BATCH PLANT HIRE AND GENERAL LEASE AGREEMENT
Entered into by and between:
SCRIBANTE CONCRETE (PRIVATE) LIMITED
Of 14 Cuba Avenue, Mt Pleasant, Harare
Hereinafter referred to as, ‘the Lessee and Plant Operator’
Represented herein by:
ERASTUS VAN EEDEN
DOB 09/10/1982
ID No. 8210095082084
he being authorised thereto by Resolution of the Directors of the
Company dated 28th of February 2023, a copy of which is annexed to this
Agreement as ‘Annexure A1’
AND
HARARE QUARRY (PRIVATE) LIMITED
Of stand 11801 Corner Dieppe Road and Airport Road
Private Bag HR 282 Harare
Hereinafter ‘the Lessor’
Represented herein by:
ENGINEER THABANI NDLOVU
DOB XX/XX/XXXX
ID No. XX-XXXXX-XXX
he being authorised thereto by Resolution of the Directors of the
Company dated xx of February 2023, a copy of which is annexed to this
Agreement as ‘Annexure A2’
collectively referred to as “the parties”
RECITALS:
A. Whereas, the Lessor is the proprietor of the Quarry and the portion
of land otherwise known as Harare Quarry, situate at Corner Dieppe
Road and Airport Road Private Bag HR 282 Harare “the property”;
B. And whereas, the Lessee intends to rent the above-mentioned
property from the Lessor for purposes of operating the Batch Plant
and Equipment listed in the Schedule to this Agreement (“the
Schedule”), attached as Annexure B;
C. And whereas, the Lessor is also desirous of making use of the
aforesaid Batch Plant for the purposes of batching the aggregate
crushed from its Quarry;
D. And whereas, the parties in fulfilment of the above-mentioned
objectives have subsequently agreed to enter into a mutually
beneficial Agreement; with the Lessor offering the aforesaid land to
the Lessee, for the latter to operate its Batch Plant thereon, and in
exchange the Lessee operating its Batch Plant, in part, for the
batching of the aggregates supplied by the Lessor;
E. Now therefore, the parties have agreed to enter into this agreement,
upon the terms and conditions stated hereinunder.
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
In interpreting this agreement the contra preferentum rule shall not
be applicable and the words herein shall have the meanings ascribed
herein
notwithstanding
the
common
parlance
and
dictionary
meanings applicable
1.1
In this Agreement:

“Agreement” means this Agreement and any Schedules
and Annexures attached hereto;

“Equipment” “Plant” and “Batch Plant” are all terms which
may be used interchangeably for the purposes of this
agreement, and shall refer to the to the Batch Plant and
Equipment described in the Schedule attached as
Annexure B;

“Establishment Cost” shall mean the sum of money
payable by the Lessee to the Lessor for the Batch Plant
and Equipment to be transported and erected at the
chosen location (site) at the commencement of this
Agreement;

“Lessee” shall refer to Scribante Concrete Zimbabwe
(Private) Limited and includes any authorized officer,
employee or agent of the Lessor who signs this or any
other document on the Lessor’s behalf;

“Lessor” shall refer to Harare Quarry (Private) Limited
and includes any authorized officer, employee or agent of
the Lessee;

“Hire Period” means the period wherein the Batch Plant
and the Equipment referred to in Annexure B shall be
leased to the Lessee by the Lessor and includes such
period of time (if any) as may be extended by the Parties
in writing;

“Location” means the place specified in Clause 10 of this
Agreement or such other place agreed in writing by the
parties, that the Batch Plant and Equipment will be
erected;

“Operator”
means
Scribante
Concrete
Zimbabwe
(Private) Limited, the Lessee, who shall be the operator
of the Batch Plant and Equipment; and

“Property” shall refer to the Quarry and portion of land
situate at Corner Dieppe Road and Airport Road Private
Bag HR 282 Harare upon which the Lessee will be the
tenant and will be erecting and operating its Batch Plant
and any other Equipment as defined herein.
2. EFFECTIVE DATE
2.1
The effective date of this Agreement shall be the 1st of March
2023 notwithstanding the date on which the parties hereto
would have signed the agreement.
2.2
Subject to this Agreement, this Agreement shall continue to run
for a period of five (5) years, from the effective date, and shall
terminate on the 28th of February 2028
2.3
Upon termination of the Agreement, the Lessor shall have the
irrevocable right and option to extend this Agreement for a
further ten (1) years, on the same terms and conditions.
3. RENTING OF PROPERTY AND RENT PAYABLE
3.1
The Lessor hereby agrees to lease a portion of the land situate
within the property for the purposes of operating its Batch Plant
(and related business) whilst, the Lessee hereby agrees to rent
the same.
– we may need coordinates for the specific
land.(specify coordinates of the portion)
3.2
The rent payable for the property by the Lessee to the Lessor
shall be deemed to have been covered by the lessee meeting
their demand quarter and pre-paying for product supplied, in
the event that the lessee of no fault of the lessor fails to buy
products for a 3 week period the lessee shall be liable for rental
at USD 15000 per month or the pro rata holding damages
applicable.
3.3
The rent payable as set out in clause 3.2 shall be payable on or
before the commencement of each new month. Any monies due
under this Agreement shall be made via electronic transfer into
a bank account nominated by the Lessor or such other method
of payment as agreed, in writing, between the parties. Any such
payments shall be made free of bank charges.
4. OPERATING AND USE OF BATCH PLANT
4.1
The parties hereby agree that the Lessee shall operate its Batch
Plant and related Equipment listed under Annexure B at the
Lessor’s property.
4.2
The parties further agree that, the Lessor shall supply the
Lessee with granite, stone and quarry aggregates for the
Lessee to crush and batch the aforesaid aggregates, the supply
of which is defined in this Agreement below.
4.3
In addition, the Batch Plant and Equipment shall be solely
operated by the Lessee.
5. OWNERSHIP AND TITLE
5.1
The Batch Plant and Equipment listed under Annexure B,
including any property of the Lessor leased under this
Agreement, is and shall remain the exclusive property of the
Lessor.
6. LESSEE’S RIGHTS AND OBLIGATIONS
6.1
the rights and obligations provided hereunder shall not be
capable by the lessor, its agents and successor’s in title
6.2
Subject to this agreement, once the Batch Plant and Equipment
is installed and erected at the Lessor’s premises, the Lessee
shall be entitled to possess, keep, store and maintain the Batch
Plant and Equipment at its own cost and expense.
6.3
The Lessee shall pay rent monthly and in advance, without
need for demand and without any deductions, before or on the
1st of each month of the lease period.
6.4
The Lessee shall permit the Lessor reasonable access to the
Batch Plant site for the purposes of carrying out any inspection.
However, before exercising this right, the Lessor must give the
Lessee at least five (5) working days prior notice. For any
urgent access the lessor shall give not more than 24 hours’
notice as the exigencies of the matter might require.
6.5
The Lessee shall comply with all statutes, regulations, by-laws
and other laws relating to the maintenance and use of the Batch
Plant, as well as, the property.
6.6
The Lessee shall maintain its portion of the property in a good
state and must notify the Lessor of any damage to the property
or repair to be effected.
6.7
The Lessee shall keep the premises and immediate surrounding
clean and tidy and free from all rubbish and shall care for the
surrounding garden, trees and plants and shall not cut down
any trees without the prior consent of Lessor.
6.8
The Lessee shall be obliged to protect its Batch Plant and
Equipment from theft or any other loss during the time of the
Agreement, at the Lessee’s own cost.
6.9
Unless otherwise agreed by the parties in writing, the Lessee
must pay all repair, service and operating expenses in respect
of the property including (without limitation) the cost of fuel
and lubricant, the cost of replacement parts and accessories
and the costs of complying with any requirements referred to
in this Clause.
6.10 The Lessee shall install a pre-paid ZESA meter and cover the
cost thereof monthly.
6.11 The Lessee shall have the right to construct a new exit road
from the property onto the Airport Rd for the use its vehicles.
6.12 The Lessee shall, at its sole discretion, procure all of its
aggregates from the Lessor at an agreed negotiated rate, if the
aggregates are to a standard and quality of its liking. Should
the Lessor not be able to fulfill the quantities required, the
Lessee shall be free to buy its aggregates externally, from any
preferred third party.
6.13 The Lessee may construct a concrete wash-bay facility onsite
and may store bulk diesel on-site.
6.14 The Lessee shall pay all rates and any other Municipal charges
appropriately levied on its portion of the rented premises.
6.15 The Lessee shall be entitled to purchase and the Lessor is
obliged to sell 19mm Granite stone to the Lessee @$20 USD
p/m3 (excluding VAT) and Crusher Sand at $15 USD p/m3
(excluding VAT) for a period of 12 months and thereafter a
mutually agreed rate not exceeding 5% Per annum will be
negotiated and agreed to in writing. in the absence of the
agreed rate and during the negotiating period the lessor shall
use its bulk buying discount applicable from time to time until
the rate is agreed upon.
6.16 The Lessee shall be entitled to make any payment due to the
Lessor under this Agreement in either USD cash or USD
electronic transfer (Nostro); unless the parties make a
temporary arrangement for payment in other terms as the
exigencies of the matter may require.
7. LESSOR’S RIGHTS AND OBLIGATIONS
7.1
The Lessor shall ensure that the Lessee has free use and
enjoyment of the property during the currency of this
agreement.
7.2
The Lessor shall provide the Lessee with free water to the
batch-plant free of any monthly or yearly charges.
7.3
The Lessor shall also provide borehole drinking water to the
Lessee Batch-Plant free of charge.
7.4
The Lessor shall, supply aggregates to the Lessee at an agreed
negotiated rate, if the aggregates are to a standard and quality
agreeable to the Parties. Should the Lessor not be able to fulfill
the quantities required, the Lessee shall be free to buy its
aggregates externally, from any preferred third party after
having been notified of such failure by lessor and such purchase
shall be for a temporary period specified in such notice.
7.5
The Lessor hereby grants the Lessee the right to construct a
new exit road from the property onto the Airport Rd for the use
of the Lessee’s vehicles.
7.6
The Lessor agrees that the Lessee may construct a concrete
wash-bay facility onsite and may store bulk diesel on-site.
7.7
The Lessor shall sell 19mm Granite stone to the Lessee @$20
USD p/m3 (excluding VAT) and Crusher Sand at $15 USD p/m3
(excluding VAT) for a period of 12 months and thereafter a
mutually agreed rate not exceeding 5% Per annum will be
negotiated and agreed to in writing. The payment for same
shall be a prepayment.
7.8
The Lessor shall accept any payment due to itself from the
Lessee, notwithstanding that such payment will be either in
USD cash, USD electronic transfer (Nostro); unless some other
agreeable temporary methods are agreed according to the
exigencies’ of the matter.
8. SETOFF
8.1
If the parties engage into the plant hirer agreement for
movable equipment the parties shall fully recognize and
acknowledge the binding nature of the Plant Hire Agreement
agreed between themselves and attached hereto as Annexure
‘C’.
8.2
In addition, the parties hereby agree that any shortfalls and
payments due and outstanding to either party under Annexure
C, may and shall immediately be setoff with any payments
whatsoever, due and owing to either party under this
Agreement.
8.3
Nothing under this Clause, or under this Agreement shall be
taken as precluding any of the parties to seek any other legally
permissible recourse in recouping any sums due and owing
under this Agreement.
9. DELIVERY
9.1
The Lessee shall be responsible for all expenses and costs
incurred in transporting and installation of the Batch Plant and
Equipment to the Lessor’s chosen address:
i)
at the beginning of this Lease Term; and
ii)
at the end of the Lease Term, back to the Lessees
premises.
9.2
The Lessor shall be responsible for providing the exact date,
location and address where the Batch Plant and Equipment is
to be delivered and erected.
10.
CHOSEN LOCATION
Subject to this Agreement, the Lessee shall not remove the Batch
Plant and Equipment from their chosen address or the location shown
herein as the place of use of the Batch Plant or Equipment. The
chosen address shall be the above-mentioned address for the Lessor,
being ‘the property.’
11.
PLEDGE & ENCUMBERING
The Lessor shall not pledge or encumber the Batch Plant and/or
Equipment in any way.
12.
MAINTENANCE, DAMAGE AND LOSS
Subject to this Agreement, the Lessee shall keep and maintain the
Batch Plant and Equipment in clean and in good working condition.
In the event that the Batch Plant and Equipment is lost or damaged
beyond repair, and such loss or damage is attributable to the Lessor,
then the Lessor shall pay to Lessee the replacement cost of the Batch
Plant or Equipment, as the case may be.
13.
INDEMNIFICATION
13.1 Except for damages, claims or losses due to the Lessee’s
fraudulence or gross negligence, the Lessor, to the full
extent permitted by law, will indemnify and hold the
Lessee and the Lessee’s property, free and harmless
from any liability for losses, claims, injury to or death of
any person, including the Lessor,
and for damage to
property or any other loss arising from the Lessor’s use
and possession of the Batch Plant and Equipment or from
the acts or omissions of any person or persons, including
the Lessor and any operators of the Batch Plant and
Equipment
(notwithstanding
that
they
may
be
employees of the Lessee), using or possessing the Plant
and
Equipment
with
Lessee’s
express
or
implied
consent.
14.
GENERAL WARRANTIES & GUARANTEES
The Lessee shall neither assume nor shall any obligation or
responsibility be placed upon it, including, but not limited to,
obligations based on warranties or guarantees or other contractual
obligations, on behalf or in the name of the Lessor, unless agreed
upon by the parties in writing.
15.
WARRANTIES & REPRESENTATIONS
The parties’ representatives warrant and represent that they have full
permission and authority to enter into these agreements on behalf of
their respective entities and that any and all internal procedures
required for the entering of these agreements have been adhered to
as appears on the attached resolutions. The representatives further
hold themselves personally liable, should this Agreement be held to
be unlawful on the basis of lack of authority.
16.
FORCE MAJEURE
Neither the Lessee nor the Lessor shall be required to perform any
term, condition, or covenant of this Agreement so long as such
performance is delayed or prevented by acts of God, material or labor
restriction
by
any
governmental
authority,
civil
riot,
floods,
hurricanes, or other natural disasters, or any other cause not
reasonably within the control of Lessee or Lessor, and which by the
exercise of due diligence Lessee or the Lessor is unable, wholly or in
part, to prevent or overcome.
17.
CONFIDENTIALITY
The parties shall treat all information obtained under this Agreement
as confidential. Confidential information may not be disclosed to third
parties unless such discloser is required for the maintenance, the
repair or the operation of the equipment. The extent of the disclosed
information shall be restricted to the minimum necessary, and the
disclosing Party shall impose this confidentiality obligation on the
third-party to whom such information is disclosed.
18.
WAIVER
The failure of by the Lessee to enforce any provisions of this
Agreement shall not be deemed a waiver or limitation of the Lessee’s
right to subsequently enforce and compel strict compliance with
every provision of this Agreement.
19.
DISPUTE RESOLUTION/ GOVERNING LAW
19.1 All the disputes related to the contract or its execution thereof,
shall be resolved firstly via friendly negotiation. Where no
settlement can be reached within 7 days of the attempted
settlement by the parties, the dispute shall be brought
exclusively before the competent courts of the Republic of
Zimbabwe.
19.2 The expenses for the litigation shall be borne by the losing
party, including costs on an attorney-client scale.
19.3 This agreement shall be governed by and construed in
accordance with the laws of the Republic of Zimbabwe.
20.
BREACH
20.1 In the event that a Party should breach the provisions of this
Agreement and fail to remedy such breach within seven (7)
days from the date of a written notice to do so by the aggrieved
party, then the aggrieved party shall be entitled to invoke all
remedies available to it in law and in addition shall be entitled
to:
20.1.1
Approach the relevant court for an order of specific
performance, including seeking an award for damages
and/or injunctive relief or any other relief as may be
provided for by the law; or
20.1.2
21.
Terminate the Agreement forthwith.
ENTIRE AGREEMENT
21.1 This Agreement and the Annexures and addendums and
documents specifically referred to herein and so attached,
embody the entire agreement between the Parties relating to
the
subject
matter
herein,
and
there
are
no
other
representations, warranties or agreements between the Parties
not contained or referenced in This Agreement.
21.2 This Agreement shall be amended, supplemented or modified
only by a written instrument duly executed and signed by or on
behalf of every Party hereto which specifically refers to This
Agreement.
21.3 No
previous
or
contemporaneous
communication,
representation or agreement (whether oral or written, express
or implied) shall be of any force or effect or vary or add to or
suspend the rights and obligations under this Agreement.
22.
ASSIGNMENT & CESSION
22.1 Neither this Agreement nor the rights or obligations hereunder
may be ceded, assigned, transferred, licensed, sub-licensed,
contracted or sub-contracted directly or indirectly by any party
save with the prior written consent of the other party. Any such
23.
THIRD PARTY
23.1 Subject to this Agreement, no person who is not a party to this
Agreement, shall be entitled to enforce the terms of this
Agreement, and shall have any right under the governing law
to enforce any of the terms of this Agreement.
24.
GOOD FAITH
24.1 The Parties agree to act in good faith in relation to the
performance of each Party’s obligations under this Agreement
and not to make any false statements against each other.
25.
DOMMICILUM CITANDI ET EXECUTANDE
25.1 The
parties
accept
and
choose
their
above-mentioned
addresses as their address for the service of any notice or
process or legal proceedings in connection with this Agreement.
25.2 All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given and received (i)
immediately if delivered by personal delivery(ii) upon a delivery
report being received if sent by email.
THUS DONE AND SIGNED AT HARARE ON THIS
FEBRUARY
2023
IN
THE
PRESENCE
OF
THE
DAY OF
UNDERSIGNED
WITNESSES.
SIGNED:
……………………………………………………
ERASTUS VAN EEDEN
[SCRIBANTE CONCRETE ZIMBABWE]
AS WITNESSES:
(i) ………………… ………………………..
(ii) …………………………………………...
THUS DONE AND SIGNED AT
ON THIS DAY OF FEBRUARY
2023 IN THE PRESENCE OF THE UNDERSIGNED WITNESSES.
…………………….………………………………………….
ENGINEER THABANI NDLOVU
[for HARARE QUARRY (PRIVATE) LIMITED]
AS WITNESSES:
(i) ………………………………………………
(ii) ………………………………………………
ANNEXURE A1
EXTRACT FROM THE MINUTES OF A MEETING OF BOARD OF
DIRECTORS OF SCRIBANTE CONCRETE ZIMBABWE (PRIVATE)
LIMITED HELD AT HARARE ON THE 28TH DAY OF FEBRUARY 2023.
IT WAS RESOLVED:
1. That the Company enters into a Plant Hire Agreement with Harare
Quarry (Private) Limited of Corner Dieppe Road and Airport Road,
Private Bag HR 282, Harare for the leasing of certain piece of land
belonging to Harare Quarry and the operation of the Companies Batch
Plant and Equipment at the aforesaid property; and
2.
That,
RASSIE van Eeden
DOB 09/10/1982
ID No.82 10095092 0 84
Of 14 Cuba Avenue, Mt Pleasant, Harare
be and he is hereby authorized on behalf of the Company to sign any
documents as may be necessary to effect and bring to realization the Batch
Plant Hire and General Lease Agreement.
DATED ON THIS 28TH DAY FEBRUARY 2023
…………………………………
SILVIO SCRIBANTE
DIRECTOR
ANNEXURE A2
EXTRACT FROM THE MINUTES OF A MEETING OF BOARD OF
DIRECTORS OF HARARE QUARRY PRIVATE (LIMITED) HELD AT
HARARE ON THE 28TH DAY OF FEBRUARY 2023.
IT WAS RESOLVED:
1. That the Company enters into a Batch Plant Hire and General
Lease Agreement with Scribante Concrete (Private) Limited of
14 Cuba Avenue, Mt Pleasant, Harare for the leasing of a certain
Batch Plant and ancillary Equipment belonging to Scribante
Concrete for Harare Quarry’s business operations; as well as the
leasing of land by the Company to Scribante Concrete and
2. That,
Engineer Thabani Ndlovhu
DOB XX/XX/19XX
ID No.XX – XXXXXXXXX X XX
Of Corner Dieppe Road and Airport Road, Private Bag HR 282, Harare
be and he is hereby authorized on behalf of the Company to sign any
documents as may be necessary to effect and bring to realization the Batch
Plant Hire and General Lease Agreement.
DATED ON THIS 28TH DAY FEBRUARY 2023
………………………………………………
……………………………
[INSERT DIRECTOR NAME]
[INSERT DIRECTOR NAME]
DIRECTOR
DIRECTOR
………………………
[INSERT DIRECTOR NAME]
DIRECTOR
ANNEXURE B
SCHEDULE OF HIRED BATCH PLANT AND EQUIPMENT
1. The Batch Plant and Equipment listed below shall be the property to be
operated under this Batch Plant Hire and General Lease Agreement:

36m3 per hour, Fully Automated Karoo Concrete Batchplant – Serial
Number XXXXX XXXXXXX