project to continue before issuing the notification of cancellation.

(2)         In the event this Agreement is cancelled due to reasons attributable to the government or force majeure event, as defined under the Concession Agreement, the payment [AAA] is to make to [BBB] shall be what [AAA] is to receive from the government at the time of cancellation of the Support Area Project.

(3)         In the event this Agreement is cancelled due to reasons attributable to [AAA], [BBB]’s spending (including construction interests) and losses shall be completely borne by [AAA]. However, if sales of the reclaimed/developed Support Area as of cancellation exceed the above expenses to be borne by [AAA], the balance shall be returned to [BBB].

(4)         In the event this Agreement is cancelled due to reasons attributable to [BBB], losses (including [AAA]’s compensation or reparation to the government) incurred by [AAA] as a result thereof shall be borne by [BBB]. The above mentioned compensation or reparation shall include additional expenses that might arise as a result of [AAA] directly conducting or commissioning a third party to conduct this Support Area Project in order to complete its responsibilities under the Concession Agreement.

(5)         In the event [AAA]’s rights as the Concessionaire of the Support Area are expunged by cancellation of the Concession Agreement before confirmation of completion of the Port Facility Project, [AAA] shall give its active support so that the Concessionaire’s rights may be succeeded to by [BBB] in accordance with related laws and regulations.

(6)         In the event [BBB] fails to commence construction without due cause within [•] months after the time limit prescribed by the Implementation Plan, [AAA] may request cancellation of the Agreement.

(7)         In the event a party hereto goes bankrupt or is subject to reorganization, the settlement shall be made pursuant to this Agreement in conformity with the provisions of the Civil Law about mandate.

 

Article 32 (Compensation for Damage, etc.)

 

(1)         If it is confirmed that damage has been incurred due to reasons attributable to the government in the process of the Support Area Project, compensation for such damage shall be borne by the government, pursuant to Article [•] of the Concession Agreement.

(2)         [BBB] shall compensate for any damage that is incurred by [AAA] or a third party due to reasons attributable to [BBB].

(3)         Notwithstanding the provisions of Paragraph (5) of Article 3, [AAA] shall compensate for any damage that is incurred by [BBB] or a third party due to reasons attributable to [AAA].

 

Article 33 (Changes in the Implementation Agreement, etc.)

 

If a Party hereto deems it necessary to modify this Agreement due to the government’s establishment, alteration, etc. of the Concession Agreement, the Implementation Plan and other related rules after the signing of this Agreement, the Party may propose such modification of this Agreement to the other Party that this Agreement be changed. The Parties hereto, pursuant to sincere consultation, shall modify the Agreement. However, in the event the government and [AAA] desire to modify the Concession Agreement, the Implementation Plan, etc., related to the Support Area Project, [AAA] shall discuss such modification with [BBB] in advance.

 

Article 34 (Transfer, Assignment, etc. of Rights and Duties)

 

(1)         A Party hereto may not transfer (or assign) the rights hereunder to a third party or have a third party take over its duties hereunder. However, if stipulated by relevant laws and regulations, or deemed inevitable, a Party may transfer or assign its rights and duties with the consent of the other party.

(2)         In the event [AAA] transfers its right to implement the project to a third party under the Concession Agreement, [AAA] shall actively cooperate so that [BBB] may succeed to this Implementation Agreement.

 

Article 35 (Partial Nullification)

 

Notwithstanding the provision(s) of this Implementation Agreement or documents related hereto become(s) nullified or illegal by laws and regulations, the validity and lawfulness of the remaining provisions hereof shall not be affected thereby, unless they impede the attainment of the goals hereof.

 

Article 36 (Applicable Rules)

 

(1)         This Implementation Agreement and all contracts, documents, etc., signed or prepared in accordance therewith shall be governed and construed in accordance with the laws of [Name of the Country].

(2)         Matters that are not prescribed in this Agreement shall be governed by the [•] Act, the [•] Act and other related laws and regulations, the Annual Plan of Private Investment in the Infrastructure of the [•] New Port, the Instruction for Proposal, the Concession Agreement and the Implementation Plan.

 

Article 37 (Settlement of Disputes)

 

(1)         In the event a complaint, dispute, etc. arise in connection with this Implementation Agreement, the Parties hereto shall agree to settle them through mutual consultation with sincerity and good faith and in conformity with the purpose of this Agreement.

(2)         Any complaint, dispute, etc., which fail to be settled through consultation, as provided for in the above Paragraph, shall be adjudicated under the non-exclusive jurisdiction of the [•] Court.

(3)         [BBB], the contractor or sub-contractor thereof, shall not suspend the implementation of the Project during the dispute period, provided for in Paragraphs (1) and (2).

 

Article 38 (Confidentiality)

 

(1)         Except for cases that fall under the following sub-paragraphs, a Party hereto shall not reveal the contents of this Agreement or any information about the work or the operation of the other party, which is acquired in connection with this Agreement, to a third party without the consent of the other Party.

 

A.   Any information that was or is currently widely known;

B.    Any information that is required to be disclosed by relevant laws and regulations;

C.   Any information that is disclosed pursuant to a proceeding in a trial, arbitration or administrative procedures; and

D. Any information that is provided by a party to its own legal consultant, banking institution, etc.

 

(2)         Notwithstanding that this Implementation Agreement is terminated due to cancellation before expiration, the Parties hereto shall maintain the duty of confidentiality, pursuant to Paragraph (1), continuously for three years from the date of termination hereof.

 

 

Article 39 (Validity of the Agreement)

 

This Implementation Agreement shall take effect from the date of its signing.

 

IN WITNESS WHEREOF, the Parties hereto have made and signed two (2) copies of this Agreement, and retained one (1) copy, respectively.

 

[DATE]

 

 

[[AAA] CO., LTD]                                    [[BBB] CORP.]

 

                                                                 

[Title]                                                         [Title]

[Address]                                                    [Address]

                                                                               

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix 1

 

 

Location and Area of the Support Area

 

 

 

1. Location : [•]

 

 

2. Area : [•]

 

 

3. Area by Pockets : [•]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix 2

 

Land Use Plan under the Implementation Plan

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix 3

 

Statement of Development Project Cost and Advance Payment of Land Price

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix 4

 

Area of the Land to be Sold in Lots

(Land for sale in the Support Area)

 

1 Engineering Procurement and Construction Agreement.doc