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ADDENDUM
With reference to our advertisement dated 07.05.2012, for Development of
Resort and Water Sports Activities at Village Hanuwantia at Indira Sagar reservoir
Distt. Khandwa, tender date is extend to 20.06.2012. Closing date for sale of tender will
be 18.06.2012.
Sunil Dubey
Director (TPU)
Madhya Pradesh Tourism
Notice Inviting Bids for Lease of Land
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
i
REQUEST FOR PROPOSAL (RFP)
FOR
DEVELOPMENT OF TOURISM
RELATED FACILITIES
AT
INDIRA SAGAR ON DBFOT BASIS
RFP NO. - 1
(7/05/2012) Madhya Pradesh State Tourism Development
Corporation Ltd. Paryatan Bhawan, Bhadbhada Road, Bhopal 462 003
Website: www.mptourism.com
Details of modification in RFP-I
1. Clause No. 4 of the Development Agreement : Performance Security will be @ 5%
of the Total Project Cost . (PAGE NO. 68)
2. Clause No. 14 of the Development Agreement: O & M Security will be @ 2% of the
Total Project Cost. (PAGE NO. 78)
3. RFP, Para 2.2.5: The words "two years" has been replaced by the words "five years"
and the words "date of completion of the project" has been replaced by the "date of
commencement". (PAGE NO. 8)
4. RFP, Para 2.17.8: In this clause the words 'material representation' (second last line)
has been replaced by the words 'material mis-representations'. (PAGE NO. 17)
5. Appendix - IV (RPF)
Appendix-IV (Joint Bidding Agreement) at Para (A) - The sentence "four lining of
Bhopal Bypass Road Project" has been replaced by the sentence "Tourism Related
Facilities at Indira Sagar". (PAGE NO. 47)
6. Appendix - IV (RPF) Para 6.2
In this Para 6.2 the words "second anniversary" has been replaced by "fifth
anniversary" and "project completion date" has been replaced by "project
commencement date". (PAGE NO. 49)
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
ii
BRIEF NOTE ON PROJECT
Indira Sagar Dam built on river Narmada is located in District
Khandwa of Madhya Pradesh. It is approximately 200 kms away
from both Indore and Bhopal, the commercial and political capitals
of the state. This biggest manmade lake in the country, which came
into being as a consequence of the dam, is more than 900 sq. kms
and offers immense opportunities for tourism development.
Madhya Pradesh State Tourism Development Corporation has been
authorised to invite private investment for the development of
tourist resorts at village Hanvantiya about 15 kms upstream of the
dam. The Corporation has already started the work of developing
the lake front and shall construct necessary jetty, boat club and
other basic amenities. Private parties shall be licensed to operate
house boats, cruise; speed boats and undertake other water sport
activities. Tourist infrastructure will also be constructed on an
island, Phephirya khurd, located nearby. The Ecotourism
Development Board will take up various eco tourism activities on
other islands which beckon the nature lovers.
The private investors shall be entitled to all the benefits that the
recent proactive Tourism Policy 2010 provides, which includes
exemption in luxury, entertainment and other taxes. Five years
from now the State Tourism Department envisages this project as
one of the most popular leisurely destination which would match
the best anywhere in or outside the country.
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
iii
M.P. STATE TOURISM DEVELOPMENT CORPORATION
DISCLAIMER
The information contained in this Request for Proposal document (the
“RFP”) or subsequently provided to Bidder(s), whether verbally or in
documentary or any other form, by or on behalf of the Corporation or any of
its employees or advisors, is provided to Bidder(s) on the terms and conditions
set out in this RFP and such other terms and conditions subject to which such
information is provided.
This RFP is not an agreement and is neither an offer nor invitation by the
Corporation to the prospective Bidder or any other person. The purpose of
this RFP is to provide interested parties with information that may be useful to
them in the formulation of their Bid for qualification pursuant to this RFP.
This RFP includes statements, which reflect various assumptions and
assessments arrived at by the Corporation in relation to the Project. Such
assumptions, assessments and statements do not purport to contain all the
information that each Bidder may require. This RFP may not be appropriate
for all persons, and it is not possible for the Corporation, its employees or
advisors to consider the investment objectives, financial situation and
particular needs of each party who reads or uses this RFP. The assumptions,
assessments, statements and information contained in this RFP may not be
complete, accurate, adequate or correct. Each Bidder should therefore,
conduct its own investigations and analysis and should check the accuracy,
adequacy, correctness, reliability and completeness of the assumptions,
assessments, statements and information contained in this RFP and obtain
independent advice from appropriate sources.
Information provided in this RFP to the Bidder(s) is on a wide range of
matters, some of which may depend upon interpretation of law. The
information given is not intended to be an exhaustive account of statutory
requirements and should not be regarded as a complete or authoritative
statement of law. Madhya Pradesh State Tourism Development Corporation
Ltd. (CORPORATION) accepts no responsibility for the accuracy or otherwise
for any interpretation or opinion on law expressed herein.
Corporation, its employees and advisors make no representation or warranty
and shall have no liability to any person, including any Bidder or Bidder,
under any law, statute, rules or regulations or tort, principles of restitution or
unjust enrichment or otherwise for any loss, damages, cost or expense which
may arise from or be incurred or suffered on account of anything contained in
this RFP or otherwise, including the accuracy, adequacy, correctness,
completeness or reliability of the RFP and any assessment, assumption,
statement or information contained therein or deemed to form part of this RFP
or arising in any way with the Bidder for participation in the Bidding Process.
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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Corporation also accepts no liability of any nature whether resulting from
negligence or otherwise howsoever caused arising from reliance of any
Bidder upon the statements contained in this RFP.
Corporation may, in its absolute discretion but without being under any
obligation to do so, update, amend or supplement the information, assessment
or assumptions contained in this RFP.
The issue of this RFP does not imply that the Corporation is bound to select
and to appoint the selected Bidder or Developer, for the Project and the
Corporation reserves the right to reject all or any of the Bids or Bids without
assigning any reasons whatsoever.
The Bidder shall bear all its costs associated with or relating to the
preparation and submission of its Bid including but not limited to preparation,
copying, postage, delivery fees, expenses associated with any demonstrations
or presentations which may be required by Corporation or any other costs
incurred in connection with or relating to its Bid. All such costs and expenses
will remain with the Bidder and the Corporation shall not be liable in any
manner whatsoever for the same or for any other costs or other expenses
incurred by an Bidder in preparation or submission of the Bid, regardless of
the conduct or outcome of the Bidding Process.
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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SECTION - 1
INTRODUCTION
1.1 Background
1.1.1 Madhya Pradesh State Tourism Development Corporation Ltd., (the
“Corporation”) is engaged in the promotion of tourism in the State
and as part of this endeavour, the Corporation has decided to undertake
development of Tourism and related facilities at Indira Sagar (the
“Project”), through Public-Private Partnership (the “PPP”) on Design,
Build, Finance, Operate and Transfer (the "DBFOT") basis, and has
decided to carry out the bidding process for selection of the bidder to
whom the Project may be awarded. Brief particulars of the Project are
as follows:
Name of the
Project
Area, Plot No. &
Khasra No.
Estimated
Project Cost
( ` In crore)
Upset Price
( ` in Lakh)
Annual
Development
Fee
Development
of Tourism
and related
facilities at
Indira Sagar
Plot No.- 1
i)Approx. 4.44
Acre from
Khasra No. 72
ii)Approx. 3.50
Acre from
Khasra No. 73
iii)Approx. 1.97
Acre from
Khasra No. 74
vi)Approx. 0.17
Acre from
Khasra No. 76
Total area =
10.08 acres
15.00
91.72
` 1.50 / sqmt.
The Corporation intends to select suitable Bidder (the “Bidders”) who
will be eligible for development of Tourism and related facilities at
Indira Sagar through an open competitive bidding process in
accordance with the procedure set out herein.
1.1.2 The selected Bidder, who is either a company incorporated under the
Companies Act, 1956 or undertakes to incorporate as such prior to
execution of the Development agreement (the “Developer”) shall be
responsible for designing, engineering, financing, procurement,
construction, operation and maintenance of the Project under and in
accordance with the provisions of a long - term Development
agreement (the “Development Agreement”) to be entered into
between the Developer and the Corporation in the form provided by
the Corporation as part of the Bidding Documents annexed hereto.
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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1.1.3 The scope of work will broadly include development of Tourism and
related facilities at Indira Sagar and the operation and maintenance
thereof.
1.1.4 Indicative capital cost of the Project (the “Estimated Project Cost”) is
based on the estimates prepared by the Corporation. The assessment of
actual costs, however, will have to be made by the Bidders.
1.1.5 The Corporation shall receive Bids pursuant to this RFP in accordance
with the terms set forth herein as modified, altered, amended and
clarified from time to time by the Corporation, and all Bids shall be
prepared and submitted in accordance with such terms on or before the
date specified in Clause 1.3 for submission of Bids (the “Bid Due
Date”).
1.2 Brief description of bidding Process
1.2.1 (i) The Corporation has adopted a single bidding process (collectively
referred to as the “Bidding Process”) divided into two stages for
selection of the bidder for award of the Project. The first stage (the
“Qualification Stage”) of the process involves qualification of
interested parties/ consortia (the “Bidder”) who make a Bid in
accordance with the provisions of this RFP which expression shall,
unless repugnant to the context, include the Members of the
Consortium.
(ii) Interested parties may purchase the tender document as per tender
schedule indicated in clause 1.3 from MPSTDC Head Office,
Bhopal between 10:00 a.m. to 5:00 p.m. on all working days or by
post/ courier upon a written request accompanied by the non
refundable cost of Tender Document ` 20,000/- ( ` Twenty
thousand only) plus courier/ postal charges of ` 250/- through a
Demand Draft of any nationalized bank in favour of ‘MPSTDC’
payable at Bhopal.
(iii)The tender document can also be downloaded from the
Corporation's website http://www.mptourism.com/Tender.htm and
bidders using downloaded tender form shall intimate details to
MPSTDC for further communication and cost of tender i.e.
` 20,000/- shall also be submitted in the form of DD along with
tender documents.
1.2.2 At the end of first stage, the Corporation will announce a list of all pre-
qualified Bidders whose financial bids will be opened on a pre-decided
date and time. All qualified bidders will be invited to the opening of
financial bids.
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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1.2.3 Government of India has issued guidelines (see Appendix-V) for
qualification of bidders seeking to acquire stakes in any public sector
enterprise through the process of disinvestment. These guidelines shall
apply mutatis mutandis to this Bidding Process. The Corporation may
disqualify a Bidder in accordance with the aforesaid guidelines at any
stage of the Bidding Process. Bidder must satisfy themselves that they
are qualified to bid, in terms of Appendix-V.
1.2.4 Bidder would be required to furnish all the information specified in
this RFP. Financial bids of only those Bidders that are pre-qualified
and short-listed will be opened for award of the Project.
1.2.5 In terms of the RFP, a Bidder will be required to deposit, along with its
Bid, a bid security of ` 20.00 lakh ( ` Twenty lakh only) (the "Bid
Security"), refundable no later than 60 (sixty) days from the Bid Due
Date, except in the case of the selected Bidder whose Bid Security
shall be retained till it has provided a Performance Security under the
Development Agreement. The Bidders will have to provide Bid
Security in the form of a Demand Draft in favour of MPSTDC payable
at Bhopal of any Nationalized Bank or a bank guarantee acceptable to
the Corporation and in such event, the validity period of the bank
guarantee shall not be less than 180 (one hundred and eighty) days
from the Bid Due Date, and may be extended as may be mutually
agreed between the Corporation and the Bidder from time to time. The
Bid shall be summarily rejected if it is not accompanied by the Bid
Security.
1.2.6 Generally, the Highest Bidder shall be the selected Bidder. The
remaining Bidders shall be kept in reserve and may, in accordance with
the process specified in the RFP, be invited to match the Bid submitted
by the Highest Bidder in case such Highest Bidder withdraws or is not
selected for any reason. In the event that none of the other Bidders
match the Bid of the Highest Bidder, the Corporation may, in its
discretion, invite fresh Bids from the remaining Bidders as per the
procedure set forth in this document or annul the Bidding Process, as
the case may be.
1.2.7 Bidders are invited to examine the Project in greater detail, and to
carry out, at their cost, such studies as may be required for submitting
their respective Bids for award of the Development Right including
implementation of the Project.
1.2.8 As part of the Bidding Documents, the Corporation is providing a draft
Development Agreement, other information pertaining/ relevant to the
Project available with it and the format of Financial Bid.
1.2.9 Bids will be invited for the Project on the basis of a premium as
upfront payment, (the "Premium") to the Corporation for award of the
Development Right. The Development period is pre-determined, and
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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indicated in the draft Development Agreement forming part of the
Bidding Documents. The Premium amount shall constitute the sole
criteria for evaluation of Bids. The Project shall be awarded to the
Bidder quoting the highest Premium.
In this RFP, the term “Highest Bidder” shall mean the Bidder who is
offering the highest Premium.
1.2.10 Any queries or request for additional information concerning this RFP
shall be submitted in writing or by fax and e-mail to the officer
designated in Clause 2.13.5 below. The envelopes/communications
shall clearly bear the following identification/ title:
"Queries/ Request for Additional Information: RFP No. 1 for
development of Tourism and related facilities at Indira Sagar”.
1.3 Schedule of Bidding Process
The Corporation shall endeavour to adhere to the following schedule:
Event Description Date
Qualification Stage
1. Opening date for sale of Tender 07/05/12
2. Last date for receiving queries 22/05/12
3. Pre-Bid Meeting 26/05/12
4. Closing date for sale of Tender 31/05/12
5. Due Date & time for submission
of Tender
07/06/12 (1500 hrs.)
6. Opening of Technical Bid 07/06/12 (1600 hrs.)
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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SECTION - 2
INSTRUCTIONS TO BIDDER & CRITERIA FOR EVALUATION
A. GENERAL
2.1 Scope of Bid
2.1.1 The Corporation wishes to receive Bids for the Project in order to select
experienced and capable Bidder.
2.2 Eligibility of Bidder
2.2.1 For determining the eligibility of Bidder for their pre-qualification
hereunder, the following shall apply:
(a) The Bidder for pre-qualification may be a single entity or a group
of entities (the “Consortium”), coming together to implement the
Project. However, no Bidder applying individually or as a member
of a Consortium, as the case may be, can be member of another
Bidder. The term Bidder used herein would apply to both a single
entity and a Consortium.
(b) A Bidder may be a natural person, private entity, or any
combination of them under an existing agreement to form a
Consortium. A Consortium shall be eligible for consideration
subject to the conditions set out in Clause 2.2.5 below.
(c) A Bidder shall not have a conflict of interest (the “Conflict of
Interest”) that affects the Bidding Process. Any Bidder found to
have a Conflict of Interest shall be disqualified. A Bidder shall be
deemed to have a Conflict of Interest affecting the Bidding
Process, if :
(i) The Bidder, its Member or Associate (or any constituent
thereof) and any other Bidder, its Member or any Associate thereof
(or any constituent thereof) have common controlling shareholders
or other ownership interest is more than 25% (twenty five per cent)
of the subscribed and paid up equity share capital thereof; provided
further that this disqualification shall not apply to any ownership
by a bank, insurance company, pension fund or a public financial
institution referred to in section 4A of the Companies Act 1956.
(ii) a constituent of such Bidder is also a constituent of another
Bidder; or
(iii)such Bidder, or any Associate thereof receives or has received
any direct or indirect subsidy, grant, concessional loan or
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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subordinated debt from any other Bidder, or any Associate thereof
or has provided any such subsidy, grant, concessional loan or
subordinated debt to any other Bidder, its Member or any
Associate thereof; or
(iv) such Bidder has the same legal representative for purposes of
this Bid as any other Bidder; or
(v) such Bidder, or any Associate thereof has a relationship with
another Bidder, or any Associate thereof, directly or through
common third party/ parties, that puts either or both of them in a
position to have access to each others’ information about, or to
influence the Bid of either or each other; or
(vi) such Bidder, or any Associate thereof has participated as a
consultant to the Corporation in the preparation of any documents,
design or technical specifications of the Project.
(d) A Bidder shall be liable for disqualification if any legal, financial
or technical adviser of the Corporation in relation to the Project is
engaged by the Bidder, its Member or any Associate thereof, as
the case may be, in any manner for matters related to or
incidental to the Project. For the avoidance of doubt, this
disqualification shall not apply where such adviser was engaged
by the Bidder, its Member or Associate in the past but its
assignment expired or was terminated 6 (six) months prior to the
date of issue of this RFP. Nor will this disqualification apply
where such adviser is engaged after a period of 3 (three) years
from the date of commercial operation of the Project.
Explanation: In case an Bidder is a Consortium, then the term Bidder
as used in this Clause 2.2.1, shall include each Member of such
Consortium.
2.2.2 To be eligible for pre-qualification and short-listing, a Bidder shall
fulfil the following conditions of eligibility:
(A) Technical Capacity: For demonstrating technical capacity and
experience (the “Technical Capacity”), the Bidder shall, over the past
5 (five) financial years preceding the Bid Due Date, have:
(i) paid for, and/or received payments for, development of Eligible
Project(s)
The Eligible Project will mean:
(a) A development project that has been undertaken as a PPP
project or on any of following basis
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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(i) A project of Hotel / Resort having rating 3/4/5 star and
above with minimum 50 rooms developed / set up and
owned for last five years.
(ii) A hotel / resort project having rating of 3/4/5 star and
minimum 50 rooms being operated for the last 5 years.
(iii) A convention centre developed / set up / owned for last
5 years.
(iv) Any real estate project developed /setup/ owned for last
five years.
and
for such projects the Bidder should have paid for execution of its
construction works or received payments from its client(s) for
construction works executed, fully or partially (EPC Contract), during
the 5 (five) financial years immediately preceding the Bid Due Date,
and only the payments (gross) actually made or received, as the case
may be, during such 5 (five) financial years shall qualify for purposes
of computing the Technical Experience. However, payments/receipts
of less than ` 3.00 crore (` Three crore) shall not be reckoned as
payments/receipts for Eligible Projects. For the avoidance of doubt,
construction works shall not include supply of goods or equipment
except when such goods or equipment form part of a turn-key
construction contract/ EPC contract for the project. Further, the cost of
land shall not be included hereunder;
and such that the sum total of all such project(s) is more than ` 15
crore (` Fifteen crore)] (the “Technical Capability”).
(b) the entity claiming experience should have held, in the
company owing the Eligible Project, a minimum of 26%
(twenty six per cent) equity during the entire year for which
Eligible Experience is being claimed;
(B) Financial Capacity: The Bidder shall have a minimum Net Worth (the
“Financial Capacity”) of ` 5.00 crore (` Five crore) at the close of
the preceding financial year.
2.2.3 The Bidder shall enclose with its Bid, to be submitted as per the format
at Appendix-I, complete with its Annexes, the following:
(i) Certificate(s) from its statutory auditors or the concerned
client(s) stating the payments made/ received for works
commissioned, as the case may be, during the past 5 years in
respect of the projects specified in paragraph 2.2.2 (A) above.
In case a particular job/ contract has been jointly executed by
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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the Bidder (as part of a consortium), it should further support its
claim for the share in work done for that particular job/ contract
by producing a certificate from its statutory auditor or the
client; and
(ii) certificate(s) from its statutory auditors specifying the net worth
of the Bidder, as at the close of the preceding financial year,
and also specifying that the methodology adopted for
calculating such net worth conforms to the provisions of this
Clause 2.2.3 (ii). For the purposes of this RFP, net worth (the
“Net Worth”) shall mean the sum of subscribed and paid up
equity and reserves from which shall be deducted the sum of
revaluation reserves, miscellaneous expenditure not written off
and reserves not available for distribution to equity share
holders.
2.2.4 The Bidder should submit a Power of Attorney as per the format at
Appendix-II, authorising the signatory of the Bid to commit the
Bidder. In the case of a Consortium, the Members should submit a
Power of Attorney in favour of the Lead Member as per format at
Appendix-III.
2.2.5 Where the Bidder is a single entity, it may be required to form an
appropriate Special Purpose Vehicle, incorporated under the Indian
Companies Act 1956 (the “SPV”), to execute the Development
Agreement and implement the Project. In such case the Bidder should
hold minimum 51% equity in SPV with equity lock-in for minimum
five years from the date of commencement. In case the Bidder is a
Consortium, it shall, in addition to forming a SPV, comply with the
following additional requirements:
(a) Number of members in a consortium shall not exceed 3 (three).
(b) in case of consortium each member should commit to hold at
least 26% (twenty six per cent) of the paid up & subscribed
equity of SPV.
(c) members of the Consortium shall nominate one member as the
lead member (the “Lead Member). The nomination(s) shall be
supported by a Power of Attorney, as per the format at
Appendix-III, signed by all the other members of the
Consortium;
(d) the Bid should include a brief description of the roles and
responsibilities of individual members, particularly with
reference to financial, technical and O&M obligations;
(e) an individual Bidder cannot at the same time be member of a
Consortium applying for the project. Further, a member of a
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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particular Bidder Consortium cannot be member of any other
Bidder Consortium applying for the project;
(f) the members of a Consortium shall form an appropriate SPV to
execute the Project, if awarded to the Consortium;
(g) members of the Consortium shall enter into a binding Joint
Bidding Agreement, substantially in the form specified at
Appendix-IV (the “Jt. Bidding Agreement”) for the purpose
submitting a Bid. The Jt. Bidding Agreement, to be submitted
along with the Bid, shall, inter alia:
(i) convey the intent to form an SPV with shareholding/
ownership equity commitment(s) in accordance with
this RFP, which would enter into the Development
Agreement and subsequently perform all the obligations
of the Developer in terms of the Development
Agreement, in case the Development Right to undertake
the Project is awarded to the Consortium;
(ii) clearly outline the proposed roles and responsibilities, if
any, of each member;
(iii) commit the minimum equity stake to be held by each
member;
(iv) commit that each of the members, shall subscribe to
26% (twenty six per cent) or more of subscribed and
paid up equity capital of the SPV and shall further
commit that each such member shall hold it for a period
of 5 (five) years from Project Completion Date;
(v) include a statement to the effect that all members of the
Consortium shall be liable jointly and severally for all
obligations of the Developer in relation to the Project
until the completion of the Project is achieved in
accordance with the Development Agreement; and
(h) except as provided under this RFP and the Bidding Documents,
there shall not be any amendment to the Jt. Bidding Agreement
without the prior written consent of the MPSTDC.
2.2.6 Any bidder who has been barred by the Central/ State Government, or
by an entity created or controlled by it, from participating in any
project (DBFOT or otherwise), and the bar subsists as on the date of
Bid, would not be eligible to submit an Bid, either individually or as
member of a Consortium.
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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2.2.7 A Bidder including any Consortium Member or Associate should, in
the last 3 (three) years, have neither failed to perform on any contract,
as evidenced by imposition of a penalty by an arbitral or judicial
Corporation or a judicial pronouncement or arbitration award against
the Bidder, Consortium Member or Associate, as the case may be, nor
has been expelled from any project or contract nor have had any
contract terminated by Central/State Government or any entity created
or controlled by it for breach by such Bidder, Consortium Member or
Associate.
2.2.8 In computing the Technical Capacity and Net Worth of the Bidder/
Consortium Members under Clauses 2.2.2 & 2.2.3 the Technical
Capacity and Net Worth of their respective Associates would also be
eligible hereunder.
For purposes of this RFP, Associate means, in relation to the Bidder/
Consortium Member, a person who controls, is controlled by, or is
under the common control with such Bidder/ Consortium Member (the
“Associate”). As used in this definition, the expression “control”
means, with respect to a person which is a company or Corporation,
the ownership, directly or indirectly, of more than 50% (fifty per cent)
of the voting shares of such person, and with respect to a person which
is not a company or Corporation, the power to direct the management
and policies of such person by operation of law.
It is clarified that a certificate from a qualified external auditor who
audits the book of accounts of the Bidder or the Consortium Member
shall be provided to demonstrate that a person is an Associate of the
Bidder or the Consortium as the case may be.
2.2.9
(a) Bidder should attach clearly marked and referenced
continuation sheets in the event that the space provided in the
prescribed forms in the Annexes is insufficient. Alternatively,
Bidder may format the prescribed forms making due provision
for incorporation of the requested information;
(b) information supplied by a Bidder (or other constituent Member
if the Bidder is a Consortium) must apply to the Bidder,
Member or Associate named in the Bid and not, unless
specifically requested, to other associated companies or firms.
2.3 Change in composition of the Consortium
2.3.1 Change in the composition of a Consortium will not be permitted by
the Corporation during the Bidding Process.
Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis
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2.4 Number of Bids and costs thereof
2.4.1 No Bidder shall submit more than one Bid for the Project. A Bidder
applying individually or as a member of a Consortium shall not be
entitled to submit another Bid either individually or as a member of
any Consortium, as the case may be.
2.4.2 The Bidder shall be responsible for all of the costs associated with the
preparation of their Bids and their participation in the Bid Process. The
Corporation will not be responsible or in any way liable for such costs,
regardless of the conduct or outcome of the Bidding Process.
2.5 Site visit and verification of information
Bidders are encouraged to submit their respective Bids after visiting
the Project site and ascertaining for themselves the site conditions,
traffic, location, surroundings, climate, availability of power, water and
other utilities for construction, access to site, handling and storage of
materials, weather data, applicable laws and regulations, and any other
matter considered relevant by them.
2.6 Acknowledgement by Bidder
2.6.1 It shall be deemed that by submitting the Bid, the Bidder has:
(a) made a complete and careful examination of the RFP;
(b) received all relevant information requested from the
Corporation;
(c) accepted the risk of inadequacy, error or mistake in the
information provided in the RFP or furnished by or on behalf of
the Corporation relating to any of the matters referred to in this
document; and
(d) agreed to be bound by the undertakings provided by it under
and in terms hereof.
2.6.2 The Corporation shall not be liable for any omission, mistake or error
in respect of any of the above or on account of any matter or thing
arising out of or concerning or relating to the RFP or the Bidding
Process, including any error or mistake therein or in any information or
data given by the Corporation.
2.7 Right to accept or reject any or all Bids
2.7.1 Notwithstanding anything contained in this RFP, the Corporation
reserves the right to accept or reject any Bid and to annul the Bidding
Process and reject all Bids, at any time without any liability or any
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obligation for such acceptance, rejection or annulment, and without
assigning any reasons therefore. In the event that the Corporation
rejects or annuls all the Bids, it may, in its discretion, invite all eligible
Bidders to submit fresh Bids hereunder.
2.7.2 The Corporation reserves the right to reject any Bid if:
(a) at any time, a material misrepresentation is made or uncovered,
or
(b) the Bidder does not provide, within the time specified by the
Corporation, the supplemental information sought by the
Corporation for evaluation of the Bid.
If the Bidder is a Consortium, then the entire Consortium may be
disqualified/ rejected. If such disqualification/ rejection occurs after the
Bids have been opened and the Highest Bidder gets disqualified/
rejected, then the Corporation reserves the right to:
(i) invite the remaining Bidders to match the Highest Bidder/
submit their Bids in accordance with the RFP; or
(ii) take any such measure as may be deemed fit in the sole
discretion of the Corporation, including annulment of the
Bidding Process.
2.7.3 In case it is found during the evaluation or at any time before signing
of the Development Agreement or after its execution and during the
period of subsistence thereof, that one or more of the pre-qualification
conditions have not been met by the Bidder, or the Bidder has made
material misrepresentation or has given any materially incorrect or
false information, the Bidder shall be disqualified forthwith if not yet
appointed as the Developer either by issue of the LOA or entering into
of the Development Agreement, and if the Bidder/SPV has already
been issued the LOA or has entered into the Development Agreement,
as the case may be, the same shall, notwithstanding anything to the
contrary contained therein or in this RFP, be liable to be terminated, by
a communication in writing by the Corporation to the Bidder, without
the Corporation being liable in any manner whatsoever to the Bidder
and without prejudice to any other right or remedy which the
Corporation may have under this RFP, the Bidding Documents, the
Development Agreement or under applicable law.
2.7.4 The Corporation reserves the right to verify all statements, information
and documents submitted by the Bidder in response to the RFP. Any
such verification or lack of such verification by the Corporation shall
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not relieve the Bidder of its obligations or liabilities hereunder nor will
it affect any rights of the Corporation there under.
B. DOCUMENTS
2.8 Contents of the RFP
2.8.1 This RFP comprises the disclaimer set forth hereinabove, the contents
as listed below, and will additionally include any Addenda issued in
accordance with Clause 2.10.
Invitation for Bid
Section 1. Introduction
Section 2. Instructions to Bidder & Criteria for Evaluation
Section 3. Fraud & Corrupt Practices
Section 4. Pre Bid Conference
Section 5. Miscellaneous
Appendices
I. Letter comprising the Bid (Including Annexure I to V)
II. Power of Attorney for signing of Bid
III. Power of Attorney for Lead Member of Consortium
IV. Joint Bidding Agreement for Consortium
V. Guidelines of the Department of Disinvestment
VI. Bank Guarantee for Bid Security
VII. Format for Bid Security
VIII. Format for Financial Bid
2.8.2 The Financial Bid format, the draft Development Agreement and the
Schedules to Development Agreement to be provided by Corporation
as part of the Bid Documents shall be deemed to be part of this RFP.
2.9 Clarifications
2.9.1 Bidders requiring any clarification on the RFP may notify Corporation
in writing or by fax in accordance with Clause 1.2.10. They should
send in their queries before the date mentioned in the Schedule of
Bidding Process specified in Clause 1.3. The responses will be sent by
fax or e-mail and will be uploaded on the website of the Corporation
which can be viewed at http://www.mptourism.com/Tender.htm.
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Corporation will forward all the queries and its responses thereto, to
all Bidders without identifying the source of queries.
2.9.2 Corporation shall endeavour to respond to the questions raised or
clarifications sought by the Bidders. However, Corporation reserves
the right not to respond to any question or provide any clarification, in
its sole discretion, and nothing in this Clause shall be taken or read as
compelling or requiring Corporation to respond to any question or to
provide any clarification.
2.9.3 Corporation may also on its own motion, if deemed necessary, issue
interpretations and clarifications to all Bidders. All clarifications and
interpretations issued by Corporation shall be deemed to be part of the
Bidding Documents. Verbal clarifications and information given by
Corporation or its employees or representatives shall not in any way
or manner be binding on Corporation.
2.10 Amendment of RFP
2.10.1 At any time prior to the deadline for submission of Bid, the
Corporation may, for any reason, whether at its own initiative or in
response to clarifications requested by an Bidder, modify the RFP by
the issuance of Addenda.
2.10.2 Any Addendum thus issued will be sent in writing to all those who
have purchased the RFP.
2.10.3 In order to afford the Bidder a reasonable time for taking an
Addendum into account, or for any other reason, the Corporation may,
in its sole discretion, extend the Bid Due Date.
C. PREPARATION AND SUBMISSION OF BID
2.11 Language
The Bid and all related correspondence and documents in relation to
the Bidding Process shall be in English language. Supporting
documents and printed literature furnished by the Bidder with the Bid
may be in any other language provided that they are accompanied by
translations of all the pertinent passages in the English language, duly
authenticated and certified by the Bidder. Supporting materials, which
are not translated into English, may not be considered. For the purpose
of interpretation and evaluation of the Bid, the English language
translation shall prevail.
2.12 Format and signing of Bid
2.12.1 The Bidder shall provide all the information sought under this RFP.
The Corporation will evaluate only those Bids that are received in the
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required formats and complete in all respects. Incomplete and /or
conditional Bids shall be liable to rejection.
2.12.2 The Bidder shall prepare 1 (one) original set of the Bid (together with
originals/ copies of documents required to be submitted along
therewith pursuant to this RFP) and clearly marked “ORIGINAL”. In
addition, the Bidder shall submit 1 (one) copy of the Bid, alongwith
documents required to be submitted along therewith pursuant to this
RFP, marked “COPY”.
2.12.3 The Bid and its copy shall be typed or written in indelible ink and
signed by the authorised signatory of the Bidder who shall also initial
each page in blue ink. In case of printed and published documents,
only the cover shall be initialled. All the alterations, omissions,
additions or any other amendments made to the Bid shall be initialled
by the person(s) signing the Bid. The Bid shall contain page numbers
and shall be bound together in hard cover.
2.13 Sealing and Marking of Bids
2.13.1 The Bidder shall submit the Bid in the format specified at Appendix-I,
together with the documents specified in Clause 2.13.2, and seal it in
an envelope and mark the envelope as “TECHNICAL BID”. The
Bidder shall seal the original and the copy of the Bid, together with
their respective enclosures, in separate envelopes duly marking the
envelopes as “ORIGINAL” and “COPY”. The envelope shall then be
sealed in an outer envelope which shall also be marked in accordance
with Clauses 2.13.2 and 2.13.3.
2.13.2 The Technical Bid shall contain:
(i) Bid in the prescribed format (Appendix-I) along with Annexes
and supporting documents;
(ii) Bank Draft/Bank Guarantee of Bid Security in the prescribed
format (Appendix - VI)
(iii) A copy of this RFP Part-I, the Development Agreement and the
Schedules of Development Agreement with each page initialled
by the person signing the Bid in pursuance of the Power of
Attorney referred to in Clause (iv) herein below.
(iv) Power of Attorney for signing the Bid as per the format at
Appendix-II;
(v) if applicable, the Power of Attorney for Lead Member of
Consortium as per the format at Appendix-III;
(vi) copy of the Joint Bidding Agreement, in case of a Consortium,
substantially in the format at Appendix-IV;
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(v) copy of Memorandum and Articles of Association, if the
Bidder is a body corporate, and if a partnership then a copy of
its partnership deed; and
2.13.3 The Bidder shall submit the Financial Bid in the format specified at
Appendix VIII of this RFP and seal it in an envelope and mark the
envelope as “FINANCIAL BID”
2.13.4 The envelopes of Technical Bid and Financial Bids shall be sealed in
separate envelope and shall be kept in one outer envelope marked as
under:-
“Bids for Development of Tourism and related facilities at
Indira Sagar” RFP NO. 1
2.13.5 Each of the envelopes shall be addressed to:
ATTN. OF: Mr. Sunil Dubey
DESIGNATION: Director (Tourism Promotion Unit)
ADDRESS: MP State Tourism Development
Corporation Ltd.,
Paryatan Bhawan, Bhadbhada Road,
Bhopal 462 003
2.13.6 If the envelopes are not sealed and marked as instructed above, the
Corporation assumes no responsibility for the misplacement or
premature opening of the contents of the Bid and consequent losses, if
any, suffered by the Bidder.
2.13.7 Bids submitted by fax, telex, telegram or e-mail shall not be
entertained and shall be rejected.
2.14 Bid Due Date
2.14.1 Bids should be submitted before 1500 hours IST on 07/06/2012 (the
Bid Due Date), at the address provided in Clause 2.13.5 in the manner
and form as detailed in this RFP. A receipt thereof should be obtained
from the person specified in Clause 2.13.5.
2.14.2 The Corporation may, in its sole discretion, extend the Bid Due Date
by issuing an Addendum in accordance with Clause 2.10 uniformly for
all Bidder.
2.15 Late Bids
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Bids received by the Corporation after the specified time on the Bid
Due Date shall not be eligible for consideration and shall be summarily
rejected.
2.16 Modifications/substitution of Bids
2.16.1 No Bid for modification or substitution of Bid after submission shall
be entertained.
2.16.2 Any alteration/ modification in the Bid or additional information
supplied subsequent to the Bid Due Date, unless the same has been
expressly sought for by the Corporation, shall be disregarded.
D. EVALUATION PROCESS
2.17 Opening and Evaluation of Bids
2.17.1 The Corporation shall open the Bids at 1600 hours IST on 07/06/2012
(the Bid Due Date), at the place specified in Clause 2.13.5 and in the
presence of the Bidder who choose to attend.
2.17.2 The Corporation will subsequently examine and evaluate Bids in
accordance with the prequalification criteria set forth.
2.17.3 Bidder are advised that pre-qualification of Bidder will be entirely at
the discretion of the Corporation. Bidder will be deemed to have
understood and agreed that no explanation or justification on any
aspect of the Bidding Process or selection will be given.
2.17.4 Any information contained in the Bid shall not in any way be
construed as binding on the Corporation, its agents, successors or
assigns, but shall be binding against the Bidder if the Project is
subsequently awarded to it on the basis of such information.
2.17.5 Financial bids of only qualified parties will be opened on a date for
which qualified parties will be notified in advance and will have the
right to nominate any official to participate in the process of financial
bid opening. The financial bids of those bidders who do not meet the
technical and financial parameters for pre-qualification, will be
returned unopened.
2.17.6 The Corporation reserves the right not to proceed with the Bidding
Process at any time without notice or liability and to reject any or all
Bid(s) without assigning any reasons.
2.17.7 If any information furnished by the Bidder is found to be incomplete,
or contained in formats other than those specified herein, the
Corporation may, in its sole discretion, exclude the relevant project
from computation of the Eligibility of the Bidder.
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2.17.8 In the event that an Bidder claims credit for an Eligible Project, and
such claim is determined by the Corporation as incorrect or erroneous,
the Corporation shall reject such claim and exclude the same from
computation of the Eligible Score, and may also, while computing the
aggregate Experience Score of the Bidder, make a further deduction
equivalent to the claim rejected hereunder. Where any information is
found to be patently false or amounting to a material mis-
representations, the Corporation reserves the right to reject the Bid
and/ or Bid.
2.18 Validity of Bids
The bids shall be valid for a period of not less than 120 (one hundred
and twenty) days from the Bid Due Date. The validity of Bids may be
extended by mutual consent of the respective Bidders and Corporation.
2.19 Confidentiality
Information relating to the examination, clarification, evaluation and
recommendation for the bidders shall not be disclosed to any person
who is not officially concerned with the process or is not a retained
professional advisor advising Corporation in relation to, or matters
arising out of, or concerning the Bidding Process. Corporation will
treat all information, submitted as part of the Bid, in confidence and
will require all those who have access to such material to treat the
same in confidence. Corporation may not divulge any such information
unless it is directed to do so by any statutory entity that has the power
under law to require its disclosure or is to enforce or assert any right or
privilege of the statutory entity and/ or Corporation.
2.20 Correspondence with the Bidder
Corporation shall not entertain any correspondence with any Bidder in
relation to acceptance or rejection of any Bid.
2.21 Tests of responsiveness
2.21.1 Prior to evaluation of Bids, the Corporation shall determine whether
each Bid is responsive to the requirements of the RFP. An Bid shall be
considered responsive only if:
(a) it is received as per format at Appendix-I.
(b) It is accompanies by bid security as per the format at
Appendix - VII.
(c) it is received by the Bid Due Date including any extension
thereof pursuant to Clause 2.14.2;
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(d) it is signed, sealed, bound together in hard cover, and
marked as stipulated in Clauses 2.12 and 2.13;
(e) it is accompanied by the Power of Attorney, and in the case
of a Consortium, the Power of Attorney as specified in
Clause 2.2.4;
(f) it contains all the information and documents (complete in
all respects) as requested in this RFP;
(g) it contains information in formats same as those specified in
this RFP;
(h) it contains certificates from its statutory auditors in the
formats specified at Appendix-I of the RFP for each
Eligible Project;
(i) it contains proof of the payment of ` 20,000.00 (` twenty
thousand only) to Corporation towards the cost of the RFP
document; as per clause 1.2.1
(j) it is accompanied by the Jt. Bidding Agreement (for
Consortium), specific to the Project, as stipulated in Clause
2.2.5(g);
(k) it does not contain any condition or qualification; and
(l) it is not non-responsive in terms hereof.
2.21.2 The Corporation reserves the right to reject any Bid which is non-
responsive and no request for alteration, modification, substitution or
withdrawal shall be entertained by the Corporation in respect of such
Bid.
2.22 Clarifications
2.22.1 To facilitate evaluation of Bids, the Corporation may, at its sole
discretion, seek clarifications from any Bidder regarding its Bid. Such
clarification(s) shall be provided within the time specified by the
Corporation for this purpose. Any request for clarification(s) and all
clarification(s) in response thereto shall be in writing.
2.22.2 If an Bidder does not provide clarifications sought under Clause 2.22.1
above within the prescribed time, its Bid shall be liable to be rejected.
In case the Bid is not rejected, the Corporation may proceed to
evaluate the Bid by construing the particulars requiring clarification to
the best of its understanding, and the Bidder shall be barred from
subsequently questioning such interpretation of the Corporation.
2.23 Bid Security
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2.23.1 The Bidder shall furnish as part of its Bid, a Bid Security referred to in
Clause 1.2.5 hereinabove in the form of a Bank Draft or a bank
guarantee issued by a nationalized bank, or a Scheduled Bank in India,
in favour of Corporation in the format at Appendix – II (the “Bank
Guarantee”) and having a validity period of not less than 180 days
from the Bid Due Date, and may be extended by the Bidder from time
to time. For the avoidance of doubt, Scheduled Bank shall mean a bank
as defined under Section 2(e) of the Reserve Bank of India Act, 1934.
2.23.2 Corporation shall not be liable to pay any interest on the Bid Security
deposit so made and the same shall be interest free.
2.23.3 Any Bid not accompanied by the Bid Security shall be rejected by
Corporation as non-responsive.
2.23.4 Save as provided in Clause 1.2.5 above, the Bid Security of
unsuccessful Bidders will be returned by Corporation, without any
interest, as promptly as possible on signing of Development
Agreement with the Selected Bidder or when the Bidding process is
cancelled by Corporation.
2.23.5 The Selected Bidder’s Bid Security will be returned, without any
interest, upon the Bidder signing the Development Agreement and
furnishing the Performance Security in accordance with the provisions
thereof. Corporation may, at the Selected Bidder’s option, adjust the
amount of Bid Security in the amount of Performance Security to be
provided by him in accordance with the provisions of the Development
Agreement.
2.23.6 Corporation shall be entitled to forfeit and appropriate the Bid Security
as mutually agreed genuine pre-estimated compensation / damages to
Corporation in any of the events specified in Clause 2.23.7 herein
below. The Bidder, by submitting its Bid pursuant to this RFP, shall be
deemed to have acknowledged and confirmed that Corporation will
suffer loss and damage on account of withdrawal of its Bid or for any
other default by the Bidder during the Bid validity period. No
relaxation of any kind on Bid Security shall be given to any Bidder.
2.23.7 The Bid Security shall be forfeited and appropriated by Corporation as
mutually agreed genuine pre-estimated compensation and damages
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payable to Corporation for, inter alia, time, cost and effort of
Corporation without prejudice to any other right or remedy that may
be available to Corporation hereunder or otherwise, under the
following conditions:
a) If a Bidder engages in a corrupt practice, fraudulent practice,
coercive practice, undesirable practice or restrictive practice as
specified in Clause 3 of this RFP;
b) If a Bidder withdraws its Bid during the period of Bid validity
as specified in this RFP and as extended by the Bidder from
time to time;
c) In the case of Selected Bidder, if it fails within the specified
time limit -
i) to sign the Development Agreement and/or
ii) to furnish the Performance Security within the period
prescribed therefore in the Development Agreement; or
d) In case the Selected Bidder, having signed the Development
Agreement, commits any breach thereof prior to furnishing the
Performance Security.
E. QUALIFICATION AND BIDDING
2.24 Short-listing and notification
After the evaluation of Bids, the Corporation would announce a list of
qualified Bidder who will be eligible for opening of Financial Bids. At
the same time, the Corporation would notify the other Bidder that they
have not been short-listed. The Corporation will not entertain any
query or clarification from Bidder who fail to qualify.
2.25 Submission of Bids
The Bidders will be requested to submit a Bid in the form and manner
to be set out in the Bidding Documents.
Only qualified Bidder shall be invited by the Corporation to attend the
opening of financial bids.
2.26 Proprietary data
All documents and other information supplied by the Corporation or
submitted by an Bidder to the Corporation shall remain or become the
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property of the Corporation. Bidder are to treat all information as
strictly confidential and shall not use it for any purpose other than for
preparation and submission of their Bid. The Corporation will not
return any Bid or any information provided along therewith.
2.27 Correspondence with the Bidder
Save and except as provided in this RFP, the Corporation shall not
entertain any correspondence with any Bidder in relation to the
acceptance or rejection of any Bid.
2.28 Selection of Bidder
2.28.1 The Bidder adjudged as responsive in terms of Clause 2.2.2 and
quoting the highest Premium (highest Bidder) offered to Corporation,
shall be declared as the Selected Bidder (the “Selected Bidder”).
2.28.2 In the event that two or more Bidders quote the same amount of
Premium (the "Tie Bidders"), Corporation shall identify the Selected
Bidder by draw of lots, which shall be conducted, with prior notice, in
the presence of the Tie Bidders who choose to attend.
2.28.3 In the event that the highest Bidder withdraws or is not selected for
any reason in the first instance (the “first round of bidding”),
Corporation may invite all the remaining Bidders to revalidate or
extend their respective Bid Security, as necessary, and match the Bid
of the aforesaid highest Bidder (the “second round of bidding”). If in
the second round of bidding, only one Bidder matches the highest
Bidder, it shall be the Selected Bidder. If two or more Bidders match
the said highest Bidder in the second round of bidding, then the
Bidder whose Bid was higher as compared to other Bidder(s) in the
first round of bidding shall be the Selected Bidder. For example, if the
third and fifth highest Bidders in the first round of bidding offer to
match the said highest Bidder in the second round of bidding, the said
third highest bidder shall be the Selected Bidder.
2.28.4 In the event that no Bidder offers to match the highest Bidder in the
second round of bidding as specified in Clause 2.28.3, Corporation
may, in its discretion, invite fresh Bids (the “third round of
bidding”) from all Bidders except highest Bidder of the first round of
bidding, or annul the Bidding Process, as the case may be. In case the
Bidders are invited in the third round of bidding to revalidate or
extend their Bid Security, as necessary, and offer fresh Bids, they
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shall be eligible for submission of fresh Bids provided, however, that
in such third round of bidding only such bids shall be eligible for
consideration which are higher than the Bid of the second highest
Bidder in the first round of bidding.
2.28.5 After selection, a Letter of Award (the “LOA”) shall be issued, in
duplicate, by Corporation to the Selected Bidder and the Selected
Bidder shall, within 7 (seven) days of the receipt of the LOA, sign and
return the duplicate copy of the LOA in acknowledgement thereof. In
the event the duplicate copy of the LOA duly signed by the Selected
Bidder is not received by the stipulated date, Corporation may, unless
it consents to extension of time for submission thereof, appropriate
the Bid Security of such Bidder as mutually agreed genuine pre-
estimated loss and damage suffered by Corporation on account of
failure of the Selected Bidder to acknowledge the LOA, and the next
eligible Bidder may be considered.
2.28.6 After acknowledgement of the LOA as aforesaid by the Selected
Bidder, it shall execute the Development Agreement within the period
stipulated in LOA. The Selected Bidder shall not be entitled to seek
any deviation in the Development Agreement.
2.29 Details of Experience
2.29.1 The Bidder should furnish the details of Eligible Experience for the
last 5 (five) financial years immediately preceding the Bid Due Date.
2.29.2 The Bidder must provide the necessary information relating to
Technical Capacity as per format at Annex-II of Appendix-I.
2.29.3 The Bidder should furnish the required Project-specific information
and evidence in support of its claim of Technical Capacity, as per
format at Annex-IV of Appendix-I.
2.30 Financial information for purposes of evaluation
2.30.1 The Bid must be accompanied by the Audited Annual Reports of the
Bidder (of each Member in case of a Consortium) for the last 5 (five)
financial years, preceding the year in which the Bid is made. In case
the Bidder is less than 5 years old, such audited annual reports will be
considered for evaluation as are available subject to the condition that
it fulfils the criterion.
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2.30.2 In case the annual accounts for the latest financial year are not audited
and therefore the Bidder cannot make it available, the Bidder shall give
an undertaking to this effect and the statutory auditor shall certify the
same. In such a case, the Bidder shall provide the Audited Annual
Reports for 5 (five) years preceding the year for which the Audited
Annual Report is not being provided subject to clause 2.30.1 above.
2.30.3 The Bidder must establish the minimum Net Worth specified in Clause
2.2.2 (B), and provide details as per format at Annex-III of
Appendix-I.
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SECTION - 3
FRAUD AND CORRUPT PRACTICES
3.1 The Bidder and their respective officers, employees, agents and advisers
shall observe the highest standard of ethics during the Bidding Process.
Notwithstanding anything to the contrary contained herein, the
Corporation may reject a Bid without being liable in any manner
whatsoever to the Bidder if it determines that the Bidder has, directly or
indirectly or through an agent, engaged in corrupt practice, fraudulent
practice, coercive practice, undesirable practice or restrictive practice in
the Bidding Process.
3.2 Without prejudice to the rights of the Corporation under Clause 3.1
hereinabove, if an Bidder is found by the Corporation to have directly or
indirectly or through an agent, engaged or indulged in any corrupt
practice, fraudulent practice, coercive practice, undesirable practice or
restrictive practice during the Bidding Process, such Bidder shall not be
eligible to participate in any tender or RFP issued by the Corporation
during a period of 2 (two) years from the date such Bidder is found by
the Corporation to have directly or indirectly or through an agent,
engaged or indulged in any corrupt practice, fraudulent practice,
coercive practice, undesirable practice or restrictive practice, as the case
may be.
3.3 For the purposes of this Clause 3, the following terms shall have the
meaning hereinafter respectively assigned to them:
(a) “corrupt practice” means (i) the offering, giving, receiving, or
soliciting, directly or indirectly, of anything of value to
influence the actions of any person connected with the Bidding
Process (for avoidance of doubt, offering of employment to, or
employing, or engaging in any manner whatsoever, directly or
indirectly, any official of the Corporation who is or has been
associated in any manner, directly or indirectly, with the
Bidding Process or the LOA or has dealt with matters
concerning the Development Agreement or arising there from,
before or after the execution thereof, at any time prior to the
expiry of one year from the date such official resigns or retires
from or otherwise ceases to be in the service of the
Corporation, shall be deemed to constitute influencing the
actions of a person connected with the Bidding Process); or (ii)
save and except as permitted under sub clause (d) of Clause
2.2.1, engaging in any manner whatsoever, whether during the
Bidding Process or after the issue of the LOA or after the
execution of the Development Agreement, as the case may be,
any person in respect of any matter relating to the Project or
the LOA or the Development Agreement, who at any time has
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been or is a legal, financial or technical adviser of the
Corporation in relation to any matter concerning the Project;
(b) “fraudulent practice” means a misrepresentation or omission
of facts or suppression of facts or disclosure of incomplete
facts, in order to influence the Bidding Process;
(c) “coercive practice” means impairing or harming or
threatening to impair or harm, directly or indirectly, any person
or property to influence any person’s participation or action in
the Bidding Process;
(d) “undesirable practice” means (i) establishing contact with any
person connected with or employed or engaged by the
Corporation with the objective of canvassing, lobbying or in
any manner influencing or attempting to influence the Bidding
Process; or (ii) having a Conflict of Interest; and
(e) “restrictive practice” means forming a cartel or arriving at
any understanding or arrangement among Bidder with the
objective of restricting or manipulating a full and fair
competition in the Bidding Process.
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SECTION - 4
PRE-BID CONFERENCE
4.1 A Pre-Bid conference of the interested parties shall be convened at the
designated date, time and place.
4.2 During the course of Pre-Bid conference, the parties who choose to
attend will be free to seek clarifications and make suggestions for
consideration of the Corporation. The Corporation shall endeavor to
provide clarifications and such further information as it may, in its sole
discretion, consider appropriate for facilitating a fair, transparent and
competitive Bidding Process.
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SECTION - 5
MISCELLANEOUS
5.1 The Bidding Process shall be governed by, and construed in
accordance with, the laws of India and the Courts at Madhya Pradesh
shall have exclusive jurisdiction over all disputes arising under,
pursuant to and/ or in connection with the Bidding Process.
5.2 The Corporation, in its sole discretion and without incurring any
obligation or liability, reserves the right, at any time, to;
(a) suspend and/or cancel the Bidding Process and/or amend and/ or
supplement the Bidding Process or modify the dates or other
terms and conditions relating thereto;
(b) consult with any Bidder in order to receive clarification or further
information;
(c) pre-qualify or not to pre-qualify any Bidder and/ or to consult
with any Bidder in order to receive clarification or further
information;
(d) award/or not award the project to the project to the Bidder who is
the Highest Bidder;
(e) retain any information and/ or evidence submitted to the
Corporation by, on behalf of, and/ or in relation to any Bidder;
and/ or
(f) Independently verify, disqualify, reject and/ or accept any and all
submissions or other information and/ or evidence submitted by
or on behalf of any Bidder.
5.3 It shall be deemed that by submitting the Bid, the Bidder agrees and
releases the Corporation, its employees, agents and advisers,
irrevocably, unconditionally, fully and finally from any and all liability
for claims, losses, damages, costs, expenses or liabilities in any way
related to or arising from the exercise of any rights and/ or
performance of any obligations hereunder and the Bidding Documents,
pursuant hereto, and/ or in connection with the Bidding Process, to the
fullest extent permitted by applicable law, and waives any and all
rights and/ or claims it may have in this respect, whether actual or
contingent, whether present or in future.
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APPENDIX - I
Letter Comprising the Bid
Dated:
To,
The Managing Director,
MP State Tourism Development Corporation Ltd.
Paryatan Bhawan, Bhadbhada Road,
Bhopal 462 003
Sub: Development of Tourism and related facilities at Indira Sagar on
DBFOT Basis.
Dear Sir,
With reference to your RFP document No. 1 dated 7.05.2012 $, I/we,
having examined the RFP document and understood its contents, hereby
submit my/our Bid for the aforesaid project. The Bid is unconditional and
unqualified.
2. I/ We acknowledge that the Corporation will be relying on the
information provided in the Bid and the documents accompanying such Bid
for qualification of the Bidder and award of the aforesaid project, and we
certify that all information provided in the Bid and in Annexes I to IV is true
and correct; nothing has been omitted which renders such information
misleading; and all documents accompanying such Bid are true copies of their
respective originals.
3. This statement is made for the express purpose of qualifying and award
as a Bidder for the development, construction, operation and maintenance of
the aforesaid Project.
4. I/ We shall make available to the Corporation any additional
information it may find necessary or require to supplement or authenticate the
Qualification statement.
5. I/ We acknowledge the right of the Corporation to reject our Bid
without assigning any reason or otherwise and hereby waive, to the fullest
extent permitted by applicable law, our right to challenge the same on any
account whatsoever.
6. I/ We certify that in the last three years, we/ any of the Consortium
Members or our/ their Associates have neither failed to perform on any
contract, as evidenced by imposition of a penalty by an arbitral or judicial
Corporation or a judicial pronouncement or arbitration award, nor been
$ All blank spaces shall be suitably filled up by the Bidder to reflect the particulars relating to
such Bidder.
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expelled from any project or contract nor have had any contract terminated for
breach on our part as provided in clause 2.2.6 & 2.2.7
7. I/ We declare that:
(a) I/ We have examined and have no reservations to the RFP
document, including any Addendum issued by the Corporation.
(b) I/ We do not have any conflict of interest in accordance with
the RFP document; and
(c) I/We have not directly or indirectly or through an agent
engaged or indulged in any corrupt practice, fraudulent
practice, coercive practice, undesirable practice or restrictive
practice, as defined in the RFP document, in respect of any
tender or request for proposal issued by or any agreement
entered into with the Corporation or any other public sector
enterprise or any government, Central or State; and
(d) I/ We hereby certify that we have taken steps to ensure that in
conformity with the provisions of Section 3 of the RFP
document, no person acting for us or on our behalf has engaged
or will engage in any corrupt practice, fraudulent practice,
coercive practice, undesirable practice or restrictive practice.
8. I/ We understand that you may cancel the Bidding Process at any time
and that you are neither bound to accept any Bid that you may receive nor to
invite the Bidder to Bid for the Project, without incurring any liability to the
Bidder.
9. I/ We believe that we/ our Consortium/ proposed Consortium
satisfy(ies) the Net Worth criteria and meet(s) all the requirements as specified
in the RFP document and are/ is qualified to submit the Bid and for award of
Project.
10. I/ We declare that we/ any Member of the Consortium, or our/ its
Associates are not a Member of a/ any other Consortium applying for pre-
qualification.
11. I/ We certify that in regard to matters other than security and integrity
of the country, we/ any Member of the Consortium or any of our/ their
Associates have not been convicted by a Court of Law or indicted or adverse
orders passed by a regulatory Corporation which could cast a doubt on our
ability to undertake the Project or which relates to a grave offence that
outrages the moral sense of the community.
12. I/ We further certify that in regard to matters relating to security and
integrity of the country, we/ any Member of the Consortium or any of our/
their Associates have not been charge-sheeted by any agency of the
Government or convicted by a Court of Law.
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13. I/ We further certify that no investigation by a regulatory body is
pending either against us/ any Member of the Consortium or against our/ their
Associates or against our CEO or any of our directors/ managers/ employees.
14. I/ We further certify that we are qualified to submit a Bid in
accordance with the guidelines for qualification of bidders seeking to acquire
stakes in Public Sector Enterprises through the process of disinvestment issued
by the GOI vide Department of Disinvestment OM No. 6/4/2001-DD-II dated
13th July, 2001 which guidelines apply mutatis mutandis to the Bidding
Process. A copy of the aforesaid guidelines form part of the RFP at Appendix-
V thereof.
15. I/ We undertake that in case due to any change in facts or
circumstances during the Bidding Process, we are attracted by the provisions
of disqualification in terms of the guidelines referred to above, we shall
intimate Corporation of the same immediately.
16. The Statement of Legal Capacity as per format provided at Annex-V in
Appendix-I of the RFP document, and duly signed, is enclosed. The power of
attorney for signing of Bid and the power of attorney for Lead Member of
consortium, as per format provided at Appendix II and III respectively of the
RFP, are also enclosed.
17. In the event of my/ our being declared as the Selected Bidder, I/We
agree to enter into a Development Agreement in accordance with the draft that
has been provided to me/us prior to the Bid Due Date. We agree not to seek
any changes in the aforesaid draft and agree to abide by the same.
18. I/We have studied all the Bidding Documents carefully and also
surveyed the site. We understand that except to the extent as expressly set
forth in the Development Agreement, we shall have no claim, right or title
arising out of any documents or information provided to us by Corporation or
in respect of any matter arising out of or concerning or relating to the Bidding
Process including the award of Development Right.
19. The [Premium] has been quoted by me/us after taking into
consideration all the terms and conditions stated in the RFP, draft
Development Agreement, our own estimates of costs and after a careful
assessment of the site and all the conditions that may affect the Bid.
20. I/We offer a Bid Security of ` 20.00 lakh (` Twenty lakh only) to
Corporation in accordance with the RFP Document.
21. The Bid Security in the form of a Bank Draft/Bank Guarantee is
attached.
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22. I/We agree and understand that the Bid is subject to the provisions of
the Bidding Documents. In no case, I/We shall have any claim or right of
whatsoever nature if the Project / Development Right is not awarded to me/us
or our Bid is not opened.
23. I/ We understand that the selected Bidder shall either be an existing
Company incorporated under the Indian Companies Act, 1956, or shall
incorporate itself as such prior to execution of the Development Agreement.
24. We agree and undertake to be jointly and severally liable for all the
obligations of the Developer under the Development Agreement in
accordance with the Development Agreement.}$
25. I/We hereby irrevocably waive any right which we may have at any
stage at law or howsoever otherwise arising to challenge or question any
decision taken by Corporation in connection with the selection of the Bidder,
or in connection with the Bidding Process itself, in respect of the above
mentioned Project and the terms and implementation thereof.
26. I/We agree to keep this offer valid for 120 (one hundred and twenty)
days from the Bid Due Date specified in the RFP.
27. I/We agree and undertake to abide by all the terms and conditions of
the RFP document.
In witness thereof, I/ we submit this Bid under and in accordance with the
terms of the RFP document.
Yours faithfully,
Date: (Signature, name and designation of the Authorized Signatory)
Place: Name and seal of the Bidder/ Lead Member
$ Omit if the Bidder is not a Consortium.
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Appendix I
Annex-I
ANNEX-I
Details of Bidder
1. (a) Name:
(b) Address of the corporate headquarters and its branch office(s)
(c) Date of incorporation and/ or commencement of business:
2. Brief description of the Company including details of its main lines of
business and proposed role and responsibilities in this Project:
3. Details of individual(s) who will serve as the point of contact/ communication
for the Corporation:
(a) Name:
(b) Designation:
(c) Company:
(d) Address:
(e) Telephone Number:
(f) E-Mail Address:
(g) Fax Number:
4. Particulars of the Authorised Signatory of the Bidder:
(a) Name:
(b) Designation:
(c) Address:
(d) Phone Number:
(e) Fax Number:
5. In case of a Consortium:
(a) The information above (1-4) should be provided for all the Members of
the Consortium.
(b) A copy of the Jt. Bidding Agreement, as envisaged in Clause 2.2.5(g)
should be attached to the Bid.
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(c) Information regarding the role of each Member should be provided as
per table below:
Sl.
No.
Name of Member Role*
{Refer Clause
2.2.5(d)}$
Percentage of equity in the
Consortium{Refer Clauses
2.2.5(a), (b), (c) & (g)}
1.
2.
3.
4.
* The role of each Member, as may be determined by the Bidder, should
be indicated in accordance with instruction 4 at Annex-IV.
(d) The following information shall also be provided for each Member of
the Consortium:
Name of Bidder/ member of Consortium:
No. Criteria Yes No
1. Has the Bidder/ constituent of the Consortium been
barred by the Central/ State Government, or any
entity created or controlled by it, from participating
in any project.
2. If the answer to 1 is yes, does the bar subsist as on
the date of Bid?
6. A statement by the Bidder and each of the Members of its Consortium
(where applicable) or any of their Associates disclosing material non-
performance or contractual non-compliance in past projects,
contractual disputes and litigation/ arbitration in the recent past is
given below (Attach extra sheets, if necessary): in terms of clause 2.2.6
& 2.2.7.
$ All provisions contained in curly parenthesis shall be suitably modified by the Bidder to reflect the
particulars relating to such Bidder.
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Appendix I
Annex-II
ANNEX-II
Technical Capacity of the Bidder @
Bidder
type #
(1)
Member
Code*
(2)
Project
(3)
` in crores$$
Payments made/
received for
construction of
Eligible Projects (4)
Payments made for
development of
Eligible Projects
(5)
Single
entity
Bidder
Consortium
Member 1
Consortium
Member 2
Consortium
Member 3
Aggregate Experience
@ Provide details of only those projects that have been undertaken by the Bidder under its own name
and/ or by an Associate specified in Clause 2.2.8 and/ or by a project company.
# An Bidder consisting of a single entity should fill in details as per the row titled Single entity Bidder
and ignore the rows titled Consortium Member. In case of a Consortium, the row titled Single entity
Bidder may be ignored. In case credit is claimed for an Associate, necessary evidence to establish the
relationship of the Bidder with such Associate, in terms of Clause 2.2.8, shall be provided.
* Member Code shall indicate NA for Not Applicable in case of a single entity Bidder. For other
Members, the following abbreviations are suggested viz. LM means Lead Member, TM means
Technical Member, FM means Financial Member, OMM means Operation & Maintenance Member,
OM means Other Member. $$
For conversion of US Dollars to Rupees, the rate of conversion shall be Rupees 50(fifty) to a US
Dollar. In case of any other currency, the same shall first be converted to US Dollars as on the date 60
(Sixty) days prior to the Bid Due Date, and the amount so derived in US Dollars shall be converted into
Rupees at the aforesaid rate. The conversion rate of such currencies shall be the daily representative
exchange rates published by the International Monetary Fund for the relevant date.
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Appendix I
Annex-III
ANNEX-III
Financial Capacity of the Bidder
(In ` crore$$
)
Bidder type $ Member Code
£ Net Worth
€
(1)
(2)
Year
1
(3)
Single entity Bidder
Consortium Member 1
Consortium Member 2
Consortium Member 3
TOTAL
Name & address of Bidder’s Bankers:
$ An Bidder consisting of a single entity should fill in details as per the row titled Single entity
Bidder and ignore the rows titled Consortium Members. In case of a Consortium, row titled
Single entity Bidder may be ignored.
£For Member Code, see instruction 4 at Annex-IV of this Appendix-I.
€The Bidder should provide details of its own Financial Capability or of an Associate
specified in Clause 2.2.8.
$$ For conversion of US Dollars to Rupees, the rate of conversion shall be Rupees 50(fifty) to
a US Dollar. In case of any other currency, the same shall first be converted to US Dollars as
on the date 60 (Sixty) days prior to the Bid Due Date, and the amount so derived in US
Dollars shall be converted into Rupees at the aforesaid rate. The conversion rate of such
currencies shall be the daily representative exchange rates published by the International
Monetary Fund for the relevant date.
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Instructions:
1. The Bidder/ its constituent Consortium Members shall attach copies of the
balance sheets, financial statements and Annual Reports for 5 (five) years
preceding the Bid Due Date. The financial statements shall:
(a) reflect the financial situation of the Bidder or Consortium Members
and its/ their Associates where the Bidder is relying on its Associate’s
financials;
(b) be audited by a statutory auditor;
(c) be complete, including all notes to the financial statements; and
(d) correspond to accounting periods already completed and audited (no
statements for partial periods shall be requested or accepted).
2. Net Worth shall mean (Subscribed and Paid-up Equity + Reserves) less
(Revaluation reserves + miscellaneous expenditure not written off + reserves
not available for distribution to equity shareholders).
3. Year 1 will be the latest completed financial year, preceding the bidding.
4. In the case of a Consortium, a copy of the Jt. Bidding Agreement shall be
submitted in accordance with Clause 2.2.5 (g) of the RFP document.
5. The Bidder shall also provide the name and address of the Bankers to the
Bidder.
6. The Bidder shall provide an Auditor’s Certificate specifying the net worth of
the Bidder and also specifying the methodology adopted for calculating such
net worth in accordance with Clause 2.2.3 (ii) of the RFP document.
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Appendix I
Annex-IV
ANNEX-IV
Details of Eligible Projects
Project Code: Member Code:
Item
(1)
Particulars of the Project
(3)
Title & nature of the project
Category
Year-wise (a) payments received/
made for construction, (b)
payments made for development of
PPP projects and/ or (c) revenues
appropriated
Entity for which the project was
constructed/ developed
Location
Project cost
Date of commencement of project/
contract
Date of completion/
commissioning
Equity shareholding
(with period during which equity
was held)
Whether credit is being taken for
the Eligible Experience of an
Associate (Yes/ No)
Instructions:
1. Bidders are expected to provide information in respect of each Eligible
Projects in this Annex. The projects cited must comply with the eligibility
criteria specified in Clause 2.2.2 (A) of the RFP, as the case may be.
Information provided in this section is intended to serve as a back up for
information provided in the Bid. Bidder should also refer to the Instructions
below.
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2. For a single entity Bidder, the Project Codes would be a, b, c, d etc. In case the
Bidder is a Consortium then for Member 1, the Project Codes would be 1a, 1b,
1c, 1d etc., for Member 2 the Project Codes shall be 2a, 2b, 2c, 2d etc., and so
on.
3. A separate sheet should be filled for each Eligible Project.
4. Member Code shall indicate NA for Not Applicable in case of a single entity
Bidder. For other Members, the following abbreviations are suggested viz. LM
means Lead Member, TM means Technical Member, FM means Financial
Member, OMM means Operation & Maintenance Member; and OM means
Other Member. In case the Eligible Project relates to an Associate of the
Bidder or its Member, write “Associate” along with Member Code.
5. The total payments received/ made and/or revenues appropriated for each
Eligible Project are to be stated in Annex-II of this Appendix-I. The figures to
be provided here should indicate the break-up for the past 5 (five) financial
years. Year 1 refers to the financial year immediately preceding the Bid Due
Date; Year 2 refers to the year before Year 1, Year 3 refers to the year before
Year 2, and so on (Refer Clause 2.2.12). Payment for construction works
should only include capital expenditure, and should not include expenditure on
repairs and maintenance.
6. In case of development project, particulars such as name, address and contact
details of owner/ Corporation / Agency (i.e. Development Right grantor,
counter party to PPA, etc.) may be provided. In case of EPC projects, similar
particulars of the client need to be provided.
7. Provide the estimated capital cost of Eligible Project.
8. For development project, the date of commissioning of the project, upon
completion, should be indicated. In case of EPC project, date of completion of
construction should be indicated. In the case of projects under construction,
the likely date of completion or commissioning, as the case may be, shall be
indicated.
9. For development project, the equity shareholding of the Bidder, in the
company owning the Eligible Project, held continuously during the period for
which Eligible Experience is claimed, needs to be given {Refer Clause
2.2.2(A)}.
10. Experience for any activity relating to an Eligible Project shall not be claimed
by two or more Members of the Consortium. In other words, no double
counting by a consortium in respect of the same experience shall be permitted
in any manner whatsoever.
11. Certificate from the Bidder’s statutory auditor$ or its respective clients must be
furnished as per formats below for each Eligible Project. In jurisdictions that
do not have statutory auditors, the auditors who audit the annual accounts of
the Bidder/ Member/Associate may provide the requisite certification.
13. If the Bidder is claiming experience for development project, it should provide
a certificate from its statutory auditor in the format below:
$ In case duly certified audited annual financial statements containing the requisite details are provided,
a separate certification by statutory auditors would not be necessary.
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Certificate from the Statutory Auditor regarding PPP projects
Based on its books of accounts and other published information authenticated by it,
this is to certify that …………………….. (name of the Bidder/Member/Associate) is/
was an equity shareholder in ……………….. (title of the project company) and holds/
held ` ……… cr. (` ………………………….. crore) of equity (which constitutes
……..%€ of the total paid up and subscribed equity capital) of the project company
from …………... (date) to …………….. (date)¥. The project was/is likely to be
commissioned on ……………. (date of commissioning of the project).
We further certify that the total estimated capital cost of the project is ` ……… cr.
(` …………………crore), of which ` ……… cr. (` …………… crore) of capital
expenditure was incurred during the past five financial years as per year-wise details
noted below:
………………………
………………………
Name of the audit firm:
Seal of the audit firm: (Signature, name and designation of the authorised signatory)
Date:
Provide Certificate as per this format only. Attach Explanatory Notes to the Certificate, if necessary.
Statutory auditor means the entity that audits and certifies the annual accounts of the company. € Refer instruction no. 10 in this Annex-IV.
¥ In case the project is owned by the Bidder company, this language may be suitably modified to read:
“It is certified that …………….. (name of Bidder) constructed and/ or owned the ………….. (name of
project) from ……………….. (date) to ………………… (date).”
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Appendix I
Annex-IV
14. If the Bidder is claiming experience for EPC project, it should provide a
certificate from its statutory auditors or the client in the format below:
Certificate from the Statutory Auditor/ Client regarding construction works
Based on its books of accounts and other published information authenticated by it,
{this is to certify that …………………….. (name of the Bidder/Member/Associate)
was engaged by ……………….. (title of the project company) to execute
……………… (name of project) for …………………. (nature of project)}. The
construction of the project commenced on ………….. (date) and the project was/ is
likely to be commissioned on …………… (date, if any). It is certified that
……………. (name of the Bidder/ Member/ Associate) received/paid ` ……….. cr.
(` …………………………… crore) by way of payment for the aforesaid
construction works.
We further certify that the total estimated capital cost of the project is ` …… cr.
(` …………………crore), of which the Bidder/Member/Associate received/paid ` ……… cr. (` ……………………… crore), in terms of the RFP, during the past five
financial years as per year-wise details noted below:
………………………
………………………
{It is further certified that the payments/ receipts indicated above are restricted to the
share of the Bidder who undertook these works as a partner or a member of joint
venture/ consortium.}
Name of the audit firm:
Seal of the audit firm: (Signature, name and designation of the authorised signatory).
Date:
Provide Certificate as per this format only. Attach Explanatory Notes to the Certificate, if necessary.
Statutory auditor means the entity that audits and certifies the annual accounts of the company.
In case the Bidder owned the Eligible Project and engaged a contractor for undertaking the
construction works, this language may be modified to read: “ this is to certify that …………… (name
of Bidder/ Member/ Associate) held 26% or more of the paid up and subscribed share capital in
the……………. (name of Project company) when it undertook construction of the ……………….
(name of Project) through ………………… (name of the contractor).
This certification should only be provided in case of jobs/ contracts, which are executed as part of a
partnership/ joint venture/ consortium. The payments indicated in the certificate should be restricted to
the share of Bidder in such partnership/ joint venture/ consortium. This portion may be omitted if the
contract did not involve a partnership/ joint venture/ consortium. In case where work is not executed by
partnership/ joint venture/ consortium, this paragraph may be deleted.
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Appendix I
Annex-IV
15. In the event that credit is being taken for the Eligible Experience of an
Associate, the Bidder should also provide a certificate in the format below:
$ In the event that the Bidder/ Consortium Member exercises control oven an Associate by operation of
law, this certificate may be suitably modified and copies of the relevant law may be enclosed and
referred to.
£ In the case of indirect share-holding, the intervening companies in the chain of ownership should also
be Associates i.e., the share-holding in each such company should be more than 50% in order to
establish that the chain of “control” is not broken.
16. It may be noted that in the absence of any detail in the above certificates, the
information would be considered inadequate and could lead to exclusion of the
relevant project in computation of Experience.
Certificate from Statutory Auditor/ Company Secretary regarding Associate$
Based on the authenticated record of the Company, this is to certify that more than
50% (fifty per cent) of the subscribed and paid up voting equity of ………………
(name of the Associate) is held, directly or indirectly£, by ……………….. (name
of Bidder/ Consortium Member). By virtue of the aforesaid share-holding, the
latter exercises control over the former, who is an Associate in terms of Clause
2.2.8 of the RFP.
A brief description of the said equity held, directly or indirectly, is given below:
{Describe the share-holding of the Bidder/ Consortium Member in the Associate}
Name of the audit firm:
Seal of the audit firm: (Signature, name and designation of Date: the authorised
signatory).
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APPENDIX- I
ANNEX-V
Statement of Legal Capacity
(To be forwarded on the letterhead of the Bidder/ Lead Member of Consortium)
Ref. Date:
To,
The Managing Director
MP State Tourism Development Corporation Ltd.
Paryatan Bhawan, Bhadbhada Road,
Bhopal 462 003
Dear Sir,
We hereby confirm that we/ our members in the Consortium (constitution of which
has been described in the Bid) satisfy the terms and conditions laid out in the RFP
document.
We have agreed that …………………… (insert member’s name) will act as the Lead
Member of our consortium.*
We have agreed that ………………….. (insert individual’s name) will act as our
representative/ will act as the representative of the consortium on its behalf* and has
been duly authorized to submit the RFP. Further, the authorised signatory is vested
with requisite powers to furnish such letter and authenticate the same.
Thanking you,
Yours faithfully,
(Signature, name and designation of the authorised signatory)
For and on behalf of……………………………..
*Please strike out whichever is not applicable.
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APPENDIX II
Power of Attorney for signing of Bid
Know all men by these presents, We……………………………………………..
(name of the firm and address of the registered office) do hereby irrevocably
constitute, nominate, appoint and authorise Mr/ Ms (name), ……………………
son/daughter/wife of ……………………………… and presently residing at
…………………., who is presently employed with us/ the Lead Member of our
Consortium and holding the position of ……………………………. , as our true and
lawful attorney (hereinafter referred to as the “Attorney”) to do in our name and on
our behalf, all such acts, deeds and things as are necessary or required in connection
with or incidental to submission of our Bid for qualification and submission of our bid
for the Development of Tourism and related facilities at Indira Sagar proposed or
being developed by MP State Tourism Development Corporation Ltd., (the
“Corporation”) including but not limited to signing and submission of all Bids, bids
and other documents and writings, participate in Pre-Bids and other conferences and
providing information/ responses to the Corporation, representing us in all matters
before the Corporation, signing and execution of all contracts including the
Development Agreement and undertakings consequent to acceptance of our bid, and
generally dealing with the Corporation in all matters in connection with or relating to
or arising out of our bid for the said Project and/ or upon award thereof to us and/or
till the entering into of the Development Agreement with the Corporation.
AND we hereby agree to ratify and confirm and do hereby ratify and confirm all acts,
deeds and things done or caused to be done by our said Attorney pursuant to and in
exercise of the powers conferred by this Power of Attorney and that all acts, deeds
and things done by our said Attorney in exercise of the powers hereby conferred shall
and shall always be deemed to have been done by us.
IN WITNESS WHEREOF WE, …………………………., THE ABOVE NAMED
PRINCIPAL HAVE EXECUTED THIS POWER OF ATTORNEY ON THIS ………
DAY OF …………. 2…..
For
…………………………..
(Signature, name, designation and address)
Witnesses:
1.
(Notarised)
2.
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Appendix II
Page 2
Accepted
……………………………
(Signature)
(Name, Title and Address of the Attorney)
Notes:
The mode of execution of the Power of Attorney should be in accordance with the
procedure, if any, laid down by the applicable law and the charter documents of
the executant(s) and when it is so required, the same should be under common
seal affixed in accordance with the required procedure.
Wherever required, the Bidder should submit for verification the extract of the
charter documents and documents such as a board or shareholders’ resolution/
power of attorney in favour of the person executing this Power of Attorney for the
delegation of power hereunder on behalf of the Bidder.
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APPENDIX III
Power of Attorney for Lead Member of Consortium
Whereas the MP State Tourism Development Corporation (“the Corporation”) has
invited Bids from interested parties for Development of Tourism and related facilities
at Indira Sagar (the “Project”).
Whereas, …………………….., …………………….., …………………….. and
…………………….. (collectively the “Consortium”) being Members of the
Consortium are interested in bidding for the Project in accordance with the terms and
conditions of the Request for Proposal (RFP) and other connected documents in
respect of the Project, and
Whereas, it is necessary for the Members of the Consortium to designate one of them
as the Lead Member with all necessary power and Corporation to do for and on
behalf of the Consortium, all acts, deeds and things as may be necessary in
connection with the Consortium’s bid for the Project and its execution.
NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS
We, …………………….. having our registered office at …………………….., and
M/s. .…………………….. having our registered office at ……………………..,
(hereinafter collectively referred to as the “Principals”) do hereby irrevocably
designate, nominate, constitute, appoint and authorise M/s ……………………..
having its registered office at …………………….., being one of the Members of the
Consortium, as the Lead Member and true and lawful attorney of the Consortium
(hereinafter referred to as the “Attorney”). We hereby irrevocably authorise the
Attorney (with power to sub-delegate) to conduct all business for and on behalf of the
Consortium and any one of us during the bidding process and, in the event the
Consortium is awarded the Development Right/contract, during the execution of the
Project and in this regard, to do on our behalf and on behalf of the Consortium, all or
any of such acts, deeds or things as are necessary or required or incidental to the pre-
qualification of the Consortium and submission of its bid for the Project, including but
not limited to signing and submission of all Bids, bids and other documents and
writings, participate in bidders and other conferences, respond to queries, submit
information/ documents, sign and execute contracts and undertakings consequent to
acceptance of the bid of the Consortium and generally to represent the Consortium in
all its dealings with the CORPORATION, and/ or any other Government Agency or
any person, in all matters in connection with or relating to or arising out of the
Consortium’s bid for the Project and/ or upon award thereof till the Development
Agreement is entered into with the Corporation.
AND hereby agree to ratify and confirm and do hereby ratify and confirm all acts,
deeds and things done or caused to be done by our said Attorney pursuant to and in
exercise of the powers conferred by this Power of Attorney and that all acts, deeds
and things done by our said Attorney in exercise of the powers hereby conferred shall
and shall always be deemed to have been done by us/ Consortium.
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IN WITNESS WHEREOF WE THE PRINCIPALS ABOVE NAMED HAVE
EXECUTED THIS POWER OF ATTORNEY ON THIS …………………. DAY OF
………. 2..…
For ……………………..
(Signature)
……………………..
(Name & Title)
For ……………………..
(Signature)
……………………..
(Name & Title)
Witnesses:
1.
2.
………………………………………
(Executants)
(To be executed by all the Members of the Consortium)
Notes:
The mode of execution of the Power of Attorney should be in accordance with the
procedure, if any, laid down by the applicable law and the charter documents of
the executant(s) and when it is so required, the same should be under common
seal affixed in accordance with the required procedure.
Also, wherever required, the Bidder should submit for verification the extract of
the charter documents and documents such as a board or shareholders’
resolution/ power of attorney in favour of the person executing this Power of
Attorney for the delegation of power hereunder on behalf of the Bidder.
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APPENDIX IV
Joint Bidding Agreement
(To be executed o n Stamp paper of appropriate value)
THIS JOINT BIDDING AGREEMENT is entered into on this the ………… day of
………… 20…
AMONGST
1. {………… Limited, a company incorporated under the Companies Act, 1956}
and having its registered office at ………… (hereinafter referred to as the
“First Part” which expression shall, unless repugnant to the context include
its successors and permitted assigns)
AND
2. {………… Limited, a company incorporated under the Companies Act, 1956}
and having its registered office at ………… (hereinafter referred to as the
“Second Part” which expression shall, unless repugnant to the context include
its successors and permitted assigns)
AND
3. {………… Limited, a company incorporated under the Companies Act, 1956
and having its registered office at ………… (hereinafter referred to as the
“Third Part” which expression shall, unless repugnant to the context include
its successors and permitted assigns)}
The above mentioned parties of the FIRST, SECOND and THIRD PART are
collectively referred to as the “Parties” and each is individually referred to as
a “Party”
WHEREAS,
(A) MP State Tourism Development Corporation Ltd., established under the
companies Act, 1956 and having its registered offices at MP State Tourism
Development Corporation Ltd. Paryatan Bhawan, Bhadbhada Road, Bhopal,
hereinafter referred to as the “Corporation” which expression shall, unless
repugnant to the context or meaning thereof, include its administrators,
successors and assigns) has invited Bids (the Bids”) by its NIT No.
…………….. dated ……… (the “RFP”) for pre-qualification and short-
listing of bidders for development and operation/ maintenance of Tourism
related facilities at Indira Sagar (the “Project”) through public private
partnership.
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(B) The Parties are interested in jointly bidding for the Project as members of a
Consortium and in accordance with the terms and conditions of the RFP
document and other bid documents in respect of the Project, and
(C) It is a necessary condition under the RFP document that the members of the
Consortium shall enter into a Joint Bidding Agreement and furnish a copy
thereof with the Bid.
NOW IT IS HEREBY AGREED as follows:
1. Definitions and Interpretations
In this Agreement, the capitalized terms shall, unless the context otherwise
requires, have the meaning ascribed thereto under the RFP.
2. Consortium
2.1 The Parties do hereby irrevocably constitute a consortium (the “Consortium”)
for the purposes of jointly participating in the Bidding Process for the Project.
2.2 The Parties hereby undertake to participate in the Bidding Process only
through this Consortium and not individually and/ or through any other
consortium constituted for this Project, either directly or indirectly or through
any of their Associates.
3. Covenants
The Parties hereby undertake that in the event the Consortium is declared the
selected Bidder and awarded the Project, it shall incorporate a special purpose
vehicle (the “SPV”) under the Indian Companies Act 1956 for entering into a
Development Agreement with the Corporation and for performing all its
obligations as the Developer in terms of the Development Agreement for the
Project.
4. Role of the Parties
The Parties hereby undertake to perform the roles and responsibilities as
described below:
(a) Party of the First Part shall be the Lead member of the Consortium and
shall have the power of attorney from all Parties for conducting all
business for and on behalf of the Consortium during the Bidding
Process and until the Commencement Date under the Development
Agreement when all the obligations of the SPV shall become effective;
(b) Party of the Second Part shall be {the Technical Member of the
Consortium;}
{(c) Party of the Third Part shall be the other Member of the Consortium}
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5. Joint and Several Liability
The Parties do hereby undertake to be jointly and severally responsible for all
obligations and liabilities relating to the Project and in accordance with the
terms of the RFP and the Development Agreement, till such time as the
Project Completion is achieved under and in accordance with the
Development Agreement.
6. Shareholding in the SPV
6.1 The Parties agree that the proportion of shareholding among the Parties in the
SPV shall be as follows:
First Party:
Second Party:
{Third Party:}
6.2 The Parties undertake that a minimum of 26% (twenty six per cent) of the
subscribed and paid up equity share capital of the SPV shall, at all times till
the fifth anniversary of the Project Commencement Date, be held by the
Parties for the Project in terms of the RFP.
6.3 The Parties undertake that they shall comply with all equity lock-in
requirements set forth in the Development Agreement.
7. Representation of the Parties
Each Party represents to the other Parties as of the date of this Agreement that:
(a) Such Party is duly organized, validly existing and in good standing
under the laws of its incorporation and has all requisite power and
Corporation to enter into this Agreement;
(b) The execution, delivery and performance by such Party of this
Agreement has been authorized by all necessary and appropriate
corporate or governmental action and a copy of the extract of the
charter documents and board resolution/ power of attorney in favour of
the person executing this Agreement for the delegation of power and
Corporation to execute this Agreement on behalf of the Consortium
Member is annexed to this Agreement, and will not, to the best of its
knowledge:
(i) require any consent or approval not already obtained;
(ii) violate any Applicable Law presently in effect and having
applicability to it;
(iii) violate the memorandum and articles of association, by-laws or
other applicable organizational documents thereof;
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(iv) violate any clearance, permit, Development Right, grant,
license or other governmental authorization, approval,
judgment, order or decree or any mortgage agreement,
indenture or any other instrument to which such Party is a party
or by which such Party or any of its properties or assets are
bound or that is otherwise applicable to such Party; or
(v) create or impose any liens, mortgages, pledges, claims, security
interests, charges or Encumbrances or obligations to create a
lien, charge, pledge, security interest, encumbrances or
mortgage in or on the property of such Party, except for
encumbrances that would not, individually or in the aggregate,
have a material adverse effect on the financial condition or
prospects or business of such Party so as to prevent such Party
from fulfilling its obligations under this Agreement;
(c) this Agreement is the legal and binding obligation of such Party,
enforceable in accordance with its terms against it; and
(d) there is no litigation pending or, to the best of such Party's knowledge,
threatened to which it or any of its Affiliates is a party that presently
affects or which would have a material adverse effect on the financial
condition or prospects or business of such Party in the fulfillment of its
obligations under this Agreement.
8. Termination
This Agreement shall be effective from the date hereof and shall continue in
full force and effect until the Completion of the Project is achieved under and
in accordance with the Development Agreement, in case the Project is
awarded to the Consortium. However, in case the Consortium is either not pre-
qualified for the Project or does not get selected for award of the Project, the
Agreement will stand terminated in case the Bidder is not pre-qualified or
upon return of the Bid Security by the Corporation to the Bidder, as the case
may be.
9. Miscellaneous
9.1 This Joint Bidding Agreement shall be governed by laws of India.
9.2 The Parties acknowledge and accept that this Agreement shall not be amended
by the Parties without the prior written consent of the Corporation.
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IN WITNESS WHEREOF THE PARTIES ABOVE NAMED HAVE EXECUTED
AND DELIVERED THIS AGREEMENT AS OF THE DATE FIRST ABOVE
WRITTEN.
SIGNED, SEALED AND DELIVERED SIGNED, SEALED AND DELIVERED
For and on behalf of
LEAD MEMBER by: SECOND PART
(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address)
SIGNED, SEALED AND DELIVERED
For and on behalf of
THIRD PART
(Signature)
(Name)
(Designation)
(Address)
1. 2.
Notes:
1. The mode of the execution of the Joint Bidding Agreement should be in
accordance with the procedure, if any, laid down by the Applicable Law
and the charter documents of the executant(s) and when it is so required,
the same should be under common seal affixed in accordance with the
required procedure.
2. Each Joint Bidding Agreement should attach a copy of the extract of the
charter documents and documents such as resolution / power of attorney
in favour of the person executing this Agreement for the delegation of
power and Corporation to execute this Agreement on behalf of the
Consortium Member.
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APPENDIX V1
Guidelines of the Department of Disinvestment
No. 6/4/2001-DD-II
Government of India
Department of Disinvestment
Block 14, CGO Complex
New Delhi.
Dated 13th
July, 2001.
OFFICE MEMORANDUM
Sub: Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector
Enterprises through the process of disinvestment
Government has examined the issue of framing comprehensive and transparent
guidelines defining the criteria for bidders interested in PSE-disinvestment so that the
parties selected through competitive bidding could inspire public confidence. Earlier,
criteria like net worth, experience etc. used to be prescribed. Based on experience and
in consultation with concerned departments, Government has decided to prescribe the
following additional criteria for the qualification/ disqualification of the parties
seeking to acquire stakes in public sector enterprises through disinvestment:
(a) In regard to matters other than the security and integrity of the country,
any conviction by a Court of Law or indictment/ adverse order by a
regulatory Corporation that casts a doubt on the ability of the bidder to
manage the public sector unit when it is disinvested, or which relates to a
grave offence would constitute disqualification. Grave offence is defined
to be of such a nature that it outrages the moral sense of the community.
The decision in regard to the nature of the offence would be taken on case
to case basis after considering the facts of the case and relevant legal
principles, by the Government of India.
(b) In regard to matters relating to the security and integrity of the country,
any charge-sheet by an agency of the Government/ conviction by a Court
of Law for an offence committed by the bidding party or by any sister
concern of the bidding party would result in disqualification. The decision
in regard to the relationship between the sister concerns would be taken,
based on the relevant facts and after examining whether the two concerns
are substantially controlled by the same person/ persons.
(c) In both (a) and (b), disqualification shall continue for a period that
Government deems appropriate.
(d) Any entity, which is disqualified from participating in the disinvestment
process, would not be allowed to remain associated with it or get
associated merely because it has preferred an appeal against the order
1 These guidelines may be modified or substituted by the Government from time to time.
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based on which it has been disqualified. The mere pendency of appeal will
have no effect on the disqualification.
(e) The disqualification criteria would come into effect immediately and
would apply to all bidders for various disinvestment transactions, which
have not been completed as yet.
(f) Before disqualifying a concern, a Show Cause Notice why it should not be
disqualified would be issued to it and it would be given an opportunity to
explain its position.
(g) Henceforth, these criteria will be prescribed in the advertisements seeking
Expression of Interest (EOI) from the interested parties. The interested
parties would be required to provide the information on the above criteria,
along with their Expressions of Interest (EOI). The bidders shall be
required to provide with their EOI an undertaking to the effect that no
investigation by a regulatory Corporation is pending against them. In case
any investigation is pending against the concern or its sister concern or
against its CEO or any of its Directors/ Managers/ employees, full details
of such investigation including the name of the investigating agency, the
charge/ offence for which the investigation has been launched, name and
designation of persons against whom the investigation has been launched
and other relevant information should be disclosed, to the satisfaction of
the Government. For other criteria also, a similar undertaking shall be
obtained along with EOI.
sd/-
(A.K. Tewari)
Under Secretary to the Government of India
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APPENDIX VI
FORMAT FOR BANK GUARANTEE
(To be issued by a Scheduled National Bank in India)
B.G. No. __________________________________ dated __________.
This Deed of Guarantee executed at ——————— by ______________
(Name of Bank) having its Head/Registered office at ____________________ (hereinafter referred to as “the Guarantor”) which
expression shall unless it be repugnant to the subject or context thereof
include its, successors and assigns;
In favour of The Madhya Pradesh State Tourism Development Corporation (hereinafter called “MPSTDC”), having its office at Paryatan Bhavan,
Bhadbhada Road, Bhopal, India which expression shall unless it be
repugnant to the subject or context thereof include its, successors and assigns;
WHEREAS
A. M/s. ______________________ Ltd.2, a Company registered under
provisions of the Companies Act, having its registered office at ____________ (hereinafter called “the Bidder”) which expression
shall unless it be repugnant to the subject or context thereof include
its/their executors administrators, successors and assigns, has/have Bid for the development of a Resort at at Indira Sagar District
Khandwa on Development Agreement (hereinafter referred to as
“the Project”).
B. In terms of Clause 1.2.5 of the Bid document dated ................. issued
in respect of the Project (hereinafter referred to as “Bid document”)
the Bidder is required to furnish to MPSTDC an unconditional and
irrevocable Bank Guarantee for an amount of ` 20,00,000/-
(` Twenty lakh only) as Bid Security.
C. The Guarantor has at the request of the Bidder and for valid
consideration agreed to provide such Bank Guarantee being these
presents:
2 In case of consortium, incorporate names and addresses of the consortium members.
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NOW THEREFORE THIS DEED WITNESSETH AS FOLLOWS:
a) The Guarantor, as primary obligor shall, without demur, pay to MPSTDC an amount not
exceeding ` 20.00 Lakh/- ( ` Twenty lakh only), within 5 days of receipt of a written
demand from MPSTDC calling upon the Guarantor to pay the said amount and stating
that the Bid Security provided by the Bidder has been forfeited.
b) Any such demand made on the Guarantor by MPSTDC shall be conclusive and absolute
as regards the forfeiture of Bid Security and the amount due and payable by the Guarantor
under this Guarantee.
c) The above payment shall be made without any reference to the Bidder or any other person
and irrespective of whether the claim of MPSTDC is disputed by the Bidder or not.
d) This Guarantee shall be irrevocable and remain in full force for a period of Six (06)
months from ..................... or for such extended period as may be mutually agreed
between MPSTDC and the Bidder and shall continue to be enforceable till all amounts
under this Guarantee are paid.
e) The Guarantee shall not be affected by any change in the constitution or winding up of
the Bidder/the Guarantor or any absorption, merger or amalgamation of the Bidder/the
Guarantor with any other person.
f) In order to give full effect to this Guarantee, MPSTDC shall be entitled to treat the
Guarantor as the principal debtor. The obligations of the Guarantor shall not be affected
by any variations in the terms and conditions of the Bid document or other documents or
by extension of time of performance of any obligations granted to the Bidder or
postponement/non exercise/delayed exercise of any of its rights by MPSTDC against the
Bidder or any indulgence shown by MPSTDC to the Bidder and. the Guarantor shall not
be relieved from its obligations under this Bank Guarantee on account of any such
variation, extension, postponement, non exercise, delayed exercise or omission on the part
of MPSTDC or any indulgence by MPSTDC to the Bidder to give such matter or thing
whatsoever which under the law relating to sureties would but for this provision have
effect of so relieving the Guarantor.
g) The Guarantor has power to issue this Guarantee and discharge the obligations
contemplated herein, the undersigned is duly authorised to execute this Guarantee
pursuant to the power granted.
IN WITNESS WHEREOF THE GUARANTOR HAS SET ITS HANDS
HEREUNTO ON THE DAY, MONTH AND YEAR FIRST HEREINABOVE WRITTEN.
Signed and Delivered by ——————-
Bank by the hand of Mr——————-
its ——————— and authorised official.
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APPENDIX - VII
FORMAT FOR BID SECURITY
Details of the Bid Security enclosed herewith
No. No./date of Bank draft/bankers cheque/Bank Guarantee
Amount Name, branch and address of issuing Bank
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APPENDIX - VIII
FORMAT FOR FINANCIAL BID
Financial Bid (Envelope-B) To, The Managing Director M.P. State Tourism Development Corporation, Bhopal
Dear Sir,
I am submitting my financial bid as under: Financial Bid:
Particulars of Plot
Fixed reserved value Amount of BID offered(for the entire plot area) (In figures) (In words)
Plot No. 1
Area 10.08 acre
` 91.72 LAKH
I have gone through the terms and conditions and guide lines as mentioned in the Bid document and I shall abide by them. Date
Name of the authorized person
Signature
Seal
Affix a recent passport
photograph of the authorized
signatory
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DEVELOPMENT AGREEMENT
FOR
DEVELOPMENT OF TOURIST
FACILITIES
AT
INDIRA SAGAR
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Contents
1. DEFINITIONS AND INTERPRETATION 62
2. SCOPE OF PROJECT 67
3. GRANT OF DEVELOPMENT RIGHT 67
4. PERFORMANCE SECURITY 68
5. PARTIES’ RIGHTS IN THE PROJECT 69
6. OBLIGATIONS OF THE DEVELOPER 70
7. OBLIGATIONS OF MPSTDC 73
8. REPRESENTATIONS AND WARRANTIES 74
9. DISCLAIMER 76
10. THE SITE 76
11. DELETED 76
12 REPORTING REQUIREMENTS 77
13 COMPLETION 77
14 O&M SECURITY 78
15. OPERATION AND MAINTENANCE 78
16. DEVELOPMENT FEE 79
17. INDEMNITY 80
18. SAFETY REQUIREMENT 81
19. PREMIUM 80
20. RENEWAL OF NEW DEVELOPMENT RIGHT UPON EXPIRY 81
21. INSURANCE 81
22. FORCE MAJEURE 81
23. DEFAULT AND TERMINATION 83
24. OBLIGATIONS TO HAND OVER 86
25. DIVESTMENT OF RIGHTS AND INTERESTS 86
26. RIGHT OF RE-ENTRY 87
27. DISPUTE AND ITS RESOLUTION 88
27. DISCLOSURE 89
28. GOVERNING LAW AND JURISDICTION 89
29. MISCELLANEOUS 89
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DEVELOPMENT AGREEMENT
This Agreement is entered into on this the _________ day of ______
______, 2012
BETWEEN
The Madhya Pradesh State Tourism Development Corporation Ltd represented by its
[______] and having its principal office at
……………………………………………………(hereinafter referred to as
“MPSTDC” which expression shall unless repugnant to the context or meaning
thereof include its administrators, successors and assigns) of One Part,
AND
[__________________________ LIMITED], a company
incorporated under the provisions of the Companies Act, 1956 and
having its registered office at ______________ (Hereinafter referred to
as the “Developer” which expression shall unless repugnant to the
context or meaning thereof include its successors and permitted
substitutes) of the Second Part
WHEREAS
A) The DEPARTMENT OF TOURISM , GOVERNMENT OF MADHYA
PRADESH (hereinafter referred to as “ DOT” owns and possesses land
measuring …….. square meters (along with buildings situated) at
………………………., (“hereinafter referred to as “Site”) and is interested in
Development of this land as a Tourist Destination hereinafter called “Project” on
build, operate and transfer (“DBFOT”) basis.
B) Department of Tourism has authorized MPSTDC vide notification no. [___]
dated [__] to undertake the development of the said Project on DBFOT basis on
the terms and conditions contained in the Request for Proposal and addendums
and clarifications thereto and this Agreement including the Schedules and
Annexure hereof.
C) MPSTDC had accordingly invited proposals vide RFP NO. 1 & Tender Notice No
______/ dated ____________(“the Tender Notice”) for selection of a bidder for
the aforesaid Project including the detailed design, engineering, financing,
procurement, construction, operation and maintenance on basis subject to and on
the terms and conditions contained in the DBFOT RFP document.
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D) After evaluation of the Bids so received, MPSTDC had accepted the Bid of
...................... the Consortium comprising of M/s. __________________ (Lead
member), M/s. __________________(Member), and M/s. __________________
(Member), and issued its Letter of Award No………….. dated ………. (“LOA”)
to the Consortium requiring, inter alia, the execution of this Development
Agreement.
E) The Consortium/bidder has since promoted and incorporated ----------------------as
the Developer, and has requested MPSTDC to accept the Developer as the entity
which shall undertake and perform the obligations and exercise the rights of the
Consortium/bidder under the LOA, for executing the Project.
F) MPSTDC in accordance with the provisions of RFP has agreed accordingly to
enter into this Development Agreement with the Developer for execution of the
Project on DBFOT basis, subject to and on the terms and conditions set forth
hereinafter.
G) The Developer has duly provided the Performance Security to the MPSTDC in
terms hereto.
NOW THEREFORE IN CONSIDERATION OF THE PREMISES AND THE
MUTUAL COVENANTS HEREINAFTER CONTAINED, THE PARTIES
HERETO HEREBY AGREE AND THIS AGREEMENT WITNESSETH AS
FOLLOWS:
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PRELIMINARY
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, the following words and expressions shall, unless
repugnant to the context or meaning thereof, have the meaning hereinafter
respectively assigned to them:
1. “Accounting Year” means the financial year commencing from 1st April of any
calendar year and ending on 31st March of the next calendar year.
2. “Agreement” or the “Development Agreement” means this Agreement, its
Recitals, Schedules and Annexure hereto and any amendments thereto made in
accordance with the provisions contained in this Agreement.
3. “Applicable Laws” means all laws, promulgated or brought into force and
effect by the State Government and/or the Government of India including rules,
regulations and notifications made there-under, and judgments, decrees,
injunctions, writs and orders of any court or record, applicable to this
Agreement and the exercise performance and discharge of the respective rights
and obligations of the Parties hereunder, as may be in force and effect during the
subsistence of this agreement.
4. “Applicable Permits” means all clearances, permits, authorizations, consents
and approvals required to be obtained or maintained under Applicable Laws in
connection with the detailed design, engineering, financing, procurement,
construction, operation and maintenance of the Project during the subsistence of
this Agreement.
5. “Bid” means the documents in their entirety comprised in the bid submitted by
the Bidder in response to the Tender Notice in accordance with the provisions
thereof.
6. "Commencement Date" means the date on which the physical possession of
the land is handed over free from Encumbrances to the Developer.
7. “Consortium Member” and “Lead Member” means the members and lead
member of the Consortium referred to in recital D.
8. “Construction Period” means the period beginning from the Commencement
Date and ending on the Project Completion Date.
9. “Construction Works” means all works and things necessary to complete the
Project for use thereof in accordance with this Agreement.
10. “Contractor” means the person or persons, as the case may be, with whom the
Developer has entered into any EPC Contract, maintenance contract, or any
other agreement the Developer may enter into for engineering, construction,
operation and/or maintenance of the Project or matters incidental thereto.
11. “Developer” means the company incorporated under the companies Act
promoted by the bidder/members of the consortium which shall undertake and
perform the obligations and exercise the rights of the Consortium/bidder under
the LOA and the Development Agreement, for executing the Project.
12. “Development Rights” shall have the meaning ascribed thereto in Clause 3
13. “ Development Fee” shall have the meaning ascribed thereto in Clause 16
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14. “Development Period” means the period beginning from the Project
Completion Date and ending at the end of 30 years of such Project Completion
Date unless terminated earlier or extended in terms hereof.
15. “Dispute” shall have the meaning set forth in Clause 26.
16. “Dispute Resolution” means the procedure for Dispute resolution set forth in
Clause 26.
17. “DOT” means the Department of Tourism Govt. of Madhya Pradesh
18. “EPC Contract” means the contract or contracts entered into by the Developer
with one or more Contractors for the detailed working design, engineering,
procurement of materials and equipment, construction, and completion of the
Project in accordance with the provisions of this Agreement,
19. “Encumbrances” means any encumbrances on any part of the Project or
Project Buildings such as mortgage, charge, pledge, lien, hypothecation, security
interest, assignment, privilege or priority of any kind having the effect of
security or other such obligations and shall include without limitation any
designation of loss payees or beneficiaries or any similar arrangement under any
insurance policy pertaining to the Project, physical encumbrances and
encroachments on the Site where applicable herein.
20. “Equity” means the sum expressed in Indian Rupees representing the paid up
equity share capital for meeting the equity component of the total project cost
and shall include the convertible instruments or other similar forms of capital
which shall compulsorily convert into equity share capital of the Company and
any interest free funds advanced by any shareholder of the Company for
meeting such equity component,
21. “Event of Default” or “Developer Default” shall have the meaning set forth in
Clause 23.
22. “Force Majeure” or “Force Majeure Event” shall mean an act, event,
condition or occurrence specified which is not in the Control of any parties to
the agreement as stated and described in Clause 22
23. “GOMP” means the Government of the State of Madhya Pradesh.
24. “GOI” means the Government of India.
25. “Good Industry Practice” means those practices, methods, techniques,
standards, skills, diligence and prudence which are generally and reasonably
expected of and accepted internationally from a reasonably skilled and
experienced operator engaged in the same type of undertaking as envisaged
under this Agreement and acting generally in accordance with the provisions of
applicable law, and would mean good engineering practices in the design,
engineering, construction and project management and which would be
expected to result in the performance of its obligations by the Developer and in
the operation and maintenance of the Project in accordance with this
Agreement, Applicable Laws, Applicable Permits, reliability, safety,
environment protection, economy and efficiency.
26. “Government Agency” means GOI, GOMP or any Ministry, Department,
Commission, Board, Authority, instrumentality or agency, under the control of
GOI or GOMP having jurisdiction over all or any part of the Project or the
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performance of all or any of the services or obligations of the MPSTDC and the
Developer under or pursuant to this Agreement.
27. “Indemnifying Party” means the Party obligated to indemnify the other Party
pursuant to clause 17
28. Deleted
29. “Initial Inspection” / “Second Inspection” shall have the meaning contained
in clause 24.1
30. “Land Acquisition Act” shall mean Land Acquisition Act 1894 including
amendment made thereof, and as in force in Madhya Pradesh from time to time.
31. “LOA” or “Letter of Award” means the letter of award referred to in the
Recital (D).
32. “MPSTDC Representative” means such person or persons as may be
authorized in writing by MPSTDC to act on its behalf under this Agreement and
shall include any person or persons having authority to exercise any rights or
perform and fulfill any obligations of MPSTDC under this Agreement.
33. “O & M Security” shall have the meaning as described in Clause 14.
34. “Parties” means the parties to this Agreement collectively and “Party” shall
mean any of the Parties to this Agreement individually.
35. “Performance Security” shall have the meaning as described in Clause 4.
36. “Premium” means one time payment made by Developer before entering into
this agreement and shall have the meaning as ascribed in Clause 19.
37. “Project” means the commercial building, restaurant, hotel, motels, water
sports, public utilities and other incidental facilities to be built as described in
Clause 2 and in accordance with the Schedule B in accordance with the
Development Rights granted hereunder.
38. “Project Agreements” means collectively this Agreement, the Financing
Documents, the EPC Contract, if any, the maintenance contract, if any, and any
other agreements or contracts entered into by the Developer relating to the
Project during the subsistence of this Agreement.
39. “Project Completion Date” is the date on which the Project is complete as per
the Specifications and Standards, having been granted all the relevant and
necessary clearances and certificates by the competent authorities under the
Applicable Laws.
40. “Public Purpose” shall mean the purpose for which the land can be
acquired under Land Acquisition Act.
41. “Reservoir” means the water body as described in Schedule A.
42. “`” Or “Rupees” means the lawful currency of the Republic of India.
43. “Scheduled Project Completion Date” shall have the meaning contained in
clause 13.
44. "Security Zone" means such area of the reservoirs as may be determined
from time to time by the authority that owns Indira Sagar Dam within
which the developer shall be barred from taking up any activity of any
kind.
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45. “Site” shall mean the real estate described in Schedule A.
46. “Specifications and Standards” means the relevant specifications and
standards for development of the Project and Project Building relating to the
design and construction thereof and includes any modifications thereof or
additions thereto.
47. “Termination” means the expiry or termination of this Agreement and the
Development Right hereunder, and “Termination Date” means the date on
which this Agreement and the Development Right hereunder expires pursuant to
the provisions of this Agreement or is terminated by a Termination Notice.
48. “Termination Notice” means the communication issued in accordance with
this Agreement by any one Party to the other Party terminating this
Agreement.
49. “Total Project Cost” means the lowest of :
a) the capital cost of the Project as set forth in the Financial Package as
approved by lender, if any;
b) the actual capital cost of the Project upon completion as certified by
the Statutory Auditor of the Developer;
c) a sum of ` 15.00 crore (` Fifteen crore only) (i.e. amount mentioned
in 1.1.1 of ITB)
1.2 In this Agreement, unless the context otherwise requires,
a) any reference to a statutory provision shall include such provision as
is from time to time modified or re-enacted or consolidated so far as
such modification or re-enactment or consolidation applies or is
capable of applying to any transactions entered into hereunder;
b) references to Indian law shall include the laws, acts, ordinances, rules,
regulations, or bye laws which have the force of law in any State or
Union Territory forming part of the Union of India;
c) the words importing singular shall include plural and vice versa, and
words denoting natural persons shall include partnerships, firms,
companies, corporations, joint ventures, trusts, associations,
organisations or other entities (whether or not having a separate legal
entity);
d) the headings are for convenience of reference only and shall not be
used in and shall not affect the construction or interpretation of this
Agreement;
e) terms and words beginning with capital letters and defined in this
Agreement shall have the meaning ascribed thereto herein and the
terms and words defined in the Schedules and used therein shall have
the meaning ascribed thereto in the Schedules;
f) the words “include” and “including” are to be construed without
limitation;
g) references to “construction” include, unless the context otherwise
requires, investigation, design, engineering, procurement, delivery,
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transportation, installation, processing, fabrication, testing,
commissioning and other activities incidental to the construction;
h) any reference to any period of time shall mean a reference to that
according to Indian Standard Time;
i) any reference to day shall mean a reference to a calendar day;
j) any reference to month shall mean a reference to a calendar month;
k) any reference to year unless otherwise defined shall mean the
calendar year
l) the Schedules to this Agreement form an integral part of this
Agreement and will be in full force and effect as though they were
expressly set out in the body of this Agreement;
m) any reference at any time to any agreement, deed, instrument, license
or document of any description shall be construed as reference to that
agreement, deed, instrument, license or other document as amended,
varied, supplemented, modified or suspended at the time of such
reference provided that this clause shall not operate so as to increase
liabilities or obligations of MPSTDC hereunder or pursuant hereto in
any manner whatsoever except as expressly provided in this
agreement;
n) references to Recitals, Articles, Clauses, Sub-clauses, Paragraphs, or
Schedules in this Agreement shall, except where the context otherwise
requires, be deemed to be references to Recitals, Articles, Clauses,
Sub-clauses, paragraphs, and Schedules of or to this Agreement;
o) any agreement, consent, approval, authorization, notice,
communication, information or report required under or pursuant to
this Agreement from or by any Party shall be valid and effectual only
if it is in writing under the hands of duly authorized representative of
such Party, as the case may be, in this behalf and not otherwise;
p) any reference to any period commencing “from” a specified day or
date and “till” or “until” a specified day or date shall include both such
days or dates;
q) the damages payable by either Party to the other of them as set forth in
this Agreement, whether on per diem basis or otherwise, are pre-
determined amount of indemnification of loss and damage likely to be
suffered and incurred by the Party entitled to receive the same and are
not by way of penalty or liquidated damages (the “Damages”);
r) unless otherwise expressly provided in this Agreement any
Documentation required to be provided or furnished by the Developer
to MPSTDC shall be provided free of cost and in three copies and on a
computer CD/floppy or such media as is required for a Soft Copy
storage and if MPSTDC is required to return any such Documentation
with their comments and/ or approval, they shall be entitled to retain
two copies thereof;
s) In the event of any dispute in respect of interpretation of any clause of
the agreement, the decision of MPSTDC shall be final and binding
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subject to the parties to this agreement taking recourse to legal action
under any other law for the time being in force in the State of Madhya
Pradesh in terms of the agreement.
1.3 Measurements and Arithmetic Conventions
All measurements and calculations shall be in metric system and calculations
done to 2 decimal places, with the third digit of 5 or above being rounded up
and below 5 being rounded down.
1.4 Priority of contract documents and errors/ discrepancies
In case of ambiguities or discrepancies within this Agreement the following
shall apply:
A. between two Clauses of this Agreement, the provisions of the specific
clause relevant to the issue under consideration shall prevail over those in
other Clauses;
B. between the Clauses and the Schedules, the Clauses shall prevail save as
otherwise expressly set forth in this agreement;
C. between any value written in numerals and that in words, the latter shall
prevail.
2. SCOPE OF PROJECT
The scope of the Project shall mean and include, during the Development
Period:
(a) design, engineering, finance and construction of the Project on the
Site described in Schedule A while meeting the minimum
prescribed requirements set forth in schedule - B
(b) operation and maintenance of the Project in accordance with the
provisions of this Agreement; and
(c) performance and fulfilment of all other obligations of the
Developer in accordance with the provisions of this Agreement and
matters incidental thereto or necessary for the performance of any
or all of the obligations of the Developer under this Agreement.
3 GRANT OF DEVELOPMENT RIGHT
3.1 Subject to and in accordance with the provisions of this Agreement, the
Applicable Laws and the Applicable Permits, MPSTDC hereby grants to the
Developer the Development Right set forth herein including the exclusive
right, licence and authority during the subsistence of this Agreement to design
construct, operate and maintain the Project (the "Development Right") for a
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period of 30 (thirty) years beginning from the Project Completion Date and
ending at the end of 30 years of such Project Completion Date unless
terminated earlier or extended in terms hereof, and the Developer hereby
accepts the Development Right and agrees to implement the Project in
accordance with the terms and conditions set forth herein.
3.2 Subject to and in accordance with the provisions of this Agreement, the
Development Right hereby granted shall oblige or entitle (as the case may be)
the Developer to:
(a) access and right to the Site to the extent conferred by the provisions of
this Agreement;
(b) to design, engineer and construct the Project Buildings and facilities in
accordance with the Specifications and Standards and for the use as
specified herein;
(c) manage, operate and maintain the Project and use the Project for its
own commercial use or sub-license it or part thereof to Sub-Licensees
for commercial or other use, during the Development Period and
regulate the use of the Project by third parties including the Sub-
Licensees;
(d) demand, collect and appropriate premium and/or license and/or any
other fee/charges from the Sub-Licensees / users for using the Project
or any part thereof or any services provided by the Developer;
(e) perform and fulfil all of the Developer's obligations under and in
accordance with this Agreement;
(f) bear and pay all costs, expenses and charges in connection with or
incidental to the performance of the obligations of the Developer under
this Agreement;
(g) not assign, transfer or sublet or create any lien or Encumbrance on this
Agreement, or the Development Right hereby granted or on the whole
or any part of the Project or Project Buildings and facilities or Site nor
transfer, lease or part possession therewith, save and except as
expressly permitted by this Agreement;
4 PERFORMANCE SECURITY
4.1. The Developer has agreed to, for the due and faithful performance of its
obligations during the Construction Period, provide to the MPSTDC a security
for a sum equivalent to ` 75.00 lakh (5% of the estimated Project Cost) on or
before signing of this Agreement, in the form of an irrevocable and
unconditional Bank Guarantee from a Scheduled Bank issued in favour of the
MPSTDC valid for six months beyond the Scheduled Project Completion Date
in the form set forth in Schedule C. (“Performance Security”).
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4.2 The Performance Security shall be released by the MPSTDC to the Developer
upon completion of the Project to the satisfaction of the MPSTDC and when
the Developer shall have provided all the necessary certification in evidence of
such completion to MPSTDC.
4.3 In the event the Developer is in breach of the terms of the Agreement during
the Construction Period, the MPSTDC shall, without prejudice to its other
rights and remedies hereunder or in law be entitled to encash and appropriate
such amounts as may have been determined, from the Performance Security as
Damages for such Developer Default. Upon such encashment and
appropriation from the Performance Security, the Developer shall, within 30
(thirty) days thereof, replenish, in case of partial appropriation, to its original
level the Performance Security, and in case of appropriation of the entire
Performance Security provide a fresh Performance Security, as the case may
be, failing which MPSTDC shall be entitled to terminate this Agreement in
accordance with Clause 23 and appropriate entire Performance Security as
Damages.
4.4 The Performance Security shall remain in force for entire construction period
and will be released on issuance of Project Completion Certificate.
5. PARTIES’ RIGHTS IN THE PROJECT
5.1 The Parties agree as follows :
a) The Developer may choose to operate a part or whole of the Project by
itself as permissible under law and shall take the requisite approval
from the concerned authorities before starting such activities and shall
also be liable to pay all tax, levies etc as levied by GOI, GOMP, or any
other agency from time to time for the use of such premises.
b) The Developer may sub-license to any third party of its choice for
operating any part of the Project operations. Such sub-license shall
expressly provide that the sub-license shall be automatically co-
terminus with this Agreement and that the sub-license shall
automatically stand revoked and terminated upon termination of this
Agreement.
c) MPSTDC will have the right to develop on its own or through any
developer/agency/or person(s) any facility/activities in the reservoir.
d) If a facility which has been created in the reservoir and is also
mentioned in Schedule 'B' needs to be augmented, the Developer will
be required to obtain separate license from MPSTDC for such
augmentation. If the developer desires to create a new facility in the
reservoir, he shall be required to obtain a separate license for the same
as well. MPSTDC shall prescribe such license fee and impose such
conditions that it considers appropriate, while granting any license
under this clause.
e) Environmental clearance for the project shall be obtained by the
developer. In case of augmentation of project by Developer, creation
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of any new facilities, the necessary clearance, if any, will be taken by
the Developer at its own cost. For the avoidance of doubt, it is clarified
that MPSTDC will not be in any manner liable for refusal of any
clearance/permission by any Government instrumentality,.
f) MPSTDC shall have the right to grant right to access or right of way
on, over, under, through or across the site for the purpose of ;
I. Supply of electricity, gas, laying of telephone cables, water, sewerage,
drainage or any other facilities or utilities;
II. Transportation of other services to the public.
III. Use of Jetty and water based activities.
For the avoidance of doubt, it is clarified that any such permission if
granted by MPSTDC shall not be inconsistent with the development
undertaken by Developer. In case of any damage due to such action of
MPSTDC the cost of such damages will be paid by MPSTDC.
g) Developer shall submit initial plan for development of site as per the
requirement mentioned in Schedule-B. However, on completion,
Developer shall have the right to augment the facilities or create newer
facilities at site for the purpose of development of tourism and related
activities. Developer can also augment the plan during the project
construction period. However, no reduction in the mandatory facilities
mentioned in Schedule-B shall be permitted.
5.2 The Developer acknowledges that it shall not create any mortgage, lien,
charge or Encumbrance on the Project, Project buildings & facilities, Site or
land. There shall be no step-in or substitution rights whatsoever for any bank
or financial institutions at any time.
5.3 The Developer acknowledges that the authorized representative of MPSTDC
shall always have the right to enter the Project, Project Buildings & facilities
and Site, without requiring any consent, approval or permission from the
Developer, subject to the MPSTDC not disturbing the peaceful possession
thereof by any person.
5.4 The Consortium Members shall commit to hold a minimum of 78% of the
equity (with each member holding not less then 26% of equity) during the
construction period and 5 years after the Project Completion Date.
6. OBLIGATIONS OF THE DEVELOPER
6.1 The Developer shall at its own cost and expense observe, undertake, comply
with and perform, in addition to and not in derogation of its obligations
elsewhere set out in this Agreement, the following:
(a) make, or cause to be made, all necessary applications in the name
of GOMP/DOT/MPSTDC as the case may be to the relevant
Governmental Agencies with such particulars and details, as may
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be necessary for obtaining all Applicable Permits, and obtain such
Applicable Permits in conformity with the Applicable Laws
(b) remove promptly from the Project Site all surplus construction
machinery and materials, waste materials (including, without
limitation, hazardous materials and waste water) and rubbish and
shall keep the Project in a neat and clean condition and in
conformity with the Applicable Laws and Applicable Permits;
(c) obtain and maintain in force on and from the Commencement Date
all insurance in accordance with the provisions of this Agreement
and Good Industry Practice;
(d) make reasonable efforts to maintain harmony and good industrial
relations among the personnel employed in connection with the
performance of the Developer’s obligations under this Agreement;
(e) comply with all Applicable Permits and Applicable Laws in the
performance of the Developer’s obligations under this Agreement
including those being performed by any of the Contractors;
(f) develop, implement and administer a surveillance and safety
program for the Project Buildings & facilities, the users thereof,
and the Contractors’ personnel engaged in the provision of any
services under any of the Project Agreements including correction
of safety violations and deficiencies, and taking of all other actions
necessary to provide a safe environment in accordance with the
requirements of this agreement and Applicable Laws and Good
Industry Practice;
(g) at all times, afford access to the Site to the authorized
representatives of any Governmental Agency having jurisdiction
over the Project, including those concerned with safety, security or
environmental protection to inspect the Project and to investigate
any matter within their authority and upon reasonable notice, the
Developer shall provide, to such persons reasonable assistance
necessary to carry out their respective duties and functions with
minimum disruption to the construction, operation and
maintenance of the Project consistent with the purpose for which
such persons have gained such access to the Site.
(h) not to permit any contractor or person to create or place any
Encumbrance or security interest over all or any part of Site,
Project buildings & facilities, or on any rights of the Developer
therein or under this Agreement, save and except as expressly set
forth in this Agreement;
(i) be responsible for safety, soundness and durability of the Project
including other structures forming part thereof and their
compliance with the Specifications and Standards;
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(j) not claim or demand possession or control of any real estate which
does not form part of the Project;
(k) after receiving vacant possession of the Site or part thereof, ensure
that such Site remains free from all encroachments and take all
steps necessary to remove encroachments, if any;
(l) indemnify the MPSTDC against all actions, suits, claims, demands
and proceedings and any loss or damage or cost or expense that
may be suffered by them on account of anything done or omitted to
be done by the Developer in connection with the performance of its
obligations under this Agreement;
(m) pay the Development Fee as specified in Clause 16 of this
Agreement ;
(n) comply with the obligations to hand over the Project to MPSTDC,
or to the nominee of MPSTDC upon Termination of the
Agreement.
(o) not to take up any activity in the security zone
(p) not infringe with fishing rights of local people and fishing licensees
of appropriate authority.
(q) Comply with conditions laid down in Annexure -I of Schedule 'A'
6.2 Obligations with respect of construction of the project
The Developer shall, before commencement of construction of the Project:
a) submit to the MPSTDC its detailed design, construction
methodology, quality assurance procedures, and the procurement,
engineering and construction time schedule for completion of the
Project by the Scheduled Project Completion Date as set forth in this
agreement, for review and comments. MPSTDC shall, within 10 days
of such submission, review the same and provide its comments to the
Developer. The Developer shall take into consideration the comments
provided by MPSTDC. Provided that failure to review and/or convey
its comments shall not relieve the Developer of its obligations and
liabilities under this Agreement in any manner nor shall the MPSTDC
be liable for the same in any manner. Provided further, that in the
event MPSTDC fails to provide its comments to the Developer with
in the time period specified herein, then the Developer may
commence construction;
b) appoint its duly authorized representative to deal with the MPSTDC
in respect of all matters under or arising out of or relating to this
agreement;
c) undertake, do and perform all such acts, deeds and things as may be
necessary or required before commencement of construction under
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and in accordance with this agreement, the Applicable Laws and
Applicable Permits;
(d) undertake the detailed design, engineering, procurement, financing,
construction and maintenance of the Project in accordance with
Specifications and Standards.
(e) comply with the provisions of this Agreement, Applicable Laws and
Applicable Permits and conform to Good Industry Practice for
ensuring high standards of safety for the Project. In particular, the
Developer shall develop, implement and administer, a safety
programme for providing a safe environment on the project, and shall
comply with the safety requirement.
f) construct and complete the Project by the Scheduled Project
Completion Date. Upon completion of the project, the Developer
shall obtain all requisite clearances and certificates necessary under
the Applicable Laws including Completion Certificate and the
occupancy certificate.
7. OBLIGATIONS OF MPSTDC
MPSTDC agrees to observe, comply and perform in addition to and not in
derogation of its obligations elsewhere set out in this Agreement, the following:
a) that the MPSTDC shall hand over the vacant physical possession of the
Site free from Encumbrances to the Developer with in 30 (thirty) days
of signing of this Agreement and in the event MPSTDC fails to hand
over the Site in such time, MPSTDC shall pay damages to the
Developer at the rate of Rs.1000/- (` One Thousand) per day till such
delay continues,
b) that the MPSTDC shall grant development right to and enable access
to the Site to the Developer in accordance with the terms contained
herein;
c) assist and provide all reasonable support to the Developer in obtaining
Applicable Permits in the name of MPSTDC, which shall be limited to
signing the relevant application forms by MPSTDC;
d) upon written request from the Developer, assist the Developer on best
effort basis in obtaining access to all necessary infrastructure facilities
and utilities, including water, electricity etc. at rates and on terms no
less favourable to the Developer than those generally available to
commercial customers receiving substantially equivalent services;
e) Ensure completion and maintenance of Jetty and related infrastructure
over the development period as detailed out in Para (iv) of Schedule
‘B’ atleast six months prior to the scheduled Project Completion Date.
f) observe and comply with its obligations set forth in this Agreement
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8. REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of the Developer
The Developer represents and warrants to MPSTDC that:
(a) it is duly organised and validly existing under the laws of India, and
has full power and authority to execute and perform its obligations
under this Agreement and to carry out the transactions contemplated
hereby;
(b) it has taken all necessary corporate and other actions under Applicable
Laws to authorise the execution and delivery of this Agreement and to
validly exercise its rights and perform its obligations under this
Agreement;
(c) it has the financial standing and capacity to undertake the Project in
accordance with the terms of this Agreement;
(d) this Agreement constitutes legal, valid and binding obligation,
enforceable against it in accordance with the terms hereof, and its
obligations under this Agreement will be legally valid, binding and
enforceable obligations against it in accordance with the terms hereof;
(e) it is subject to the laws of India, and hereby expressly and irrevocably
waives any immunity in any jurisdiction in respect of this Agreement
or matters arising there under including any obligation, liability or
responsibility hereunder;
(f) the information furnished in the Bid and as updated on or before the
date of this Agreement is true and accurate in all respects as on the date
of this Agreement;
(g) the execution, delivery and performance of this Agreement will not
conflict with, result in the breach of, constitute a default under, or
accelerate performance required by any of the terms of its
Memorandum and Articles of Association {or those of any member of
the Consortium} or any Applicable Laws or any covenant, contract,
agreement, arrangement, understanding, decree or order to which it is a
party or by which it or any of its properties or assets is bound or
affected;
(h) there are no actions, suits, proceedings, or investigations pending or, to
its knowledge, threatened against it at law or in equity before any court
or before any other judicial, quasi-judicial or other authority, the
outcome of which may result in the breach of this Agreement or which
individually or in the aggregate may result in any material impairment
of its ability to perform any of its obligations under this Agreement;
(i) it has no knowledge of any violation or default with respect to any
order, writ, injunction or decree of any court or any legally binding
order of any Government Instrumentality which may result in any
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material adverse effect on its ability to perform its obligations under
this Agreement and no fact or circumstance exists which may give rise
to such proceedings that would adversely affect the performance of its
obligations under this Agreement;
(j) it has complied with Applicable Laws in all material respects and has
not been subject to any fines, penalties, injunctive relief or any other
civil or criminal liabilities which in the aggregate have or may have a
material adverse effect on its ability to perform its obligations under
this Agreement;
(k) It may undertake or permit any Change in Ownership only after
compliance of Clause 5.4.
(l) {the selected bidder/ Consortium Members and its/their} Associates
have the financial standing and resources to fund the required Equity
and to raise the debt necessary for undertaking and implementing the
Project in accordance with this Agreement;
(m) {the selected bidder/ each Consortium Member} is duly organised and
validly existing under the laws of the jurisdiction of its incorporation,
and has requested MPSTDC to enter into this Agreement pursuant to
the Letter of Award, and has agreed to and unconditionally accepted
the terms and conditions set forth in this Agreement;
(n) all its rights and interests in the Project shall pass to and vest in
MPSTDC on the Divestment Date free and clear of all liens, claims
and encumbrances, without any further act or deed on its part or that of
the MPSTDC.
(o) no representation or warranty by it contained herein or in any other
document furnished by it to MPSTDC or to any Government
Instrumentality in relation to Applicable Permits contains or will
contain any untrue or misleading statement of material fact or omits or
will omit to state a material fact necessary to make such representation
or warranty not misleading;
(p) no sums, in cash or kind, have been paid or will be paid, by it or on its
behalf, to any person by way of fees, commission or otherwise or for
influencing or attempting to influence any officer or employee of
MPSTDC for entering into this Agreement.
(q) all information provided by the {selected bidder/ Consortium
Members} in response to the Request for Proposals or otherwise, is to
the best of its knowledge and belief, true and accurate in all material
respects.
8.2 Representations and Warranties of the MPSTDC
MPSTDC represents and warrants to the Developer that:
(a) it has full power and authority to execute, deliver and perform its
obligations under this Agreement and to carry out the transactions
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contemplated herein and that it has taken all actions necessary to
execute this Agreement, exercise its rights and perform its obligations,
under this Agreement;
(b) it has taken all necessary actions under the Applicable Laws to
authorise the execution, delivery and performance of this Agreement;
(c) it has the financial standing and capacity to perform its obligations
under this Agreement;
(d) this Agreement constitutes a legal, valid and binding obligation
enforceable against it in accordance with the terms hereof;
(e) it has no knowledge of any violation or default with respect to any
order, writ, injunction or any decree of any court or any legally binding
order of any Government Instrumentality which may result in any
material adverse effect on the MPSTDC ’s ability to perform its
obligations under this Agreement;
(f) it has complied with Applicable Laws in all material respects; and
(g) it has good and valid right to the Site, and has power and authority to
grant a licence in respect thereto to the Developer.
8.3 Disclosure
In the event that any occurrence or circumstance comes to the attention of either Party
that renders any of its aforesaid representations or warranties untrue or incorrect, such
Party shall immediately notify the other Party of the same. Such notification shall not
have the effect of remedying any breach of the representation or warranty that has
been found to be untrue or incorrect nor shall it adversely affect or waive any right,
remedy or obligation of either Party under this Agreement
9. DISCLAIMER
9.1 The Developer acknowledges that prior to the execution of this Agreement,
the Developer has after a complete and careful examination made an
independent evaluation of likely revenue from the project, Specifications and
Standards, Site, scope of work, designs and all the information provided by
MPSTDC and has determined to its satisfaction the nature and extent of such
difficulties, risks and hazards as are likely to arise or may be faced by the
Developer in the course of performance of its obligations hereunder.
9.2 The Developer acknowledges and hereby accepts the risk of inadequacy,
mistake or error in or relating to any of the matters set forth in Clause 9.1
above and hereby confirms that MPSTDC shall not be liable for the same in
any manner whatsoever to the Developer, the Consortium Members/Bidder or
their Associates.
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10. THE SITE
a) MPSTDC hereby grants to the Developer the right to enter upon the Site and
to survey design, engineer, procure, construct, lease, and maintain the Project
including the Project buildings & facilities in accordance with the provisions
of this Agreement.
b) The right to use the Site shall be granted for the purpose of carrying out the
functions by the Developer as prescribed under the Agreement and not for any
other purposes;
c) For the purpose of claiming tax depreciation, the property representing the
capital investment made by the Developer shall be deemed to be acquired and
owned by the Developer.
11 Deleted
12. REPORTING REQUIREMENTS
The Developer shall keep reporting to MPSTDC the status report of the project on
quarterly basis for ensuring compliance with the layout plan. The report shall provide
the following details.
The status of the project approval from the statutory authorities
Status of development on site and the cost incurred for the same on
quarterly basis
An envisaged plan for the development in the next quarter
The Developer shall also submit to the MPSTDC, annual audited result
of the Project on or before 1st of October every year during the term of
this Agreement.
13. COMPLETION
a) The construction of the Project shall be completed on or before 24 months from
the Commencement Date unless otherwise extended as per the provisions of
this agreement (“Scheduled Project Completion Date”).
b) The Project shall be deemed to be completed only when the mandatory
requirements set forth in Schedule - B are completed as per the Specifications
and Standards and are legally ready to be used, having been granted all the
relevant and necessary clearances and certificates by the competent authorities
under the Applicable Laws.
c) The Developer may be permitted to start marketing and open to public other
facilities as and when they are completed. However, such services or facilities
can be placed into commercial use only after issuance of Provisional
Completion Certificate by MPSTDC. For the avoidance of doubt, it is clarified
that such Provisional Completion Certificate shall not absolve Developer from
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the responsibility of Project Completion by Scheduled Completion Date which
has to be carried out as per sub clause 13 (a) of this Agreement.
d) In case of delay in completion of the Project by Scheduled Completion Date,
Developer shall be liable to pay Damages to MPSTDC @ ` 7500.00 (0.1% of
the Performance Security) per day for such delay. In case of non-payment of
Damages, MPSTDC reserves the right to recover it by encashing and
appropriating the amount from the Performance Security. For avoidance of
doubt, it is agreed that if completion of any part of the project is delayed for any
reason solely attributable to MPSTDC, GOMP, DOT or due to Force Majeure,
no damages shall be payable by the Developer to the MPSTDC in such case.
14 O&M SECURITY
14.1For due and faithful performance of its obligations during the Operation and
Maintenance period, the Developer shall provide MPSTDC as Security (“O&M
Security”) in the form of irrevocable and unconditional Bank Guarantee in the
prescribed format given in Schedule-D from a scheduled Bank acceptable to
MPSTDC for the sum equivalent to ` 30.00 lakh (2% of the estimated Project
Cost). The Guarantee shall continue to remain in force for the entire Development
Period and the same shall be provided by the Developer before the issuance of
Project Completion Certificate.
14.2In the event the Developer is in breach of the terms of the Agreement during the
Operation and Maintenance Period, the MPSTDC shall, without prejudice to its
other rights and remedies hereunder or in law be entitled to encash and
appropriate the relevant amounts from the O&M Security as Damages for such
Developer Default. Upon such encashment and appropriation from the O&M
Security, the Developer shall, within 30 (thirty) days thereof, replenish, in case of
partial appropriation, to its original level the O&M Security, and in case of
appropriation of the entire O&M Security provide a fresh O&M Security, as the
case may be, and the Developer shall, within the time so granted, replenish or
furnish fresh O&M Security as aforesaid failing which MPSTDC shall be entitled
to terminate this Agreement in accordance with Clause 23 and appropriate such
O&M Security as Damages.
15. OPERATION AND MAINTENANCE
15.1.1 The Developer shall at its own cost operate and maintain the common areas,
façade, outer boundaries of the project by itself, or through O&M Contractors
and if required, modify, repair or otherwise make improvements to the Project
to comply with the Specifications and Standards, and other requirements set
forth in this Agreement, Good Industry Practice, Applicable Laws and
Applicable Permits and more specifically:
a) permit safe occupation and use of sub-licensed premises by the Sub-
Licensee’s during normal operating conditions;
b) charge, collect and retain the premium and license fee from the Sub-Licenses
and other uses in accordance with this Agreement;
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c) undertake at its own cost routine maintenance including prompt repairs of
cracks, concrete joints, drains, lighting and signage etc. of common areas,
façade, outer boundaries of the project.
d) carry out periodic preventive maintenance to the project at its own cost.
e) prevent with the assistance of concerned law enforcement agencies
unauthorized entry to and exit from the Project.
f) prevent with the assistance of the concerned law enforcement agencies
encroachments on the Project including Site.
g) maintain a public relations unit to interface with and attend to suggestions
from users of the Project.
h) adhere to the safety standards as per the best industry practice.
i) maintain the mandatory requirements mentioned in Schedule B and
constructed in compliance of clause 5.1(g)
15.2 The Developer shall ensure that at all times, during the Development Period,
the Project is maintained in a manner that it complies with the relevant
Specifications and Standards.
15.3 The Developer shall keep the Project Facilities in a clean, tidy and orderly
condition free of litter.
15.4 In the event the developer does not maintain the Project and it has become
unsafe for the use, MPSTDC shall have the right to get it repaired at the cost
of Developer and in case of non-payment of such cost by Developer,
MPSTDC shall have the right to recover the amount by en-cashing the
Operation & Maintenance Security and appropriate the proceeds thereof. In
case of such encashment, the Developer shall be liable to replenish the O&M
Security within a period of 15 days of such encashment, failing which
MPSTDC shall have the right to take action for termination of Development
Agreement.
15.5 The Developer shall undertake periodic (at least once every three months)
inspection of the Project to determine the condition of the Project including its
compliance or otherwise with the Specifications and Standards and the
maintenance required.
15.6 MPSTDC may inspect the Project at any time for a review of the compliance
by the Developer with its maintenance obligations under this Agreement.
16 DEVELOPMENT FEE
16.1 In consideration of the Development Rights granted hereunder, the Developer
shall pay to MPSTDC during the Development Period and commencing from
the Project Completion Date, as Development Fee, ` 1.50 /sqmt. per annum.
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16.2 The Development Fee shall be paid in advance every year, at the
commencement of the year.
16.3 Notwithstanding anything to the contrary contained elsewhere in this
Agreement, the Development Fee once paid is non-refundable under any
circumstances whatsoever.
16.4 In case of non-payment of Development Fee by the Developer, MPSTDC shall
be entitled to recover the same by encashing and appropriating the amount
from O&M Security. Failing which MPSTDC reserves the right, without
prejudice to its other rights and remedies under this Agreement, to terminate
the Agreement and take over the Project.
17. INDEMNITY
The Developer hereby undertakes to indemnify and hold MPSTDC harmless
against all cost, damages, liabilities, expenses arising out of any third party
claims relating to torts or contracts relatable to the operation and maintenance of
the Project and Project Buildings & facilities during the Construction Period and
the Development Period.
18. SAFETY REQUIREMENT
18.1 The Developer shall comply with the provisions of this Agreement,
Applicable Laws and Applicable Permits and conform to Good Industry
Practice for securing the safety of the users. In particular, the Developer shall
develop, implement and administer a surveillance and safety programmef for
providing a safe environment on or about the project, and shall comply with
all the necessary safety requirements.
18.2 In the case of unsafe conditions, the Developer shall follow the relevant
operating procedures. Such procedures shall be in accordance with Applicable
Laws, Applicable Permits and provisions of this Agreement.
18.3 All costs and expenses arising out of or relating to safety requirements shall be
borne by the Developer to the extent such costs and expenses form part of the
work and services included in the Scope of the Project.
19. PREMIUM
19.1 The MPSTDC acknowledges and agrees that the Developer has paid a premium
equal to ` …………….. (‘Premium’) before the date of signing of this
Agreement.
19.2 The Premium paid shall be exclusive of any other fee/charges payable by the
Developer to the MPSTDC under the provisions of this Agreement.
Notwithstanding anything to the contrary contained elsewhere in this
Agreement, the Premium once paid is non-refundable under any circumstances
whatsoever.
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20. RENEWAL OF DEVELOPMENT RIGHT UPON EXPIRY
20.1 The Developer shall be entitled to the right of renewal; on the expiry of 30
year period.
20.2 Atleast twelve months prior to the expiry of this Agreement, the Developer
shall inform in writing to MPSTDC if it is willing to continue with the
Development Rights granted herein and shall make an application for the grant
of renewal of Development Rights of the Project, for a further period of 30
years on the same terms and conditions except for those explicitly provided in
clause 20.4 & 20.5 of this Agreement. Provided that Developer can exercise
such right only if it has complied with all the terms and conditions of the
Development Agreement and it is not in breach of any of the terms of the
Development Agreement which has been notified by MPSTDC. In case the
Developer is in breach of any of the terms and conditions of the Development
Agreement resulting in an Event of Default, the renewal of Development
Rights shall be subject to the Developer rectifying the breach within a cure
period of 2 months and failure to rectify such breach shall not entitle the
Developer for renewal of Development Rights. For the avoidance of doubt it is
clarified that if the developer does not make any application to MPSTDC
within the time provided in this clause, it shall be deemed that it is not willing
for renewal of Development Rights.
20.3 In case Developer is not willing to continue with the Development Rights
granted herein, it shall inform in writing to MPSTDC atleast twelve months
prior to the expiry of this Agreement, its intentions whereof. In such a case
the Project shall be handed over to MPSTDC by Developer as per the
provisions of Clause 24 of this Agreement.
20.4 The annual Development Fee for the of renewed period shall be six times the
fee payable as per Clause 16 of this agreement.
20.5 The O & M Security for the renewed period of 30 years shall be 4 (four) times
the amount mentioned in clause 14.1 i.e. ` 7.50 lakh.
21. INSURANCE
The Developer shall effect and maintain, or cause to be affected and
maintained, at no cost to MPSTDC during the Development Period insurance
for earthquakes, floods, lightning, accidents, fire and riots for the replacement
costs and building costs of the Project and Project Building.
22. FORCE MAJEURE
22.1 The Developer or MPSTDC, as the case may be, shall be entitled to initially
suspend the performance of its respective obligations under this
Agreement to the extent that the Developer or MPSTDC, as the case
may be, is unable to render such performance by an event of Force Majeure
(a "Force Majeure Event")
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22.2 In this Agreement, no event or circumstance and/or no combination and
circumstances shall be treated as a “Force Majeure Event” unless it satisfies
all the following conditions:
(a) materially and adversely affects the performance of an obligation;
(b) are beyond the reasonable control of the affected Party;
(c) such Party could not have prevented or reasonably overcome
with the exercise of Good Industry Practice or reasonable skill and
care;
(d) do not result from the negligence or misconduct of such Party or the
failure of such Party to perform its obligations hereunder;
(e) which, by itself or consequently disables either party to perform its
respective obligations under this agreement.
22.3 “Force Majeure Event” includes the following events and/ or circumstances
to the extent that they or their consequences satisfy the requirements set
forth in Clause 22.2:
i. war (whether declared or undeclared), invasion, armed conflict or
act of foreign enemy in each case involving or directly affecting the
Site;
ii. revolution, riot, insurrection or other civil commotion, act of
terrorism or sabotage in each case within the Site or near vicinity;
iii. nuclear explosion, radioactive or chemical contamination or
ionizing radiation directly affecting the Site and/or the
Assets, unless the source or cause of the explosion,
contamination, radiation or hazardous thing is brought to or near the
Site by the Developer or any Affiliate of the Developer or any Sub-
Contractor of the Developer or any of their respective employees,
servants or agents;
iv. strikes, working to rule, go-slows and/or lockouts which are in
each case widespread, nationwide or political and affects the Site;
v. any effect of the natural elements, including lighting, fire, earthquake,
unprecedented rains, tidal wave, flood, storm, cyclone, typhoon or
tornado, within the Site or near vicinity;
vi. explosion (other than a nuclear explosion or an explosion resulting
from an act of war) within the Site or near vicinity;
a) epidemic or plague within the Site or near vicinity; and,
b) any event or circumstances of a nature analogous to any events set forth in
paragraphs (i) to (vii) of this Clause 22.3 within the Site or near vicinity.
22.4 Procedure for Force Majeure
22.4.1 If a Party claims relief on account of a Force Majeure Event, then the
Party claiming to be affected by the Force Majeure Event shall,
immediately on becoming aware of the Force Majeure Event, give
notice of and describe in detail:
i that the Force Majeure Event(s) that has occurred;
ii the obligation(s) affected
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iii the dates of commencement and estimated cessation of such
event of Force Majeure; and
iv the manner in which the Force Majeure event(s) affect the
Party's ability to perform its obligation(s) under this
Agreement.
v the nature and extent of relief sought if any. No Party shall be
able to suspend or excuse the non-performance of its
obligations hereunder unless such Party has given the notice
specified above. The Parties expressly agree that payment of
Annual Fee may also be suspended during the pendency of
Force Majeure Event and/or its effect.
22.4.2 The affected Party shall have the right to suspend the performance of
the obligation(s) affected, upon delivery of the notice of the
occurrence of a Force Majeure Event in accordance with sub-Clause
22.4.1 above. The affected party, to the extent rendered unable to
perform its obligations or part thereof under this Development
Agreement, as a consequence of the Force Majeure Event, shall be
excused from performance of the obligations provided that the
excuse from performance shall be of no greater scope and of no
longer duration than is reasonably warranted by the Force Majeure
Event.
22.4.3 The time granted for performance of any obligation or compliance
and for the exercise of any right by the Party affected by Force
Majeure Event, shall be extended over the period during which such
Force Majeure Event continues and by such additional period
thereafter as is necessary to enable the affected Party to achieve the
level of activity prevailing before the event of Force Majeure Event.
22.4.4 Each Party shall bear its own costs, if any, incurred as a consequence
of the Force Majeure Event.
22.4.5 The Party receiving the claim for relief under Force Majeure Event
shall, if it wishes to dispute the claim, give a written notice of dispute
to the Party making the claim within 30 (thirty) days of receiving the
notice of claim. If the notice of claim is not contested within 30
(thirty) days as stated above, all the Parties to this Development
Agreement shall be deemed to have accepted the validity of the
claim. If any Party disputes a claim, the Parties shall follow the
procedures set forth in Clause 24.
22.5 Mitigation
The Party claiming to be affected by a Force Majeure Event shall
take all reasonable steps to prevent, reduce to a minimum and mitigate
the effect of such Force Majeure Event. The affected Party shall also
make efforts to resume performance of its obligations under this
Agreement as soon as possible and upon resumption, shall forthwith
notify the other Party of the same in writing.
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23. DEFAULT AND TERMINATION
23.1 Developer- Event of Default
For the purposes of this Development Agreement, each of the following events or
circumstances, to the extent not caused by a default of MPSTDC or Force Majeure
Event, shall be considered, as events of default of the Developer (the "Developer
Event of Default") which, if not remedied within the Cure Period upon receipt of
written notice from MPSTDC, shall provide MPSTDC the right to terminate this
Development Agreement in accordance with Clause 23.3:
(a) any breach, including but not limited to the events specified hereunder, but
excluding Payment Default(s), by the Developer of its obligations under this
Development Agreement, and such breach if capable of being remedied, is not
remedied within 60 (sixty) days of receipt of written notice, from MPSTDC
specifying such breach and requiring the Developer to remedy the same;
(b) any representation or warranty of the Developer herein contained which is, as
of the date hereof, found to be materially false, incorrect or misleading or the
Developer is at any time hereafter found to be in breach thereof;;
(c) Suspension by the Developer of the performance of the obligations under this
Development Agreement for a period exceeding 30 (thirty) consecutive days
(except during the subsistence of a Force Majeure Event);
(d) failure by the Developer to operate and maintain the Assets in accordance with
the Applicable Laws or committing a default of its obligation as provided for
in clause 15;
(e) failure of the Developer to maintain insurance(s) as required in terms of
Clause 21.
(f) the Developer is ordered to be wound up by a court; filing of a petition for
voluntary winding up by the Developer, or levy of an execution or restraint on
the Developer’s assets, or appointment of a provisional liquidator,
administrator, trustee or receiver of the whole or substantially whole of the
undertaking of Developer by a court of competent jurisdiction;
(g) the Developer is adjudged bankrupt or insolvent, or if a trustee or receiver is
appointed for the Developer or for the whole or material part of its assets that
has a material bearing on the Project;
(h) the Developer has been, or is in the process of being liquidated, dissolved,
wound-up, amalgamated or reconstituted in a manner that would cause, in the
reasonable opinion of the MPSTDC , a Material Adverse Effect;
(i) failure to replenish O & M Security under clause 15.4
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(j) the Developer using or permitting or causing the use of the Site for purposes
other than the objective mentioned above
(k) the Developer doing or permitting to do any act, matter, deed or thing in
violation of Applicable Law and/or Applicable Permits;
(l) the Developer setting up an interest in the Site or any portion thereof (i)
adverse to that of MPSTDC or (ii) a third person; or (iii) claiming an absolute
interest in the Site or any portion thereof in itself;
(m) non-compliance of Equity lock-in provisions, if any, set forth in the bid
document.
(n) failure to achieve the Project Completion Date on or the Extended Project
Completion Period, as the case may be;
(o) commits a breach of its any obligations as contained in this agreement.
(p) Violation or breach of security zone as determined from time to time as per
clause 1.1(44)
23.2 MPSTDC Event of Default
For the purposes of this Development Agreement, each of the following events
or circumstances, to the extent not caused by a default of the Developer or are not
Force Majeure Events, shall be considered, as events of default of MPSTDC
("MPSTDC Event of Default"), which shall provide the Developer the right to
terminate this Development Agreement in accordance with Clause 23:
(i) failure to provide to the Developer the rights to the Site in accordance with
this Development Agreement;
(ii) MPSTDC commits a material default in complying with any of the provisions
of this Agreement and such default has a Material Adverse Effect on the
performance of the Obligations of the Developer.
23.3 Notice of Termination
23.3.1 Without prejudice to any other rights or remedies which the non-defaulting
Party may have under this Development Agreement, upon the occurrence of either a
Developer Event of Default or a MPSTDC Event of Default, the defaulting Party shall
be liable for the breach caused and consequences thereof and the non-defaulting Party
shall have the right to issue a notice expressing it’s intention to terminate this
Development Agreement to the other Party (the “Notice of Intention to Terminate”)..
Upon the issuance of a Notice of Intention to Terminate, the defaulting Party shall
have the right to rectify or cure the breach within 60 (Sixty) days of receipt of such
Notice of Intention to Terminate (“Cure Period”). If the breach is not rectified by the
defaulting Party within the Cure Period, the non-defaulting Party shall have the right
to terminate this Development Agreement by issuance of a termination notice (the
“Termination Notice”).
23.3.1(a) Notwithstanding anything contained in the Development Agreement, the
Developer cannot exercise the right to issue Notice of Intention to Terminate 180 days
after the commencement date.
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23.3.2 Without prejudice to anything contrary as contained in this Development
Agreement, upon the failure of the Developer to rectify a Payment Default MPSTDC
shall have the right to terminate this Development Agreement by issuance of a
Termination Notice. Provided that in case of termination of the Development
Agreement under this Clause 23, MPSTDC shall not be required to issue any prior
notice expressing its intention to terminate the Development Agreement and calling
upon him to cure or rectify the Payment Default and the Developer hereby expressly
waives his right, if any, to challenge the same on the ground of non-issuance of prior
Notice of Intention to terminate in case of termination of this Development
Agreement on the ground of Payment Default.
23.3.3 Save and except as otherwise provided in this agreement and without
prejudice to any other right or remedy which MPSTDC may have in respect thereof
under this Agreement, upon the occurrence of any breach by the developer under this
Agreement including any Event of Default, the MPSTDC shall be entitled to
appropriate the Performance Security, bid security and to terminate this Agreement by
a communication in writing (the "Termination Notice") to the developer, if it has
failed to cure such breach or default within the period provided for in the same
notice.
24. OBLIGATIONS TO HAND OVER
24.1 DEFECTS LIABILITY
a. In case the Developer is not offering to continue with the renewal of
Development rights on the expiry of this agreement in accordance with
Clause 20, atleast 10 months prior to the expiry of the Development
Period, the Developer and the MPSTDC shall conduct a joint
inspection (the “Initial Inspection”) of the Project and the Project
Building and the shortcomings, if any, in the premises as per the
Applicable Laws and the provisions hereof shall be pointed out by the
MPSTDC and the Developer shall ensure the rectification of the same
within 6 months (‘Renewal Works”).
b. Not less than 3 months prior to the expiry of the Development Period,
the Developer and the MPSTDC shall conduct a joint inspection (the
“Second Inspection”) of all elements of the Project and the Project
Building (whether or not the Renewal Works have been carried out. If
any of the elements of the shortcomings communicated earlier is not
rectified, the same shall be brought to the knowledge of Developer by
the MPSTDC; and the Developer shall rectify the same within a period
of not more than 30 days from such communication by MPSTDC.
c. On rectification of the shortcomings as above, the Project shall be
vested by the Developer in the MPSTDC. Provide that, in the event of
Developer’s failure to fully rectify any defects and shortcomings,
MPSTDC shall have the right to rectify the same at the cost of the
Developer and recover such cost from the Developer.
24.2 DIVESTMENT OF RIGHTS AND INTERESTS
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I. Upon Termination or expiry of this Agreement, the Developer shall comply
with the following:
a) notify to MPSTDC forthwith the location and particulars of all
assets of the Project.
b) deliver forthwith actual or constructive possession of the Project
free and clear of all Encumbrances and execute such deeds,
writings and documents as may be required by the MPSTDC for
fully and effectively divesting the Developer of all of the rights,
title and interest of the Developer in the Project and Project
Buildings & facilities and conveying the Project and Project
Buildings & facilities free of any charge or cost to MPSTDC; and
c) the Project and Project Buildings & facilities shall have been
renewed and cured of all defects and deficiencies as necessary so
that the Project and Project Buildings & facilities is compliant with
the Specifications and Standards set forth in this Agreement;
d) The Project and Project Buildings & facilities shall be free from
defects in accordance with O&M requirements;
e) The Developer shall deliver relevant records and reports pertaining
to the Project and Project Buildings & facilities and its detailed
design, engineering, construction, operation, and maintenance
including all operation and maintenance records and programmes
and manuals pertaining thereto and complete up to date as-built
Drawings to the MPSTDC;
f) The Developer shall comply with all other requirements as may be
prescribed under Applicable Laws to complete the divestment and
assignment of all the rights, title and interest of the Developer in
the Project free from all Encumbrances absolutely and free of any
charge or tax to MPSTDC or its nominee.
II. Upon the Developer conforming, to the satisfaction of MPSTDC, to all the
obligations to hand over herein, and handing over actual or constructive
possession of the Project to MPSTDC or a person nominated by MPSTDC
in this regard, MPSTDC shall issue a certificate substantially in the form
set forth in Schedule – ‘F’ (the “Divestment Certificate”) confirming the
same.
25. RIGHT OF RE-ENTRY
MPSTDC reserves to itself the right to re-entry in the project and such right
shall not be enforced unless a notice is served on the Developer setting out the
precise reason for which such right is purported to be exercised and an
opportunity of hearing will be given to the Developer, if it so desires. In such
a situation the Developer will be required to hand over the possession of the
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Project as per the Divestment Conditions mentioned in clauses 24. Such right
to re-entry shall be exercised only in case GoMP is of the opinion that such
land is required for Public Purpose.
Provided that on exercise of such right, the Developer shall be paid a cash
compensation for the value of the assets as valued by MP Public Works
Department. Such payment will be made by MPSTDC at the time of taking
over the possession of the project. In case of disagreement between the
MPSTDC and the Developer, MPSTDC shall pay the sum as ascertained
above and shall take over the possession of the Project. Any dispute in this
regard shall be resolved as per the procedure set forth in clause 26.
26. DISPUTE AND ITS RESOLUTION-
Save where expressly stated to the contrary in this Agreement, any dispute,
difference or controversy of whatever nature howsoever arising under, out of
or in relation to this Agreement including non completion of the Project,
between the Parties and so notified in writing by either Party to the other (the
“Dispute”) in the first instance shall be attempted to be resolved in accordance
with the procedure set forth below.
26.1 Amicable Resolution
In the event of any Dispute between the Parties, either Party may call
upon Principal Secretary, Tourism Department, GOMP to mediate and
assist the Parties in arriving at an amicable settlement thereof.
26.2 Arbitration
26.2.1 Any Dispute, which is not resolved amicably, as provided above, shall
be finally decided by reference to Arbitration by a Board of Arbitrators
appointed as per the provisions of the Arbitration & Conciliation Act,
1996 and any subsequent amendment thereto. Such arbitration shall be
held in accordance with the Rules of Arbitration of the Indian Council
of Arbitration and shall be subject to the provisions of the Arbitration
and Conciliation Act, 1996 and as amended from time to time
thereafter.
26.2.2 The siting of all challenges arising out of the agreement or to its
implementation shall be the district court of Bhopal and High Courts in
the state of Madhya Pradesh.
26.3 Arbitration Awards to be binding
a. The Developer and MPSTDC undertake to carry out any decision or
award of the arbitrators (the “Award”) without delay. Awards relating
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to any Dispute shall be final and binding on the Parties as from the date
they are made.
b. The Developer and MPSTDC agree that an Award may be enforced
against the Developer and the MPSTDC as the case may be and their
respective assets wherever situated.
c. This Agreement and rights and obligations of the Parties shall remain
in full force and effect pending the Award in any arbitration
proceeding hereunder.
27 DISCLOSURE
The Developer shall make available for inspection during normal business
hours on all working days copies of all records and reports to MPSTDC as and
when required.
28. GOVERNING LAW AND JURISDICTION
This Agreement shall be construed and interpreted in accordance with the
Applicable Laws and the Courts in Madhya Pradesh shall have jurisdiction
over all matters arising out of or relating to this Agreement.
29 MISCELLANEOUS
29.1 Waiver
Waiver by either Party of any default by other Party in the observance and
performance of any provision of or obligations of or under this Agreement;
a) shall not operate or be construed as a waiver of any other or
subsequent default hereof or of other provisions of or obligations under
this Agreement;
b) shall not be effective unless it is in writing and executed by a duly
authorised representative of the Party; and
c) shall not affect the validity or enforceability of this Agreement in any
manner.
29.2. Neither the failure by either Party to insist on any occasion upon the
performance of the terms, conditions and provisions of this Agreement or any
obligation there under nor time or other indulgence granted by a Party to the
other Party shall be treated or deemed as waiver of such breach or acceptance
of any variation or the relinquishment of any such right hereunder.
29.3 Survival
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I. Termination of this Agreement (a) shall not relieve the Developer or
MPSTDC of any obligations hereunder which expressly or by implication
survives Termination hereof, and (b) except as otherwise provided in any
provision of this Agreement expressly limiting the liability of either
Party, shall not relieve either Party of any obligations or liabilities for
loss or damage to the other Party arising out of or caused by acts or
omissions of such Party prior to the effectiveness of such Termination or
arising out of such termination.
II. All obligations surviving the cancellation, expiration or Termination of
this Agreement shall only survive for a period of 5 (five) years following
the date of such Termination or expiry of this Agreement.
29.4 Entire Agreement:
This Agreement, and the Schedules together constitute a complete and
exclusive statement of the terms of the agreement between the Parties on
the subject hereof and no amendment or modification hereto shall be valid
and effective unless expressly previously approved in writing by the
MPSTDC and executed by the person expressly authorised by a resolution
of the Developer in this behalf.
29.5 Notices
i. Any notice or other communication to be given by a Party to the other Party
under, or in connection with the matters contemplated by this Agreement shall
be in writing and shall:
1. in the case of the Developer, be marked for the attention of the person
set out opposite the corresponding signature below or to such other
address marked for such other attention as the Developer may from
time to time designate by notice to the MPSTDC, provided that notices
or other communications be confirmed by sending a copy thereof by
first class registered airmail or by courier and/or also be sent by
facsimile to the number as the Developer may from time to time
designate by notice to MPSTDC; and
2. in the case of MPSTDC, be given by letter and be addressed to the
Managing Director, the MPSTDC
i. Copies of all notices shall also be sent by facsimile and by
registered acknowledgement due pre-paid post or courier.
ii. Copies of all notices shall also be sent to the Lessor
Representative.
29.6 Severability
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If for any reason whatever any provision of this Agreement is or becomes
invalid, illegal or unenforceable or is declared by any court of competent
jurisdiction or any other instrumentality to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall not be affected in any manner, and the Parties will negotiate
in good faith with a view to agreeing one or more provisions which may be
substituted for such invalid, unenforceable or illegal provisions, as nearly as
is practicable to such invalid, illegal or unenforceable provision. Failure to
agree upon any such provisions shall not be subject to dispute resolution
under this Agreement or otherwise.
29.7 No Partnership
Nothing contained in this Agreement shall be construed or interpreted as
constituting a partnership between the Parties. Neither Party shall have any
authority to bind the other in any manner whatsoever.
29.8 Language
All notices required to be given by one Party to the other Party and all other
communications, documentation and proceedings which are in any way
relevant to this Agreement shall be in writing and in English language.
29.9 Exclusion of Implied Warranties etc.
This Agreement expressly excludes any warranty, condition or other
undertaking implied at law or by custom or otherwise arising out of any other
agreement between the Parties or any representation by either Party not
contained in a binding legal agreement executed by both Parties.
29.10 Counterparts
This Agreement may be executed in two counterparts, each of which when
executed and delivered shall constitute an original of this Agreement.
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IN WITNESS WHEREOF THE, PARTIES HAVE EXECUTED AND DELIVERED
THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.
SIGNED SEALED AND DELIVERED
For and on behalf of
MADHYA PRADESH STATE TOURISM DEVELOPMENT CORPORATION
LTD.
By
__________ (Signature)
MADHYA PRADESH STATE TOURISM DEVELOPMENT CORPORATION Ltd.
(A Govt. of M.P. Undertaking)
PARYATAN BHAVAN, Bhadbhada Road,
Bhopal –462 001 (Madhya Pradesh)
Phone:
Fax:
__________(Name)
___________(Designation)
SIGNED, SEALED AND DELIVERED
For and on behalf of
DEVELOPER by:
______________(Signature)
______________(Name)
______________(Designation)
Address :
In the presence of:
1.
2.
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SCHEDULE – A
Details of Site
1. Land and other related real estate on offer for Development Rights
2. Description of the water body along with its boundaries and security zone.
However the limits of security zone described herein shall stand modified if so
required by Indira Sagar dam authority.
SCHEDULE – B
a) Buildings/Facilities required to be constructed.
b) Details of infrastructure to be built by MPSTDC (see clause 7.e)
SCHEDULE – C
Formats of Performance Security as described in Clause 4
SCHEDULE – D
Format of O&M Security as described in Clause 14
SCHEDULE – E
Format of Project Completion Certificate
SCHEDULE--F
Format of Divestment Certificate as described in Clause 24.2 II
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SCHEDULE - A
1. Terms & Conditions laid down by Narmada Valley Development Authority
and NHDC which are mandatory to comply with, by the developer are placed
at Annexure-I (Please see clause 6.1(q) of Development Agreement.)
2. Details of land at village Hanvantia on which Development rights will be
given is as follows :-
i) Approx. 4.44 Acre from Khasra No. 72
ii) Approx. 3.50 Acre from Khasra No. 73
iii) Approx. 1.97 Acre from Khasra No. 74
vi) Approx. 0.17 Acre from Khasra No. 76
Total area 10.08 acre (site map of the land plot-1 is placed at
Annexure-II)
3. The security zone shall lie between Indira Sagar Dam and 760 35' 55" E
Longitude. Tourist activities shall be permissible in the Tourism zone i.e. 760
35' 55" E to 760 58' 33" E Longitude. In case, the authority that owns the
Indira Sagar Dam (NHDC) makes any changes in the security zone, the tourist
zone will be changed accordingly and tourist activities will be permissible in
that area only. Map showing security zone and tourism zone is placed at
Annexure-III.
(Please see clause1.1(44) and 6.1 (o))
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Schedule - A
Annexure - I
Conditions imposed by Narmada Valley Department :
1. The developer and Tourism Department shall both observe dam
safety guidelines, regulatory provisions related to conservation of
river eco system of Central Water Commission.
2. The reservoir shall not be used for disposal of any waste.
3. Tourism Department shall monitor the water quality and aquatic life.
Conditions imposed by NHDC :
1. The area of 2 km upstream & 2 km downstream is the most sensitive
security area. However no tourism activity will be permissible
between the dam and the longitude 76aa˚35'55" E without specific
permission of NHDC.
2. MPSTDC shall provide a barrier in the reservoir at a distance of 2
Km from the Dam so that no Tourist Boat comes near the project site
i.e. Dam Gates and Power House etc.
3. MPSTDC shall impose reasonable restrictions on boating during
night.
4. No garbage would be disposed off in reservoir.
5. During monsoon period, the water level fluctuations may be up to 21
meters. The Tourism activities shall be restricted during this period.
Awareness campaign to avoid situation of sudden water rise and
accidents may carried out regularly. Warning signs should also be
displayed.
6. Creation of Tourism facility will necessitate enhanced security
arrangement for Indira Sagar Power Station. Any additional
expenditure on this account may be payable by MPSTDC to NHDC.
7. Any person with doubtful identity and activities should be promptly
reported to the security /police immediately.
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Schedule "A"
Annexure II
Site Map Showing Plot No.-1
Plot No. 1
10.08 Acres
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Schedule "A"
Annexure III
Map showing Security Zone and Tourism Zone
Tourism Zone
Security Zone
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M.P. State Tourism Development Corporation Ltd.
(Development Agreement)
SCHEDULE ‘B’
Total land - 10.08 Acres.
Project Cost - ` 15.00 Crore
i) Planning Restrictions :- Maximum Height Permissible - 9 mtrs.
Ground Coverage - 30%
ii) Mandatory Requirements :- 1. Lodging facilities for minimum 100 persons.
2. Restaurant.
3. Administrative block.
4. Staff quarters.
5. 24 hrs. uninterrupted water/electricity supply.
6. Solid waste management system. (as approved by MPSTDC)
7. Internal roads.
8. Green belt/landscaping.
9. Fencing/Compound wall
10. Parking.
11. Water sports activities such as cruise-1 Carring capacity minimum 40 pax,
motor boats - 2 minimum 4+1
12. Drivers dormitory.
13. STD/ISD/Internet facility.
14. Public amenities.
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iii) Desirables :- 1. Bar.
2. Swimming pool.
3. Gym.
4. Entrance plaza.
5. Multi purpose hall.
6. Gazebos.
7. Children’s play equipments.
iv) Facilities to be Developed by M.P. Tourism Jetty
Slipway
Boat club
Public amenities at boat club
Pathway leading towards boat club
Landscaping
NOTE: Planning restrictions may be relaxed by MPSTDC subject to
applicable law.
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SCHEDULE- C
PERFORMANCE SECURITY
The Managing Director
Madhya Pradesh State Tourism Development Corporation Ltd.
Bhopal
WHEREAS:
(A) **** (the “Developer”) and the Madhya Pradesh State Tourism Development
Corporation Ltd. (the “MPSTDC”) have entered into a Development
Agreement dated __________(the “Agreement”) whereby the MPSTDC has
agreed to the Developer undertaking development of Tourism and related
facilities at Indira Sagar on Develop, Build, Finance, Operate and Transfer
(“DBFOT”) basis, subject to and in accordance with the provisions of the
Agreement.
(B) The Agreement requires the Developer to furnish a Performance Security to
the MPSTDC in a sum of ` ........... lakh ( ` ............ Lakh only) (the
“Guarantee Amount”) as security for due and faithful performance of its
obligations, under and in accordance with the Agreement, during the
Construction Period (as defined in the Agreement).
(C) We, ***** through our Branch at ***** (the “Bank” ) have agreed to furnish
this Bank Guarantee by way of Performance Security.
NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees
and affirms as follows:
1. The Bank hereby unconditionally and irrevocably guarantees the due and
faithful performance of the Developer’s obligations during the Construction
Period, under and in accordance with the Agreement, and agrees and
undertakes to pay to the MPSTDC, upon its mere first written demand and
without any demur, reservation, recourse, contest or protest, and without any
reference to the Developer, such sum or sums up to an aggregate sum of the
Guarantee Amount as the MPSTDC shall claim without the MPSTDC being
required to prove or to show grounds or reasons for its demand and/or for the
sum specified therein.
2. letter from the MPSTDC under the hand of an Officer not below the rank of
Chief General Manager in the MPSTDC that the Developer has committed
default in the due and faithful performance of all or any of its obligations
under and in accordance with the Agreement shall be Conclusive, final
and binding on the Bank. The Bank further agrees that the MPSTDC shall be
the sole judge as to whether the Developer is in default in due and faithful
performance of its obligations during the Construction Period under the
Agreement and its decision that the Developer is in default shall be final, and
binding on the Bank, notwithstanding any differences between the MPSTDC
and the Developer or any dispute between them pending before any court,
tribunal, arbitrators or any other MPSTDC or body or by the discharge of the
Developer for any reason whatsoever.
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3. In order to give effect to this Guarantee, the MPSTDC shall be entitled to act
as if the Bank were the principal debtor and any change in the constitution of
the Developer and/or the Bank whether by their absorption with any other
body or corporation or otherwise shall not in any way or manner affect the
liability or obligation of the Bank under this Guarantee.
4. It shall not be necessary, and the Bank hereby waives any necessity, for the
MPSTDC to proceed against the Developer before presenting to the Bank its
demand under this Guarantee.
5. The MPSTDC shall have the liberty, without affecting in any manner the
liability of the Bank under this Guarantee, to vary at any time, the terms and
conditions of the Agreement or to extend the time or period for the compliance
with, fulfillment and/or performance of all or any of the obligations of the
Developer contained in the Agreement or to postpone for any time and from
time to time any of the rights and powers exercisable by the MPSTDC against
the Developer and either to enforce or forbear from enforcing any of the terms
and conditions contained in the agreement and/or the securities available to the
MPSTDC, and the Bank shall not be released from its liability and obligation
under these presents by any exercise by the MPSTDC of the liberty with
reference to the matters aforesaid or by reason of time omission on the part of
the MPSTDC or of any other forbearance, indulgence, act or which under any
law relating to sureties and guarantors would but for this provision have the
effect of releasing the Bank form its liability and obligation under this
Guarantee and the Bank hereby waives all of its rights under any such law.
6. This Guarantee is in addition to and not in substitution of any other guarantee
or security now or which may hereafter be held by the MPSTDC in respect of
or relating to the Agreement or for the fulfillment, compliance and/or
performance of all or any of the obligation of the Developer under the
Agreement.
7. Notwithstanding anything contain hereinbefore, the liability of the Bank under
this guarantee is restricted to the Guarantee Amount and this Guarantee will
remain in Force for the period specified in paragraph 8 below and unless a
demand or claim in writing is made by the MPSTDC on the Bank under this
Guarantee, not later than 6 (six) months from the date of expiry of this
Guarantee, all rights of the MPSTDC under this Guarantee shall be forfeited
and the Bank shall be relieved from its liabilities hereunder.
8. The Performance Security Shall cease to be in force and effect when the
Developer shall have completed the Construction of the Project to the
satisfaction of MPSTDC and provided the Developer is not in breach of this
agreement. Thereafter upon request made by the Developer for release of the
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Performance Security along with the particulars required hereunder, the
MPSTDC shall release the Performance Security forthwith.
9. The Bank undertakes not to revoke this Guarantee during its currency except
with the previous express consent of the MPSTDC in writing and declares that
it has the power to issue this guarantee and the undersigned has full powers to
do so on behalf of the Bank.
10. Any notice by way of request, demand or otherwise hereunder may be sent by
post addressed to the Bank at its above referred Branch, which shall be
deemed to have been duly authorized to receive such notice and to effect
payment thereof forthwith, and if sent by post it shall be deemed to have been
given at the time when it ought to have been delivered in due course of post
and in proving such notice, when given by post, it shall be sufficient to prove
that the envelope containing the notice was posted and a certificate signed by
an officer of the MPSTDC that the envelope was so posted shall be
conclusive.
11. This Guarantee shall come into force with immediate effect and shall remain
in force and effect for a period of one year or until it is released earlier by the
MPSTDC pursuant to the provisions of the Agreement.
Signed and sealed this ** day of *** 200* at ***.
SIGNED, SEALED AND DELIVERED
For and on behalf of the Bank by:
(Signature)
(Name)
(Designation)
(Address)
Note: The Developer shall keep the bank guarantee valid over the entire
construction period by renewing it from time to time in compliance of clause 4.1.
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SCHEDULE - D
OPERATION AND MAINTENANCE SECURITY
The Managing Director
Madhya Pradesh State Tourism Development Corporation Ltd.
Bhopal
WHEREAS:
(A) **** (the “Developer”) and the Madhya Pradesh State Tourism Development
Corporation Ltd. (the “MPSTDC”) have entered into a Development
Agreement dated __________(the “Agreement”) whereby the MPSTDC has
agreed to the Developer undertaking development of Tourism and related
facilities at Indira Sagar on Develop, Build, Finance, Operate and Transfer
(“DBFOT”) basis, subject to and in accordance with the provisions of the
Agreement.
(B) The Agreement requires the Developer to furnish an Operation and
Maintenance Security to the MPSTDC in compliance with clause 14.1 of the
Development Agreement in a sum of ` ........ lakh ( ` ....... lakh only) (the
“_________”) as security for due and faithful performance of its obligations,
under and in accordance with the Agreement, during the Construction Period
(as defined in the Agreement).
(C) We, ***** through our Branch at ***** (the “Bank”) have agreed to furnish
this Bank Guarantee by way of Performance Security.
NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees
and affirms as follows:
1. The Bank hereby unconditionally and irrevocably guarantees the due and
faithful performance of the Developer’s obligations during the Construction
Period, under and in accordance with the Agreement, and agrees and
undertakes to pay to the MPSTDC, upon its mere first written demand and
without any demur, reservation, recourse, contest or protest, and without any
reference to the Developer, such sum or sums up to an aggregate sum of the
Guarantee Amount as the MPSTDC shall claim without the MPSTDC being
required to prove or to show grounds or reasons for its demand and/or for the
sum specified therein.
2. A letter from the MPSTDC under the hand of an Officer not below the rank of
Dy. General Manager in the MPSTDC that the Developer has committed
default in the due and faithful performance of all or any of its obligations
under and in accordance with the Agreement shall be Conclusive, final
and binding on the Bank. The Bank further agrees that the MPSTDC shall be
the sole judge as to whether the Developer is in default in due and faithful
performance of its obligations during the Construction Period under the
Agreement and its decision that the Developer is in default shall be final, and
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binding on the Bank, notwithstanding any differences between the MPSTDC
and the Developer or any dispute between them pending before any court,
tribunal, arbitrators or any other MPSTDC or body or by the discharge of the
Developer for any reason whatsoever.
3. In order to give effect to this Guarantee, the MPSTDC shall be entitled to act
as if the Bank were the principal debtor and any change in the constitution of
the Developer and/or the Bank whether by their absorption with any other
body or corporation or otherwise shall not in any way or manner affect the
liability or obligation of the Bank under this Guarantee.
4. It shall not be necessary, and the Bank hereby waives any necessity, for the
MPSTDC to proceed against the Developer before presenting to the Bank its
demand under this Guarantee.
5. The MPSTDC shall have the liberty, without affecting in any manner the
liability of the Bank under this Guarantee, to vary at any time, the terms and
conditions of the Agreement or to extend the time or period for the compliance
with, fulfillment and/or performance of all or any of the obligations of the
Developer contained in the Agreement or to postpone for any time and from
time to time any of the rights and powers exercisable by the MPSTDC against
the Developer and either to enforce or forbear from enforcing any of the terms
and conditions contained in the agreement and/or the securities available to the
MPSTDC, and the Bank shall not be released from its liability and obligation
under these presents by any exercise by the MPSTDC of the liberty with
reference to the matters aforesaid or by reason of time omission on the part of
the MPSTDC or of any other forbearance, indulgence, act or which under any
law relating to sureties and guarantors would but for this provision have the
effect of releasing the Bank form its liability and obligation under this
Guarantee and the Bank hereby waives all of its rights under any such law.
6. This Guarantee is in addition to and not in substitution of any other guarantee
or security now or which may hereafter be held by the MPSTDC in respect of
or relating to the Agreement or for the fulfillment, compliance and/or
performance of all or any of the obligation of the Developer under the
Agreement.
7. Notwithstanding anything contain hereinbefore, the liability of the Bank under
this guarantee is restricted to the Guarantee Amount and this Guarantee will
remain in Force for the period specified in paragraph 8 below and unless a
demand or claim in writing is made by the MPSTDC on the Bank under this
Guarantee, not later than 6 (six) months from the date of expiry of this
Guarantee, all rights of the MPSTDC under this Guarantee shall be forfeited
and the Bank shall be relieved from its liabilities hereunder.
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8. The Performance Security shall cease to be in force and effect till the entire
Development Period.
9. The Bank undertakes not to revoke this Guarantee during its currency except
with the previous express consent of the MPSTDC in writing and declares that
it has the power to issue this guarantee and the undersigned has full powers to
do so on behalf of the Bank.
10. Any notice by way of request, demand or otherwise hereunder may be sent by
post addressed to the Bank at its above referred Branch, which shall be
deemed to have been duly authorized to receive such notice and to effect
payment thereof forthwith, and if sent by post it shall be deemed to have been
given at the time when it ought to have been delivered in due course of post
and in proving such notice, when given by post, it shall be sufficient to prove
that the envelope containing the notice was posted and a certificate signed by
an officer of the MPSTDC that the envelope was so posted shall be
conclusive.
12. This Guarantee shall come into force with immediate effect and shall remain
in force and effect for a period of one year or until it is released earlier by the
MPSTDC pursuant to the provisions of the Agreement.
Signed and sealed this ** day of *** 20** at ***.
SIGNED, SEALED AND DELIVERED
For and on behalf of the Bank by:
(Signature)
(Name)
(Designation)
(Address)
Note : The Developer shall keep this bank guarantee valid for the entire development period by
renewing it from time to time for ensuring compliance with clause 14.1 as may be
directed by MPSTDC.
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SCHEDULE- E
COMPLETION CERTIFICATE
1. I, **** (Name of the Officer), acting under and in accordance with the
Development Agreement dated **** (the “Agreement”) for development of
tourism and related facilities at Indira Sagar on Develop, Build, Finance,
Operate and Transfer (DBFOT) basis, through **** (Name of Developer),
hereby certify that the facilities specified in Clause 13 and Schedule-B of the
Agreement have been successfully undertaken to determine completion of the
Project with the provisions of the Agreement, and I am satisfied that the
Project can be safely and reliably placed in commercial service of the Users
thereof.
2. It is certified that in terms of the aforesaid Agreement, all mandatory works
forming part of project have been completed, and the Project is hereby
declared fit for entry in to commercial operation on this the *** day of ***
20**.
SIGNED, SEALED AND DELIVERED
For and on behalf of
MPSTDC by:
(Signature)
(Name)
(Designation)
(Address)
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PROVISIONAL COMPLETION CERTIFICATE
1. I, **** (Name of the Officer), acting under and in accordance with the Development
Agreement dated **** (the “Agreement”) for development of tourism and related
facilities at Indira Sagar on Develop, Build, Finance, Operate and Transfer (DBFOT)
basis, through **** (Name of Developer), hereby certify that the facilities specified
in Schedule-B of the Agreement have been undertaken to determine compliance of
the Project with the provisions of the Agreement,
2. Constructions Works that were found to be incomplete and/or deficient have been
specified in the List appended hereto, and the Developer has agreed and accepted that
it shall complete and/or rectify all such works in the time and manner set forth in the
Agreement. (Some of the incomplete works have been delayed as a result of reasons
attributable to the MPSTDC or due to Force Majeure and the Provisional Certificate
cannot be withheld on this account. Through the remaining incomplete works have
been delayed as a result of reason attributable to the Developer,)* I am satisfied that
having regard to the nature and extent of following facilities developed so far, it
would not be prudent to withhold commercial operation of the Project pending
completion thereof ;
1.
2.
3.
4.
5.
3. In view of the foregoing, I am satisfied that the above facilities of the Project can be
safely and reliably placed in commercial service of the Users thereof, and in terms of
the Agreement, the Project is hereby provisionally declared fit for entry into
commercial operation on this the *** day of *** 20**
ACCEPTED, SIGNED, SEALED SIGNED, SEALED AND
AND DELIVERED DELIVERED
For and on behalf of For and on behalf of
DEVELOPER by: MPSTDC by:
(Signature) (Signature)
(Name and Designation) (Name and Designation)
(Address) (Address)
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SCHEDULE- F
VESTING CERTIFICATE
1. The Madhya Pradesh State Tourism Development Corporation Ltd.
(the “MPSTDC”) refers to the Development Agreement dated *** (the
“Agreement”) entered into between the MPSTDC and *** (the
“Developer”) for development of tourism and related facilities at Indira
Sagar on Develop, Build, Finance, Operate and Transfer (“DBFOT”)
basis.
2. The MPSTDC hereby acknowledges compliance and fulfillment by the
Developer of the Divestment Requirements set forth in Clause 24.2 of
the Agreement. Upon issue of this Vesting Certificate, the MPSTDC
shall be deemed to have acquired, and all title and interest of the
Developer in or about the Project shall be deemed to have vested up to
the MPSTDC, free from any encumbrances, charges and liens
whatsoever.
3. Notwithstanding anything to the contrary contained hereinabove, it
shall be a condition of this Vesting Certificates that nothing contained
herein shall be construed or interpreted as waiving the obligation of the
Developer to rectify and remedy any defect or deficiency in any of the
Divestment Required and/or relieving the Developer in any manner of
the same.
Signed this *** day of ***, 20** at Bhopal.
AGREED, ACCEPTED AND SIGNED SIGNED AND DELIVERED
For and on behalf of For and on behalf of
DEVELOPER by: MPSTDC OF INDIA by:
(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address)
In presence of
1. 2.