Content Headings

Key Issues

Example clauses

Notes and References

Warranties in relation to property

The extent of warranties in relation to land on which the project is to be conducted is a matter of negotiation by the parties. Alternative 1 is a standard form drafted from the point of view of the Authority, and is unlikely to be accepted in its entirety by the Concessionaire.

If there is to be a transfer of land back to the Authority at the end of the concession period, warranties given at the time on the condition of the land (and any facilities or infrastructure built on the land) would be needed at the time of the transfer back to the Authority. 

Alternative 1

The condition of the Site shall be the sole responsibility of Concessionaire. Accordingly (without prejudice to any other obligation of Concessionaire under this Agreement), Concessionaire shall be deemed to have:

(a)  carried out a Ground Physical and Geophysical Investigation and to have inspected and examined the Site and its surroundings and (where applicable) any existing structures or works on, over or under the Site;

(b)  satisfied itself as to the nature of the Site Conditions, the ground and the subsoil, the form and nature of the Site, the loadbearing and other relevant properties of the Site, the risk of injury or damage to property affecting the Site, the nature of the materials (whether natural or otherwise) to be excavated and the nature of the design, work and materials necessary for the execution of the Works;

(c)  satisfied itself as to the adequacy of the rights of access to and through the Site and any accommodation it may require for the purposes of fulfilling its obligations under this Agreement (such as additional land or buildings outside the Site);

(d)  satisfied itself as to the possibility of interference by persons of any description whatsoever (other than the Authority), with access to or use of, or rights in respect of, the Site, with particular regard to the owners of any land adjacent to the Site; and

(e)  satisfied itself as to the precautions, times and methods of working necessary to prevent any nuisance or interference, whether public or private, being caused to any third parties.

To avoid doubt, Concessionaire accepts full responsibility for all matters referred to in Clause [Ref] and[, subject to Clause [Warranties],] the Concessionaire shall:

(a)  not be entitled to make any claim against the Authority of any nature whatsoever save, if applicable, as expressly provided in Clause [Delay Events]), on any grounds including (without limitation) the fact that incorrect or insufficient information on any matter relating to the Site was given to it by any person, whether or not an Authority Party; and

(b)  be responsible for, and hold the Authority harmless from, cleaning up and otherwise dealing with any Contamination at the Site so that it shall at all times comply with its obligations under this Agreement including (without limitation) complying with, at its own cost, any applicable Laws and any Consents, orders, notices or directions of any regulatory body (whether made against the Authority or Concessionaire).

To the extent that unforeseen ground conditions and/or Contamination exist in any parts of the Site which are under existing buildings as at Financial Close and which it is not practical for Concessionaire to investigate or survey, Concessionaire shall not be responsible for them, unless they were discovered by the Ground Physical and Geophysical Investigation and accordingly identified in Schedule [Construction Matters] or unless they should reasonably have been discoverable if the Ground Physical and Geophysical Investigation had been properly carried out. If Concessionaire is not responsible for such ground conditions and/or Contamination under this clause then the Authority shall be so responsible. The areas to which this clause applies are as follows: [to provide] 

Where pursuant to Clause [above] the Authority is responsible for any of the matters referred to then the following provisions shall apply:

(a)  where any such matter arises during the Construction Phase it shall be deemed to be a Compensation Event for the purposes of this Agreement and any work which is required or instructed to be done in consequence of it shall be deemed to be a Qualifying Variation;

(b)  where any such matter arises during the Operational Term it shall, for the avoidance of doubt, be deemed to be an Excusing Cause for the purposes of Clause [reference];

(c)  further where any such matter arises during the Operational Term and any work or change to the Services is required or instructed to be done in consequence of it, it shall be deemed to be a Qualifying Variation; and

(d)  where any such matter is Contamination (whether during the Construction Phase or the Operational Term) the Authority shall further hold Concessionaire harmless from cleaning up and otherwise dealing with the Contamination and shall indemnify Concessionaire in respect of all Direct Losses incurred by Concessionaire resulting from such Contamination.]

Alternative 1 adapted from Department of Health (UK), Standard Form Project Agreement Index reference A1 Folder 1.

Alternative 2

The Project Site together with the necessary right of way/ way leaves having been acquired through the due process of law belongs to and is vested in the Authority, and that the Authority has full powers to hold, dispose of and deal with the same consistent, inter - alia, with the provisions of this Agreement and that the Concessionaire shall, in respect of the Project Site, have no liability regarding any compensation payment on account of land acquisition or rehabilitation/resettlement of any Persons affected thereby. 

The Project Site is described in Schedule [reference]. 

The Concessionaire shall, subject to complying with the terms and conditions of this Agreement, remain in peaceful possession and enjoyment of the Project Site during the Concession Period. In the event the Concessionaire is obstructed by any Person claiming any right, title or interest in or over the Project Site or any part thereof or in the event of any enforcement action including any attachment, distraint, appointment of receiver or liquidator being initiated by any Person claiming to have any interest in/ charge on the Project Site or any part thereof, the Authority shall, if called upon by the Concessionaire, defend such claims and proceedings and also keep the Concessionaire indemnified against any loss or damages which the Concessionaire may suffer, on account of any such right, title, interest or charge.

Alternative 2 adapted from Concession Agreement for Colombo Kathunayake Expressway Project (note confidential), index reference A2, folder 1.