February 2019
Request for Proposal for Development of “AC Convention Centre with Hotel”
Sri Varaha Lakshmi Narasimha Swamy Devasthanam (SVLNSD), invites Request for Proposals for the development of “Convention Centre ” project with Hotel at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
TABLE OF CONTENTS Section Page No Invitation for Proposals 3 Disclaimer 4 Glossary 6 1 Introduction 8 1.1 Background 8 1.2 Due Diligence by Bidders 9 1.3 Brief description of Bidding Process 9 1.4 Schedule of Bidding Process 12 1.5 Pre-Bid Conference 12 1.6 Data Sheet 13 2 Instructions to Bidders 25 A General 25 2.1 General terms of Bidding 25 2.2 Change in composition of the Consortium 29 2.3 Change in Ownership 29 2.4 Cost of Bidding 29 2.5 Site visit and verification of information 29 2.6 Verification and Disqualification 30 B Documents 31 2.7 Contents of the RFP 31 2.8 Clarifications 32 2.9 Amendment of RFP 32 C Preparation and Submission of Bids 33 2.10 Format and Signing of Bid 33 2.11 Sealing and Marking of Bids 33 2.12 Bid Due Date 33 2.13 Late Bids 34 2.14 Contents of the Bid 34 2.15 Modifications/ Substitution/ Withdrawal of Bids 34 2.16 Rejection of Bids 34 2.17 Validity of Bids 34 2.18 Confidentiality 35 2.19 Correspondence with the Bidder 35 D Bid Security 35 2.20 Bid Security 35 3 Evaluation of Bids 37 3.1 Opening and Evaluation of Bids 37 3.2 Tests of responsiveness 37 3.3 Selection of Bidder 37 3.4 Eligibility and Evaluation Criteria 39 3.5 Contacts during Bid Evaluation 40 3.6 Bid Parameter 40 4 Fraud and Corrupt Practices 41 5 Pre-Bid Conference 43
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Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
Section Page No 6 Miscellaneous 43 Appendices I Bid Covering Letter 44 II Power of Attorney for Lead Member of Consortium 50 III Power of Attorney for Signing of Bid 53 IV Joint Bidding Agreement of consortium members 55 V Statement of Legal Capacity Letter 61 VI Letter of Undertaking 62 VII Letter of commitment for payments 63 VIII Covering Letter for financial bid 64 IX Format for financial bid 65
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Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
LETTER OF INVITATION
Sub: Request for Proposal (RFP) Document for development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode.
Dear Sir,
Sri Varaha Lakshmi Narasimha Swamy Devasthanam (SVLNSD), Simhachalam, Visakhapatnam District, A.P invites proposal in accordance with this Request for Proposals (RFPs) from eligible and interested parties / developers / investors / operators of ‘Tourism and Hospitality Projects’ for the development of a “ AC Convention Centre with Hotel” project in an extent of 3.65 acres at ‘Vepagunta village’ on Develop, Build, Finance, Operate and Transfer (DBFOT) Basis in Public-Private Partnership (PPP )Mode for a ‘Concession Period’ of 33 years (including Construction Period) with an option of additional period on “Right of First Refusal” basis, as per the terms and conditions stipulated in this RFP document.
You are requested to participate in the Request for Proposal (RFP) Stage and submit your Technical and Financial Proposals (the “Bid”) for the aforesaid project in accordance with this RFP document. In case, Bidders need any further information about the Project or for the inspection of any other documents related to the Project, which are available with the Authority or want to visit the site, they are requested to contact the Authority Office at the address given below. To, The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh Phones: 91-9618434343 & 91-8125420618 Email: [email protected] & [email protected]
Sd./-The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust
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Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
Disclaimer
The information contained in this Request for Proposals document (the “RFP”) or subsequently provided to Bidder(s), whether verbally or in documentary or any other form by or on behalf of the Authority 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 Authority to the prospective Bidders or any other person. The purpose of this RFP is to provide interested parties with information that may be useful to them in making their technical and financial offers (Bids) pursuant to this RFP. This RFP includes statements, which reflect various assumptions and assessments arrived at by the Authority 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 Authority, 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 the Bidding Documents, especially the [Feasibility Report], may not be complete, accurate and adequate, and is only indicative of the project contours. Each Bidder should, therefore, conduct its own investigations/studies 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. The Authority accepts no responsibility for the accuracy or otherwise for any interpretation or opinion on law expressed herein. The prospective bidder shall be aware of all the provisions of statutory and mandatory procedures, rules and regulations.
The Authority, its employees and advisors make no representation or warranty and shall have no liability to any person, including any Applicant 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 for participation in this Bid Stage.
The Authority 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.
The Authority 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, for
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Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
enhancement of economic feasibility or any such provisions for the successful implementation of the project.
The issue of this RFP does not imply that the Authority is bound to select a Bidder or to appoint the Selected Bidder or Concessionaire, as the case may be, for the Project and the Authority reserves the right to reject all or any of the Bidders or Bids without assigning any reason 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 the Authority 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 Authority shall not be liable in any manner whatsoever for the same or for any other costs or other expenses incurred by a Bidder in preparation or submission of the Bid, regardless of the conduct or outcome of the Bidding Process. There shall be no such reimbursements of expenses of any nature by the Authority even when there is cancellation of bid process. However, the bid security shall be returned as detailed in RFP.
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Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
GLOSSARY
Authority As defined in Clause 1.1.2
Associate As defined in Clause 2.1.14
Bid(s) As defined in Clause 1.3.4
Bidders As defined in Clause 1.3.4
Bidding Documents As defined in Clause 1.1.9
Bid Due Date As defined in Clause 1.1.9
Bidding Process As defined in Clause 1.3.1
Bid Security As defined in Clause 1.3.6
Bid Stage As defined in Clause 1.3.4
Concession As defined in Clause 1.1.8
Concession Agreement As defined in Clause 1.1.4
Concessionaire As defined in Clause 1.1.4
Conflict of Interest As defined in Clause 2.1.14
Damages As defined in Clause 2.1.14
[DBFOT] As defined in Clause 1.1.3
Estimated Project Cost As defined in Clause 1.1.6 Feasibility Report As defined in Clause 1.3.5
Government Government of Andhra Pradesh
Highest Bidder As defined in Clause 1.3.3
LOA As defined in Clause 3.3.5
Member Member of a Consortium
MICE Meetings, Incentives, Conferences and Events PPP Public Private Partnership Project As defined in Clause 1.1.3
Revenue Share As defined in Clause 1.3.8
RFP or Request for Proposals As defined in the Disclaimer
Selected Bidder As defined in Clause 3.3.1
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The words and expressions beginning with capital letters and defined in this document shall, unless repugnant to the context, have the meaning ascribed thereto hereinabove. The words and expressions beginning with capital letters and not defined herein, but defined in the RFP, shall, unless repugnant to the context, have the meaning ascribed thereto therein.
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Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in
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1. INTRODUCTION
1.1 Background
1.1.1 Simadhri or Simhachalam – The hill of Lion is an ancient Hindu temple of lord Narasimha an incarnation of Lord Vishnu. Located at a distance of 16 Km from Vishakhapatnam. The temple attracts millions of devotees every year. This temple is under the administrative control of Endowments department, Government of A.P.. 1.1.2 Sri Varaha Lakshmi Narasimha Swamy Devasthanam (SVLNSD) (herein after called as the Authority), Simhachalam has a number of open sites as part of its properties. In keeping with the rapid urbanization around Simhachalam, SVLNSD has identified some of them for development on Public Private Partnership (PPP) basis with a view to putting them to use for larger benefit ensuring steady revenue streams and catering to the needs of the public. 1.1.3 Accordingly, SVLNSD has identified a single bit of 3.65 acres open site at Chitradavari Thota with 1.65 acres falling in Survey No. 187 of Vepagunta village and 2.00 acres falling in Survey No.275 of Adavivaram village.( they are adjacent to each other). The 2 acres of land in Survey No. 275 falls under greenbelt zone and no permanent construction shall be permitted, there in. But it can be utilized for parking and land scaping. SVLNSD intends to develop “AC Convention Centre with Hotel” in the above said land through Public Private Partnership (the “PPP”) on [Design, Build, Finance, Operate and Transfer (the “DBFOT”)] basis, and has, therefore, decided to carry out the bidding process for selection of a private partner as the Bidder to whom the Project can be awarded. Brief particulars of the Project are as follows Name of the Project Project Area Estimated Project Cost (In Rs. Cr.) “AC Convention Centre with Hotel” 1.65 Acres plus 16.00 2.00 Acres of Greenbelt and parking
1.1.4 The Selected Bidder, who is either a company incorporated under the Companies Act, 1956/ 2013 or undertakes to incorporate a company as such, prior to execution of the concession agreement (the “Concessionaire”), shall be executing the Project as Designing, Engineering, Financing, Procurement, Construction, Operation, Maintenance, & transfer of the Project (under DBFOT) and in accordance with the provisions of a [long-term] concession agreement (the “Concession Agreement”) to be entered into between the Selected Bidder and the Authority in the form provided by the Authority as part of the Bidding Documents pursuant hereto.
1.1.5 The scope of work will broadly include design, build, finance of “AC Convention Centre along with hotel and the management, operation and maintenance thereof the facilities that are created under DBFOT basis
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1.1.6 The estimated Project cost (the “Project Cost”) has been specified above. The detailed assessment of actual costs, however, will have to be made by the Bidders themselves.
1.1.7 The Concession Agreement sets forth the detailed terms and conditions for grant of the concession to the Concessionaire, including the scope of the Concessionaire’s services and obligations (the “Concession”).
1.1.8 The statements and explanations contained in this RFP are intended to provide a better understanding to the Bidders about the subject matter of this RFP and should not be construed or interpreted as limiting in any way or manner the scope of services and obligations of the Concessionaire set forth in the Concession Agreement or the Authority’s rights to amend, alter, change, supplement or clarify the scope of work, to the Concession to be awarded pursuant to this RFP or the terms thereof or herein contained. Consequently, any omissions, conflicts or contradictions in the Bidding Documents including this RFP are to be noted, interpreted and applied appropriately to give effect to this intent, and no claims on that account shall be entertained by the Authority.
1.1.9 The Authority shall receive Bids pursuant to this RFP in accordance with the terms set forth in this RFP and other documents to be provided by the Authority pursuant to this RFP, as modified, altered, amended and clarified from time to time by the Authority (collectively, the “Bidding Documents”), and all Bids shall be prepared and submitted in accordance with such terms on or before the date for submission of Bids (the “Bid Due Date”).
1.2 Due Diligence by Bidders Bidders are expected to be fully conversant about the assignment and the local conditions before submitting the Bid by paying a visit to the Project Site, The document can be downloaded from the Official Website of the Authority(i.e.,) www.simhachalamdevasthanam.net and also from www.apeprocurement.gov.in
1.3. Brief Description of Bidding Process 1.3.1 The Authority has adopted a single-stage bidding process which includes both Technical and Financial bids evaluation (collectively referred to as the Bidding Process”) for selection of the Bidder for award of the Project, considering the size of the project and economic environment. Bidders shall submit their technical and financial bids simultaneously. The technical bids will be opened in the 1st instance. After their evaluation, the financial bids of those bidders who were found to be qualified only will be opened. 1.3.2 The bid processing fee is Rs 25,000/- (Rupees Twenty Five Thousand Only). Interested bidders can download the RFP document and submit it along with Demand Draft of Rs. 25,000/- issued by any of the Nationalised/ Scheduled Banks in India in favour of Executive Officer, Sri Varaha Laskhmi Narasimha Swamy Vari Devasthanam, payable at Visakhapatnam. The bid processing fee is non-refundable.
1.3.3 The bidder shall offer a Revenue Share to the Authority as a % (percentage) of Gross Revenue (the “Revenue Share”) during each year, out of minimum Gross Revenue
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assured by him, in the following format, from the 4th year till the end of concession period i.e., the 33rd year subject to minimum net assured revenue share of Rs 12.00 Lakhs per annum. The Revenue Share shall be indicated in % (percentage). The net Revenue Share amount offered by the respective bidders to the entire concession period will be taken into consideration for selection of bidders. Starting From Lasting till Min Gross Revenue Min Revenue Share Assured by Bidder to be quoted on (Rs Lakhs) Gross revenue (in terms of percentage) 0 to 2 years Construction Period 3rdYear Moratorium Period 4th Year 13th Year 14th Year 23rd Year 24th Year 33rd Year End of Concession period
The Project would be awarded to the Bidder offering the highest ‘Revenue Share’ till end of concession period (highest bidder) , subject to the fulfilling of other terms and conditions laid out in this RFP. The successful bidder/concessionaire will have to pay the Revenue Share to the Concessioning authority, at the percentage rate quoted by him out of the actual gross revenue received by them or out of the minimum gross revenue assured by them, whichever is higher. In addition to the Revenue Share quoted above, the Concessionaire shall pay to the Concessioning Authority, a Lease Rental of Rs. 28.75 lakhs per annum, calculated on the extent of Ac.1.65 and escalated at 10% for every 5 years, starting from the Appointed Date (i.e, the date of handing over of the site after signing the concession agreement.. A nominal rental of Rs 1.00 Lakh per acre with escalation of 10% every five years will be charged on the other extent of ac.2.00 which is specified as non-commercial area. The other terms of payment shall be as per the provisions of the Concession Agreement.
1.3.4 In the Bid Stage, the aforesaid short-listed Applicants, including their successors, (the “Bidders”, which expression shall, unless repugnant to the context, include the Members of the Consortium) are being called upon to submit their technical & financial offers (the “Bids”) in accordance with the terms specified in the Bidding Documents. The Bid shall be valid for a period of not more than 180 days from the Bid Due Date.
1.3.5 The Bidding Documents include the draft Concession Agreement for the Project which is enclosed along with this RFP. The Feasibility Report prepared by the consultants of the Authority is also enclosed. Subject to the provisions of Clause 1.3.4 the aforesaid documents and any addenda issued subsequent to this RFP Document, will be deemed to form part of the Bidding Documents.
1.3.6 A Bidder is required to deposit, along with its Bid, a bid security of Rs 16,00,000/-(
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Rupees Sixteen Lakhs only (the “Bid Security”), in the form of Demand Draft refundable in not 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 Concession Agreement. The Validity of demand draft shall not be less than 80 (eighty) days from the Bid Due Date, for the purposes of encashment by the Authority. The Bid shall be summarily rejected if it is not accompanied by the Bid Security. 1.3.7 During the Bid Stage, 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 Concession including implementation of the Project. 1.3.8 In this RFP, the term “Highest Bidder” shall mean the Bidder who is offering the highest “Revenue Share”. The concession period and other terms are pre- determined, as indicated in the draft Concession Agreement. Subject to the provisions of Clause1.3.3, the Project will be awarded to the Highest Bidder.
1.3.9 Bidder quoting the highest revenue share (Highest Bidder) shall be the Selected Bidder. The remaining Bidders shall be kept in reserve and may, in accordance with the process specified in Clause 1.3.3 of this RFP, be invited to match the Bid submitted by the Highest Bidder in case such Highest Bidder withdraws or is not selected/disqualified later for any reason. In the event that none of the other Bidders match the Bid of the Highest Bidder, the Authority may, in its discretion, either invite fresh Bids from the remaining Bidders or annul the Bidding Process.
1.3.10 Details of the process to be followed at the Bid Stage and the terms thereof are spelt out in this RFP.
1.3.11 Any queries or request for additional information concerning this RFP shall be submitted in writing by speed post/ courier/ special messenger and by e-mail so as to reach the officer designated in Clause1.5 by the specified date. The communication shall clearly bear the following identification/ title:
“Queries/Request for Additional Information: RFP for “AC Convention Centre with Hotel” Project.
1.4 Schedule of Bidding Process
The Authority shall endeavour to adhere to the following schedule:
S.No. Event Description Scheduled Date 1 Issue of RFP Document 07-02-2019 2 Last date for Receiving Queries 15-02-2019 3 Pre-Bid Meeting 11: 00 hrs 16-02-2019 4 Authority response to queries latest by 21-02-2019 5 ‘Bid Due Date’ 16:00 hrs 16-03-2019
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S.No. Event Description Scheduled Date 6 Receipt of Bid Processing Fees and Bid 16:00 hrs 16-03-2019 Security Deposit through Demand Draft along with One Hard copy of the Technical Bid. 7 Date and Time of Opening of Technical Bids 17:00 hrs 16-03-2019 8 Date and Time of Opening of Financial Bids Will be announced to shortlisted bidders 9 Validity of Bids 180 days 10 Letter of Award Within 15 days from the date of approval of selected bid 11 Signing of Concession Agreement Within 30 days from issue of LOA by duly submitting performance security guarantee 12 Execution of Lease Agreement 15 days from the date of signing of concession agreement by duly paying advance lease rentals of 6 months
1.5 Pre-Bid Conference
The date, time and venue of the Pre-Bid Conference shall be:
Date: 16-02-2019
Time: 11:00 Hrs
Venue : The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh Phones: 91-9618434343 & 91-8125420618 Email: [email protected] & [email protected]
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1.6 DATA SHEET
S.No Key Information Details
Project Details 1 Project Title Development of “AC Convention Centre with Hotel” at Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode.
2 Authority Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust
3 Project Site 3.65 acres open site at Chitradavari Thota with 1.65 acres falling in Survey No. 187 of Vepagunta village and 2.00 acres falling in Survey No.275 of Adavivaram village. Survey No. 275 of 2 acres of Adavivaram Village shall be under green belt zone and there should not be any construction or commercial activity thereon. 4 Minimum • Minimum Development Area of 69793 Sft which includes parking Development construction area of 11853 Sft. Obligations (MDOs) • Develop 2 marriage AC halls with adjustable partitions (43100 sft) • 40 hotel rooms with minimum each room area of 265 sft (36600 Sft including corridors and common areas) • Hotel Room Area : Room Area : 175 Sft; Bathroom Area: 90 sft. • Survey No. 275 of 2 acres of Adavivaram Village shall be under green belt zone and there should not be any construction or commercial activity thereon. • Developers shall be free to implement their own concept & design taking into consideration all the applicable Byelaws/Norms & Regulations as applicable on the Project site. • All Civil Constructions shall be Eco Friendly.
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5 Other Obligations / • Adopt Water Conservation, water recycling & reuse, rainwater Conditions harvesting, zero discharge of waste water and storm water; and also incorporate Energy efficient designs & utilities; • Under no circumstances shall these facilities be converted for any other commercial or residential or any other purposes other than Convention Centre with Hotel • Maintain high quality standards and services at the premises to visitors. • The Project shall be user friendly and provide eased access to differently abled persons to all the Project facilities in accordance with “Persons with Disabilities Act, 1995” with subsequent amendments and ‘UN Convention for Rights of Persons with Disabilities (UNCRPD). • All the applicable statutory approvals and clearances from the state, centre etc., is the responsibility of the Concessioner/Bidder. • Financing shall be arranged by Concessioner and Bidder • Liquor Sales and other non-religious activities have been prohibited to keep the sanctity of devasthanam and its environs. • The Authority will appoint an Independent Engineer for approval of plans and to monitor the construction works progress on quality aspects. The fees to independent engineer will be fixed by the successful bidder and Authority on mutual consensus basis and approved fees shall be paid by the successful bidder 6 Minimum Project The Minimum estimated Project Cost shall be Rs.16.0 Crores (Rupees Cost Sixteen Crores Only). However, there is no restriction on higher investment based on the Concessioner’s/Bidder’s market assessment subject to applicable development controls. (Project Cost includes the Pre-Construction and Construction Costs, Project Development Fees, Lease Rentals & Interest During Construction, Margin Money for Working Capital etc.)
7 Development The proposed development needs to be executed as per the Vizag Controls & Urban Development and National Building Code. Regulations
Implementation Structure 8 Implementation Public Private Partnership (PPP) Format
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9 Concession Format Design, Build, Finance, Operate and Transfer (“DBFOT”)
10 Institutional Formation of Special Purpose Company (SPC) under the Companies Structure for Act, 2013 by the Selected Bidder (Sole Bidder / Consortium) Implementation
11 Concession Period 33 Years (including Construction Period) from the date of execution of ‘Concession Agreement’. Additional tenure of 33 Years period will be considered on “Right of First Refusal” basis to the successful Bidder. 12 Lease Period 33 Years and co-terminus with the ‘Concession Period’.
13 Project Completion Shall be completed within two and half (2 ½ Years from the date of Period handing over possession of the project land including the Period’ for obtaining required Permissions & Approvals.
Eligibility Criteria
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Technical Criteria The Sole Bidder or any one of the Consortium Member shall meet one of the following Technical Criteria (Either 1 or 2) to meet the Technical Experience. 1. Tourism Infrastructure Projects: a) The Bidder / Consortium Member should have prior experience in Development / Construction of ‘MICE, Hotel and Hospitality Project’ in an area of not less than 1.00 Acre or with a Project Cost of not less than Rs.10.00 Crores, which is already completed and which is into the commercial operations as on the date of issue of this RFP; And b) The Bidder / Consortium Members should have minimum 2 Years experience in Operations & Management of similar ‘MICE, Hotel and Hospitality Project’ of the same magnitude during last 5 Years. (Or) Operations & Management of any ‘Tourism Infrastructure Project’ in an area of not less than 1 Acre or with a Project Cost of Rs.10.00 Crores during last 10 Years. (OR)
2. Core Infrastructure Project:
a) The Bidder/ or any one of the Consortium Members should have minimum 2 Years experience in Development / Construction of ‘Core Infrastructure Development Projects’ such as Highways, Expressways, Bridges, Tunnels, Power Plants, Ports, Airports, Metro Rail, IT Parks, Industrial Parks, Shopping Malls & Multiplexes, Commercial & Office Complexes, Townships & Residential Complexes, Super Specialty Hospitals, etc., having a ‘Project Cost’ of not less than Rs.32.00 Cr., or 200% of the proposed ‘Project Cost’, whichever is higher, which was commissioned during last 10 Years.
And b) The Bidder / any one of the Consortium Members should have minimum 3 Years experience in Operations & Management of ‘Core Infrastructure Project’ with a minimum Project Cost of Rs.32.00 Crores during last 10 Years. Note: ‘Previous Experience’ in similar ‘MICE, Hotel and Hospitality Project ’ and ‘Successful Track Record’ in ‘Tourism Infrastructure Projects’ in ‘Public Private Partnership’ (PPP) Mode carries more weightage in terms of Points in Technical Criteria Evaluation. Hence, formal Tie-ups in place with suitable Technical Partners will fetch more Points to the Bidders in Technical Criteria Evaluation.
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15 Financial Criteria The Bidder (Sole Bidder or Consortium Members together) shall have the following Financial Criteria for the submission of RFP. a) The Bidder / Consortium Members together Should have a minimum Average Annual Turnover of Rs.4.00 Crore (Rupees Four Crore only) or 25% of the proposed Project Cost, whichever is higher, in the past three Financial Years (For the Financial Years of 2015-16, 2016-17 & 2017-18 And b) The Bidder / Consortium Members together Should have a minimum Net-worth* of Rs.20.00 Crore (Rupees Twenty Crore only)) or 125% of the proposed Project Cost, whichever is higher, in the preceding Financial Year before the RFP Due Date, as on 31st March 2018, as per the Audited Annual Report for FY 2017- 18. {*Net-worth is (Subscribed and Paid-up Share Capital + Share Application Money + Reserves and Surplus) – (Revaluation Reserves + Miscellaneous Expenditure not written off + Deferred Revenue Expenditure + Deficit in P & L Account)}
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16 Qualifications The Bidder (in case of a Sole Bidder) / Consortium Member can draw through Affiliates upon the Technical Experience and Financial Capability of one or (If any) more of its Affiliates. In either case, the ownership relation between the Bidder and the Affiliate(s) must be explained. For purposes hereof, “Affiliate” means with respect to a specified Person, any Person which is a holding company or subsidiary of such specified Person, or any Person which directly or indirectly, (a) owns or controls such specified Person, (b) is owned or controlled by such specified Person, or (c) is owned or controlled by the same Person, who, directly or indirectly, owns or controls such specified Person. For the purposes of this Document, the terms "holding company" and "subsidiary" shall have the meaning ascribed to them under Section 4 of the Companies Act, 1956 / Section 2 (46) of the Companies Act 2013 and the term "control" shall mean: (a) control over the composition of majority of board of directors of a company; or (b) control of more than 50% (fifty percent) of the voting shares of such Person (c) and with respect to a Person which is not a company or corporation, the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise.
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17 Special Conditions a) The maximum number of Members in the Consortium shall not for a Consortium be more than three (3), including the Lead Member. (If any) b) The above Financial Criteria shall apply to the Consortium, as a whole. c) The Lead Member of the Consortium shall be required to commit to hold a minimum equity stake of not less than 35% in the Project SPV at all times during a period that shall not be less than five (5) Years from commercial operation Date (COD). Any other Constituent Member of the Consortium, who is neither Technical nor Financial Member, shall be required to commit to hold a minimum of 10% of equity in the Project SPV at all times during a period which shall not be less than five (5) Years from the date of COD. However, no change in the composition of the concessionaire firm shall he effected without prior approval of the Concessioning Authority. d) For evaluation of experience criteria, only such Projects would be considered for evaluation, which have been developed/ constructed/operated by the Constituent Member either on its own or as a lead Member of a Consortium/SPV Bid Conditions 18 Annual Lease The Annual Lease Rentals shall be payable from the date of execution Rentals of ‘Lease Agreement’ (the “Lease Commencement Date”). The Concessioner/Successful Bidder shall pay ‘Annual Lease Rentals’ to the Authority during the ‘Concession Period’ of 33 Years from the date of signing of ‘ Lease Agreement’ date. The ‘Annual Lease Rentals’ for the base Year is Rs.30.75 Lakhs,( i.e. 2% of Basic Market Value (BMV) of the land as per the Registers of concerned SRO (Sub Registrar Office) as on the date of issue of RFP [7986 Sq.Yds. @ Rs.18000 / Sq.Yd.] +Rs.2.00 lakhs for the land of Ac.2.00 located in Green belt area). The ‘Annual Lease Rentals’ shall be incremented by 10% every 6th year on the last lease rent paid, for the entire ‘Concession Period’. These ‘Annual Lease Rentals’ shall be paid on ‘Half Yearly’ basis in advance as per the terms stipulated in the RFP. Applicable taxes, including GST on the above shall also be paid by the Concessioner/Successful Bidder.
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19 Advance Lease Concessioner/Successful Bidder shall pay an interest free ‘Lease Rentals Rental Deposit’, an amount equivalent to six months Lease Rentals (of First Year) within 10 days from the issue of LoA and before signing of the ‘Concession Agreement’. The ‘Lease Rental Deposit’ payable initially by the Concessioner is Rs.15.375 Lakh. The Concessioner/ Successful Bidder shall further pay the Authority every ‘Year’ the ‘Annual Lease Rentals’ in advance at the starting of the ‘Year’. 20 Bid Parameter The bidder shall offer a Revenue Share to the Authority as a % (percentage) of Gross Revenue (the “Revenue Share”) during each year (or) out of minimum gross revenue assured by him, whichever is higher from fourth year onwards till end of concession period subject to minimum assured share of Rs 12.00 Lakhs per annum and the same shall be escalated every years. The Project would be awarded to the Bidder offering the highest ‘Revenue Share’ till end of concession period (highest bidder) , subject to the fulfilling of other terms and conditions laid out in this RFP.
The ‘Revenue Share’ payable to the Authority will be exempted for a period of three (3) Years from date of signing of ‘Concession Agreement’ whichever is earlier, as a ‘Moratorium Period’ to consolidate the ‘Revenue Streams’ of the Concessioner/Successful. ‘Revenue Share’ is payable annually till 33rd Year of the ‘Concession Period’ and as per the terms stipulated in the RFP. Applicable taxes, including GST on the above shall also be paid by the Concessioner/Successful Bidder. 21 Bid Validity 180 days from the date of Bid submission
22 Bid Processing Fee The Bidders will have to submit a Bid Processing Fee (Non-Refundable) of Rs.25,000/- (Rupees Twenty Five Thousand Only) in form of Demand Draft from a Nationalized/ Scheduled Bank (excluding Cooperative Banks) payable at Vishakhapatnam along with the RFP in favour of (Authority) and payable at Vishakhapatnam.
23 Bid Security Rs. 16.00 Lakhs (Rupees Sixteen Lakh Only) shall be in the form of Demand Draft drawn on any nationalized bank 24 Validity for Bid 180 days from the Bid Submission Date including claim period of 60 days. Security
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25 Performance ‘Bank Guarantee’ towards Performance Security for an amount of Guarantee Rs.80.00 Lakhs (Rupees Eighty lakhs Only) (5% of the minimum shall be submitted to the Authority within (for construction Estimated Project Cost) period) 30 days from the date of LoA in the format prescribed as part of this RFP. ‘Bank Guarantee’ will be released on achieving Project Completion. The validity of Performance Securities shall be 3 Years.
If the concessionaire failed to complete the project construction within the stipulated period of 2 ½ years, the performance Guarantee Security will be forfeited by the concessioning Authority.
26 Project Development Project Development Fee to be paid by the Successful Bidder Fee within 30 days from the date of issue of Letter of Award (LoA) is Rs.16.00 Lakhs (Rupees Sixteen lakhs Only) (1% of the Estimated Project Cost) plus applicable taxes payable to the Authority in the form of Demand Draft. (Project Development Fee is towards the Costs incurred by the Authority for carrying out required ‘Bid Process Management’ for the selection of Bidder, which includes the Cost of Consultants, Preparation of Bid Documents, Pre-feasibility Studies, Bid Promotion etc., and out of which 50% (0.5% of the Estimated Project Cost) is earmarked for the cost of “Project Monitoring & Supervision Services” payable to the Project Consultants & Advisors during the ‘Project Implementation Period’ till the Commissioning of the Project.)
27 ‘Bank Guarantee’ The Concessioner /Successful Bidder shall be required to provide a ‘Bank towards ‘Revenue Guarantee’ (BG) as security for the payment of the ‘Revenue Share’ on Share’ (for achieving Commercial Operation Date & before the release of operations period) construction period Performance Security. Such BG shall be equivalent to the ‘Revenue Share’ to be payable by the Selected Bidder for the 6th Year of ‘Concession Period’ and shall be valid till the end of the 6th Year of ‘Concession Period’. Thereafter, the Concessioner/Successful Bidder shall submit fresh BGs once in every three Years till the end of the ‘Concession Period’
Bid Submissions
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28 Bid Submissions Bids shall be submitted through e-bidding platform at www.apeprocurement.gov.in The demand draft for bid processing fees and bid security amount along with one self-attested hard copy of the Technical Bid shall be sent to The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh
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29 Technical Bid Bidders are required to submit Technical Bid in of the Bid submission Documents as detailed in RFP. Submission 1. Appendix I: Bid Covering Letter; 2. Scanned Copy of Bid Processing Fee - Demand Draft of INR. 25,000/-. 3. Appendix II: Power of Attorney for Lead Member of Consortium 4. Appendix III: Power of Attorney for signing of Bid 5. Appendix IV: Joint Bidding Agreement of Consortium Members; 6. Scanned Copy of Demand Draft of Rs 16.00 Lakhs (Rupees Sixteen Lakhs Only); 7. Appendix V: Statement of Legal Capacity; 8. Appendix VI: Letter of Undertaking; 9. Appendix VII: Letter of Commitment for Payments; 10. Signed RFP Document 11. Proofs of Capability Statement For Experience Criteria
1. Proof of Project Completion in case of Development/ Construction Experience Or
2. Proof of Operations & Management in case of Operations & Management Experience. For Financial Criteria
1. Audited Annual Accounts of last Three Financial Years. 2. Auditor’s Certificates regarding Financial Details.
The hard copy of the Technical bid and the demand draft for bid processing and bid security should reach the above address by bid due date as mentioned in the bidding schedule. In case of dispute between the documents submitted in the e-procurement site and the hard copy, documents submitted online will be considered.
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30 Financial Bid The Bidders shall be required to submit their Financial Bids through e bid platform in the format as provided in the e-procurement website.
Please note that bidders are supposed to submit the financial bids only on e-procurement site. The bids will be outrightly rejected if financial bids are found in Technical bids submitted either online or in Physical form. Signing of ‘Concession Agreement’ 31 Signing of Signing of ‘Concession Agreement’ shall be executed within 30 Days ‘Concession upon meeting the following LoA conditions: Agreement’ 1. Submission of irrevocable and unconditional ‘Performance Guarantee Security’ (‘Demand Draft) within 10 days of issue of LoA 2. Payment of ‘Project Development Fee’ of Rs.16 lakhs and Six months of ‘Lease Rental Deposit’ in accordance with the terms hereof and the LoA, within 10 days of issue of LoA 3. Incorporate, within 30 days of issue of LoA, a Special Purpose Vehicle (SPV) under the Companies Act, 2013 for exclusive implementation of this Project Other Details
32 Project Monitoring Technical Consultants shall be appointed by the Authority for Project & Supervision Supervision & Monitoring Services during Construction Period. during Construction However, the Consultancy Fee of Technical Consultants shall be Period reimbursed by the Concessioner/Successful Bidder to the Authority.
33 Review of Project A Techno-Economic Consultant / Chartered Accountant shall be during Operations appointed by the Authority to review the Operations of the Project and Accounts of the SPC for ascertaining the Gross Revenue.
Note: Amendments/Addendum/Corrigendum, to the RFP if any, shall be posted on the websites: www.apeprocurement.gov.in & www.simhachalamdevasthanam.net and also by way of paper notification in the same news paper in which the RFP notice was issued.
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2. INSTRUCTIONS TO BIDDERS
A GENERAL
2.1. General Terms of Bidding
For determining the Eligibility of the bidders to participate in this RFP, the following shall apply:
(a) The Bidder 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, legal person, or any combination of them with a formal intent to enter into an agreement or under an existing agreement to form a Consortium. A Consortium shall be eligible for consideration subject to the conditions set out in Clause C below. The legal entity i.e a society, association, trust or a partnership firm registered under relevant laws and a natural person shall not be a non-Hindu denominated entity.
(c) 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/ 2013 or Societies Registration Act, 1860 or Indian Trusts Act, 1882 (the “SPV”), to execute the Concession Agreement and implement the Project. In case the Bidder is a Consortium, it shall, in addition to forming an SPV, comply with the following additional requirements: i. Number of members in a consortium shall not exceed 3( three) ii. subject to the provisions of sub-clause (i) above, the Bid should contain the information required for each member of the Consortium; members of the Consortium shall nominate one member as the lead member (the “Lead Member”), who shall have an equity share holding of at least 35% (thirty five per cent) of the paid up and subscribed equity of the SPV. 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; iii. 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; iv. an individual Bidder cannot at the same time be member of a Consortium applying for the bid. Further, a member of a particular Bidder Consortium cannot be member of any other Bidder Consortium applying for the Bid; v. the members of a Consortium shall form an appropriate SPV to execute the Project, if awarded to the Consortium; vi. the members of the Consortium shall enter into a Joint Bidding Agreement, substantially in the form specified at Appendix-IV (the “Jt. Bidding Agreement”), for the purpose of making the Bid and submitting the Bid. The Jt. Bidding Agreement, to be submitted along with the Bid, shall, inter alia: a. convey the intent to form an SPV with shareholding/ ownership equity commitment(s) in accordance with this RFP, which would enter into the Concession Agreement and subsequently perform all the obligations of the Concessionaire in terms of the Concession Agreement, in case the concession to undertake the Project is awarded to the Consortium; b. clearly outline the proposed roles and responsibilities, if any, of each member;
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c. commit the minimum equity stake to be held by each member; d. commit that each of the members, whose experience will be evaluated for the purposes of this RFP, shall subscribe to 35% (thirty five per cent) or more of the paid up and subscribed equity of the SPV and shall further commit that each such member shall, for a period of 5 (five) years from the date of COD of the Project, hold equity share capital not less than: (i) 25% (twenty five per cent) of the subscribed and paid up equity share capital of the SPV; and (ii) 5% (five per cent) of the Estimated Project Cost specified in the Concession Agreement; e. include a statement to the effect that all members of the Consortium shall be liable jointly and severally for all obligations of the Concessionaire in relation to the Project in accordance with the Concession Agreement; and f. except as provided under this RFP, there shall not be any amendment to the Jt. Bidding Agreement without the prior written consent of the Authority.
2.1.1 No Bidder shall submit more than one Bid for the Project. A Bidder bidding 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. 2.1.2 Unless the context otherwise requires, the terms not defined in this RFP, but defined in the Feasibility Report shall have the meaning assigned thereto.
2.1.3 The Feasibility Report of the Project is being provided only as a preliminary reference document by way of assistance to the Bidders who are expected to carry out their own surveys, investigations and other detailed examination of the Project before submitting their Bids. Nothing contained in the Feasibility Report shall be binding on the Authority nor confer any right on the Bidders, and the Authority shall have no liability whatsoever in relation to or arising out of any or all contents of the Feasibility Report.
2.1.4 Notwithstanding anything to the contrary contained in this RFP, the detailed terms specified in the draft Concession Agreement shall have overriding effect; provided, however, that any conditions or obligations imposed on the Bidder hereunder shall continue to have effect in addition to its obligations under the Concession Agreement.
2.1.5 The Bid should be furnished in the format at Appendix-IX, clearly indicating the bid amount in both figures and words, in Indian Rupees, and signed by the Bidder’s authorised signatory. In the event of any difference between figures and words, the amount indicated in words shall be taken into account.
2.1.6 The Bid shall consist of [a revenue share,] to be quoted by the Bidder, as per the terms and conditions of this RFP and the provisions of the Concession Agreement.
2.1.7 The Bidder shall deposit a Bid Security of Rs. 16.00 Lakhs (Rupees Sixteen lakhs) in accordance with the provisions of this RFP, in the form of Demand Draft drawn on any nationalized bank
2.1.8 Where a demand draft is provided, its validity shall not be less than 80 (eighty) days from the Bid Due Date, for the purposes of encashment by the Authority. The Bid shall be summarily rejected if it is not accompanied by the Bid Security. The Bid Security shall
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be refundable not 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 Guarantee Security under the Concession Agreement.
2.1.9 The Bidder should submit a Power of Attorney as per the format at Appendix–III, authorizing the signatory of the Bid to commit the Bidder.
2.1.10 In case, the Bidder is a Consortium, the Members thereof should furnish a Power of Attorney in favour of the Lead Member in the format at Appendix–II.
2.1.11 Any conditional bid or any other stipulation contained in the Bid shall render the Bid liable to rejection as a non-responsive Bid.
2.1.12 The Bid and all communications in relation to or concerning the Bidding Documents and the Bid shall be in English language.
2.1.13 The documents including this RFP and all attached documents, provided by the Authority are and shall remain or become the property of the Authority and are transmitted to the Bidders solely for the purpose of preparation and the submission of a Bid in accordance herewith. Bidders 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 provisions of this Clause…. shall also apply mutatis mutandis to Bids and all other documents submitted by the Bidders, and the Authority will not return to the Bidders any Bid, document or any information provided along therewith.
2.1.14 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. In the event of disqualification, the Authority shall be entitled to forfeit and appropriate the Bid Security or Performance Security, as the case may be, as mutually agreed genuine pre-estimated loss and damage likely to be suffered and incurred by the Authority and not by way of penalty for, inter alia, the time, cost and effort of the Authority, including consideration of such Bidder’s proposal (the “Damages”), without prejudice to any other right or remedy that may be available to the Authority under the Bidding Documents and/ or the Concession Agreement or otherwise. Without limiting the generality of the above, 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; provided that this disqualification shall not apply in cases where the direct or indirect shareholding of a Bidder, its Member or an Associate thereof (or any shareholder thereof, as the case may be) in the other Bidder, its Member or Associate, is less than 5% (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 sub-section (72) of section 2 of the Companies Act, 2013.
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ii. a constituent of such Bidder is also a constituent of another Bidder; or
iii. such Bidder, its Member or any Associate thereof receives or has received any direct or indirect subsidy, grant, concessional loan or subordinated debt from any other Bidder, its Member or Associate, or has provided any such subsidy, grant, concessional loan or subordinated debt to any other Bidder, its Member or any Associate thereof; or such Bidder has the same legal representative for purposes of this Bid as any other Bidder; or 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 other’s information about, or to influence the Bid of either or each other; or such Bidder or any Associate thereof has participated as a consultant to the Authority in the preparation of any documents, design or technical specifications of the Project.
Explanation:
In case a Bidder is a Consortium, then the term Bidder as used in this Clause 2.1.14, shall include each Member of such Consortium.
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.
2.1.15 A Bidder shall be liable for disqualification and forfeiture of Bid Security if any legal, financial or technical adviser of the Authority in relation to the Project is engaged by the Bidder, its Members or any Associate thereof, as the case may be, in any manner for matters related to or incidental to such Project during the Bidding Process or subsequent to the (i) issue of the LOA or (ii) execution of the Concession Agreement. In the event any such adviser is engaged by the Selected Bidder or Concessionaire, as the case may be, after issue of the LOA or execution of the Concession Agreement for matters related or incidental to the Project, then notwithstanding anything to the contrary contained herein or in the LOA or the Concession Agreement and without prejudice to any other right or remedy of the Authority, including the forfeiture and appropriation of the Bid Security or Performance Security, as the case may be, which the Authority may have thereunder or otherwise, the LOA or the Concession Agreement, as the case may be, shall be liable to be terminated without the Authority being liable in any manner whatsoever to the Selected Bidder or Concessionaire for the same. 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 prior to the Application Due Date. Nor will this disqualification apply where
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such adviser is engaged after a period of 3 (three) years from the date of commercial operation of the Project.
2.1.16 This RFP is not transferable.
2.1.17 Any award of Concession pursuant to this RFP shall be subject to the terms of Bidding Documents.
2.2 Change in composition of the Consortium
2.2.1 The Lead Member of the Consortium shall be required to commit to hold a minimum equity stake of not less than 35% in the Project SPV at all times during a period that shall not be less than five (5) Years from commercial operation Date (COD). Any other Constituent Member of the Consortium, who is neither Technical nor Financial Member, shall be required to commit to hold a minimum of 10% of equity in the Project SPV at all times during a period which shall not be less than five (5) Years from the date of COD. However, no change in the composition of the concessionaire firm shall he effected without prior approval of the concessioning Authority.
2.3 Change in Ownership 2.3.1 By submitting the Bid, the Bidder acknowledges that it was pre-qualified and short-listed on the basis of Technical Capacity and Financial Capacity of those of its Consortium Members. There will be no change in Ownership without prior approval of the concessioning authority.
2.4 Cost of Bidding
The Bidders shall be responsible for all of the costs associated with the preparation of their Bids and their participation in the Bidding Process. The Authority 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
2.5.1 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.
2.5.2 It shall be deemed that by submitting a Bid, the Bidder has:
(a) made a complete and careful examination of the Bidding Documents; (b) received all relevant information requested from the Authority;
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(c) accepted the risk of inadequacy, error or mistake in the information provided in the Bidding Documents or furnished by or on behalf of the Authority relating to any of the matters referred to in Clause 2.5.1 above; (d) satisfied itself about all matters, things and information including matters referred to in Clause 2.5.1 hereinabove necessary and required for submitting an informed Bid, execution of the Project in accordance with the Bidding Documents and performance of all of its obligations thereunder; (e) acknowledged and agreed that inadequacy, lack of completeness or incorrectness of information provided in the Bidding Documents or ignorance of any of the matters referred to in Clause 2.5.1 hereinabove shall not be a basis for any claim for compensation, damages, extension of time for performance of its obligations, loss of profits etc. from the Authority, or a ground for termination of the Concession Agreement by the Concessionaire;
(f) acknowledged that it does not have a Conflict of Interest; and (g) agreed to be bound by the undertakings provided by it under and in terms hereof. 2.5.3 The Authority 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 RFP, RFQ, the Bidding Documents or the Bidding Process, including any error or mistake therein or in any information or data given by the Authority.
2.6 Verification and Disqualification
2.6.1 The Authority reserves the right to verify all statements, information and documents submitted by the Bidder in response to, the RFP or the Bidding Documents and the Bidder shall, when so required by the Authority, make available all such information, evidence and documents as may be necessary for such verification. Any such verification, or lack of such verification, by the Authority shall not relieve the Bidder of its obligations or liabilities hereunder nor will it affect any rights of the Authority thereunder. 2.6.2 The Authority reserves the right to reject any Bid and appropriate the Bid Security 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 Authority, the supplemental information sought by the Authority for evaluation of the Bid.
Such misrepresentation/ improper response shall lead to the disqualification of the Bidder. If the Bidder is a Consortium, then the entire Consortium and each Member may be disqualified / rejected. If such disqualification / rejection occurs after the Bids have been opened and the Highest Bidder gets disqualified / rejected, then the Authority reserves the right to:
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project or take any such measure as may be deemed fit in the sole discretion of the Authority, including annulment of the Bidding Process.
2.6.3 In case it is found during the evaluation or at any time before signing of the Concession Agreement or after its execution and during the period of subsistence thereof, including the Concession thereby granted by the Authority, 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 Concessionaire either by issue of the LOA or entering into of the Concession Agreement, and if the Selected Bidder has already been issued the LOA or has entered into the Concession 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 Authority to the Selected Bidder or the Concessionaire, as the case may be, without the Authority being liable in any manner whatsoever to the Selected Bidder or Concessionaire. In such an event, the Authority shall be entitled to forfeit and appropriate the Bid Security or Performance Security, as the case may be, as Damages, without prejudice to any other right or remedy that may be available to the Authority under the Bidding Documents and/ or the Concession Agreement, or otherwise.
B DOCUMENTS
2.7 Contents of the RFP
2.7.1 This RFP comprises the Disclaimer set forth hereinabove, the contents as listed below, and will additionally include any Addenda issued in accordance with Clause 2.9.
Invitation for Bids
Section 1 Introduction Section 2 Instructions to Bidders Section 3 Evaluation of Bids Section 4 Fraud and Corrupt Practices Section 5 Pre-Bid Conference Section 6 Miscellaneous
Appendices
Appendices I Bid Covering Letter II Power of Attorney for Lead Member of Consortium III Power of Attorney for Signing of Bid IV Joint Bidding Agreement of consortium members V Statement of Legal Capacity Letter Page 31
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VI Letter of Undertaking VII Letter of commitment for payments VIII Covering Letter for financial bid IX Format for financial bid
2.7.2 The draft Concession Agreement provided by the Authority as part of the Bidding Documents shall be deemed to be part of this RFP.
2.8 Clarifications
2.8.1 Bidders requiring any clarification on the RFP may notify the Authority in writing by speed post/ courier/ special messenger and by e-mail in accordance with Clause 1.2.10. They should send in their queries on or before the date mentioned in the Schedule of Bidding Process specified in Clause 1.3. The Authority shall endeavour to respond to the queries within the period specified therein, but no later than 15 (fifteen) days prior to the Bid Due Date. The responses will be sent by e-mail. The Authority will forward all the queries and its responses thereto, to all Bidders without identifying the source of queries.
2.8.2 The Authority shall endeavour to respond to the questions raised or clarifications sought by the Bidders. However, the Authority 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 the Authority to respond to any question or to provide any clarification.
2.8.3 The Authority may also on its own motion, if deemed necessary, issue interpretations and clarifications to all Bidders. All clarifications and interpretations issued by the Authority shall be deemed to be part of the Bidding Documents. Verbal clarifications and information given by Authority or its employees or representatives shall not in any way or manner be binding on the Authority.
2.9 Amendment of RFP
2.9.1 At any time prior to the Bid Due Date, the Authority may, for any reason, whether at its own initiative or in response to clarifications requested by a Bidder, modify the RFP by the issuance of Addenda.
2.9.2 Any Addendum issued hereunder will be in writing and shall be notified in the official website of the Authority www.simhachalamdevasthanam.net /www.apeprocurement.gov.in and also by way of paper notification in the same news paper in which the RFP notice was issued.
2.9.3 In order to afford the Bidders a reasonable time for taking an Addendum into account, or for any other reason, the Authority may, in its sole discretion, extend the Bid Due Date.
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C. PREPARATION AND SUBMISSION OF BIDS
2.10 Format and Signing of Bid
2.10.1 The Bidder shall provide all the information sought under this RFP. The Authority will evaluate only those Bids that are received in the required formats and complete in all respects.
2.10.2 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 initialed. All the alterations, omissions, additions or any other amendments made to the Bid shall be initialed by the person(s) signing the Bid.
2.11 Scanning and Uploading of Bids
2.11.1 The Bidder shall submit the Bid through e-bidding platform
2.11.2 The documents accompanying the Bid shall include:
(a) Power of Attorney for signing of Bid in the format at Appendix–III;
(b) If applicable, the Power of Attorney for Lead Member of Consortium in the format at Appendix–II; and
2.11.3 The bid and all supported documents shall be uploaded to
www.apeprocurement.gov.in
2.11.4 If the documents are not signed and uploaded as instructed above, the Authority will not be responsible for such omissions on the part of bidders
2.12 Bid Due Date
2.12.1 Bids should be submitted before 16:00 hours IST on the Bid Due Date at the address provided in Clause 2.11.3 in the manner and form as detailed in this RFP. The Bid Processing Fees and Bid Security amount by way of Demand Draft shall be received on or before as given in Clause 1.4. The demand drafts shall be sent to the address as given in Clause 1.5
2.12.2 The Authority may, in its sole discretion, extend the Bid Due Date by issuing an Addendum in accordance with Clause 2.9 uniformly for all Bidders.
2.13 Late Bids
Bids received by the Authority after the specified time on the Bid Due Date shall not be
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eligible for consideration and shall be summarily rejected.
2.14 Contents of the Bid
2.14.1 The Bid shall be furnished in the format at Appendix–IX and shall consist of a Revenue Share to be quoted by the Bidder. The Bidder shall specify to undertake the Project in accordance with this RFP and the provisions of the Concession Agreement.
2.14.2 Generally, the Project will be awarded to the Highest Bidder.
2.14.3 The opening of Bids and acceptance thereof shall be substantially in accordance with this RFP.
2.14.4 The proposed Concession Agreement shall be deemed to be part of the Bid.
2.15 Modifications/ Substitution/ Withdrawal of Bids
2.15.1 Any alteration/ modification in the Bid or additional information supplied subsequent to the Bid Submission, unless the same has been expressly sought for by the Authority, shall be disregarded.
2.16 Rejection of Bids
2.16.1 Notwithstanding anything contained in this RFP, the Authority reserves the right to reject any Bid and to annul the Bidding Process and reject all Bids at any time without any liability or any obligation for such acceptance, rejection or annulment, and without assigning any reasons therefor. In the event that the Authority rejects or annuls all the Bids, it may, in its discretion, invite all eligible Bidders to submit fresh Bids hereunder.
2.16.2 The Authority reserves the right not to proceed with the Bidding Process at any time, without notice or liability, and to reject any Bid without assigning any reasons.
2.17 Validity of Bids
The Bids shall be valid for a period of not more than 180 (one hundred and eighty) days from the Bid Due Date. The validity of Bids may be extended by mutual consent of the respective Bidders and the Authority.
2.18 Confidentiality
Information relating to the examination, clarification and evaluation shall not be disclosed to any person who is not officially concerned with the process or is not a retained professional advisor advising the Authority in relation to, or matters arising out of, or concerning the Bidding Process. The Authority 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. The Authority 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
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statutory entity and/ or the Authority or as may be required by law or in connection with any legal process.
2.19 Correspondence with the Bidder
Save and except as provided in this RFP, the Authority shall not entertain any correspondence with any Bidder in relation to acceptance or rejection of any Bid.
D. BID SECURITY
2.20 Bid Security
2.20.1 The Bidder shall furnish as part of its Bid, a Bid Security referred to in Clauses 2.1.7 and 2.1.8 hereinabove in the form of Demand Draft issued by a Scheduled Bank in India, drawn in favour of the Authority and payable at Visakhapatnam. The Authority shall not be liable to pay any interest on the Bid Security deposit so made and the same shall be interest free.
2.20.2 Any Bid not accompanied by the Bid Security shall be summarily rejected by the Authority as non-responsive. 2.20.3 Save and except as provided in Clauses 1.2.4 and 1.2.5 above, the Bid Security of unsuccessful Bidders will be returned by the Authority, without any interest, as promptly as possible on acceptance of the Bid of the Selected Bidder or when the Bidding process is cancelled by the Authority, and in any case within 60 (sixty) days from the Bid Due Date. Where Bid Security has been paid by demand draft, the refund thereof shall be in the form of an account payee demand draft in favour of the unsuccessful Bidder(s). Bidders may by specific instructions in writing to the Authority give the name and address of the person in whose favour the said demand draft shall be drawn by the Authority for refund, failing which it shall be drawn in the name of the Bidder and shall be mailed to the address given on the Bid. IF it is in the name of invidual (s), NoC from other members of the agency or consortium are to be provided.
2.20.4 The Selected Bidder’s Bid Security will be returned, without any interest, upon the Concessionaire signing the Concession Agreement and furnishing the Performance Guarantee Security in accordance with the provisions thereof. The Authority may, at the Selected Bidder’s option, adjust the amount of Bid Security in the amount of Performance Guarantee Security to be provided by him in accordance with the provisions of the Concession Agreement.
2.20.5 The Authority shall be entitled to forfeit and appropriate the Bid Security as Damages inter alia in any of the events specified in Clause 2.20.6 herein below. The Bidder, by submitting its Bid pursuant to this RFP, shall be deemed to have acknowledged and confirmed that the Authority will suffer loss and damage on account of withdrawal of its Bid or for any other default by the Bidder during the period of Bid validity as specified in this RFP. No relaxation of any kind on Bid Security shall be given to any Bidder.
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2.20.6 The Bid Security shall be forfeited as Damages without prejudice to any other right or remedy that may be available to the Authority under the Bidding Documents and/ or under the Concession Agreement, or otherwise, if
(a) a Bidder submits a non-responsive Bid;
(b) a Bidder engages in a corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice as specified in Clause 4 of this RFP;
(c) Bidder withdraws its Bid during the period of Bid validity as specified in this RFP and as extended by mutual consent of the respective Bidder(s) and the Authority;
(d) the Selected Bidder fails within the specified time limit -
(i) to sign and return the duplicate copy of LOA; or (ii) to sign the Concession Agreement; or (iii) to furnish the Performance Security within the period prescribed therefor in the Concession Agreement.
(e) the Selected Bidder, having signed the Concession Agreement, commits any breach thereof prior to furnishing the Performance Security.
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3. EVALUATION OF BIDS
3.1 Opening and Evaluation of Bids
3.1.1 The Authority shall open the Bids at 17.00 hours on the Bid Due Date
3.1.2 The Authority will subsequently examine and evaluate the Bids in accordance with the provisions set out in this Section 3.
3.1.3 To facilitate evaluation of Bids, the Authority may, at its sole discretion, seek clarifications in writing from any Bidder regarding its Bid.
3.2 Tests of responsiveness
3.2.1 Prior to evaluation of Bids, the Authority shall determine whether each Bid is responsive to the requirements of this RFP. A Bid shall be considered responsive if:
a) it is received as per the format at Appendix–I; it is received by the Bid Due Date including any extension thereof pursuant to Clause 2.12.2;it is signed, scanned and uploaded as stipulated in Clauses 2.10 and 2.11; b) it is accompanied by the Bid Security as specified in Clause 2.1.7; c) it is accompanied by the Power(s) of Attorney as specified in Clauses 2.1.9 and 2.1.10, as the case may be; d) it contains all the information (complete in all respects) as requested in this RFP and/or Bidding Documents (in formats same as those specified); e) it does not contain any pre-condition; f) it is not non-responsive in terms hereof. g) it contains the Bid process fee and h) it is not in violation of terms hereof.
3.2.2 The Authority 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 Authority in respect of such Bid. Provided, however, that the Authority may, in its discretion, allow the Bidder to rectify any infirmities or omissions if the same do not constitute a material modification of the Bid.
3.3 Selection of Bidder
3.3.1 Subject to the provisions of Clause 2.16.1, the Bidder whose Bid is adjudged as responsive in terms of Clause 3.2.1 and who quotes the highest revenue share to the Authority, shall ordinarily be declared as the selected Bidder (the “Selected Bidder”). In the event that the Authority rejects or annuls all the Bids, it may, in its discretion, invite all eligible Bidders to submit fresh Bids hereunder.
3.3.2 In the event that two or more Bidders quote the same amount of [revenue share] (the “Tie Bidders”), the Authority shall identify the Selected Bidder with more project cost
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and highest revenue share. In case of further tie, the Authority 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.
3.3.3 In the event that the Highest Bidder withdraws or is not selected for any reason in the first instance (the “first round of bidding”), the Authority 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.
3.3.4 In the event that no Bidder offers to match the Highest Bidder in the second round of bidding as specified in Clause 3.3.3, the Authority may, in its discretion, invite fresh Bids (the “third round of bidding”) from all Bidders except the 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 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.
3.3.5 After selection, a Letter of Award (the “LOA”) shall be issued, in duplicate, by the Authority to the Selected Bidder and the Selected Bidder shall, within 7 (seven) Working 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, the Authority may, unless it consents to extension of time for submission thereof, appropriate the Bid Security of such Bidder as Damages on account of failure of the Selected Bidder to acknowledge the LOA, and the next eligible Bidder may be considered. 3.3.6 After acknowledgement of the LOA as aforesaid by the Selected Bidder, it shall cause the Concessionaire to execute the Concession Agreement within the period prescribed in Clause 1.3. The Selected Bidder shall not be entitled to seek any deviation, modification or amendment in the Concession Agreement.
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3.4 Eligibility and Evaluation Criteria S. Technical & Financial Criteria along with Conceptual Plan & Business Maximum No. Model Points 1. The Bidder / Consortium Member should have prior experience in 10 Points Development / Construction of ‘MICE, Hotel and Hospitality Project’ in an area of not less than 2.00 Acres or with a Project Cost of not less than Rs.16.00 Crores, which is already completed and which is into the commercial operations as on the date of issue of this RFP 2. The Bidder / Consortium Member should have minimum 2 Years 10 Points experience in Operations & Management of similar ‘MICE, Hotel and Hospitality Project’ of the same magnitude during last 5 Years. (Or) Operations & Management of any ‘Tourism Infrastructure Project’ in an area of 2 Acres or with a Project Cost of Rs.16.00 Crores during last 10 Years. 3. The Bidder / Consortium Member should have minimum 2 Years 10 Points experience in Development / Construction of ‘Core Infrastructure Development Projects’ such as Highways, Expressways, Bridges, Tunnels, Power Plants, Ports, Airports, Metro Rail, IT Parks, Industrial Parks, Shopping Malls & Multiplexes, Commercial & Office Complexes, Townships & Residential Complexes, Super Specialty Hospitals, etc., having a ‘Project Cost’ of not less than Rs.32.00 Cr., or 200% of the proposed ‘Project Cost’, whichever is higher, which was commissioned during last 10 Years.. 4. The Bidder / Consortium Member should have minimum 3 Years 10 Points experience in Operations & Management of ‘Core Infrastructure Project’ with a minimum Project Cost of Rs.32.00 Crores during last 10 Years 5. The Bidder / Consortium Member ‘Previous Experience’ in similar 10 Points projects ’ or entertainment project 6. The Bidder / Consortium Member ‘Successful Track Record’ in ‘Similar 10 Points Projects’ in ‘Public Private Partnership’ (PPP) Mode 7 The Bidder / Consortium Members together Should have a minimum 10 Points Average Annual Turn-Over of Rs 4.00 Cr (Rupees Four Crore only) or 25% of the proposed Project Cost, whichever is higher, in the past three Financial Years (For the Financial Years of 2015-16; 2016-17 & 2017-18). 8 The Bidder / Consortium Members together Should have a minimum 10 Points Net-worth* of Rs 20.00 Cr (Rupees Twenty Crore only or 125% of the proposed Project Cost, whichever is higher, in the preceding Financial Year before the RFP Due Date, as on 31st March 2018, as per the Audited Annual Report for FY 2017-18 9 Presentation on the proposed ‘Conceptual Plan’ to develop on 10 Points proposed project
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10 Presentation on the proposed ‘Business Model’ with ‘Financial 10 Points Projections & Indicators’ for the ‘Project Viability & Financial Feasibility’ for the “proposed project TOTAL POINTS 100 Points
The bids of only those bidders who have secured a minimum of 60 points in the above said evaluation will be considered and the financial bids shall be opened only for qualified bidders.
3.5 Contacts during Bid Evaluation
Bids shall be deemed to be under consideration immediately after they are opened and until such time the Authority makes official intimation of award/ rejection to the Bidders. While the Bids are under consideration, Bidders and/ or their representatives or other interested parties are advised to refrain, save and except as required under the Bidding Documents, from contacting by any means, the Authority and/ or their employees/ representatives on matters related to the Bids under consideration.
3.6 Bid Parameter
The Bid shall comprise offering highest revenue on the total gross revenue generated each year and to be quoted by the Bidder in accordance with the provisions of the Concession Agreement. The Bidder who offers the highest revenue, shall ordinarily be the Selected Bidder.
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4. FRAUD AND CORRUPT PRACTICES
4.1 The Bidders and their respective officers, employees, agents and advisers shall observe the highest standard of ethics during the Bidding Process and subsequent to the issue of the LOA and during the subsistence of the Concession Agreement. Notwithstanding anything to the contrary contained herein, or in the LOA or the Concession Agreement, the Authority may reject a Bid, withdraw the LOA, or terminate the Concession Agreement, as the case may be, without being liable in any manner whatsoever to the Bidder or Concessionaire, as the case may be, if it determines that the Bidder or Concessionaire, as the case may be, 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. In such an event, the Authority shall be entitled to forfeit and appropriate the Bid Security or Performance Security, as the case may be, as Damages, without prejudice to any other right or remedy that may be available to the Authority under the Bidding Documents and/ or the Concession Agreement, or otherwise.
4.2 Without prejudice to the rights of the Authority under Clause 4.1 hereinabove and the rights and remedies which the Authority may have under the LOA or the Concession Agreement, or otherwise if a Bidder or Concessionaire, as the case may be, is found by the Authority 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, or after the issue of the LOA or the execution of the Concession Agreement, such Bidder or Concessionaire shall not be eligible to participate in any tender or RFP issued by the Authority during a period of 2 (two) years from the date such Bidder or Concessionaire, as the case may be, is found by the Authority to have directly or indirectly or through an agent, engaged or indulged in any corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive practices, as the case may be.
4.3 For the purposes of this Clause 4, 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 Authority 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 Concession Agreement or arising therefrom, 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 Authority, shall be deemed to constitute influencing the actions of a person connected with the Bidding Process); or (ii) save and except as permitted under the Clause 2.1.15 of this RFP, engaging in any manner whatsoever, whether during the Bidding Process or after the issue of the LOA or after the execution of the
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Concession Agreement, as the case may be, any person in respect of any matter relating to the Project or the LOA or the Concession Agreement, who at any time has been or is a legal, financial or technical adviser of the Authority 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;
“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;
“undesirable practice” means (i) establishing contact with any person connected with or employed or engaged by the Authority 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
“restrictive practice” means forming a cartel or arriving at any understanding or arrangement among Bidders with the objective of restricting or manipulating a full and fair competition in the Bidding Process.
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5. PRE-BID CONFERENCE
5.1 Pre-Bid Conference(s) of the Bidders shall be convened at the designated date, time and place. A maximum of two representatives of each Bidder shall be allowed to participate on production of authority letter from the Bidder.
5.2 During the course of Pre-Bid Conference(s), the Bidders will be free to seek clarifications and make suggestions for consideration of the Authority. The Authority shall endeavour 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.
6. MISCELLANEOUS
6.1 The Bidding Process shall be governed by, and construed in accordance with, the laws of India and the Courts in the State in which the Authority has its headquarters shall have exclusive jurisdiction over all disputes arising under, pursuant to and/ or in connection with the Bidding Process.
6.2 The Authority, 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) retain any information and/ or evidence submitted to the Authority by, on behalf of, and/ or in relation to any Bidder; and/ or
(d) 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.
6.3 It shall be deemed that by submitting the Bid, the Bidder agrees and releases the Authority, 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, pursuant hereto and/ or in connection with the Bidding Process and waives, to the fullest extent permitted by applicable laws, 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 Bid Covering Letter Date:
To,
The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh Phones: 91-9618434343 & 91-8125420618 Email: [email protected] & [email protected]
Sub: Bid for development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode.
Dear Sir,
With reference to your RFP document of Reference No. ______dated ………….., I/we, having examined the Bidding Documents and understood their contents, hereby submit my/our Bid for the aforesaid Project. 1. The Bid is unconditional and unqualified. 2. I/ We acknowledge that the Authority will be relying on the information provided in the Bid and the documents accompanying the Bid for selection of the Concessionaire for the aforesaid Project, and we certify that all information provided therein is true and correct; nothing has been omitted which renders such information misleading; and all documents accompanying the Bid are true copies of their respective originals. 3. This statement is made for the express purpose of our selection as Concessionaire for the [development, construction, operation and maintenance] of the aforesaid Project. 4. I/ We shall make available to the Authority any additional information it may find necessary or require to supplement or authenticate the Bid. 5. I/ We acknowledge the right of the Authority 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 authority or a judicial pronouncement or arbitration award, nor been expelled from any project or contract by any public authority nor have had any contract terminated by any public authority for breach on our part. 7. I/ We declare that:
(a) I/ We have examined and have no reservations to the Bidding Documents,
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including any Addendum issued by the Authority; and
(b) I/ We do not have any conflict of interest in accordance with Clauses 2.1.14 and 2.1.15 of 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 Clause 4.3 of the RFP document, in respect of any tender or request for proposals issued by or any agreement entered into with the Authority 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 4 of the RFP, 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; and
(e) the undertakings given by us along with the Application in response to the RFP for the Project were true and correct as on the date of making the Application and are also true and correct as on the Bid Due Date and I/we shall continue to abide by them. 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 Bidders to Bid for the Project, without incurring any liability to the Bidders, in accordance with Clause 2.16 of the RFP document. 9. I/ We believe that we/ our Consortium satisfy(s) the Net Worth criteria and meet(s) the requirements as specified in the RFP document. 10. I/ We declare that we/ any Member of the Consortium, or our/ its Associates are not a Member of a/ any other Consortium submitting a Bid for the Project. 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 authority 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. 13. I/ We further certify that no investigation by a regulatory authority is pending either against us or against our Associates or against our CEO or any of our directors/ managers/ employees.
14. 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 the Authority of the same immediately.
15. I/ We acknowledge and undertake that the members of our Consortium shall for a period of 5 (five) years from the date of commercial operation of the Project, hold equity
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share capital not less than: (i) 35% (thirty five per cent) of the subscribed and paid-up equity of the Concessionaire; and (ii) 5% (five per cent) of the Total Project Cost specified in the Concession Agreement. We further agree and acknowledge that the aforesaid obligation shall be in addition to the obligations contained in the Concession Agreement in respect of Change in Ownership.
16. I/ We acknowledge and agree that in the event of a change in control of an Associate whose Technical Capacity and/ or Financial Capacity was taken into consideration for the purposes of short-listing and pre-qualification under and in accordance with the RFP, I/We shall inform the Authority forthwith along with all relevant particulars and the Authority may, in its sole discretion, disqualify our Consortium or withdraw the Letter of Award, as the case may be. I/We further acknowledge and agree that in the event such change in control occurs after signing of the Concession Agreement , it would, notwithstanding anything to the contrary contained in the Agreement, be deemed a breach thereof, and the Concession Agreement shall be liable to be terminated without the Authority being liable to us in any manner whatsoever.
17. I/ We hereby irrevocably waive any right or remedy which we may have at any stage at law or howsoever otherwise arising to challenge or question any decision taken by the Authority 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.
18. In the event of my/ our being declared as the Selected Bidder, I/we agree to enter into a Concession 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.
19. I/ We have studied all the Bidding Documents carefully .We understand that except to the extent as expressly set forth in the Concession Agreement, we shall have no claim, right or title arising out of any documents or information provided to us by the Authority or in respect of any matter arising out of or relating to the Bidding Process including the award of Concession.
20. I/ We offer a Bid Security of Rs 16,00,000 (Rupees Sxiteen Lakhs only) to the Authority in accordance with the RFP Document.
21. The Bid Security in the form of a Demand Draft drawn on ______bank, dated ______is being submitted by us in the office of the Authority.
22. The documents accompanying the Bid, as specified in Clause 2.11.2 of the RFP, have been submitted herewith
23. 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 / Concession is not awarded to me/us or our Bid is not opened or rejected. 24. The revenue share has been quoted by me/us after taking into consideration all the terms and conditions stated in the RFP, Draft Concession Agreement, our own estimates of
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Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in
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costs and after a careful assessment of the site and all the conditions that may affect the project cost and implementation of the Project. 25. I/ We agree and undertake to abide by all the terms and conditions of the RFP document. 26. We, the Consortium Members agree and undertake to be jointly and severally liable for all the obligations of the Concessionaire under the Concession Agreement 27. I/ We shall keep this offer valid for 180 (one hundred and eighty) days from the Bid Due Date specified in the RFP. 28. I/ We hereby submit the following Bid for undertaking the aforesaid Project in accordance with the Bidding Documents , Concession Agreement and as per Financial Bid format
In witness thereof, I/we submit this Bid under and in accordance with the terms of the RFP document.
Yours faithfully,
Date: Place: Name of the Bidder:
Name and Designation of the Authorised Signatory:
Signature of the Authorised signatory:
Seal of the Bidder/Lead Firm
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`DETAILS OF THE BIDDER 1 (a) Name of the Firm / Company: (b) Sole Bidder / Lead Member of the Consortium? (c) Legal Status: (Public Limited / Private Limited / Inc. / LLC / Partnership / Proprietorship / Any Other) (d) Registered / Corporate Office Address:
(e) Phone Nos.:
(f) Fax Nos. (g) Mail Id: (h) Website: (i) Date of Incorporation / Registration (j) Commencement of Business: (k) PAN Card Details: (l) GST Details: 2 Brief description of the Company / Firm including details of its Main Lines of Business: 3 Proposed Role and Responsibilities in this Project: 4 Details of the person who will act as the Point of Contact / Communication for the Authority: (a) Name: (b) Designation: (c) Company: (d) Address:
(e) Phone No.: (f) Fax No.: (g) E Mail Id:
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4 Particulars of Authorised Signatory of the Bidder: (a) Name: (b) Designation: (c) Address: (d) Phone No.: (e) Fax No.: (f) E Mail Id: 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 Joint Bidding Agreement should be attached to the Application.
(c) Information regarding Role of each Member should be provided as per the Table below: (i) Role of each Member & their Equity Holding in the proposed SPV: Sl. Name of Member Role* % of Equity in No. Consortium
1
2
3 (ii) The following information shall also be provided for each Member of the Consortium: Name of Bidder / Member of Consortium:…………………………………………………………………………………….. Sl. Criteria Yes No No. 1. Has the Bidder / Constituent of the Consortium been barred by any Central/ State Govt., or any entity controlled by them, from participating in any Project. 2. If the answer to 1 is yes, does the bar subsist as on the date of Application? 3. Has the Bidder / Constituent of the Consortium paid liquidated damages of more than 5% of the contract value in a contract due to delay or has been penalized due to any other reason in relation to execution of contract, in the last three years? (iii) A statement by the Bidder and each of the members of its Consortium (where applicable) disclosing material non-performance or contractual noncompliance in past projects, contractual disputes and litigation / arbitration in the recent past is given below (Attach extra sheets, if necessary).
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Request for Proposal for Development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in
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APPENDIX–II
Power of Attorney for Lead Member of Consortium (Refer Clause 2.1.10) On a Non-Judicial Stamp Paper of Rs. 100 duly attested by notary public)
Whereas the ………………………. (the “Authority”) has invited bids for the …………………………...... Project (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 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 authority 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 …………………, M/s. ……………………, 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”) and 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 Concession/ 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 submission of its bid for the Project, including but not limited to signing and submission of all applications, bids and other Documents and writings, accept the Letter of Award, 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 Authority, 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 ‘Concession Agreement’ is entered into with the Authority.
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
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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.
IN WITNESS WHEREOF WE THE PRINCIPALS ABOVE NAMED HAVE EXECUTED THIS POWER OF ATTORNEY ON THIS ……………… DAY OF ………….., 20.…
For ……………………... (Signature, Name & Title)
For …………...... (Signature, Name & Title)
For ……………………… (Signature, Name & Title)
(Executants) (To be executed by all the Members of the Consortium)
Witnesses:
1.
2.
Notes: ƒ 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.
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ƒ 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. ƒ For a Power of Attorney executed and issued overseas, the Document will also have to be legalised by the Indian Embassy and notarised in the jurisdiction where the Power of Attorney is being issued. However, the Power of Attorney provided by Bidders from countries that have signed the Hague Legislation Convention 1961 are not required to be legalised by the Indian Embassy if it carries a conforming Appostille certificate.
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‘Vepagunta village’ on DBFOT Basis in PPP Mode
APPENDIX–III
Power of Attorney for signing of Bid (Refer Clause 2.1.9)
On a Non-Judicial Stamp Paper of Rs. 100 duly attested by notary public
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 the ……………………………… Project proposed or being developed by the ………………………………… (the “Authority”) including but not limited to signing and submission of all applications, bids and other Documents and writings, participate in Bidders' and other conferences and providing information / responses to the Authority, representing us in all matters before the Authority signing and execution of all contracts including the ‘Concession Agreement’ and undertakings consequent to acceptance of our bid, and generally dealing with the Authority 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 ‘Concession Agreement’ with the Authority.
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 …………………….., 20.….. For……………………………..
(Signature, Name, Designation and Address)
Witnesses:
1.
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2.
Accepted
Notarised
(Signature, Name, Designation 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. ▪ For a Power of Attorney executed and issued overseas, the Document will also have to be legalised by the Indian Embassy and notarised in the jurisdiction where the Power of Attorney is being issued. However, the Power of Attorney provided by Bidders from countries that have signed the Hague Legislation Convention 1961 are not required to be legalised by the Indian Embassy if it carries a conforming Appostille certificate.
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‘Vepagunta village’ on DBFOT Basis in PPP Mode
APPENDIX-IV
JOINT BIDDING AGREEMENT OF CONSORTIUM MEMBERS
(In case the Bidder being a Consortium)
(On a Non-Judicial Stamp Paper of Rs.100 duly attested by notary public)
THIS JOINT BIDDING AGREEMENT is entered into on this the ………… day of ...... 20…
AMONGST
1. ……………………………………., a company incorporated under the Companies Act, 1956/2013 (or) a registered firm vide registration no. …………………….. dated …………………, by the …………………….. (Registration Authority) 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. ……………………………………., a company incorporated under the Companies Act, 1956/2013 (or) a registered firm vide registration no. …………………….. dated …………………, by the …………………….. (Registration Authority) 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. ……………………………………., a company incorporated under the Companies Act, 1956/2013 (or) a registered firm vide registration no. …………………….. dated …………………, by the …………………….. (Registration Authority) 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,
______(Authority), represented by the ______, and having its principal office at “______Andhra Pradesh ______” (hereinafter referred to as the “Authority”, which expression shall, unless repugnant to the context or meaning thereof, include its administrators, successors and assigns) has invited proposals (the Proposals”) by its ‘Request for Proposal’ No. ………… dated ………… (the “RFP”) for the selection of bidders for Development of ……………………………… Project at ‘______in Andhra Pradesh (the
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“Project”) through Public Private Partnership (PPP) Mode. A. 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 B. 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 RFP. NOW IT IS HEREBY AGREED as follows:
• Definitions and Interpretations In this Agreement, the capitalised terms shall, unless the context otherwise requires, have the meaning ascribed thereto under the RFP.
• Consortium The Parties do hereby irrevocably constitute a consortium (the “Consortium”) for the purposes of jointly participating in the Bidding Process for the Project. 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.
• Covenants The Parties hereby undertake that in the event the Consortium is declared as the selected Bidder and awarded the Project, it shall incorporate a Special Purpose Vehicle (the “SPV”) under the Indian Companies Act, 2013 for entering into a Concession Agreement with the Authority and for performing all its obligations as the Concessionaire in terms of the Concession Agreement for the Project.
• 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 Appointed Date under the Concession Agreement when all the obligations of the SPV shall become effective;
b) Party of the Second Part shall be the ……………………...... Member of the Consortium
c) Party of the Third Part shall be the …………………………….. Member of the Consortium; and
• The roles and responsibilities of the Members of the Consortium shall be as follows: a. The Party of the First Part (Lead Member) shall be responsible for:
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(i)
(ii)
(iii)
b. The Party of the Second Part shall be responsible for:
(i)
(ii)
(iii)
c. The Party of the Second Part shall be responsible for:
(i)
(ii)
(iii)
• 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 Concession Agreement
• Shareholding in the SPV a. The Parties agree that the proportion of shareholding among the Parties in the SPV shall be as follows: 1. First Party: 2. Second Party: 3. Third Party: b. The Parties undertake that, they shall collectively hold an equity shareholding of 100% (hundred per cent) of the subscribed and paid up equity of the SPV, until date of execution of the ‘Concession Agreement’ and thereafter at least 51% (fifty one per cent) of the subscribed and paid up equity share capital of the SPV, at all times till completion of 5 (five years) from the date of commencement of commercial operations of the Project. c. The First Party, Lead Member of the Consortium, shall be required to hold an equity shareholding of at least 35% (thirty five per cent) of the subscribed and paid up equity share capital of the SPV till completion of five years from the date of commencement of commercial operations of the project. d. The Parties, {First/Second/Third} whose experience and net-worth have been reckoned for the purposes of qualification and short-listing of Bidders for participation in the RFP Stage for the Award of the Project, shall hold a minimum of 25% (twenty five per cent) of the subscribed and paid up equity share capital of the SPV, at all times till completion of five years from the date of commencement of
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commercial operations of the Project. e. The Parties also undertake that, each of the Parties specified in Clause of above shall hold subscribed and paid up equity share capital of SPV equivalent to at least 5% (five per cent) of the ‘Total Project Cost’, at all times until completion of five years from the date of commencement of commercial operations of the Project. f. In addition to the above, the Parties undertake that they shall comply with all equity lock-in requirements set forth in the RFP and more particularly the Concession Agreement. • Representation of the Parties Each Party represents to the other Parties as on the date of this Agreement that: a) Such Party is duly organised, validly existing and in good standing under the laws of its incorporation and has all requisite power and authority to enter into this Agreement; b) The execution, delivery and performance by such Party of this Agreement has been authorised 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 authority 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 organisational documents thereof;
iv. violate any clearance, permit, concession, grant, license or other governmental Concession, approval, judgement, 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
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this Agreement. • Termination This Agreement shall be effective from the date hereof and shall continue in full force in accordance with the Concession 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 Authority to the Bidder, as the case may be.
• Miscellaneous That in case the project is awarded to the Consortium, the Consortium will carry out all the responsibilities as the Concessioner and will comply with all the terms and conditions of the Concession Agreement as would be entered with the Authority.
This Joint Bidding Agreement shall be governed by laws of India.
The Parties acknowledge and accept that this Agreement shall not be amended by the Parties without the prior written consent of the Authority.
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
FIRST PART (LEAD MEMBER): SECOND PART
(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address) SIGNED, SEALED AND DELIVERED
For and on behalf of THIRD PART
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(Signature)
(Name)
(Designation)
(Address)
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 authority to execute this Agreement on behalf of the Consortium Member. 3. For a Joint Bidding Agreement executed and issued overseas, the document shall be legalised by the Indian Embassy and notarized in the jurisdiction where the Power of Attorney has been executed.
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APPENDIX-V
STATEMENT OF LEGAL CAPACITY LETTER
(To be forwarded on the Letterhead of the Bidder / Lead Member of Consortium)
Date:
The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh Phones: 91-9618434343 & 91-8125420618 Email: [email protected] & [email protected]
Sub: Bid for for development of “AC Convention Centre with Hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode.
Madam / Sir,
We hereby confirm that we / our members in the Consortium (constitution of which has been described in the Joint Bidding Agreement) satisfy the terms and conditions laid out in the RFP document.
We have agreed that, M/s. ______(insert member’s name) will act as the Lead Member of our Consortium.*
We have agreed that Mr./Ms.______(insert individual’s name) will act as our representative / will act as the representative of the Consortium on its behalf* and has been duly authorised to submit the RFP and required submissions. Further, the authorised signatory is vested with requisite powers to furnish such letters and authenticate the same.
Thanking you,
Yours faithfully,
Authorised Signatory
For and on behalf of
(Name, Title, Address, Date)
*Please strike out whichever is not applicable.
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APPENDIX-VI
LETTER OF UNDERTAKING [To be furnished by the Bidder, in case of Consortium to be given separately by all Members on their Letterheads]
Date:
The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh Phones: 91-9618434343 & 91-8125420618 Email: [email protected] & [email protected]
Sub: Bid for Development of “AC Convention Centre with hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode-– Letter of Undertaking.
Madam / Sir,
We confirm that, we are not barred by Government of Andhra Pradesh (GoAP), any other State Government in India (SG) or Government of India (GoI), or any of the Agencies of GoAP/SG/GoI from participating in any category of Infrastructure Projects in PPP Mode (Construction, BOT or otherwise) as on ______(Bid Due Date).
Yours faithfully,
Signature of Authorised Signatory
(Name, Title, Address, Date)
Yours faithfully,
Signature of Authorised Signatory
(Name, Title, Address, Date)
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APPENDIX-VII LETTER OF COMMITMENT FOR PAYMENTS [On the Letterhead of the Bidder (in case of Single Bidder) or Lead Member (in case of a Consortium)] Date: To,
The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh Phones: 91-9618434343 & 91-8125420618 Email: [email protected] & [email protected]
Sub: Bid for Development of “AC Convention Centre with hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode– Commitment for Payments.
We ______(the “Member”), / [Our Consortium consisting of the following Members (the “Member”)]; 1. [Lead Member M/s. …………………………………………………………………………..]; 2. [Member 1 M/s. ………………………………………………………………………………..]; 3. [Member 1 M/s. ………………………………………………………………………………..]; have submitted our bid for the development of “AC Convention Centre with hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode We hereby write to inform you that, if we / [the Consortium] are / [is] short-listed as the ‘Selected Bidder’ for implementing the project, we / [the Lead Member of the Consortium] shall pay / submit the following Amounts / Bank Guarantees to Authority. 1. Interest free ‘Advance Lease Rentals’ equalling to ‘Six Months First Year Lease Rentals’ and ‘Project Development Fee’ of Rs.______Lakhs within 7 days of issue of LoI in the form of Demand Draft drawn on any Nationalised/ Scheduled Bank (other than Co-Operative Banks). 2. Performance Security in the form of unconditional and irrevocable Bank Guarantee favouring “______.” for Rs______Lakhs within 7 days from the date of issue of Letter of Award. Yours faithfully,
Signature of Authorised Signatory (Name, Title, Address, Date)
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APPENDIX-VIII
COVERING LETTER FOR THE FINANCIAL BID
To,
The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh Phones: 91-9618434343 & 91-8125420618 Email: [email protected] & [email protected]
Madam / Sir,
Sub: Bid for Development of “AC Convention Centre with hotel” at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode– Covering Letter for financial bid.
Please find attached our Financial Bid for Development of “______on DBFOT Basis in PPP Mode.
I/We confirm that the Financial Bid submitted herein above will remain valid till ______(mention the validity period which should be more than 180 days).
Yours faithfully,
Signature of Authorised Signatory
(Name, Title, Address, Date)
Dated ______Day of ______2019.
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APPENDIX-IX
FORMAT FOR FINACIAL BID
(format not to be uploaded online, only values to be submitted at appropriate place.)
To, The Executive Officer Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust Simhachalam – 530 028 Visakhapatnam District Andhra Pradesh Phones: 91-9618434343 & 91-8125420618 Email: [email protected] & [email protected]
Madam / Sir,
Sub: FINANCIAL BID for Development of “______’ on DBFOT Basis in PPP Mode.
1. With reference to your RFP document dated ______, I/we, having examined the Bidding Documents and understood their contents, hereby submit my/our Bid for the aforesaid Project. The Bid is unconditional and unqualified. 2. In response to the RFP document, I/ We hereby offer to pay to the Authority, the Revenue Share of Rs. ______(in figures) Rupees ______(in words), which is over and above the reserve amount of Rs. ______Crores (in figures) Rupees ______(in words), for the base year (i.e 6th Year of Concession Period). 3. We further agree that the ‘Revenue Share’ quoted above will be paid from ______Year to 33rd year of the Concession Period with an annual increment of ______Percent (____%) year on year. We also hereby agree to pay to Authority, either the ‘Revenue Share’ quoted (including Annual Escalation) or ______(%) of the Revenue, whichever is higher for that particular year.
Starting From Lasting till Min Gross Revenue Min Revenue Share Assured by Bidder to be quoted on (Rs Lakhs) Gross revenue (in terms of percentage) 0 to 2 years Construction Period 3rdYear Moratorium Period 4th Year 13th Year 14th Year 23rd Year
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‘Vepagunta village’ on DBFOT Basis in PPP Mode
24th Year 33rd Year End of Concession period
4. 1/ We acknowledge the right of the Authority 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. 5. I/ We believe that we/ our Consortium satisfy(s) the Technical & Financial Criteria and meet(s) the requirements as specified in the RFP document. 6. I/ We declare that we/ any Member of the Consortium, or our/ its Associates are not a Member of a/any other Consortium submitting the Bid for this Project. 7. The Revenue Share (Absolute Terms) has been quoted by me/us after taking into consideration all the terms and conditions stated in the RFP, our own estimates of costs and after a careful assessment of the site and all the conditions that may affect the project cost and implementation of the project. 8. I/ We agree and undertake to abide by all the terms and conditions of the RFP document. 9. I/We (the Consortium Members) agree and undertake and severally liable for all the obligations of the Authorisee under the Concession Agreement 10. We abide by the above offer/ quote as per terms of the RFP, if Tourism Department selects us as the Preferred Bidder. We also understand that, in case any differences between the quoted amount in words and figures, the highest amount will be considered as our quote towards Revenue Share. 11. We Accept that: a) Payment of the Revenue Share as quoted above shall be paid by us in quarterly installments, payable on or before 30th of the last month of the Quarter.
b) The balance if any, between the revenue share quoted in absolute figures and the percentage(s) share of revenue on actual basis shall be paid within 30 days from the date of approval of Annual Accounts by the ______Department for each year.
Yours faithfully,
Signature of Authorised Signatory
(Name, Title, Address, Date)
Dated ______Day of ______2019.
Page 66
Site Map
Sri Varaha LakShmi NaraSimha Swamy DeVaSthaNam truSt
Prepared by
Seamless Consultancy Services Pvt. Ltd. D No 6-3-663/e, 301, Diamond House, Punjagutta, Hyderabad-500 082. FEASIBILITY REPORT Tel: +91 40 23409977 Setting up of AC Convention Centre & Hotel at at ‘Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
February 2018
DEVELOPMENT OF “AC Convention Centre with Hotel” on SEAMLESS CONSULTNCY DBFOT basis in PPP Mode SERVICES PVT. LTD.
CONTENT
Chapter Chapter Page No. No. ES Executive Summary 2 1 Introduction 7 2 Area Development Potential 10 3 Project Facilities 15 4 Statutory Approval & Schedule of Implementation 22 5 Project Cost & Means of Finance 24 6 Project Economics & Sustainability 29 7 Lease Rental & Revenue Share to SVLNDT 35
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ES
EXECUTIVE SUMMARY
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E1) Introduction
The Sri Varaha Lakshmi Narasimha Swamy Devasthanam (SVLNSD), Simhachalam has a number of open sites as part of its properties. In keeping with the rapid urbanization around Simhachalam, SVLNSD has identified some of them for development on Public Private Partnership (PPP) basis with a view to putting them to use for larger benefit ensuring steady revenue streams and protecting them from possible encroachment.
Accordingly, SVLNSD has identified Chitradavari Thota site of SVLNSD is an open site admeasuring 3.65 acres. It is a contiguous site with 1.65 acres falling in Survey No. 187 of Vepagunta village and 2.00 acres falling in Survey No.275 of Adavivaram village.
The site is easily approachable from Gopalapatnam – Simhachalam road and via the road has access to Visakhapatnam-Pendurthy main road on the West.
SVLNSD has proposed for Development of “AC Convention Centre with Hotel” on Design, Built, Finance ,Operate and Transfer (DBFOT) Basis in PPP Mode and has, therefore, decided to carry out the bidding process for selection of a private partner as the Bidder to whom the Project may be awarded.
The proposed “AC Convention Centre with Hotel” will be developed in a single bit of 3.65 acres open site at Chitradavari Thota with 1.65 acres falling in Survey No. 187 of Vepagunta village and 2.00 acres falling in Survey No.275 of Adavivaram village.( they are adjacent to each other). The 2 acres of land in Survey No. 275 falls under greenbelt zone and no permanent construction shall be permitted, there in. But it can be utilized for parking and land scaping.
Site Boundaries
East : Sy No 275 Part West : Sy No 275 North : Sy No 275 part vacant land of SVLNS Devasthanam South : Sy No 275 Part
E2) Project Components
the proposed components of the project are two number of Air Conditioned Conference / Banquet Areas and 40 Rooms Budget Hotel
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Minimum Development Area of 69793 Sft which includes parking construction area of 11853 Sft. Develop 2 marriage AC halls cum dining hall of 1000 pax each with adjustable partitions (43100 sft) 40 hotel rooms with minimum each room area of 265 sft (36600 Sft including corridors and common areas) Hotel Room Area : Room Area : 175 Sft; Bathroom Area: 90 sft. Survey No. 275 of 2 acres of Adavivaram Village shall be under green belt zone and there should not be any construction or commercial activity thereon. Developers shall be free to implement their own concept & design taking into consideration all the applicable Byelaws/Norms & Regulations as applicable on the Project site. Wireless Internet connectivity in all areas.
E3) Project Cost
The total cost of the project is estimated to be Rs.15.99 Crores.
Cost Heads % PC Amount 1. Land on Lease 0.00% 0.00 2. Buildings Construction and Civil Works 51.82% 8.28 3. Plant & Machinery 24.01% 3.84 4. Electrical Works and MFA 9.17% 1.47 5. Preliminary Expenses 1.51% 0.24 6. Pre-operative Expenses 3.50% 0.56 7. Project Development Fees 1.00% 0.16 8. Interest During Construction 3.68% 0.59 9. Deposits 2.63% 0.42 10. Contingencies @2% of Civil, P & M & Furniture 2.12% 0.34 11. Working Capital Margin 0.56% 0.09 Total 100.00% 15.99
Debt equity ratio of the proposed project works out to 2.02:1.
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E4) Project Financial Summary
Particulars Year 1 Year Year Year Year Year Year Year Year 2 3 4 5 6 7 8 9 Number of Months 12 12 12 12 12 12 12 12 12
Year
Sales 4.80 5.27 6.01 6.31 6.62 6.95 7.30 7.67 8.05
Total Cost of Sales 1.05 1.12 1.36 1.43 1.50 1.58 1.66 1.74 1.83
Contribution 3.75 4.15 4.65 4.88 5.12 5.38 5.65 5.93 6.23
Fixed and Semi Variable 0.71 0.89 0.93 0.96 1.02 1.06 1.05 1.12 1.16 Expenses Total Expenditure 1.76 2.01 2.29 2.39 2.53 2.63 2.70 2.86 2.98
PBDIT 3.04 3.26 3.71 3.92 4.10 4.32 4.60 4.81 5.07
Depreciation 1.86 2.17 2.72 3.05 3.36 3.72 4.14 4.51 4.94
Interest 1.18 1.09 0.99 0.87 0.74 0.60 0.46 0.30 0.14
PBT 1.10 1.41 1.96 2.28 2.60 2.96 3.38 3.75 4.17
PAT 0.86 1.11 1.54 1.76 1.94 2.15 2.42 2.65 2.92
Cash Accruals 1.62 1.87 2.30 2.52 2.70 2.91 3.18 3.41 3.68
PBT (%) 22.6% 26.5% 32.4% 36.0% 39.1% 42.4% 46.1% 48.8% 51.7% PAT (%) 17.7% 20.8% 25.5% 27.8% 29.1% 30.8% 32.9% 34.4% 36.2% B.E.P @ Operating Capacity 70.9% 66.1% 57.7% 53.1% 49.2% 44.9% 40.0% 36.6% 32.7% Cash BEP (%) 50.5% 47.7% 41.2% 37.4% 34.2% 30.6% 26.4% 23.7% 20.4% Gross DSCR 1.70 1.44 1.65 1.67 1.81 1.91 1.97 2.11 2.22
Average Gross DSCR 1.82 Min 1.44 Max 2.11
Net DSCR 3.33 1.91 2.25 2.14 2.28 2.31 2.27 2.30 2.30
Average Net DSCR 2.28 Min 2.14 Max 3.33
IRR Loan Tenor (%) 17.99 % Security Margin 52.90 %
The average gross Debt Service Coverage Ratio of the project works out to 1.82 IRR for the project is 17.99%
E5) Lease Rental
The ‘Annual Lease Rentals’ for the base Year is Rs.30.75 Lakhs,( i.e. 2% of Basic Market Value (BMV) of the land as per the Registers of concerned SRO (Sub Registrar Office) as on the date of issue of RFP [7986 Sq.Yds. @ Rs.18000 / Sq.Yd.] +Rs.2.00 lakhs for the land of Ac.2.00
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located in Green belt area). The ‘Annual Lease Rentals’ shall be incremented by 10% every 6th year on the last lease rent paid, for the entire ‘Concession Period’. These ‘Annual Lease Rentals’ shall be paid on ‘Half Yearly’ basis in advance as per the terms stipulated in the RFP. Applicable taxes, including GST on the above shall also be paid by the Concessioner/Successful Bidder.
E6) Revenue Share
The Revenue Share to be paid to Authority is to be quoted over and above the reserve amount of Rs. 12.00 lakhs per annum , from the 4th year of the Authorization Period.
The Revenue share payable to Authority will be exempted for a period of 3 years from the date of signing of the Concession Agreement.
Revenue share is payable annually till the 33rd year of the Authorization Period and as per the terms stipulated in the RFP.
Applicable taxes, including GST on the above shall also be paid by the Authorized/Successful Bidder.
E7) Revenue Streams to Authority and Net Present Value Summary
Rs Crore
S.No. Streams of Revenue Revenues NPV 1 Project Development Fee (Up Front On Time Payment) 0.16 0.16
2 Lease Rentals for 33 years 15.98 4.03 3 Revenue Share Payable for 33 Years 7.97 1.56
TOTAL REVENUE 24.12 5.75 *******
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01
INTRODUCTION
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1.1 Background Simadhri or Simhachalam – The hill of Lions is an 11th century Hindu temple of lord Narasimha an incarnation of Lord Vishnu. Located at a distance of 18 Km from Vishakhapatnam and with elements of similarity with architecture of Konark Temple, the temple attracts millions of devotees every year. The temple is managed by Sri Varaha Lakshmi Narasimha Swamy Devasthanam Trust.
The Sri Varaha Lakshmi Narasimha Swamy Devasthanam (SVLNSD), Simhachalam has a number of open sites as part of its properties. In keeping with the rapid urbanization around Simhachalam, SVLNSD has identified some of them for development on Public Private Partnership (PPP) basis with a view to putting them to use for larger benefit ensuring steady revenue streams and protecting them from possible encroachment. Accordingly, SVLNSD has identified Chitradavari Thota site of SVLNSD is an open site admeasuring 3.65 acres. It is a contiguous site with 1.65 acres falling in Survey No. 187 of Vepagunta village and 2.00 acres falling in Survey No.275 of Adavivaram village. It faces North abutting Gopalapatnam - Simhachalam road at a distance of about 1.5 km from Gopalapatnam - Simhachalam junction and 2.0 km from Simhachalam village. The site is quite elevated on the South bounded by hills. On the East and West, it is bounded by stretches of open spaces. The entire site is open and unfenced. SVLNSD is constructing a kalyanamandapam to the North of Vepagunta site to cater to the needs of users in the low income group. SVLNSD has proposed for Development of “AC Convention Centre with Hotel” on Design, Built, Finance ,Operate and Transfer (DBFOT) Basis in PPP Mode and has, therefore, decided to carry out the bidding process for selection of a private partner as the Bidder to whom the Project may be awarded. SVLNSD has commissioned Seamless Consultancy Services (P) Ltd. (SCS) for preparation RFP document and bid process management for transparent selection of the Developer. SCS. had interacted with the SVLNSD management to collect relevant information for preparation of the feasibility study and bid process management Line estimates have been assumed within the estimated project cost for AC Convention and Hotel An average project cost of Rs 16.00 Crore has been considered for assessment of project viability. Lease rentals have been assumed at 2% of the present basic market value of the land
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Revenue estimates have been considered as per proposed facilities and present market factors. 1.2 Limitations of Feasibility Study
The project cost components may likely to alter after finalisation of concept, designs, drawings and project facilities.
The financial viability may also undergo change subject to Debt Equity ratio, timely completion, successful bidder’s capability in developing, implementing and operating the project
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02
AREA DEVELOPMENT POTENTIAL
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2.1 Locational History
This beautiful city is said to have derived its name from the deity 'Visakha' - the God of Valour. The history of the town can be traced back to Ashoka the Great (273-232 B.C.) when this was a small fishing village of the Kalinga empire. Later on, this port town successively passed from the Andhra Kings of Vengi to the Pallavas, Cholas and the Gangas. In the 15th century Visakhapatnam became a part of Vijayanagar Empire. The British took charge of this beautiful land and transformed this into a busy and flourishing port town. Today it has emerged as an important port on the east coast of India. The Vizag port handles the maximum cargo in the country and promises to become one of Asia's major ports.
2.2 Development so Far
Visakhapatnam, a port city on the southeast coast of Bay of Bengal, is the largest urban agglomeration in the State of Andhra Pradesh. The city has been witnessing a rapid overall growth triggered by rapid industrialization, enlarged sea port operations; IT & ITES sector development, sustained growth of tourism and services sectors, increased presence of naval establishments and rising number of institutions of higher learning. While the city is traditionally home for a number of Public Sector Undertakings, one of the largest seaports and the headquarters of the Eastern Naval Command of the Indian Navy, it is fast emerging as a thriving hub for IT & ITES, educational institutions and tourism.
Being an important hub of economic activity in the region, the city has witnessed rapid urbanization and inward migration of people. Consequently, the city has contributed to Visakhapatnam district log in the largest share of urban population accounting for 47.5% compared to the average 35.6% at the State level.
Visakhapatnam is one of the oldest municipalities in India. The city had a municipal limit comprised an area of 76.32 sq. km in 1971 housing a population of 3.52 lakhs. During the next three decades, the city had witnessed such rapid growth that its municipal limits spread to 540 sq. km with a population of 13.00 lakhs in 2001. The city’s growth has accelerated further in the following decade with its municipal limits expanding to 544 sq. km and population reaching the level of 17.30 lakhs by 2011. The urbanization effect is so strong,
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expanding to adjoining towns and villages, which led to the creation of Greater Visakhapatnam Municipal Corporation (GVMC) in 2005 for developing and managing the civic infrastructure of the city.
2.3 Growth prospects
Looking into the future, the population of Visakhapatnam city is projected – using arithmetical projection method – to be around 21.00 lakhs by 2021, 25.00 lakhs by 2031 and 30.00 lakhs by 2041 with operational jurisdiction of GVMC extending to more surrounding villages and towns.
2.4 Economy
The city is experiencing tremendous economic growth. The sectors contributing to city’s economic growth are agriculture and fishing (primary sector), large, medium and small-scale industries (secondary sector) and services (tertiary sector) that include trade and commerce, transport, telecommunications, management and consultancy services, education, etc. It has experienced rapid industrialization with the onset of major industries viz., Oil Refinery -- a private sector fertilizer factory, Hindustan Zinc Smelter and Visakhapatnam Steel Plant. The construction of the outer harbour and Steel Plant have considerably changed the character of the city. On account of rapid industrialization, there has been tremendous amount of migration into the city. Today the tourism, services and information technology contribute significantly to the economy.
2.5 Tourism
Vizag, sandwiched between the promontory called Dolphin’s nose and the Kailashgiri Hills, is one sea together and that makes for a spectacular view from even within the city. The beaches of Vizag Rama Krishna, Lawson’s Bay, Rishikonda and Gangavaram are amongst the best kept secrets of India.
Head north up to the Simhachalam hills is simhachalam temple, a 11th Century temple dedicated to Lord Narasimha. Vizag is well endowed with excellent hotels and restaurants to accommodate national and international tourists. Recently, many Buddhist ruins have been
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discovered in and around Vizag. A more fascinating site to visit is the village of Sankaram, where numerous images of Buddha are seen carved in caves of the hills. Vizag is home to the Eastern Fleet of the Indian Navy and the Naval presence has cast its influence over the city. Overlooking the port in all its majesty is the 358 meters high promontory of Dolphin’s Nose so called because of its uncanny resemblance to the mammal. The lighthouse atop, which can be visited with permission, is the highest in India. Its beams can be seen far out at the sea and it directs the traffic in the busy shipping lanes of the Bay of Bengal as well as the entrance to Vizag port.
2.6 Major Challenges A major challenge faced by the city today is the high density of population and enormous pressure on civic infrastructure. Within the overall GVMC area, the density of population is as high as 6,000 persons per sq. km. And considering only the built-up area of around 170 sq.km, the population density goes up phenomenally to around 10,000 persons per sq.km. As a sequel to the rapid urbanization and challenges of high density, demand for and supply of residential and commercial space has been constantly increasing in the peripheral and transition zones.
Real estate growth in and around Gopalapatnam, Simhachalam and Pendurthy has been quite significant and rapid, especially for the last five years. However, the growth of supporting infrastructure in the hospitality sector in the area has not been commensurate with the growth in the real estate. Specifically, there are no decent and upmarket hotels, restaurants, MICE and marriage hall facilities in the area to meet ever emerging requirement. Furthermore, at present such facilities are heavily concentrated in Visakhapatnam core city area prone to sever traffic congestions and parking bottlenecks. It is also observed that there is a short supply of marriage halls (kalyanamandapams) and exhibition-cum-convention centres vis-à-vis demand especially during peak season.
2.7 Future Outlook Visakhapatnam, popularly referred to as the 'Jewel of the East Coast', is a port city in the southern state of Andhra Pradesh and the headquarters of the Eastern Naval Command. The city receives a major quantum of its demand from the Commercial segment with the Navy, Port Trust, ship building, manufacturing, Vizag steel, pharmaceutical, IT & ITES and petrochemical industries being the key drivers for this segment. As many of the industries
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are project-based, the Extended-Stay segment is also a major demand generator for hotels. Over the past few years, he Meetings, Incentives, Conferences, and Exhibitions (MICE) segment has also seen a rise, with the city being a major hub for summits and conventions in the state. With its limited branded inventory, the city witnessed double digit growth in market wide occupancies in the previous fiscal, while average rates increased to the tune of approximately 7% during the same period.
As limited supply is expected to enter the market within the next five years, it is predicted that steady hotel performance in the short to medium term. Furthermore, Visakhapatnam being selected under the central Smart Cities mission, and the state government providing incentives for the development of tourism in the city, is anticipated to further boost the Visakhapatnam hotel market.
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03
PROJECT FACILITIES
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3.1 Project Location
The proposed “AC Convention Centre with Hotel” will be developed in a single bit of 3.65 acres open site at Chitradavari Thota with 1.65 acres falling in Survey No. 187 of Vepagunta village and 2.00 acres falling in Survey No.275 of Adavivaram village.( they are adjacent to each other). The 2 acres of land in Survey No. 275 falls under greenbelt zone and no permanent construction shall be permitted, there in. But it can be utilized for parking and land scaping.
It faces North abutting Gopalapatnam - Simhachalam road at a distance of about 1.5 km from Gopalapatnam - Simhachalam junction and 2.0 km from Simhachalam village. The site is quite elevated on the South bounded by hills. On the East and West, it is bounded by stretches of open spaces. The entire site is open and unfenced. SVLNSD is constructing a kalyanamandapam to the North of Vepagunta site to cater to the needs of users in the low income group.
Site Boundaries
East : Sy No 275 Part West : Sy No 275
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North : Sy No 275 part vacant land of SVLNS Devasthanam South : Sy No 275 Part
3.2 Site Strengths and Opportunities
Advantageous location in close proximity to Simhachalam temple Forms part of a major activity node as per VUDA Master Plan Location hardly within 7 km from Visakhapatnam city centre and about 3 km from airport and railway station No existing civil structures The place has become integral to Greater Visakhapatnam Municipal Corporation (GVMC) area Rapid urbanization and expansion of city limits open up growth opportunities in the peripheral areas Considerable growth in commercial and residential buildings in and around Gopalapatnam and Simhachalam Proximity to the proposed metro rail corridor Increasing real estate value and activity in the area
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Transport Connectivity
Air connectivity
Visakhapatnam Airport- 15 minutes drive from Site Location Road connectivity
Simhachalam –Adavivaram Road Nearest Bus Deport : Simhachalam 1 K from Project Site 4 Kms from National Highway 16 Rail Connectivity
7 Kms to Visakhapatnam Railway Station
3.3 Project Components
As part of development of “AC Convention Centre with Hotel” at Chitradavari Thota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode, the proposed components of the project are two number of Air Conditioned Conference / Banquet Areas and 40 Rooms Budget Hotel
Minimum Development Area of 69793 Sft which includes parking construction area of 11853 Sft. Develop 2 marriage AC halls cum dining hall of 1000 pax each with adjustable partitions (43100 sft) 40 hotel rooms with minimum each room area of 265 sft (36600 Sft including corridors and common areas) Hotel Room Area : Room Area : 175 Sft; Bathroom Area: 90 sft. Survey No. 275 of 2 acres of Adavivaram Village shall be under green belt zone and there should not be any construction or commercial activity thereon. Developers shall be free to implement their own concept & design taking into consideration all the applicable Byelaws/Norms & Regulations as applicable on the Project site. Wireless Internet connectivity in all areas.
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AC Convention Centre
Rooms above Marriage Hall Outside View of AC Convention Centre and Hotel
3.4 Materials and Utilities and Manpower
Material:
The major materials required for the AC Convention Centre and Hotel operations are:
Rooms, Suites, Halls: Toiletries and Stationery
Food and Beverages:
Fruits and Vegetables
Groceries
Soft Drinks
Table Linen
Cleaning Materials
House Keeping:
Cleaning Materials
Towels and Bed Sheets
Room Linen etc.
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Staff Uniform
Manpower: The Hospitality Industry is the most sophisticated and growing Industry and the manpower at the front-end people play a key role in any Hospitality Industry to serve the guests.
The operations of a basic lodging establishment are classified under four broad departments:
1) Administration
2) Rooms
3) Food and beverage
4) Engineering The total direct manpower required for the proposed AC Convention Centre has been estimated to be 34. Power:
The total requirement of power for AC Convention Centre and other areas is 600 KVA approximately. The successful bidder can draw power from the Andhra Pradesh Eastern Power Distribution Company Limited (APSPDCL) from the nearest sub-station. Fuel: The total requirement of fuel for Kitchen purpose is 20 gas cylinders per month. Water: The total requirement of water for the proposed AC Convention Centre with hotel facilities would be around 1 to 1.5 KLPD during off season and during marriage season and events organising is about 4 KLD.
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04
STATUTORY APPROVALS & SCHEDULE OF IMPLEMENTATION
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The following are few of the statutory approvals to be obtained by the Successful Bidder: S. Dept. Authority Particulars No. 1. Goods and Services Tax Commercial Tax Dept., Visakhapatnam. 2. Registration with Dept. of Labour, Labour Department Visakhapatnam 3. Police Department Dept. of Police, Visakhapatnam 4. Fire & Emergency Dept. of Fire & services Department Emergency Services, Guntur. 5. Building Plan approval VUDA and Authority For Construction of Building as per the (Simhachalam Zoning regulations of Andhra Devasthanam) Pradesh Capital Region Development Authority Act, 2014s 6. Consent Order for A.P Pollution Control As per requirements Establishment Board,
7. Electricity – 11 KV Line Eastern Power Distribution Company of A.P Ltd, Visakhapatnam. 8. India Tourism, Chennai Indian Tourism, Chennai. As per requirements and need 9. Youth Advancement, The Director, Dept. of As per requirements and need Tourism & Culture Tourism, Vijayawada Department, Govt of AP 10. Trade License Municipal Authority Before commencement of Operations 11. License as per shops State Government Before commencement of Operations and establishment act 12. Police Police Department-State Before commencement of Operations Govt. of AP 13. Transport and Car Regional Transport Before commencement of Operations Officer 14. Fire Department Permit Fire Department Consent for Operations 15 Sanction of Water Municipal Authority Before commencement of Operations Supply, LPG. Sewage collection 16 Consent for Operation Andhra Pradesh Consent for Operation before Pollution Control Board- commencement of Operations as per State Govt. of AP requirements
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05
PROJECT COST & MEANS OF FINANCE
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5.1 Project Cost
The total cost of the project is estimated to be Rs.15.99 Crores.
Cost Heads % PC Amount 1. Land on Lease 0.00% 0.00 2. Buildings Construction and Civil Works 51.82% 8.28 3. Plant & Machinery 24.01% 3.84 4. Electrical Works and MFA 9.17% 1.47 5. Preliminary Expenses 1.51% 0.24 6. Pre-operative Expenses 3.50% 0.56 7. Project Development Fees 1.00% 0.16 8. Interest During Construction 3.68% 0.59 9. Deposits 2.63% 0.42 10. Contingencies @2% of Civil, P & M & Furniture 2.12% 0.34 11. Working Capital Margin 0.56% 0.09 Total 100.00% 15.99
5.2 Means of Finance:
The proposed means of finance for the project is as shown below:
Description Amount 1. Promoters’ Contribution 5.29 2. Term Loan 10.70 Total 15.99 Equity 33.06% Debt 66.94% Debt Equity Ratio 2.02 Debt equity ratio of the proposed project works out to 2.02:1.
Unit Cost Structure:
1) Land Cost
The land is on lease basis in 3.65 acres open site at Chitradavari Thota with 1.65 acres falling in Survey No. 187 of Vepagunta village and 2.00 acres falling in Survey No.275 of Adavivaram village. Survey No. 275 of 2 acres of Adavivaram Village shall be under green belt zone and there should not be any construction or commercial activity thereon.
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The Concessioner/Successful Bidder shall pay ‘Annual Lease Rentals’ to the Authority during the‘Concession Period’ of 33 Years from the date of signing of ‘ Lease Agreement’ date. The ‘Annual Lease Rentals’ for the base Year is Rs.30.75 Lakhs,( i.e. 2% of Basic Market Value (BMV) of the land as per the Registers of concerned SRO (Sub Registrar Office) as on the date of issue of RFP [7986 Sq.Yds. @ Rs.18000 / Sq.Yd.] +Rs.2.00 lakhs for the land of Ac.2.00 located in Green belt area). The ‘Annual Lease Rentals’ shall be incremented by 10% every 6th year on the last lease rent paid, for the entire ‘Concession Period’. These ‘Annual Lease Rentals’ shall be paid on ‘Half Yearly’ basis in advance as per the terms stipulated in the RFP. Applicable taxes, including GST on the above shall also be paid by the Concessioner/Successful Bidder.
2) Buildings and Civil Works
The Building and Civil works includes construction of green building, landscaping, internal electrical works and construction of other amenities required for the proposed project.
The civil works include earthwork excavation, sand filling, back filling works, PCC works, RCC works, shuttering works, reinforced steel, structural steel fabrication works, brick work, plastering works, water-proofing and grouting works, flooring works, painting works, interior works, plumbing and sanitation, landscaping etc.
The tentative cost of Building and civil works is estimated at Rs.8.28 Crore.
Building and Civil Works Sqft Rs/Sqft Total (Rs Cr) Parking Area 11853 1000 1.19 Leasable and Built Up Area 57940 1225 7.10 Total Cost of Civil Works 69793 1187 8.28
3) Plant & Equipment
The major plant and equipment required for the proposed project facilities are:
Kitchen Equipment Lifts Air Conditioning Systems
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A provision of Rs.3.84 Crore has been made for plant and equipment required for the proposed facilities.
4) Miscellaneous Fixed Assets and Electricals Works
Provision of Rs.1.75 Crore is made towards electrical works.
5) Preliminary & Pre-Operative Expenses
The total estimated preliminary and pre-operative expenses is Rs.0.80 Crore of which Rs.0.24 Crore is preliminary expenses.
The preliminary and pre-operative expenses mainly consist of
Project Report Preparation Costs towards obtaining permissions and approvals Loan Acquisition fees Land Lease rentals for a period of 2 years construction Salaries during construction period Initial promotional expenditure Interest During Construction Travelling expenses etc.
6) Contingency
Provision has been considered towards contingency expenses on Civil & Building Works, Plant and Machinery and Furniture & Fixtures estimating the unforeseen expense during the construction period.
Cost of contingencies for Eco Resort is considered at 2% of Building & Civil Works, Plant & Machinery, Furniture and Fixtures. The total cost of contingencies works out to Rs.0.34 Crore.
7) Project Development Fee The total cost of Project Development Fees payable to Authority is Rs.0.16 Crore (1% of total estimated project cost of Rs.16.05 Crore.
8) Deposits Provision of Rs.0.42 Crore is made towards deposits for electrical connection.
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9) Margin Money for Working Capital The margin money for working capital is estimated to be Rs.0.09 Crore. The total working capital requirement for the proposed facility has been arrived at Rs.0.29 Crore during the first- year operation. The holding period that has been considered for arriving at the working capital is tabulated below: Description SHP Year 1 Year 2 No of Month 12 12 Current Assets Materials & Consumables 1.50 0.05 0.05 Bills Receivables 0.70 0.28 0.31 Total Current Assets (CA) 0.33 0.36 Less: Sundry Creditors (CL) 0.50 0.04 0.05 Working Capital (CA-CL) 0.29 0.31
Bank Finance(75%) 0.20 0.20 Promoter's Margin(25%) 0.09 0.11
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06
ASSUMPTIONS AND PROJECT ECONOMICS
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6.1 Project Implementation Schedule
It is assumed that project shall be implemented within two and half (2 ½ Years from the date of handing over possession of the project land including the Period’ for obtaining required Permissions & Approvals.
6.2 Occupancy Capacity
It is assumed that the proposed AC Convention Centre ECO RESORT would have four types of Rooms i.e., Deluxe/Superior, Executive/Premium, Scenic View and Suites. Room type wise details of occupancy capacity for the project are given as below:
Sl. No. Facility Total 1 No of Halls with 1000 pax each 2 Sub Total - Rooms 2
2 Standard/ Deluxe /Superior Room 26
3 Executive/Premium Room 12
4 Suites 2
Sub Total - Rooms 40
6.3 Occupancy Rate
Occupancy rates are given in table below.
Description FY 1 FY 2 FY 3 FY 4 FY 5 onwards Occupancy % Rooms 60% 60% 70% 70.0% 70.0% Convention centre 75% 80.0% 80% 80.0% 80.0%
6.4 Operating Days
Hotel : 365 days
Convention Centre
Number of Days for Functions during peak period : 120 per annum for each hall
Number of Days for Functions during lean period : 60 per annum for each hall
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6.5 Revenue Parameters
Revenue generation is considered from room tariff, food & Beverages sales, yoga and meditation, spa Facility wise details of Revenue generation are given below:
Convention Centre
Tariff per Day for each hall (Rs)
Peak Days 1,20,000 Lean Period 75,000
Hotel Rooms
Type Total Rooms Room Tariff per Day (Rs)
Deluxe Room 26 1200 Executive Room 12 1250 Suites 2 1500 Total Rooms 40 1230 . An annual increase of 5% has been increased for tariffs
Food and Beverage Sales
30% of room revenue has been considered as food and beverages revenue
6.6 Cost Projections - Expenditure
Cost of Food & Beverages is considered at 50% on Food & Beverages sales which excludes staff costs. 5% of total revenue has been considered as Power and Fuel Cost The cost of Repairs & Maintenance is calculated 0.5% on Net Fixed Assets for the first year of operation and 5% increase thereon. The wages and salaries for the full year of operation are estimated as Rs.0.52 Crore with 5% annual increase. The admin and selling expenses have been considered as 4.00% of the total Revenue for the year for the project facilities.
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6.7 Depreciation
Depreciation has been calculated both as per SLM and written-down value (WDV) method. For financial calculation both SLM and WDV depreciation is considered. The rates of depreciation are provided for both the proposed facilities in the following table:
Asset SLM WDV Buildings 3.34% 10% Plant and Machinery 6.67% 15% Electrical and Other Fixed Assets 10% 15%
While computing the depreciation, pre-operative expenses (including interest during construction, preliminary expenses) and contingencies have been allocated to the assets in proportion to the cost of individual asset.
6.8 Income Tax
Income tax has been considered as 29.12% as per IT act and 21.55 % as MAT. The maximum of both has been taken to compute tax payable to the department.
6.9 Interest Rate
Interest on long term loans is assumed at 11% per annum.
6.10 Term Loan
The term loans are scheduled to be disbursed in 1 year and total door to door tenure is assumed as 10 years from the date of first disbursement to the final instalment repayment.
Rs Crore
Year Disbursement Construction Period I Year I Quarter 2.675 II Quarter 2.675 III Quarter 2.675 IV Quarter 2.675 Sub Total (A) 10.70 Total 10.70
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6.11 Repayment of Term Loan
The repayment of term loan is assumed in 34 quarterly instalments from the 7th quarter of first disbursement.
Equated quarterly Instalment: 34 X Rs.0.4882 Crore= Rs.16.60 Crore.
From COD No of Instalment Installment Amount Total (Rs Crore) (Rs Crore) I Year 2 0.25 0.50 II Year 4 0.25 1.00 III Year 4 0.26 1.04 IV Year 4 0.30 1.20 V Year 4 0.30 1.20 VI Year 4 0.32 1.28 VII Year 4 0.35 1.40 VIII Year 4 0.37 1.48 IX Year 4 0.40 1.60 Total 34 10.70
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6.12 Project Financial Summary
Particulars Year 1 Year Year Year Year Year Year Year Year 2 3 4 5 6 7 8 9 Number of Months 12 12 12 12 12 12 12 12 12
Year
Sales 4.80 5.27 6.01 6.31 6.62 6.95 7.30 7.67 8.05
Total Cost of Sales 1.05 1.12 1.36 1.43 1.50 1.58 1.66 1.74 1.83
Contribution 3.75 4.15 4.65 4.88 5.12 5.38 5.65 5.93 6.23
Fixed and Semi Variable 0.71 0.89 0.93 0.96 1.02 1.06 1.05 1.12 1.16 Expenses Total Expenditure 1.76 2.01 2.29 2.39 2.53 2.63 2.70 2.86 2.98
PBDIT 3.04 3.26 3.71 3.92 4.10 4.32 4.60 4.81 5.07
Depreciation 1.86 2.17 2.72 3.05 3.36 3.72 4.14 4.51 4.94
Interest 1.18 1.09 0.99 0.87 0.74 0.60 0.46 0.30 0.14
PBT 1.10 1.41 1.96 2.28 2.60 2.96 3.38 3.75 4.17
PAT 0.86 1.11 1.54 1.76 1.94 2.15 2.42 2.65 2.92
Cash Accruals 1.62 1.87 2.30 2.52 2.70 2.91 3.18 3.41 3.68
PBT (%) 22.6% 26.5% 32.4% 36.0% 39.1% 42.4% 46.1% 48.8% 51.7% PAT (%) 17.7% 20.8% 25.5% 27.8% 29.1% 30.8% 32.9% 34.4% 36.2% B.E.P @ Operating Capacity 70.9% 66.1% 57.7% 53.1% 49.2% 44.9% 40.0% 36.6% 32.7% Cash BEP (%) 50.5% 47.7% 41.2% 37.4% 34.2% 30.6% 26.4% 23.7% 20.4% Gross DSCR 1.70 1.44 1.65 1.67 1.81 1.91 1.97 2.11 2.22
Average Gross DSCR 1.82 Min 1.44 Max 2.11
Net DSCR 3.33 1.91 2.25 2.14 2.28 2.31 2.27 2.30 2.30
Average Net DSCR 2.28 Min 2.14 Max 3.33
IRR Loan Tenor (%) 17.99 % Security Margin 52.90 %
The average gross Debt Service Coverage Ratio of the project works out to 1.82 IRR for the project is 17.99%
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07
LEASE RENTAL & REVENUE SHARE TO SVLNSDT
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7.1 Lease Rental
The ‘Annual Lease Rentals’ for the base Year is Rs.30.75 Lakhs,( i.e. 2% of Basic Market Value (BMV) of the land as per the Registers of concerned SRO (Sub Registrar Office) as on the date of issue of RFP [7986 Sq.Yds. @ Rs.18000 / Sq.Yd.] +Rs.2.00 lakhs for the land of Ac.2.00 located in Green belt area). The ‘Annual Lease Rentals’ shall be incremented by 10% every 6th year on the last lease rent paid, for the entire ‘Concession Period’. These ‘Annual Lease Rentals’ shall be paid on ‘Half Yearly’ basis in advance as per the terms stipulated in the RFP. Applicable taxes, including GST on the above shall also be paid by the Concessioner/Successful Bidder.
7.2 Revenue Share
The Revenue Share to be paid to Authority is to be quoted over and above the reserve amount of Rs. 12.00 lakhs per annum , from the 4th year of the Authorization Period.
The Revenue share payable to Authority will be exempted for a period of 3 years from the date of signing of the Concession Agreement.
Revenue share is payable annually till the 33rd year of the Authorization Period and as per the terms stipulated in the RFP.
Applicable taxes, including GST on the above shall also be paid by the Authorized/Successful Bidder.
7.3 Summary of Lease Rental and Revenue Share Payable to Authority
In Rupees
Year Lease Rental Revenue Share @ 3% Total of total operating revenue 1 2,874,960 0 2,874,960 2 2,874,960 0 2,874,960 3 2,874,960 0 2,874,960 4 3,162,456 1,200,000 4,362,456 5 3,162,456 1,260,000 4,422,456 6 3,162,456 1,323,000 4,485,456 7 3,478,702 1,389,150 4,867,852 8 3,478,702 1,458,608 4,937,309 9 3,478,702 1,531,538 5,010,239 10 3,826,572 1,608,115 5,434,687 11 3,826,572 1,688,521 5,515,092 12 3,826,572 1,772,947 5,599,518 13 4,209,229 1,861,594 6,070,823 14 4,209,229 1,954,674 6,163,902 15 4,209,229 2,052,407 6,261,636
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Year Lease Rental Revenue Share @ 3% Total of total operating revenue 16 4,630,152 2,155,028 6,785,179 17 4,630,152 2,262,779 6,892,931 18 4,630,152 2,375,918 7,006,070 19 5,093,167 2,494,714 7,587,881 20 5,093,167 2,619,450 7,712,617 21 5,093,167 2,750,422 7,843,589 22 5,602,484 2,887,943 8,490,427 23 5,602,484 3,032,340 8,634,824 24 5,602,484 3,183,957 8,786,441 25 6,162,732 3,343,155 9,505,887 26 6,162,732 3,510,313 9,673,045 27 6,162,732 3,685,829 9,848,561 28 6,779,005 3,870,120 10,649,125 29 6,779,005 4,063,626 10,842,631 30 6,779,005 4,266,807 11,045,813 31 7,456,906 4,480,148 11,937,053 32 7,456,906 4,704,155 12,161,061 33 7,456,906 4,939,363 12,396,269 Total 159,829,092 79,726,617 239,555,709 8.5 Revenue Streams to Authority and Net Present Value Summary
Rs Crore
S.No. Streams of Revenue Revenues NPV 1 Project Development Fee (Up Front On Time Payment) 0.16 0.16
2 Lease Rentals for 33 years 15.98 4.03 3 Revenue Share Payable for 33 Years 7.97 1.56
TOTAL REVENUE 24.12 5.75 *******
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ANNEXURE - 1 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY PROJECT COST AND MEANS OF FINANCE
A. PROJECT COST Rs. Crore Description % PC Amount 1. Land on Lease 0.00% 0.00 2. Buildings Construction and Civil Works 51.82% 8.28 3. Plant & Machinery 24.01% 3.84 4. Electrical Works and MFA 9.17% 1.47 5. Preliminary Expenses 1.51% 0.24 6. Pre-operative Expenses 3.50% 0.56 7. Project Development Fees 1.00% 0.16 8. Interest During Construction 3.68% 0.59 9. Deposits 2.63% 0.42 10. Contingencies @2% of Civil, P & M & Furniture 2.12% 0.34 11. Working Capital Margin 0.56% 0.09 Total 100.00% 15.99
B. MEANS OF FINANCE Rs. Crore Description Amount
1. Equity from Promoters 33.06% 5.29 2. Term Loan 66.94% 10.70
Total 15.99 Debt Equity Ratio 2.02 ANNEXURE - 2 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY REVENUE PROJECTIONS Rs. Crore Year Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 No of Months of Operation 12 12 12 12 12 12 12 12 12 12 ROOMS 40 40 40 40 40 40 40 40 40 40 No of Days 365 365 365 365 365 365 365 365 365 365 Occupancy Ratio 60% 60% 70% 70.0% 70.0% 70% 70% 70% 70% 70% Annual Escalation 5% 5% 5% 5% 5% 5% 5% 5% 5% Total Room Room Type Rooms Tariff (Rs) Sales /Day 65%Deluxe Room 26 1200 31200 30%Executive Room 12 1250 15000 5%Suites 2 1500 3000 Total Rooms 40 1230 49200 Average Room Rate (ARR) 1230 1292 1357 1425 1496 1571 1650 1733 1820 1911 Total Room Sales -Rs Crore (1) 1.08 1.13 1.39 1.46 1.53 1.61 1.69 1.77 1.86 1.95
Convention Centre Occupancy Ratio 75% 80.0% 80% 80.0% 80.0% 80% 80% 80% 80% 80% Total Number of Halls 2 2 2 2 2 2 2 2 2 2 No of Functions per annum 120 120 120 120 120 120 120 120 120 120 Other Events Lean Period 60 60 60 60 60 60 60 60 60 60
Total Functions-Marriage and Events 180 192 192 192 192 192 192 192 192 192 Total Functions -Other Events 90 96 96 96 96 96 96 96 96 96 00 00000000 Marriages and Events 150000 157500 165375 173644 182326 191442 201014 211065 221618 232699 Other Events 75000 78750 82688 86822 91163 95721 100507 105533 110809 116350 Total Convention Centre 3.38 3.78 3.97 4.17 4.38 4.59 4.82 5.07 5.32 5.58 ANNEXURE 2 Contd. SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY REVENUE PROJECTIONS Rs. Crore Year Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 Food and Beverage Sales F& B Sales (% of Room Sales) 30.00% 30.0% 45.0% 45.0% 45.0% 45.0% 45.0% 45.0% 45.0% 45.0% F& B Sales (Rs. Crore) 0.32 0.34 0.62 0.66 0.69 0.72 0.76 0.80 0.84 0.88 Minor Department Sales On Room Rev 2.0% MOD Sales (Rs Crore) 0.02 0.02 0.03 0.03 0.03 0.03 0.03 0.04 0.04 0.04 SUMMARY OF REVENUE PROJECTIONS #### Revenue from Room Sales 1.08 1.13 1.39 1.46 1.53 1.61 1.69 1.77 1.86 1.95 6.4% Revenue from F&B 0.32 0.34 0.62 0.66 0.69 0.72 0.76 0.80 0.84 0.88 Revenue from Conferences and Ball #### Rooms 3.38 3.78 3.97 4.17 4.38 4.59 4.82 5.07 5.32 5.58 Revenue from Minor Dept (Laundry, 0.4% Spa, Bouquette etc., 0.02 0.02 0.03 0.03 0.03 0.03 0.03 0.04 0.04 0.04 Total Sales 4.80 5.27 6.01 6.31 6.62 6.95 7.30 7.67 8.05 8.46 ANNEXURE 3 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY COST PROJECTIONS - EXPENSES Rs. Crore Particulars Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 No of Months 12 12 12 12 12 12 12 12 12 12
Food & Beverages (on F&B Room Sales) 0.16 0.17 0.31 0.33 0.34 0.36 0.38 0.40 0.42 0.44 50% Up-Keep Maintenance (on Total Rev) 0.24 0.26 0.30 0.32 0.33 0.35 0.37 0.38 0.40 0.42 5% Repairs & Maintenance Total Fixed Assests 15.23 Costs on Percentage of Assests 0.50% Total Repairs & Main Rs in Crore 0.08 0.08 0.08 0.09 0.09 0.10 0.10 0.11 0.11 0.12
Power & Fuel (on Revenue) 0.24 0.26 0.30 0.32 0.33 0.35 0.37 0.38 0.40 0.42 5% Admin Expenses (on Total Revenue) 0.10 0.11 0.12 0.13 0.13 0.14 0.15 0.15 0.16 0.17 2% Selling Expenses (on Total Revenue) 0.10 0.11 0.12 0.13 0.13 0.14 0.15 0.15 0.16 0.17 2% ANNEXURE - 4 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY DETAILS OF MANPOWER REQUIRED Rs. Crore Particulars No. Salary/ Annual month Wages & Salaries
Rs. Rs. Crore
WAGES F & B Assitants 2 12000 0.03 OtherF&Bstaff(barman,casual, 5 12000 0.07 House Keeping In charge 1 20000 0.02 Supervisors 2 20000 0.05 Other House Keeping Staff (Room 5 12000 0.07 Attendants, laundry, casual etc.) Other Maintenance Staff (Electrician, plumber etc. 1 12000 0.01 Other Staff - Helpers 6 10000 0.07 Total 22 0.33 Add: Fringe Benefits Total 0.33
ADMINISTRATIVE SALARIES General Manager 1 45000 0.05 Accountant / Assistants 2 12000 0.03 Front Office Personnel 3 12000 0.04 Security 6 9000 0.06 12 0.19 Add: Fringe Benefits Total 0.19 TOTAL 34 0.52
Rs. Crore Particulars Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 No of Months 12 12 12 12 12 12 12 12 12 12 WAGES 0.33 0.35 0.37 0.38 0.40 0.42 0.44 0.47 0.49 0.51 ADMINISTRATIVE SALARIES 0.19 0.20 0.21 0.22 0.23 0.24 0.26 0.27 0.28 0.30 ANNEXURE - 5 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY PROJECTED PROFITABILITY STATEMENT Rs. Crore Particulars Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 Income Sales - 4.80 5.27 6.01 6.31 6.62 6.95 7.30 7.67 8.05 8.46 Total Income 4.80 5.27 6.01 6.31 6.62 6.95 7.30 7.67 8.05 8.46
Expenditure Food & Beverages (on F&B Room Sales) 0.16 0.17 0.31 0.33 0.34 0.36 0.38 0.40 0.42 0.44 Up-Keep Maintenance (on Total Rev) 0.24 0.26 0.30 0.32 0.33 0.35 0.37 0.38 0.40 0.42 Direct wages 0.33 0.35 0.37 0.38 0.40 0.42 0.44 0.47 0.49 0.51 Repairs & Maintenance 0.08 0.08 0.08 0.09 0.09 0.10 0.10 0.11 0.11 0.12 Power & Fuel (on Revenue) 0.24 0.26 0.30 0.32 0.33 0.35 0.37 0.38 0.40 0.42 Total Variable Costs 1.05 1.12 1.36 1.43 1.50 1.58 1.66 1.74 1.83 1.92
Contribution 3.75 4.15 4.65 4.88 5.12 5.38 5.65 5.93 6.23 6.54 Contribution (%) 78.14% 78.67% 77.33% 77.33% 77.33% 77.33% 77.33% 77.33% 77.33% 77.33%
Fixed & Semi-Variable Expenses Admin Expenses (on Total Revenue) 0.10 0.11 0.12 0.13 0.13 0.14 0.15 0.15 0.16 0.17 Adminstrative Salary 0.19 0.20 0.21 0.22 0.23 0.24 0.26 0.27 0.28 0.30 Revenue share@3% of Revnue to Authority 0.00 0.12 0.13 0.13 0.14 0.15 0.15 0.16 0.17 0.18 Selling Expenses (on Total Revenue) 0.10 0.11 0.12 0.13 0.13 0.14 0.15 0.15 0.16 0.17 Lease Rental for Land 0.29 0.32 0.32 0.32 0.35 0.35 0.35 0.38 0.38 0.38 Pre. Expens Set Off 0.04 0.04 0.04 0.04 0.04 0.04 0.00 0.00 0.00 0.00 Total Fixed Costs 0.71 0.89 0.93 0.96 1.02 1.06 1.05 1.12 1.16 1.19
Total Expenditure 1.76 2.01 2.29 2.39 2.53 2.63 2.70 2.86 2.98 3.11 5.99% 8.27% 7.36% 7.11% 7.35% 7.10% 6.86% 7.09% 6.85% ANNEXURE - 5 Contd Particulars Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
PBIDT 3.04 3.26 3.71 3.92 4.10 4.32 4.60 4.81 5.07 5.34 PBIDT (%) 63.3% 61.8% 61.8% 62.1% 61.9% 62.2% 63.0% 62.7% 63.0% 63.2% Interest on TL 1.17 1.08 0.97 0.85 0.72 0.58 0.44 0.28 0.11 0.00 Interest on WC 0.02 0.02 0.03 0.03 0.03 0.03 0.03 0.03 0.03 0.03 11.00% Profit/Loss Before Depr. 1.85 2.16 2.71 3.04 3.35 3.71 4.13 4.50 4.93 5.31 Less: Depreciation (SLM) 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 Profit Before Tax (PBT) 1.08 1.40 1.95 2.27 2.59 2.95 3.37 3.74 4.17 4.55 PBT/Sales 22.6% 26.5% 32.4% 36.0% 39.1% 42.4% 46.1% 48.8% 51.7% 53.8% Other Income 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Profit/Loss before Taxes 1.08 1.40 1.95 2.27 2.59 2.95 3.37 3.74 4.17 4.55 Tax 0.23 0.30 0.42 0.52 0.66 0.81 0.96 1.10 1.25 1.39 Profit After Tax (PAT) 0.85 1.10 1.53 1.75 1.93 2.14 2.41 2.64 2.92 3.16 Cash Accruals 1.61 1.86 2.29 2.51 2.69 2.90 3.17 3.40 3.68 3.93 TAX CALCULATION Profit Before Tax (PBT) 1.08 1.40 1.95 2.27 2.59 2.95 3.37 3.74 4.17 4.55 Add: Dep-normal 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 Total 1.85 2.16 2.71 3.04 3.35 3.71 4.13 4.50 4.93 5.31 Less: IT Dep 1.90 1.65 1.43 1.24 1.08 0.94 0.82 0.72 0.63 0.55 Taxable Profits under IT Act (0.06) 0.51 1.28 1.79 2.27 2.77 3.31 3.78 4.30 4.76 Carry over losses (0.06) 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Adjusted Taxable Profits under IT Act (0.06) 0.45 1.28 1.79 2.27 2.77 3.31 3.78 4.30 4.76 29.12% Prov. for Tax @33.99% 0.00 0.15 0.37 0.52 0.66 0.81 0.96 1.10 1.25 1.39 (30% Tax + 10% SC.+ED Cess 3%)
MAT 0.23 0.30 0.42 0.49 0.56 0.64 0.73 0.81 0.90 0.98 (18.5% Tax+12% SC.+ED Cess 3%) 21.55% Income Tax payable 0.23 0.30 0.42 0.52 0.66 0.81 0.96 1.10 1.25 1.39 (MAT or Income Tax whichever is higher) ANNEXURE 6 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY DEPRECIATION - SLM METHOD Description Cost ContingenciesPre-Operative TOTAL Building & Civil Works 8.28 0.21 0.80 9.29 Plant & Machinery 3.84 0.10 0.37 4.30 Electrical Installation 1.47 0.04 0.14 1.64 Furniture and OFA 0.00 0.00 0.00 0.00 13.59 0.34 1.31 15.23 Rs. Crore Particulars Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
Buildings 0.31 0.31 0.31 0.31 0.31 0.31 0.31 0.31 0.31 0.31 3.34% Plant & Machinery 0.29 0.29 0.29 0.29 0.29 0.29 0.29 0.29 0.29 0.29 6.67% Elecrical Installation 0.16 0.16 0.16 0.16 0.16 0.16 0.16 0.16 0.16 0.16 10.00% OFA 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 10.00% Total 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 ANNEXURE - 6 (Contd.) DEPRECIATION - AS PER INCOME TAX ACT, 1962 - WDV METHOD Rs. Crore Year Cost Dep. Rate Dep. WDV Amount BUILDINGS Year Year 1 9.29 10% 0.93 8.36 Year 2 8.36 10% 0.84 7.52 Year 3 7.52 10% 0.75 6.77 Year 4 6.77 10% 0.68 6.09 Year 5 6.09 10% 0.61 5.48 Year 6 5.48 10% 0.55 4.94 Year 7 4.94 10% 0.49 4.44 Year 8 4.44 10% 0.44 4.00 Year 9 4.00 10% 0.40 3.60 Year 10 3.60 10% 0.36 3.24 PLANT & MACHINERY Year Year 1 4.30 15% 0.65 3.66 Year 2 3.66 15% 0.55 3.11 Year 3 3.11 15% 0.47 2.64 Year 4 2.64 15% 0.40 2.25 Year 5 2.25 15% 0.34 1.91 Year 6 1.91 15% 0.29 1.62 Year 7 1.62 15% 0.24 1.38 Year 8 1.38 15% 0.21 1.17 Year 9 1.17 15% 0.18 1.00 Year 10 1.00 15% 0.15 0.85 Electricals Year Year 1 1.64 20% 0.33 1.31 Year 2 1.31 20% 0.26 1.05 Year 3 1.05 20% 0.21 0.84 Year 4 0.84 20% 0.17 0.67 Year 5 0.67 20% 0.13 0.54 Year 6 0.54 20% 0.11 0.43 Year 7 0.43 20% 0.09 0.34 Year 8 0.34 20% 0.07 0.28 Year 9 0.28 20% 0.06 0.22 Year 10 0.22 20% 0.04 0.18 TOTAL DEPRECIATION YEAR BUILDINGS P & M MFA DEP.AMOUNT Year 1 0.93 0.65 0.33 1.90 Year 2 0.84 0.55 0.26 1.65 Year 3 0.75 0.47 0.21 1.43 Year 4 0.68 0.40 0.17 1.24 Year 5 0.61 0.34 0.13 1.08 Year 6 0.55 0.29 0.11 0.94 Year 7 0.49 0.24 0.09 0.82 Year 8 0.44 0.21 0.07 0.72 Year 9 0.40 0.18 0.06 0.63 Year 10 0.36 0.15 0.04 0.55 ANNEXURE - 7 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY PROJECTED WORKING CAPITAL REQUIREMENT Rs. Crore Description SHP Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 No of Month 12 12 12 12 12 12 12 12 12 12 Current Assets Materials & Consumables 1.50 0.05 0.05 0.08 0.08 0.08 0.09 0.09 0.10 0.10 0.11 Bills Receivables 0.70 0.28 0.31 0.35 0.37 0.39 0.41 0.43 0.45 0.47 0.49 Total Current Assets (CA) 0.33 0.36 0.43 0.45 0.47 0.49 0.52 0.55 0.57 0.60 Less: Sundry Creditors (CL) 0.50 0.04 0.05 0.06 0.06 0.06 0.07 0.07 0.07 0.08 0.08 Working Capital (CA-CL) 0.29 0.31 0.37 0.39 0.41 0.43 0.45 0.47 0.50 0.52
Bank Finance(75%) 0.20 0.20 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 Promoter's Margin(25%) 0.09 0.11 0.07 0.09 0.11 0.13 0.15 0.17 0.20 0.22 ANNEXURE - 8 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES INTEREST AND REPAYMENT SCHEDULE
Term Loan Rs. 11 Crore Interest Rate 11.00% Rs. Crore Opening Repayment Closing Period Interest Total Balance Balance Year Disbursement (Rs Crore) Year 1 Qaurter 1 0.00 0.00 0.003 Month 0.00 25% Qaurter 2 0.00 0.00 0.003 Month 0.00 25% Qaurter 3 0.00 0.00 0.00 0.003 Month 0.00 25% Qaurter 4 0.00 0.00 0.00 0.003 Month 0.00 25% 0.00 0.00 0.00 IDC = 0.59 Year 2 Qaurter 1 2.6750 0.00 0.00 2.683 Month 0.04 Qaurter 2 2.6750 2.68 0.00 5.353 Month 0.11 Qaurter 3 2.6750 5.35 0.00 8.033 Month 0.18 Qaurter 4 2.6750 8.03 0.00 10.703 Month 0.26 10.70 0.00 0.59 COMMERCIAL OPERATION Year 1 Qaurter 1 0.00 10.70 0.00 10.703 Month 0.29 Qaurter 2 0.00 10.70 0.00 10.703 Month 0.29 Qaurter 3 0.00 10.70 0.25 10.453 Month 0.29 Qaurter 4 0.00 10.45 0.25 10.203 Month 0.29 0.50 1.17 Year 2 Qaurter 1 0.00 10.20 0.25 9.953 Month 0.28 Qaurter 2 0.00 9.95 0.25 9.703 Month 0.27 Qaurter 3 0.00 9.70 0.25 9.453 Month 0.27 Qaurter 4 0.00 9.45 0.25 9.203 Month 0.26 1.00 1.08 Year 3 Qaurter 1 0.00 9.20 0.26 8.943 Month 0.25 Qaurter 2 0.00 8.94 0.26 8.683 Month 0.25 Qaurter 3 0.00 8.68 0.26 8.423 Month 0.24 Qaurter 4 0.00 8.42 0.26 8.163 Month 0.23 1.04 0.97 Year 4 Qaurter 1 0.00 8.16 0.30 7.863 Month 0.22 Qaurter 2 0.00 7.86 0.30 7.563 Month 0.22 Qaurter 3 0.00 7.56 0.30 7.263 Month 0.21 Qaurter 4 0.00 7.26 0.30 6.963 Month 0.20
1.20 0.85 ANNEXURE - 8 (Contd.) Year DisbursementOpening Repayment Closing Period Interest Total Balance Balance (Rs Crore) Year 5 Qaurter 1 0.00 6.96 0.300 6.66 3 Month 0.19 Qaurter 2 0.00 6.66 0.30 6.36 3 Month 0.18 Qaurter 3 0.00 6.36 0.30 6.06 3 Month 0.17 Qaurter 4 0.00 6.06 0.30 5.76 3 Month 0.17 1.20 0.72 Year 6 Qaurter 1 0.00 5.76 0.32 5.44 3 Month 0.16 Qaurter 2 0.00 5.44 0.32 5.12 3 Month 0.15 Qaurter 3 0.00 5.12 0.32 4.80 3 Month 0.14 Qaurter 4 0.00 4.80 0.32 4.48 3 Month 0.13 1.28 0.58 Year 7 Qaurter 1 0.00 4.48 0.35 4.13 3 Month 0.12 Qaurter 2 0.00 4.13 0.35 3.78 3 Month 0.11 Qaurter 3 0.00 3.78 0.35 3.43 3 Month 0.10 Qaurter 4 0.00 3.43 0.35 3.08 3 Month 0.09 1.40 0.44 Year 8 Qaurter 1 0.00 3.08 0.37 2.71 3 Month 0.08 Qaurter 2 0.00 2.71 0.37 2.34 3 Month 0.07 Qaurter 3 0.00 2.34 0.37 1.97 3 Month 0.06 Qaurter 4 0.00 1.97 0.37 1.60 3 Month 0.05 1.48 0.28 Year 9 Qaurter 1 0.00 1.60 0.40 1.20 3 Month 0.04 Qaurter 2 0.00 1.20 0.40 0.80 3 Month 0.03 Qaurter 3 0.00 0.80 0.40 0.40 3 Month 0.02 Qaurter 4 0.00 0.40 0.40 0.00 3 Month 0.01 1.60 0.11 Year 10 Qaurter 1 0.00 0.00 0.00 0.00 3 Month 0.00 Qaurter 2 0.00 0.00 0.00 0.00 3 Month 0.00 Qaurter 3 0.00 0.00 0.00 0.00 3 Month 0.00 Qaurter 4 0.00 0.00 0.00 0.00 3 Month 0.00 0.00 0.00
10.70 Particulars Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 Interest Term Loan 1.17 1.08 0.97 0.85 0.72 0.58 0.44 0.28 0.11 0.00 Total Interest 1.17 1.08 0.97 0.85 0.72 0.58 0.44 0.28 0.11 0.00 Repayment Term Loan 0.50 1.00 1.04 1.20 1.20 1.28 1.40 1.48 1.60 0.00 Total Repayment 0.50 1.00 1.04 1.20 1.20 1.28 1.40 1.48 1.60 0.00
ANNEXURE - 9 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY PROJECTED BALANCE SHEETS Rs. Crore Particulars Constr. Period Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 Own Funds Capital 5.20 5.29 5.29 5.29 5.29 5.29 5.29 5.29 5.29 5.29 5.29 Profit & Loss Account 0.00 0.85 1.95 3.48 5.23 7.15 9.30 11.70 14.34 17.26 20.42 Sub-Total 5.20 6.14 7.23 8.76 10.51 12.44 14.58 16.99 19.63 22.54 25.71 Long Term Loans Shareholders/Directors Term Loan from Bank 10.20 9.20 8.16 6.96 5.76 4.48 3.08 1.60 0.00 0.00 0.00 Sub-Total 10.20 9.20 8.16 6.96 5.76 4.48 3.08 1.60 0.00 0.00 0.00 Current Liabilities Bank Finance - WC 0.00 0.20 0.20 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 Payment Due with One Year 0.50 1.00 1.04 1.20 1.20 1.28 1.40 1.48 1.60 0.00 0.00 Current Liabilities 0.00 0.04 0.05 0.06 0.06 0.06 0.07 0.07 0.07 0.08 0.08 Total Current Liabilities 0.50 1.24 1.29 1.56 1.56 1.64 1.77 1.85 1.97 0.38 0.38 TOTAL SOURCE OF FUNDS 15.90 16.58 16.68 17.28 17.83 18.56 19.43 20.44 21.60 22.92 26.09 APPLICATION OF FUNDS Fixed Assets Gross Block 15.23 15.23 15.23 15.23 15.23 15.23 15.23 15.23 15.23 15.23 15.23 Less: Depreciation 0.00 0.76 1.52 2.28 3.05 3.81 4.57 5.33 6.09 6.85 7.61 Net Block 15.23 14.47 13.71 12.95 12.19 11.43 10.67 9.90 9.14 8.38 7.62 Deposits 0.42 0.42 0.42 0.42 0.42 0.42 0.42 0.42 0.42 0.42 0.42 Other Non Current Assets 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Sub-Total 15.65 14.89 14.13 13.37 12.61 11.85 11.09 10.32 9.56 8.80 8.04 Current Assets Current Assets 0.00 0.33 0.36 0.43 0.45 0.47 0.49 0.52 0.55 0.57 0.60 Other Current Assets 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Cash & Bank Balance 0.00 1.16 2.03 3.36 4.70 6.20 7.85 9.59 11.49 13.54 17.45 Sub-Total 0.00 1.49 2.39 3.79 5.14 6.68 8.34 10.11 12.04 14.12 18.05 Preliminary Expenses 0.24 0.20 0.16 0.12 0.08 0.04 0.00 0.00 0.00 0.00 0.00 TOTAL APPLN. OF FUNDS 15.90 16.58 16.68 17.28 17.83 18.56 19.43 20.44 21.60 22.92 26.09 Balance Check 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
ANNEXURE - 10 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY PROJECTED FUNDS FLOW STATEMENT Rs. Crore Particulars Constr. Period Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 A. SOURCES OF FUNDS Profit After Tax (PAT) 0.85 1.10 1.53 1.75 1.93 2.14 2.41 2.64 2.92 3.16 Increase in Capital 5.20 0.09 Increase in Term Loan 10.70
Increase in Working Capital 0.20 0.00 0.10 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Prel.Expenses W/off 0.04 0.04 0.04 0.04 0.04 0.04 0.00 0.00 0.00 0.00 Depreciation 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 Current Liabilities 0.04 0.00 0.01 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Total A 15.90 1.99 1.90 2.44 2.56 2.73 2.95 3.17 3.40 3.68 3.93
B. DISPOSITION OF FUNDS Capital Expenditure 15.23 Electricity & other Deposits 0.42 Repayment of Term Loan 0.50 1.00 1.04 1.20 1.20 1.28 1.40 1.48 1.60 0.00 Increase in Current assets 0.33 0.03 0.07 0.02 0.02 0.02 0.02 0.03 0.03 0.03 Preliminary Expans 0.24 Increase in Other Current Assets Increase in Non Current Assets Total B 15.90 0.83 1.03 1.11 1.22 1.22 1.30 1.42 1.51 1.63 0.03
Surplus A-B 0.00 1.16 0.87 1.34 1.33 1.51 1.64 1.75 1.90 2.05 3.90
Opening Balance 0.00 0.00 1.16 2.03 3.36 4.70 6.20 7.85 9.59 11.49 13.54
Closing balance 0.00 1.16 2.03 3.36 4.70 6.20 7.85 9.59 11.49 13.54 17.45
ANNEXURE -11 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY BREAK EVEN ANALYSIS Rs. Crore Description Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
SALES 4.80 5.27 6.01 6.31 6.62 6.95 7.30 7.67 8.05 8.46
Cost of Sales -Dep+Int On WC 1.07 1.15 1.39 1.46 1.53 1.61 1.69 1.77 1.86 1.95
CONTRIBUTION 3.73 4.13 4.61 4.85 5.09 5.35 5.61 5.90 6.19 6.51
Fixed/Semi-variable Expenses - Depreciation 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 - Fixed Costs 0.71 0.89 0.93 0.96 1.02 1.06 1.05 1.12 1.16 1.19 - Interest 1.17 1.08 0.97 0.85 0.72 0.58 0.44 0.28 0.11 0.00
Sub Total 2.64 2.73 2.66 2.57 2.50 2.40 2.25 2.16 2.03 1.96
Break Even Point 70.89% 66.15% 57.74% 53.07% 49.15% 44.86% 39.99% 36.59% 32.72% 30.06%
BE Sales (Operating Cap) 3.40 3.49 3.47 3.35 3.26 3.12 2.92 2.81 2.64 2.54
Cash BEP (%) 50.46% 47.70% 41.24% 37.36% 34.19% 30.61% 26.43% 23.68% 20.43% 18.36% Cash Break Even Sales 2.42 2.52 2.48 2.36 2.26 2.13 1.93 1.82 1.65 1.55 ANNEXURE - 12 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY DEBT SERVICE COVERAGE RATIO (GROSS) Rs. Crore PARTICULARS Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
A. COVERAGE Profit After Tax (PAT) 0.85 1.10 1.53 1.75 1.93 2.14 2.41 2.64 2.92 3.16 Depreciation 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 Interest on term loan 1.17 1.08 0.97 0.85 0.72 0.58 0.44 0.28 0.11 0.00 Prel. & Pre.op Expns W/off 0.04 0.04 0.04 0.04 0.04 0.04 0.00 0.00 0.00 0.00
TOTAL COVERAGE 2.82 2.98 3.30 3.40 3.44 3.52 3.60 3.68 3.79 3.93
B. SERVICE
Term loan Instalment 0.50 1.00 1.04 1.20 1.20 1.28 1.40 1.48 1.60 0.00 Interest on term loan 1.17 1.08 0.97 0.85 0.72 0.58 0.44 0.28 0.11 0.00
TOTAL SERVICE 1.67 2.08 2.01 2.05 1.92 1.86 1.84 1.76 1.71 0.00
DSCR 1.69 1.43 1.64 1.66 1.80 1.89 1.96 2.09 2.21 -
AVERAGE DSCR (GROSS) 1.81 Min DSCR 1.43 Max 2.09 ANNEXURE - 12 (Contd.) SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY DEBT SERVICE COVERAGE RATIO (NET) Rs. Crore PARTICULARS Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 A. COVERAGE Profit After Tax (PAT) 0.85 1.10 1.53 1.75 1.93 2.14 2.41 2.64 2.92 3.16 Depreciation 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 Prel. & Pre.op Expns W/off 0.04 0.04 0.04 0.04 0.04 0.04 0.00 0.00 0.00
TOTAL COVERAGE 1.65 1.90 2.33 2.55 2.73 2.94 3.17 3.40 3.68 3.93
B. SERVICE
Repayment of Term Loan 0.50 1.00 1.04 1.20 1.20 1.28 1.40 1.48 1.60 0.00
TOTAL SERVICE 0.50 1.00 1.04 1.20 1.20 1.28 1.40 1.48 1.60 0.00
DSCR 3.31 1.90 2.24 2.13 2.27 2.30 2.26 2.30 2.30 -
AVERAGE DSCR (NET) 2.28 Min DSCR 2.13 Max 3.31 ANNEXURE - 13 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY INTERNAL RATE OF RETURN Rs. Crore PARTICULARS Const.Period Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 A. CASH OUTFLOWS
Outflows -15.99 TOTAL ----A -15.99
B. CASH INFLOWS
Profit After Tax (PAT) 0.85 1.10 1.53 1.75 1.93 2.14 2.41 2.64 2.92 3.16 Depreciation 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 0.76 Interest on term loan 1.17 1.08 0.97 0.85 0.72 0.58 0.44 0.28 0.11 0.00 Prel. & Pre.op Expns 0.04 0.04 0.04 0.04 0.04 0.04 0.00 0.00 0.00 0.00 Working Capital Margin 0.09 Salvage Value of 8.38 Fixed Assets
TOTAL ----B 0 2.82 2.98 3.30 3.40 3.44 3.52 3.60 3.68 12.26 3.93
CASH FLOWS -15.99 2.82 2.98 3.30 3.40 3.44 3.52 3.60 3.68 12.26 3.93
INTERNAL RATE OF RETURN (IRR) 17.99% ANNEXURE - 14 SVLNS DEVASTHANAM- VEPAGUNTA AND ADAVI VARAM SITES FEASIBILITY STUDY SECURITY COVER (Rs. Crore) PARTICULARS Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
Depreciated value of Fixed Assets 14.47 13.71 12.95 12.19 11.43 10.67 9.90 9.14 8.38 7.62
Aggregate TL O/s 10.20 9.20 8.16 6.96 5.76 4.48 3.08 1.60 0.00 0.00
Security Margin 4.27 4.51 4.79 5.23 5.67 6.19 6.82 7.54 8.38 7.62
% of Margin 29.53% 32.90% 36.99% 42.90% 49.59% 58.00% 68.90% 82.50% 100.00% 100.00%
Average Security Margin 51.93%
Draft Concession Agreement
Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode
Executive Officer Sri Varaha Lakshmi NarasimhaSwamyDevasthanam Simhachalam Rd, Simhachalam, Visakhapatnam, Andhra Pradesh 530028 Schedule-1: Draft Concession Agreement
(This draft Concession Agreement will be finalised in terms of RFP conditions (including Addenda) once the Preferred Bidder is selected and meets the Pre-conditions of the Agreement) TABLE OF ARTICLES
Articles Description Page
Article 1: Definitions and Interpretation 3
1.1 Definitions 3
1.2 Interpretation 13
1.3 Priority of agreements, Articles and schedules 16
Article 2: Scope of the Project 17
2.1 Scope of the Project 17
2.2 Brief Scope of Work 18
Article 3: Grant of Concession 18
3.1 The Concession 18
3.2 Grant of Access to the Site 18
Article 4: Conditions Precedent 20
4.1 Conditions Precedent 20
4.2 Damages for delay by the Authority 21
4.3 Damages for delay by the Concessionaire 21
4.4 Deemed Termination upon delay 21
Article 5: Obligations of the Concessionaire 24
5.1 Obligations of the Concessionaire 23
5.2 Obligations relating to Project Agreements 24
5.3 Obligations relating to Change in Ownership 25
5.4 Obligations relating to operations 25
Article 6: Obligations of the Authority 26
6.1 Obligations of the Authority 26
Article 7: Representations and Warranties 27
7.1 Representations and warranties of the Concessionaire 27
7.2 Representations and warranties of the Authority 29
7.3 Disclosure 29
Article 8: Disclaimer 30 Articles Description Page
8.1 Disclaimer 30
Article 9: Performance Guarantee/Security 31
9.1 Performance Guarantee Security 31
9.2 Appropriation of Performance Guarantee Security 31
9.3 Validity of Performance Guarantee Security 31
9.4 Release of Performance Guarantee Security 32
9.5 References to Performance Guarantee Security 32
Article 10: Construction of Project Facility 33
10.1 Obligations prior to commencement of construction 33
Article 11: Monitoring of Construction 34
11.1 Monthly progress reports 34
11.2 Inspection 34
11.3 Delays during construction 34
Article 12: Completion Certificate 35
12.1 Tests 35
12.2 Completion Certificate 35
12.3 Provisional Certificate 35
12.4 Withholding of Provisional or Completion Certificate 36
12.5 Commercial Operations Date 36 Article 13: Change of Scope 37
13.1 Change of Scope 37
13.2 Procedure for Change of Scope 37
Article 14: Operation and Maintenance 38
14.1 O&M obligations of the Concessionaire 38
14.2 Maintenance Requirements 39
14.3 Excuse from performance of obligations 39 Article 15: Monitoring of Operation and Maintenance 40
15.1 Monthly status reports 40
15.2 Reports of unusual occurrence 40 Articles Description Page
Article16: Security of the Project Facility 41
16.1 Security 41
Article 17: Change in Specifications 42
Article 18: Independent Engineer 43
18.1 Appointment of Independent Engineer 43
18.2 Duties and functions 43
18.3 Remuneration 43
18.4 Termination of appointment 43
18.5 Authorised signatories 43
18.6 Dispute resolution 44
Article 19: Financial Closure 45
19.1 Financial Closure 45
19.2 Termination due to failure to achieve Financial Closure 45
Article 20: Revenue share 46
20.1 Revenue Share 46
Article 21: User Charges 47
21.1 User Charges 47
21.2 Taxes and duties 47
Article 22: Accounts and Audit 48
22.1 Audited accounts 48
22.2 Appointment of auditors 48
22.3 Certification of claims by Statutory Auditors 48
22.4 Dispute resolution 49
Article 23: Force Majeure 50
23.1 Force Majeure 50
23.2 Non-Political Event 50
23.3 Indirect Political Event 51
23.4 Political Event 51 Articles Description Page
23.5 Duty to report Force Majeure Event 52
23.6 Effect of Force Majeure Event on the Concession 52
23.7 Allocation of costs arising out of Force Majeure 52
23.8 Termination Notice for Force Majeure Event 53
23.9 Dispute resolution 53
23.10 Excuse from performance of obligations 53
Article 24: Compensation for Breach of Agreement 55
24.1 Compensation for default by the Concessionaire 55
24.2 Compensation for default by the Authority 55
24.3 Compensation to be in addition 55
24.4 Mitigation of costs and damage 55
Article 25: Suspension of Concessionaire’s Rights 56
25.1 Suspension upon Concessionaire Default 56
25.2 Authority to act on behalf of Concessionaire 56
25.3 Revocation of Suspension 56
25.4 Substitution of Concessionaire 56
25.5 Termination 57
Article 26: Termination 58
26.1 Termination for Concessionaire Default 58
26.2 Termination for Authority Default 60
26.3 Termination Payment 60
26.4 Certain limitations on Termination Payment 61
26.5 Other rights and obligations of the Authority 61
26.6 Survival of rights 61
26.7 Inspection and cure 61
26.8 Cooperation and assistance on transfer of Project 62
Article27: Defects Liability after Termination 63
27.1 Defects Liability for defects after Termination 63 Articles Description Page
27.2 Restrictions on assignment and charges 63
27.3 General indemnity 63
27.4 Licensee rights 64
27.5 Access rights of the Authority and others 64
Article28: Dispute Resolution 65
28.1 Dispute resolution 65
28.2 Conciliation 65
28.3 Arbitration 65
28.4 The Site 66
28.5 Development of the Project 66
Article29: Rights and Title Over The Site 67 29.1 Licensee rights 67 29.2 Access rights of the Authority and others 67 29.3 Property Taxes 67 Article 30 Insurance 68 30.1 Insurance during Concession Period 68 PERFORMANCE SECURITY GUARANTEE 69
PROVISIONAL CERTIFICATE 72
COMPLETION CERTIFICATE 73 PART I: PRELIMINARY
Concession Agreement
THIS AGREEMENT is entered into on this the ……………………… day of...... , 20…..
BETWEEN
1. Sri Varaha Lakshmi Narasimha Swamy Devasthanam, a Trust under the control of the Government of Andhra Pradesh having its principal office at……….Andhra Pradesh, India (hereinafter referred to as the “Authority” which expression shall, unless repugnant to the context or meaning thereof, include its administrators, successors and assigns) of One Part;
AND
2 {...... LIMITED}, a company /firm incorporated under the provisions of the Companies Act, 2013/Partnership Act and having its registered office at ...... , (hereinafter referred to as the “Concessionaire” which expression shall, unless repugnant to the context or meaning thereof, include its successors and permitted assigns and substitutes) of the Other Part.
WHEREAS:
(A) The Authority has decided to (SCOPE OF THE ASSIGNMENT/WORK).
(B) The Authority accordingly invited bids by its “Request for Proposal” or “ RFP”) for selection of bidders for construction, operation and maintenance of the above referred Project on (MODE OF PPP) , basis and had selected a bidder inter alia, the {the selected bidder/ consortium comprising ………………………………… and ……………………………. (collectively the “Consortium”) with ……………. as its lead member (the “Lead Member”)}.
(C) The Authority had prescribed the technical and commercial terms and conditions, in the invited bids for undertaking the Project.(RFP document)
(D) After evaluation of the bids received, the Authority had accepted the bid of the {selected bidder/ Consortium} and issued its Letter of Award No. …….. dated …………. (hereinafter called the “LOA”) to the {selected bidder/ Consortium} requiring, inter alia, the execution of this Agreement within 30 (thirty) days of the date of issue thereof.
(E) The selected bidder/ Consortium has since promoted and incorporated the Concessionaire as a limited liability company under the Companies Act 2013, and has requested the Authority to accept the Concessionaire as the entity which shall undertake and perform the obligations and exercise the rights of the selected bidder/ Consortium under the LOA, including the obligation to enter into this Agreement pursuant to the LOA for executing the Project.
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(F) By its letter dated …………., the Concessionaire, has also joined in the said request of the selected bidder/ Consortium to the Authority to accept it as the entity which shall undertake and perform the obligations and exercise the rights of the selected bidder/ Consortium including the obligation to enter into this Agreement pursuant to the LOA. The Concessionaire has further represented to the effect that it has been promoted by the selected bidder/ Consortium for the purposes hereof.
(G) The Authority has agreed to the said request of the selected bidder/ Consortium and the Concessionaire, and has accordingly agreed to enter into this Agreement with the Concessionaire for execution of the Project on DBFOT basis, subject to and on the terms and conditions set forth hereinafter.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth in this Agreement, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
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Article 1: Definitions and Interpretation
1.1 Definitions
The words and expressions beginning with capital letters and defined in this Agreement shall, unless the context otherwise requires, have the meaning ascribed thereto herein, and the words and expressions defined in the Schedules and used therein shall have the meaning ascribed thereto in the Schedules.
In this Agreement, including the recitals hereof, the following words and expressions shall, unless repugnant to the context or meaning thereof, have the meaning hereinafter respectively assigned to them:
(a) “Accounting Year” means the financial year commencing on 1st April in each year and ending on 31st March in the next year except in the first and the last calendar year of the subsistence of this Agreement. In the first year of subsistence of this Agreement, it means the period from the signing of Concession Agreement to the immediately following, 31st March. In the last year of subsistence of this Agreement, it means the period from 1st April to the Transfer Date;.
(b) “Affiliate” or “Associate” means with respect to a specified Person, any Person which is a holding company or subsidiary of such specified Person, or any Person which directly or indirectly, (i) owns or controls such specified Person, (ii) is owned or controlled by such specified Person, or (iii) is owned or controlled by the same Person, who, directly or indirectly, owns or controls such specified Person. For the purposes of this Agreement, the terms "holding company" and "subsidiary" shall have the meaning ascribed to them under Section 4 of the Companies Act, 2013 and the term "control" shall mean: i. control over the composition of majority of board of directors of a company; or ii. control of more than 50% (fifty percent) of the issued equity share capital of a company iii. and with respect to a Person which is not a company or corporation, the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise
(c) “Agreement” means this Agreement as of date hereof, including recitals, Appendices and attachments hereto as may be amended, supplemented or modified in accordance with the provisions hereof;
(d) “Appendix” means any of the schedules, supplements or documents, appended to this Agreement;
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(e) “Applicable Laws” means any statute, law, regulation, ordinance, notification, rule, regulation, judgment, order, decree, bye-law, approval, directive, guideline, policy, requirement or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of GOI, GOAP or by any Government Authority or instrumentality thereof, as may be in effect on the date of this Agreement and during the subsistence thereof; (f) “Applicable Permits” means any or all permissions, clearances, Concessions, consents, no- objections, approvals of or from any Government Authority required in connection with the Project and for undertaking, performing or discharging the obligations or fulfillment of the purposes contemplated by this Agreement (g) “Annual Lease Rental” means the annual lease rental payable by the Concessionaire to Authority for the Project Site in accordance with the provisions hereof and the Project Site Lease Deed. (h) “Bank” means any Nationalized/Scheduled (excluding Cooperative) Banks having operations in the City of Vijayawada, Andhra Pradesh.
(i) “Built up Area” or “Floor Area,” or “Built up Space” means the covered area of a building at all floor levels added together, excluding parking.
(j) “Business Day” means a day on which banks are generally open in Visakhapatnam for transaction of normal banking business;
(k) “Commercial Operations” means the occupancy and use by third parties of the relevant Project Facility, pursuant to Contractual Arrangements with the Concessionaire and against payment of User Charges;
(l) “Commercial Operation Date” or “COD” means the date on which the Grantor/Authority issues the Provisional Certificate and / or the Completion Certificate, as the case may be, in respect of the entire Project or any particular Project Facility (as per Minimum Development Obligations), upon receipt of which, the Concessionaire commences Commercial Operations of the respective Project Facility in accordance with the provisions hereof.;
(m) “Completion Certificate” means the certificate issued by Grantor/Authority in the manner set out in Schedule III;
(n) “Compliance Date” shall mean the later of the dates, within a period of one hundred and eighty (180) days from the Agreement Execution Date, by which both the Parties hereto have fulfilled their respective Conditions Precedent in accordance with Article 4 hereof, and upon which this Agreement becomes unconditional and effective;
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(o) “Concession ” shall have the meaning set forth in Article 2.1; (p) “Concessionaire”shall meanM/s ______, a Special Purpose Company (SPC) including its successors and permitted assignees incorporated by the Selected Bidder / Bidding Consortium under Companies Act, 2013, exclusively for developing and implementing the project under consideration on the terms and conditions stipulated in the Concession Agreement. (q) “Concession Period” shall have the meaning specified in Article 2.2; (r) “Condition Precedent” means the conditions set out in Article 4 hereof; (s) ‘Consortium’ shall mean the group of legally constituted entities, who have come together, have agreed or have formed an understanding (in writing) for implementing the Project, subject to the terms of this RFP.
(t) “Construction Contract” means the one or more contracts that are entered into by the Concessionaire with the relevant Contractors in relation to the construction of the Project Facilities
(u) “Construction Period” means the period from the date of execution of this Agreement up to the date of Project Completion(i.e. when the Completion Certificate has been issued for all the Project Facilities);
(v) “Contractor” means a reputed Person with whom the Concessionaire has entered into/ may enter into a contract relating to the Works and subcontractors, including contractors for engineering, procurement and construction of all or any part of the Project Facilities and contractors for operations, management, and maintenance (‘O&M Contractors’), as the context may require, service providers, suppliers and/or any other contractors and sub-contractors, manufacturers or suppliers of Works or part thereof, as the context may admit or require;
(w) “Contractual Arrangements”shall mean and include all and any, licensing, tenancy, franchising and similar arrangements that may be entered into by the Concessionaire, in accordance with and subject always to the terms and conditions of this Concession Agreement, with such Persons selected by it for enabling such Persons to occupy or use or market the whole or part of the Project Facilities including built-up floor areas/spaces, advertising spaces, car parking areas and infrastructure facilities. Provided that the Concessionaire cannot sell title of the Site or the Project Facilities.
(x) “Debt Service” means all payments on account of principal, interest, financing fees and charges due and payable in an Accounting Year to the Lenders under the Financing Documents;
(y) “Demand Draft or DD” means the instrument issued by any Nationalized/Scheduled (Excluding Cooperative) Banks having operations in Vijayawada/Vishakapatnam, Andhra Pradesh. Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode. Page | 5
(z) “Detailed Project Report” or “DPR” means the detailed design and engineering report for the Project, as indicated in the Appendix____
(aa) “Depreciated Historic Cost” or “DHC” means the depreciated historic cost as computed in accordance with Appendix ___
(bb) “Designs and Drawings” means the conceptual and detailed designs, drawings and engineering, project master plans, backup technical information required for the Project Facilities and all calculations, samples, patterns, models, specifications and other technical information relating to the Project, submitted by the Concessionaire from time to time for approval in accordance with the provisions of this Agreement;
(cc) “Development Controls” means the Applicable Laws, guidelines and controls for development and implementation of the Project Facilities set forth in Appendix-__
(dd) “Directive” means any present or future requirement, instruction, direction, order, rule or regulation issued by any Competent Authority which is legally binding or which is notified/directive issued by the AUTHORITY to the Concessionaire and any modification, extension or replacement thereof from time to time in force.
(ee) "Dispute Resolution Procedure" means the procedure for resolution of disputes set forth in Article 22& 28;
(ff) “Easement” means all easements, reservations, rights-of-way, utilities and other similar rights as to the use of real property, which are necessary or appropriate for the conduct of activities of the Concessionaire related to the Project;
(gg) “Encumbrances” means any encumbrance such as a mortgage, charge, pledge, lien, hypothecation, security interest, assignment, privilege or priority of any kind having the effect of security or other obligation or restriction and shall include physical or legal obstructions or encroachments on the whole or any part of the Project Site or Third Party claims or rights of any kind attaching to the whole or any part of the Project Site;
(hh) “Event of Default” means a Concessionaire Event of Default or a Grantor Event of Default or both, as the context may require or admit;
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(ii) “Expert” means any person, body or organization of repute with recognized technical/professional expertise in respect of any field, matter or subject relevant for the purpose of this Agreement, appointed by the Parties by mutual consent, also referred to as third party expert;
(jj) “Execution Date” or “Date of Execution” means the date on which this Concession Agreement is signed by the Parties.
(kk) “Escrow Account” means the bank account in the Escrow Bank into which all the revenue inflows and outflows of the Concessionaire that accrue or arise under, in connection with or pursuant to the Project (including amounts received from User Charges) shall be credited and debited, as the case may be, in accordance with the provisions hereof and of the Escrow Agreement and shall include the sub-accounts of such account;
(ll) “Escrow Agreement” means the agreement to be entered into by and among the Grantor, the Concessionaire the Lenders/Lenders’ representative, and the Escrow Bank, in relation to the opening and operation of the Escrow Account;
(mm) “Escrow Bank” means the bank, mutually agreed upon by the Grantor, the Concessionaire and the Lenders/Lenders’ representative, for the purpose of opening the Escrow Account;
(nn) “Financial Assistance” means the aggregate amounts provided by way of loan, advances, guarantees or otherwise by the Lenders to the Concessionaire for the implementation of the Project and shall include all related financial charges, fees and expenses of all kinds under the Financing Documents relating to the Project;
(oo) “Financial Closure” means the date on which the Financing Documents providing for Financial Assistance by the Lenders have become effective and the Concessionaire has access to such Financial Assistance;
(pp) “Financing Documents” means, collectively, the documents executed in favor of or entered into with the Lenders, by the Concessionaire in respect of the Financial Assistance, including loan agreements, all the security documents (such as mortgage deed, hypothecation deed etc.) that create security in respect of the Financial Assistance, notes, indentures, or arrangements, guarantees and acceptable letters of credit and other agreements evidencing any obligation of the Concessionaire and other necessary undertakings required pursuant to the respective terms thereof, relating to or
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(qq) “Force Majeure Event” shall have the meaning ascribed to it in Article 23.1 of this Agreement;
(rr) “Gross Annual Turnover” or “Gross Revenue” means the pre-taxation gross revenues of the Concessionaire from all sources or amounts of money by whatever name called, that arise, accrue to and/or are received for any period including all amounts received (or which would have been received) by the Concessionaire from the operation of the Project/ Project Facilities including without limitation the monies towards the User Charges collected demanded, levied, received by from the Users and all other net amounts which fall (or would fall) to be credited to the profit and loss account of the Concessionaire for the Accounting Year in which the relevant period falls excluding (i) insurance proceeds except insurance indemnification for loss of revenue; and (ii) payments and/or monies collected by the Concessionaire for and on behalf of any Government Authorities under Applicable Laws. It is clarified that the amounts payable to the Grantor/Authority under this Agreement shall not be deducted from Revenue/Gross Annual Turn Over ;
(ss) “GoAP” means Government of Andhra Pradesh
(tt) “GoI” means the Government of India;
(uu) “Government Authority” means GoI, GoAP or any state government or governmental department, commission, board, body, bureau, agency, authority, instrumentality, court or other judicial or administrative body, central, state, or local, having jurisdiction over the Concessionaire , the Project, the Project Assets and the Works or any part thereof or the performance of all or any of the services, obligations or covenants of Concessionaire under or pursuant to this Agreement or any portion thereof;
(vv) “Good Industry Practice” means the exercise of that degree of skill, diligence and prudence and those practices, methods, specifications and standards of engineering, procurement, construction, equipment, safety, operation and performance, as may change from time to time and which would reasonably and ordinarily be expected to be used by a skilled and experienced construction contractor and/or operator, in a project of the type and size similar to the Project; (ww) Grantor/Authority: Sri Varaha Lakshmi Narasimha Swamy Devasthanam
(xx) “Independent Engineer/Consultant” means the Independent Engineer/Consultant that may be appointed as referred to in Article 18. It is hereby clarified that wherever in this Agreement any
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(yy) “Land Lease Deed” means the lease deed to be executed between the Grantor/Authority and the Concessionaire, substantially in the form set out in, pursuant to which the Grantor shall lease to the Concessionaire the land comprising the Project Site, vesting the Concessionaire with Vacant Possession and all rights relating thereto for a period co-terminus with the Concession Period;
(zz) “Lenders” means any Personsbased in India or abroad providing Financial Assistance under the Financing Documents and includes financial institutions, banks, non-banking financial companies, funds, trusts who provide for Financial Assistance (including refinancing) to the Concessionaire and includes subscribers to/trustee for the holders of the debentures/bonds or other securities issued by the Concessionaire to meet the debt component of the cost of the Project and whose identity has been notified to Grantor /Authority by the Concessionaire from time to time. It is clarified that “Lenders” for the purposes of this Agreement, shall not include promoter entity or Affiliates of the Preferred Bidder or the Concessionaire;
(aaa) “Material Adverse Effect” means circumstances which may or do (i) render any right vested in a Party by the terms of this Agreement ineffective or (ii) adversely affect or restrict or frustrate the ability of any Party to observe and perform in a timely manner its obligations under this Agreement or the legality, validity, binding nature or enforceability of this Agreement;
(bbb) “Material Breach” means a breach of the obligations, terms and conditions of this Agreement or covenants by a Party, which materially and substantially affects the performance of the transactions contemplated by this Agreement or/ has a Material Adverse Effect.
(ccc) ‘Minimum Development Obligations’ (MDOs) shall mean all the project facilities covered including other obligations as detailed in Appendix ______.
(ddd) “Operations Period” means, in relation to a particular Project Facility, the period commencing from COD of the relevant Project Facility and ending on the expiry or prior termination of the Concession Period and in relation to the Project means the period commencing from issuance of the Completion Certificate in relation to all the Project Facilities and ending on the expiry of prior termination of the Concession Period;
(eee) “Person” means any individual, company, corporation, partnership, joint venture, trust, unincorporated organization, Government or Governmental Authority or agency or any other legal entity
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(fff) “Performance Security” shall mean the irrevocable and unconditional bank guarantees of an amount equivalent to Rs. ______Crores (Rupees ______Crores only) and Rs. ______Crores (Rupees ______Crores only) provided by the Preferred Bidder/ Concessionaire from a Nationalized /Scheduled (Excluding Cooperative) Bank in favor of ______, in the form, manner and content, more particularly specified under Article ___ hereto., as a security for the performance of its obligations by the Concessionaire, in respect of the Project.
(ggg) “Performance Standards” or “Maintenance and Performance Standards” means the performance parameters for the operation and maintenance of the Project set out in Appendix 4;
(hhh) “Preferred Bidder” shall mean the entity defined as such in the Name Clause of this Agreement.
(iii) “Prohibited Activities”means the activities not permitted, as detailed out in the GO.Ms No.168, dated 07.04.2012 issued by Municipal Administration and Urban Development Department, GoAP
(jjj) “Project” or “Development of ………………….” means, subject to the provisions of this Agreement, the (i) designing, financing, construction, implementation, completion, commissioning, marketing, operation, management and transfer of the Project Facilities and all activities incidental thereto, such as engineering, testing, commissioning and insurance etc., by the Concessionaire during the Concession Period; (ii) the demanding, charging, collecting, retaining and appropriating and revision of User Charges by the Concessionaire in relation to the Project Facilities and (iii) the transfer of the Project Facilities by the Concessionaire to Grantor or its nominated agency at the end of the Concession Period by efflux of time or prior termination
(kkk) “Project Assets” shall mean and comprise of all tangible and intangible assets relating respectively to the Project , as the case may be excluding land but including and not limited to, (a) rights over the Site in the form of license, right-of-way or otherwise; (b) each of tangible assets comprising the Project Facilities such as foundation, buildings, substructures and superstructures, pavements, over- bridges, works, subways, drainage facilities, sign boards, equipment, electrical works for lighting of and telephone and communication equipment; (c) financial assets, such as receivables, cash and investments; (d) rights under the Project Contracts and other agreements relating to the Project entered into by the Concessionaire and (e) proceeds from insurance policies taken by the Concessionaire in relation to the Project Facilities.
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(lll) “Project Completion” shall have the meaning specified in Detailed Project Report;
(mmm) “Project Contracts” means collectively this Agreement, the Land Lease Deed, the Construction Contract, O&M Contracts (if any) and any other material contract (other than the Financing Documents) entered into or may hereafter be entered into by the Concessionaire in connection with the Project;
(nnn) “Project Facilities” means collectively all the amenities and facilities proposed/developed in the Project Site as per the MDOs that the Concessionaire is authorised to undertake and develop, operate and maintain on the Project Site (Appendix-_____). “Project Facility” can refer to any one of them, as the context may require;
(ooo) “Project Implementation Schedule” means implementation schedule for the Project to be finalized as part of the DPR in accordance with Appendix______of this Agreement;
(ppp) “Project Site” or “Site” means all that plot of land containing an area, approximately admeasuring ______acres, located in survey number ______of ______Village, ______Mandal, ______district of Andhra Pradesh more particularly detailed in Appendix-_____;
(qqq) “Proposal” or “Bid” means the entire set of technical, financial, qualifying and other documents that comprise the proposal submitted by the Preferred Bidder in response to the RFP;
(rrr) “Request for Proposal” or “RFP” means the Request for Proposal dated ______issued by the Grantor as part of the competitive bidding process inviting bids from the shortlisted applicants at the EOI stage, for implementing the Project on PPP basis, and includes any addendum / clarifications issued in respect thereof by the Grantor;
(sss) “Revenue Share” shall mean the fee payable by the Concessionaire to the Grantor/Authority every year in consideration of the grant of the Project, and commencing from the fifth year of agreement date and till the end of the Concession Period in accordance with the provisions of Article 8.3.3 of this Agreement.
(ttt) “Right of First Refusal” shall have the meaning specified in Article 2.2 of this Agreement
(uuu) “Scheduled Project Completion Date” shall have the meaning specified in DPR
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(vvv) “Security Interest” means any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, security interest or other encumbrances of any kind securing or conferring any priority of payment in respect of any obligation of any Person and includes without limitation any right granted by a transaction which, in legal terms, is not the granting of security but which has an economic or financial effect similar to the granting of security in each case under any Applicable Law;
(www) “Specifications and Standards” means collectively or singularly, as the context may admit or require, the Development Controls, the Technical Specifications and the Performance Standards;
(xxx) “Special Purpose Company” or “SPC” shall mean the Concessionaire.
(yyy) “Tax” means all forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value, goods, services, works, import, export, production or other reference and statutory, governmental, state, provincial, local governmental or municipal impositions including property tax, duties, contributions, rates and levies (including without limitation social security contributions and any other payroll taxes), whenever and wherever imposed (whether imposed by way of a withholding or deduction for or on account of tax or otherwise) and/or levies of any nature whatsoever, whether by GoI, the Grantor or Government Authorities, and in respect of any Person and all penalties, charges, costs and interest relating to it;
(zzz) “User Charges”shall mean and include the rentals, license fees, deposits, advances, prices, fees, charges, user charges, charges relating to facility management services, maintenance charges, parking fees, advertisement fees, and all other amounts of money by whatever name called, that are (i) determined, charged, demanded, collected, retained and appropriated by the Concessionaire under this Agreement, including pursuant to any Contractual Arrangement in relation to the use of space within the Project Site, as well as maintenance and upkeep of Project Facilities; and/or (ii) payable at any time and from time to time by any Person to the Concessionaire in respect of the Project Facilities;
(aaaa) “Technical Specifications” or “Specifications & Standards” mean the technical specifications for the construction and implementation of the Project as defined under good industry practice.“Termination” means prior termination of this Agreement pursuant to Termination Notice but shall not, unless the context otherwise requires, include the expiry of this Agreement due to efflux of time in the normal course;
(bbbb) “Termination Period” shall have the meaning specified in Article 26 ;
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(cccc) “Tests” means the tests to be carried out pursuant to this Agreement and include the test to determine the completion of the Construction Works and certification thereof by the Grantor/Independent Engineer/Consultant prior to Commercial Operations;
(dddd) “Third Party” means any Person, real or legal, or entity other than the Parties to this Agreement;
(eeee) “Transfer Date” means either: (i) the date of expiry of Concession Period by efflux of time, including extension thereto or (b) in the event of an earlier termination thereof, the date on which the Project Facilities are transferred to the Concessionaire in accordance with the provisions of this Agreement ;
(ffff) “Transaction Documents” means collectively the Project Contracts and the Financing Documents but does not include the Escrow Agreement;
(gggg) “Vacant Possession” means delivery of possession of the land comprising the Site, free from all Encumbrances, restrictions or impediments and the grant of all Easements and all other rights appurtenant or in relation thereto;
(hhhh) “Year” means a period of 12 consecutive calendar months;
(iiii) “Works” mean the works under and in accordance with the provisions of this Agreement relating to design, development of Site, construction, completion, testing and commissioning of the Project Facilities (the “Construction Works”), and the operation, management and maintenance, rectifying and remedying of defects therein (the “O&M Works”), collectively or singularly as the context may admit or require, including the technology, services and things to be designed, engineered, constructed, installed, equipped, supplied, executed, manufactured, completed, tested, commissioned, rectified, replaced, made good, carried out and undertaken in respect of the Project/Project Facilities and any other permanent, temporary or urgent works required hereunder.
1.2 Interpretation
1.2.1 In this Agreement, unless the context otherwise requires,
(a) references to any legislation or any provision thereof shall include amendment or re- enactment or consolidation of such legislation or any provision thereof so far as such amendment or re-enactment or consolidation applies or is capable of applying to any transaction entered into hereunder; Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode. Page | 13
(b) references to laws of Andhra Pradesh, laws of India or Indian law or regulation having the force of law shall include the laws, acts, ordinances, rules, regulations, bye laws or notifications which have the force of law in the territory of India and as from time to time may be amended, modified, supplemented, extended or re-enacted;
(c) references to a “person” and words denoting a natural person shall be construed as a reference to any individual, firm, company, corporation, society, trust, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the above and shall include successors and assignees;
(d) the table of contents, headings or sub-headings in this Agreement are for convenience of reference only and shall not be used in, and shall not affect, the construction or interpretation of this Agreement;
(e) the words “include” and “including” are to be construed without limitation and shall be deemed to be followed by “without limitation” or “but not limited to” whether or not they are followed by such phrases;
(f) references to “construction” or “building” include, unless the context otherwise requires, investigation, design, engineering, procurement, delivery, transportation, installation, processing, fabrication, testing, commissioning and other activities incidental to the construction, and “construct” or “build” shall be construed accordingly;
(g) references to “development” include, unless the context otherwise requires, construction, renovation, refurbishing, augmentation, up gradation and other activities incidental thereto, and “develop” shall be construed accordingly;
(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) references to a “business day” shall be construed as a reference to a day (other than a Sunday) on which banks in Visakhapatnam are generally open for business;
(k) any reference to month shall mean a reference to a calendar month as per the Gregorian calendar;
(l) references to any date, period or Project Milestone shall mean and include such date, period or Project Milestone as may be extended pursuant to this Agreement;
(m) 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; provided that if the last day of any period computed under this Agreement is not a business day, then the period shall run until the end of the next business day;
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(n) the words importing singular shall include plural and vice versa;
(o) references to any gender shall include the other and the neutral gender;
(p) “Indebtedness” shall be construed so as to include any obligation (whether incurred as principal or surety) for the payment or repayment of money, whether present or future, actual or contingent;
(q) references to the “winding-up”, “dissolution”, “insolvency”, or “reorganisation” of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding-up, reorganisation, dissolution, arrangement, protection or relief of debtors;
(r) save and except as otherwise provided in this Agreement, any reference, at any time, to any agreement, deed, instrument, licence or document of any description shall be construed as reference to that agreement, deed, instrument, licence or other document as amended, varied, supplemented, modified or suspended at the time of such reference; provided that this Sub-clause shall not operate so as to increase liabilities or obligations of the Authority hereunder or pursuant hereto in any manner whatsoever;any agreement, consent, approval, authorisation, notice, communication, information or report required under or pursuant to this Agreement from or by any Party or the Independent Expert shall be valid and effective only if it is in writing under the handof a duly authorised representative of such Party or the Independent Expert, as the case may be, in this behalf and not otherwise;
(v) the Schedules and Recitals 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;
(w) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this Agreement shall, except where the context otherwise requires, mean references to Recitals, Articles, Clauses, Sub-clauses and Schedules of or to this Agreement, references to an Annex shall, subject to any contrary indication, be construed as a reference to an Annex to the Schedule in which such reference occurs, and references to a Paragraph shall, subject to any contrary indication, be construed as a reference to a Paragraph of the Schedule or Annex, as the case may be, in which such reference appears;
(x) 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 mutually agreed genuine pre-estimated loss and damage likely to be suffered and incurred by the Party entitled to receive the same and are not by way of penalty (the “Damages”);
(y) time shall be of the essence in the performance of the Parties’ respective obligations.
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If any time period specified herein is extended, such extended time shall also be of the essence; and
(z) capitalised terms used in the Agreement, but not defined herein, shall be construed in accordance with Good Industry Practice.
1.2.2 Unless expressly provided otherwise in this Agreement, any Documentation required to be provided or furnished by the Concessionaire to the Authority and/ or the Independent Expert, shall be provided free of cost and in three copies, and if the Authority and/ or the Independent Expert is required to return any such Documentation with their comments and/or approval, they shall be entitled to retain two copies thereof.
1.2.3 The rule of construction, if any, that a contract should be interpreted against the parties responsible for the drafting and preparation thereof, shall not apply.
1.2.4 Any word or expression used in this Agreement shall, unless otherwise defined or construed in this Agreement, bear its ordinary English meaning and, for these purposes, the General Clauses Act, 1897 shall not apply.
1.3 Priority of agreements, clauses and schedules
1.3.1 This Agreement, and all other agreements and documents forming part of or referred to in this Agreement are to be taken as mutually explanatory and, unless otherwiseexpressly provided elsewhere in this Agreement, the priority of this Agreement and other documents and agreements forming part hereof or referred to herein shall, in the event of any conflict between them, be in the following order:
(a) this Agreement; and
(b) all other agreements and documents forming part hereof or referred to herein,
i.e. the Agreement at (a) above shall prevail over the agreements and documents at (b) above.
1.3.2 Subject to the provisions of Article 1.3.1, in case of ambiguities or discrepancies within this Agreement, the following shall apply:
(a) between two or more Articles of this Agreement, the provisions of a specific Article relevant to the issue under consideration shall prevail over those in other Articles;
(b) between the Articles of this Agreement and the Schedules, the Articles shall prevail and between Schedules and Annexes, the Schedules shall prevail;
(c) between any two Schedules, the Schedule relevant to the issue shall prevail;
(d) between the written description on the Drawings and the Specifications and Standards, the latter shall prevail;
(e) between the dimension scaled from the Drawing and its specific written dimension, the latter shall prevail; and
(f) between any value written in numerals and that in words, the latter shall prevail. Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode. Page | 16
PART II: THE CONCESSION
Article 2: Scope of the Project
2.1 Scope of the Project
The scope of the Project (the “Scope of the Project”) shall mean and include, during the Concession Period:
2.1.1 (a) carrying-out detailed investigation of the Project Sites and designing, constructing/procuring the Project Facilities and Associated Infrastructure.
(b) operation and maintenance of the Project Facility and Associated Infrastructure in accordance with the provisions of this Agreement;
(c) performance and fulfilment of all other obligations of the Concessionaire 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 Concessionaire under this Agreement.
2.2 Brief Scope of Work
Development of a “AC Convention Centre with Hotel” project in an extent of 3.65 acres at ‘Vepagunta village’ on Develop, Build, Finance, Operate and Transfer (DBFOT) Basis in Public- Private Partnership (PPP )Mode for a ‘Concession Period’ of 33 years (including Construction Period) with an option of additional period on “Right of First Refusal” basis, as per the terms and conditions stipulated in RFP document and its addendum if any.
2.2.1 Pre Construction Phase
The Concessionaire shall carryout all activities and investigations required for the successful and timely completion of the Project.
2.2.2 Land Location
The identified land a single bit of 3.65 acres open site at ChitradavariThota with 1.65 acres falling in Survey No. 187 of Vepagunta village and 2.00 acres falling in Survey No.275 of Adavivaram village.( they are adjacent to each other). The 2 acres of land in Survey No. 275 falls under greenbelt zone and no permanent construction shall be permitted, therein. But it can be utilized for parking and landscaping.
2.2.3 Key Components of the Project The Key components of the Project include but not limited to:
2 marriage AC halls with adjustable partitions (43100 sft) 40 hotel rooms with minimum each room area of 265 sft (36600 Sft including corridors and common areas) Hotel Room Area: Room Area : 175 Sft; Bathroom Area: 90 sft. Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode. Page | 17
Article 3: Grant of Concession
3.1 The Concession
3.1.1 Subject to and in accordance with the provisions of this Agreement, the Applicable Laws and the Applicable Permits, the Authority hereby grants to the Concessionaire the concession set forth herein including the exclusive right, licence and authority to
(a) investigate, study, design, finance, construct, operate and maintain the Project Facilities;
(b) collect revenue from commercial utilization of space in the Project Facilities, including collection of User Fee, advertisement revenues and rentals which forms the Gross Annual Revenue and liable for revenue sharing,
(c) provide Services(the “Concession”) for a period of 33 (Thirty Three ) years commencing from the Appointed Date, from the date of possession of the project site, and the Concessionaire hereby accepts the Concession and agrees to implement the Project subject to and in accordance with the terms and conditions set forth herein.
3.1.2 Subject to and in accordance with the provisions of this Agreement, the Concession hereby granted shall oblige or entitle (as the case may be) the Concessionaire to:
(a) Right of Way, access and licence to the Premises/project land for the purpose of and to the extent conferred by the provisions of this Agreement;
(b) perform and fulfil all of the Concessionaire’s obligations under and in accordance with this Agreement;
(c) save as otherwise expressly provided in this Agreement, bear and pay all costs, expenses and charges in connection with or incidental to the performance of the obligations of the Concessionaire under this Agreement; and
(d) neither assign, transfer or create any lien or Encumbrance on this Agreement, or the Concession hereby granted or on the whole or any part of the Facility nor sell, transfer, exchange or part possession thereof, save and except as expressly permitted by this Agreement or the Substitution Agreement.
3.2 Grant of Access to the Site a) The Authority shall grant the Concessionaire access over the Project Facilities/site and Associated Infrastructure along with all necessary rights of way, if any to enter upon, access the Project Facilities free of all Encumbrances Applicable Laws, and Applicable Permits. The project granted to the Concessionaire shall include the exclusive right to: (i) design, construct and commission the Project Facilities and Associated Infrastructure; (ii) operate and maintain the Project Facilities and Associated Infrastructure during the Concession Period;
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(iii) install, operate, use, maintain, and remove such equipment, devices or other structures and improvements on, over, or under the Project Facilities and Associated Infrastructure, as may be necessary or appropriate for the operations and activities required or permitted under this Agreement; (iv) use access roads, pathways and utilities at or about the Project Facilities and Associated Infrastructure; (v) discharge, store, treat and manage the waste generated by the Project Facilities and Associated Infrastructure in environment friendly manner; and (vi) construct, use, operate, maintain, replace and repair electric lines, telecommunication lines, water supply networks and other utilities required to undertake the Project Facilities and Associated Infrastructure; b) The Concessionaire shall not, without the prior written consent or approval of the Authority use the Project Facilities or Associated Infrastructure for any purpose other than to undertake the Project and purposes incidental thereto, as permitted under this Agreement or as may be otherwise approved by the Authority. c) The full ownership and title over the Sites shall vest with the Authority for the entire Concession Period, and the Concessionaire has access to the sites to meet the obligations of the project development as detailed in this agreement.
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Article 4: Conditions Precedent
4.1 Conditions Precedent
4.1.1 Save and except as expressly provided in Articles detailed, or unless the context otherwise requires, the respective rights and obligations of the Parties under this Agreement shall be subject to the satisfaction in full of the conditions precedent specified in this Article 4. (the “Conditions Precedent”).
4.1.2 The Concessionaire may, upon providing the Performance Guarantee/Security to the Authority, by notice require the Authority to satisfy any or all of the Conditions Precedent set forth in this Clause within a period of 60(sixty) days of the notice, or such longer period not exceeding 90 (ninety) days as may be specified therein, and the Conditions Precedent required to be satisfied by the Authority shall be deemed to have been fulfilled when the Authority shall have:
(a) procured for the Concessionaire the Right of access to the designated Project sites in accordance with the provisions of this agreement;
(b) support the Concessionaire in securing Applicable Permits, if any, relating to environmental protection and conservation and forest clearance if required and
(c) arranged for the Concessionaire the Right of Access for construction of Project Facility and Associated Infrastructure; in accordance with the provisions of this agreement
4.1.3 The Conditions Precedent required to be satisfied by the Concessionaire prior to the Appointed Date shall be deemed to have been fulfilled when the Concessionaire shall have:
(a) provided Performance Guarantee Security to the Authority;
(b) procured all the Applicable Permits specified in the Project Report, unconditionally or if subject to conditions, then all such conditions required to be fulfilled under such Applicable Permits, as on the date the Concessionaire claims satisfaction of all the Conditions Precedent under this Agreement, are fulfilled;
(c) executed the Financing Agreements and delivered to the Authority 3 (three) true copies thereof, duly attested by a Authorised Signatory of the Concessionaire;
(d) delivered to the Authority from {the existing promoters/selected bidder/Consortium Members, their respective} confirmation, in original, of the correctness of their representations and warranties set forth in Sub-clauses (e) delivered to the Authority a legal opinion from the legal counsel of the Concessionaire with respect to the authority of the Concessionaire to enter into this Agreement and the enforceability of the provisions thereof.
(f) Submit to the authority certified true copies of constitutional documents of the concessionaire and certificate, duly attested by director of the concessionaire, certifying the share holding pattern of the concessionaire (firm).
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(g) Obtained approval from the Authority on work plan
(h) Submit to the Authority the detailed development plan for the execution of the project awarded:
Provided that upon request in writing by the Concessionaire, the Authority may, in its discretion, waive any of the Conditions Precedent set forth in this Clause. For the avoidance of doubt, the Authority may, in its sole discretion, grant any waiver hereunder, with such conditions as it may deem fit.
4.1.4 Each Party shall make all reasonable endeavours to satisfy the Conditions Precedent within the time stipulated and shall provide the other Party with such reasonable cooperation as may be required to assist that Party in satisfying the Conditions Precedent for which that Party is responsible.
4.1.5 The Parties shall notify each other in writing at least once a month on the progress made in satisfying the Conditions Precedent. Each Party shall promptly inform the other Party when any Condition Precedent for which it is responsible has been satisfied.
4.2 Damages for delay by the Authority
In the event that (i) the Authority does not procure fulfilment of any or all of the Conditions Precedent set forth in Article 4.1.2 within the period specified in respect thereof, and (ii) the delay has not occurred as a result of breach of this Agreement by the Concessionaire or due to Force Majeure, the Authority shall pay to the Concessionaire Damages in an amount calculated at the rate of 0.1% (zero point one per cent) of the Performance Guarantee Security for each day’s delay until the fulfilment of such Conditions Precedent, subject to a maximum of 10% (ten per cent) of the Performance Guarantee Security.
4.3 Damages for delay by the Concessionaire
In the event that (i) the Concessionaire does not procure fulfilment of any or all of the Conditions Precedent set forth in Article 4.1.3 within a period of 90 (ninety) days from the date of this Agreement, and (ii) the delay has not occurred as a result of failure to fulfil the obligations under Article 4.1.2 or other breach of this Agreement by the Authority or due to Force Majeure, the Concessionaire shall pay to theAuthority Damages in an amount calculated at the rate of 0.2% (zero point two per cent) of the Performance Guarantee Security for each day’s delay until the fulfilment of such Conditions Precedent, subject to a maximum of 20% (twenty per cent) of the Performance Guarantee Security.
4.4 Deemed Termination upon delay
Without prejudice to the provisions of Articles 4.2 and 4.3, the Parties expressly agree that in the event the Appointed Date does not occur, for any reason whatsoever, within a period of 180 (one hundred eighty ) days from the date of this Agreement or the extended period provided in accordance with this Agreement, all rights, privileges, claims and entitlements of the Concessionaire under or arising out of this Agreement shall be deemed to have been waived by, and to have ceased with the concurrence of the Concessionaire, and the
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Concession Agreement shall be deemed to have been terminated by mutual agreement of the Parties. Provided, however, that in the event the delay in occurrence of the Appointed Date is for reasons attributable to the Concessionaire, the Performance Guarantee Security of the Concessionaire shall be encashed and appropriated by the Authority as Damages thereof.
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Article 5: Obligations of the Concessionaire
5.1 Obligations of the Concessionaire
5.1.1 Subject to and on the terms and conditions of this Agreement, the Concessionaire shall, at its own cost and expense, procure finance for and undertake the design, engineering, procurement, construction, installation, operation and maintenance of the Project Facility and Associated Infrastructure and observe, fulfil, comply with and perform all its obligations set out in this Agreement or arising hereunder.
5.1.2 The Concessionaire shall comply with all Applicable Laws and Applicable Permits (including renewals as required) in the performance of its obligations under this Agreement.
5.1.3 Subject to the provisions of Articles 5.1.1 and 5.1.2, the Concessionaire shall discharge its obligations in accordance with Good Industry Practice and as a reasonable and prudent person.
5.1.4 The Concessionaire shall construct, operate and maintain the Project Facility and Associated Infrastructure in accordance with the Specifications which are in vogue and in compliance with Good Industry Norms.
5.1.5 The Concessionaire shall, at its own cost and expense, in addition to and not in derogation of its obligations elsewhere set out in this Agreement:
(a) make, or cause to be made, necessary applications to the relevant Government agencies with such particulars as may be required for obtaining Applicable Permits, other than those set forth in Article 4.1.2, and obtain and keep in force and effect such Applicable Permits in conformity with the Applicable Laws;
(b) perform and fulfil its obligations under the Financing Agreements;
(c) make reasonable efforts to maintain harmony and good industrial relations among the personnel employed by it or its Contractors in connection with the performance of its obligations under this Agreement;
(d) ensure and procure that its Contractors comply with all Applicable Permits and Applicable Laws in the performance by them of any of the Concessionaire’s obligations under this Agreement;
(e) not do or omit to do any act, deed or thing which may in any manner be violate of any of the provisions of this Agreement or Applicable Laws;
(f) ensure that all equipment and facilities comprising the Project Facility and Associated Infrastructure are operated and maintained in accordance with the Specifications and Standards, Maintenance Requirements, Safety Requirements and Good Industry Practice;
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(h) support and cooperate with and facilitate the Authority in the implementation and operation of the Project in accordance with the provisions of this Agreement; and
(i) transfer the Project Facility and Associated Infrastructure to the Authority upon Termination of this Agreement, in accordance with the provisions thereof.
5.2 Obligations relating to Project Agreements
5.2.1 It is expressly agreed that the Concessionaire shall, at all times, be responsible and liable for all its obligations under this Agreement notwithstanding anything contained in the Project Agreements or any other agreement, and no default under any Project Agreement or agreement shall excuse the Concessionaire from its obligations or liability hereunder.
5.2.2 The Concessionaire shall submit to the Authority the drafts of all Project Agreements or any amendments or replacements thereto for its review and comments, and the Authority shall have the right but not the obligation to undertake such review and provide its comments, if any, to the Concessionaire within 15 (fifteen) days of the receipt of such drafts. Within 7 (seven) days of execution of any Project Agreement or amendment thereto, the Concessionaire shall submit to the Authority a true copy thereof, duly attested by a Director of the Concessionaire, for its record. For the avoidance of doubt, it is agreed that the review and comments hereunder shall be limited to ensuring compliance with the terms of this Agreement. It is further agreed that any failure or omission of the Authority to review and/ or comment hereunder shall not be construed or deemed as acceptance of any such agreement or document by the Authority. No review and/ or observation of the Authority and/ or its failure to review and/ or convey its observations on any document shall not relieve the Concessionaire of its obligations and liabilities under this Agreement in any manner nor shall the Authority be liable for the same in any manner whatsoever.
5.2.3 The Concessionaire shall not make any addition, replacement or amendments to any of the Financing Agreements without the prior written consent of the Authority if such addition, replacement or amendment has, or may have, the effect of imposing or increasing any financial liability or obligation on the Authority, and in the event that any replacement or amendment is made without such consent, the Concessionaire shall not enforce such replacement or amendment nor permit enforcement thereof against the Authority. For the avoidance of doubt, the Authority acknowledges and agrees that it shall not unreasonably withhold its consent for restructuring or rescheduling of the Debt of the Concessionaire.
5.2.4 The Concessionaire shall procure that each of the Project Agreements contains provisions that entitle the Authority to step into such agreement, in its sole discretion, in substitution of the Concessionaire in the event of Termination or Suspension (the “Covenant”). For the avoidance of doubt, it is expressly agreed that in the event theAuthority does not exercise such rights of substitution within a period not exceeding 90 (Ninety) days from the Transfer Date, the Project Agreements shall be deemed tocease to be in force and effect on the
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Transfer Date without any liability whatsoever on the Authority and the Covenant shall expressly provide for such eventuality. The Concessionaire expressly agrees to include the Covenant in all its Project Agreements and undertakes that it shall, in respect of each of the Project Agreements, procure and deliver to the Authority an acknowledgment and undertaking, in a form acceptable to the Authority, from the counter party(ies) of each of the Project Agreements, where under such counter party(ies) shall acknowledge and accept the Covenant and undertake to be bound by the same and not to seek any relief or remedy whatsoever from the Authority in the event of Termination or Suspension.
5.3 Obligations relating to Change in Ownership
5.3.1 The Concessionaire shall not undertake or permit any Change in Ownership, except with the prior written approval of the Authority.
5.3.2 Notwithstanding anything to the contrary contained in this Agreement, the Concessionaire agrees and acknowledges that:
(i) all acquisitions of Equity by an acquirer, either by himself or with any person acting in concert, directly or indirectly, including by transfer of the direct or indirect legal or beneficial ownership or control of any Equity, in aggregate of not less than 25% (twenty five per cent) of the total Equity of the Concessionaire; or
(ii) acquisition of any control directly or indirectly of the Board of Directors of the Concessionaire by any person either by himself or together with any person or persons acting in concert with him, constitute a Change in Ownership requiring prior approval of the Authority. It is also agreed that the Authority shall not be liable in any manner on account of grant or otherwise of suchapproval and that such approval or denial thereof shall not in any manner absolve the Concessionaire from any liability or obligation under this Agreement.
For the purposes of this Article 5.3.2:
(a) the expression “acquirer”, “control” and “person acting in concert” shall have the meaning ascribed thereto in the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeover) Regulations, 2011 or any statutory re-enactment thereof as in force as on the date of acquisition of Equity, or the control of the Board of Directors, as the case may be, of the Concessionaire;
5.4 Obligations relating to operations
The Concessionaire shall at all times operate the Project Facility and Associated Infrastructure in accordance with Applicable Laws, Good Industry Practices and the provisions of this Agreement.
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Article 6: Obligations of the Authority
6.1 Obligations of the Authority
6.1.1 The Authority shall, at its own cost and expense undertake, comply with and perform all its obligations set out in this Agreement or arising hereunder.
6.1.2 The Authority agrees to provide support to the Concessionaire and undertakes to observe, comply with and perform, subject to and in accordance with the provisions of this Agreement and the Applicable Laws, the following:
(a) upon written request from the Concessionaire, and subject to the Concessionaire complying with Applicable Laws, provide reasonable support and assistance to the Concessionaire in procuring the Applicable Permits required from any Government Instrumentality for implementation and operation of the Project Facility and Associated Infrastructure;
(b) upon written request from the Concessionaire, provide reasonable assistance to the Concessionaire in obtaining access to all necessary infrastructure facilities and utilities, including water and electricity (c) procure that no barriers are erected or placed on or about the Project Facility and Associated Infrastructure by any Government Instrumentality or persons claiming through or under it, except for reasons of Safety Requirements, Emergency, national security, or law and order;
(d) assist the Concessionaire in procuring police assistance for removal of trespassers and for security on or at the Project Facility and Associated Infrastructure;
(e) not do or omit to do any act, deed or thing which may in any manner be violative of any of the provisions of this Agreement;
(f) support, cooperate with and facilitate the Concessionaire in the implementation and operation of the Project in accordance with the provisions of this Agreement and Applicable Laws;
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Article 7: Representations and Warranties
7.1 Representations and warranties of the Concessionaire
The Concessionaire represents and warrants to the Authority 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) along with its Associates, it has the financial standing and capacity to undertake the Project in accordance with the terms of this Agreement;
(d) this Agreement constitutes its 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 thereunder 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;
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(i) it has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any court or Government Instrumentality which may result in any material adverse effect on its ability to perform its obligations under this Agreement and no fact or circumstance exists which may give riseto 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 shall at no time undertake or permit any Change in Ownership except in accordance with the provisions of Article 5.3; and that the {existing promoters /selected bidder/ Consortium Members}, together with {its/their} Associates, hold not less than 51% (fifty one per cent) of {its/their}issued and paid up Equity as on the date of this Agreement; and that no Member of the Consortium whose technical and financial capacity was evaluated for the purposes of pre-qualification and short- listing in response to the Request for Qualification shall hold less than 26% (twenty- six per cent) of such Equity for a period of 5 (five) years from the date of commercial operation of the project;
(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 or registration, as the case may be, and has requested the Authority to enter into this Agreement with itself/the Concessionaire 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 Facility and Associated Infrastructure shall pass to and vest in the Authority on the Transfer Date free and clear of all liens, claims and Encumbrances, without any further act or deed on its part or that of the Authority, and that none of the Project Assets shall be acquired by it, subject to any agreement under which a security interest or other lien or Encumbrance is retained by any person, save and except as expressly provided in this Agreement;
(o) no representation or warranty by it contained herein or in any other document furnished by it to the Authority 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;
(q) 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 for securing the Concession or entering into this Agreement or for influencing or attempting to influence any
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officer or employee of the Authority in connection therewith; andall information provided by the {selected bidder/ Consortium Members} in response to the Request for Qualification and Request for Proposals or otherwise, is to the best of its knowledge and belief, true and accurate in all material respects.
7.2 Representations and warranties of the Authority
The Authority represents and warrants to the Concessionaire that:
(a) it has full power and authority to execute, deliver and perform its obligations under this Agreement and to carry out the transactions 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 Authority’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 Licensed Premises, and has power and authority to grant a licence in respect thereto to the Concessionaire.
7.3 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.
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Article 8: Disclaimer
8.1 Disclaimer
8.1.1 The Concessionaire acknowledges that prior to the execution of this Agreement, the Concessionaire has, after a complete and careful examination, made an independent evaluation of the Request for Qualification, Request for Proposals, Scope of the Project, Specifications and Standards, Site, existing structures, local conditions, physical qualities of ground, subsoil and geology, and all information provided by the Authority or obtained procured or gathered otherwise, and has determined to its satisfaction the accuracy or otherwise thereof and the nature and extent of difficulties, risks and hazards as are likely to arise or may be faced by it in the course of performance of its obligations hereunder. The Authority makes no representation whatsoever, express, implicit or otherwise, regarding the accuracy, adequacy, correctness, reliability and/or completeness of any assessment, assumption, statement or information provided by it and the Concessionaire confirms that it shall have no claim whatsoever against the Authority in this regard.
8.1.2 The Concessionaire acknowledges and hereby accepts the risk of inadequacy, mistake or error in or relating to any of the matters set forth in Article 8.1.1 above and hereby acknowledges and agrees that the Authority shall not be liable for the same in any manner whatsoever to the Concessionaire, {the Consortium Members and their} Associates or any person claiming through or under any of them.
8.1.3 The Parties agree that any mistake or error in or relating to any of the matters set forth in Article 8.1.1 above shall not vitiate this Agreement, or render it voidable.
8.1.4 In the event that either Party becomes aware of any mistake or error relating to any of the matters set forth in Article 8.1.1 above, that Party shall immediately notify the other Party, specifying the mistake or error; provided, however, that a failure on part of the Authority to give any notice pursuant to this Article 8.1.4 shall not prejudice the disclaimer of the Authority contained in Article 8.1.1 and shall not in any manner shift to the Authority any risks assumed by the Concessionaire pursuant to this Agreement.
8.1.5 Except as otherwise provided in this Agreement, all risks relating to the Project shall be borne by the Concessionaire and the Authority shall not be liable in any manner for such risks or the consequences thereof.
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PART III: DEVELOPMENT AND OPERATIONS
Article 9: Performance Guarantee/Security
9.1 Performance Guarantee Security
9.1.1 The Concessionaire shall, for the performance of its obligations hereunder during the Construction Period, provide to the Authority no later than 30 (Thirty) days from the date of this Agreement, an irrevocable and unconditional guarantee from a Bank for a sum equivalent to Rs………… (Rupees……) in the form set forth in Schedule (the “Performance Guarantee Security”). Until such time the Performance Guarantee Security is provided by the Concessionaire pursuant hereto and the same comes into effect, the Bid Security shall remain in force and effect, and upon such provision of the Performance Guarantee Security pursuant hereto, the Authority shall release the Bid Security to the Concessionaire.
9.1.2 Notwithstanding anything to the contrary contained in this Agreement, in the event Performance Guarantee Security is not provided by the Concessionaire within a period of 30 (Thirty) days from the date of this Agreement, the Authority may encash the Bid Security and appropriate the proceeds thereof as Damages, and thereupon all rights, privileges, claims and entitlements of the Concessionaire under or arising out of this Agreement shall be deemed to have been waived by, and to have ceased with the concurrence of the Concessionaire, and this Agreement shall be deemed to have been terminated by mutual agreement of the Parties.
9.2 Appropriation of Performance Guarantee Security
Upon occurrence of a Concessionaire Default or failure to meet any Condition Precedent, the Authority shall, without prejudice to its other rights and remedies hereunder or in law, be entitled to encash and appropriate the relevant amounts from the Performance Guarantee Security as Damages for such Concessionaire Default or failure to meet any Condition Precedent. Upon such encashment and appropriation from the Performance Guarantee Security, the Concessionaire shall, within 15 (fifteen) days thereof, replenish, in case of partial appropriation, to the original level of the Performance Guarantee Security, and in case of appropriation of the entire Performance Guarantee Security provide a fresh Performance Guarantee Security, as the case may be, failing which the Authority shall be entitled to terminate this Agreement in accordance with Article 26. Upon such replenishment or furnishing of a fresh Performance Guarantee Security, as the case may be, the Concessionaire shall be entitled to an additional Cure Period of 60 (Sixty) days for remedying the Concessionaire Default or to meet any Condition Precedent, and in the event of the Concessionaire not curing its default or meeting such Condition Precedent within such Cure Period, the Authority shall be entitled to encash and appropriate such Performance Guarantee Security as Damages, and to terminate this Agreement in accordance with Article 26
9.3 Validity of Performance Guarantee Security
The Performance Guarantee Security shall remain in force and effect for a period of three years.‘Bank Guarantee’ towards Performance Guarantee Security for an amount of Rs. 80.00 Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode. Page | 31
Lakhs (Rupees Eighty lakhs Only) (5% of the minimum Estimated Project Cost) shall be submitted to the Authority within 10 days from the date of LoA in the format prescribed as part of this RFP. ‘Bank Guarantee’ will be released on achieving Project Completion.
9.4 Release of Performance Guarantee Security
The Parties expressly agree that upon release of the Performance Guarantee Security in accordance with the provisions of Article 9.3. For the avoidance of doubt, the Parties agree that no payments due to the Concessionaire under this Agreement shall be withheld by the Authority on account of the Performance Guarantee Security created hereunder, save and except the Damages or other amounts which are to be appropriated in accordance with the provisions of this Agreement.
9.5 References to Performance Guarantee Security
References to Performance Guarantee Security occurring in this Agreement for and in respect of any period prior to the delivery of the Performance Guarantee Security by the Concessionaire to the Authority, or in respect of any period subsequent to the expiry or release thereof, as the case may be, shall be construed solely for the purposes of calculating the amount of Damages payable by the Concessionaire, and the amount so determined shall be appropriated from the Bid Security or Deemed Performance Guarantee Security, as the case may be.
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Article 10: Construction of Project Facility
10.1 Obligations prior to commencement of construction
Prior to commencement of Construction Works, the Concessionaire shall:
(a) submit to the Authority and the Independent Expert its detailed design, construction methodology, quality assurance procedures, and the procurement, engineering and construction time schedule for completion of the Project in accordance with the Project Completion Schedule as set forth in this agreement.;
(b) appoint its representative duly authorised to deal with the Authority in respect of all matters under or arising out of or relating to this Agreement; and
(c) undertake, do and perform all such acts, deeds and things as may be necessary or required before commencement of construction under and in accordance with this Agreement, the Applicable Laws and Applicable Permits.
(d) Within 90 (ninety) days of COD, the Concessionaire shall furnish to the Authority and the Independent Engineer a complete set of as-built Drawings, in 2 (two) hard copies and in its editable digital format or in such other medium or manner as may be acceptable to the Authority, reflecting the Project as actually designed, engineered and constructed, including an as- built survey illustrating the layout of the Project and setback lines, if any, of the buildings and structures forming part of Project Facilities. (e) On or after the Appointed Date, the Concessionaire shall undertake construction of the Project as specified in the approved Project Report, and in conformity with the Specifications and Standards set forth.
10.2 Access to the Authority and Independent Engineer
The license, right of way and right to the Site granted to the Concessionaire hereunder shall always be subject to the right of access of the Authority and the Independent Engineer and their employees and agents for inspection, viewing and exercise of their rights and performance of their obligations under this Agreement.
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Article 11: Monitoring of Construction
11.1 Monthly progress reports
During the Construction Period, the Concessionaire shall, no later than 7 (seven) days after the close of each month, furnish to the Authority and the Independent Expert a monthly report on progress of the Construction Works and shall promptly give such other relevant information as may be required by the Independent Expert.
11.2 Inspection
During the Construction Period, the Independent Expert shall inspect the Project Facility at least once a month and make a report of such inspection (the “Inspection Report”) stating in reasonable detail the defects or deficiencies, if any, with particular reference to the Scope of the Project and Specifications and Standards. It shall send a copy of the Inspection Report to the Authority and the Concessionaire within 7 (seven) days of such inspection and upon receipt thereof, the Concessionaire shall rectify and remedy the defects or deficiencies, if any, stated in the Inspection Report. Such inspection or submission of Inspection Report by the Independent Expert shall not relieve or absolve the Concessionaire of its obligations and liabilities hereunder in any manner whatsoever.
11.3 Delays during construction
Without prejudice to the provisions of Article 12.3.1, if the Concessionaire does not achieve any of the Project Milestones or the Independent Expert shall have reasonably determined that the rate of progress of Construction Works is such that the Project Facility is not likely to be completed by the Scheduled Completion Date, it shall notify the Concessionaire to this effect, and the Concessionaire shall, within 15 (fifteen) days of such notice, by a communication inform the Independent Expert in reasonable detail about the steps it proposes to take to expedite progress and the period within which it shall achieve the Project Completion Date.
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Article 12: Completion Certificate
12.1 Tests
12.1.1 No later than30 (thirty) days prior to the likely completion of the Project Facility and Associated Infrastructure, the Concessionaire shall notify the Independent Expert of its intent to subject the Project Facility and Associated Infrastructure to Tests. The date and time of each of the Tests shall be determined by the Independent Expert in consultation with the Concessionaire, and notified to the Authority who may designate its representative to witness the Tests. The Concessionaire shall provide such assistance as the Independent Expert may reasonably require for conducting the Tests. In the event of the Concessionaire and the Independent Expert failing to mutually agree on the dates for conducting the Tests, the Concessionaire shall fix the dates by not less than 10 (ten) days’ notice to the Independent Expert.
12.1.2 All Tests shall be conducted in accordance with standard practices at the cost and expense of the Concessionaire. The Independent Expert shall observe, monitor and review the results of the Tests to determine compliance of the Project Facility with Specifications and Standards and if it is reasonably anticipated or determined by the Independent Expert during the course of any Test that the performance of the Project Facility or any part thereof does not meet the Specifications and Standards, it shall have the right to suspend or delay such Test and require the Concessionaire to remedy and rectify the defects or deficiencies. Upon completion of each Test, the Independent Expert shall provide to the Concessionaire and the Authority copies of all Test data including detailed Test results. For the avoidance of doubt, it is expressly agreed that the Independent Expert may require the Concessionaire to carry out or cause to be carried out additional Tests, in accordance with Good Industry Practice, for determining the compliance of the Project Facility with Specifications and Standards.
12.2 Completion Certificate
Upon completion of Construction Works, and the Independent Expert determining the Tests to be successful, it shall forthwith issue to the Concessionaire and the Authority a certificate substantially in the form set forth in Schedule (the “Completion Certificate”).
12.3 Provisional Certificate
12.3.1 The Independent Expert may, at the request of the Concessionaire, issue a provisional certificate of completion substantially in the form set forth in Schedule (the “Provisional Certificate”) if the Tests are successful and the Project Facility and Associated Infrastructure can be safely and reliably placed in commercial operation though certain works or things forming part thereof are outstanding and not yet complete. In such an event, the Provisional Certificate shall have appended thereto a list of outstanding items signed jointly by the Independent Expert and the Concessionaire provided that the Independent Expert shall not withhold the Provisional Certificate for reason of any work remaining incomplete if the delay in completion thereof is attributable to the Authority.
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12.4 Withholding of Provisional or Completion Certificate
12.4.1 If the Independent Expert determines that the Project Facility or any part thereof does not conform to the provisions of this Agreement and cannot be safely and reliably placed in commercial operation, it shall forthwith make a report in this behalf and send copies thereof to the Authority and the Concessionaire. Upon receipt of such a report from the Independent Expert and after conducting its own inspection, if the Authority is of the opinion that the Project Facility is not fit and safe for commercial service, it shall, within 7 (seven) days of receiving the aforesaid report, notify the Concessionaire of the defects and deficiencies in the Project Facility and direct the Independent Expert to withhold issuance of the Provisional Certificate or the Completion Certificate, as the case may be. Upon receipt of such notice, the Concessionaire shall remedy and rectify such defects or deficiencies and there upon Tests shall be undertaken in accordance with this Article. Such procedure shall be repeated as necessary until the defects or deficiencies are rectified.
12.4.2 Notwithstanding anything to the contrary contained in Artcle 14., the Authority may, at any time after receiving a report from the Independent Expert under that Clause, direct the Independent Expert to issue a Provisional Certificate under the said Clause and such direction shall be complied forthwith.
12.5 Commercial Operation Date (COD)
The Project shall be deemed to be complete when the Completion Certificate or the Provisional Certificate, as the case may be, is issued under the provisions of Article .., and accordingly the commercial operation date of the Project shall be the date on which such Completion Certificate or the Provisional Certificate is issued (the “COD”). The Project shall enter into commercial service on COD whereupon the Concessionaire shall be entitled to demand and collect Payments in accordance with the provisions of this Agreement
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Article 13: Change of Scope
13.1 Change of Scope
13.1.1 The Authority may, notwithstanding anything to the contrary contained in this Agreement, require the provision of additional works and services which are not included in the Scope of the Project as contemplated by this Agreement (the “Change of Scope”). Any such Change of Scope shall be made in accordance with the provisions of this Article 13 and the costs thereof shall be expended by the Concessionaire and reimbursed to it by the Authority in accordance with Article 13.2
13.1.2 If the Concessionaire determines at any time that a Change of Scope is necessary for providing safer and improved Services, it shall by notice in writing require the Authority to consider such Change of Scope. The Authority shall, within 15 (fifteen) days of receipt of such notice, either accept such Change of Scope with modifications, if any, and initiate proceedings therefor in accordance with this Article 13 or inform the Concessionaire in writing of its reasons for not accepting such Change of Scope.
13.1.3 Any works or services which are provided under and in accordance with this Article 13 shall form part of the Project Facility and the provisions of this Agreement shall apply mutatis mutandis to such works or services.
13.2 Procedure for Change of Scope
13.2.1 In the event of the Authority determining that a Change of Scope is necessary, it shall issue to the Concessionaire a notice specifying in reasonable detail the works and services contemplated thereunder (the “Change of Scope Notice”).
13.2.2 Upon receipt of a Change of Scope Notice, the Concessionaire shall, with due diligence, provide to the Authority such information as is necessary, together with preliminary Documentation in support of:
(a) the impact, if any, which the Change of Scope is likely to have on the Project Completion Schedule if the works or services are required to be carried out during the Construction Period; and
13.2.3 Upon receipt of information set forth in Article 13.2.2, if the Authority decides to proceed with the Change of Scope, it shall convey its preferred option to the Concessionaire, and the Parties shall, with assistance of the Independent Expert, thereupon make good faith efforts to agree upon the time and costs for implementation thereof. Upon reaching an agreement, the Authority shall issue an order (the “Change of Scope Order”) requiring the Concessionaire to proceed with the performance thereof. In the event that the Parties are unable to agree, the Authority may, by issuing a Change of Scope Order, require the Concessionaire to proceed with the performance thereof pending resolution of the Dispute, or carry out the works in accordance with Article 13.1.
13.2.4 The provisions of this Agreement, insofar as they relate to Construction Works and Tests, shall apply mutatis mutandis to the works undertaken by the Concessionaire.
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Article 14: Operation and Maintenance (O&M)
14.1 O&M obligations of the Concessionaire
14.1.1 During the Operation Period, the Concessionaire shall operate and maintain the Project Facility in accordance with this Agreement either by itself, or through the O&M Contractor and if required, modify, repair or otherwise make improvements to the Project Facility to comply with the provisions of this Agreement, Applicable Laws and Applicable Permits, and conform to Specifications and Standards and Good Industry Practice. The obligations of the Concessionaire hereunder shall include:
(a) Ensuring safe, smooth and uninterrupted services from the Project Facility and Associated Infrastructure, including prevention of loss or damage thereto, during normal operating conditions;
(b) undertaking operation and maintenance of the Project Facility and Associated Infrastructure in an efficient, coordinated and economical manner, in compliance with the Standards and Specifications, in accordance with the provisions of this Agreement and Applicable Laws;
(c) minimising disruption in the event of accidents or other incidents affecting the safety and use of the Project Facility by providing a rapid and effective response and maintaining liaison with emergency services of the State;
(d) carrying out periodic preventive maintenance of the Project Facility and Associated Infrastructure;
(e) undertaking routine maintenance including prompt repairs of all elements and components of the Project Facility and Associated Infrastructure so as to ensure compliance with the Maintenance Requirements and the Specifications and Standards;
(f) undertaking major maintenance including Major Overhaul, replacement of components and parts, repairs to structures, and repairs and refurbishment of associated facilities including equipment;
(g) preventing, with the assistance of the concerned law enforcement agencies, any encroachments on, or unauthorised entry to the Project Facility and Associated Infrastructure;
(h) protection of the environment and provision of equipment and materials therefor;
(i) operation and maintenance of all communication, control and administrative systems necessary for the efficient operation of the Project Facility and Associated Infrastructure and for providing services; maintaining a public relations unit to interface with and attend to suggestions from the Users, government agencies, media and other agencies;
(k) complying with Safety Requirements in accordance with Clause ;
(l) operation and maintenance of all Project Facilities and Associated Infrastructure diligently and efficiently and in accordance with Good Industry Practice; and
(m) maintaining reliability in operating the Project Facility and Associated Infrastructure.
(n) maintaining a public relations unit to interface with and attend to suggestions from the Users, government agencies, media and other agencies; Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode. Page | 38
14.1.2 The Concessionaire shall remove promptly from the Project Facility all surplus construction machinery and materials, waste materials (including hazardous materials, waste water and sludge), rubbish and other debris (including, without limitation, accident debris) and keep the Project Facility in a clean, tidy and orderly condition, and in conformity with the Applicable Laws, Applicable Permits and Good Industry Practice.
14.1.3 The Concessionaire shall maintain, in conformity with Good Industry Practice, all stretches of approach roads or other structures situated on the Licensed Premises.
14.1.4 If the Concessionaire fails to comply with any directions issued by the Authority or any Government Instrumentality acting under any Applicable Laws, as the case may be, and is liable to pay a penalty under the provisions of Applicable Laws, such penalty shall be borne solely by the Concessionaire, and shall not be claimed from the Authority. For the avoidance of doubt, payment of any penalty under the provisions of Applicable Laws shall be in addition to and independent of the Damages payable under this Agreement.
14.2 Maintenance Requirements
The Concessionaire shall procure that at all times during the Operation Period, the Project Facility and Associated Infrastructure conforms to the maintenance requirements.
14.3 Excuse from performance of obligations
The Concessionaire shall not be considered in breach of its obligations under this Agreement if any part of the Project is not available to Users on account of any of the following for the duration thereof:
(a) an event of Force Majeure;
(b) measures taken to ensure the safe use of the Project except when unsafe conditions occurred because of failure of the Concessionaire to perform its obligations under this Agreement; or
(c) compliance with a request from the Authority or the directions of any Government Instrumentality, the effect of which is to close all or any part of the Project:
Provided, that any such non-availability and particulars thereof shall be notified by the Concessionaire to the Authority and the Independent Engineer without any delay;
Provided further that the Concessionaire shall keep all unaffected parts of the Project open to Users, provided they can be operated safely.
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Article 15: Monitoring of Operation and Maintenance
15.1 Monthly status reports
15.1.1 The Concessionaire shall, no later than 7 (seven) days after the close of each month during the Operation Period, furnish a monthly report to the Authority and the Independent Expert stating in reasonable detail the condition of the Project Facility and Associated Infrastructure including its compliance or otherwise with the Maintenance Requirements, Maintenance Manual, Maintenance Programme and Safety Requirements, and shall promptly give such other relevant information as may be required by the Independent Expert or the Authority. In particular, such report shall separately identify and state in reasonable detail the defects and deficiencies that require rectification.
15.2 Reports of unusual occurrence
15.2.1 Prior to the close of each day, the Concessionaire shall furnish to the Authority and the Independent Expert, by facsimile or e-mail, a report stating accidents and unusual occurrences, if any, on the Project Facility relating to the safety and security of the Project Facility or the persons affected by it. A weekly and monthly summary of such reports shall also be sent within 7 (seven) days of the closing of each week and month, as the case may be. For the purposes of this Article 15.2.1, accidents and unusual occurrences at the Project Facility shall include:
(a) death or injury to any person;
(b) any damage or obstruction on the Project Facility;
(c) disablement of any element or system of the Project Facility during operation thereof;
(d) communication failure affecting the operation of the Project Facility;
(e) flood, smoke, fire, theft, trespass or other breach of security; or
(f) such other relevant information as may be reasonably required by the Authority or the Independent Expert.
Provided, however, that in the event no report is sent prior to the close of any day as required hereunder, it shall be presumed that no accident or unusual occurrence, as specified in this Article 15.2.1, has occurred on that day.
15.2.2 In the event of an Emergency, the Concessionaire shall furnish a report, as soon as reasonably practicable but no later than 12 (twelve) hours after the occurrence of such Emergency, setting out the details of the same and the measures taken to mitigate the impact thereof.
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Article16: Security of the Project Facility
16.1 Security
16.1.1 Without prejudice to the obligations of the Concessionaire to obtain insurance for the Project Facility in accordance with the provisions of this Agreement, the Authority acknowledges and agrees that unless otherwise specified in this Agreement, it shall, at its own cost and expense, procure or cause to be procured security of the Project Facility.
16.1.2 The Concessionaire shall be responsible for the security arrangements for the Project Facility in order to maintain orderly conduct of its business and the security thereof.
16.1.3 The Concessionaire shall abide by and implement any instructions of the Authority for enhancing the security of the Project Facility. The Concessionaire shall not be entitled to any compensation for disruption of its operations or loss or damage resulting from the Government’s actions or the actions of any organisation authorised by the Government other than those resulting from wilful or grossly negligent acts or omissions of the Government or of such organisation.
16.1.4 The Authority shall ensure and procure that the personnel of the Concessionaire and all its contractors, suppliers, sub-contractors and agents are allowed free access to the Project Facility without any unreasonable interference by the personnel of the Authority or the Government, including the security personnel employed by or on behalf of the Government.
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Article 17: Change in Specifications
17.1 Notwithstanding anything to the contrary contained in this Agreement, the Parties expressly agree and acknowledge that the Authority may, from time to time, introduce technical improvements or new specifications for the Project Facility and Associated Infrastructure (the “Modified Specifications”)
17.2 In the event that the Authority introduces any Modified Specifications which require material alterations in the Project Facility and Associated Infrastructure, the Concessionaire shall undertake the same as a Change of Scope under and in accordance with the provisions of the Article 13.
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Article 18: Independent Engineer
18.1 Appointment of Independent Engineer
The Authority shall appoint a consulting engineering firm to be the independent consultant under this Agreement (the “Independent Engineer”). The appointment shall be made no later than 60 (sixty) days from the date of this Agreement and shall be for a period of [3 (three) years]. On expiry or termination of the aforesaid appointment, the Authority shall appoint an Independent Engineer for a further term of 3 (three) years and such procedure shall be repeated after expiry of each appointment.
18.2 Duties and functions
18.2.1 The Independent Engineer shall discharge its duties and functions substantially in accordance with the terms of reference set forth herein.
18.2.2 The Independent Engineer shall submit regular periodic reports (at least once every month) to the Authority in respect of its duties and functions set forth in Schedule-N.
18.3 Remuneration
The remuneration, cost and expenses of the Independent Expert shall be paid by the Concessionaire.
18.4 Termination of appointment
18.4.1 The Authority may, in its discretion, terminate the appointment of the Independent Expert at any time, but only after appointment of another Independent Expert in accordance with Article 18.1.
18.4.2 If the Concessionaire has reason to believe that the Independent Engineer is not discharging its duties and functions in a fair, efficient and diligent manner, it may make a written representation to the Authority and seek termination of the appointment of the Independent Engineer. Upon receipt of such representation, the Authority shall hold a tripartite meeting with the Concessionaire and Independent Expert for an amicable resolution of the Dispute, and if any difference or disagreement between the Authority and the Concessionaire remains unresolved, the Dispute shall be settled in accordance with the Dispute Resolution Procedure. In the event that the appointment of the Independent Expert is terminated hereunder, the Authority shall appoint forthwith another Independent Expert in accordance with Clauses herein.
18.5 Authorised signatories
The Authority shall require the Independent Expert to designate and notify to the Authority and the Concessionaire up to 2 (two) persons employed in its firm to sign for and on behalf of the Independent Expert, and any communication or document required to be signed by the Independent Engineer shall be valid and effective only if signed by any of the designated persons; provided that the Independent Expert may, by notice in writing, substitute any of the designated persons by any of its employees. Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode. Page | 43
18. 6 Dispute resolution
If either Party disputes any advice, instruction, decision, direction or award of the Independent Expert, or, as the case may be, the assertion or failure to assert jurisdiction, the Dispute shall be resolved in accordance with the Dispute Resolution Procedure which is in vogue.
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PART IV: FINANCIAL COVENANTS
Article 19: Financial Closure
19.1 Financial Closure
19.1.1 The Concessionaire hereby agrees and undertakes that it shall achieve Financial Closure within 90 (ninety) days from the date of this Agreement and in the event of delay, it shall be entitled to a further period not exceeding 60 (sixty) days, subject to payment of Damages to the Authority in a sum calculated at the rate of 0.2% (zero point two per cent) of the Performance Guarantee Security for each day of delay; provided that the Damages specified herein shall be payable every week in advance and the period beyond the said 60 (sixty) days shall be granted only to the extent of Damages so paid; provided further that no Damages shall be payable if such delay in Financial Closure has occurred solely as a result of any default or delay by the Authority in procuring satisfaction of the Conditions Precedent specified in Article 4.1.2 or due to Force Majeure.
19.1.2 The Concessionaire shall, upon occurrence of Financial Closure, notify the Authority forthwith, and shall have provided to the Authority, at least 2 (two) days prior to the Financial Closure, 3 (three) true copies of the Financial Package and the Financial Model, duly attested by a Director of the Concessionaire, along with 3 (three) soft copies of the Financial Model in MS Excel version or any substitute thereof, which is acceptable to the Senior Lenders.
19.2 Termination due to failure to achieve Financial Closure
19.2.1 Notwithstanding anything to the contrary contained in this Agreement, but subject to Clauses herein mentioned, in the event that Financial Closure does not occur, for any reason whatsoever, within the period set forth in Article 19.1.1 or the extended period provided thereunder, all rights, privileges, claims and entitlements of the Concessionaire under or arising out of this Agreement shall be deemed to have been waived by, and to have ceased with the concurrence of the Concessionaire, and the Agreement shall be deemed to have been terminated by mutual agreement of the Parties. For the avoidance of doubt, it is agreed that in the event the Parties hereto have, by mutual consent, determined the Appointed Date to precede the Financial Closure, the provisions of this Article 19.2.1 shall not apply.
19.2.2 Upon Termination under Article 19.2.1, the Authority shall be entitled to encash the Bid Security and appropriate the proceeds thereof as Damages; provided, however, if Financial Closure has not occurred solely as a result of the Authority being in default of any of its obligations under Article 4.1.2, it shall, upon Termination, return the Bid Security forthwith along with the Damages due and payable under Article 4.2. For the avoidance of doubt, it is expressly agreed that if the Bid Security shall have been substituted by Performance Guarantee Security, the Authority shall be entitled to encash therefrom an amount equal to Bid Security.
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Article 20: Revenue share
20.1 Revenue Share
The Concessionaire acknowledges and agrees that as set forth in the Bid, it shall pay to the Authority the following sums by way of revenue share (the “revenue share”):
(a) a sum of Rs. … (Rupees ………….) as Revenue Share will be paid from ______Year to 33rd year of the Concession Period with an annual increment of ______Percent (____%) year on year. We also hereby agree to pay to Authority, either the ‘Revenue Share’ quoted (including Annual Escalation) or ______(%) of the Revenue, whichever is higher for that particular year.
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Article 21: User Charges, Taxes and Duties
21.1 User Charges
The Concessionaire shall charge user fee (The “User Charges”) for providing the Services related to the Associated Infrastructure.
21.2 Taxes and duties
It is agreed that the Concessionaire shall pay all taxes and duties, including the taxes and duties arising during the construction/maintenance in conformity with Applicable Laws.
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Article 22: Accounts and Audit
22.1 Audited accounts
22.1.1 The Concessionaire shall maintain books of accounts recording all its receipts (including all incomes and User Charges from users of the Project Facility and/or its use), income, expenditure, payments, assets and liabilities, in accordance with this Agreement, Good Industry Practice, Applicable Laws and Applicable Permits. The Concessionaire shall provide 2 (two) copies of its Balance Sheet, Cash Flow Statement and Profit and Loss Account, along with a report thereon by its Statutory Auditors, within 90 (Ninety) days of the close of the Accounting Year to which they pertain and such audited accounts, save and except where expressly provided to the contrary, shall form the basis of payments by either Party under this Agreement. The Authority shall have the right to inspect the records of the Concessionaire during office hours and require copies of relevant extracts of books of accounts, duly certified by the Statutory Auditors, to be provided to the Authority for verification of basis of payments, and in the event of any discrepancy or error being found, the same shall be rectified and such rectified account shall form the basis of payments by either Party under this Agreement.
22.1.2 The Concessionaire shall, within 30 (thirty) days of the close of each quarter of an Accounting Year, furnish to the Authority its unaudited financial results in respect of the preceding quarter, in the manner and form prescribed by the Securities and Exchange Board of India for publication of quarterly results by the companies listed on a stock exchange.
22.1.3 On or before the thirty-first day of May each Year, the Concessionaire shall provide to the Authority, for the preceding Accounting Year, a statement duly audited by its Statutory Auditors giving summarised information on receipts on account of User Charge and such other information as the Authority may reasonably require.
22.2 Appointment of auditors
22.2.1 The Concessionaire shall appoint, and have during the subsistence of this Agreement as its Statutory Auditors, a firm chosen by it from the mutually agreed list of 3 (three) reputable firms of chartered accountants (the “Panel of Chartered Accountants”). All fees and expenses of the Statutory Auditors shall be borne by the Concessionaire.
22.2.2 The Concessionaire may terminate the appointment of its Statutory Auditors after a notice of 45 (forty five) days to the Authority, subject to the replacement Statutory Auditors being appointed from the Panel of Chartered Accountants.
22.2.3 Notwithstanding anything to the contrary contained in this Agreement, the Authority shall have the right, but not the obligation, to appoint at its cost from time to time and at any time, another firm (the “Additional Auditors”) from the Panel of Chartered Accountants to audit and verify all those matters, expenses, costs, realisations and things which the Statutory Auditors are required to do, undertake or certify pursuant to this Agreement.
22.3Certification of claims by Statutory Auditors
Any claim or document provided by the Concessionaire to the Authority in connection with or relating to receipts, income, payments, costs, expenses, accounts or audit, and any matter incidental thereto shall be valid and effective only if certified by its Statutory Auditors. For the
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avoidance of doubt, such certification shall not be required for exchange of information in the normal course of business.
22.4 Dispute resolution
In the event of there being any difference between the findings of the Additional Auditors or the Concurrent Auditors, as the case may be, and the certification provided by the Statutory Auditors, such Auditors shall meet to resolve the differences and if they are unable to resolve the same, such Dispute shall be resolved by the Authority by recourse to the Dispute Resolution Procedure.
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PART V: FORCE MAJEURE AND TERMINATION
Article 23: Force Majeure
23.1 Force Majeure
As used in this Agreement, the expression “Force Majeure” or “Force Majeure Event” shall mean occurrence in India of any or all of Non-Political Event, Indirect Political Event and Political Event, as defined in Articles23.2, 23.3 and 23.4 respectively, if it affects the performance by the Party claiming the benefit of Force Majeure (the “Affected Party”) of its obligations under this Agreement and which act or event (i) is beyond the reasonable control of the Affected Party, and (ii) the Affected Party could not have prevented or overcome by exercise of due diligence and following Good Industry Practice, and (iii) has Material Adverse Effect on the Affected Party.
23.2 Non-Political Event
A Non-Political Event shall mean one or more of the following acts or events:
(a) act of God, epidemic, extremely adverse weather conditions, lightning, earthquake, landslide, cyclone, flood, volcanic eruption, chemical or radioactive contamination or ionising radiation, fire or explosion (to the extent of contamination or radiation or fire or explosion originating from a source external to the Project Facility);
(b) strikes or boycotts (other than those involving the Concessionaire, Contractors or their respective employees/representatives, or attributable to any act or omission of any of them) interrupting supplies and services to the Project Facility and Associated Infrastructure and Associated Infrastructure for a continuous period of 24 (twenty four) hours and an aggregate period exceeding 7 (seven) days in an Accounting Year, and not being an Indirect Political Event set forth in Article 28.3;
(c) any failure or delay of a Contractor but only to the extent caused by another Non-Political Event and which does not result in any offsetting compensation being payable to the Concessionaire by or on behalf of such Contractor;
(d) any delay or failure of an overseas contractor to deliver any critical equipment required for the Project Facility and not available in India if such delay or failure is caused outside India by any event specified in Sub-clause (a) above and which does not result in any offsetting compensation being payable to the Concessionaire by or on behalf of such contractor;
(e) any judgement or order of any court of competent jurisdiction or statutory authority made against the Concessionaire in any proceedings for reasons other than (i) failure of the Concessionaire to comply with any Applicable Law or Applicable Permit, or (ii) on account of breach of any Applicable Law or Applicable Permit or of any contract, or (iii) enforcement of this Agreement, or (iv) exercise of any of its rights under this Agreement by the Authority;
(f) the discovery of geological conditions, toxic contamination or archaeological remains on the Licensed Premises that could not reasonably have been expected to be discovered through an inspection of the Licensed Premises; or
(g) any event or circumstances of a nature analogous to any of the foregoing.
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23.3 Indirect Political Event
An Indirect Political Event shall mean one or more of the following acts or events:
(a) an act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, riot, insurrection, terrorist or military action, civil commotion or politically motivated sabotage;
(b) industry-wide or State-wide strikes or industrial action for a continuous period of 24 (twenty four) hours and exceeding an aggregate period of 7 (seven) days in an Accounting Year;
(c) any civil commotion, boycott or political agitation which prevents operation of the Project Facility by the Concessionaire for an aggregate period exceeding 7 (seven) days in an Accounting Year;
(d) any failure or delay of a Contractor to the extent caused by any Indirect Political Event and which does not result in any offsetting compensation being payable to the Concessionaire by or on behalf of such Contractor;
(e) any Indirect Political Event that causes a Non-Political Event; or
(f) any event or circumstances of a nature analogous to any of the foregoing.
23.4 Political Event
A Political Event shall mean one or more of the following acts or events by or on account of any Government Instrumentality:
(a) Change in Law, only if consequences thereof cannot be dealt with under and in accordance with the provisions of Article 35 and its effect, in financial terms, exceeds the sum specified in Clauses herein mentioned.
(b) compulsory acquisition in national interest or expropriation of any Project Facility or rights of the Concessionaire or of the Contractors;
(c) unlawful or unauthorised or without jurisdiction revocation of, or refusal to renew or grant without valid cause, any clearance, licence, permit, authorisation, no objection certificate, consent, approval or exemption required by the Concessionaire or any of the Contractors to perform their respective obligations under this Agreement and the Project Agreements; provided that such delay, modification, denial, refusal or revocation did not result from the Concessionaire’s or any Contractor’s inability or failure tocomply with any condition relating to grant, maintenance or renewal of such clearance, licence, authorisation, no objection certificate, exemption, consent, approval or permit;
(d) any failure or delay of a Contractor but only to the extent caused by another Political Event and which does not result in any offsetting compensation being payable to the Concessionaire by or on behalf of such Contractor; or (e) any event or circumstance of a nature analogous to any of the foregoing.
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23.5 Duty to report Force Majeure Event
23.5.1 Upon occurrence of a Force Majeure Event, the Affected Party shall by notice report such occurrence to the other Party forthwith. Any notice pursuant hereto shall include full particulars of:
(a) the nature and extent of each Force Majeure Event which is the subject of any claim for relief under this Article 23 with evidence in support thereof;
(b) the estimated duration and the effect or probable effect which such Force Majeure Event is having or will have on the Affected Party’s performance of its obligations under this Agreement;
(c) the measures which the Affected Party is taking or proposes to take for alleviating the impact of such Force Majeure Event; and
(d) any other information relevant to the Affected Party’s claim.
23.5.2 The Affected Party shall not be entitled to any relief for or in respect of a Force Majeure Event unless it shall have notified the other Party of the occurrence of the Force Majeure Event as soon as reasonably practicable, and in any event no later than 7 (seven) days after the Affected Party knew, or ought reasonably to have known, of its occurrence, and shall have given particulars of the probable material effect that the Force Majeure Event is likely to have on the performance of its obligations under this Agreement.
23.5.3 For so long as the Affected Party continues to claim to be materially affected by such Force Majeure Event, it shall provide the other Party with regular (and not less than weekly) reports containing information as required by Article 23.5.1, and such other information as the other Party may reasonably request the Affected Party to provide.
23.6 Effect of Force Majeure Event on the Concession
23.6.1 Upon the occurrence of any Force Majeure Event prior to the Appointed Date, the period set forth in this agreement, Article 19.1.1 for achieving Financial Closure shall be extended by a period equal in length to the duration of the Force Majeure Event.
23.6.2 At any time after the Appointed Date, if any Force Majeure Event occurs:
(a) before COD, the Concession Period and the dates set forth in the Project Completion Schedule shall be extended by a period equal in length to the duration for which such Force Majeure Event subsists; or
(b) after COD, whereupon the Concessionaire is unable to provide the services despite making best efforts or it is directed by the Authority or any Governmental Instrumentality to suspend the aforesaid services during the subsistence of such Force Majeure Event, the Concession Period shall be extended by a period equal in length to the period during which the Concessionaire was prevented from providing the aforesaid services on account thereof.
23.7 Allocation of costs arising out of Force Majeure
23.7.1 Upon occurrence of any Force Majeure Event prior to the Appointed Date, the Parties shall bear their respective costs and no Party shall be required to pay to the other Party any costs thereof.
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23.7.2 Upon occurrence of a Force Majeure Event after the Appointed Date, the costs incurred and attributable to such event and directly relating to the Project Facility (the “Force Majeure Costs”) shall be allocated and paid as follows:
(a) upon occurrence of a Non-Political Event, the Parties shall bear their respective Force Majeure Costs and neither Party shall be required to pay to the other Party any costs thereof;
(b) upon occurrence of an Indirect Political Event, all Force Majeure Costs attributable to such Indirect Political Event, and not exceeding the Insurance Cover for such Indirect Political Event, shall be borne by the Concessionaire, and to the extent Force Majeure Costs exceed such Insurance Cover, one half of such excess amount shall be reimbursed by the Authority to the Concessionaire; and
(c) upon occurrence of a Political Event, all Force Majeure Costs attributable to such Political Event shall be reimbursed by the Authority to the Concessionaire, not exceeding 50% of the capital cost incurred upto the date of occurance of such force majeure event in not less than 45 days.
23.7.3 Save and except as expressly provided in this Article 23, neither Party shall be liable in any manner whatsoever to the other Party in respect of any loss, damage, cost, expense, claims, demands and proceedings relating to or arising out of occurrence or existence of any Force Majeure Event or exercise of any right pursuant hereto.
23.8 Termination Notice for Force Majeure Event
If a Force Majeure Event subsists for a period of 180 (one hundred and eighty) days or more within a continuous period of 365 (three hundred and sixty five) days, either Party may in its discretion terminate this Agreement by issuing a Termination Notice to the other Party without being liable in any manner whatsoever, save as provided in this Article ( 23 ), and upon issue of such Termination Notice, this Agreement shall, notwithstanding anything to the contrary contained herein, stand terminated forthwith; provided that before issuing such Termination Notice, the Party intending to issue the Termination Notice shall inform the other Party of such intention and grant 15 (fifteen) days’ time to make a representation, and may after the expiry of such 15(fifteen) days period, whether or not it is in receipt of such representation, in its sole discretion issue the Termination Notice.
23.9 Dispute resolution
In the event that the Parties are unable to agree in good faith about the occurrence or existence of a Force Majeure Event, such Dispute shall be finally settled in accordance with the Dispute Resolution Procedure; provided that the burden of proof as to the occurrence or existence of such Force Majeure Event shall be upon the Party claiming relief and/or excuse on account of such Force Majeure Event.
23.10 Excuse from performance of obligations
If the Affected Party is rendered wholly or partially unable to perform its obligations under this Agreement because of a Force Majeure Event, it shall be excused from performance of such of its obligations to the extent it is unable to perform on account of such Force Majeure Event; provided that:
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(a) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event;
(b) the Affected Party shall make all reasonable efforts to mitigate or limit damage to the other Party arising out of or as a result of the existence or occurrence of such Force Majeure Event and to cure the same with due diligence; and (c) when the Affected Party is able to resume performance of its obligations under this Agreement, it shall give to the other Party notice to that effect and shall promptly resume performance of its obligations hereunder.
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Article 24: Compensation for Breach of Agreement
24.1 Compensation for default by the Concessionaire
Subject to the provisions of Articles herein, in the event of the Concessionaire being in material breach or default of this Agreement, it shall pay to the Authority by way of compensation, all direct costs suffered or incurred by the Authority as a consequence of such material breach or default, within 30 (thirty) days of receipt of the demand supported by necessary particulars thereof; provided that no compensation shall be payable under this Clause for any material breach or default in respect of which Damages are expressly specified and payable under this Agreement or for any consequential losses incurred by the Authority.
24.2 Compensation for default by the Authority
Subject to the provisions of Articles herein, in the event of the Authority being in material breach or default of this Agreement at any time after the Appointed Date, it shall pay to the Concessionaire by way of compensation, capital costs not exceeding 50% suffered or incurred by the Concessionaire as a consequence of such material breach or default within 30 (thirty) days of receipt of the demand supported by necessary particulars thereof; provided that no such compensation shall be payable for any material breach or default in respect of which Damages have been expressly specified in this Agreement. 24.3 Compensation to be in addition
Compensation payable under this Article 24 shall be in addition to, and not in substitution for, or derogation of, Termination Payment, if any.
24.4 Mitigation of costs and damage
The non-defaulting Party shall make all reasonable efforts to mitigate or limit the costs and damage arising out of or as a result of breach of Agreement by the other Party.
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Article 25: Suspension of Concessionaire’s Rights
25.1 Suspension upon Concessionaire Default
Upon occurrence of a Concessionaire Default, the Authority shall be entitled, subject to Applicable Laws and without prejudice to its other rights and remedies under this Agreement including its rights of Termination hereunder, to (i) suspend all rights of the Concessionaire under this Agreement including the Concessionaire’s right to receive any User Charge, and (ii) exercise such rights itself and perform the obligations hereunder or authorise any other person to exercise or perform the same on its behalf during such suspension (the “Suspension”). Suspension hereunder shall be effective forthwith upon issue of notice by the Authority to the Concessionaire and may extend up to a period not exceeding 60 (sixty) days from the date of issue of such notice; provided that upon written request from the Concessionaire and the Lenders’ Representative, the Authority shall extend the aforesaid period of 60 (sixty) days by a further period not exceeding 30 (thirty) days.
25.2 Authority to act on behalf of Concessionaire
25.2.1 During the period of Suspension, the Authority shall, on behalf of the Concessionaire, collect all User Charges under and in accordance with this Agreement, and deposit the same in Escrow Account. The Authority shall be entitled to appropriate the same for meeting the O&M Expenses and for remedying and rectifying the cause of Suspension.
25.2.2 During the period of Suspension hereunder, all rights and liabilities vested in the Concessionaire in accordance with the provisions of this Agreement shall continue to vest therein and all things done or actions taken, including expenditure incurred by the Authority for discharging the obligations of the Concessionaire under and in accordance with this Agreement and the Project Agreements, shall be deemed to have been done or taken for and on behalf of the Concessionaire and the Concessionaire undertakes to indemnify the Authority for all costs incurred during such period.
25.3 Revocation of Suspension
25.3.1 In the event that the Authority shall have rectified or removed the cause of Suspension within a period not exceeding 60 (sixty) days from the date of Suspension, it shall revoke the Suspension forthwith and restore all rights of the Concessionaire under this Agreement. For the avoidance of doubt, the Parties expressly agree that the Authority may, in its discretion, revoke the Suspension at any time, whether or not the cause of Suspension has been rectified or removed hereunder.
25.3.2 Upon the Concessionaire having cured the Concessionaire Default within a period not exceeding 90 (Ninety) days from the date of Suspension, the Authority shall revoke the Suspension forthwith and restore all rights of the Concessionaire under this Agreement.
25.4 Substitution of Concessionaire
At any time during the period of Suspension, the Lenders’ Representative, on behalf of Senior Lenders, shall be entitled to substitute the Concessionaire under and in accordance with the Substitution Agreement, and upon receipt of notice thereunder from the Lenders’ Representative, the Authority shall withhold Termination for a period not exceeding 90 (ninety) days from the date of Suspension, and any extension thereof under Article 25.1, for enabling the Lenders’ Representative to exercise its rights of substitution on behalf of Senior Lenders.
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25.5 Termination
25.5.1 At any time during the period of Suspension under this Article25, the Concessionaire may by notice require the Authority to revoke the Suspension and issue a Termination Notice. Subject to the rights of the Lenders’ Representative to undertake substitution in accordance with the provisions of this Agreement and within the period specified in Article 25.4, the Authority shall, within 15 (fifteen) days of receipt of such notice, terminate this Agreement.
25.5.2 Notwithstanding anything to the contrary contained in this Agreement, in the event that Suspension is not revoked within 90 (ninety) days from the date of Suspension hereunder or within the extended period, if any, set forth in Article 25.1, this Agreement shall, upon expiry of the aforesaid period, be deemed to have been terminated by mutual agreement of the Parties and all the provisions of this Agreement shall apply, mutatis mutandis, to such Termination as if a Termination Notice had been issued by the Authority upon occurrence of a Concessionaire Default.
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Article 26: Termination
26.1 Termination for Concessionaire Default
26.1.1 Subject to Applicable Laws and save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Concessionaire shall be deemed to be in default of this Agreement (the “Concessionaire Default”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Performance Guarantee Security has been encashed and appropriated in accordance with Article 9.2 and the Concessionaire fails to replenish or provide fresh Performance Guarantee Security within a Cure Period of 60 (sixty)days;
(b) subsequent to the replenishment or furnishing of fresh Performance Guarantee Security in accordance with Article 9.2, the Concessionaire fails to meet any Condition Precedent or cure the Concessionaire Default, as the case may be, for which whole or part of the Performance Guarantee Security was appropriated, within a Cure Period of 60 (sixty) days;
(c) the Concessionaire abandons or manifests intention to abandon the construction or operation of the Project Facility without the prior written consent of the Authority;
(d) Project Completion Date does not occur within the period specified in the approved Project Report
(e) the Concessionaire is in breach of the Maintenance Requirements or the Safety Requirements, as the case may be;
(f) the Concessionaire has failed to make any payment to the Authority within the period specified in this Agreement;
(g) upon occurrence of a Financial Default, the Lenders’ Representative has by notice required the Authority to undertake Suspension or Termination, as the case may be, in accordance with the Substitution Agreement and the Concessionaire fails to cure the default within the Cure Period specified hereinabove;
(h) a breach of any of the Project Agreements by the Concessionaire has caused a Material Adverse Effect;
(i) the Concessionaire creates any Encumbrance in breach of this Agreement;
(j) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement; a Change in Ownership has occurred in breach of the provisions of Article 5.3
(m) there is a transfer, pursuant to law either of (i) the rights and/or obligations of the Concessionaire under any of the Project Agreements, or of (ii) all or part of the assets or undertaking of the Concessionaire, and such transfer causes a Material Adverse Effect;
(n) an execution levied on any of the assets of the Concessionaire has caused a Material Adverse Effect;
(o) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets that has a material bearing on the Project;
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(p) the Concessionaire 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 Authority, a Material Adverse Effect;
(q) a resolution for winding up of the Concessionaire is passed;
(r) any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (Ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court except for the purpose of amalgamation or reconstruction; provided that, as part of such amalgamation or reconstruction, the entire property, assets and undertaking of the Concessionaire are transferred to the amalgamated or reconstructed entity and that the amalgamated or reconstructed entity has unconditionally assumed the obligations of the Concessionaire under this Agreement and the Project Agreements; and provided that:
(i) the amalgamated or reconstructed entity has the capability and operating experience necessary for the performance of its obligations under this Agreement and the Project Agreements;
(ii) the amalgamated or reconstructed entity has the financial standing to perform its obligations under this Agreement and the Project Agreements and has a credit worthiness at least as good as that of the Concessionaire as at the Appointed Date; and
(iii) each of the Project Agreements remains in full force and effect.
(s) any representation or warranty of the Concessionaire herein contained which is, as of the date hereof, found to be materially false, incorrect or misleading or the Concessionaire is at any time hereafter found to be in breach thereof;
(t) the Concessionaire submits to the Authority any statement, notice or other document, in written or electronic form, which has a material effect on the Authority’s rights, obligations or interests and which is false in material particulars;
(u) the Concessionaire has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement; or
(v) the Concessionaire commits a default in complying with any other provision of this Agreement if such default causes or may cause a Material Adverse Effect on the Authority;
26.1.2 Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of Article 26.
26.1.3 The Authority shall, if there be Senior Lenders, send a copy of its notice of intention to issue a Termination Notice referred to in Article to inform the Lenders’ Representative and grant 15 (fifteen) days to the Lenders’ Representative, for making a representation on behalf of the Senior Lenders stating the intention to substitute the Concessionaire in accordance with the Substitution Agreement. In the event the Authority receives such representation on behalf of Senior Lenders, it shall, in its discretion, either withhold Termination for a period not exceeding 90 (ninety) days from the date of such representation or exercise its right of Suspension, as the case may be, for enabling the Lenders’ Representative to exercise the Senior Lenders’ right of substitution in accordance with the Substitution Agreement: Draft Concession Agreement for AC Convention Centre with Hotel” at ‘ChitradavariThota site’ in ‘Vepagunta village’ on DBFOT Basis in PPP Mode. Page | 59
Provided that the Lenders’ Representative may, instead of exercising the Senior Lenders’ right of substitution, procure that the default specified in the notice is cured within the aforesaid period of 90 (ninety) days, and upon such curing thereof, the Authority shall withdraw its notice referred to above and restore all the rights of the Concessionaire:
Provided further that upon written request from the Lenders’ Representative and the Concessionaire, the Authority shall extend the aforesaid period of 90 (ninety) days by such further period not exceeding 60 (sixty) days, as the Authority may deem appropriate.
26.2 Termination for Authority Default
26.2.1 In the event that any of the defaults specified below shall have occurred, and the Authority fails to cure such default within a Cure Period of 60 (sixty) days or such longer period as has been expressly provided in this Agreement, the Authority shall be deemed to be in default of this Agreement (the “Authority Default”) unless the default has occurred as a result of any breach of this Agreement by the Concessionaire or due to Force Majeure. The defaults referred to herein shall include:
(a) The Authority commits a material default in complying with any of the provisions of this Agreement and such default has a Material Adverse Effect on the Concessionaire;
(b) the Authority has failed to make any payment to the Concessionaire within the period specified in this Agreement; or
(c) the Authority repudiates this Agreement or otherwise takes any action that amounts to or manifests an irrevocable intention not to be bound by this Agreement. 26.2.2 Without prejudice to any other right or remedy which the Concessionaire may have under this Agreement, upon occurrence of an Authority Default, the Concessionaire shall, subject to the provisions of the Substitution Agreement, be entitled to terminate this Agreement by issuing a Termination Notice to the Authority; provided that before issuing the Termination Notice, the Concessionaire shall by a notice inform the Authority of its intention to issue the Termination Notice and grant 15 (fifteen) days to the Authority to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice.
26.3 Termination Payment 26.3.1 Upon Termination as per Article 26.2, and during the Operation Period, the Authority shall pay to the Concessionaire, by way of Termination Payment, an amount not exceeding 50% (fifty per cent) of the Capital Cost incurred as on the date of determination of Termination and such payments are to be determined and evaluated by an Independent Engineer/Chartered Engineer to be nominated by both the Authority and Concessionaire. For the avoidance of doubt, the Concessionaire hereby acknowledges that no Termination Payment shall be due or payable on account of Authority Default occurring prior to COD, save and except as provided in Articles. 26.3.2 Termination Payment shall become due and payable to the Concessionaire within15 (fifteen) days of a demand being made by the Concessionaire to the Authority with the necessary particulars, and in the event of any delay, the Authority shall pay interest at a rate equal to the Bank Rate on the amount of Termination Payment remaining unpaid; provided that such delay shall not exceed 90 (Ninety) days. For the avoidance of doubt, it is expressly agreed that Termination Payment
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shall constitute full discharge by the Authority of its payment obligations in respect thereof hereunder. 26.3.5 Upon termination on expiry of the Concession Period by efflux of time, no Termination Payment shall be due and payable to the Concessionaire.
26.3.6 The Concessionaire expressly agrees that Termination Payment under this Article 26 shall constitute a full and final settlement of all claims of the Concessionaire on account of Termination of this Agreement for any reason whatsoever and that the Concessionaire or any shareholder thereof shall not have any further right or claim under any law, treaty, convention, contract or otherwise.
26.4 Certain limitations on Termination Payment
26.4.1 Termination Payment, by the Authority due and payable under this Agreement shall be limited to the 50% of the capital cost incurred as the case may be.
26.5 Other rights and obligations of the Authority
Upon Termination for any reason whatsoever, the Authority shall:
(a) be deemed to have taken possession and control of the Project Facility and Associated Infrastructure forthwith;
(b) take possession and control of all materials, stores, implements, construction plants and equipment on or about the Project Facility and Associated Infrastructure;
(c) be entitled to restrain the Concessionaire and any person claiming through or under the Concessionaire from entering upon the Project Facility and Associated Infrastructure or any part of the Project;
26.6 Survival of rights Notwithstanding anything to the contrary contained in this Agreement, but subject to the provisions of Article26, any Termination pursuant to the provisions of this Agreement shall be without prejudice to the accrued rights of either Party including its right to claim and recover money damages, insurance proceeds, security deposits, and other rights and remedies, which it may have in law or contract. All rights and obligations of either Party under this Agreement, including Termination Payments, shall survive the Termination to the extent such survival is necessary for giving effect to such rights and obligations.
26.7 Inspection and cure
26.7.1 Not earlier than 90 (Ninety) days prior to Termination but not later than 15 (fifteen) days prior to the effective date of such Termination, the Independent Expert shall verify, after giving due notice to the Concessionaire specifying the time, date and venue of such verification and/or inspection, compliance by the Concessionaire with the Maintenance Requirements, and if required, cause appropriate tests to be carried out at the Concessionaire’s cost for this purpose. Defaults, if any, in the Maintenance Requirements shall be cured by the Concessionaire at its cost and the provisions of Article 14 shall apply, mutatis mutandis, in relation to curing of defects or deficiencies under this Article 26
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26.8 Cooperation and assistance on transfer of Project
26.8.1 The Parties shall cooperate on a best effort basis and take all necessary measures, in good faith, to achieve a smooth transfer of the Project in accordance with the provisions of this Agreement so as to protect the safety of and avoid undue delay or inconvenience to the Users, other members of the public or the lawful occupiers of any part of the Project Facility and Associated Infrastructure.
26.8.2 The Parties shall provide to each other, 6 (six) months prior to the Transfer Date in the event of Termination by efflux of time and immediately in the event of either Party conveying to the other Party its intent to issue a Termination Notice, as the case may be, as much information and advice as is reasonably practicable regarding the proposed arrangements for operation of the Project following the Transfer Date. The Concessionaire shall further provide such reasonable advice and assistance as the Authority, its concessionaire or agent may reasonably require for operation of the Project until the expiry of 6 (six) months after the Transfer Date.
26.9 In the event of any Dispute relating to matters covered by and under this Article 28, the Dispute Resolution Procedure shall apply
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Article27. Defects Liability after Termination
27.1 Defects Liability for defects after Termination
27.1.1The Concessionaire shall be responsible for all defects and deficiencies in the Project for a period of 120 (one hundred and twenty) days after Termination, and it shall have the obligation to repair or rectify, at its own cost, all defects and deficiencies observed by the Independent Engineer in the Project during the aforesaid period. In the event that the Concessionaire fails to repair or rectify such defect or deficiency within a period of 15 (fifteen) days from the date of notice issued by the Authority in this behalf, the Authority shall be entitled to get the same repaired or rectified at the Concessionaire’s risk and cost so as to make the Project conform to the Maintenance Requirements. All costs incurred by the Authority hereunder shall be reimbursed by the Concessionaire to the Authority within 15 (fifteen) days of receipt of demand thereof, and in the event of default in reimbursing such costs, the Authority shall be entitled to recover from the Performance Guarantee provided thereunder. For the avoidance of doubt, the provisions of this Article 27 shall not apply if Termination occurs prior to COD.
27.1.2. The Concessionaire may, for the performance of its obligations under this Article 27, provide to the Authority a guarantee from a Bank for a sum equivalent to the amount determined under Article 27.1 as the case may be, and for the period specified therein, for this purpose, and the Authority shall, without prejudice to its other rights and remedies hereunder or in law, be entitled to encash and appropriate the required amounts from the Performance Guarantee for undertaking the repairs or rectification at the Concessionaire’s risk and cost in accordance with the provisions of this Article 27..
27.2 Restrictions on assignment and charges
27.2.1 Subject to Articles 27.1 this Agreement shall not be assigned by the Concessionaire to any person, save and except with the prior consent in writing of the Authority, which consent the Authority shall be entitled to decline without assigning any reason. 27.2.2. Subject to the provisions of Article 27.2, the Concessionaire shall not create nor permit to subsist any Encumbrance, or otherwise transfer or dispose of all or any of its rights and benefits under this Agreement or any Project Agreement to which the Concessionaire is a party, except with prior consent in writing of the Authority, which consent the Authority shall be entitled to decline without assigning any reason. 27.3 General indemnity
27.3.1. The Concessionaire shall indemnify, defend, save and hold harmless the Authority and its officers, servants, agents, Government Instrumentalities and Government owned and/or controlled entities/enterprises, (the “Authority Indemnified Persons”) against any and all suits, proceedings, actions, demands and claims from third parties for any loss, damage, cost and expense of whatever kind and nature, whether arising out of any breach by the Concessionaire of any of its obligations under this Agreement or any related agreement or on account of any defect or deficiency in the provision of services by the Concessionaire to the Authority or to any User, or from any negligence of the Concessionaire under contract or tort or on any other ground whatsoever, except to the extent that any such suits, proceedings, actions, demands and claims have arisen due to any negligent act or omission, or breach or default of this Agreement on the part of the Authority Indemnified Persons.
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27.3.2. The Authority shall indemnify, defend, save and hold harmless the Concessionaire against any and all suits, proceedings, actions, demands and claims from third parties for any loss, damage', cost and expense of whatever kind and nature arising out of (a) defect in title and/or the rights of the Authority in the land comprised in the Site, and/or (b) breach by the Authority of any of its obligations under this Agreement or any related agreement, which materially and adversely affect the performance by the Concessionaire of its obligations under this Agreement, save and except that where any such claim, suit, proceeding, action, and/or demand has arisen due to a negligent act or omission, or breach of any of its obligations under any provision of this Agreement or any related agreement, and/or breach of its statutory duty on the part of the Concessionaire, its subsidiaries, affiliates, contractors, servants or agents, the same shall be the liability of the Concessionaire.
27.4 Licensee rights
For the purpose of this Agreement, the Concessionaire shall have rights to the use of the Site as a licensee subject to and in accordance with this Agreement, and to this end; it may regulate the entry and use of the Project by third parties in accordance with and subject to the provisions of this Agreement.
27.5 Access rights of the Authority and others
27.5.1 The Concessionaire shall allow free access to the Site at all times for the authorized representatives and vehicles of the Authority and/or its contractors, Senior Lenders, and the Independent Engineer, and for the persons and vehicles duly authorized by any Government Instrumentality to inspect the Project and to investigate any matter within their authority, and upon reasonable notice, the Concessionaire shall provide to such persons reasonable assistance necessary to carry out their respective duties and functions.
27.5.2. The Concessionaire shall, for the purpose of operation and maintenance of any utility or road specified allow free access to the Site at all times for the authorized persons and vehicles of the controlling body of such utility or road.
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Article28 Dispute Resolution
28.1 Dispute resolution
28.1.1 Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the “Dispute”) shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth herein.
28.1.2 The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute.
28.2 Conciliation
28.2.1 In the event of any Dispute between the Parties, either Party may call upon the Independent Engineer to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Independent Engineer or without the intervention of the Independent Engineer, either Party may require such Dispute to be referred to the Authority for amicable settlement, and upon such reference, the said persons shall meet no later than 7 (seven) days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the 7 (seven) days period or the Dispute is not amicably settled within 15 (fifteen) days of the meeting or the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Article 28.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Article 28..
28.3 Arbitration
28.3.1 Any Dispute which is not resolved amicably by conciliation, as provided in Article 28.2, shall be finally decided by reference to arbitration by Commissioner Endowments Department, Government of Andhra Pradesh with Article 28.3. The place of such arbitration shall be at Gollapudi, Vijayawada and the language of arbitration proceedings shall be English.
28.3.2 The arbitrator shall make a reasoned award (the “Award”). Any Award made in any arbitration held pursuant to this Article 28 shall be final and binding on the Parties as from the date it is made, and the Concessionaire and the Authority agree and undertake to carry out such Award without delay.
28.3.3 The Concessionaire and the Authority agree that an Award may be enforced against the Concessionaire and/or the Authority, as the case may be, and their respective assets wherever situated.
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28.3.4 This Agreement and the rights and obligations of the Parties shall remain in full force and effect, pending the Award in any arbitration proceedings hereunder.
28. 4 The Site An inventory of the Site including the land, buildings, structures, road works, trees and any other immovable property on, or attached to, the Site shall be prepared jointly by the Authority Representative and the Concessionaire, and such inventory shall form part of the Agreement.
28.5 Development of the Project
Development of the Project shall include construction of the Project as described in the approved Project Report
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Article29: Rights and Title Over The Site
29.1 Licensee rights
For the purpose of this Agreement, the Concessionaire shall have rights to the use of the Site as a licensee subject to and in accordance with this Agreement, and to this end; it may regulate the entry and use of the Project by third parties in accordance with and subject to the provisions of this Agreement.
29.2 Access rights of the Authority and others
29.2.1 The Concessionaire shall allow free access to the Site at all times for the authorized representatives and vehicles of the Authority and/or its contractors, Senior Lenders, and the Independent Engineer, and for the persons and vehicles duly authorized by any Government Instrumentality to inspect the Project and to investigate any matter within their authority, and upon reasonable notice, the Concessionaire shall provide to such persons reasonable assistance necessary to carry out their respective duties and functions.
29.2.2 The Concessionaire shall, for the purpose of operation and maintenance of any utility or road specified in Article 11, allow free access to the Site at all times for the authorized persons and vehicles of the controlling body of such utility or road.
29.3 Property taxes
All property taxes on the Site shall be payable by the Authority as owner of the Site; provided, however, that any such taxes payable by the Concessionaire under Applicable Laws for use of the Site shall not be reimbursed or payable by the Authority. For the avoidance of doubt, the Parties agree that stamp duties, if any, due and payable on the grant of license comprising this Agreement shall be paid by the Authority. Provided, however, that the Authority may require the Concessionaire to pay such stamp duties, which shall be reimbursed by the Authority to the Concessionaire within 15 (fifteen) days of receiving the demand therefor.
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Article30: Insurance
30.1 Insurance during Concession Period
The Concessionaire shall effect and maintain at its own cost, during the Construction Period and the Operation Period, such insurances for such maximum sums as may be required under the Financing Agreements and Applicable Laws, and such insurances as may be necessary or prudent in accordance with Good Industry Practice. The Concessionaire shall also effect and maintain such insurances as may be necessary for mitigating the risks that may devolve on the Authority as a consequence of any act or omission of the Concessionaire during the Construction Period.
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SCHEDULEII: PERFORMANCE SECURITY GUARANTEE
PERFORMANCE SECURITY GUARANTEE To
WHEREAS:
(A) ……………….. (the “Concessionaire”) and the Chairman, …………..(the “Authority”) have entered into a Concession Agreement dated …………….. (the “Agreement”) whereby the Authority has agreed to the Concessionaire undertaking of …………………………… ……………………..] on design, build, operate and transfer (“DBFOT”) basis, subject to and in accordance with the provisions of the Agreement.
(B) The Agreement requires the Concessionaire to furnish a Performance Security to the Authority for a sum of Rs. ***** cr. (Rupees ***** crore) (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 Concessionaire’s obligations during the Construction Period, under and in accordance with the Agreement, and agrees and undertakes to pay to the Authority, upon its mere first written demand, and without any demur, reservation, recourse, contest or protest, and without any reference to the Concessionaire, such sum or sums upto an aggregate sum of the Guarantee Amount as the Authority shall claim, without the Authority 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 Authority, under the hand of an Officer not below the rank of Executive Officer, that the Concessionaire 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 Authority shall be the sole judge as to whether the Concessionaire is in default in due and faithful performance of its obligations during the Construction Period under the Agreement and its decision that the Concessionaire is in default shall be final, and
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binding on the Bank, notwithstanding any differences between the Authority and the Concessionaire, or any dispute between them pending before any court, tribunal, arbitrators or any other authority or body, or by the discharge of the Concessionaire for any reason whatsoever.
3. In order to give effect to this Guarantee, the Authority shall be entitled to act as if the Bank were the principal debtor and any change in the constitution of the Concessionaire 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 Authority to proceed against the Concessionaire before presenting to the Bank its demand under this Guarantee
5. The Authority 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, fulfilment and/ or performance of all or any of the obligations of the Concessionaire contained in the Agreement or to postpone for any time, and from time to time, any of the rights and powers exercisable by the Authority against the Concessionaire, 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 Authority, and the Bank shall not be released from its liability and obligation under these presents by any exercise by the Authority of the liberty with reference to the matters aforesaid or by reason of time being given to the Concessionaire or any other forbearance, indulgence, act or omission on the part of the Authority or of any other matter or thing whatsoever which under any law relating to sureties and guarantors would but for this provision have the effect of releasing the Bank from 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 Authority in respect of or relating to the Agreement or for the fulfilment, compliance and/or performance of all or any of the obligations of the Concessionaire under the Agreement.
7. Notwithstanding anything contained hereinbefore, the liability of the Bank under this Guarantee is restricted to the Guarantee Amount and this Guarantee will remain in force until the date of commercial operation or till completion of 2 ½ years whichever is earlier. Unless a demand or claim in writing is made by the Authority on the Bank under this Guarantee, not later than 6 (six) months from the date of expiry of this Guarantee, all rights of the Authority under this Guarantee shall be forfeited and the Bank shall be relieved from its liabilities hereunder.
8. The Bank undertakes not to revoke this Guarantee during its currency, except with the previous express consent of the Authority in writing, and declares and warrants that it has the power to issue this Guarantee and the undersigned has full powers to do so on behalf of the Bank.
9. 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 authorised 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 Authority that the envelope was so posted shall be conclusive.
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10. This Guarantee shall come into force with immediate effect and shall remain in force and effect for a period of one year and six months or until it is released earlier by the Authority 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)
(Code Number)
NOTES: (i) The bank guarantee should contain the name, designation and code number of the officer(s) signing the guarantee.
(ii) The address, telephone number and other details of the Head Office of the Bank as well as of issuing Branch should be mentioned on the covering letter of issuing Branch.
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SCHEDULE :III
PROVISIONAL CERTIFICATE
1 I/We,…………… (Name of the Independent Engineer), acting as Independent Engineer, under and in accordance with the Concession Agreement Dated…………… (the “Agreement”), for development and operation of the Project (the “Project”) on design, build, operate and transfer (the “DBFOT) basis through………………(Name of Concessionaire), hereby certify that the Tests specified in Article 14 and Schedule-I of the Agreement have been undertaken for the Project/section………………. of the Project to determine compliance thereof with the provisions of the Agreement.
2 Construction Works forming part of the Project/section of the Project that were found to be incomplete and/or deficient have been specified in the List appended hereto, and the Concessionaire 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 Authority or due to Force Majeure and the Provisional Certificate Though the remaining incomplete works have been delayed as a result of reasons attributable to the Concessionaire,] I/We am/are satisfied that having regard to the nature and extent of such incomplete works, it would not be prudent to withhold commercial operation of the Project/section………….. of the Project, pending completion thereof.
3 In view of the foregoing, I/We am/are satisfied that the Project/section of the Project can be safely and reliably placed in commercial service of the Users thereof, and in terms of the Agreement, the Project/section of the Project is hereby provisionally declared fit for entry into commercial operation on this the …… day of………… 20
ACCEPTED, SIGNED, SEALED SIGHNED, SEALED AND
AND DELIVERED DELIVERED
FOR AND ON BEHALF OF FOR AND ON BEHALF OF
CONCESSIONAIRE by: INDEPENDENT ENGINEER BY :
(Signature) (Signature)
(Name and Designation) (Name and Signature)
(Address) (Address)
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SCHEDULE III:
COMPLETION CERTIFICATE
1 I/We,…………….. (Name of the Independent Engineer), acting as Independent Engineer, under and in accordance with the Concession Agreement dated ………………..(the “Agreement”), for development and operation of the ………………..Project (the “Project”) on design, build, operate and transfer (the “DBFOT”) basis, through………………(Name of Concessionaire), hereby certify that the Tests specified in Article 14 and Schedule-I of the Agreement have been successfully undertaken to determine compliance of the Project with the provisions of the Agreement, and I/We am/are 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 works forming part of the Project have been completed, and the Project is hereby declared fit for entry into commercial operation on this the day of 20….
SIGNED, SEALED AND DELIVERED
For and on behalf of
INDEPENDENT ENGINEER by:
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