for selection of developers for development of luxury ...vol i,ii, iii).pdf · 5 1 invitation to...
TRANSCRIPT
BIDDING DOCUMENT
Issued on: November 2nd, 2016
For
Selection of Developers for development of
Luxury Resort at Madhurawada in
Visakhapatnam in Andhra Pradesh under
Lease cum Development Model
Authority: Andhra Pradesh Tourism Development Corporation
Vol I: Instructions to Bidders (ITB) and Bid Data Sheet
(BDS)
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SECTION I. INSTRUCTIONS TO BIDDERS (ITB)
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Table of Clauses
A. General ................................................................................................................................6
1. Scope of Bid and Bidding Process ..............................................................................6 2. Fraud and Corruption ..................................................................................................6 3. Eligible Bidders ..........................................................................................................7 4. Conditions for consortium bids ...................................................................................7
5. Qualifications of the Bidder ........................................................................................8 6. Operations and Maintenance requirements .................................................................8 7. Conditional land lease .................................................................................................8 8. Cost of Bidding .........................................................................................................10 9. Site Visit....................................................................................................................10
B. The Bidding Documents ..................................................................................................11
10. Clarification of Bidding Documents and Pre-bid Meeting .......................................11
11. Amendment of Bidding Documents .........................................................................11
C. Preparation of Bids ..........................................................................................................12
12. Language of Bid ........................................................................................................12 13. Documents Comprising the Bid ................................................................................12
14. Bid Prices ..................................................................................................................12 15. Bid Currencies ..........................................................................................................12 16. Bid Fee ......................................................................................................................12
18. Period of Validity of Bids .........................................................................................13 19. Format and Signing of Bid ........................................................................................13
D. Submission of Bids ...........................................................................................................14
20. Sealing and Marking of Bids ....................................................................................14
21. Deadline for Submission of Bids ..............................................................................14 22. Late Bids ...................................................................................................................14
E. Bid Opening and Evaluation ...........................................................................................14
23. Opening of Bids by Authority...................................................................................14 24. Clarification of Bids ..................................................................................................14 25. Preliminary Examination of Bids..............................................................................15 26. Scrutiny of Envelope I submissions ..........................................................................15
27. Envelope II- Eligibility evaluation............................................................................15 28. Envelope III: Ranking of financial proposals ...........................................................16 29. Contacting the Authority...........................................................................................17
F. Post qualification and execution of Lease cum Development Agreement ...................17
30. Authority’s Right to Accept Any Bid and to Reject Any or All Bids ......................17 31. Issuance of Letter of Intent (LoI) ..............................................................................18 32. Project Development fee ...........................................................................................18
33. Performance Security ................................................................................................19
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1 Invitation to bidders
To
The Managing Director,
APTDC, Vijayawada.
Sub: Selection of Developers for development of Luxury Resort at Madhurawada in
Visakhapatnam in Andhra Pradesh under Lease cum Development Model
Dear Sir,
1 Andhra Pradesh Tourism Development Corporation Ltd (The “Authority”) is inviting
developers for development of Luxury Resort at Madhurawada in Visakhapatnam in
Andhra Pradesh in Andhra Pradesh under Lease-cum- development model
2 In this regard, the Authority invites Request for Proposals (RFPs) from eligible and
interested parties/developers / investors / operators of tourism projects for development of
the project.
3 The RFP document comprises of:
Volume I Invitation to Bidders
Instructions to Bidders (ITB)
Bid Data Sheet (BDS)
Volume II Project Profile
Details of the land
Minimum Development Obligations
Minimum Service Obligations
Other contractual obligations
Volume III General Conditions of Lease cum Development Agreement
(GCA)
Special Conditions of Lease cum Development Agreement
(SCA)
4. The Request for Proposal (RFP) document can be downloaded from the website
www.aptdc.gov.in from 03.11.2016(11 AM) to 04.12.16 (Upto 05.00 PM)
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Instructions to Bidders
A. GENERAL
1. Scope of Bid
and Bidding
Process
1.1 The Authority named in the BDS invites bids for development of
project, as briefly described in the BDS and specified in greater
detail in these Bidding Documents.
1.2 This bid is being called pursuant to Land Lease Policy for
Tourism Projects, 2016 notified vide G.O. Ms. No.5, YAT&C
(T) Department, dated 03.06.2016
1.3 The lease period proposed is as prescribed in the BDS
2. Fraud and
Corruption
2.1 It is the Authority’s policy to ensure bidders shall, observe the
highest standard of ethical conduct during the execution of
Lease cum Development Agreement.1 In pursuance of this
objective, the Authority:
(A) defines, for the purposes of this provision, the terms set
forth below as follows:
(i) “corrupt practice” is the offering, giving, receiving
or soliciting, either directly or indirectly, anything
of value to improperly influence the actions of
another party;
(ii) “fraudulent practice” is any act or omission,
including a misrepresentation, that knowingly or
recklessly misleads, or attempts to mislead, a party
to obtain a financial or other benefit or to avoid an
obligation;
(iii) “collusive practice” is an arrangement between two
or more parties designed to achieve an improper
purpose, including the attempt to improperly
influence the actions of another party;
(iv) “coercive practice”2 is impairing or harming, or
threatening to impair or harm, directly or indirectly,
any party or the property of the party to improperly
influence the actions of a party;
1 In this context, any action taken by a bidder to influence the Bid process for undue advantage is improper.
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(v) “obstructive practice” is
(a) deliberately destroying, falsifying, altering or
concealing of evidence material to the
investigation or making false statements to
investigators in order to materially impede the
investigation into allegations of a corrupt,
fraudulent, coercive or collusive practice;
and/or threatening, harassing or intimidating
any party to prevent it from disclosing its
knowledge of matters relevant to the
investigation or from pursuing the
investigation; or
(b) Acts intended to materially impede the exercise
of the Authority’s inspection and audit rights.
(B) shall reject a proposal for award if it determines that the
bidder recommended for award has, directly or through an
agent, engaged in corrupt, fraudulent, collusive, coercive
or obstructive practices in competing for the Agreement in
question;
(C) Shall have the right to inspect their accounts and records
and other documents relating to the bid submission and
performance of Lease cum Development Agreement.
3. Eligible
Bidders
3.1 Bidders shall provide such evidence of their eligibility
satisfactorily to the Authority, as the Authority may reasonably
request.
3.2 All bidders either sole, Firms, Companies or as a consortium,
shall have to comply with the general, similar experience and
financial eligibility criteria to be declared “Eligible”. The
general, similar experience and financial eligibility criteria have
been elaborated in the BDS.
3.3 The decision of the Authority shall be final with respect to the
determination of the eligibility of the Bidders.
4. Conditions
Sole and for
consortium
bids
4.1 The bids may be submitted as a sole bid or as a consortium. In
case of a consortium, the number of consortium members should
not exceed two entities. The entity can be a sole proprietor, firm
or a company.
4.2 In case of a sole bidder, the sole bidder shall have to meet the
general, similar experience and financial eligibility
requirements.
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4.3. In case of a consortium, the consortium members shall together
meet the general, special experience and financial eligibility
requirements as mentioned below:
a. The lead member shall meet(minimum) 50% of the financial
eligibility requirement and other member shall meet
(minimum) 50% of the technical eligibility requirement as
specified in BDS.
5. Qualifications
of the Bidder
5.1 By submission of documentary evidence in its bid, the Bidder
must establish to the Authority’s satisfaction:
(a) That it has the financial and technical capability necessary to
perform the Lease cum Development Agreement, meets the
qualification criteria specified in the BDS, and has history of
successful performance. .
(b)
6. Operations
and
Maintenance
requirements
6.1. The successful bidder/ developer is required to provide
world class operations and management services for the
project.
6.2. The minimum experience for selecting the operations and
management agency is that it shall have a minimum
experience, as specified in the BDS, in operation and
maintenance of projects where the aggregate capital cost of
the projects for which operation and maintenance was
undertaken shall be as specified in the BDS. The
experience of the selected agency to meet this criterion
shall be supported by experience certificates, attested by
the authorized signatory of the agency and its statutory
auditor/ CA and the authorized signatory of the successful
bidder.
6.3. The bidder/ developer may undertake the operations and
management of the project on its own, through one of the
consortium members or through any other agency/
company so long as the agency finalized for operations and
management of the project meets the minimum experience
requirements detailed in the bid document.
6.4. Non-compliance with any of the bid conditions specified
above shall be considered as a default.
7. Conditional
land lease
7.1 The Land Lease Policy for Tourism Projects, 2016
stipulates provisioning of land to selected bidder for
development and operations & maintenance of the project.
7.2 The land lease deed, part of the development and lease
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agreement signed with the successful bidder/ developer,
shall be conditional subject to:
1) Meeting the implementation milestones as per specified
timelines (as defined in the bid document).
2) Meeting all the Minimum Development Obligations, as
per bid document.
3) Maintenance of Minimum Service Obligations during
the operations period, as per bid document.
4) All other terms & conditions of this policy and the
respective bid document.
7.3 The leased land shall be used only for the purpose for
which it has been leased and not for any other purpose.
Any change, arising out of statutory or legal requirements,
shall be only after express, written consent of the
Government. Non-compliance of the above condition
would entitle the Authority to cancel the conditional land
lease.
7.4 In case of default in maintenance of Minimum Service
Obligations, the Authority may give grace period/ cure
period of not more than 45 days, under a notice to rectify
the defects, upon expiry of which, the conditional land
lease is liable for termination with a notice.
7.5 Consequences of Cancellation (Termination)of
Conditional Land Lease Deed/ cancellation of
development and lease agreement due to default of the
successful Bidder:
1) In case of cancellation, the Authority shall resume the
possession of land with immediate effect including any
asset/s, construction etc. on the land.
2) The Authority shall not be liable for any type of
compensation to the developer.
3) The Authority will invoke the Performance Bank
Guarantee of the developer.
4) The Authority shall be at liberty to find an immediate
alternative/replacement, or any such alternative it may
deem fit to ensure unhindered completion/Operation of the
project.
7.6 Transfer of Lease: The Lease deed is not transferrable. The
leased land and the structures erected cannot be alienated/
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transferred/ sub-leased/ sold/ mortgaged/encumbered in
any form either in part or full, to any party.
7.7 The Developer may mortgage its lease hold rights and can
do so only after sending written communication of the
same to the Authority. However, under no circumstances
a developer is entitled to create any sort of encumbrance
on the land, buildings erected on the site.
8. Cost of
Bidding
8.1 The Bidder shall bear all costs associated with the preparation
and submission of its bid including inspections to site etc., and
the Authority will in no case be responsible or liable for those
costs.
8.2 The Bidder agrees that all bidding costs and expenses shall be
non-refundable
9. Site Visit 9.1 The Bidder may wish to visit and examine the site or sites of the
Information System and obtain for itself, at its own cost,
responsibility and risk, all information that may be necessary for
preparing the bid and entering into the Lease cum Development
Agreement. The costs of visiting the site or sites shall be at the
Bidder’s own expense.
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B. THE BIDDING DOCUMENTS
10. Clarification of
Bidding
Documents
and Pre-bid
Meeting
10.1 A prospective Bidder requiring any clarification on the Bidding
Documents may notify the Authority in writing at the
Authority’s address through one of the means indicated in the
BDS. Similarly, if a Bidder is of the opinion that any provision
in the Bid documents is unacceptable, such an issue shall be
raised at the earliest instance at least 3 days prior to the date of
pre bid meeting. . Copies of the Queries and Authority’s
response (without disclosing the source) will be sent to all
prospective Bidders who have attended the pre bid meeting
10.2 As specified in the BDS, the Authority will schedule a pre-bid
meeting at the time and place indicated in the BDS. The
purpose of the meeting will be to clarify issues and answer
questions on any matter that may be raised by this stage, with
particular attention to issues related to the Technical
Requirements. Bidders may raise queries by email, which shall
be mailed to the Authority not later than 3 days before the pre-
bid meeting. Minutes of the meeting, including the queries
raised and responses given, together with any responses
prepared after the meeting, will be communicated to all the
Bidders who have participated in the pre-bid meeting besides
posting on the website. No queries in this regard shall be
entertained thereafter.
11. Amendment of
Bidding
Documents
11.1 At any time prior to the deadline for submission of bids, the
Authority may, for any reason, whether on its own or in
response to a clarification to a prospective Bidder, amend the
Bidding Documents. The amendments so made, shall supersede
the earlier clauses. The amendments, or addenda will be posted
on the website.
11.2 Amendments will be provided in the form of Addenda to the
Bidding Documents, which will be posted on the official website
of the Authority. Addenda shall be binding on the Bidders.
Bidders are required to check the website for any addenda and it
is deemed that the Addenda have been considered by the Bidder
in its Bid.
11.3 In order to afford reasonable time to the prospective Bidders for
considering the Addenda in preparing their bids, the Authority
may, at its discretion, extend the deadline for the submission of
bids, in which case, the Authority will notify all Bidders by
publishing it in the official website.
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C. PREPARATION OF BIDS
12. Language of
Bid
12.1 The bid prepared by the Bidder and all correspondence and
documents related to the bid exchanged by the Bidder and the
Authority shall be written in the language specified in the BDS.
13. Documents
Comprising
the Bid
13.1 Each bid submitted by the Bidder shall comprise of:
Envelope I: General bid documents
Envelope II: Eligibility documents
Envelope III: Financial proposal
The contents of each of the above envelopes have been detailed
in appendix I along with applicable forms & formats in
subsequent appendices.
13.2 The bid process is a single stage process where all the successful
Bidder will be determined by the Authority by considering
envelopes-I, II,III together as mentioned earlier
14. Bid Prices 14.1 The Annual Land Lease rent shall be quoted in total (Absolute
terms). It must be the net amount payable to the Authority and
must exclude all taxes including IT, Service Tax, all duties,
levies and fees...
14.2 It will be the responsibility of the bidder to pay all taxes
including the property tax, IT, Service tax etc., cess and
surcharges.
15. Bid Currencies 15.1 Prices shall be quoted in Indian Rupees only.
16. Bid Fee 16.1. All bids shall be accompanied by the bid fee, to be paid in a
manner as specified in the BDS.
16.2 Any bid submitted without the bid fee shall be summarily
rejected.
17. Bid
Security
17.1 The BDS specifies the amount and mode of submission of bid
security to be submitted by the bidder for each project. The bidder
shall submit the bid security for each project separately.17.2
Any bid not accompanied by the Bid Security shall be rejected
by the Authority as non-responsive.
17.3 The bid security of the second highest bidder shall be retained
by the Authority and shall be released within 15 days after signing of
lease cum development agreement with the successful Bidder. The
Bid Securities of remaining Bidders (other than second highest
bidder) would be returned on issuance of letter of Intent (LoI) to the
successful bidder, or if the Bidding Process is cancelled by the
Authority.
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17.4 The Authority shall be entitled to appropriate the Bid Security
and encash the bank guarantee towards compensation / damages on
occurrence of any of the events specified in this RFP including:
If a Bidder engages in a Corrupt Practice, or Fraudulent
Practice, or Coercive Practice, or Undesirable Practice or
Restrictive Practice
If a Bidder modifies or withdraws its Bid after opening;
If a Bidder withdraws its Bid during the interval between the
Bid Due Date and expiration of Bid Validity period including
extensions made by the by the Authority;
If any information or document furnished by the Bidder is found by
the Authority to be misrepresenting, misleading, incorrect or untrue
in any material respect.
17.5 In case the Successful Bidder, fails within the
specified time limit -
to acknowledge the Letter of Award/ Letter of Intent;
to sign the Agreement and/or;
To furnish the Performance Security as per the provisions of
this RFP.
Failure to take comply with LoI conditions
Failure to take over the site within specified time limit.
18. Period of
Validity of
Bids
18.1 Bids shall remain valid, for a minimum period as specified in
the BDS after the expiry of deadline date for bid submission
prescribed by the Authority, pursuant to ITB Clause 21.1.
18.2 In exceptional circumstances, prior to expiry of the bid validity
period, the Authority may request that the Bidders to extend the
period of validity for a specified additional period. The Bidders
shall do so, else their bids will become null and liable for
rejection. The EMDs of such Bidders will be appropriated.
19. Format and
Signing of Bid
19.1 The Bidder shall prepare and submit an original bid
19.2 The original bid, consisting of the documents listed in ITB
Clause 13.2, shall be typed in indelible ink and shall be signed
by a person or persons duly authorized to sign on behalf of the
Bidder. The name and position held by each person signing the
authorization must be typed or printed below the signature. All
pages of the bid (RFP and all enclosures) shall be initialed by the
person or persons signing the bid.
19.3 The bid shall contain no interlineations, erasures, or overwriting,
except to correct errors made by the Bidder, in which case such
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corrections shall be initialed by the person or persons signing the
bid.
D. SUBMISSION OF BIDS
20. Sealing and
Marking of
Bids
20.1 The Bidder shall seal the bids. The envelopes shall then be
sealed in an outer envelope.
20.2 The inner and outer envelopes shall :
(a) be addressed to the Authority at the address given in the
BDS, and
(b) bear the Project name indicated in the BDS and the bid
number as indicated in the BDS
20.3 The Outer envelopes shall also indicate the name and address of
the Bidder so that the bid can be returned unopened in case it is
declared “late.”
20.4 If the outer envelope is not sealed and marked as required under
ITB Clause 20.2, 20.3, the Authority will assume no
responsibility for the bid’s misplacement or premature opening.
21. Deadline for
Submission of
Bids
21.1 Bids must be received by the Authority at the address specified
in the BDS for ITB Clause 20.2 no later than the time and date
stated in the BDS.
21.2 The Authority may, at its discretion, extend this deadline for
submission of bids by amending the Bidding Documents in
accordance with ITB Clause 11.3, in which case all rights and
obligations of the Authority and Bidders will thereafter be
subject to the deadline as extended.
22. Late Bids 22.1 Any bid received by the Authority after the bid submission
deadline prescribed by the Authority in the BDS for ITB Clause
21, will be rejected and returned unopened to the Bidder.
E. BID OPENING AND EVALUATION
23. Opening of
Bids by
Authority
23.1 The Authority will open all bids, at the time, on the date and at
the place specified in the BDS. Bidders’ representatives may
attend the same at their discretion.
24. Clarification of
Bids
24.1 During the bid evaluation, the Authority may, at its discretion,
ask the Bidder for a clarification of its bid. The request for
clarification and the response shall be in writing, and no change
in the price or substance of the bid shall be sought, offered, or
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permitted.
25. Preliminary
Examination
of Bids
25.1 The Authority will examine the bids to determine whether they
are complete, whether any computational errors have been
made, whether required sureties have been furnished, whether
the documents have been properly signed, and whether the bids
are generally in order as specified in the RFP.
25.2 The Authority may waive any minor infirmity, nonconformity,
or irregularity in a bid that does not constitute a material
deviation, provided such waiver does not prejudice or affect the
relative ranking of any Bidder.
25.3 Prior to the detailed evaluation, the Authority will determine
whether each bid is of acceptable quality, is complete, and is
substantially responsive to the Bidding Documents. For
purposes of this determination, a substantially responsive bid is
one that conforms to all the terms, conditions, and specifications
of the Bidding Documents without any material deviations or
exceptions Or Conditions. The Bid shall be un-conditional.
25.4 If a bid is not substantially responsive, it will be rejected by the
Authority and may not subsequently be made responsive by the
Bidder by correction of the nonconformity. The Authority’s
determination of bid responsiveness will be based on the
contents of the bid itself.
25.4 The Authority’s decision on the determination of responsiveness
of a bid is final and binding on all the bidders.
26. Scrutiny of
Envelope I
submissions
26.1 The Authority will evaluate and compare the bids that have been
determined to be substantially responsive, pursuant to ITB
Clause 25.
26.2 In case a Bid is found to be responsive, it would be passed on to
the next phase i.e. evaluation of Envelope II Submission –
Eligibility Documents.
27. Envelope II-
Eligibility
evaluation
27.1 Once a Bid is found to be responsive, Envelope II Submission
i.e. Eligibility Documents would be evaluated. In case Envelope
II Submissions are found to be inadequate, the Authority may
request the Bidder for updated documents to the same effect or
may in its sole discretion have the right to reject the Bid.
Further, as part of the evaluation process, the Authority may also
request the Bidder to submit clarifications.
27.2 The Authority reserves the right to reject any Bid without
opening Envelope III Submissions i.e., Financial Proposal (Price
Bid) if in its opinion, Envelope II submissions are not
sufficiently responsive, i.e., the Bidder is falling short to meet
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the eligibility criteria set. (However, for minor deviations, the
information can be reviewed and evaluated by Authority without
communication with the Bidder)
27.3 The Bidders, whose Bids are found to be eligible after the
evaluation process shall be termed as “Qualified Bidders”, (the
“Qualified Bidders”). Envelope III i.e. Financial Proposals of
Qualified Bidders shall only be opened and evaluated in the
manner as given below.
28. Envelope III:
Ranking of
financial
proposals
28.1 In this phase of selection, the Authority will open the Financial
Proposals of the Bidders who have cleared the qualification
process.
28.2 The Financial Proposals shall be opened on the date specified in
the Bid Data Sheet or any other extended date, as intimated by
the Authority. The Financial Proposals would be opened in the
presence of the representatives of all concerned Bidders, who
choose to attend.
28.3 The Bidders are required to quote the Annual Land Lease to be
paid to the Authority. The upset price or minimum lease amount
would be as specified in the BDS and also the Financial
proposal (Price Bid). The amount quoted by the bidder shall be
excluding applicable taxes and Service Tax. All taxes shall be
payable by the successful bidder.
28.4 The bidders will be ranked as H1, H2, H3 etc. based on their
financial quotes. The Bidder with Highest quote will be ranked
H1.
28.5 The Qualified Bidder quoting the highest Annual Land Lease
Rent (H1) shall be declared as the “Successful Bidder”.
28.6 In case the H1 bidder backs out, the Authority reserves the right
to invite H2 and subsequent bidders as the case may be, to
match H1 offer or invite fresh bids.
28.7 In case, competitive bidding process results into bids having two
equal highest price bids, the Authority:
(a) Shall identify the successful bidder by asking the tied
Bidders to provide their best and final offer in sealed covers
which shall be opened on a specified date. The Bidder proposing
the most advantageous final offer to the Authority shall be
declared the most “Successful bidder”. .
(b) If the tie continues even after above approach, an aggregate
experience score of the tied Bidders shall be calculated as per
the following:
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The bidder with highest experience score shall be declared as the
“Successful bidder”.
(c) If tie persists, the successful bidder shall be selected by draw
of lots, which shall be conducted with prior notice, in the
presence of tied bidders who choose to attend.
(d) The Price Bid offered at stage (a) above shall become the quote of
the Successful Bidder superseding that quoted in the Financial
proposal.
28.8 In case bidding process results less than 2 bids, the last date of
submission can be extended by 30 days. Even if after the second
call, the number of bids received are less than two, the Authority
would proceed with evaluation of the single bid received leading
to identification of successful bidder.
29. Contacting the
Authority
29.1 From the opening of bids to the execution of Lease cum
Development Agreement, if any Bidder intends to
communicate to the Authority on any aspect related to the bid,
it should do so in writing.
29.2 If a Bidder tries to directly, or indirectly influence the Authority
or otherwise interfere in the bid evaluation process and the
project award decision, its bid is liable for rejection duly
forfeiting all the Deposits held at that time.
F. POST QUALIFICATION AND EXECUTION OF LEASE CUM
DEVELOPMENT AGREEMENT
30. Authority’s
Right to
Accept Any
Bid and to
Reject Any or
All Bids
30.1 The Authority reserves the right to accept or reject any bid or to
annul the bidding process and reject all bids at any time prior to
the execution of Lease cum Development Agreement, without
assigning any reasons whatsoever thereof.
Expereince
(INR CR)
Technical
score
Expereince
(INR CR)
Technical
score
1 General Experience A X1 X1/A X2 X2/A
2
Similar Experience ( if
mentioned in eligibility
conditions RFP) B Y2 X2/B Y2 Y2/B
Tied bidder-1 Tied bidder-2
Criteria
Requirement
as per bid
documents
(INR CR)S.No
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31. Issuance of
Letter of
Intent (LoI)
31.1 Prior to the expiration of the period of bid validity, the Authority
shall notify the successful Bidder, in writing, that its bid has
been accepted.
31.2 The Authority shall notify the Successful Bidder through a
Letter of Intent (the “LoI”) (to be issued in duplicate) that its Bid
has been accepted.
31.3 The Successful Bidder shall, within 15 (fifteen) days from the
date of LoI, sign and return the duplicate copy of the LoI in
acknowledgement thereof. In the event, the duplicate copy of the
LoI duly signed by the Successful Bidder is not received by the
stipulated date, the Authority may, unless it consents to the
extension of time for submission thereof, appropriate the Bid
Security and en-cash the bank guarantee of such Bidder as
mutually agreed genuine pre-estimated loss and damage suffered
by the Authority on account of failure of the Successful Bidder
to acknowledge the LoI, and the next eligible Bidder may be
considered.
31.4 Within the time specified in the LoI, the Successful Bidder shall
be required to execute the Agreement by satisfying other terms
and conditions as specified in this RFP to be carried out before
signing of the Agreement. The conditions to be satisfied by the
Successful Bidder, for execution of the Lease cum Development
Agreement include:
a. Submission of a signed duplicate copy of the LoI by the
Successful Bidder to the Authority.
b. Compliance to all conditions specified in the LoI.
31.5 In case the successful bidder fails to comply with the conditions
for signing of the agreement within the time specified in the LoI
or as extended by the Authority, the Authority may revoke the
LoI, forfeiting its deposits and award the project to the next most
highest bidder i.e. H2.
32. Project
Development
fee
32.1 The successful bidder shall be required to submit a Project
Development fee (plus taxes) to the Authority by way of
Demand Draft as per the details provided in the BDS. The
Demand Draft shall be drawn in favor of Authority from a
Nationalized bank. The Project Development Fee shall be equal
to 1% of the estimated project cost subject to maximum of INR
50 Lakhs.
32.2 The project Development Fee shall be paid to the Authority
within 7 days from the date of issue of Letter of Intent (LoI) as a
precondition for signing of the agreement.
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33. Performance
Security
33.1 The Successful Bidder shall be required to submit Performance
Security (the “Performance Security”) by way of a revolving,
unconditional and irrevocable bank guarantee, as per the details
provided in the BDS. The Performance Security is for due and
punctual performance of the obligations of the Successful
Bidder under the Agreement. The Performance Security shall
be equal to 2.5% of the estimated project cost.
33.2 The Performance Security in the form of a bank guarantee for
each subsequent year should be submitted to the Authority by
the Successful Bidder at least 30 days before the expiry of the
existing bank guarantee, thereby ensuring that the Performance
Security is valid during the Agreement Period.
33.3 The Performance Security shall be en-cashed for defaults of the
Developer as defined in the Agreement. The Successful Bidder
is expected to replenish or provide fresh Performance Security
within a period of 15 days in the case of such encashment by the
Authority.
34. Special
conditions for
Special
Purpose
Vehicle (SPV) /
Special
Purpose
Company
(SPC)
(a) Lock-In Period: For the purpose of this policy, Lock-In period
shall be defined as a period of two years post Commercial Date of
Operations (COD). The Commercial Date of Operations is the date
on which the project is open to tourists on a commercial basis, after
due testing, trial running and commissioning.
(b) In case of sole bidder, it shall retain minimum of 51% as equity
contribution in the SPC/ SPV throughout the lock-in period.
(c) In the SPC/ SPV formed by the consortium of two members, the
total equity contribution put together by both the consortium
members shall not be less than 51% throughout the lock-in period.
(d) Further, in the SPC/ SPV formed by the consortium of two
members, the equity contribution of the lead member of the
consortium shall not be less than 26% throughout the lock in period
and equity contribution from the other member of the consortium
shall not be less than 10% throughout the lock in period.
20
SECTION II. BID DATA SHEET (BDS)
21
Bid Data Sheet (BDS)
The following specific information relating to the project and the procurement procedures that
will be used shall complement, supplement, or amend the provisions in the Instructions to
Bidders (ITB). Wherever there is a conflict, the provisions in the Bid Data Sheet (BDS) shall
prevail over those in the ITB.
A. GENERAL
ITB 1.1 Name of “Authority”: Andhra Pradesh Tourism Development Corporation Ltd
ITB 1.2 Title of RFP: Selection of Developer for development of Luxury Resort at
Madhurawada in Visakhapatnam in Andhra Pradesh in Andhra Pradesh under
Lease cum Development Model
ITB 1.3 Lease period is 33 years
22
B.1 ELIGIBILITY CRITERIA
ITB
Clause
referenc
e
Paramet
er
Eligibility
Requirement
(in INR)
Bid by single
Entity
Bid by a Consortium
Lead
Member
of the
consortiu
m
Other
member
of
consorti
um
All
members
combine
d
General Experience
3.2
Total
value of
eligible
projects
develope
d and
complete
d
150 cr Must meet the
requirement
Minimu
m 50%
Must
meet the
requirem
ent
Financial Eligibility
3.2
Net
Worth of
the
bidder
18.75 cr
Must meet the
requirement Minimum
50%
Must
meet the
requirem
ent
3.2
Bidders
should
have not
incurred
any loss
in last
three
years in
case they
are
companie
s/firms
Mandatory
Must meet the
requirement
Must meet
the
requireme
nt
Must
meet the
requirem
ent
Note: An eligible project is one which meets all the following criteria:
(1) Minimum project value should be INR 15 cr
(2) Should have been completed in the last 5 years preceding the bid due date
(3) Should be from any of the following project types: Hotels/ Resorts/ MICE/ Any
Real Estate
ITB 6.2 INR 150 cr
23
D. PREPARATION OF BIDS
ITB 10.1 Pre-bid queries:
The bidders should submit their queries/ suggestions on the RFP, strictly in
the format given below:
S. No. Reference to
Section and
Clause of
RFP
Reference
Page No.
Reference
Clause
description
Query/
Suggestion
The queries shall be sent to [email protected], [email protected]
Pre-bid conference:
The pre-bid conference shall be held on 17th
November 2016, 11:00 Hrs.
(IST) at Vijayawada, AP. The Venue will be intimated through the above the
websites
ITB 16.1 Bid Fee: INR 10,000 only
The cost of bid shall be submitted through a DD, drawn from Nationalized/
Scheduled Bank in favor of “Andhra Pradesh Tourism Development
Corporation” and payable at Vijayawada, AP
ITB 17.1 Bid security
The bid security of INR 75 lacs (Seventy five lacs rupees only) shall be
submitted in the form of either Demand Draft or unconditional and irrevocable
Bank Guarantee from a Nationalized/ Scheduled Bank (excluding Co-operative
Banks)
ITB 18.1 Validity of Bid security
365 days from the date of submission (Bid due date)
ITB 19.1 Required number of bid copies: 1 Original
E. SUBMISSION OF BIDS
ITB 20.2 The address for bid submission is:
The Managing Director,
24
A.P.T.D.C.,
55-17-2 to 4,
Fifth Floor,
Industrial Estate, Autonagar,Vijayawada – 7
ITB 21.1 Deadline for bid submission is: 5th
December 2016 (By 04.00 PM)
F. BID OPENING AND EVALUATION
ITB 23.1 Time, date, and place for bid opening are:
Time : 4:30 pm
Date : 5th
December 2016
Place:
Office of the Managing Director,
A.P.T.D.C.,
55-17-2 to 4,
Fifth Floor,
Industrial Estate, Autonagar,,
Vijayawada – 7
ITB 28.3 The upset price (minimum annual land lease rent) shall be INR 1,45,20,000
(Rs. One crore forty five lacs twenty thousand only)
G. POST QUALIFICATION AND PRE-CONDITION FOR EXECUTION OF
LEASE CUM DEVELOPMENT AGREEMENT
ITB 32.1 One Demand Draft of INR 50 lacs drawn in favor of “Andhra Pradesh
Tourism Development Corporation” towards Project Development Fee
shall be submitted to the Authority within 7 days of issuance of LoI,
ITB 33.1 One Bank Guarantee of INR 1,88,00,000 (Rupees One crore Eighty eight
lacs only) towards Performance Security shall be submitted to the Authority
within 7 days from the date of LoI in the format prescribed as part of this
RFP. The validity of Performance Guarantees shall be 3 years.
25
SECTION III. APPENDICES AND SAMPLE FORMATS
26
APPENDIX I
S.
No.
Enclosures to the
Envelope-1, Envelope-2 and Envelope-3
Status
(Submitted/
Not
Submitted)
Commen
ts, if any
Envelope-1
1. Downloaded RFP document duly signed by the bidder on
each page in token acceptance of the terms and conditions
2. Covering letter in the format provided in Appendix II -
Format for Covering Letter
3. General Information of the Bidder in the format provided in
Appendix III – General Information (Cover 1)
4. Bank guarantee for Bid Security of INR INR 75 lacs
(Rupees Seventy five lacs only) as per Appendix VII
5. Demand draft for Bid Fee of INR 10,000 (INR ten
thousand only)
6. Power of Attorney for Bid signatory in the format provided
in Appendix IV – Format of Power of Attorney for Bid
Signatory (Cover 1)
7. Consortium Agreement, if bidding in a consortium
8. Power of Attorney for Lead Bidder in Consortium in
format provided in Annexure V: Format for Power of
Attorney for Lead Bidder in Consortium
9. Certificate of Registration/ Incorporation establishing
that the sole bidder/ lead bidder in consortium are
legally registered in India under relevant act
(Companies Act/ Partnership Act etc)
Other member in consortium may be an entity
registered in/ outside India- registration/ incorporation
proof for the same should also be furnished
Envelope-II
10. Technical and financial details of the Applicant in
prescribed format provided in Appendix VI
Envelope-III
11. Financial Proposal (Price Bid) as per the format provided
at Appendix VIII – Format for Financial Proposal
(Envelope-3)
27
APPENDIX II - FORMAT FOR COVERING LETTER
(On the letterhead of the Bidder)
Date:
To
The Managing Director
APTDC, Viajaywada
Dear Sir/ Madam:
Sub: Selection of Developers for development of << Name of the project>> in Andhra Pradesh
under Lease cum Development Model
Being duly authorized to represent and act on behalf of…………………………………. (hereinafter
referred to as “the Bidder”), and having reviewed and fully understood all of the proposal
requirements and information collected and provided to us, the undersigned hereby submits the
Proposal on behalf of (Name of the Bidder) in response to the RFP for the abovementioned project
of <<>> at <<>>, with the details as per the requirements of the RFP, for your evaluation.
We confirm that our proposal is valid for a period of 12 months from (insert the Bid Due Date).
We understand that any omission, commission, miss-statement in factual statements made by us will
make our Bid invalid at any time during the course of Bidding Process and also after award of the
project. The Authority reserves the right to take appropriate action accordingly. We understand that
the Authority reserves the right to accept or reject any or all the Bids and reserves the right to
withhold and/or cancel the Bidding Process.
We also hereby agree and undertake as under:
Notwithstanding any qualifications or conditions, whether implied or otherwise, contained in our
Proposal we hereby represent and confirm that our Bid is unqualified and unconditional in all
respects and we agree to the terms of the Service Agreement.
Yours faithfully,
For and on behalf of
Name of Bidder
Duly signed by the Authorized Signatory of the Bidder
(Name, Title and Address of the Authorized Signatory)
28
29
APPENDIX III – GENERAL INFORMATION (COVER 1)
(To be provided for all bidders)
1. Bidder details
a. Name of the Bidder
b. Bidder’s Constitution (Proprietorship / Partnership / Private Limited / Public
Limited)
c. Country of incorporation
d. Address of corporate headquarters and its branch office(s), if any, in India
e. Date of incorporation and/or commencement of business
2. Details of individual (s) who will serve as the point of contact / communication within the
Company:
a. Name
b. Designation :
c. Company :
d. Address :
e. Telephone Number :
f. E-Mail Address :
g. Fax Number :
3. Name, Designation, Address and Phone Numbers of Authorized Signatory of the Bidder:
a. Name
b. Designation :
c. Company :
d. Address :
e. Telephone Number :
f. E-Mail Address :
g. Fax Number :
...................................................
Signature of the Authorized Person
30
(Name, Designation and Address)
31
Appendix IV – Format of Power of Attorney for Bid Signatory (Cover
1)
(On Stamp Paper of relevant value and duly attested by notary public. To be submitted individually
by each Bidder)
POWER OF ATTORNEY
Know all men by these presents, we ____________ (name and address of the registered office) do
hereby constitute, appoint and authorize Mr./Ms. _____________________ (name and address of
residence) who is presently employed with us and holding the position of __________________ as
our attorney, to do in our name and on our behalf, all such acts, deeds and things necessary in
connection with or incidental to our Bid for <<>> at <<>>, including signing and submission of all
documents and providing information/ responses to <<Authority name>> in all matters before
<<Authority name>>, and generally dealing with in all matters in connection with the said bid. We
hereby agree to ratify all such acts, deeds and things lawfully done by our said attorney pursuant to
this Power of Attorney and that all such acts, deeds and things lawfully done by our aforesaid
attorney shall and shall always be deemed to have been done by us.
Executant’s Signature
(Name, Title and Address)
I Accept
Attorney Signature
(Name, Title and Address of the Attorney)
Attested
Executant
Notes:
1. 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.
32
2. Also, where required, the executants(s) should submit for verification the extract of the charter
documents and documents such as a 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.
3. In case the Proposal is signed by an authorized Director of the Bidder, a certified copy of the
appropriate resolution / document conveying such authority may be enclosed in lieu of the
Power of Attorney.
33
Appendix V: Format of Power of Attorney for Lead Bidder in
Consortium (Cover I)
(On Stamp Paper of relevant value and duly attested by notary public. To be submitted by
the lead bidder with signatures of authorized bid signatory of consortium member)
Whereas the <<Authority Name>> (AUTHORITY) has invited bids for <<>> at <<>>.
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 document (RFP) and other connected
documents in respect of the Project, and
Whereas, it is necessary for the Members of the Consortium to designate one of them as the
Lead Member with all necessary power and 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
I, ______________ having our registered office at ____________________ [the name and
address of the registered office] (hereinafter referred to as the “Principal”) do hereby
irrevocably designate, nominate, constitute, appoint and authorize
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”). I hereby irrevocably authorize 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 Contract, during the execution of the Project and in this regard, to do on our behalf
and on behalf of the Consortium, all or any of such acts, deeds or things as are necessary or
required or incidental to the pre-qualification of the Consortium and submission of its bid for
the Project, including but not limited to signing and submission of all applications, bids and
other documents and writings, participate in bidders and other conferences, respond to queries,
submit information/ documents, sign and execute contracts and undertakings consequent to
acceptance of 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 and throughout the tenure of the agreement
34
AND hereby agree to ratify and confirm and do hereby ratify and confirm all acts, deeds and
things lawfully done or caused to be done by our said Attorney pursuant to and in exercise of
the powers conferred by this Power of Attorney and that all acts, deeds and things done by our
said Attorney in exercise of the powers hereby conferred shall and shall always be deemed to
have been done by us/ Consortium.
IN WITNESS WHEREOF WE THE PRINCIPALS ABOVE NAMED HAVE EXECUTED
THIS POWER OF ATTORNEY ON THIS _____ DAY OF _____2016
For <<Consortium Lead Member>> ____________________
(Signature)
____________________
(Name & Title)
For <<Consortium Member>> ____________________
(Signature)
____________________
(Name & Title)
Witnesses:
1.
2.
_____________________________
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.
35
Appendix VI - Format for Eligibility Criteria (Cover 2)
General Experience (separate table to be provided for each project)
S. No. Particulars Details
1. Name of the Eligible Project
2. Cost of the eligible project INR ___ (Rupees XXX)1
3. Type of Project Hotel/ MICE/ Resort/ any other, please specify
4. Details of the project
Area of the project :__________________
Total built up Sqft :___________________
FSI :___________________
Year of completion:___________________
Start of commercial operations:<Date>2
5. Location, State, Country
Location:
State:
Country:
6.
Proof of development attached (
Municipal plans, photographs and
copies of agreements
Y/N
Financial Eligibility
Bidder name
Net worth (as on 31st March 2016)
Net worth = {(Subscribed and paid up Share Capital + Reserves and Surplus) – (Revaluation
Reserves + Miscellaneous expenditure not written off + Deferred Revenue Expenditure +
1 The cost of the project shall be certified by CA.
2 The start date of project shall be supported with Occupancy Certificate from the competent authority
36
Deficit in P & L Account if any)} in the preceding financial year before the Application Due
Date as per the Audited Annual Report
The Bidder should provide an Auditors Certificate specifying the Net Worth as on 31st March,
2016 and also specifying the methodology adopted for calculating such net worth.
37
Appendix VII Bank Guarantee Format
(To be submitted by: Sole bidder/ Lead bidder of consortium)
B.G. No. Dated:
In consideration of you, <<name and address of the Authority>> , (hereinafter referred to as the
"Authority", which expression shall unless it be repugnant to the subject or context thereof include
its, successors and assigns) having agreed to receive the Bid of
________________________________ (a company registered under the Companies Act, 1956)
and having its registered office at _____________________________________ (and acting on
behalf of its Consortium) (hereinafter referred to as the "Bidder" which expression shall unless it be
repugnant to the subject or context thereof include its/their executors, administrators, successors and
assigns), for <<project>> at <<>> (hereinafter referred to as "the Project") pursuant to the RFP
Document dated ____________ issued in respect of the Project and other related documents
including without limitation the draft Service agreement (hereinafter collectively referred to as
"Bidding Documents"), we ___________________(Name of the Bank) having our registered office
at _________________________ and one of its branches at
__________________________________ (hereinafter referred to as the "Bank"), at the request of
the Bidder, do hereby in terms of Clauses of the RFP Document, irrevocably, unconditionally and
without reservation guarantee the due and faithful fulfillment and compliance of the terms and
conditions of the Bidding Documents (including the RFP Document) by the said Bidder and
unconditionally and irrevocably undertake to pay forthwith to the Authority an amount of INR.
(Rupees only) (hereinafter referred to as the "Guarantee") as our primary obligation without any
demur, reservation, recourse, contest or protest and without reference to the Bidder if the Bidder
shall fail to fulfill or comply with all or any of the terms and conditions contained in the said
Bidding Documents.
1. Any such written demand made by the Authority stating that the Bidder is in
Default of the due and faithful fulfillment and compliance with the terms and conditions contained
in the Bidding Documents shall be final, conclusive and binding on the Bank.
2. We, the Bank, do hereby unconditionally undertake to pay the amounts due and
payable under this Guarantee without any demur, reservation, recourse, contest or protest and
without any reference to the Bidder or any other person and irrespective of whether the claim of the
Authority is disputed by the Bidder or not, merely on the first demand from the Authority stating
that the amount claimed is due to the Authority by reason of failure of the Bidder to fulfill and
comply with the terms and conditions contained in the Bidding Documents including failure of the
said Bidder to keep its Bid open during the Bid validity period as set forth in the said Bidding
Documents for any reason whatsoever. Any such demand made on the Bank shall be conclusive as
regards amount due and payable by the Bank under this Guarantee. However, our liability under this
38
Guarantee shall be restricted to an amount not exceeding INR _________ Lakhs. (Rupees
___________________________________________________________________ only).
4. This Guarantee shall be irrevocable and remain in full force for a period of 365 (Three
hundred and sixty five ) days from the Bid Due Date or for such extended period as may be
mutually agreed between the Authority and the Bidder, and agreed to by the Bank, and shall
continue to be enforceable till all amounts under this Guarantee have been paid.
5. We, the Bank, further agree that the Authority shall be the sole judge to decide as to whether
the Bidder is in default of due and faithful fulfillment and compliance with the terms and conditions
contained in the Bidding Documents including, inter alia, the failure of the Bidder to keep its Bid
open during the Bid validity period set forth in the said Bidding Documents, and the decision of the
Authority that the Bidder is in default as aforesaid shall be final and binding on us, notwithstanding
any differences between the Authority and the Bidder or any dispute pending before any Court,
Tribunal, Arbitrator or any other Authority.
6. The Guarantee shall not be affected by any change in the constitution or winding up of the
Bidder or the Bank or any absorption, merger or amalgamation of the Bidder or the Bank with any
other person.
7. In order to give full effect to this Guarantee, the Authority shall be entitled to treat the Bank
as the principal debtor. The Authority shall have the fullest liberty without affecting in any way the
liability of the Bank under this Guarantee from time to time to vary any of the terms and conditions
contained in the said Bidding Documents or to extend time for submission of the Bids or the Bid
validity period or the period for conveying acceptance of Letter of Award by the Bidder or the
period for fulfillment and compliance with all or any of the terms and conditions contained in the
said Bidding Documents by the said Bidder or to postpone for any time and from time to time any
of the powers exercisable by it against the said Bidder and either to enforce or forbear from
enforcing any of the terms and conditions contained in the said Bidding Documents or the securities
available to the Authority, and the Bank shall not be released from its liability 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 said Bidder or any other forbearance, act or omission on the part of the
Authority or any indulgence by the Authority to the said Bidder or by any change in the constitution
of the Authority or its absorption, merger or amalgamation with any other person or any other
matter or thing whatsoever which under the law relating to sureties would but for this provision
have the effect of releasing the Bank from its such liability.
8. Any notice by way of request, demand or otherwise hereunder shall be sufficiently given or
made if addressed to the Bank and sent by courier or by registered mail to the Bank at the address
set forth herein.
9. We undertake to make the payment on receipt of your notice of claim on us addressed to
_____________________ [name of Bank along with branch address] and delivered at our above
branch which shall be deemed to have been duly authorized to receive the said notice of claim.
10. It shall not be necessary for the Authority to proceed against the said Bidder
39
Before proceeding against the Bank and the guarantee herein contained shall be enforceable against
the Bank, notwithstanding any other security which the Authority may have obtained from the said
Bidder or any other person and which shall, at the time when proceedings are taken against the
Bank hereunder, be outstanding or unrealized.
11. We, the Bank, further undertake not to revoke this Guarantee during its currency except with
the previous express consent of the Authority in writing.
12. The Bank declares that it has power to issue this Guarantee and discharge the obligations
contemplated herein, the undersigned is duly authorized and has full power to execute this
Guarantee for and on behalf of the Bank.
13. For avoidance of doubt, the Bank's liability under this Guarantee shall be restricted to INR
______________________________only (Rupees _____________only). The Bank shall be liable
to pay the said amount or any part thereof only if the Authority serves a written claim on the Bank
on or before ______________________________________ (indicate date falling 365 days after the
Bid Due Date)].
Signed and Delivered by Bank
By the hand of Mr./Ms , its and authorized
Official.
(Signature of the Authorized Signatory)
(Official Seal)
40
Appendix VIII – Format for Financial Proposal (Envelope-3)
Date:
To
<<Authority name and address>>
Dear Sir/ Madam
Ref: Selection of Developers for development of Luxury Resort at Madhurawada in
Visakhapatnam in Andhra Pradesh under Lease cum Development Model
i. I/ we offer to develop, operate and maintain project <<>> at <<>>on the stipulated terms and
conditions and other particulars therein. I / we hereby submit our unconditional financial
proposal
ii. I/we hereby offer and agree to pay INR __________________ (Rupees
_________________________________________) as the Annual Land Lease Rent
commencing from the date of possession of land and subject to minimum of INR 1,45,20,000
(INR One crore, forty five lacs, twenty thousand only). It is understood that the above quoted
annual land lease rent is for the first year of possession of land and will be enhanced at 5% on
year on year basis for subsequent years.
iii. It is understood that the amount payable to authority is net and exclusive of all applicable taxes
(such as IT, TDS, Service tax etc).
iv. This proposal and all other details furnished by us shall constitute a part of our Bid. I / we
understand that you are not bound to accept the highest or any Bid received.
v. I/ we agree that my / our Bid shall remain valid for a period of 365 days from the Bid Due Date
prescribed for submission of proposal. I/ we agree to bind by this offer if we are the Successful
Bidder.
For and on behalf of:
Signature:
(Authorized Representative and Signatory of the Bidding Company)
Name of the Person:
Designation:
SEAL OF THE BIDDING ENTITY
1
BIDDING DOCUMENT
Issued on: November 2nd, 2016
for the
Selection of Developers for development of
Luxury Resort at Madhurawada in
Visakhapatnam in Andhra Pradesh under
Lease cum Development Model
Authority: Andhra Pradesh Tourism Development
Corporation
Vol II: Terms of Reference (ToR) and Project Profile
2
1 Terms of Reference (ToR)
1.1 About the project Andhra Pradesh Tourism Development Corporation (APTDC) intends to select an
experienced developer for developing a Luxury Resort at Madhurawada in Visakhapatnam
District. The bidder may submit the bid independently or as a consortium of bidders not
exceeding two entities.
This document details the project features, location, minimum development and minimum
service obligations of the bidder.
1.2 Andhra Pradesh- India’s sunrise state
1.2.1 General Overview
The erstwhile state of Andhra Pradesh was bifurcated into two states, Telangana and
residuary Andhra Pradesh on 2nd June 2014. After bifurcation, Andhra Pradesh is the 8th
largest state in terms of area. The state has well-developed social, physical and industrial
infrastructure and virtual connectivity. It also has good power, airport, IT and port
infrastructure.
Andhra Pradesh is the tenth largest
state in the Country, in terms of
population. The percentage of urban
population to the total population in
the State is 29.47 percent in 2011 as
compared to 24.13 percent in 2001.
Andhra Pradesh’s geographical
position and rich history gives it
unique strengths which not many
States in India have. These include – a
long coastline of 974 kilometers, over
30 thousand temples, prime Buddhist sites spread across the State, and fertile lands drained
by two mighty rivers of the country i.e. Godavari and Krishna, hills of Deccan plateau,
upcoming metropolis like Vishakhapatnam and Vijayawada and an opportunity to create a
world class capital right from scratch!
Given this vast potential of the State, the Government of AP wishes to facilitate
investments in the State by identifying areas of opportunity for both Private and
Government projects which can promote and/or support tourism in the State.
1.2.2 Economic profile of the State
The Government of Andhra Pradesh’s vision is to be amongst the top 3 States in tourism in
India by 2022, the top State in India by 2029, and be the most preferred global destination
by 2050, in Tourism. The state is a progressive State and the government is taking steps to
provide an environment conducive to economic and social growth. These include
formulation of investment friendly policies; creating world-class infrastructure; improving
3
governance and taking necessary steps to attract investments into the state. Promotion of
tourism infrastructure and services at potential destinations is one amongst the many
initiatives being taken up by the Government on a priority basis.
Implementation of appropriate policies and programmes by the state have enabled the State
to register an impressive growth rate of 10.99% in the GSDP for the year 2015-16,
compared to India’s growth rate of 7.6%.
Andhra Pradesh contributes around 4.04 per cent share to the cumulative FDI inflows of
India in FY 2015-16. Rich in natural and human resources, the State is keen to leverage its
strengths through district specific growth strategies and achieve double digit growth
targets. While focus will be on Coast-led growth, manufacturing, agro-processing, pharma,
development of physical infrastructure like ports, airports and river ways are some of the
key areas identified for pushing the growth significantly. Sector specific strategies have
been developed to achieve desired inclusive growth.
1.2.3 Development plan of the State
Andhra Pradesh, the Sunrise state, is all set to attain new heights in the coming years.
Necessary policies and implementing mechanisms have been put in place to drive and
sustain the growth momentum to achieve the vision of making the Andhra Pradesh as one
of the top three high-performing States in India by 2022 and the best state in the country by
2029.
The State is undertaking massive infrastructure investment and industrial development in
the State. Some of the key projects include:
a) 3 Industrial Hubs at Amaravati, Visakhapatnam and Tri-city (Tirupati-Nellore-
Chittoor)
b) 3 Industrial Corridors (Visakhapatnam-Chennai Industrial Corridor, Chennai-
Bengaluru Industrial Corridor and Bengaluru-Kurnool Proposed Corridor)
c) 32 SEZs, 258 Industrial parks
4
Visakhapatnam- Chennai Industrial
Corridor
Chennai- Bangalore Industrial Corridor
The VCIC is a key part of the planned East
Economic Corridor and India’s first coastal
corridor and the extent of it is considered
from Pydibheemavaram in Srikakulam
district to Chennai in Tamil Nadu. It has
influence area about 1,10,000 sq. km, (3.5%
of India’s area). The corridor contributes to
5% of national GDP.
Focus Industries: Food processing,
Chemical & Petroleum, Textiles,
Electronics, Metallurgy, Pharmaceuticals,
Automobiles & auto ancillary etc.
CBIC is one of the mega Infrastructure
projects of Government of India which
passes through the State. With the main
objective to increase the share of
manufacturing sector in the GDP of the
country and to create smart sustainable
cities which will have world-class
infrastructure, convenient public transport
etc.
Focus Industries: General manufacturing;
Automobiles & auto ancillary; agro and
food processing; metals and metallurgical
products; Biotech and Services sector.
1.3 Tourism in Andhra Pradesh Government of Andhra Pradesh (GoAP) vision is to be amongst the top 3 States in India by
2022, the top State in India by 2029, and be the most preferred global destination by 2050.
The government is taking steps to provide an environment conducive to economic and
social growth. These steps include formulation of investment friendly policies, creating
world-class infrastructure, improving governance and taking necessary steps to attract
5
investments into the State. Promotion of tourism infrastructure and services at potential
destinations is one amongst the many initiatives taken up by the GoAP.
In line with the objective to make Andhra Pradesh the premier destination for tourists in the
country, Government of Andhra Pradesh has identified nine key theme areas to be
developed. The theme areas are listed below:
Religious Tourism
Recreation Tourism
Beach Tourism
Buddhist Tourism
Spiritual & Wellness Tourism
Heritage Tourism
Medical Tourism
MICE Tourism
Eco Tourism
Tourist arrival Trend
Andhra Pradesh has the distinction of being a leading tourism destination in India and is
presently, the Third most visited State in terms of domestic tourist arrivals. Following table
highlights the district wise tourist arrival in AP in FY 2015:
Source: Ministry of Tourism, 2016
There has been steady increase in both domestic and international tourist arrivals from
2011-12 to 2015-16.
District
2015 Arrivals
Rank Domestic
(Million) % Rank International %
Chittoor 1 38.37 31.6% 3 9,231 3.9%
East Godavari 2 17.44 14.3% 9 507 0.2%
Krishna 3 14.41 11.9% 6 4,626 1.9%
Srikakulam 4 11.51 9.5% 8 582 0.2%
Visakhapatnam 5 11.44 9.4% 2 69,483 29.2%
West Godavari 6 8.29 6.8% 11 96 0.0%
Kurnool 7 5.22 4.3% 10 219 0.1%
Guntur 8 4.75 3.9% 7 1,135 0.5%
Kadapa Y.S.R 9 3.60 3.0% 13
0.0%
Vizianagarm 10 3.04 2.5% 5 5,981 2.5%
Nellore 11 2.12 1.7% 4 8,141 3.4%
Prakasam 12 0.71 0.6% 12 6 0.0%
Anantapuramu 13 0.69 0.6% 1 137,847 58.0%
121.59
237,854
6
6.40%
11.40%
Supply Demand
1.3.1 Current Scenario and Potential for Hotel Rooms in AP
Performance of existing hotels in AP
• Statewide RevPAR performance of existing
hotels was recorded at INR 2,010 in 2015-16
(15.4% growth over 2014-15)
• Following graph indicates growth of branded
hotel rooms and increasing occupancy ratio of
same over 3 years.
Demand and Supply scenario of branded hotel rooms
Presently there is high demand of branded hotel
rooms in AP.
Supply of Branded Rooms is only 44% of total
rooms
Following graph indicates the CAGR growth in
Supplyand demand of branded room from 2013-2016.
7
As seen from the excellent performance of existing branded hotels and high Supply
demand gap for branded hotel rooms, AP presents a tremendous opportunity for
development of Hotels/Resorts and MICE
1.4 Applicable incentives, subsidies and benefits The project shall be eligible for incentives, subsidies and benefits as per the Andhra
Pradesh Tourism Policy 2015-20. These include:
# Incentive
category
Incentives
a) Complementary/
Linkage
Infrastructure
a. Access Roads
b. Water supply
point
c. Power supply
d. Sewerage
connection
Total Project Cost
< Rs 50 crores
Total Project Cost
from Rs 50-100
crores
Total Project Cost
from Rs 100 -
200 crores
Up to a maximum
of 5% of total
project cost or Rs
2 crore,
whichever is less
Up to a maximum
of 7.5% of total
project cost or Rs
5 crores,
whichever is less
Up to a maximum
of 15% of total
project cost or Rs
10 crores,
whichever is less
b) Land Conversion
Charges
Waiver of Non-Agriculture Land Assessment (NALA) tax or
Land Use Conversion charge, as applicable
c) Registration and
Stamp duty
100% reimbursement on Registration and Stamp duty for all
Tourism Infrastructure Projects
d) VAT/CST/SGST 5% for all new Tourism Infrastructure projects from date of
commencement of operations. Necessary amendments to
relevant clause(s) in the Andhra Pradesh Value Added Tax Act
2005 to be made.
e) Luxury Tax 100% exemption of Luxury Tax for all new Tourism
Infrastructure projects for a period of 3 years from date of
commercial operations
f) Entertainment
Tax
100% exemption of Entertainment Tax for first 3 years from
date of commercial operations
g) Energy Tariffs Tariff as per the rates provided in the “H.T. Category-III:
Airports, Railway Station and Bus Stations” in the Andhra
Pradesh Electricity Regulatory Commission (APERC) Tariffs
8
1.5 Project location
The proposed site is at the beach near Madhurawada in
Visakhapatnam, also known as Vizag. Vizag is largest city of
Andhra Pradesh and is considered the financial/ commercial
capital of the State. It is also often referred to as the “City of
Destiny” and the “City of hills and beaches”.
From lakes to cool Beaches, from beautiful hill ranges to
caves and valleys, Visakhapatnam has them all. The district
has many tourism spots that represent the Culture and Heritage of true India. The Araku
Valley is a must visit for any one visiting Andhra Pradesh. Beauty is packed at the
Kailasagiri where we can find greeny meadows, beautiful and wellspread parks to fill your
mind with peace. The Borra Caves shows the magnificience of colors in the natural cave
formations.
Given its importance from a tourism perspective, a Visakhapatnam hub has been created to
develop Vizag as a tourist hub for the surrounding areas.
Apart from tourism, Vizag is also the commercial and industrial hub of the State with
institutions like Indian Navy, Vizag Port, NTPC, Brandix Apparel City, multiple industrial
parks, Jawaharlal Nehru Pharma City, Hindustan Shipyard, GAIL, BHEL, Hindustan Zinc,
Jindal steels, Essar, Reliance, etc.
Madhurawada is a major suburb of Visakhapatnam City within
GVMC limits. It is located on the Visakhapatnam-Vizianagaram
stretch of National Highway 5 at around 16km from Visakhapatnam
City. Cricket stadium in Visakhapatnam lies in this suburb. It has a
hilly terrain abetting the beach road and the beach. Tourism.
9
1.6 Minimum Development Obligations
The plot of lands has been earmarked by the State Government for development of Luxury
Resort. The Minimum Development Objectives of the world-class, eco-friendly Luxury
Resort shall include:
S.
No.
Minimum
Development
Obligations
Details of the Minimum Development Obligation
1 Rooms and Suites At least 100 rooms with minimum 500 sq. ft. area per
room. Typical room shall include following features:
a. Air conditioned rooms
b. Bathrooms with Bathtubs or Cubical Glass Showers
c. Telephone lines with direct dial
d. Electronic safes
e. Room Service
f. Tea / Coffee maker
g. LCD Television
h. Mini bar
i. Writing table
j. Hair Dryer in room
k. Ceiling fan
l. Verandah
2 Restaurants and Bar The resort should have following dining options (at least
75 pax per restaurant/ bar):
a. One all-day multi-cuisine coffee shop cum restaurant
b. Three specialized cuisine restaurants
c. One Lounge Bar serving wine and liquor
3 Conventions and
events
Modular style, grand conference venue of at least 6,000 sq.
ft.
4 Spa One well-equipped spa providing wellness treatments
(Indian/ International) by trained professionals
5 Swimming Pools At least one outdoor swimming pool with a separate child
pool
6 Health Club and
gymnasium
One well-equipped, world-class Gymnasium with at least
one professional trainer during appointed hours
7 Other amenities/
facilities
a. Travel desk
b. Money Changer
c. Laundry facilities
d. Business centre
e. Meeting rooms
f. Mini Theatre
g. Kids Entertainment Centre
h. Outdoor/ beachfront recreational facilities
i. Water sports ( Seasonal )
j. First Aid facilities including Doctor on call
k. Convenient (preferably private) access to public
beach
l. Viewing podiums across the resort
10
1.7 Minimum Service Obligations Indicator SLA
Star rating Maintenance of minimum 4 star rating continuously
Cleanliness Waste bin every 25 meters
Litter free resort
Accessibility Resort should be 100% compliant to the needs of differently-abled
Drinking water Potable drinking water at a prominent place
Toilets Any time visually clean and odour free toilets
1.8 Miscellaneous terms and conditions The detailed scope of services to be undertaken by the selected bidder is as below.
A) Before Commencement of Construction
Prior to commencement of construction of any of the Project Facilities, the Developer:
a) Shall obtain all Applicable Permits and approvals from the Authority& concerned local
authorities, necessary to commence construction of such Project Facilities;
b) Shall carry out the design and construction of the Project Facility in strict compliance
with all Applicable Laws in particular, applicable Building Codes and Standards and
Good Industry Practices.
c) Appoint its representative duly authorized to deal with the Authority in respect of all
matters connected to or arising out of or in relation to this Agreement.
d) Shall be solely responsible and liable for development and implementation of the
Project Facility. The Authority shall not be responsible in any manner whatsoever to
either the Developer or its contractors for any default or failure by the Developer to
comply with statutory requirements of design and construction.
B) During Construction
a) The Developer shall:
i. Strictly follow the guidelines on quality as set out in applicable building codes
and the norms stipulated in the APDSS.
ii. Ensure that the construction of the Project Facilities is undertaken with minimal
inconvenience to people in the neighborhood areas such as shopkeepers,
affected directly or indirectly by the Project during construction.
iii. Take the necessary precautions to minimize accidents and respond to the
Emergency as quickly as possible and comply with all applicable safety
standards.
iv. Take precautions to avoid inconvenience or damage or destructions or
disturbance to any third party rights and properties during the construction or
excavation or transport activity.
v. Provide signals, protective structures, fences and alarm systems in dangerous
areas, to prevent injury of the workers and other people employed at the Site.
vi. Be in compliance with the Applicable Laws and Applicable Permits obtained
for the Project including the clearances obtained from the Government Agency.
vii. Ensure compliance to applicable regulations and laws including but not limited
to payment of minimum wages, submission of returns and payment under
11
Buildings & Other Construction Workers Act, payment of insurance, provision
of fire safety measures, measures to prevent accidents, and compliance with
rules governing storage of explosives.
viii. The Authority shall in no way be responsible or liable for any of the claims,
damages or any proceedings arising in connection with the execution of the
project as the land will be handed over to the developer on execution of the
agreement and the Developer shall solely be liable in this regard.
b) The Developer shall arrange for all the material requirements for the Project and
disposal of all material wastes. The Applicable Permits in this regard would have to be
obtained by the Developer. All excess and unsuitable excavated materials shall be
piled at appropriate dumping places or otherwise disposed of by the Developer in
consultation with the Authority and/ or the Independent Engineer.
1.9 Project Milestones and Timelines The project shall be divided into following milestones:
S.
No.
Milestone to be achieved Details
1. Acceptance of Letter of Intent (LoI) Within 15 days of receipt
2. Signing of Lease cum development
agreement
Within 30 days of acceptance of
LoI
3. Financial Closure (as evidenced by a
letter from a scheduled bank/ financial
institution)
Within 60 days of signing of the
lease cum development agreement
4. Possession of Land and registering of
lease cum development agreement
On compliance to conditions
precedent
5. Start of civil works Within 150 days of signing of the
lease cum development agreement
6. Lessee should achieve Commercial Date
of Operations within
Within 24 months of signing of the
lease cum development agreement
In case any milestone specified in the bid document is not completed as per the timeline
specified, Department may give grace period of 3 months to complete the specified
milestone. If after expiration of 3 months the milestone has not been achieved, the
conditional land lease deed would stand cancelled automatically.
Under no circumstances shall the overall grace period given for a project shall
cumulatively exceed 6 months
12
1.10 Misc. Project Information
S. No Item Details
1 Area of the land demarcated for resort (Acres) 10
2 Land basic value INR 72,60,00,000
3 Estimated minimum project value INR 75,00,00,000
(Seventy five
crores)
4 Latitude and Longitude 17.793, 83.369
5 Survey no. 409/P
6 Village Madhurawada
7 Mandal Vizag Rural
8 District Visakhapatnam
BIDDING DOCUMENT
Issued on: November 2nd, 2016
for the
Selection of Developers for development of
Luxury Resort at Madhurwada in
Visakhapatnam in Andhra Pradesh under
Lease cum Development Model
Authority: Andhra Pradesh Tourism Development
Corporation
Vol III: General Conditions of Lease cum Development
Agreement (GCA) and Special Conditions of Lease cum
Development Agreement (SCA)
3
LEASE CUM DEVELOPMENT AGREEMENT
THIS LEASE CUM DEVELOPMENT AGREEMENT is entered into on this
the -------- day of --------- (Month) ------ (Year) at ------------- .
By and Between
THE Andhra Pradesh Tourism Development Corporation, a company incorporated
under the Companies Act 1956, and having its registered office at
______________________ represented by its authorized representative the <<Name of
Authority) >>, hereinafter referred to as “Authority/Lessor” (which expression shall unless
repugnant to the context or meaning thereof, include its successors and assigns) on
one hand,
AND
M/s. _____________________________a company incorporated under the Companies Act
1956, and having its registered office at ______________________hereinafter referred to
as the “LESSEE” or “DEVELOPER “as the context would require, represented by its
<<designation of authorized representative>> __________________ s/o
__________aged about ___ years resident of ____________________________,
Authorized signatory as per the Resolution passed by the Board of Directors
Dt._________, (which expression shall unless repugnant to the context or meaning
thereof, shall include its successors and assigns) on the other hand.
WHEREAS,
A. The Lessor is desirous of developing a Luxury Resort at Madhurwada in
Visakhapatnam in Andhra Pradesh (hereinafter referred to as the 'Project') and
delineated in colored boundary lines on the plan annexed hereto and marked as per
Volume I of the bid document.
B. APTDC carried out a transparent competitive bidding process and after thoroughly
evaluating the bids received from the eligible bidders, the bid submitted by
…………………………… (Hereafter referred to as the 'Preferred Bidder') has been
accepted and communicated its offer to the Preferred Bidder through its Letter of
Intent(LoI) vide Lr.No………….. dated……………………..(hereinafter referred to
as the "Letter of Intent" or "LoI"). The LoI has been issued to the Preferred Bidder for
the award of the Project. The copies of the Request for Proposal ("RFP"), Preferred
(Successful)Bidder's bid documents, LoI and subsequent letter of acceptance sent by
the Preferred Bidder vide letter dated……….. are collectively annexed hereto and
marked as Schedule "B".
C. The Preferred Bidder (Lessee)has incorporated SPC by name _______________for
the purpose of implementation of the Project and has requested <<Authority/
Lessor>> to enter into the Lease-cum-Development Agreement with the
Lessor.
NOW THEREFORE THIS AGREEMENT WITNESSETH AS FOLLOWS:
4 Section III. Countries Eligible for Bank-Financed Procurement
CONTENTS
Section I. General Conditions of lease cum development agreement ................................5
Table of Clauses ...................................................................................................................6
Section II. Special Conditions of lease cum development agreement ..............................49
Section VII. Sample Forms 5
SECTION I. GENERAL CONDITIONS OF LEASE CUM
DEVELOPMENT AGREEMENT
6 Section VII. Sample Forms
Table of Clauses
A. Definitions and interpretations .........................................................................................8
1. Definitions...................................................................................................................8 2. Interpretations ............................................................................................................12 3. Contract Documents..................................................................................................15
B. Project Development ........................................................................................................15
4. Right of Development ...............................................................................................15 5. Project Site ..................................................................................................................16 6. Use of Project Site ......................................................................................................16
7. Peaceful Possession ....................................................................................................16
C. Lease Term/ Period ..........................................................................................................17
8. Lease Term/ Period ...................................................................................................17
9. Renewal of Lease Term/ Period ...................................................................................17 10. Non-renewal of lease terms/ period .............................................................................17
D. Payments, Guarantees & User Charges .........................................................................18
11. Performance Security ................................................................................................18 12. Project Development Fee ............................................................................................18
13. Annual Land Lease Rent ..............................................................................................19 14. User Charges/ Fees ......................................................................................................20
E. Obligations and Undertakings ........................................................................................20
15. General obligations of the Lessee .............................................................................20
16. Conditions Precedent ..................................................................................................23 17. Shareholder Lock-in.....................................................................................................23 18. Obligations of the Lessee during implementation period ............................................24
19. Obligations of Lessee during operations period ..........................................................25
20. Obligations of the Lessor ............................................................................................25 21. Capacity Augmentation and Additional Facilities .......................................................26
F. Insurances .........................................................................................................................26
22. Insurance during operations period ...........................................................................26 23. Insurance Companies ..................................................................................................26
24. Evidence of Insurance Cover ......................................................................................27
25. Application of Insurance Proceeds .............................................................................27
26. Validity of Insurance Cover ........................................................................................27
G. Force Majeure ..................................................................................................................27
27. Force Majeure Event .................................................................................................27 28. Non- Political Events ...................................................................................................28 29. Indirect Political Events ...............................................................................................29 30. Political Events ...........................................................................................................29 31. Effect of Force Majeure Event ....................................................................................30
7
32. Allocation of costs during subsistence of Force Majeure ...........................................30 33. Termination .................................................................................................................31 34. Dispute Resolution ......................................................................................................31 35. Liability for other losses, damages etc. .......................................................................31
36. Duty to report ..............................................................................................................31 37. Excuse from performance of obligations ....................................................................32
H. Events of Default and Termination ................................................................................32
38. Events of Default ......................................................................................................32 39. Lessee events of default to warning .............................................................................33
40. Consequences of events of default to warning ............................................................33 41. Lessee events of default ...............................................................................................33
42. Lessor events of default ..............................................................................................35 43. Termination due to event of default ............................................................................35 44. Rights of Lessor on Termination .................................................................................36 45. Termination with mutual consent ...............................................................................36
I. Handover and Defect Liability Period.............................................................................36
46. Handing over of project site and project assets ........................................................36
47. Joint inspection and removal of deficiency (ies) ........................................................37
J. Dispute Resolution ............................................................................................................38
48. Amicable Resolution .................................................................................................38
49. Arbitration ...................................................................................................................38
K. Representations, Warranties and Disclaimer ...............................................................39
50. Representation and warranties of the Developer ......................................................39 51. Disclaimer ...................................................................................................................41
52. Representations and warranties of Lessor ....................................................................41
L. Other Miscellaneous Provisions ......................................................................................42
53. Assignments and Charges .........................................................................................42 54. Liability and Indemnity...............................................................................................42
55. Governing Law and Jurisdiction .................................................................................46 56. Waiver .........................................................................................................................46 57. Survival .......................................................................................................................46 58. Amendments ...............................................................................................................47 59. Notices ........................................................................................................................47
60. Severability .................................................................................................................47 61. Joint and several liability (for consortium) .................................................................47
62. No Partnership ............................................................................................................48 63. Language .....................................................................................................................48 64. Exclusion of implied warranties .................................................................................48
8 Section VII. Sample Forms
General Conditions of Lease cum Development Agreement
A. DEFINITIONS AND INTERPRETATIONS
1. Definitions 1.1 In this Agreement, the following words and expressions
shall, unless repugnant to the context or meaning thereof,
have the meaning hereinafter respectively assigned to them:
A"Accounting Year" means the financial year commencing
from 1st April of any calendar year and ending on 31st
March of the next calendar year.
B "Agreement" means this agreement including all
Schedules hereto, and any amendments thereto made in
accordance with the provisions of this Agreement.
C "Applicable Laws" means all laws, promulgated or
brought into force and effect by Lessor or the State
Government or the Government of India or any statutory or
regulatory body affiliated directly or indirectly to these
governments including regulations and rules made
thereunder, and judgments, decrees, injunctions, and orders
of any court of record, as may be in force and effect during
the subsistence of this Agreement.
D "Applicable Permits" means all clearances, permits,
authorizations, consents and approvals under or pursuant to
Applicable Laws, required to be obtained and maintained
by the Developer, in order to design, finance, develop,
operate and maintain the said project
E “Arbitration Act” means the Arbitration and Conciliation
Act, 1996 and shall include all amendments, modifications
to or any re-enactment thereof as in force from time to time.
F “Change in Law” means the occurrence of any of the
following after the date of this Agreement:
a) the enactment of any new Indian law;
b) the repeal, modification or re-enactment of any
existing Indian law;
c) the commencement of any Indian law which has not
entered into effect until the date of this Agreement;
d) a change in the interpretation or application of any
Indian law by a court of record as compared to such
9
interpretation or application by a court of record prior
to the date of this Agreement; or
e) any change in the rates of any of the Taxes.
G “COD" means the commercial operations date or
commercial date of operations or date of commercial
operations on which the project is open to tourists on a
commercial basis, after due testing, trial running and
commissioning of the Project.
H “Commencement Date” means the date on which this
Lease cum Development Agreement is executed, from
which the Lease period commences.
I "Cure Period" means the period specified for curing any
breach or default of any provision of this Agreement by the
Party responsible for such breach or default.
J "Developer" is as specified in SCA and shall include its
successors and permitted assigns. For the purpose of this
Agreement, the Lessee shall be the Developer.
K "Dispute" shall have the meaning ascribed thereto in
Article J.
L "Dispute Resolution Procedure" means the procedure for
resolution of Dispute set forth in Article J.
M "Emergency" means a condition or situation that is likely
to endanger the security of the individuals on the said
project including users thereof or which poses an immediate
threat of material damage to any of the project assets.
N "Encumbrance" means any encumbrance such as
mortgage, charge, pledge, lien, hypothecation, security
interest, assignment, privilege or priority of any kind having
the effect of security or other such obligations and shall
include without limitation any designation of loss payees or
beneficiaries or any similar arrangement under any
insurance policy pertaining to the Project, physical
encumbrances and encroachments on the Project Site.
O “Financial Closure” means the date on which the
financing documents providing for financial assistance by
the lenders have become effective and the Lessee has access
to such financial assistance.
P "Force Majeure Event" shall have meaning ascribed
10 Section VII. Sample Forms
thereto in Article G
Q "Good Industry Practice" means those practices, methods,
techniques, standards, skills, diligence and prudence which
are generally and reasonably expected of and accepted
internationally from a reasonably skilled and experienced
developer engaged in the same type of undertaking as
envisaged under this Agreement and acting generally in
accordance with the provisions of the guidelines issued
from time to time
R "Government Agency"means 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 Developer, the project or any
portion thereof, or the performance of all or any of the
services or obligations of the Developer under or pursuant
to this Agreement.
S “Indirect Political Event” shall have the meaning ascribed
thereto in Article G.
T “Lease” shall have the meaning ascribed thereto in Article
8.1.
U "Lease Term/Period" means the period as applicable
specified in Article 8
V “Lock-In Period” shall be defined as specified in the SCA
W "Material Adverse Effect" means material adverse effect
on (a) the ability of the Developer to observe and perform
any of its rights and obligations under and in accordance
with the provisions of this Agreement and/or (b) the
legality, validity, binding nature or enforceability of this
Agreement.
X “Material Breach” means a breach by either Party of any
of its obligations under this Agreement which has/ likely to
have a Material Adverse Effect on the Project and which
such Party shall have failed to cure within the Cure Period.
Y “Non-Political Event” shall have the meaning ascribed
thereto in Clause 28.1.
Z “Operator” means either the Developer itself or person/
11
agency with whom the Developer has entered into or may
enter into Operations and Maintenance contract/ agreement
for the said project without being absolved of any liabilities
and obligations mentioned in this Agreement. For the
purpose of this Agreement, the obligations, rights and
responsibilities of the Operator have not been distinguished
from that of Developer unless specified otherwise in any
communication or instruction from the Developer.
AA "Operations Period" means the period commencing
from COD and ending at the expiry of the Lease Period.
AB "Parties” means the parties to this Agreement
collectively and "Party" shall mean either of the Parties to
this Agreement individually.
AC "Performance Security/ Performance Bank Guarantee"
means the Performance Security for operation and
maintenance as applicable in terms of Clause 11.
AD “Person” means any individual, company, corporation,
partnership, joint venture, trust, unincorporated
organization, special purpose vehicle, special purpose
company, government or Government Agency or any other
legal entity.
AE “Political Event” shall have the meaning ascribed
thereto in Clause 30
AF “Project” would be as defined in the SCA
AG "Project Assets" means all physical and other assets
relating to and forming part of the Project including but not
limited to (i) rights over the Project Site in the right of way
or otherwise, (ii) tangible assets such as civil works
including foundations, embankments, pavements, road
surface, interchanges, drainage works, lighting facilities,
sign boards, electrical works for lighting on the Project,
telephone and other communication systems and equipment
for the Project, rest areas, amenities, service facilities, and
all connected infrastructure thereto etc. (iii) Service Facility
situated on the Project Site, (iv) the rights of the Developer
(v) financial assets, such as security deposits for electricity
supply, telephone and other utilities, etc., (vi) insurance
proceeds subject to Lenders’ rights thereto and (vii)
Applicable Permits and authorizations relating to or in
respect of the Project.
12 Section VII. Sample Forms
AH "Rs." or "Rupees" or “INR” refers to the lawful
currency of the Republic of India.
AI "Statutory Auditors" means a reputed firm of Chartered
Accountants duly licensed to practice in India acting as
statutory auditors of the Developer.
AJ “Special Purpose Vehicle (SPV)/ Special Purpose
Company (SPC)” means a separate legal entity formed by
the successful bidder/ bidder consortium to undertake the
Project as per the terms and conditions specified in this
Agreement.
AK “Tendering Authority”/ “Authority” means any
Government Department/ Corporation/ Body which intends
to develop a tourism project and is conducting a developer
selection process as per the conditions of Land Lease Policy
for Tourism Projects, 2016 and its rules/ guidelines. For the
purpose of this Agreement, Tendering Authority is also
known as the Lessor unless specifically specified otherwise.
AL "Termination" means termination of this Agreement and
the Service hereunder pursuant to a Termination Notice or
otherwise in accordance with the provisions of this
Agreement but shall not, unless the context otherwise
requires, include the expiry of this Agreement due to expiry
of the Lease Period in the normal course.
AM "Termination Date" means the date on which the
Termination occurs which shall be the date on which
Termination Notice has been delivered or deemed to have
been delivered by a Party issuing the same to the other
Party in accordance with the provisions of this Agreement.
AN“Termination Notice” means a communication in
writing by a Party to the other Party containing the intent to
Terminate in accordance with the applicable provisions of
this Agreement.
2. Interpretations 2.1 In this Agreement, unless the context otherwise requires:
(a) any reference to a statutory provision shall include such
provision as is from time to time modified or re-enacted
or consolidated so far as such modification or re-
enactment or consolidation applies or is capable of
13
applying to any transactions entered into hereunder;
(b) references to Indian law shall include the laws, acts,
ordinances, rules, regulations, guidelines or byelaws
which have the force of law in any State or Union
Territory forming part of the Union of India;
(c) the words importing singular shall include plural and
vice versa, and words denoting natural persons shall
include partnerships, firms, companies, corporations,
joint ventures, trusts, associations, organizations or
other entities (whether or not having a separate legal
entity);
(d) the headings are for convenience of reference only and
shall not be used in, and shall not affect,
the/construction or interpretation of this Agreement;
(e) the words "include" and "including" are to be construed
without limitation;
(f) references to "construction" include, unless the context
otherwise requires investigation, design, engineering,
procurement, delivery, transportation, installation,
processing, fabrication, testing, commissioning and
other activities incidental to the construction;
(g) any reference to any period of time shall mean a
reference to that according to Indian Standard Time;
(h) any reference to a day shall mean a reference to a
calendar day;
(i) any reference to a month shall mean a reference to a
calendar month;
(j) the Schedules to this Agreement form an integral part of
this Agreement and will be in full force and effect as
though they were expressly set out in the body of this
Agreement;
(k) any reference at any time to any agreement, deed,
instrument, license or document of any description shall
be construed as reference to that agreement, deed,
instrument, license or other document as amended,
varied, supplemented, modified or suspended at the time
of such reference;
(l) references to recitals, Articles, sub-articles, clauses, or
14 Section VII. Sample Forms
Schedules in this Agreement shall, except where the
context otherwise requires, be deemed to be references
to recitals, Articles, sub-articles, clauses and Schedules
of or to this Agreement;
(m) any agreement, consent, approval, authorization, notice,
communication, information or report required under or
pursuant to this Agreement from or by any Party shall
be valid and effectual only if it is in writing issued from
a duly authorized representative of such Party, as the
case may be, in this behalf and not otherwise;
(n) 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; and
(o) 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 or liquidated damages;
(p) unless otherwise expressly provided in this Agreement,
any documentation required to be provided or furnished
by the Developer to Lessor shall be provided free of
cost and in three copies and if Lessor is required to
return any such documentation with their comments
and/or approval, they shall be entitled to retain two
copies thereof;
2.2 Measurements and Arithmetic Conventions
All measurements and calculations shall be in metric system and
calculations done to 2 decimal places, with the third digit of 5 or
above being rounded up and below 5 being rounded down except
in fee calculation which shall be rounded off to nearest rupee.
2.3 In case of ambiguities or discrepancies within this
Agreement, the following shall apply:
(a) Between two Articles of this Agreement, the provisions
of specific Articles relevant to the issue under
consideration shall prevail over those in other Articles;
(b) Between the Articles and the Schedules, the Articles
shall prevail;
(c) Between the written description on the Drawings and
15
the Specifications and Standards, the latter shall
prevail;
(d) Between the dimension scaled from the Drawing and
its specific written dimension, the latter shall prevail;
(e) (v) Between any value written in numerals and that in
words, the latter shall prevail.
3. Contract
Documents
3.1 The Lease cum Development Agreement, all documents
forming part of the Contract (and all parts of these
documents) are intended to be correlative, complementary,
and mutually explanatory. The Agreement shall be read as
a whole. The order of precedence of documents shall be:
1. Vol III: Lease cum Development Agreement consisting
of GCA and SCA, including any addenda made and
schedules included pursuant to any amendments made.
2. Vol II: ITB and BDS and any amendments thereof
(including Vol I of the bid).
3. Bidder’s proposal submitted to the Authority.
B. PROJECT DEVELOPMENT
4. Right of
Development
4.1 Subject to and in accordance with the terms and conditions
set forth in this Agreement, Lessorhereby grants and
authorizes the Developer to design, finance, build, operate
and maintain the Project and to exercise and/or enjoy the
rights, powers, privileges, authorizations and entitlements
as set forth in this Agreement, including but not limited to
the right to levy, demand, collect and appropriate fees from
persons liable for payment of Fee for using the Project/
Project Facilities or any part thereof (collectively “the
Project”).
16 Section VII. Sample Forms
5. Project Site 5.1 Lessor hereby undertakes to handover to the Developer
physical possession of the Project Site free from
Encumbrance together with the necessary rights of way/
easement /way leaves for the purpose of implementing the
Project in accordance with this Agreement.
5.2 Lessor confirms that upon the Project Site being handed
over pursuant to the preceding sub-article (5.1) the
Developer shall have the exclusive right to enter upon,
occupy and use the Project Site subject to and in accordance
with the provisions of this Agreement.
6. Use of Project
Site
6.1 The Developer shall not without prior written consent or
approval of Lessor use the Project Site for any purpose
other than for the purposes specified in this Agreement
(including Minimum Development Obligations and
Minimum Service Obligations, if any) and purposes
incidental thereto as permitted under this Agreement or as
may otherwise be approved by the Lessor.
6.2 Any use of the Project Site for any purpose other than for
the purpose specified under this Agreement shall be
considered as a material breach and default on the part of
the Lessee/ Developer/ Operator as the case may be.
7. Peaceful
Possession
7.1 Lessor warrants that:
a) the Project Site together with the necessary right of way/
easement/ way leaves having been acquired through the
due process of law belongs to and vested in Lessor, and
that Lessor has full powers to hold, dispose of and deal
with the same consistent, inter alia, with the provisions of
this Agreement;
b) the Developer shall have no obligation/liability as to
payment of any compensation whatsoever to or the
rehabilitation and resettlement of any Person from whom
the Project Site or any part thereof had been acquired and
that the same shall be the sole responsibility of Lessor;
and
c) the Lessor shall, subject to complying with the terms and
conditions of this Agreement, remain in peaceful
possession and enjoyment of the Project Site during the
Lease Period
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C. LEASE TERM/ PERIOD
8. Lease Term/
Period
8.1 Unless terminated in accordance with the provisions of this
Agreement, in consideration of the ‘Lease Rent’ hereby
reserved and in consideration of the observance of all the
terms and conditions as set out in this Agreement by the
Parties, the Lessor hereby unequivocally and irrevocably
grants to the Lessee, the Lease in the Land, free from all
encumbrances, costs, charges, claims, demands and any
other liabilities whatsoever, to hold and enjoy, without any
interruption, for a period as specified in the GCA 1.1 (V).
9. Renewal of Lease
Term/ Period
9.1 The lease term/ period shall be renewed for an additional
period of 33 years subject to compliance to all terms
and conditions of the lease cum development
agreement by the Lessee on First Right of Refusal
basis.
9.2 If for any reason the Lessor and Lessee decide to
exercise this option in positive manner leading to
renewal of lease for a period as specified in the SCA,
then in that event, all the terms and conditions
including Lease Rent and aggregate period of
extension shall be as per the prevailing Government
policies at that time.
10. Non-renewal of
lease terms/
period
10.1 In case of non-renewal of the Lease beyond the Term,
the Lessor shall resume the Project, as specified in the
GCA 1.1 (AF) and all Project Assets including
structures appurtenant thereto along with all fixtures
and fittings shall stand vested in the Lessor with
immediate effect upon expiration of Term and without
any liabilities/ obligations towards the Lessee.
18 Section VII. Sample Forms
D. PAYMENTS, GUARANTEES& USER CHARGES
11. Performance
Security
11.1 The Developer shall, for due and punctual performance of its
obligations during the Lease Period, deliver to Lessor,
simultaneously with the execution of this Agreement a bank
guarantee from a scheduled bank acceptable to Lessor, in
the form set forth in format provided in Vol-II of the bid
document, (the "Performance Bank Guarantee”) for a sum as
specified in the SCA.
11.2 In the event of the encashment of the Performance Bank
Guarantee by Lessor, pursuant to any act of the Lessee/
Developer/ Operator having a material adverse effect on the
execution of the Project or due to the violation of any of the
provisions of this Agreement, the Lessee / Developer /
Operator, as the case may be shall within 15 (fifteen) days
of the Encashment, replenish the same, or furnish fresh
Performance Bank Guarantee failing which Lessor shall be
entitled to terminate this Agreement in accordance with the
provisions of Article H below. The provisions set forth in
11.1 above shall apply mutatis mutandis to such fresh
Performance Bank Guarantee.
12. Project
Development
Fee
12.1 The Lessee delivered to Lessor, as a precondition for
signing of this agreement, a demand draft from a
____________ bank , for a sum of Rs._____________ vide
DDNo._________, Dt.__________towards Project
Development Fee as mentioned in the SCA
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13. Annual Land
Lease Rent
13.1 In consideration of the lease of the Project Site and the
development rights appurtenant thereto in favor of the
Lessee, the Lessee shall, during the Lease Period, in terms of
this Agreement, make payments to Lessor with respect to
the Annual Land Lease Rent. The Annual Land Lease Rent
for the first year of lease is as specified in the SCA. The
amount of Annual Lease Rental shall be escalated at a rate
of 5% per every year during the lease term.
The schedule of Annual Land Lease Rent payable is
appended at Annexure___.
13.2 The Annual Land Lease rent shall be payable in advance
from the date of handover of land possession to the
successful bidder. Every subsequent payment shall be due as
per the schedule/ timelines provided in the SCA.
13.3 In case of default in making the subsequent payment,
penalties with interest shall be charged as specified in the
SCA.
13.4 In the event, the payments are delayed beyond the period
specified in the SCA, it shall be construed as a Lessee
default in payment of Lease Rentals. When such a default
occurs, the Lessor shall issue a default notice to the Lessee
to remedy the situation. If the situation is not remedied, at
the end of the time specified in such notice, the Lessor may
encash the performance bank guarantee and may also issue,
at its discretion, a termination notice.
13.5 Land Lease Rent shall payable to the account specified in
the SCA.
20 Section VII. Sample Forms
14. User Charges/
Fees
14.1 Subject to the provisions of this Agreement, the Lessee shall
during Operations Period be entitled to levy, demand and
collect Fee or Tariff for its services to the end users, in
accordance with the industry norms and practices for the use
of the Project facilities as well as allied facilities.
14.2 Lessor will not be involved in the determination of such fee
or tariff that Developer will charge.
14.3 The Lessee may formulate, publish and implement
appropriate scheme(s) for frequent users as may reasonably
be required by business requirements from time to time.
14.4 Based on the project and its components, Lessee may be
entitled to incentives under Tourism Policy 2015-20
including exemption of entertainment tax, luxury tax,
reduced VAT rate etc. In such cases, the Lessee shall not
impose any/ excessive taxes, fee, or tariff on the users as
well. For e.g. if the Lessee is availing exemption on
entertainment and luxury tax, the same cannot be charged
from the users. Similarly, if the Lessee is eligible for
reduced rate of VAT at 5%, the rate of VAT to users also
shall be 5% and not more.
In order to avail the benefits under the Policy, for clarity, it is
to state that the Lessor shall have to fulfill all he
requirements and also follow the set procedure thereon.
Mere concluding of this agreement will not guarantee the
benefits under the policy.
14.5 In the event of non passing of any benefit to the end user
availed by the Developer/ Operator as a result of exemption
as provided under 14.4 shall be deemed to be a violation of
the provisions of this Agreement. Violation of the said
condition as shall be treated as Event of Default as explained
under Article H of this agreement.
E. OBLIGATIONS AND UNDERTAKINGS
15. General
obligations of the
Lessee
15.1 The Lessee shall at its own cost:
(i) should design, develop, finance, construct, implement,
manage, operate and maintain all facilities developed as a
part of the Project either through itself or through its
contractors in accordance with the provisions of this
Agreement, Minimum Development Obligations specified,
21
Good Industry Practices and Applicable Laws;
(ii) obtain all Applicable Permits in conformity with the
Applicable Laws and be in compliance with thereof at all
times during the Lease Period;
(iii) procure and maintain in full force and effect, as necessary,
appropriate proprietary rights, licenses, agreements and
permissions for materials, methods, processes and systems
used in or incorporated into the Project;
(iv) provide all assistance to the Lessor officials as they may
reasonably require for the performance of their duties and
services under this Agreement;
(v) appoint, supervise, monitor and control the activities of
Contractors / Staff or any other service provider under their
respective Agreements as may be necessary;
(vi) Make efforts to maintain harmony and good professional
relations among the personnel employed in connection with
the performance of the Lessee’s obligations under this
Agreement;
(vii) take all reasonable precautions for the prevention of
accidents on or about the Project, Project Assets, and
Project Facilities and provide all reasonable assistance and
emergency medical aid to accident victims;
(viii) not to place or create nor to permit any contractor or
vendor or service provider or any other person claiming
through or under the Lessee to create or place any
Encumbrance over all or any part of the Project Assets, or
on any rights of the Lessee therein, save and except as
expressly set forth in this Agreement;
(ix) be responsible for safety, soundness and durability of the
Project Facility including all structures forming part thereof
and their compliance with the Specifications and Standards;
(x) ensure that the Project Site & Project Assets remain free
from all encroachments, encumbrances. It shall take all
steps necessary to remove encroachments, if any;
(xi) make timely payment to Government Agencies, if required,
for provision of such services as are not provided in the
normal course or are available only on payment;
(xii) remove promptly according to Good Industry Practice, from
22 Section VII. Sample Forms
the Project Site, all surplus construction machinery and
materials, waste materials (including, without limitation,
hazardous materials and waste water), rubbish and other
debris (including without limitation accident debris) and
keep the Project Site in a neat and clean condition and in
conformity with the Applicable Laws and Applicable
Permits.
(xiii) Provide access to the auditors and inspectors of Lessor
whenever Lessor chooses to conduct such audit or
assessment.
(xiv) Provide waste management and 3/4/5 star standard food or
service.
(xv) Operate and maintain the Project Facilities at its cost in
accordance with the Prudent Utility Practices and the terms
and conditions of this Agreement, with the objective of
providing adequate service standards to the users and
ensuring that at the end of the Lease Period, including
extension thereof, the Project is transferred to the Lessor or
its nominated agency in fair condition, subject to normal
wear and tear having regard to the terms and conditions of
this Agreement.
(xvi) In order to fulfill its obligations under this Agreement and
the Project Agreements, the Lessee may at its discretion
appoint Construction Contractor(s) and the O&M
Contractor (s) by entering into Construction Agreement(s)
and O&M Agreement(s). The bidder/ Lessee may undertake
the operations and management of the project on its own,
through one of the consortium members or through any
other agency/ company so long as it meets the experience
requirements specified in the SCA. The operations and
management agency can be finalized even after signing of
this Agreement with the Lessor. However, the Lessee shall
finalize the O&M operator within 1 year from the date of
signing of the Agreement
(xvii) Shall organize the supervision, monitoring and control of
the construction, operation and Management of the Project
by the Contractor (s) as may be necessary to ensure the
proper performance of their respective obligations under the
Construction Agreement(s), the O& M Agreement(s) and
other relevant Project Agreements in accordance with the
conditions of Clearances and the terms and conditions of
this Agreement.
23
(xviii) Ensure Payment of all taxes Fees, Levies or Cess, User
Charges(Electrical, ater supply), Property tax and other
statutory or other dues incurred during the lease tenure,
without any pending liabilities..
(xix) Ensure that any arrangement with the users of the Project
Facility is in line with the provisions of this Lease
Agreement and is subject to the rights and obligations of the
parties under this Lease Agreement.
(xx) Ensure compliance with all labour, statutory requirements,
environment, mining, and health and safety laws as
applicable to the Project in the State of Andhra Pradesh.
(xxi) Promptly intimate in writingto the Competent Authorities
and hand over to them any archaeological finds, treasures
and precious and semi-precious minerals discovered at the
Project Site by the Lessee or its employees, agents and
Contractors
16. Conditions
Precedent
16.1 Save and except as may otherwise be expressly provided
herein, the obligations of a Lessor and the Lessee under this
Agreement shall be subject to the satisfaction in full of the
Conditions Precedent by the Lessee. These would be as
specified in the SCA.
16.2 Upon successful compliance to the Conditions Precedent
specified above, the possession of the project site/ land shall
be given to the Lessee and the Lease cum Development
Agreement may be registered with the Stamps and
Registration Department of the State.
16.3The Lessee/Developer at its cost shall register the Lease cum
Development Agreement promptly on its execution by
paying the necessary Stamp Duty and Registration Fee as
applicable.
17. Shareholder
Lock-in
17.1 The shareholding of bidder (s) in the SPC/ SPV shall be
governed by the Lock-In period as defined below.
17.2 In case of sole bidder, it shall retain minimum of 51% as
equity contribution in the SPC/ SPV throughout the lock-in
period
17.3 In the SPC/ SPV formed by the consortium of two
members, the total equity contribution put together by both
the consortium members shall not be less than 51%
24 Section VII. Sample Forms
throughout the lock-in period.
17.4 Further, in the SPC/ SPV formed by the consortium of two
members, the equity contribution from lead member of the
consortium shall not be less than 26% throughout the lock
in period and equity contribution from second member of
the consortium shall not be less than 10% throughout the
lock in period.
17.5 Violation of any condition specified under 17.2, 17.3 and
17.4 shall be treated as Event of Default as dealt with in
Article 10 of this agreement.
18. Obligations of
the Lessee during
implementation
period
18.1 The Lessee shall, before commencement of construction,
will have requisite organization and competent personnel
and designate and appoint suitable officers/ representatives
as it may deem appropriate to supervise the project
development and to deal with the Lessor officials and to be
responsible for all necessary exchange of information
required pursuant to this Agreement.
18.2 Within the time specified in the LoI, the lessee shall
promptly sign the Lease cum Development Agreement with
the Lessor and take the possession of the land without any
delay.
18.3 Financial Closure of the Project, as evidenced by a letter
from a scheduled bank/ financial institution, should be done
within the timeline stipulated in the SCA. The agreement
shall be registered with the Stamps and Registration
Department only after financial closure.
18.4 Physical grounding of works on Project Site (as verified by
Lessor by means of physical inspection) should be done
within the timeline specified in the SCA.
18.5 Lessee should achieve COD (including fulfillment of
Minimum Development Obligations and other terms under
this Agreement) within the timeline specified in the SCA.
18.6 In the case the Lessee is unable to meet the conditions
specified above, the Lessor, at its discretion and upon merit
of request given by the Lessee, after due consideration of
the prevailing circumstances, may extend the timelines for
the milestones specified in the SCA upto 3 months.
18.7 Under no circumstances shall the extension of a timeline
25
approved for a project shall cumulatively exceed 6 months.
18.8 Violation of any of the above conditions will be treated as
an event of default as dealt with in Article H of this
agreement.
19. Obligations of
Lessee during
operations period
19.1 The Lessee, on its own or through a contracted agency for
operations and maintenance of the project, shall ensure that
the Minimum Development Obligations and Minimum
Service Obligations are met throughout the lease period.
19.2 The Lessee, on its own or through a contracted agency for
operations and maintenance of the project, shall ensure that
all terms and conditions relating to O&M of this Lease cum
Development Agreement are complied with throughout the
Lease Period.
19.3 Any changes/ deviations shall be only after written approval
of the Lessor
19.4 It is also clarified that the conditions above are applicable
during and after the Lock-In period i.e. throughout the lease
period.
19.5 Violation of any of the above conditions will be treated as
an event of default as dealt with in Article H of this
agreement.
20. Obligations of
the Lessor
20.1 Lessor shall:
(i) hand over the physical possession of Project Site together
with necessary right of way/ way leaves to the Lessee, free
from any Encumbrance;
(ii) ensure peaceful use of the Project Site by the Lessee under
and in accordance with the provisions of this Agreement
without any let or hindrance from Lessor or persons
claiming through or under it;
(iii) upon written request from the Lessee, assist him (as a
owner of the project site only) in obtaining access to all
necessary infrastructure facilities and utilities, including
water, electricity and telecommunication facilities at rates
and on terms no less favorable to the Lessee than those
generally available to commercial customers receiving
substantially equivalent facilities/utilities;
(iv) Observe and comply with all its obligations set forth in this
Agreement.
26 Section VII. Sample Forms
(v) Lessor shall undertake periodic inspection of the Project
jointly with the Lessee to determine the condition of the
Project including its compliance or otherwise with the
statutory food, safety, hygiene norms and this Agreement
21. Capacity
Augmentation
and Additional
Facilities
21.1 The Lessee is mandated to provide and maintain all Project
Facilities as per the Minimum Development Obligations &
Minimum Service Obligations specified and as per terms of
this Agreement.
21.2 The Lessee may undertake capacity augmentation and
development of additional facilities for the project at the
specified project site if:
(i) The augmentation / increase in capacity does not alter
the basic nature and objective of the Project, Project
Site and Project Facilities.
(ii) Does not adversely impact the ability of Lessee to
fulfill its Minimum Development Obligations &
Minimum Service Obligations.
F. INSURANCES
22. Insurance during
operations period
22.1 The Lessee shall, at its cost and expense, purchase and
maintain during the Operations Period insurance to cover
against:
(a) loss, damage or destruction of the Project Facility, at
replacement value;
(b) the Lessee’s general liability arising out of the Service,
including damages caused to other parts of the hotel facility
and guests during provision of Services;
(c) liability to third parties; and
(d) Any other insurance that may be necessary to protect the
Lessee, Operator and their employees, including all Force
Majeure Events including natural calamities that are
insurable and not otherwise covered in items (a) to (c).
23. Insurance
Companies
23.1 The Lessee shall insure all insurable assets comprised in the
Project and Project Facilities through Indian insurance
companies and if so permitted by Lessor, through foreign
insurance companies, to the extent that insurances are
necessary to be effected through them.
27
24. Evidence of
Insurance Cover
24.1 The Lessee shall, from time to time, provide to Lessor
copies of all insurance policies (or appropriate
endorsements, certifications or other satisfactory evidence
of insurance) obtained by the Lessee in accordance with this
Agreement.
25. Application of
Insurance
Proceeds
25.1 All moneys received under insurance policies shall be
promptly applied by the Lessee towards repair or renovation
or restoration or substitution of the Project Facility or any
part thereof which may have been damaged or destroyed
under written intimation to Lessor. The Lessee shall carry
out such repair or renovation or restoration or substitution
to the extent possible in such manner that the Project
Facility or any part thereof, shall, after such repair or
renovation or restoration or substitution be as far as possible
in the same condition as they were before such damage or
destruction, normal wear and tear excepted.
26. Validity of
Insurance Cover
26.1 The Lessee shall pay the premium payable on such
insurance policy (ies) so as to keep the policy (ies) in force
and valid throughout the Service Period and furnish copies
of the same to Lessor. Each insurance policy shall provide
that the same shall not be cancelled or terminated unless 10
Days' clear notice of cancellation is provided to Lessor in
writing.
G. FORCE MAJEURE
27. Force Majeure
Event
27.1 As understood in this Agreement, a Force Majeure Event
shall mean occurrence in India of any or all of Non Political
Event, Indirect Political Event and/or Political Event as
defined in clauses 28, 29 and 30 below which prevent the
Party claiming Force Majeure (the "Affected Party") from
performing its obligations under this Agreement and which
act or event (i) is beyond the reasonable control and not
arising out of the fault of the Affected Party, (ii) the
Affected Party has been unable to overcome such act or
event even after the exercise of due diligence and
reasonable efforts, skill and care, and (iii) has a Material
Adverse Effect on the Project.
28 Section VII. Sample Forms
28. Non- Political
Events
28.1 Non-Political event shall mean one or more of the following
acts or events:
(i) acts of God or events beyond the reasonable control of the
Affected Party which could not reasonably be expected to
occur or anticipate, exceptionally adverse weather
conditions, lightning, earthquake, cyclone, flood, volcanic
eruption or fire (to the extent originating from a source
external to the Project Site and Project Facilities or beyond
design specifications for the Construction Works) or
landslide;
(ii) radioactive contamination or ionizing radiation;
(iii) strikes or boycotts (other than those involving the Lessee,
Operator, Contractors or their respective
employees/representatives for reasons not attributable to the
Lessee, Operator, or Contractors or any act or omission
interrupting supplies and services to the Project Site for
reasons not attributable to the Lessee, Operator, or
Contractors and for a period exceeding 7 (seven) days in an
Accounting Year, and not being an Indirect Political Event
set forth in Clause 29;
(iv) 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
Lessee by or on behalf of such Contractor;
(v) any judgment or order of any court of competent
jurisdiction or statutory authority in India made against the
Lessee in any proceedings for reasons other than failure of
the Lessee to comply with any Applicable Law or
Applicable Permits or on account of breach thereof, or of
any contract, or enforcement of this Agreement or exercise
of any of its rights under this Agreement by Lessor;
(vi) any event or circumstances of a nature analogous to any of
the foregoing.
29
29. Indirect Political
Events
29.1 Indirect Political Event shall mean one or more of the
following acts or events:
(i) 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 which
prevents collection of Fee by the Lessee for a period
exceeding a continuous period of 7 (seven ) days in an
Accounting Year;
(ii) Industry wide or state wide or India wide strikes or
industrial action which prevent collection of Fees by the
Lessee for a period exceeding a continuous period of
7(seven) days in an Accounting Year; or
(iii) Any public agitation which prevents collection of Fee by
the Lessee for a period exceeding a continuous period of 7
(seven) days in an Accounting Year.
30. Political Events 30.1 Political Event shall mean one or more of the following acts
or events by or on account of Lessor or any other
Government Agency:
(i) Change in Law, only when provisions of this Agreement
cannot be applied;
(ii) Expropriation or compulsory acquisition by any
Government Agency of any Project Assets or rights of the
Lessee or of the Contractors; or
(iii) .
30 Section VII. Sample Forms
31. Effect of Force
Majeure Event
31.1 Upon the occurrence of a force majeure event, the following
shall apply:
(a) There shall be no Termination of this Agreement except as
provided in Clause 33 hereinafter;
(b) Where the Force Majeure Event occurs before COD, the
dates set forth in the Project Schedule, and the Lease Period
may be extended by the period for which such Force
Majeure Event shall subsist;
(c) Where a Force Majeure Event occurs after COD, the Lessee
shall continue to make all reasonable efforts to operate the
Project and/or to collect Fee, but if it is unable or prevented
from doing so, the Lease Period shall, having due regard to
the extent of the impact thereof as determined by the Lessor
officials, be extended by the period for which collection of
Fee remains affected on account thereof; and
(d) Costs arising out of or concerning such Force Majeure
Event shall be borne in accordance with the provisions of
the Clause 32 hereinafter.
32. Allocation of
costs during
subsistence of
Force Majeure
32.1 Upon occurrence of a Force Majeure Event, the costs arising
out of such event shall be allocated as follows:
(a) When the Force Majeure Event is a Non Political Event, the
Parties shall bear their respective costs and neither Party
shall be required to pay to the other Party any costs arising
out of any such Force Majeure Event;
(b) Where the Force Majeure Event is an Indirect Political
Event, the costs attributable to such Force Majeure Event
and directly relating to the Project (the "Force Majeure
Costs") shall be borne by the Lessee;
(c) For avoidance of doubt, Force Majeure Costs shall not
include loss of Fee revenues or any debt repayment
obligations but shall include interest payments on such debt,
O&M Expenses and all other costs directly attributable to
the Force Majeure Event.
(d) During the occurrence of FM event, the lessee shall continue
to pay the annual land lease rent to the Authority. However,
the lessee will be permitted to post pone the payments for a
period of FM event not exceeding 120 days without interest.
.
31
33. Termination 33.1 If a Force Majeure Event continues or is in the reasonable
judgment of the Parties is likely to continue beyond a period
as specified in the SCA, the Parties may mutually decide to
terminate this Agreement or continue this Agreement on
mutually agreed revised terms. If the Parties are unable to
reach an agreement in this regard, the Affected Party shall
after the expiry of the said period, be entitled to terminate
this Agreement by issuing Termination Notice.
34. Dispute
Resolution
34.1 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 however 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.
35. Liability for
other losses,
damages etc.
35.1 Save and except as expressly provided in this Agreement,
neither Party hereto 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 to
this Agreement.
36. Duty to report 36.1 The Affected Party shall discharge the following
obligations in relation to reporting the occurrence of a Force
Majeure Event to the other Party:
(a) The Affected Party shall not claim any relief for or in respect
of a Force Majeure Event unless it shall have notified the
other Party in writing of the occurrence of the Force
Majeure Event as soon as reasonably practicable, and in any
event within 7 (seven) days after the Affected Party knew,
or ought reasonably to have known, of its occurrence and
the probable material affect that the Force Majeure Event is
likely to have on the performance of its obligations under
this Agreement.
(b) Any notice pursuant to Force Majeure shall include full
particulars of:
(i) the nature and extent of each Force Majeure Event
which is the subject of any claim for relief under
Article 14 with evidence in support thereof;
(ii) the estimated duration and the effect or probable
effect which such Force Majeure Event is having or
32 Section VII. Sample Forms
will have on the Affected Party's performance of its
obligations under this Agreement;
(iii) the measures which the Affected Party is taking, or
proposes to take, to alleviate the impact of such Force
Majeure Event; and
(iv) any other information relevant to the Affected Party's
claim.
(c) For so long as the Affected Party continues to claim to be
affected by such Force Majeure Event, it shall provide the
other Party with regular (and not less than weekly) written
reports containing information as required by this clause
and such other information as the other Party may
reasonably request the Affected Party to provide.
37. Excuse from
performance of
obligations
37.1 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:
(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 written notice to that effect and shall promptly
resume performance of its obligations.
H. EVENTS OF DEFAULT AND TERMINATION
38. Events of Default 38.1 Event of Default means the Lessee Event of Default to
Issuance of Notice or the Lessee Event of Default or the
Lessor Event of Default or all three as the context may admit
or require.
33
39. Lessee events of
default to
issuance of notice
39.1 The following events shall be considered as Lessee events of
default for which a notice to cure and corresponding fine
would be issued by Lessor, (the, “Event of Defaults to
issuance of notice”) on the part of the Lessee.
i. Not maintaining service and facility standards as per
the star rating accorded and the industry standards.
ii. Serving of unsavory and unhygienic food.;
iii. Unhygienic Kitchen Maintenance;
iv. Delayed or improper service provision;
v. Discourteous behavior by Staff;
vi. Presence of foreign material in the food served to
guests;
vii. Usage of unsanitary or broken crockery or cutlery.
viii. Service specific requirements if any pertaining to the
specific Agreement shall be inserted herein so as to
maintain the sanctity of the said Agreement.
40. Consequences of
events of default
to warning
40.1 If during the course of an inspection Lessor finds the
occurrence of an Event of Defaults to Warn, Lessor shall
issue a first warning in the form of a letter or email, (the,
“First Warning”) to the Lessee and levy a fine as specified
in the SCA.
40.2 If during the course of an inspection, Lessor observes the
repeat occurrence of an Event of Defaults to Warning for
which a First Warning has already been issued, Lessor shall
issue a final warning in the form of a letter or email to the
Lessee, (the, “Final Warning”) and levy a fine as specified
in the SCA.
40.3 If during the course of an inspection, Lessor observes the
third occurrence an Event of Default for which a Final
Warning has been already been issued, such an occurrence
will qualify as an Lessee Event of Default.
41. Lessee events of
default
41.1 Any of the following events shall constitute an event of
default by the Lessee ("Lessee Event of Default") unless
such event has occurred as a result of Lessor Event of
Default or a Force Majeure Event:
(1) The Lessee fails to meet the various implementation
timelines specified.
34 Section VII. Sample Forms
(2) The Lessee fails to pay the Annual Lease Rent as per
the terms specified in this Agreement.
(3) Any representation made or warranties given by the
Lessee under this Agreement is found to be false or
misleading.
(4) The Lessee creates any Encumbrance on the Project
Site/ Project Facility including the structures
constructed.
(5) A resolution is passed by the shareholders of the
Lessee for the voluntary winding up of the Lessee.
(6) Lessee violates the terms of Shareholding Pattern/
equity contribution during the Lock-in Period
(7) Any petition for winding up of the Lessee is admitted
by a court of competent jurisdiction or the Lessee 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 property, assets and undertaking of the Lessee are
transferred to the amalgamated or reconstructed entity
and that the amalgamated or reconstructed entity has
unconditionally assumed the obligations of the Lessee
under this Agreement, and provided that:
(i) the amalgamated or reconstructed entity has the
technical capability and operating experience necessary
for the performance of its obligations under this
Agreement;
(ii) the amalgamated or reconstructed entity has the
financial standing to perform its obligations under this
Agreement and has a credit worthiness at least as good
as that of the Lessee as at Commencement Date; and
(8) The Lessee suspends or abandons the operations of the
Project without the prior consent of Lessor, provided
that the Lessee shall be deemed not to have suspended/
abandoned operation if such suspension/ abandonment
was (i) as a result of Force Majeure Event and is only
for the period such Force Majeure is continuing, or (ii)
is on account of a breach of its obligations under this
Agreement by the Lessor.
(9) The Lessee repudiates this Agreement or otherwise
evidences an intention not to be bound by this
Agreement.
(10) The Lessee suffers an attachment being levied on any
of its assets causing a Material Adverse Effect on the
Project and such attachment continues for a period
exceeding 45 days.
(11) The Lessee is otherwise in Material Breach of this
35
Agreement.
(12) Lessee non-conformance to food quality, safety, health
or hygiene statutory requirements leading to the
revocation of a license necessary for the Project
(13) The Lessee fails to meet the Conditions Precedent
(14) The Performance Security has been en-cashed and
appropriated and the Successful Bidder fails to
replenish or provided fresh Performance Security
within the period specified.
(15) The Lessee utilizes the property for purposes other than
for specified purpose/s.
(16) The Lessee is in violation of provisions of Land Lease
Policy for Tourism Projects, 2016
(17) Continued non-compliance to events of default to
warning as specified in 40.3
42. Lessor events of
default
42.1 The following events shall constitute events of default by
Lessor (each a "Lessor Event of Default”), unless any such
Lessor Event of Default has occurred as a result of Lessee
Event of Default or due to a Force Majeure Event:
(1) Lessor is in breach of this Agreement and has failed to
cure such breach afterput on notice by the
Lessee/Developer, within time specified in the SCA.
(2) Lessor repudiates this Agreement or otherwise
evidences an intention not to be bound by this
Agreement.
(3) Lessor or any Governmental Agency has by an act of
commission or omission created circumstances that
have a Material Adverse Effect on the performance of
obligations by the Lessee and has failed to cure the
same within time specified in the SCA
(4) Any representation made or warranties given by the
Lessor under this Agreement is found to be false or
misleading.
(5) The lessor shall have to itself sufficient time to rectify
any event of default that has occurred as a result of its
obligation.
43. Termination due
to event of
default
43.1 Termination for Lessee event of default: Without prejudice to
any other right or remedy which Lessor may have in respect
thereof under this Agreement, upon the occurrence of a
Lessee Event of Default, the Agreement and the associated
Land Lease shall stand terminated without any need of the
36 Section VII. Sample Forms
Lessor to issue a termination notice or without providing any
cure period.
43.2 Termination for lessor’s event of default: The Lessee
may, upon the occurrence and continuation of any of Lessor
Event of Default terminate this Agreement by issuing
Termination Notice to Lessor.
44. Rights of Lessor
on Termination
44.1 Upon Termination of this Agreement for any reason
whatsoever, Lessor shall have the power and authority to:
(i) take possession and control of Project Site and Project
Assets forthwith without, at its discretion, the need to
give a cure period or notice of termination.
(ii) prohibit the Developer and any person claiming
through or under the Developer from entering upon the
Project Site or Project Facility or any part thereof;
(iii) Encash the performance bank guarantee/ performance
security
(iv) Complete the development in progress by handing over
the project assets (movable and immovable) to the new
Lessee or undertake fresh development, as the case
may be.
45. Termination
with mutual
consent
45.1 Both parties can terminate the contract without cause through
issue of a notice, not exceeding the time stipulated in SCA,
with mutual consent without being required to pay
termination related charges. Rights of Lessor for liquidated
damages for actions of the Developer will not be effected by
termination through mutual consent.
I. HANDOVER AND DEFECT LIABILITY
46. Handing over of
project site and
project assets
46.1 Upon the expiry of the Lease Period by efflux of time and
in the normal course, the Developer shall at the end of the
Lease Period, hand over vacant and peaceful possession of
the Project Site and Project Assets at no cost to Lessor.
37
47. Joint inspection
and removal of
deficiency (ies)
47.1 The handing over process shall be initiated at least 3 months
before the actual date of expiry of the Lease Period by a
joint inspection by the Lessor officials and the Developer.
The Lessor officials shall, within 15 days of such inspection
prepare and furnish to the Developer a list of
works/jobs/additions/alterations, if any, to be carried out to
bring the Project to the prescribed level of service condition
at least two months prior to the date of expiry of the Lease
Period. In case the Developer fails to carry out the above
works, within the stipulated time period the Lessor shall be
at liberty to have these works executed by any other Person
at the risk and cost of the Developer and any cost incurred
by Lessor in this regard shall be reimbursed by the
Developer to Lessor within 7 days of receipt of demand.
For this purpose, Lessor shall without prejudice to any other
right/remedy available to it, under this Agreement, have the
right to appropriate the Performance Security and/or to set
off any amounts due, if any, and payable by Lessor to the
Developer to the extent required/ available and to recover
deficit amount, if any, from the Developer.
38 Section VII. Sample Forms
J. DISPUTE RESOLUTION
48. Amicable
Resolution
48.1 Either party agrees to comply with its contractual
obligations and meet respective financial commitments in
the interest of speedy execution of the project irrespective
of pending adjudication of the claims, unless such claim is
directly and substantially linked to the issue under
adjudication. In addition, the monies which are being
claimed against each other, shall be subject to result of the
adjudication.
48.2 Save where expressly stated otherwise in this Agreement,
any dispute, difference or controversy of whatever nature
howsoever arising under, out of or in relation to this
Agreement between the Parties and so notified in writing by
either Party to the other (the "Dispute") in the first instance
shall be attempted to be resolved amicably and failing
resolution of the same in accordance with the procedure set
forth in clause 48.2 below.
48.2 Either Party may require the Dispute to be referred to the
Lessor Management, for the time being for amicable
settlement. Upon such reference, the two shall meet at the
earliest mutual convenience and in any event within 15 days
of such reference to discuss and attempt to amicably resolve
the Dispute. If the Dispute is not amicably settled within 15
(fifteen) days of such meeting between the two, either Party
may refer the Dispute to arbitration in accordance with the
provisions of clause 49 below.
49. Arbitration 49.1 Any dispute for the purpose of this clause shall in all
respects be connected to the project. No dispute shall be
construed under this agreement which is beyond the scope
of this agreement
49.2 Any Dispute which is not resolved amicably shall be finally
settled by binding arbitration under the Arbitration and
Conciliation Act, 1996. The arbitration shall be by a panel
of three arbitrators, one to be appointed by each Party and
the third to be appointed by the two arbitrators appointed by
the Parties. A Party requiring arbitration shall appoint an
arbitrator in writing, inform the other Party about such
appointment and call upon the other Party to appoint its
arbitrator. If the other Party fails to appoint its arbitrator, the
Party appointing arbitrator shall take steps in accordance
with Arbitration and Conciliation Act, 1996
39
49.2 The place of arbitration shall be as specified in the SCA but
by agreement of the Parties, the arbitration hearings, if
required, can be held elsewhere from time to time.
49.3 The request for arbitration, the answer to the request, the
terms of reference, any written submissions, any orders and
rulings shall be in the language specified in the SCA.
49.4 The procedure to be followed within the arbitration,
including appointment of arbitrator / arbitral tribunal, the
rules of evidence which are to apply shall be in accordance
with the Arbitration and Conciliation Act, 1996.
49.5 Any decision or award resulting from arbitration shall be
final and binding upon the Parties. The Parties hereto
hereby waive, to the extent permitted by law, any rights to
appeal or to review of such award by any court or tribunal.
The Parties hereto agree that the arbitral award may be
enforced against the Parties to the arbitration proceeding or
their assets wherever they may be found and that a
judgment upon the arbitral award may be entered in any
court having jurisdiction thereof.
49.6 The fees and expenses of the arbitrators and all other
expenses of the arbitration shall be initially borne and paid
by respective Parties subject to determination by the
arbitrators. The arbitrators may provide in the arbitral award
for the reimbursement to the prevailing party of its costs
and expenses in bringing or defending the arbitration claim,
including legal fees and expenses incurred by Party. The fee
for the third arbitrator shall be borne equally by the parties.
49.7 Pending the submission of and/or decision on a Dispute,
difference or claim or until the arbitral award is published,
the Parties shall continue to perform all of their obligations
under this Agreement without prejudice to a final
adjustment in accordance with such award.
K. REPRESENTATIONS, WARRANTIES AND DISCLAIMER
50. Representation
and warranties of
the Developer
50.1 The Developer represents and warrants that:
it is duly organized, validly existing and in good standing under
the laws of India;
(ii) it has full power and authority to execute, deliver and
perform its obligations under this Agreement and to carry
40 Section VII. Sample Forms
out the transactions contemplated hereby;
(iii) it has taken all necessary corporate and other action under
Applicable Laws and its constitutional documents to
authorize the execution, delivery and performance of this
Agreement;
(iv) it has the financial standing and capacity to undertake the
Project;
(v) this Agreement constitutes its legal, valid and binding
obligation enforceable against it in accordance with the
terms hereof;
(vi) it is subject to civil and commercial laws of India with
respect to this Agreement and it hereby expressly and
irrevocably waives any immunity in any jurisdiction in
respect thereof;
(vii) 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 the Developer's Memorandum and Articles of
Association or any member of the Consortium or any
Applicable Laws or any covenant, agreement,
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;
(viii) there are no actions, suits, proceedings, or investigations
pending or, to the Developer's 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 or constitute a default
of the Developer under this Agreement or which
individually or in the aggregate may result in any Material
Adverse Effect;
(ix) 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 Agency which
may result in any material adverse effect or impairment of
the Developer's ability to perform its obligations and duties
under this Agreement;
(x) it has complied with all Applicable Laws and has not been
subject to any fines, penalties, injunctive relief or any other
Civil or criminal liabilities which in the aggregate have or
41
may have Material Adverse Effect;
(xii) subject to receipt by the Developer from Lessor of the
Termination Payment and any other amount due under any
of the provisions of this Agreement, in the manner and to
the extent provided for under the applicable provisions of
this Agreement all rights and interests of the Developer in
the Project shall pass to and vest in Lessor on the
Termination Date free and clear of all Encumbrances
without any further act or deed on the part of the Developer
or Lessor;
(xiii) no representation or warranty by the Developer contained
herein or in any other document furnished by it to Lessor or
to any Government Agency in relation to Applicable
Permits contains or will contain any untrue statement of
material fact or omits or will omit to state a material fact
necessary to make such representation or warranty not
misleading; and
(xiv) no sums, in cash or kind, have been paid or will be paid, by
or on behalf of the Developer, to any person by way of fees,
commission or otherwise for securing the Service or
entering into of this Agreement or for influencing or
attempting to influence any officer or employee of Lessor in
connection therewith.
51. Disclaimer 51.1 Without prejudice to any express provision contained in this
Agreement, the Developer acknowledges that prior to the
execution of this Agreement, the Developer has after a
complete and careful examination made an independent
evaluation of the guest volumes, Specifications and
Standards, Project Site and all the information provided by
Lessor, and has determined to the Developer's satisfaction
the nature and extent of such difficulties, risks and hazards
as are likely to arise or may be faced by the Developer in
the course of performance of its obligations hereunder.
51.2 The Developer further acknowledges and hereby accepts
the risk of inadequacy, mistake or error in or relating to any
of the matters set forth in (a) above and hereby confirms
that Lessor shall not be liable for the same in any manner
whatsoever to the Developer.
52. Representations
and warranties of
Lessor
52.1 Lessor represents that:
(i) Lessor has full power and authority to grant the Service;
42 Section VII. Sample Forms
(ii) Lessor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(iii) this Agreement constitutes its legal, valid and binding
obligation enforceable against it in accordance with the
terms hereof.
L. OTHER MISCELLANEOUS PROVISIONS
53. Assignments and
Charges
53.1 Subject to sub-articles 53.2 and 53.3 herein below, this
Agreement shall not be assigned by the Developer save and
except with prior consent in writing of Lessor, which
consent Lessor shall be entitled to decline without assigning
any reason whatsoever.
53.2 Subject to sub-article (c) herein below, the Developer shall
not create nor permit to subsist any Encumbrance over or
otherwise transfer or dispose of all or any of its rights and
benefits under this Agreement to which Developer is a party
except with prior consent in writing of Lessor, which
consent Lessor shall be entitled to decline without assigning
any reason whatsoever.
53.3 Restraint set forth in 53.1 and 53.2 above shall not apply to:
(i) liens/encumbrances arising by operation of law (or by
an agreement evidencing the same) in the ordinary
course of business
(ii) mortgages/pledges/hypothecation of goods/assets, as
security for indebtedness, in favour of the Lenders and
working capital providers for the Project;
(iii) assignment of Developer’s rights, title and interest
under this Agreement to or in favour of the Lenders
pursuant to and in accordance with the Substitution
Agreement as security for their financial assistance.
53.4 Upon occurrence of the Developer Event of Default the
Lenders shall have the right of substitution.
54. Liability and
Indemnity
54.1 General Indemnity
(i) The Developer shall indemnify, defend and hold
Lessor harmless against any and all proceedings,
actions and, third party claims arising out of a breach
by Developer of any of its obligations under this
Agreement except to the extent that any such claim
43
has arisen due to Lessor Event of Default.
(ii) Lessor will, indemnify, defend and hold harmless the
Developer against any and all proceedings, actions,
third party claims for loss, damage and expense of
whatever kind and nature arising out of defect in title
and/or the rights of Lessor and/or arising of a breach
by Lessor, its officers, servants and agents of any
obligations of Lessor under this Agreement except to
the extent that any such claim has arisen due to
Developer Event of Default.
54.2 Without limiting the generality of this Article, the
Developer shall fully indemnify, save harmless and defend
Lessor including its officers servants, agents and
subsidiaries from and against any and all loss and damages
arising out of or with respect to (a) failure of the Developer
to comply with Applicable Laws and Applicable Permits,
(b) payments of taxes relating to the Developer's
Contractors, suppliers and representatives income or other
taxes required to be paid by the Developer without
reimbursement hereunder, or (c) non payment of amounts
due as a result of materials or services furnished to the
Developer or any of its Contractors which are payable by
the Developer or any of its Contractors.
54.3 Without limiting the generality of the provisions of this
Article, the Developer shall fully indemnify, save harmless
and defend the Lessor from and against any and all damages
which the Lessor may hereafter suffer, or pay by reason of
any demands, claims, suits or proceedings arising out of
claims of infringement of any domestic or foreign patent
rights, copyrights or other intellectual property, proprietary
or confidentiality rights with respect to any materials,
information, design or process used by the Developer or by
the Developer's Contractors in performing the Developer’s
obligations or in any way incorporated in or related to the
Project. If in any such suit, claim or proceedings, a
temporary restraint order or preliminary injunction is
granted, the Developer shall make every reasonable effort,
by giving a satisfactory bond or otherwise, to secure the
suspension of the injunction or restraint order. If, in any
such suit claim or proceedings, the Project, or any part,
thereof or comprised therein is held to constitute an
infringement and its use is permanently injuncted, the
Developer shall promptly make every reasonable effort to
secure for Lessor a license, at no cost to Lessor, authorizing
44 Section VII. Sample Forms
continued use of the infringing work. If the Developer is
unable to secure such license within a reasonable time, the
Developer shall, at its own expense and without impairing
the Specifications and Standards either replace the affected
work, or part, or process thereof with non infringing work
or parts or process, or modify the same so that it becomes
non infringing.
54.4 The Developer shall fully indemnify Lessor for incidental
damages to other parts of the hotel facility or guests outside
the Project Site/ Facility occurring on account of
negligence/ accidents on the part of the Developer
54.5 In the event that either Party receives a claim from a third
party in respect of which it is entitled to the benefit of an
indemnity under this Article (the 'Indemnified Party') it
shall notify the other Party ("Indemnifying Party") within
14 (fourteen) days of receipt of the claim and shall not settle
or pay the claim without the prior approval of the
Indemnifying Party, such approval not to be unreasonably
withheld or delayed. In the event that the Indemnifying
Party wishes to contest or dispute the claim it may conduct
the proceedings in the name of the Indemnified Party
subject to the Indemnified Party being secured against any
costs involved to its reasonable satisfaction.
54.6 Defense of Claims
(i) The Indemnified Party shall have the right, but not the
obligation, to contest, defend and litigate any claim,
action, suit or proceeding by any third party alleged or
asserted against such party in respect of, resulting
from, related to or arising out of any matter for which
it is entitled to be indemnified hereunder and their
reasonable costs and expenses shall be indemnified by
the Indemnifying Party. If the Indemnifying Party
acknowledges in writing its obligation to indemnify
the person indemnified in respect of loss to the full
extent provided by this Article 21.2, the Indemnifying
Party shall be entitled, at its option, to assume and
control the defense of such claim, action. suit or
proceeding liabilities, payments and obligations at its
expense and through counsel of its choice provided it
gives prompt notice of its intention to do so to the
Indemnified Party and reimburses the Indemnified
Party for the reasonable cost and expenses incurred by
the Indemnified Party prior to the assumption by the
45
Indemnifying Party of such defense. The
Indemnifying Party shall not be entitled to settle or
compromise any claim, action, suit or proceeding
without the prior written consent of the Indemnified
Party unless the Indemnifying Party provides such
security to the Indemnified Party as shall be
reasonably required by the Indemnified Party to
secure, the loss to be indemnified hereunder to the
extent so compromised or settled.
(ii) If the Indemnifying Party has exercised its rights
under Article, the Indemnified Party shall not be
entitled to settle or compromise any claim, action,
suit or proceeding without the prior written consent
of the indemnifying Party (which consent shall not be
unreasonably withheld or delayed).
(iii) If the Indemnifying Party exercises its rights under
Article, then the Indemnified Party shall nevertheless
have the right to employ its own counsel and such
counsel may participate in such action, but the fees
and expenses of such counsel shall be at the expense
of such Indemnified Party, as and when incurred,
unless:
1) the employment of counsel by such party has
been authorized in writing by the Indemnifying
Party; or
2) the Indemnified Party shall have reasonably
concluded that there may be a conflict of interest
between the Indemnifying Party and the
Indemnified Party in the conduct of the defense
of such action; or
3) the indemnifying Party shall not in fact have
employed independent counsel reasonably
satisfactory to the Indemnified Party to assume
the defense of such action and shall have been so
notified by the Indemnified Party; or
4) the Indemnified Party shall have reasonably
concluded and specifically notified the
Indemnifying Party either
(a) That there may be specific defenses
available to it which are different from or
additional to those available to the
46 Section VII. Sample Forms
Indemnifying Party; or
(b) That such claim, action, suit or proceeding
involves or could have a material adverse
effect upon it beyond the scope of this
Agreement
provided that if sub-articles (2), (3) or (4) above shall be
applicable, counsel for the Indemnified Party shall have the
right to direct the defense of such claim, action, suit or
proceeding on behalf of the Indemnified Party and the
reasonable fees and disbursements of such counsel shall
constitute legal or other expenses hereunder.
55. Governing Law
and Jurisdiction
55.1 This Agreement shall be construed and interpreted in
accordance with and governed by the laws of India and the
Courts at Vijayawada, Andhra Pradesh, India shall have
exclusive jurisdiction over all matters arising out of or
relating to this Agreement.
56. Waiver 56.1 Waiver by either Party of any default by the other Party in
the observance and performance of any provision of or
obligations or under this Agreement:
(i) shall not operate or be construed as a waiver of any
other or subsequent default hereof or of other
provisions or obligations under this Agreement:
(ii) shall not be effective unless it is in writing and
executed by a duly authorized representative of such
Party; and
(iii) shall not affect the validity or enforceability of this
Agreement in any manner.
56.2 Neither the failure by either Party to insist on any occasion
upon the performance of the terms, conditions and
provisions of this Agreement or any obligation thereunder
nor time or other indulgence granted by a Party to the other
Party shall be treated or deemed as waiver of such breach or
acceptance of any variation or the relinquishment of any
such right hereunder.
57. Survival 57.1 Termination of this Agreement (a) shall not relieve the
Developer or Lessor of any obligations hereunder which
expressly or by implication survives Termination hereof,
and (b) except as otherwise provided in any provision of
this Agreement expressly limiting the liability of either
Party, shall not relieve either Party of any obligations or
47
liabilities for loss or damage to the other Party arising out of
or caused by acts or omissions of such Party prior to the
effectiveness of such Termination or arising out of such
Termination.
58. Amendments 58.1 This Agreement and the Schedules together constitute a
complete and exclusive statement of the terms of the
Agreement between the Parties on the subject hereof and no
amendment or modification hereto shall be valid and
effective unless agreed to by all the Parties hereto and
evidenced in writing.
59. Notices 59.1 Unless otherwise stated, notices to be given under this
Agreement including but not limited to a notice of waiver of
any term, breach of any term of this Agreement and
termination of this Agreement, shall be in writing and shall
be given by hand delivery, recognised international courier,
mail, telex or facsimile transmission and delivered or
transmitted to the Parties at their respective addresses set
forth in the SCA or such address, telex number, or facsimile
number as may be duly notified by the respective Parties
from time to time, and shall be deemed to have been made
or delivered (i) in the case of any communication made by
letter, when delivered by hand, by recognized international
courier or by mail (registered, return receipt requested) at
that address and (ii) in the case of any communication made
by telex or facsimile, when transmitted properly addressed
to such telex number or facsimile number.
60. Severability 60.1 If for any reason whatever any provision of this Agreement
is or becomes invalid, illegal or unenforceable or is declared
by any court of competent jurisdiction or any other
instrumentality to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining
provisions shall not be affected in any manner, and the
Parties will negotiate in good faith with a view to agreeing
upon one or more provisions which may be substituted for
such invalid, unenforceable or illegal provisions, as nearly
as is practicable. Provided failure to agree upon any such
provisions shall not be subject to dispute resolution under
this Agreement or otherwise.
61. Joint and several
liability (for
consortium)
61.1 Members of the Consortium Firm which is found
successful, shall be jointly and severally liable to the
Employer for execution of the project/agreement in
accordance with the Conditions of the Agreement.
48 Section VII. Sample Forms
Consortium members shall also be liable jointly and
severally for the loss, damages caused to the Employer
during the course of execution of the Agreement or due to
non-execution of the Agreement or part thereof.
62. No Partnership 62.1 Nothing contained in this Agreement shall be construed or
interpreted as constituting a partnership between the Parties.
Neither Party shall have any authority to bind the other in
any manner whatsoever.
62.2 Nothing in this Agreement, whether express or implied,
constitutes the Lessee as the agent of the Lessor in respect
of any matter or action taken, or vice-versa.
63. Language 63.1 All notices required to be given under this Agreement and
all communications, documentation and proceedings which
are in any way relevant to this Agreement shall be in
writing and in the language specified in the SCA.
64. Exclusion of
implied
warranties
64.1 This Agreement expressly excludes any warranty, condition
or other undertaking implied at law or by custom or
otherwise arising out of any other agreement between the
Parties or any representation by any Party not contained in a
binding legal agreement executed by the Parties.
49
SECTION II. SPECIAL CONDITIONS OF LEASE CUM
DEVELOPMENT AGREEMENT (SCA)
50 Section VII. Sample Forms
A. DEFINITIONS AND INTERPRETATIONS
GCA 1.1 (J) The Developer (a sole bidder/ consortium of M/s ______ and M/s
_____) is M/s ________________, a Special Purpose Company (SPC)
formed for the project mentioned below in GCA 1.1 (AF)
GCA 1.1 (V) Lease period shall commence from the date of handing over possession
of land to the Lessee and shall be valid for 396 months from such date.
GCA 1.1 (AF) Title of the project: Development of Luxury Resort at Madhurwada in
Visakhapatnam in Andhra Pradesh under Lease cum Development
Model
D. PAYMENTS, GUARANTEES & USER CHARGES
GCA 11.1 Performance Security to be submitted by the Lessee would be INR
1,88,00,000
GCA 12.1 Project Development Fee to be submitted by the Lessee would be INR
50 lacs
GCA 13.1 The annual land lease rent for the first year shall be INR
______________
[ Note: The annual land lease rent shall be the amount quoted by the
successful bidder ]
GCA 13.2 The Annual Land Lease rent shall be payable in advance from the date
of handover of land possession to the successful bidder. Every
subsequent payment shall be due within 7 days of lapse of every 3
months cycle as calculated from the date of signing of Lease cum
Development Agreement or handover of possession of land, whichever
is earlier
GCA 13.3 In case of default in making the land lease payment within 7 days of
end of 3 month cycle, interest will be payable at 24% per annum rate
for the number of days of delay calculated from 8th
day of delay. While
arriving at the amounts due to be paid at a given point of time, the
interest component will be adjusted first and the balance towards the
principal amount.
GCA 13.4 30 days
GCA 13.5 Bank Name and Branch:
Account Number:
51
Type of account:
IFSC Code:
E. OBLIGATIONS AND UNDERTAKINGS
GCA 15.1 (xvi) Operations and maintenance experience of selected O&M agency
The agency should be providing operations and maintenance for
projects of total capital cost of INR 150 cr during the last five years
GCA 16.1 The conditions precedent would be:
(i) Save and except as may otherwise be expressly provided herein,
the obligations of a Lessor and the Lessee under this Agreement
shall be subject to the satisfaction in full of the Conditions
Precedent by the Lessee. These include:
a) Achieved Financial Closure and provided notarized true copies
of the Financing Documents to the Grantor along with the
project profile
b) Fulfilment of conditions specified in the Letter of Intent (LoI)
(ii) Upon successful compliance to the Conditions Precedent specified
above, the possession of the project site/ land shall be given to the
Lessee
GCA 18.3 Financial closure should be completed within 60 days of signing of
the lease cum development agreement
GCA 18.4 Physical grounding of works should be done within 150 days of
signing of the lease cum development agreement
GCA 18.5 Commercial operations should be started within ____ months of
signing of the lease cum development agreement.
G. FORCE MAJEURE
GCA 33.1 120 days
H. EVENTS OF DEFAULT AND TERMINATION
GCA 40.1 2% (two percent) of the Performance Security for each type of default
GCA 40.2 5% (two percent) of the Performance Security for each type of default
52 Section VII. Sample Forms
GCA 42.1 (1) 60 days
GCA 42.1 (3) 60 days
GCA 45.1 6 months
J. DISPUTE RESOLUTION
GCA 49.2 Vijayawada, Andhra Pradesh or such location where High Court of
Andhra Pradesh is located
GCA 49.3 English
L. OTHER MISCELLANEOUS PROVISIONS
GCA 59.1 Lessor address for notices/ communications:
[ Note: Should include the name of the addressee, detailed address,
landmark, landline number, mobile number, fax number and email ID
]
Lessee address for notices/ communications:
[ Note: Should include the name of the addressee, detailed address,
landmark, landline number, mobile number, fax number and email ID
]
GCA 63.1 English
53
This Agreement may be executed in two counterparts, each of which when executed and
delivered shall constitute an original of this Agreement.
IN WITNESS WHEREOF THE, PARTIES HAVE EXECUTED AND DELIVERED THIS
AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.
SIGNED, SEALED AND DELIVERED
For and on behalf of DEVELOPER by:
SIGNED SEALED AND DELIVERED
For and on behalf of Lessor by
(Signature)
(Name)
(Designation)
In the presence of (Witnesses).
1)
2)