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DATED THIS (insert date) DAY OF (month & year)
(Names of Party A)
(Names of Party B)
MANAGEMENT AGREEMENT- QUARRY
This Agreement is made the day of
Between [Company Name (Company No.__)] a company incorporated in Malaysia and having its registered office at _____________________ (hereinafter referred to as “[COMP A]”) of the one part;
[Company Name (Company No.__) a company incorporated in Malaysia with its registered office at ______________________ (hereinafter referred to as “KPSB”) of the other part.
Whenever used in this Agreement unless the context shall otherwise state and/or require, the following expressions shall have the following meanings :-
“quarry products” means aggregate, crusher run and quarry dust.
“plant” means equipment, machinery, tools, etc set up and to be used in connection with and for the production of quarry products.
“block metal” means raw material to be fed into plant so that quarry products can be produced.
“site” means the place where the plant is installed.
“said Lands” means the First Land, the Second Land and the Third Land and the Fourth Land (if applicable) as defined and specified in this Agreement.
“quarry works” means to extract rocks, to operate a crushing plant, to crush, process and produce crushed rocks extracted from the said Lands.
“landowners” means the owners of the First Land, the Second Land and Third Land and the Fourth Land (if applicable).
“other landowners” means the owner or owners of adjacent lands apart from the said Lands.
“commencement of quarry works” means the setting-up of and commissioning of the plant as a means to commence with the carrying out of and management of quarry works to produce quarry products.
- [COMP A] has unequivocally represented to KPSB that it has acquired and obtained two pieces of land as set out in Recital 2 below and has obtained the necessary and requisite consent and approval from the respective landowners to extract rocks and/or red earth from the said Lands and to execute works in connection thereto upon obtaining in the respective landowners’ names and at its own costs the necessary and requisite permit/licence/approval from the Dungun Land Office in Terengganu (hereinafter referred as “the DLO”) and shall further obtain and caused to be obtained at its own costs the renewal thereof in the respective landowners’ names.
- one ……….. (NRIC NO : ………), an individual and having an address at d/a (hereinafter referred to as “the First Owner”) is the registered owner of six-eights (6/8) of all that piece of land held under …….. measuring approximately [ ] acres shown in the map annexed hereto marked “A” and coloured in red (hereinafter referred to as “the First Land”) and holds the remaining two-eights (2/8) of the First Land on trust for one ……….. (NRIC NO : …..), an individual and having an address at …….. (hereinafter referred to as “the Second Owner”) is the registered owner of all that piece of land held under ….measuring approximately [ ] acres shown in the map annexed hereto marked “B” all that piece of land held under ……. measuring approximately [ ] acres and coloured in red (hereinafter referred to as “the Second Land”).
- The First Owner and [COMP A] have entered into an Agreement dated the [ ]th day of [ ] 1999 whereby [COMP A] has agreed to apply and obtain in the First Owner’s name all necessary and requisite approval/permit/licence from the DLO following which the First Owner has agreed to allow and enable [COMP A] to extract and transport rocks and/or red earth from the First Land, execute works in connection thereto on the First Land and to further sell the end products of the said rocks and/or red earth on terms and conditions made and/or ordered by the DLO and on terms and conditions appearing therein (hereinafter referred to as “the First Agreement”). A copy of the First Agreement is annexed hereto as annexure “C”.
- The Second Owner and [COMP A] have entered into an Agreement dated the [ ]th day of [ ] 1999 whereby [COMP A] has agreed to apply and obtain in the Second Owner’s name all necessary requisite approval/permit/licence from the DLO following which the First Owner has agreed to allow and enable [COMP A] to extract and transport rocks and/or red earth from the Second Land, execute works in connection thereto on the Second Land and to further sell end products of the said rocks and/or red earth on terms and conditions made and/or ordered by the DLO and on terms and conditions appearing therein (hereinafter referred to as “the Second Agreement”). A copy of the Second Agreement is annexed hereto as annexure “D”.
- [COMP A] agrees, undertakes and covenants with KPSB that it shall acquire and obtain additional parcels of land which particulars are set out in Clause 2 hereto and proceed to apply and obtain in the respective landowners’ names and at its own costs all necessary and requisite approval/permit/licence from the DLO to allow and enable KPSB to commence with the carrying out of and management of quarry works.
- [COMP A] agrees, undertakes and covenants with KPSB that it shall obtain the irrevocable approval and consent from the landowners of the said Lands and other landowners and agrees, undertakes and covenants to make any payment for rental or payment of whatsoever nature imposed by and/or chargeable by the landowners and/or other landowners for the purpose of granting proper access to KPSB and its authorised persons to and from the said Lands over and above the existing public access for the duration of this Agreement.
- KPSB has the necessary and requisite experience, skill and expertise to carry out and manage the operation of quarry works on the said Lands.
- [COMP A] is desirous of appointing and giving KPSB the exclusive right to carry out and manage the operation of quarry works on both but not limited to the First Land and Second Land subject to the terms and conditions hereinafter set out.
NOW THIS AGREEMENT WITNESSETH as follows:-
- GENERAL CONDITIONS
1.1 KPSB is hereby appointed to carry out and manage the operation of quarry works on the First Land, the Second Land and on the lands which particulars are as set out in Clause 2 hereto strictly subject to and conditional upon the provisions of clause 2 herein.
1.2 The terms of appointment are fully set out in the Specifications and Conditions of Contract in the Schedule annexed hereto. The said Schedule hereto shall be taken to be read and construed as an essential part of this Agreement.
1.3 In the event of any breach by any of the parties hereto of any of the provisions of this Agreement and/or in the event that any of the parties hereto shall fail to abide by the terms and conditions of this Agreement for any reasons whatsoever the other party shall be entitled to the remedy at law for specific performance against the other party of any term of this Agreement.
- CONDITIONS PRECEDENT
2.1 The parties hereto irrevocably agree that KPSB’s commencement of quarry works on the First Land, the Second Land and on all that pieces of land specified and set out below shall be subject to and conditional upon [COMP A]’s fulfillment and strict compliance of the following terms and conditions :-
(i) in consideration of a deposit sum of Ringgit Malaysia :[ ] RM[ ] (hereinafter referred to as “the First Deposit Sum”) payable by KPSB to Messrs [
], solicitors for [COMP A] (hereinafter referred to as “[COMP A]’s solicitors”) upon the execution of this Agreement to be held as stakeholders by [COMP A]’ solicitors, [COMP A] hereby irrevocably agrees that in addition to the First Land and the Second Land already acquired and obtained by [COMP A], [COMP A] shall within three (3) months from the date of this Agreement (hereinafter referred as “the Conditional Date”) acquire and obtain additional parcels of land which particulars are set out as follows:-
(a) all that piece of land held under GM [ ] lot 2231 [ ] measuring approximately [ ] acres; and
(b) all that piece of land held under GM [ ] lot 966 [ ] measuring approximately [ ] acres; and
(c) all that piece of land held under GM [ ] lot 2238 [ ] measuring approximately [ ] acres;
all of which are shown in the map annexed hereto marked “E” and coloured in yellow (hereinafter collectively referred to as “the Third Land”).
(ii) [COMP A] shall use its best endeavours to acquire and obtain an additional piece of land held under GM [ ] lot 3291 [ ] measuring approximately [ ] acres shown in the map annexed hereto marked “F” and coloured in green (hereinafter referred to as “the Fourth Land”).
The First Land, Second Land and Third Land and the Fourth Land (if applicable) shall collectively be referred as “the said Lands”)
[COMP A] shall for the duration of this Agreement and at its own costs obtain the approval of all relevant government authorities and obtain or caused to be obtained all necessary and requisite approval/permit/licence in the landowners’ names and its renewal thereof and assent to authorise the carrying out of and management of quarry works on the said Lands;
(iv) [COMP A] shall obtain the irrevocable approval and consent from the landowners of the said Lands and other landowners and agrees, undertakes and covenants to make any payment for rental or payment of whatsoever nature imposed by and/or chargeable by the landowners and/or other landowners for the purpose of granting proper access to KPSB and its authorised persons to and from the said Lands over and above the existing public access for the duration of this Agreement.
2.2 In the event that any of the conditions precedent have not been fully and strictly complied with on or before the Conditional Date, all parties shall, if necessary agree to a further term of [ ] months from the Conditional Date (hereinafter referred as “the Extended Conditional Date”) to fulfill the conditions precedent PROVIDED THAT and the parties hereby agree that if the conditions precedent are not fulfilled within the Extended Conditional Date, unless such period is further extended by agreement of the parties herein, the First Deposit Sum shall forthwith be refunded free of interest by [COMP A]’s solicitors to KPSB, then this Agreement shall terminate and be of no further effect whatsoever.
KPSB shall within [ ] ( ) months from the date of receipt of a written notice from [COMP A] that it has fully complied with the conditions precedent set out in Clause 2 hereto, provided that such notice is given within or not later than the Conditional Date or Extended Completion Date as the case may be, proceed with commencement of quarry works.
4.1 Upon the fulfillment of the conditions precedent set out in Clause 2 hereto, the First Deposit Sum shall after the written notice given by [COMP A] to KPSB as specified in Clause 2.1 hereto be released by [COMP A]’s solicitors to [COMP A] together with a further advance sum of Ringgit Malaysia : [ ] RM [ ] to be paid directly by KPSB to [COMP A] (hereinafter referred to as “the Second Deposit Sum”) simultaneously with the delivery of vacant possession of the said Lands by [COMP A] to KPSB.
4.2 Upon the expiry of or sooner determination of this Agreement as provided for herein, [COMP A] shall forthwith refund free of interest to KPSB the First Deposit Sum together with the Second Deposit Sum (hereinafter collectively referred as “the Deposit Sum”).
- DURATION OF AGREEMENT
Unless earlier terminated in accordance with the terms hereunder this Agreement shall continue in force for a period of five (5) years commencing within [ ] months from the Conditional Date or Extended Conditional Date as the case may be. Upon the written request of the Company made [ ] ( ) months before the expiry of this Agreement and if there shall not at the time of such request any existing breach or non observance of any of the covenants on the part of [COMP A], [COMP A] shall appoint KPSB to carry out and manage the operation of quarry works on the said Lands for a further term of five (5) years upon the same terms and conditions as herein contained save
and except for this clause for renewal.
- RATES OF PAYMENT
6.1 In consideration of [COMP A] appointing and giving the exclusive right to KPSB to carry out and manage the operation of quarry works for its own use or for sale, KPSB covenants that it shall pay to [COMP A]:-
6.1.1 monthly fee calculated at the rate of Ringgit Malaysia One Fifty (RM1-50) only per metric tonne of aggregates and crusher run and Sen Fifty (RM0-50) for quarry dust based on the amount produced transported and sold, and which fee shall be payable within the first fifteenth (15) days of each month Provided that if the extraction and production of quarry products exceed the volume of sales KPSB shall nevertheless be entitled to the same rate of payment as set out in this clause for one half (1/2) of the volume stockpiled; and
6.1.2 all necessary payments that may be imposed by the relevant authorities including all rates assessments and outgoings payable in respect of the said Lands which [COMP A] and/or KPSB is bound to pay during the continuance of this Agreement.
KPSB shall be responsible to pay directly to the relevant State Authority for all quarry products produced and sold.
8.1 If any of the parties herein shall:-
(a) fail to take all necessary action to remedy any breach of this Agreement within thirty (30) days from the service of any written notice by any other party hereto complaining of such breach; or
(b) go into voluntary liquidation otherwise than for the purpose of reconstruction or amalgamation or an order of Court is made for its compulsory liquidation; or
(c) enter into any composition or arrangement with its creditors; or
(d) have a receiver appointed over the whole or any part of its undertaking or assets; or cease or threaten to cease to carry on the whole or any substantial part of its business other than in the course of reconstruction or amalgamation; or have any step taken against them for their winding up hen in any such event the other party may by written notice forthwith determine this Agreement wherein [COMP A] shall forthwith refund the Deposit Sum free of interest to KPSB but without prejudice to any right of either party to sue for damages for any antecedent breach of this Agreement by the other.
8.2 Any termination of this Agreement (whether under this section or otherwise) shall not relieve either party of any obligation under this Agreement which is expressed to continue after termination and failure by either party in any one or more instances to terminate this Agreement on account of any default or breach by the other shall not be taken to constitute a condonation or waiver of the same or of any other default or breach by the other.
- LIQUIDATED DAMAGES
In the event that [COMP A] contravenes or fails to comply with Clause 2.1 (iii) hereto and/or Clause 2.1 (iv) hereto and/or Clause 3.1.1 (c) of the Schedule annexed hereto which affects, hampers and/or prevents KPSB from the continuance of its obligations in accordance with this Agreement, [COMP A] hereby agrees, undertakes and covenants that it shall forthwith pay directly to KPSB a sum of Ringgit Malaysia Twenty Five Thousand (RM25,000-00) as agreed liquidated damages
- GOOD FAITH
In entering into this Agreement the parties hereto recognise that it is impracticable to make provision for every contingency that may arise in the course of performance thereof and accordingly the parties hereto hereby declare it to be their intention that this Agreement shall operate between them with fairness and without detriment to the
interests of any of them and if in the course of performance of this Agreement unfairness to any party is disclosed or anticipated then the parties hereto shall use their best endeavours to agree upon such action as may be necessary and equitable to remove the cause or causes of the same.
- SETTLEMENT OF DISPUTES
If at any time any question, dispute or difference of opinion shall arise between [COMP A] and KPSB upon or in relation to or in connection with this Agreement or any party thereof either party may forthwith give to the other notice in writing of the existence of such question, dispute or difference of opinion and the same shall be referred to the arbitration of a person to be mutually agreed upon or failing agreement or acceptance within one (1) month from the service of the notice of first nomination of arbitrator given by either party then to such person or persons as may be appointed by the President of the Board of Engineers, Malaysia and such reference shall be deemed to be a submission under the Arbitration Act 1952 and any statutory modification or re-enactment thereof for the time being and the award of arbitrator shall be final and binding upon the parties.
Any notice or demand hereunder given by either party shall be deemed to be
duly given or made if the same be in writing and signed by an authorised officer of the other party and shall be sufficiently served on the said party if delivered by prepaid registered post to the address of the parties stated herein.
13.1 This Agreement may be varied or extended by the written consent of the parties hereof.
13.2 In the event that any part of this Agreement shall be held invalid as contrary to any law, statute or regulation, the invalidity of such part shall in no way affect the validity of the other part of this Agreement and each and every part shall be severable from each and every other.
13.3 All provisions and undertakings contained herein shall be valid and constitute binding obligations of the parties hereto, their successors, permitted assigns and representatives.
13.4 In this Agreement, time wherein mentioned is the essence of contract.
13.5 All costs and expenses incidental to the preparation of this Agreement including stamp duties shall be paid by KPSB but each party shall pay its own solicitor’s fees.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands the day and year first above written.
The Common Seal of )
was hereunto affixed )
in the presence of:- )
The Common Seal of )
was hereunto affixed )
in the presence of:- )
S C H E D U L E
DURATION OF APPOINTMENT
- As specified in this Agreement.
- As specified in this Agreement. In elaboration but not in derogation of the duration of this Agreement, the production of Quarry Products shall continue until the completion date of this Agreement and until all parties herein finalise their payments to each other in accordance with the terms and conditions of this Agreement.
SCOPE OF DUTIES OF [COMP A] AND KPSB
3.1 KPSB shall :-
supply the manpower for plant management and production of Quarry Products;
maintain the plant site and the site office;
c). provide and maintain the plant and all other equipment, accessories,
consumables, fuels, oil and filter, spares and all other overheads including all the necessary insurance necessary for the production of quarry products;
weigh materials at the point of sales;
e). ensure quality control; and
f). dismantle and effect withdrawal of the plant at the completion of this Agreement.
3.1.1 [COMP A] hereby agrees, undertakes and covenants with KPSB :-
(a) that [COMP A] shall at its own cost obtain or caused to be obtained all necessary permit/licence/approval in the landowners’ names and where applicable, the renewal thereof from the appropriate authorities to carry out and manage the operation of the Quarry Works on the said Lands including the letter of approval from the Department of Environment.
that [COMP A] shall deliver vacant possession of the said Lands to KPSB upon the fulfillment of the conditions specified in Clause 2 of this Agreement.
That [COMP A] shall not for the duration of this Agreement do anything or cause to be done anything that affects, contradicts and/or contravenes KPSB’s exclusive right in its carrying out and management of the operation of Quarry Works as provided for herein including but not limited to entering into, covenant with or execute any agreement of a similar nature as the provisions of this Agreement with third party/parties and/or any covenant and/or agreement that may affect and/or prejudice KPSB in whatsoever manner.
- All parties herein agree and covenant :-
not to do or permit or suffer to be done upon or in connection with the said Lands and the site anything which shall be or tend to be a nuisance annoyance or cause of damage to any adjoining or neighbouring property or the owner or occupier thereof.
To take all reasonable steps to prevent damage of any land adjoining the said Lands by erosion, silting or flooding.
Their servants or agents shall have full liberty to enter upon the said Lands and the site for the purpose only to carry out the terms and conditions of this Agreement.
Generally to do all things, sign all documents and deeds which shall be convenient or necessary to complete and satisfy the terms and conditions of this Agreement including but not limited to all deeds acts and things to ensure that all necessary permits, licenses and approvals of the authorities are obtained for the purpose of this Agreement and in particular [COMP A] shall ensure that KPSB shall execute all documents and do all acts
to achieve this purpose.
WATCHING AND WARNING
5.(a) KPSB shall provide all necessary watching on the plant and equipment wherever and whenever needed.
(b) KPSB shall also provide and operate all necessary warning apparatus, barricades and notices for use whilst quarry operation is in progress.
OWNERSHIP OF QUARRY PRODUCTS
- All materials resulting from the operation of the plant, including contaminated metal blocks, shall remain the property of KPSB.
MODE OF PAYMENT
- In consideration of [COMP A] appointing KPSB to carry out and manage the operation of Quarry Works on the said Lands for its own use or for sale, KPSB agrees to pay to [COMP A] the rates as stipulated in Clause 5 of this Agreement for the Quarry Products when sold and payable.
8.(a) The payment specified in Clause 6 hereof is fixed for the duration of this Agreement.
(b) No adjustment of the rates referred to in Clause 6 hereof will be made notwithstanding any changes in current market prices, wage rates or the cost of materials, plant, temporary works, transport or any other item which the parties are responsible for providing under the terms of this Agreement.
MEASUREMENT FOR PAYMENT TO [COMP A]
9.(a) The quarry products shall be paid for by their weight in tonnage when sold and shall be calculated on KPSB’s weighbridge which weighbridge shall be calibrated and approved by the relevant authority. Such weighbridge shall conform to existing Malaysian rules and laws on instruments and measures.
(b) In the event of the weighbridge being out of order or it being not possible to weigh due to any reason whatsoever the quarry products shall be measured by volume. The weight per cubic metre of the respective quarry products shall be determined jointly by [COMP A] and KPSB.
RECORDS OF PRODUCTION QUANTITIES
- Records of sales shall be kept by KPSB in the form of weighbridge ticket. The said weighbridge ticket is final binding and conclusive of the amount of the quarry products sold by KPSB. The receipt of the weighbridge ticket by [COMP A] or their servants or agents shall be duly signed by the same.
PROVISION OF COMPETENT STAFF
- Both parties shall employ on the Site only suitably qualified and competent staff. Such staff shall be under the control of a suitably qualified site superintendent. The site superintendent is to be constantly on the Site during the conduct of quarrying activities and shall give his whole time to the supervision of the same.
REMOVAL AND DISPOSAL OF SITE STRIP, OVERBURDEN UNSUITABLE ROCK OR OTHER UNREQUIRED MATERIAL
- KPSB shall remove and dispose of site strip, overburden, unsuitable rock or other unrequired material or products from the Site to suitable dumping areas within the Site.
- [COMP A] shall ensure that the roads and access tracks to the quarry will be in good condition to support heavy traffic for the quarry operation as well as maintain the same in good condition. In addition, [COMP A] shall construct and maintain all access roads leading out of the quarry and shall ensure that the consent of right of way is obtained from all adjacent/affected landowners on the understanding that such main access roads will be used by KPSB and other persons duly authorised by KPSB for the transportation of equipment and the quarry products. KPSB shall share with [COMP A] equally the costs of maintenance of the access.
PERMITS, LICENCES, ROYALTIES, ETC
14.(a) The parties hereby acknowledge and agree that royalties payable to the State Authority for the quarrying and transportation of rocks and aggregates shall be paid directly to the State Authority by KBSB.
(b) KPSB shall be responsible for obtaining at its own cost all permits necessary for the supply, transportation, storage and use of explosives in connection with the works under the Agreement.
(c) [COMP A] shall ensure that the quarry permit and all necessary approvals for
0operating the quarry is obtained from the Department of Environment and all other relevant authorities as well as all landowners’ approval is obtained for the full duration of this Agreement and any extension period and prior to the commencement of the works to be performed by KPSB contemplated hereunder.