PRE-BID AGREEMENT

This Pre-bid Agreement (Agreement) entered on this 30th day of May 2015.
By and Between
Al Shafar General Contracting L.L.C., whose registered office is P.O. Box 13164,
Dubai, UAE, (hereinafter referred to as ASGC)
AND
Yotek Construction L.L.C., whose registered office is P.O. Box 1451, Code 1110
Addis Ababa, Ethiopia (hereinafter referred to as "Yotek"),
The expressions "Yotek and ASGC shall, wherever the context admits, mean and
include their respective legal representative(s), successor(s)-in-interest and assigns
and shall collectively be referred to as "the Parties" and individually as "the Party".
PREAMBLE
WHEREAS THE NIB INTERNATIONAL BANK NIB, (hereinafter referred to as the
"Employer") has invited tenderers for the execution of the construction of NIB
Headquarter Project. (hereinafter referred to as the "Project");
AND WHEREAS the Parties have indicated their willingness to co-operate with
respect to preparing and submitting to the Employer their bid (hereinafter referred to
as the Bid) for the Project and in the event of a contract (hereinafter referred to as
the Contract) being awarded to the Parties by the Employer, the Parties shall
proceed to enter into a Joint Venture for the execution of the Project.
NOW, therefore, ASGC and YOTEK hereby agree to the following terms of the
Agreement:
Clause 1 - PURPOSE OF THE AGREEMENT
1.1

The purpose of this Agreement is to establish the principles governing the

relationship of the Parties with each other, the Employer, and third Parties with
respect to the Project during Bid preparation and submission, Contract
negotiation and Contract implementation.

1.2

ASGC and YOTEK hereby agree that they accept and form an intergrated
Joint Venture to execute the Project with the other Parties to the satisfaction
of the Employer under joint and several liability regardless of their respective
shares in the Joint Venture and in the event of the same being accepted by
the Employer, to enter into the Contract. The Parties shall co-operate with

1 of 8

each other to the maximum extent in order to secure the Project and
thereafter to invest their full resources to execute and maintain it successfully
in accordance with the terms of the Contract.
Clause 2 - JV REPRESENTATIVE - LEADER
2.1

The Parties will jointly co-ordinate the preparation and the submission of their
Bids to the Employer.

2.2

For the purpose of the Contract, the Parties authorize ASGC to lead the Joint
Venture. Both Parties will agree and establish a Supervisory Board to exercise
overall control and administration of the Joint Venture.

Clause 3 PARTICIPATING INTEREST / SHARING RATIO

3.1

The Parties agree that in the event that the Project is awarded to the Joint
Venture, the respective participation resources and interests of each Party in
the Joint Venture shall, at all times, be in the following shares:Participation Percentage (%)
ASGC
YOTEK

3.2

60%
40%

The Parties shall mutually discuss and agree upon the price of the Bid,
Working Capital, Project Cost, Management of the Joint Venture, assumptions
and responsibilities of each Party and any special conditions.

Clause 4 - TENDER, NEGOTIATIONS, CONTRACT:

4.1

All negotiations with the Employer and/or the Project Manager by the JV in
connection with the Contract award shall be with the involvement and prior
consent of the Parties.

4.2

No changes, additions or modifications to the submitted Bid and no verbal or

written agreement with the Employer and/or the Project Manager containing
such changes, additions or modifications shall be made without the
unanimous prior consent of the Parties. Withdrawal of the Bid as well as any
extension of the time of validity of Bid requires likewise the prior unanimous
consent of the Parties.

4.3

During the negotiations with the Employer and or the Project Manager, the JV
may not offer any concession or price discount without obtaining the prior
written consent of all Parties.

2 of 8

Clause 5 - EXCLUSIVITY
5.1

During the validity of this Agreement, none of the Parties shall enter into any
similar agreement or Memorandum of Understanding of any nature in respect
of the Project, discuss matters concerned under this Agreement, tender for or
execute
the
Project,
either
directly,
indirectly,
through
their
subsidiary/associate or otherwise, with any other party.

Clause 6 LIABILITY
6.1

None of the Parties shall be liable to the other Party for any specific incidental,
direct, indirect or consequential loss, injury or damages, loss or anticipated
loss of income or profit, business interruption or disruption, loss by reasons of
delay or inability in proceeding with the Project howsoever arising.

6.2

The internal liabilities/responsibilities of the Parties will be mutually agreed in

line with the terms and conditions as set out in the successful Bid and this
Agreement.

Clause 7 - ASSIGNMENT
7.1

The Parties shall not assign or transfer any interest under this Agreement,
without the prior written consent of the other Parties.

Clause 8: NO AGENCY
8.1
8.2
8.3

This Agreement relates only to the single purpose of the successful Bid and
the Joint Venture contemplated in it.
Nothing contained herein is intended to create a partnership, agency, fiduciary
relationship or any other separate legal or corporate entity among the Parties.
No Party has the right to represent or bind the other Party without the other
Party's prior written consent.

Clause 9 - DURATION OF THE AGREEMENT

9.1

This Agreement shall remain valid until it becomes null and void if any one or
more of the following events occur:

a)
b)
c)
d)
e)
f)

the Employer abandons the Project;

the Employer awards the Project to some other party;
the Parties are disqualified;
either Party is declared insolvent by a Court of competent jurisdiction;
by mutual consent;
by 30th September 2015.

3 of 8

Clause 10 CONFIDENTIALITY
10.1

Each of the Parties hereby warrants and undertakes that during the
continuance and after determination of this Agreement they will not, without
the consent of the other Party, use or disclose any information obtained by
either Party under this Agreement unless and until such information becomes
generally available to the public.

Clause 11 - NOTICES
11.1

All notices and communications shall be sent to the following addresses of the
Parties:

YOTEK

Yotek Construction
Attn: Dawit Ghidey
General Manager
PO Box 1451, Code 1110, Addis Ababa
Tel: +251 11 372 7112/Fax: +251 11 371 7124

ASGC

Al Shafar General Contracting L.L.C.

Attn: Nashat Louis
Chief Operating Officer
Al Safina Building, Oud Metha
PO Box 13164, Dubai, UAE
Tel 00971 4 3366605 / Fax 00971 4 3366118

Clause 12 - PRE-AWARD EXPENSES:

12.1

Each Party shall separately bear all costs and expenses they may expend or
incur in connection with the preparation, submission and negotiation of the
Bid.

Clause 13 - AMENDMENTS:
13.1

Any amendments to this Agreement shall be in writing and signed by the

authorized representatives of the Parties.

Clause 14 LANGUAGE
14.1

All notices, communications and statements shall be made in English

language.

Clause 15 ADMINISTRATIVE MATTERS

15.1

The Parties hereby agree to open if required a Joint Venture Bank Account
under the name of ASGC and YOTEK JV with a mutually agreed Bank in
Ethiopia and/or UAE to serve this Joint Venture and issue any requested

4 of 8

Advance Payment Guarantees or Performance Bonds for the Employer.

Furthermore, the Parties agree and acknowledge that they may nominate any
member of their respective staff to jointly operate the Joint Venture Bank
Account thereafter by way of letter addressed to the elected Bank and duly
signed by all of them.
Clause 16 - DISPUTE RESOLUTION
16.1

Except as otherwise provided in this Agreement any dispute or difference

arising between the Parties in respect of or in connection with or touching the
meaning, construction, interpretation and the rights and obligations of the
Parties under this Agreement shall be first amicably resolved by the
respective Chief Executive Officers of the Parties failing which such
disputes/differences shall be exclusively and finally settled by Arbitration in
London, UK and in accordance with the Rules of Conciliation and Arbitration
of the London Court of International Arbitration (LCIA Rules). The seat or
legal place of the said arbitration shall be London, England.

16.2

The Arbitral Tribunal shall consist of a sole arbitrator to be appointed by the

International Chamber of Commerce and approved by all Parties.

16.3

The language of the arbitration proceedings shall be English and the

venue shall be London, England.

Clause 17 - GOVERNING LAW

17.1

This Agreement shall be governed and construed in accordance with the laws
of England.

Clause 18 Executives of the Joint Venture

18.1 The Executive of the Joint Venture shall be in the order of authority:
a.
b.

Board
Project Manager

18.2 Board
18.2.1 The Board is vested with the control and supreme authority of the Joint
Venture, and shall in any case be responsible for the following:
a. General Policy and General Control;
b. Modification, omissions or alterations to the contract for the works,
c. Appointment and removal of the Projects Manager and the Financial
Manager
d. Principles of Employment Contracts of staff,

5 of 8

e. Approval of the projects plan as prepared by the Project Manager,

f. Approval of major sub-contractors, supply contracts and rental contracts,
g. Approval of proposals by the Project Manager for the organization and set
up of the works and the works site,
h. Approval of periodical balance sheets and profits and loss accounts of the
Joint Venture,
i. Decisions on settlement of disputes and submittal of claims against
Employer and referring same of attribution or to courts of law,
j. Matters referred to the Board by a party, the Projects Manager or the
Financial Manager
18.2.2 ASGC shall designate two members and YOTEK shall designate one
member and one alternate member each who shall be fully authorized to decide
and act in all matters in connection with the Joint Venture.
M/s. YOTEK designates Mr. Dawit Ghidey as the member
And an alternate member would be nominated later.
M/s. ASGC designates Mr. Nashat Louis and Mr. Mohamed Zayout as the
members
And an alternate member would be nominated later.
Both parties may at any time change its designees by filing with other party a
notice of appointment of new designees.
The members will as such not receive any remuneration nor shall parties receive
any compensation for making members available.
18.2.3 The board shall arrive at decision either in meeting in which both parties
are represented, by written approval of all parties on proposal submitted to them
or by other communication procedure as circumstances may require.
18.2.4 Meetings shall be held at regular intervals in accordance with a schedule
to be established from time to time by the board or on the request of one of the
members or of the Projects Manager. The members designated by the parties
shall be alternately presiding over the meeting, one meeting to the other.
Meetings shall be held in the offices of both parties, or on the site or any other
place as may be agreed. They shall be convened by any of the members giving
if possible at least 7 days notice, indicating the points to be discussed and under

6 of 8

presentation of such elucidation and documentation as may be required or

deemed appropriate.
Minutes of meeting shall be recorded by the designated member who presides
over the meeting and distributed to the members and shall be approved latest in
the next meeting. A member, disagreeing with any part of the minutes shall notify
his objections within 10 days after receipt of the minutes but in any case prior to
the subsequent meeting being convened.
18.2.5 Decision can only be taken if all parties are duly represented. In case the
member or the alternate member of a party cannot attend a meeting, such party
shall have a senior employee attend the meeting, which employee shall have full
authorization to vote and act concerning all matters to be discussed and decided.
18.2.6 Each board member shall have one vote and all decisions of the Board
shall unanimous. If, however, in a meeting to unanimity cannot be reached, a
second meeting will be held minimum in 24 hours and maximum of one week
later in which the subject matter will be dealt with and voted up on. If no
unanimous decision is reached at such further meeting, the matter shall forthwith
be referred to the chief executives of the parties who shall not be members of
the board for decision.
18.2.7 If no decision is reached on matters requiring urgent action, the Project
Manager shall take such measures as he shall deem fit and necessary in the
interest of the progress of the works and either party shall, at all times have the
right to refer such matters for resolution in accordance with the provisions of this
Agreement.
18.3 Project Manager
18.3.1 The Project Manager will be stationed on site and be in charge of the daily
management, coordination and supervision of the works and will be appointed by
ASGC.
18.3.2 The Project Manager shall be directly responsible to the Board.
The Project Manager is responsible for the preparation and submission of the
project plan which shall comprise project specific requirements with the intent
that the contract requirements are met via a planned and controlled manner. This
shall include but not be limited to method statements, software and quality and
safety regimes.
18.3.3 The Project Manager shall, on the basis of a reporting system to be
adopted by the Board, inform the members of the Board weekly and monthly
about the progress of the works and the technical, contractual and financial
situation of the Joint Venture.

7 of 8

18.3.4 A document control system is to be approved and implemented prior to

commencement of the works.
18.3.5 The Boards shall issue from time to time such instruction to the Project
Manager as the Board shall deem required or useful.
18.3.6 Both Parties shall issue to the Project Manager a Power of Attorney to
enable him to legally represent the Joint Venture.
18.3.7 For all financial operations and transactions, the Project Manager will
require the active participation and co-signature of the Finance Manager limited
to a board decision.

IN WITNESS WHEREOF the Parties have signed this Agreement the day and date
first above written:
FOR AND ON BEHALF OF
ASGC
BY THE DULY AUTHORISED
REPRESENTATIVE

FOR AND ON BEHALF OF

YOTEK
BY THE DULY AUTHORISED
REPRESENTATIVE

________________________
Bishoy Azmy
CEO

_________________________
Yohannes Teklay
CEO

_________________________
Karim El Shenawy
Business Development Manager
(Witness)

_________________________
Dawit Ghidey
General Manager
(Witness)

8 of 8