Treaty Room - Treaty
Project No :IND-118
ISTISNA' A AGENCY AGREEMENT
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF
INDONESIA
AND
ISLAMIC DEVELOPMENT BANK
CONCERNING
THE DEVELOPMENT AND UPGRADING OF ISLAMIC UNIVERSITY OF
ALAUDD IN MAKASSAR PROJECT IN INDONESIA
O:\FAgrts\lstisna'a\IND- 118(1ST-AGY). r1f-9/30/2006 3:34 PM
ISTISNA'S AGENCY AGREEMENT
TIDS AGREEMENT is entered into on \ 0 /_Q__2}1427H (corresponding to
0 2 I lO /20060) between the Government of the Republic of Indonesia (hereinafter
referred to as the "Agent'') and Islamic Development Bank (hereinafter referred to as the
"IDB").
WHEREAS,
1)
IDB has agreed in accordance with the agreement of even date (hereinafter
refened to as the "Istisna'a Agreement") to construct for the Agent the Works
described in Annex 1 to this Agreement (hereinafter referred to as the "Works")
fo r use in the Project described in Annex-TI to this Agreement;
2)
IDB has agreed with the Agent that the Agent shall, on behalf of IDB conclude
the Contract with the Contractor and supervise the construction of the Works;
3)
The Parties have agreed that the Executing Agency responsible for the
implementation of the Project on behalf of the Agent shall be the Ministry of
Religious Affairs of the Republic of Indonesia. The Parties have also agreed that
the Executing Agency shall implement the Project through a Project
Management Unit (PMU) consisting of authorized personnel of the Islamic
University of Alauddin Makassar, Indonesia.
NOW, THEREFORE, IDB and the Agent hereby agree as follows:
A rticle-I
DEFINITIONS - INTERPRETATION
1.1
In this Agreement, unless the context otherwise requires, the following terms
shall have the meaning appearing against each of them hereunder:
Approved Amount:
The amount approved by the IDB for the construction of
the Works.
Works:
The Works described in Annex-I hereto.
Capital Cost:
The total cost of the construction of the Works which
shall include the Contract Price, Consultant's fees and
any other costs or expenses incwTed by the IDB in or in
c01mection with the construction of the Works and
supervision of the construction.
Consultancy
Agreement:
The agreement for the supervision of the construction of
the Works to be entered into between the Agent and the
Consultant pursuant to Article V hereto.
2
Disbursement
Any payment to be made pursuant to this Agreement, the
Contract or Consultancy Agreement.
Contract Price:
The price payable to the Contractor for the construction
of the Works.
Contract:
The contract for the construction of the Works to be
concluded on behalf of the IDB by the Agent with the
Contractor.
Contractor:
The contractor who shall be entrusted with the
construction of the Works.
Consultant:
The consultant to be appointed in accordance with
Article-V hereof who shaJI be entrusted with the
supervision of the Works to be performed under the
Contract as indicated in the Consultancy Agreement.
Date of First
Disbursement:
The date on which the IDB makes the first disbursement
under the Contract, or to the Consultant, whichever is
earlier.
E ffective Date:
Tbe date on which the IDB declares this Agreement
effective in accordance with Article-XI hereof.
Final Acceptance
Certificate:
The certificate issued by the Consultant in accordance
with the terms of the Contract and countersigned by the
Agent which denotes that the construction of the Works
has been satisfactorily completed by the Contractor.
Gestation Period:
The period commencing on the Date of First
Disbursement and ending 36 (Thirty Six) months
thereafter.
Preliminary
Acceptance
Certificate:
The certificate issued by the Consultant under the
Contract and counter-signed by the Agent which denotes
the preliminary acceptance of the Works by the Agent as
indicated in the Contract.
Project:
The Project described in A1mex II hereto.
Tax:
Any tax, levy, impost, duty or other charge of similar
nature (including without limitation any penalty payable
in connection with any fai lure to pay or delay in paying
any of the same).
3
1.2
In this Agreement:
(a)
Unless the context otherwise requires, words denoting the singular
include the plural and vice-versa, words denoting persons include
corporations and partnerships; and references to a specified Annex,
Appendix, Article or Section is a reference to that Annex, Appendix,
Article or Section of this Agreement.
(b)
Words and expressions defined in the lstisna'a Agreement and not
defined herein shall have the same meaning as given in the Istisna'a
Agreement.
(c)
The Article and Section headings are inserted for convenience of
reference only and shall not be used to define, interpret or limit any of the
provisions of this Agreement.
Article-II
PREAMBLE AND ANNEXES PART OF THE AGREEMENT
The Preamble and the Annexes to this Agreement shall be an integral part thereof.
Article-III
SELECTION OF THE CONTRACTOR
3.1
It is agreed between the parties hereto that the Agent, in consultation with the
IDB and in accordance with the Procurement Procedures of the IDB and subject
to its approval, will procure the contracts for the execution of the Project based
on the following:
(a) National Competitive Bidding (NCB) from pre-qualified contractors for civil
Works.
(b) National Competitive Bidding (NCB) from short-listed local consultants
in collaboration between the Project Management Unit (PMU) and IDB
for consultancy services.
(c) Local hiring of qualified professionals for PMU experts.
(d) Direct national shopping for the office equipment of the PMU.
(e) National Competitive Bidding (NCB) from short-listed domestic auditing
firms for the auditing services.
3.2
The Agent shall on behalf of the IDB negotiate and conclude a Contract with the
Contractor subject to the following:
(a)
The terms and conditions of the Contract shall be agreed upon between
IDB and the Agent.
4
(b)
The Contract Price shall not exceed US$ 25,861 ,000/- (United States
Dollars Twenty Five Million Eight Hundred and Sixty One Thousand)
(which is approximately equivalent to ID 17,713,000/-) only.
(c)
The period for completion of the Construction of the Works under the
Contract shall not exceed 36 (Thirty Six) months from the Date of First
Disbursement to the Contractor.
(d)
The Specifications of the Works under the Contract shall be as those
briefly described in Annex-I to this Agreement and detailed in the
Contract.
(e)
The written approval of the IDB to the terms and conditions of the
negotiated Contract shall be obtained before the conclusion by the Agent
of the Contract.
(f)
After completion, the Works shall be taken-over directly by the Agent.
(g)
The Contract shall stipulate that the Contractor shall procure a
contractor's all risk insurance as customary in the trade, and the proceeds
of the insurance shall be payable to IDB in US Dollars.
Article-IV
ALTERATIONS AND AMENDMENTS OF THE CONTRACT
The Agent shall not, without the prior written consent of the IDB, make any
amendments, alterations or modifications of the Contract which may (a) result in an
increase in the Contract Price or (b) result in an extension of the Completion Date or (c)
result in a change of the Specification, or (d) not be in accordance with usual good
practice.
Article- V
APPOINTMENT OF A CONSULTANT
5.1
ln order to assist the Agent in the supervision of the Contract, the Agent, in
accordance with the ID B's Procedw-es, will select and contract the services of the
Consultant.
5.2
The terms and conditions of the Consultancy Agreement shall be agreed upon in
writing between the IDB and the Agent prior to the invitation of proposal of the
interested consultants.
5.3
The Agent undertakes that in its supervision of the Contract, it will exercise the
highest standard of diligence and care in monitoring, with the assistance of the
Consultant, the punctual and correct performance by the Contractor of its
obligations under the Contract with a view to ensuring that the Works will be
constructed in accordance with the specifications within the tin1e and for the
price stipulated in the Contract.
5
5.4
Without prejudice to the generality of Section 5.3 hereof. the Agent shall be
obliged to:
(a)
advise the IDB, as soon as reasonably practicable, of any delay or
anticipated delay in the completion of the construction of the Works with
full details thereof;
(b)
deal with all reguJatory and administrative matters relating to the
construction of the Works in accordance with the relevant laws in
Indonesia;
(c)
sign the P reliminary Acceptance Certificate and the FinaJ Acceptance
Certificate if he is satisfied that the Work in the relevant stage has been
executed in confonnity with the Contract including the Specifications.
5.5
If in breach of Article V hereof. the Agent gives instructions to the Contractor as
a result of which there is an increase in the Contract Price or the IDB becomes
liable to any party for any claim. loss, damage or expense then the Agent agrees
to bear the increase in the Contract Price or, as the case may be, to indemnify the
IDB for any such claim. loss, damage or expense.
5.6
It is agreed that the Agent will provide such number of his personnel as wouJd be
necessary to carry out his duties under this Agreement, the ConsuJtancy
Agreement and under the Contract.
5.7
The Agent shall not be entitled lo any remuneration or other payment from the
IDB in connection with or arising out of hjs appointment as the Agent under this
Agreement.
Article- VI
DISBURSEMENT OF THE APPROVE D AMOUNT
6.1
The IDB will disburse the Approved Amount in the manner set out in the
Contract and in conformity with the Disbursement Procedures of the IDB.
6.2
Without prejudice to the generality of Section 6.1 hereof, the Agent shall:
6.3
(a)
when submitting the application for first Disbursement to the ConsuJtant,
provide a copy of the signed ConsuJtancy Agreement.
(b)
When submitting the application for first Disbursement under the
Contract, provide a signed copy of the Contract (if not submitted earlier)
and copy of the policy of insurance referred to in Section 3.2 (g) hereof.
IDB shall not be obliged to effect any Disbursement hereunder if the
Disbursement application is not in confonnity with this Agreement or if the
documents submitted by the Agent are incomplete or otherwise defective. The
Agent shall be responsible for any delay in effecting Disbursement if such delay
6
is due to the application being not in confonnity with this Agreement or due to
insufficiency of or discrepancy in the required documents.
Article-Vll
TAKING OVER THE WORKS
7 .1
It is agreed that the Contract shall provide for taking over the Works after
completion directly by the Agent. It is also agreed that in no event shall the IDB
be liable for the Agent for any loss resulting from any delay in taking over the
Works.
7.2
For the avoidance of doubt, it is agreed that if the Agent after signing the Final
Acceptance Certificate, refuses to take over the Works from the Contractor for
any reason whatsoever, the Agent shall indemnify IDB for any costs, expenses or
loss resulting therefrom.
Article-VIII
REPRESENTATIONS AND WARRANTIES
The Agent represents and warrants that:
1)
be has power to enter into this Agreement and to perform his obligations
hereunder and all action required to authorize the execution of this Agreement
and the performance by the Agent of his obligations hereunder has been duly
taken;
2)
the obligations expressed to be assumed by the Agent in this Agreement are legal
and valid obligations binding on the Agent in accordance with the terms hereof;
3)
the execution of this Agreement and the Agent's performance of his obligations
ｾ＠
hereunder do not constitute and will not result in any breach of any ｡ｧｲ･ｭｮｴ
treaty or law;
4)
all acts, conditions and things (including exchange control consents) required by
the laws of Indonesia to be done, fulfilled and performed in order:
5)
(i)
to enable the Agent lawfully to enter into and perform the obligations
expressed to be assumed by him in this Agreement;
(ii)
to ensure that the obligations expressed to be assumed by him in this
Agreement are legal, valid and enforceable; and
(iii)
to make this Agreement admissible in evidence in Indonesia without
fu11her steps or fonnalities have been done, fulfilled and performed in
strict compliance with the laws and Constitution of Indonesia;
no action or administrative proceeding of or before any court or agency which
might have a material adverse effect on the financial condition of the Agent has
been initiated or threatened;
7
6)
under the laws of Indonesia in force at the date hereof, the claims of the IDB
against the Agent under this Agreement will rank at least pari passu with the
claims of all other unsecured creditors for any indebtedness of the Agent;
Article-IX
INDEMNITY
9.1
The Agent hereby undertakes to indemnify the IDB, on a net after-tax basis (at
the applicable local and foreign income tax rates) against, and agrees to protect,
save and keep harmless, the IDB from any, and all obl igations, fees , liabilities,
losses, damages, penalties, demands, actions, judgments and expenses, including
reasonable legal fees and expenses (including such legal fees and expenses
incurred in connection with the enforcement of this Agreement), of every kind
and nature whatsoever imposed on, incurred by, or asserted against an IDB
arising out of:
(a)
ownership, possession, use, documentation, removal, return, or other
applications or dispositions under the Contract or the Consultancy
Agreement, including of such as may arise from:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
9.2
any loss or damage to any property or death or injury to any
person;
patent or latent defects in the Works;
any claims based on strict liability in tort or otherwise;
any claim based on patent, trademark or copyright infringement;
any claims based on Liability arising under the applicable
environmental Jaws or environmental approvals;
any claim regarding title to the Works or the land on which it is
constructed;
any claim or dispute relating to the Contract or any Letter of
Credit established pursuant thereto or relating to the Consultancy
Agreement.
(b)
the occUITence of any Default or any other failure on the part of the
Agent or the Contractor to perform or comply with any tenn of this
Agreement, or any document, agreement or contract entered into in
relaLion hereLo or otherwise in relation to the Works, but excluding any
claim based upon any failure on the part of the IDB to comply with its
obligations under this Agreement or any document, agreement or
contract entered into by the IDB in relation hereto or otherwise in relation
to the Works;
(c)
any claims, encumbrances, security interests, and liens or legal processes
regarding title to or interest in the Works or the land on which it is
constructed.
The Agent shall give the IDB prompt notice of any occurrence or condition
known to the Agent as a consequence of which IDB is or is reasonably likely to
8
be entitled to indemnification. The indemnification provided in Section 9.1 shall
specifically apply to and include claims or actions brought by or on behalf of
employees of the Agent and the Agent hereby expressly waives, as against the
IDB, any immunity to which the Agent might otherwise be entitled under any
applicable laws. The Agent shall promptly upon request by the IDB (but in any
event within fifteen days of such request) reimburse the IDB for amounts
expended by it in connection with any of the foregoing or pay such amounts
directly. The Agent shall be subrogated to the IDB 's rights in any matter with
respect to which the Agent has actually reimbursed the IDB for amounts
expended by it or has actually paid such amounts directly pursuant to Section
9.1. In case any action or proceeding is brought against IDB in connection with
any indemnified claim, the IDB will, after receipt of notice of the
commencement of such action or proceeding, notify the Agent thereof, enclosing
a copy of all papers served upon the IDB. The Agent may, and upon the IDB 's
request, will resist and defend such action or proceeding at the Agent's expense,
or cause the same to be resisted or defended by counsel selected by the Agent
and reasonably satisfactory to the IDB. In the event of any failure by the Agent
to do so, the Agent shall pay all costs and expenses (including reasonable
attorney' s fees and expenses) incurred by the IDB in connection with such action
or proceeding.
A rticle-X
REPORTS
The Agent undertakes to submit the following reports to the IDB:
a)
Within three months after the Effective Date of the Agreement and thereafter
every three months, a report on the progress and implementation of the Contract
in such manner as the IDB may from time to time specify;
b)
90 days after the end of each financial year, a repo1t on the financial condition of
the Agent and the results of its operations during the financial year then ended
together with the audited statement of account including balance sheet and profit
and loss account for the financial year then ended;
c)
Promptly after the issuance of the Final Acceptance Certificate but not later than
six months after issuance of such Certificate, submit a completion report of such
scope and in such detail as the IDB may reasonably request, on the Constrnction
and the initial operation of the Works.
d)
Any other report or infonnation which the IDB may from time to time
reasonably request.
Article-XI
WAIVER
Failure of the IDB to exercise or assert any of its rights under this Agreement or its delay
in the same or its failure to exercise or assert any remedy it may have against the Agent
9
or its delay in the same, shall not prejudice such right or remedy and shall not be
construed as a waiver of such right or remedy.
Article-XII
EFFECTIVE DATE
This Agreement shall become effective from the Effective Date of the Istisna'a
Agreement.
Article-XIII
GOVERNING LAW - SETTLEMENT OF DISPUTES
13.1
This Agreement shall be governed by, and be construed in accordance with
Islamic Shariah.
13.2
Any dispute between the parties to this Agreement and any claim by such party
against the other party arising under the Agreement which could not be settled
amicably by the parties within 60 (Sixty) days from the date of notice from one
party to the other, shall be submitted to arbitration by an Arbitral Tribunal as
hereinafter provided:
(a)
The parties to such arbitration shall be the IDB on one side and the Agent
on the other side.
(b)
The Arbitral Tribunal shall consist of three arbitrators appointed as
follows:
One arbitrator shall be appointed by the IDB. the second arbitrator shall
be appointed by the Agent and the third arbitrator (hereinafter referred to
as "the Referee") shall be appointed by agreement of the parties, or if
they shall not agree, by the Secretary General of the Organization of
Islamic Conference (OIC). The Referee shall be a lawyer specialized in
international finance or a banker with knowledge of Islamic finance
transactions. If either party shall fail to appoint an arbitrator, such
arbitrator shall be appointed by the Secretary General of OIC. In case any
arbitrator appointed in accordance with this Section shall resign, die or
become unable to act, a successor arbitrator shall be appointed in the
prescribed for the appointment of the original
same manner as ｨ･ｲｾｩｮ＠
arbitrator and such successor shall have all the powers and duties of such
original arbitrator.
(c)
An arbitration proceedings may be instituted under this Section upon
notice by the party instituting such proceedings to the other party. Such
notice shall contain a statement setting forth the nature of the dispute or
claim to be submitted to arbitration, the nature of the relief sought, the
name of the arbitrator appointed by the party instituting the proceedings
and the name of a proposed Referee. Within 30 (Thirty) days after the
giving of such notice, the other party shall notify to the party instituting
the proceedings the name of the arbitrator appointed by such other party
ｾｊｉ＠
JO
and its agreement or disagreement to the appointment of the proposed
Referee.
(d)
If within 60 (Sixty) days after the giving of such notice instituting the
arbitration proceedings the parties shall not have agreed upon a Referee
or the party to whom notice of arbitration is given fails to appoint an
arbitrator, any party may request the appointment of the second arbitrator
or a Referee (as the case may be) as provided in paragraph (b) of this
Section.
(e)
The Arbitral Tribunal shall convene at such time and place as shaJJ be
determined by the Referee. Thereafter, the Arbitral Tribunal shall
determine where and when it shall sit.
(f)
Subject to the provisions of this Section, and except as the parties shall
otherwise agree, the Arbitral Tribunal shall decide all questions relating
to its competence and shall determine its procedure. All decisions of the
Arbitral Tribunal shall be by a majority vote.
(g)
The Arbitral Tribunal shall afford to all parties a fair hearing and shall
render its award in writing. An award signed by a majority of the Arbitral
Tribunal constitutes the award of such Tribunal. A signed counterpart of
the award shall be transmitted to each party. Any award rendered in
accordance with the provisions of this Section shall be final and binding
upon the parties to this Agreement. Each party shall abide by and comply
with any such award rendered by the Arbitral Tribunal in accordance
with the provisions of this Section.
(h)
The parties shall fix the amount of the remuneration of the arbitrators and
such other persons as shall be required for the conduct of the arbitration
proceedings. If the parties shall not agree on such amount before the
Arbitral Tribunal shall convene, the Arbitral Tribunal shall fix such
amount as shall be reasonable under the circumstances. The IDB and the
Agent shall each defray its own expenses in the arbitration proceedings.
The costs of the Arbitral Tribunal shall be divided between and be borne
equally by the IDB and the Agent. Any question concerning the division
of the costs of the Arbitral Tribunal or the procedure for payment of such
costs shall be determined by the Arbitral Tribunal.
(i)
The provisions for arbitration set forth in this Section shall be in lieu of
any other procedure for the determination of disputes between the parties
to this Agreement or any claim by any such party against the other party
arising under this Agreement.
G)
If within 30 {Thirty) days after counterparts of the award shall be
delivered to the parties the award shall not be complied with, any party
may enter judgment upon, or institute proceedings to enforce the award,
in any court of competent jurisdiction against the other party, may
enforce such judgment by execution or may pursue any other appropriate
11
remedy against such other party for the enforcement of the award or the
provisions of this Agreement.
(k)
Service of any notice or process in connection with any proceedings
under this Section or in connection with any proceedings to enforce any
award rendered pursuant to this Section may be made in the manner
provided in Article-XIV of this Agreement. The parties to this
Agreement waive any and all other requirements for the service of any
such notice or process.
Article-XIV
NOTICES
14.1
Any notice or request to be given or to be made by a party to the other under this
Agreement or in connection therewith shall be in writing and may be given by
telex or letter. Such notice or request shall be deemed to have been duly given or
made when it shall be delivered by hand or mail or sent by telex or telefax to the
other party at its address specified in Section 14.2 hereof or any other address as
it may designate by notice to the other party.
14 .2
For the purposes of Section l 4 .1 hereof, the parties have given their addresses as
follows:
For the Agent:
(i) Ministry of Finance
Directorate General of Treasury
P.O. Box: 139
Jalan Lapangan Banteng Timur 2-4
Jakarta Pusat ( 10710) Indonesia
Tel (62 21) 386-5330
Fax (62 21) 381-2859
(ii) Ministry of Religious Affairs
JI. Lapangan Banteng Barat No. 3-4
Jakarta Pusat ( I 0710) Indonesia
Tel: (62 21) 3519734
Fax: (62 21) 3812344
(i ii) UIN Alauddin
JI. Sultan Alauddin No. 63
Makassar 90221 Indonesia
Tel: (62 411) 864924
Fax: (62 21) 86 49 23
12
j(JI
For the Islamic Development Bank
P.O. Box: 5925. Jeddah-21432
Kingdom of Saudi Arabia
Telex: 601137 ISDB SJ
Cable: BANKISLAMI JEDDAH
Fax:636687 1
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the
date mentioned in the Preamble to this Agreement.
FOR AND ON BEHALF OF THE FOR AND ON BEHALF OF THE
GOVERNMENT OF THE REPUBLIC ISLAMIC DEVELOPMENT BANK:
OF INDONESIA:
DR. SALIM SEGAF AL-JUFRIE, MA
AMBASSADOR EXTRAORDINARY A D
PLE IPOTENTIARY OF REPUBLIC OF
INDONESIA TO THE KINGDOM OF
SAUDI ARABIA
DR. AHMAD MOHAMED ALI
PRESIDENT - IDB
13
ANNEX-I
DESCRIPTION OF THE WORKS
Islamic University of Alauddin Makassar facility at Samata, Gowa will become the
main campus after completion of the proposed Project, housing the teaching and
laboratory facilities for all faculties as well as related support buildings, student
dormitories and university administration block. Civil works would involve
construction of a built-up area of approx. 58, 100 square meters in Samata campus
comprising seven new faculty buildings, supporting buildings and in-campus
infrastructme (roads, adequate car parking spaces, landscaping, drainage, and
installation of utilities). Main components are shown below:
1.
Seven faculty buildings comprising built up area of 37 ,000 m2
ii.
Auditorium /Multipurpose hall (4,000 m2),
111.
Research Centre and Library : (4,500 m 2);
iv.
Polyclinic: (600 m 2 )
v.
Student Dormitories (3,500 m 2) ,
vi.
Cafeteria and Cooperative Centre (2,000 m2).
Gunang Sari Campus will become a centre mainly for various training programs and
research activities. A new seven storied building will be constructed as a training
centre comprising built up area of about 6,000 m2 •
Construction of Student Centre and Rectorate Building, renovation of five existing
faculty buildings at Samata Campus as well as renovation of existing university club,
auditorium and the mosque buildings at Gunang Sari Campus would be carried out
through Government resources.
***********
14
ANNEX-II
DESCRIPTION OF THE PROJECT
The objective of proposed Project is to upgrade and expand the academic and research
facil ities as well as curricula of Islamic University of Alauddin Makassar to carryout
quality education and advanced training in modern science faculties in addition to the
traditional faculties of Islamic Studies and Shariah. The Project of upgrading
Alauddin Makassar into a modern Islamic University comprises construction of seven
faculty buildings and training center, supporting buildings campus infrastructure,
renovation of existing buildings, procurement of equipment and furniture, upgrading
of the curriculum, and capacity building for the staff of the Islamic University of
Alauddin Makassar.
The scope of the Project is aimed to cover the following activities:
a. Civil works;
b. Equipment and Furniture;
c. Consultancy Services;
d. Capacity Building of Faculty/Staff;
e. Academic Curriculum Development
f.
-
Project Management Unit (staff and equipment);
g. Project Financial Auditing;
h. P roject Start-up Workshop.
***********
15
ISTISNA' A AGENCY AGREEMENT
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF
INDONESIA
AND
ISLAMIC DEVELOPMENT BANK
CONCERNING
THE DEVELOPMENT AND UPGRADING OF ISLAMIC UNIVERSITY OF
ALAUDD IN MAKASSAR PROJECT IN INDONESIA
O:\FAgrts\lstisna'a\IND- 118(1ST-AGY). r1f-9/30/2006 3:34 PM
ISTISNA'S AGENCY AGREEMENT
TIDS AGREEMENT is entered into on \ 0 /_Q__2}1427H (corresponding to
0 2 I lO /20060) between the Government of the Republic of Indonesia (hereinafter
referred to as the "Agent'') and Islamic Development Bank (hereinafter referred to as the
"IDB").
WHEREAS,
1)
IDB has agreed in accordance with the agreement of even date (hereinafter
refened to as the "Istisna'a Agreement") to construct for the Agent the Works
described in Annex 1 to this Agreement (hereinafter referred to as the "Works")
fo r use in the Project described in Annex-TI to this Agreement;
2)
IDB has agreed with the Agent that the Agent shall, on behalf of IDB conclude
the Contract with the Contractor and supervise the construction of the Works;
3)
The Parties have agreed that the Executing Agency responsible for the
implementation of the Project on behalf of the Agent shall be the Ministry of
Religious Affairs of the Republic of Indonesia. The Parties have also agreed that
the Executing Agency shall implement the Project through a Project
Management Unit (PMU) consisting of authorized personnel of the Islamic
University of Alauddin Makassar, Indonesia.
NOW, THEREFORE, IDB and the Agent hereby agree as follows:
A rticle-I
DEFINITIONS - INTERPRETATION
1.1
In this Agreement, unless the context otherwise requires, the following terms
shall have the meaning appearing against each of them hereunder:
Approved Amount:
The amount approved by the IDB for the construction of
the Works.
Works:
The Works described in Annex-I hereto.
Capital Cost:
The total cost of the construction of the Works which
shall include the Contract Price, Consultant's fees and
any other costs or expenses incwTed by the IDB in or in
c01mection with the construction of the Works and
supervision of the construction.
Consultancy
Agreement:
The agreement for the supervision of the construction of
the Works to be entered into between the Agent and the
Consultant pursuant to Article V hereto.
2
Disbursement
Any payment to be made pursuant to this Agreement, the
Contract or Consultancy Agreement.
Contract Price:
The price payable to the Contractor for the construction
of the Works.
Contract:
The contract for the construction of the Works to be
concluded on behalf of the IDB by the Agent with the
Contractor.
Contractor:
The contractor who shall be entrusted with the
construction of the Works.
Consultant:
The consultant to be appointed in accordance with
Article-V hereof who shaJI be entrusted with the
supervision of the Works to be performed under the
Contract as indicated in the Consultancy Agreement.
Date of First
Disbursement:
The date on which the IDB makes the first disbursement
under the Contract, or to the Consultant, whichever is
earlier.
E ffective Date:
Tbe date on which the IDB declares this Agreement
effective in accordance with Article-XI hereof.
Final Acceptance
Certificate:
The certificate issued by the Consultant in accordance
with the terms of the Contract and countersigned by the
Agent which denotes that the construction of the Works
has been satisfactorily completed by the Contractor.
Gestation Period:
The period commencing on the Date of First
Disbursement and ending 36 (Thirty Six) months
thereafter.
Preliminary
Acceptance
Certificate:
The certificate issued by the Consultant under the
Contract and counter-signed by the Agent which denotes
the preliminary acceptance of the Works by the Agent as
indicated in the Contract.
Project:
The Project described in A1mex II hereto.
Tax:
Any tax, levy, impost, duty or other charge of similar
nature (including without limitation any penalty payable
in connection with any fai lure to pay or delay in paying
any of the same).
3
1.2
In this Agreement:
(a)
Unless the context otherwise requires, words denoting the singular
include the plural and vice-versa, words denoting persons include
corporations and partnerships; and references to a specified Annex,
Appendix, Article or Section is a reference to that Annex, Appendix,
Article or Section of this Agreement.
(b)
Words and expressions defined in the lstisna'a Agreement and not
defined herein shall have the same meaning as given in the Istisna'a
Agreement.
(c)
The Article and Section headings are inserted for convenience of
reference only and shall not be used to define, interpret or limit any of the
provisions of this Agreement.
Article-II
PREAMBLE AND ANNEXES PART OF THE AGREEMENT
The Preamble and the Annexes to this Agreement shall be an integral part thereof.
Article-III
SELECTION OF THE CONTRACTOR
3.1
It is agreed between the parties hereto that the Agent, in consultation with the
IDB and in accordance with the Procurement Procedures of the IDB and subject
to its approval, will procure the contracts for the execution of the Project based
on the following:
(a) National Competitive Bidding (NCB) from pre-qualified contractors for civil
Works.
(b) National Competitive Bidding (NCB) from short-listed local consultants
in collaboration between the Project Management Unit (PMU) and IDB
for consultancy services.
(c) Local hiring of qualified professionals for PMU experts.
(d) Direct national shopping for the office equipment of the PMU.
(e) National Competitive Bidding (NCB) from short-listed domestic auditing
firms for the auditing services.
3.2
The Agent shall on behalf of the IDB negotiate and conclude a Contract with the
Contractor subject to the following:
(a)
The terms and conditions of the Contract shall be agreed upon between
IDB and the Agent.
4
(b)
The Contract Price shall not exceed US$ 25,861 ,000/- (United States
Dollars Twenty Five Million Eight Hundred and Sixty One Thousand)
(which is approximately equivalent to ID 17,713,000/-) only.
(c)
The period for completion of the Construction of the Works under the
Contract shall not exceed 36 (Thirty Six) months from the Date of First
Disbursement to the Contractor.
(d)
The Specifications of the Works under the Contract shall be as those
briefly described in Annex-I to this Agreement and detailed in the
Contract.
(e)
The written approval of the IDB to the terms and conditions of the
negotiated Contract shall be obtained before the conclusion by the Agent
of the Contract.
(f)
After completion, the Works shall be taken-over directly by the Agent.
(g)
The Contract shall stipulate that the Contractor shall procure a
contractor's all risk insurance as customary in the trade, and the proceeds
of the insurance shall be payable to IDB in US Dollars.
Article-IV
ALTERATIONS AND AMENDMENTS OF THE CONTRACT
The Agent shall not, without the prior written consent of the IDB, make any
amendments, alterations or modifications of the Contract which may (a) result in an
increase in the Contract Price or (b) result in an extension of the Completion Date or (c)
result in a change of the Specification, or (d) not be in accordance with usual good
practice.
Article- V
APPOINTMENT OF A CONSULTANT
5.1
ln order to assist the Agent in the supervision of the Contract, the Agent, in
accordance with the ID B's Procedw-es, will select and contract the services of the
Consultant.
5.2
The terms and conditions of the Consultancy Agreement shall be agreed upon in
writing between the IDB and the Agent prior to the invitation of proposal of the
interested consultants.
5.3
The Agent undertakes that in its supervision of the Contract, it will exercise the
highest standard of diligence and care in monitoring, with the assistance of the
Consultant, the punctual and correct performance by the Contractor of its
obligations under the Contract with a view to ensuring that the Works will be
constructed in accordance with the specifications within the tin1e and for the
price stipulated in the Contract.
5
5.4
Without prejudice to the generality of Section 5.3 hereof. the Agent shall be
obliged to:
(a)
advise the IDB, as soon as reasonably practicable, of any delay or
anticipated delay in the completion of the construction of the Works with
full details thereof;
(b)
deal with all reguJatory and administrative matters relating to the
construction of the Works in accordance with the relevant laws in
Indonesia;
(c)
sign the P reliminary Acceptance Certificate and the FinaJ Acceptance
Certificate if he is satisfied that the Work in the relevant stage has been
executed in confonnity with the Contract including the Specifications.
5.5
If in breach of Article V hereof. the Agent gives instructions to the Contractor as
a result of which there is an increase in the Contract Price or the IDB becomes
liable to any party for any claim. loss, damage or expense then the Agent agrees
to bear the increase in the Contract Price or, as the case may be, to indemnify the
IDB for any such claim. loss, damage or expense.
5.6
It is agreed that the Agent will provide such number of his personnel as wouJd be
necessary to carry out his duties under this Agreement, the ConsuJtancy
Agreement and under the Contract.
5.7
The Agent shall not be entitled lo any remuneration or other payment from the
IDB in connection with or arising out of hjs appointment as the Agent under this
Agreement.
Article- VI
DISBURSEMENT OF THE APPROVE D AMOUNT
6.1
The IDB will disburse the Approved Amount in the manner set out in the
Contract and in conformity with the Disbursement Procedures of the IDB.
6.2
Without prejudice to the generality of Section 6.1 hereof, the Agent shall:
6.3
(a)
when submitting the application for first Disbursement to the ConsuJtant,
provide a copy of the signed ConsuJtancy Agreement.
(b)
When submitting the application for first Disbursement under the
Contract, provide a signed copy of the Contract (if not submitted earlier)
and copy of the policy of insurance referred to in Section 3.2 (g) hereof.
IDB shall not be obliged to effect any Disbursement hereunder if the
Disbursement application is not in confonnity with this Agreement or if the
documents submitted by the Agent are incomplete or otherwise defective. The
Agent shall be responsible for any delay in effecting Disbursement if such delay
6
is due to the application being not in confonnity with this Agreement or due to
insufficiency of or discrepancy in the required documents.
Article-Vll
TAKING OVER THE WORKS
7 .1
It is agreed that the Contract shall provide for taking over the Works after
completion directly by the Agent. It is also agreed that in no event shall the IDB
be liable for the Agent for any loss resulting from any delay in taking over the
Works.
7.2
For the avoidance of doubt, it is agreed that if the Agent after signing the Final
Acceptance Certificate, refuses to take over the Works from the Contractor for
any reason whatsoever, the Agent shall indemnify IDB for any costs, expenses or
loss resulting therefrom.
Article-VIII
REPRESENTATIONS AND WARRANTIES
The Agent represents and warrants that:
1)
be has power to enter into this Agreement and to perform his obligations
hereunder and all action required to authorize the execution of this Agreement
and the performance by the Agent of his obligations hereunder has been duly
taken;
2)
the obligations expressed to be assumed by the Agent in this Agreement are legal
and valid obligations binding on the Agent in accordance with the terms hereof;
3)
the execution of this Agreement and the Agent's performance of his obligations
ｾ＠
hereunder do not constitute and will not result in any breach of any ｡ｧｲ･ｭｮｴ
treaty or law;
4)
all acts, conditions and things (including exchange control consents) required by
the laws of Indonesia to be done, fulfilled and performed in order:
5)
(i)
to enable the Agent lawfully to enter into and perform the obligations
expressed to be assumed by him in this Agreement;
(ii)
to ensure that the obligations expressed to be assumed by him in this
Agreement are legal, valid and enforceable; and
(iii)
to make this Agreement admissible in evidence in Indonesia without
fu11her steps or fonnalities have been done, fulfilled and performed in
strict compliance with the laws and Constitution of Indonesia;
no action or administrative proceeding of or before any court or agency which
might have a material adverse effect on the financial condition of the Agent has
been initiated or threatened;
7
6)
under the laws of Indonesia in force at the date hereof, the claims of the IDB
against the Agent under this Agreement will rank at least pari passu with the
claims of all other unsecured creditors for any indebtedness of the Agent;
Article-IX
INDEMNITY
9.1
The Agent hereby undertakes to indemnify the IDB, on a net after-tax basis (at
the applicable local and foreign income tax rates) against, and agrees to protect,
save and keep harmless, the IDB from any, and all obl igations, fees , liabilities,
losses, damages, penalties, demands, actions, judgments and expenses, including
reasonable legal fees and expenses (including such legal fees and expenses
incurred in connection with the enforcement of this Agreement), of every kind
and nature whatsoever imposed on, incurred by, or asserted against an IDB
arising out of:
(a)
ownership, possession, use, documentation, removal, return, or other
applications or dispositions under the Contract or the Consultancy
Agreement, including of such as may arise from:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
9.2
any loss or damage to any property or death or injury to any
person;
patent or latent defects in the Works;
any claims based on strict liability in tort or otherwise;
any claim based on patent, trademark or copyright infringement;
any claims based on Liability arising under the applicable
environmental Jaws or environmental approvals;
any claim regarding title to the Works or the land on which it is
constructed;
any claim or dispute relating to the Contract or any Letter of
Credit established pursuant thereto or relating to the Consultancy
Agreement.
(b)
the occUITence of any Default or any other failure on the part of the
Agent or the Contractor to perform or comply with any tenn of this
Agreement, or any document, agreement or contract entered into in
relaLion hereLo or otherwise in relation to the Works, but excluding any
claim based upon any failure on the part of the IDB to comply with its
obligations under this Agreement or any document, agreement or
contract entered into by the IDB in relation hereto or otherwise in relation
to the Works;
(c)
any claims, encumbrances, security interests, and liens or legal processes
regarding title to or interest in the Works or the land on which it is
constructed.
The Agent shall give the IDB prompt notice of any occurrence or condition
known to the Agent as a consequence of which IDB is or is reasonably likely to
8
be entitled to indemnification. The indemnification provided in Section 9.1 shall
specifically apply to and include claims or actions brought by or on behalf of
employees of the Agent and the Agent hereby expressly waives, as against the
IDB, any immunity to which the Agent might otherwise be entitled under any
applicable laws. The Agent shall promptly upon request by the IDB (but in any
event within fifteen days of such request) reimburse the IDB for amounts
expended by it in connection with any of the foregoing or pay such amounts
directly. The Agent shall be subrogated to the IDB 's rights in any matter with
respect to which the Agent has actually reimbursed the IDB for amounts
expended by it or has actually paid such amounts directly pursuant to Section
9.1. In case any action or proceeding is brought against IDB in connection with
any indemnified claim, the IDB will, after receipt of notice of the
commencement of such action or proceeding, notify the Agent thereof, enclosing
a copy of all papers served upon the IDB. The Agent may, and upon the IDB 's
request, will resist and defend such action or proceeding at the Agent's expense,
or cause the same to be resisted or defended by counsel selected by the Agent
and reasonably satisfactory to the IDB. In the event of any failure by the Agent
to do so, the Agent shall pay all costs and expenses (including reasonable
attorney' s fees and expenses) incurred by the IDB in connection with such action
or proceeding.
A rticle-X
REPORTS
The Agent undertakes to submit the following reports to the IDB:
a)
Within three months after the Effective Date of the Agreement and thereafter
every three months, a report on the progress and implementation of the Contract
in such manner as the IDB may from time to time specify;
b)
90 days after the end of each financial year, a repo1t on the financial condition of
the Agent and the results of its operations during the financial year then ended
together with the audited statement of account including balance sheet and profit
and loss account for the financial year then ended;
c)
Promptly after the issuance of the Final Acceptance Certificate but not later than
six months after issuance of such Certificate, submit a completion report of such
scope and in such detail as the IDB may reasonably request, on the Constrnction
and the initial operation of the Works.
d)
Any other report or infonnation which the IDB may from time to time
reasonably request.
Article-XI
WAIVER
Failure of the IDB to exercise or assert any of its rights under this Agreement or its delay
in the same or its failure to exercise or assert any remedy it may have against the Agent
9
or its delay in the same, shall not prejudice such right or remedy and shall not be
construed as a waiver of such right or remedy.
Article-XII
EFFECTIVE DATE
This Agreement shall become effective from the Effective Date of the Istisna'a
Agreement.
Article-XIII
GOVERNING LAW - SETTLEMENT OF DISPUTES
13.1
This Agreement shall be governed by, and be construed in accordance with
Islamic Shariah.
13.2
Any dispute between the parties to this Agreement and any claim by such party
against the other party arising under the Agreement which could not be settled
amicably by the parties within 60 (Sixty) days from the date of notice from one
party to the other, shall be submitted to arbitration by an Arbitral Tribunal as
hereinafter provided:
(a)
The parties to such arbitration shall be the IDB on one side and the Agent
on the other side.
(b)
The Arbitral Tribunal shall consist of three arbitrators appointed as
follows:
One arbitrator shall be appointed by the IDB. the second arbitrator shall
be appointed by the Agent and the third arbitrator (hereinafter referred to
as "the Referee") shall be appointed by agreement of the parties, or if
they shall not agree, by the Secretary General of the Organization of
Islamic Conference (OIC). The Referee shall be a lawyer specialized in
international finance or a banker with knowledge of Islamic finance
transactions. If either party shall fail to appoint an arbitrator, such
arbitrator shall be appointed by the Secretary General of OIC. In case any
arbitrator appointed in accordance with this Section shall resign, die or
become unable to act, a successor arbitrator shall be appointed in the
prescribed for the appointment of the original
same manner as ｨ･ｲｾｩｮ＠
arbitrator and such successor shall have all the powers and duties of such
original arbitrator.
(c)
An arbitration proceedings may be instituted under this Section upon
notice by the party instituting such proceedings to the other party. Such
notice shall contain a statement setting forth the nature of the dispute or
claim to be submitted to arbitration, the nature of the relief sought, the
name of the arbitrator appointed by the party instituting the proceedings
and the name of a proposed Referee. Within 30 (Thirty) days after the
giving of such notice, the other party shall notify to the party instituting
the proceedings the name of the arbitrator appointed by such other party
ｾｊｉ＠
JO
and its agreement or disagreement to the appointment of the proposed
Referee.
(d)
If within 60 (Sixty) days after the giving of such notice instituting the
arbitration proceedings the parties shall not have agreed upon a Referee
or the party to whom notice of arbitration is given fails to appoint an
arbitrator, any party may request the appointment of the second arbitrator
or a Referee (as the case may be) as provided in paragraph (b) of this
Section.
(e)
The Arbitral Tribunal shall convene at such time and place as shaJJ be
determined by the Referee. Thereafter, the Arbitral Tribunal shall
determine where and when it shall sit.
(f)
Subject to the provisions of this Section, and except as the parties shall
otherwise agree, the Arbitral Tribunal shall decide all questions relating
to its competence and shall determine its procedure. All decisions of the
Arbitral Tribunal shall be by a majority vote.
(g)
The Arbitral Tribunal shall afford to all parties a fair hearing and shall
render its award in writing. An award signed by a majority of the Arbitral
Tribunal constitutes the award of such Tribunal. A signed counterpart of
the award shall be transmitted to each party. Any award rendered in
accordance with the provisions of this Section shall be final and binding
upon the parties to this Agreement. Each party shall abide by and comply
with any such award rendered by the Arbitral Tribunal in accordance
with the provisions of this Section.
(h)
The parties shall fix the amount of the remuneration of the arbitrators and
such other persons as shall be required for the conduct of the arbitration
proceedings. If the parties shall not agree on such amount before the
Arbitral Tribunal shall convene, the Arbitral Tribunal shall fix such
amount as shall be reasonable under the circumstances. The IDB and the
Agent shall each defray its own expenses in the arbitration proceedings.
The costs of the Arbitral Tribunal shall be divided between and be borne
equally by the IDB and the Agent. Any question concerning the division
of the costs of the Arbitral Tribunal or the procedure for payment of such
costs shall be determined by the Arbitral Tribunal.
(i)
The provisions for arbitration set forth in this Section shall be in lieu of
any other procedure for the determination of disputes between the parties
to this Agreement or any claim by any such party against the other party
arising under this Agreement.
G)
If within 30 {Thirty) days after counterparts of the award shall be
delivered to the parties the award shall not be complied with, any party
may enter judgment upon, or institute proceedings to enforce the award,
in any court of competent jurisdiction against the other party, may
enforce such judgment by execution or may pursue any other appropriate
11
remedy against such other party for the enforcement of the award or the
provisions of this Agreement.
(k)
Service of any notice or process in connection with any proceedings
under this Section or in connection with any proceedings to enforce any
award rendered pursuant to this Section may be made in the manner
provided in Article-XIV of this Agreement. The parties to this
Agreement waive any and all other requirements for the service of any
such notice or process.
Article-XIV
NOTICES
14.1
Any notice or request to be given or to be made by a party to the other under this
Agreement or in connection therewith shall be in writing and may be given by
telex or letter. Such notice or request shall be deemed to have been duly given or
made when it shall be delivered by hand or mail or sent by telex or telefax to the
other party at its address specified in Section 14.2 hereof or any other address as
it may designate by notice to the other party.
14 .2
For the purposes of Section l 4 .1 hereof, the parties have given their addresses as
follows:
For the Agent:
(i) Ministry of Finance
Directorate General of Treasury
P.O. Box: 139
Jalan Lapangan Banteng Timur 2-4
Jakarta Pusat ( 10710) Indonesia
Tel (62 21) 386-5330
Fax (62 21) 381-2859
(ii) Ministry of Religious Affairs
JI. Lapangan Banteng Barat No. 3-4
Jakarta Pusat ( I 0710) Indonesia
Tel: (62 21) 3519734
Fax: (62 21) 3812344
(i ii) UIN Alauddin
JI. Sultan Alauddin No. 63
Makassar 90221 Indonesia
Tel: (62 411) 864924
Fax: (62 21) 86 49 23
12
j(JI
For the Islamic Development Bank
P.O. Box: 5925. Jeddah-21432
Kingdom of Saudi Arabia
Telex: 601137 ISDB SJ
Cable: BANKISLAMI JEDDAH
Fax:636687 1
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the
date mentioned in the Preamble to this Agreement.
FOR AND ON BEHALF OF THE FOR AND ON BEHALF OF THE
GOVERNMENT OF THE REPUBLIC ISLAMIC DEVELOPMENT BANK:
OF INDONESIA:
DR. SALIM SEGAF AL-JUFRIE, MA
AMBASSADOR EXTRAORDINARY A D
PLE IPOTENTIARY OF REPUBLIC OF
INDONESIA TO THE KINGDOM OF
SAUDI ARABIA
DR. AHMAD MOHAMED ALI
PRESIDENT - IDB
13
ANNEX-I
DESCRIPTION OF THE WORKS
Islamic University of Alauddin Makassar facility at Samata, Gowa will become the
main campus after completion of the proposed Project, housing the teaching and
laboratory facilities for all faculties as well as related support buildings, student
dormitories and university administration block. Civil works would involve
construction of a built-up area of approx. 58, 100 square meters in Samata campus
comprising seven new faculty buildings, supporting buildings and in-campus
infrastructme (roads, adequate car parking spaces, landscaping, drainage, and
installation of utilities). Main components are shown below:
1.
Seven faculty buildings comprising built up area of 37 ,000 m2
ii.
Auditorium /Multipurpose hall (4,000 m2),
111.
Research Centre and Library : (4,500 m 2);
iv.
Polyclinic: (600 m 2 )
v.
Student Dormitories (3,500 m 2) ,
vi.
Cafeteria and Cooperative Centre (2,000 m2).
Gunang Sari Campus will become a centre mainly for various training programs and
research activities. A new seven storied building will be constructed as a training
centre comprising built up area of about 6,000 m2 •
Construction of Student Centre and Rectorate Building, renovation of five existing
faculty buildings at Samata Campus as well as renovation of existing university club,
auditorium and the mosque buildings at Gunang Sari Campus would be carried out
through Government resources.
***********
14
ANNEX-II
DESCRIPTION OF THE PROJECT
The objective of proposed Project is to upgrade and expand the academic and research
facil ities as well as curricula of Islamic University of Alauddin Makassar to carryout
quality education and advanced training in modern science faculties in addition to the
traditional faculties of Islamic Studies and Shariah. The Project of upgrading
Alauddin Makassar into a modern Islamic University comprises construction of seven
faculty buildings and training center, supporting buildings campus infrastructure,
renovation of existing buildings, procurement of equipment and furniture, upgrading
of the curriculum, and capacity building for the staff of the Islamic University of
Alauddin Makassar.
The scope of the Project is aimed to cover the following activities:
a. Civil works;
b. Equipment and Furniture;
c. Consultancy Services;
d. Capacity Building of Faculty/Staff;
e. Academic Curriculum Development
f.
-
Project Management Unit (staff and equipment);
g. Project Financial Auditing;
h. P roject Start-up Workshop.
***********
15