DESIGN, BUILD, FINANCE OPERATE, MAINTAIN & TRANSFER THE MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM AND ALLIED FACILITIES

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1 MARINE RESEARCH, CONSERVATION AND INFORMATION CENTRE CUM OCEANARIUM AND ALLIED FACILITIES A PART OF INTEGRATED COASTAL ZONE MANAGEMENT PROJECT FINANCED BY WORLD BANK INTERNATIONAL COMPETITIVE BIDDING DESIGN, BUILD, FINANCE OPERATE, MAINTAIN & TRANSFER THE MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM AND ALLIED FACILITIES AT SOMNATH State of Gujarat, India Additional Project Director, ICZM Project, Gujarat State Project Management Unit, Gujarat Ecology Commission, Udhyog Bhavan, Block No. 18, 1 st Floor, Gandhinagar (Gujarat) Revised Document July 2018 Page 1

2 Bidding Documents Annex A to Bidding Documents INDEX Bidder s Bid Form Bidder s Price Schedules Form of Bid Security Form of Performance Security Form of Bank Guarantee Advance Payment Form for Clarification Questions List of Eligible Countries Declaration Format for Deemed Export Benefits Information Forms Annex B to Bidding Documents Form of Contract General Conditions of Contract Appendix 1: Special Conditions of Contract Appendix 2: Technical Specifications Appendix 2A: Development Services Appendix 2B: Applicable Laws Appendix Appendix 3: Location Map and Site Details Appendix 4: Developer s Bid including the Tentative Technical Proposal, Tentative Price Proposal Appendix 5: Format of Site Lease Deed Page 2

3 INTEGRATED COASTAL ZONE MANAGEMENT PROJECT BIDDING DOCUMENTS FOR A CONTRACT TO DESIGN, BUILD, FINANCE, OPERATE, MAINTAIN & TRANSFER MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM AND ALLIED FACILITIES Page 3

4 Invitation for Bids CONTRACT TO DESIGN, BUILD, FINANCE, OPERATE, MAINTAIN &TRANSFER MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM AND ALLIED FACILITIES Page 4

5 Invitation for Bid (IFB) 1. The Invitation for Bid follows the General Procurement Notice for this project that appeared in Development Business Issue No. 774 of April 30, The Government of India has received a credit of US$ 222 million from the International Development Association towards the cost of Integrated Coastal Zone Management Project (ICZMP) and intends to apply a part of the proceeds towards payments under the contract for work detailed below. 3. Bidding will be conducted through the International Competitive Bidding Procedure as specified in the World Bank s Guidelines: Procurement of Goods, Works and Non- Consulting Services under IBRD Loans and IDA Credits & Grants by World Bank Borrowers, January 2011, Revised July 1, 2014 ( Procurement Guidelines ), and is open to all eligible bidders as defined in the Guidelines. In addition, please refer to paragraphs 1.6 and 1.7 setting forth the World Bank s policy on conflict of interest. 4. The Additional Project Director, State Project Management Unit, Gujarat Ecology Commission now invites sealed bids from eligible bidders for the Project detailed in the table below. The bidders may submit bids for the following Project as per Instructions to Bidders and the Appendix thereto. Name of the Project Design, Build, Finance, Operate, Maintain & Transfer the Marine Research, Conservation & Information Centre cum Oceanarium and allied Facilities at Somnath (Gujarat) with appropriate technology on DBFOOT Basis, including 25 years of post- commissioning operation and maintenance Bid Security INR 5 million Or US$ million Cost of Bidding Document Rs or US$ 200 Period Part A: Design, Build, Finance, Testing, and Commissioning of Marine Research, Conservation & Information Centre cum Oceanarium and allied Facilities, to be completed within 36 months from the Development Starting Date. Part B: Operation & Maintenance of Marine Research, Conservation & Information Centre cum Oceanarium and allied Facilities for a period of 25 Years from Operations Starting Date. Page 5

6 5. Qualification requirements as listed briefly below are required to be fulfilled by the bidder. [Bidders are advised to refer to the Bidding documents for complete details.] (a) The Bidder has designed, developed, built, and commissioned at least one MRCI CUM OCEANARIUM with minimum 3 million litres of enclosed water which has been operating successfully for a period of minimum 2 consecutive years during the last 10 years. (b) The Bidder has successfully operated and maintained at least one MRCI CUM OCEANARIUM with minimum 3 million litres of enclosed water for a period of minimum 2 years during the last 10 years. (c) The bidder shall demonstrate through its audited financial statements its Net Worth which should not be less than INR 750 million or USD 1.1 million as on 31/03/ Interested eligible bidders may obtain further information from and inspect the bidding documents at the office of the State Project Management Unit (SPMU), ICZM Project, Gujarat Ecology Commission, at the address given below during working days from to 1700 hours 30 th December 2017 to 31 st July A complete set of bidding documents may be purchased by interested eligible bidders upon the submission of a written application to the address below and upon payment of a nonrefundable fee of amount referred to in the Table above in the form of a Demand Draft/Banker s Cheque issued by a nationalized bank / foreign bank having its branches in India, payable to the Additional Project Director, State Project Management Unit, Gujarat Ecology Commission payable at Gandhinagar, Gujarat. A complete set of bidding documents will also be available on the SPMU Gujarat website ( w.e.f 30 th December The bidders who are interested to participate in the bidding process can download the bidding documents from the website for their use. A pre-feasibility study report of the project will be available on the SPMU Gujarat website ( w.e.f 30 th December The bidders who download the documents from the website and use the same for submission of the bids should note that if there is any discrepancy between the downloaded document and the hard copy of the document issued to the bidders, the hard copy shall be treated as final and shall prevail over the downloaded documents. The bidders who download the documents shall have to pay along with their bid submission, the non- refundable cost of Rs. 10,000/- or US $ 200 in the form of a Certified Cheque/Demand Draft issued by a nationalized bank / foreign bank listed with the Reserve Bank of India having its branches in India, payable to the Additional Project Director, State Project Management Unit, Gujarat Ecology Commission payable at Gandhinagar, Gujarat. Bid documents requested by post shall be sent through speed post / registered post on payment of an extra amount of Rs The Additional Project Director, SPMU will not be responsible for the postal delay if any, in the delivery of the documents or non-receipt of the same. Page 6

7 8. The bidders may also note that the pre-bid proceedings, and Addendum to the bidding documents, if any, will also be uploaded on the website mentioned hereinabove. 9. All bids must be accompanied by Bid Security of the amount specified in the table above, drawn in favor of Additional Project Director, State Project Management Unit, Gujarat Ecology Commission. 10. Bids must be delivered to Additional Project Director at the address given below on or before 12:00 hours on 31 st July 2018 and will be opened on the same day at 12:30 hours, in the presence of the bidders representatives who choose to attend. If the office happens to be closed on the date of receipt of the bids as specified, the bids will be received and opened on the next working day at the same time and venue. Late bids will be rejected. Add. Project Director, SPMU-ICZM Project, Gujarat Ecology Commission Udhyog Bhavan, Block No 18, 1 st Floor, Gandhinagar , Gujarat, India Phone No ; Fax No , gec_icef@rediffmail.com, Project Website: Page 7

8 INTEGRATED COASTAL ZONE MANAGEMENT PROJECT INSTRUCTION TO BIDDERS FOR A CONTRACT TO DESIGN, BUILD, FINANCE,OPERATE & TRANSFER MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM Page 8

9 TABLE OF CONTENTS INTERNATIONAL COMPETITIVE BIDDING... 1 SECTION 1: INTRODUCTION Source of Funds & Scope of work Eligible Bidders Eligible Material, Equipment, and Services Inspection and Audit Cost of Bidding SECTION 2: THE BIDDING DOCUMENTS Content of Bidding Documents Clarification of Bidding Documents Site Visit Data Room and Background Information Pre-Bid Meeting Amendment of Bidding Documents Contact with the Authority For the Purpose of Clarification Information Provided by the Authority/Bidder s Due Diligence Timetable SECTION 3: PREPARATION OF BIDS Language of Bid Documents Comprising the Bid Technical Section Part I Technical and Staffing Information Technical Section Part II Bid Security Technical Section Part III Bid Form, Qualification Information and Qualification Criteria Technical Section Part IV - Joint Venture Documents and Requirements Technical Section Part V Power of Attorney Technical Section Part VI Commissions and Gratuities Technical Section Part VII Pre-Printed Literature Financial Section Financial Offer Schedules Financial Section Financial Offer Financial Section Currencies of the Investment amounts and Grant Bidding of Alternatives not to be considered Period of Validity of Bid Format and Signing of Bid SECTION 4: SUBMISSION OF BIDS Sealing and Marking of Bids Deadline for Submission of Bids Late Bids Withdrawal, Substitution, and Modification of Bids SECTION 5: BID OPENING AND EVALUATION Opening of Bid by Authority Clarification of Bids Preliminary Examination of Bids Estimated Project Cost Technical Evaluation Evaluation for selection of Bidder for award Qualification of the Bidder Contacting the Authority SECTION 6: AWARD OF CONTRACT Award Criteria Authority s Right to Accept or Reject and Waive Irregularities Notification of Award Page 9

10 6.4 Signing the Form of Contract Performance Security Failure to Sign the Form of Contract or Provide the Performance Security Adjudicator Fraud and Corruption ANNEXURE A- PART N ARTICLE 1 - CONTRACT AND INTERPRETATION Definitions Contract Documents Interpretation Language Singular or Plural Headings Persons Incoterms Entire Agreement Amendment Number of Days Independent Developer Joint Venture Non-waiver Severability Country of Origin Survival of Obligations Notice Governing Law Settlement of Disputes Adjudicator Arbitration Obligations during Arbitration Assignment Contract Records, Accounting and Auditing Contract Records Accounting Auditing the Developer s Own Accounts and the Contract Records Developer s Audited Accounts Inspections and Audit by the Bank Developer s Claims during the Development Period ARTICLE 2 - CONTRACT TERM, TIMING AND COMPLETION General Effectiveness of Contract Expiration of Contract Commencement of Development Development Period and Operations Period Development Period Commencement, Delays and Suspension Commencement of the Development Time for Completion Development Time Schedule Extension of the Time for Completion Rate of Progress Delay of Completion Liquidated Damages - Delay Operations Period Commencement of the Operations Assistance after the End Date Extension of the Contract 126 ARTICLE- 3: OBLIGATIONS OF THE DEVELOPER General Services and Standards of Performance Page 10

11 3.2 Compliance with Laws Conflict of Interest Site Information and Investigation Access to the Site and Facility ARTICLE 4 - OBLIGATIONS OF THE AUTHORITY Authority s Assistance to the Developer Access to the Site and New Facility Reviews and Approvals of Submissions ARTICLE 5 GRANT AND DISBURSEMENT Grant Terms of Disbursement of Grant Liquidated Damages - Operations Securities Performance Security Taxes and Duties ARTICLE 6 TECHNOLOGY, PATENT, TRADE MARK,COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS Technology, Patent, Trademark, Copyright and other intellectual property rights Confidentiality ARTICLE 7 CONTRACT MONITORING DURING THE DEVELOPMENT AND OPERATIONS PERIODS Appointment of Project Monitoring Engineer Development Monitoring Monitoring during the Development Period Project Monitoring Engineer s Duties and Authority Replacement of Project Monitoring Engineer Determinations by Project monitoring Engineer Operations Monitoring Monitoring during the Operations Period 138 ARTICLE 8 REPRESENTATIVES, STAFF AND SUBCONTRACTING Representatives Authority s Representative Developer s Representative Developer s Superintendence Developer s Personnel Replacement of Developer s Personnel Subcontractors ARTICLE 9 LIABILITY AND RISK DISTRIBUTION Defect Liability Limitation of Liability Transfer of Ownership and Existing Equipment and Materials Not Applicable Care of the Site and Facility Indemnification Insurance Unforeseeable Physical Conditions Force Majeure War Risks Change in Laws and Regulations Patent Indemnity Indemnity by Developer Notice of Claim Indemnity by Authority148 ARTICLE 10-CHANGE IN CONTRACT ELEMENTS Change to the Development Change in the Grant amount Page 11

12 ARTICLE 11 SUSPENSION AND TERMINATION Suspension Suspension by the Authority Suspension by the Developer Termination Termination for Authority s Convenience Payment upon Termination by the Authority for Convenience Termination for Developer s Default Payment upon Termination for Developer s Default Termination by Developer General Provisions - Termination 157 SPECIAL CONDITIONS OF CONTRACT Clause Language Clause Joint Venture Clause Survival of Obligations Clause 1.4 Notice Clause 1.5 Governing Law Clause 1.6.1(1) - Adjudicator) Clause (4) - Adjudicator s Fee Clause (5) - Appointing Authority for New Adjudicator Clause (3) - Arbitration Clause (a) - Expiration of Contract Clause Time for Completion Clause (2) - Liquidated Damages - Delay Clause (5) Clause Clause Clause Liquidated Damages - Operations Clause (2) (a) Clause 7.2.2(4) Clause 8.1.1(1) (a) Clause Clause Clause Profit Sharing Transfer of MRCI Oceanarium and allied facilities to Authority ESHS management strategies and implementation plan Financial Close 166 DEVELOPMENT APPENDIX (DA) ARTICLE 1: GENERAL Description of Development Services ARTICLE 2-DESIGN PRINCIPLES General Design and Engineering Design Responsibilities Minimum Development Plan Final Concept and Design APPLICABLE REGULATORY LAWS APPENDIX LOCATION MAP AND SITE DETAILS SITE LEASE DEED 179 Page 12

13 INSTRUCTIONS TO BIDDERS SECTION 1: INTRODUCTION 1.1 Source of Funds & Scope of Project (a) The Borrower named in the Bid Data Sheet has received credit (as identified in the Bid Data Sheet and hereafter called loan ) from the International Development Association (IDA) (hereafter interchangeably called the Bank ) of the U.S. dollar amount indicated in the Bid Data Sheet (BDS). The loan will be used in various currencies towards the cost of the Project named in the Bid Data Sheet. The Authority intends to apply a portion of the proceeds of this loan to eligible payments under the contract named in the Bid Data Sheet for which these Bidding Documents are issued. Bidders shall note that the Borrower and the Authority named in the Bid Data Sheet may, in many projects, be the same entity. (b) Payment by the Bank will be made only at the request of the Borrower and upon approval by the Bank, in accordance with the terms and conditions of the loan agreement, and will be subject in all respects to the terms and conditions of that agreement. The loan agreement prohibits a withdrawal from the loan account for the purpose of any payment to persons or entities, or for any import of Plant and Equipment, if such payment or import, to the knowledge of the Bank, is prohibited by a decision of the United Nations Security Council taken under Chapter VII of the Charter of the United Nations. No party other than the Borrower shall derive any rights from the loan agreement or have any claim to the loan proceeds. (c ) Scope of Project: The bidder s scope under the Project ( Scope of the Project ) is to Design, Build, Finance, Operate, Maintain & Transfer the Marine Research, Conservation & Information Centre cum Oceanarium and allied Facilities (referred to as MRCI CUM OCEANARIUM ) at Somnath in the state of Gujarat in India either by itself or through its contractors and / or consultants, in accordance with Development Appendix ( Appendix 2A) The Authority named in the BDS will make available the land required for the Marine Research, Conservation & Information Centre cum Oceanarium and allied Facilities, free from all encumbrances & charges, as per the selected bidder s Final Concept & Design, subject to the site available as specified in the BDS. The Successful Bidder and the Authority shall enter into a Site Lease Deed for the Site as per format specified in Appendix Eligible Bidders This Invitation for Bids, issued by the Authority named in the Bid Data Sheet, is open to all bidders from the list of eligible countries as set out in Annexure A - Part h A Bidder may be a firm that is a private entity, a government-owned entity subject to ITB or any combination of such entities in the form of a joint venture (JV) under an existing agreement or with the intent to enter into such an agreement supported by a letter of intent. In the case of a joint venture, all members shall be jointly and severally liable for the execution of the Contract in accordance with the Contract Documents. The JV shall nominate a Representative who shall have the authority to conduct all business for and on behalf of any and all the members of the JV during the bidding process. Unless specified in the BDS, there is no limit on the number of members in a JV. Page 13

14 If the bidder who is a single entity is awarded the contract, it shall form an appropriate Special Purpose Company, incorporated under the Indian Companies Act, 2013 (the SPC ), to execute the Contract as per Annexure B and implement the Project. In the event the JV is awarded the Contract, members of the JV shall form an appropriate Special Purpose Company, incorporated under the Indian Companies Act 2013 (the SPC ). It shall, in addition to forming an SPC, comply with the following additional requirements: a) Members of the JV shall nominate one member as the lead member (the Lead Member ), who shall be responsible for all the acts and deeds of all the JV members. The Lead Member shall have an equity share of at least 26% (twenty six percent) of the paid up and subscribed equity of the SPC. The nomination(s) shall be supported by a Power of Attorney, as per the format provided under Annexure A- Part L, signed by all the other members of the JV; b) the Bid should include a brief description of the roles and responsibilities of individual members, particularly with reference to financial, technical and O&M obligations; c) Members of the JV shall enter into a binding Joint Venture Agreement, for the purpose of submitting a Bid. The Joint Venture Agreement, to be submitted along with the Bid, shall, inter alia: a. convey the intent to form an SPC with shareholding / ownership equity commitment(s) in accordance with this Bid, which (i.e. SPC) would enter into the Contract and subsequently perform all the obligations of the Developer in terms of the Contract, in case JV s Bid is accepted; b. clearly outline the proposed roles and responsibilities of each member; c. Commit the minimum equity stake to be held by each member; d. commit that each of the members, whose Net Worth will be evaluated for the purposes of this Bid, shall subscribe to 26% (twenty six per cent) or more of the paid up and subscribed equity of the SPC and shall further commit that each such member shall, for a period of 2 (two) years from the Operations Starting Date, hold equity share capital not less than (i) 26% (twenty six per cent) of the subscribed and paid up equity share capital of the SPC, and (ii) 5% (five per cent) of the Estimated Project Cost specified in the Contract, subject to the following condition being fulfilled: The JV member whose Operations & Maintenance experience has been evaluated for the purpose of compliance with the Qualification Criteria shall continue to be part of the SPC till the end of the Operations Period unless the SPC appoints, after obtaining the Authority s approval, an O&M contractor who complies with the technical qualification criteria set out in ITB Section (a) (2). e. include a statement to the effect that all members of the JV shall be liable jointly and severally for all obligations of the Developer in relation to the Project until the Development Completion Date as per the terms and conditions of the Contract A Bidder shall not have a conflict of interest. Any Bidder found to have a conflict of Page 14

15 interest shall be disqualified. A Bidder may be considered to have a conflict of interest for the purpose of this bidding process, if the Bidder: (a) (b) (c) (d) (e) (f) (g) (h) (i) directly or indirectly controls, is controlled by or is under common control with another Bidder; or receives or has received any direct or indirect subsidy from another Bidder; or has the same legal representative as another Bidder; or has a relationship with another Bidder, directly or through common third parties, that puts it in a position to influence the bid of another Bidder, or influence the decisions of the Authority regarding this bidding process; or participates in more than one bid in this bidding process. Participation by a Bidder in more than one Bid will result in the disqualification of all Bids in which such Bidder is involved. However, this does not limit the inclusion of the same contractor / subcontractor in more than one bid; or any of its affiliates participated as a consultant in the preparation of the design or technical specifications of the Project works that are the subject of the bid; or any of its affiliates has been hired (or is proposed to be hired) by the Authority as Project Monitoring Engineer for the Contract implementation; or would be providing goods, works, or non-consulting services resulting from or directly related to consulting services for the preparation or implementation of the Project specified in the BDS ITB 1.1 (a) that it provided or were provided by any affiliate that directly or indirectly controls, is controlled by, or is under common control with that firm; or has a close business or family relationship with a professional staff of the Borrower (or of the project implementing agency, or of a recipient of a part of the loan) who: (i) are directly or indirectly involved in the preparation of the bidding documents or specifications of the contract, and/or the bid evaluation process of such contract; or (ii) would be involved in the implementation or supervision of such contract unless the conflict stemming from such relationship has been resolved in a manner acceptable to the Bank throughout the procurement process and execution of the contract A Bidder may have the nationality of any country, subject to the restrictions pursuant to ITB A Bidder shall be deemed to have the nationality of a country if the Bidder is constituted, incorporated or registered in and operates in conformity with the provisions of the laws of that country, as evidenced by its articles of incorporation (or equivalent documents of constitution or association) and its registration documents, as the case may be. This criterion also shall apply to the determination of the nationality of proposed contractors or consultants for any part of the activities covered in the Contract.. Page 15

16 1.2.5 A Bidder that has been sanctioned by the World Bank in accordance with the ITB 6.8, including in accordance with the World Bank s Guidelines on Preventing and Combating Corruption in Projects Financed by IBRD Loans and IDA Credits and Grants ( Anti- Corruption Guidelines ), shall be ineligible to be prequalified for, bid for, or be awarded a World Bank- financed contract or benefit from a World Bank financed contract, financially or otherwise, during such period of time as the World Bank shall have determined. The list of debarred firms and individuals is available as specified in the BDS Bidders that are Government-owned enterprises or institutions in the Authority s Country may participate only if they can establish that they (i) are legally and financially autonomous (ii) operate under commercial law, and (iii) are not dependent agencies of the Authority. To be eligible, a government-owned enterprise or institution shall establish to the World Bank s satisfaction, through all relevant documents, including its Charter and other information the World Bank may request, that it: (i) is a legal entity separate from the government (ii) does not currently receive substantial subsidies or budget support; (iii) operates like any commercial enterprise, and, inter alia, is not obliged to pass on its surplus to the government, can acquire rights and liabilities, borrow funds and be liable for repayment of its debts, and can be declared bankrupt; and (iv) is not bidding for a contract to be awarded by the department or agency of the government which under their applicable laws or regulations is the reporting or supervisory authority of the enterprise or has the ability to exercise influence or control over the enterprise or institution A Bidder shall not be under suspension from bidding by the Authority as the result of the operation of a Bid Securing Declaration Firms and individuals may be ineligible if so indicated in Annexure A Part h and (a) as a matter of law or official regulations, the Authority s country prohibits commercial relations with that country, provided that the World Bank is satisfied that such exclusion does not preclude effective competition for the supply of goods or the contracting of works or services required; or (b) by an act of compliance with a decision of the United Nations Security Council taken under Chapter VII of the Charter of the United Nations, the Authority s country prohibits any import of goods or contracting of works or services from that country, or any payments to any country, person, or entity in that country A Bidder shall provide such evidence of eligibility satisfactory to the Authority, as the Authority shall reasonably request. 1.3 Eligible Material, Equipment, and Services The materials, equipment and services to be supplied under the Contract and financed by the Bank may have their origin in any country subject to the restrictions specified in Annexure A Part h, and all expenditures under the Contract will not contravene such restrictions. At the Authority s request, Bidders may be required to provide evidence of the origin of materials, equipment and services. 1.4 Inspection and Audit The Bank requires compliance with its policy in regard to corrupt and fraudulent practices as set forth in Section 6.8. In further pursuance of this policy, Bidders shall permit and shall cause its agents (whether declared or not), sub-contractors, sub-consultants, service providers, or suppliers and any personnel thereof, to permit the Bank to inspect all accounts, records and other document Page 16

17 relating to any prequalification process, bid submission, and contract performance (in the case of award), and to have them audited by auditors appointed by the Bank. 1.5 Cost of Bidding The Bidder shall bear all costs associated with the preparation and submission of its bid, and the Authority will in no case be responsible for these costs, regardless of the conduct or outcome of the bidding process. Page 17

18 SECTION 2: THE BIDDING DOCUMENTS 2.1. Content of Bidding Documents (1) The nature of thesite and Minimum Development Plan for the MRCI CUM OCEANARIUM and allied Facilities that are to be Designed, Built, Financed, Operated, Maintained & Transferred by the Successful Bidder, the procedures that are to be followed during the bidding process and the contract terms are prescribed in the Bidding Documents. The Bidding Documents consist of: (a) the Instructions to Bidders (ITB); (b) the Bid Data Sheet; (c) Annex A to the Bidding Documents Forms i. Bidder s Bid Form; ii. iii. iv. Bidder s Price Schedules; Form of Bid Security; Form of Performance Security; v. Form of Bank Guarantee Advance Payment; vi. vii. viii. Information Forms ix. Form for Clarification Questions; List of Eligible Countries Declaration Format for Deemed Export Benefits Form of Letter of Intent by JV Partners to enter into JV Agreement x. Form of Power of Attorney for Joint Venture xi. xii. Form of Undertaking by the Joint Venture Partners Format for Evidence of Access to or Availability of Credit Facilities (d) Annex B to the Bidding Documents the Contract Documentsconsisting of: i. Form of Contract; ii. General Conditions of the Contract; and iii. Appendices to the General Conditions, including A. Special Conditions of Contract B. Technical Specifications, comprising (i) Development Appendix Appendix 2A, (ii) Applicable Laws -Appendix 2B Location Map and Site Details Appendix 3 Page 18

19 Developers Bid including Technical Proposal and Financial Proposal- Appendix 4 Format of Site Lease Deed Appendix 5 (e) Addenda to the documents listed in ITB Section 2.1(a) to (d), if any are issued by the Authority. The Invitation for Bids issued by the Authority is not part of the Bidding Documents. (2) The documents listed in ITB Section 2.1 (1) (a), (b), (c), (d) and (e) are collectively the Bidding Documents. (3) Each Bidder shall examine all instructions, terms and conditions, forms, specifications and other information contained in the Bidding Documents. If the Bidder fails to provide all documentation and information required by the Bidding Documents; or submits a Bid which is not substantially responsive to the terms and conditions of the Bidding Documents, such action is at the Bidder s risk and the Authority may determine that the Bid is non-responsive to the Bidding Documents and may reject it. 2.2 Clarification of Bidding Documents (1) A prospective Bidder requiring any clarification of the Bidding Documents may notify the Authority in writing by mail, courier, fax or hand delivery at the Authority s mailing address indicated in the Bid Data Sheet. Similarly, if a Bidder feels that any important provision in the Bidding Documents, such as those listed in ITB Section 3.3, will be unacceptable, such an issue must be raised during the clarification stage. (2) All such queries and requests for clarification shall be submitted using the Form for Clarification Questions contained in Annex A Part g to the Bidding Documents. (3) The Authority will respond in writing to any request for clarification or modification of the Bidding Documents that it receives on the Form for Clarification Questions no later than the date set out in the timetable in the Bid Data Sheet. Written copies of the Authority s response, including an explanation of the query but not identification of its source, (the Response to Questions Document ) will be sent to all prospective Bidders that have received the Bidding Documents. If similar or repeated queries are made by Bidders, the Authority may list those queries as one query & respond to such query only once. 2.3 Site Visit (1) Each Bidder is advised to visit and inspect the site of the proposed MRCI CUM OCEANARIUM (the Site Visit ) and its surroundings and obtain for itself on its own responsibility all information that may be necessary for preparing the Bid and entering into the Contract. The Authority will schedule a time on or after the date set out in the timetable specified in the Bid Data Sheet and develop a procedure for Bidders to conduct a Site Visit. The costs of visiting the site shall be at the Bidder s own expense. (2) Each Bidder and any of its personnel or agents will be granted permission by the Authority to enter upon its premises and lands for the purpose of such a Site Visit, but only upon the express condition that the Bidder, its personnel and agents will release and indemnify the Authority, and their personnel and agents from and against all liability in respect thereof and will be responsible for death or personal injury, loss of or damage to property and any other loss, damage, costs and expenses incurred as a result of the Site Visit. Page 19

20 2.4 Data Room and Background Information Unless otherwise stated in the Bid Data Sheet, Authority will establish a data room (the Data Room ) in the Gujarat Ecology Commission [GEC] with a collection of relevant data to be accessible to Bidders or their representatives from the date set out in the timetable specified in the Bid Data Sheet until the deadline for submission of Bids (the Submission Deadline ), in accordance with a schedule established by the Authority. A pre-feasibility study report of the project will be available on the SPMU Gujarat website ( w.e.f 30th December Pre-Bid Meeting Each prospective Bidder is invited to attend a Pre-Bid Meeting, which will take place at the venue and time stipulated in the Bid Data Sheet. While attendance at the pre-bid meeting is not mandatory, Bidders are strongly encouraged to attend. The purpose of the pre-bid meeting is to provide a technical presentation and to clarify issues and answer questions on any matter that may be raised at the meeting. Each prospective Bidder is requested, as far as possible, to submit any question in writing to reach the Authority not later than one week before the pre-bid meeting. It may not be practicable at the meeting to answer questions received late, but questions and responses will be transmitted as indicated hereafter. Minutes of the pre-bid meeting will be transmitted without delay to all prospective Bidders that have been issued Bidding Documents. All responses to questions raised at the pre-bid meeting will be included in the Response to Questions Document. The proceedings of the pre-bid meeting, reply to the queries and Addendum if any, will also be uploaded on website specified in Bid Data Sheet. 2.6 Amendment of Bidding Documents (1) At any time prior to the Submission Deadline, the Authority may, for any reason, whether at its own initiative, or in response to a clarification requested by a prospective Bidder, amend the Bidding Documents by addendum. No other communications of any kind whatsoever, including, without limitation, the minutes of the pre-bid meeting or the Response to Questions Document, shall modify the Bidding Documents. (2) Addenda, if any, will be sent in writing by air mail, courier or facsimile to all prospective Bidders and will be binding on them. Bidders shall immediately acknowledge receipt to the Authority of any such amendment, and it will be assumed that the information contained therein has been taken into account by the Bidder in its Bid. Such Addenda will also be uploaded on the website specified in Bid Data Sheet. (3) In order to afford prospective Bidders reasonable time in which to take the amendment into account in preparing their Bids, the Authority may, at its discretion, extend the Submission Deadline, in which case, the Authority will notify all prospective Bidders in writing of the extended deadline. 2.7 Contact with the Authority For the Purpose of Clarification The prospective Bidders and Bidders shall contact only the persons named at the addresses in the Bid Data Sheet for the purpose of requesting information and clarification or for any other purpose relating to the bidding process. The prospective Bidders and Bidders shall not contact any other person of the Authority during the bidding process. From the time of Bid opening to the time of Contract award, if any Bidder wishes to contact the Authority on any matter related to the bidding process, it may do so in writing. Page 20

21 2.8 Information Provided by the Authority/Bidder s Due Diligence (1) Each Bidder is solely responsible for conducting its own independent research, due diligence, and any other work or investigations and for seeking any other independent advice necessary for the preparation of Bids, negotiation of agreements, and the subsequent performance of Contract by the Bidder that has been successful in the bidding process (the Successful Bidder ). The bidder will at its own cost and responsibility, undertake market survey to assess the potential for revenue generation after the MRCI CUM OCEANARIUM and allied Facilities is commissioned and opened to the public. (2) No representation or warranty, express or implied, is made and no responsibility of any kind is accepted by the Authority or its advisors, employees, consultants or agents, for the completeness or accuracy of any information contained in the Bidding Documents or the Response to Questions Document, or provided during the bidding process or during the term of the Contract. The Authority and its advisors, employees, consultants and agents shall not be liable to any person or entity as a result of the use of any information contained in the Bidding Documents or the Response to Questions Document, or provided during the bidding process or during the term of the Contract. (3) Bidders shall not rely on any oral statements made by the Authority or its advisors, employees, consultants or agents. (4) All Bidders shall, prior to submitting their Bid, review all requirements with respect to corporate registration and all other requirements that apply to companies that wish to conduct business in the Authority s country. The Bidders are solely responsible for all matters relating to their legal capacity to operate in the jurisdiction to which this bidding process applies. 2.9 Timetable (1) The estimated timetable, from the issuance of the Bidding Documents to identification by the Authority of the Successful Bidder and the execution of the Contract, is set out in the Bid Data Sheet. (2) The Authority may, in its sole discretion and without prior notice to the Bidders, amend the estimated timetable specified in the Bid Data Sheet. Bidders shall not rely in any way whatsoever on the estimated timetable specified in the Bid Data Sheet and the Authority shall not incur any liability whatsoever arising out of amendments to the estimated timetable. The Authority shall give notice of timetable changes, if any, by addenda. Page 21

22 SECTION 3: PREPARATION OF BIDS 3.1 Language of Bid The Bid prepared by the Bidder, all correspondence and documents related to the Bid exchanged by the Bidder and the Authority and the bidding process shall be written in the language specified in the Bid Data Sheet, provided that any printed literature furnished by the Bidder may be written in another language, as long as such literature is accompanied by a translation of its pertinent passages in the language specified in the Bid Data Sheet, in which case, for purposes of interpretation of the Bid, the translation shall govern. 3.2 Documents Comprising the Bid (1) Each Bidder shall submit only one Bid which shall consist of, (a) One Technical Section which contains the following parts in the following order: i. Part I the information required by ITB Section 3.3; ii. Part II the Bid Security required by ITB Section 3.4; iii. iv. Part III the Bid Form required by ITB Section 3.5(1), and the information required by ITB Section 3.5(2); Part IV where applicable, the joint venture documents required by ITB Section 3.6; v. Part V the power of attorney required by ITB Section 3.7; vi. Part VI the declaration of commissions and gratuities required by ITB Section 3.8; vii. Part VII Optional, separately bound pre-printed literature as per ITB Section 3.9; and (b) One Financial Section which shall consist of the Financial Offer Schedules completed in accordance with ITB Section (2) Each Bidder shall also submit an initialled Draft Contract, in accordance with ITB Section 3.15 (2) (c), in the same envelope as its Technical Section. 3.3 Technical Section Part I Technical and Staffing Information The bidder, while making his technical proposal shall consider the following aspects. The Authority shall make available land area for setting up the MRCI CUM OCEANARIUM and allied Facilities limited to a maximum of 40,000 square metres. The bidders will be free to offer the design of the MRCI CUM OCEANARIUM within the available land/site. Part-I of the Technical Section of the Bid shall consist of the following sub-parts in the following order: Page 22

23 (a) An Executive Summary of the Technical Section; (b) An Initial Concept Plan ( Initial Concept Plan ) which will accommodate all the components of Minimum Development Plan specified in Appendix 2A including a tentative program timetable setting out the manner in which the Bidder proposes to Develop the MRCI cum Oceanarium and allied Facilities specified The Initial Concept Plan shall be divided into the following sections: (i) A section entitled Tentative Design Philosophy & Project Concepts, which shall contain tentative conceptual drawings, area statements and descriptive details sufficiently detailed to communicate the Bidder s design intent for all aspects of the proposed MRCI CUM OCEANARIUM and allied Facilities including the Minimum Development Plan.. (ii) The tentative conceptual drawings, area statements and details that shall include the following: A. a tentative site plan showing the location of the MRCI CUM OCEANARIUM premises, allied facilities, vehicular and non-vehicular circulation, outdoor facilities, landscaping and limits to the bidder s development activities; along with the land required for the total planned area for the MRCI CUM OCEANARIUM and allied Facilities; B. Tentative layout plan, floor plans and area statement of exhibit areas as needed indicating each of the individual facilities listed in Initial Concept Plan including proposed area/volume of each facility. It shall be noted that in situation where there is discrepancy between drawing and area statement, the area statement shall be considered as final proposal by the bidder. C. Tentative drawings and statement of volume for each of the water area (enclosed or open indicating the types of enclosure). D. Conceptual systems description for sea-water abstraction, water supply, waste water treatment, disposal and solid waste management such to promote the Project Facilities with no waste to be disposed into the sea without adequate treatment. E. The bidder s proposed approach and methodology for Developing the Project Facilities; F. a detailed narrative in support of the conceptual drawings setting out the Bidder s plan for accommodating the components in Minimum Development Plan ; G. tentative schedule setting out the proposed sequence of activities to be undertaken, including estimated start date, finish date and time allocations for individual activities on Development, proposed resources to be allocated and the identification of all major milestones, (c) A section entitled Tentative Project Marketing and Business Model which shall include Page 23

24 the following: (i) A vision of the MRCI CUM OCEANARIUM describing the long, medium and short term vision for the Project. (ii) A description of the salient features of the MRCI CUM OCEANARIUM to attract tourists, researchers and scholars. (iii) A Tentative Projected Business Plan consisting of but not limited to: Business Overview & Potential Potential Partnerships, Alliances, Business tie-ups etc. Target Market Strategy Organisation structure and staffing Confirmation that requirements of the Authority for uninterrupted access of its officials to Site and Project Facilities as specified in the BDS is fulfilled. (d) Deleted (e) A section entitled Tentative Implementation Plan which shall include the following: (i) A detailed overall program and schedule setting out the proposed sequence of activities to be undertaken, including estimated start date, finish date subject to conditions, if any, stipulated in the BDS, and time allocations for individual activities in Development, proposed resources to be allocated and the identification of all major milestones, for the commissioning of individual components of the MRCI CUM OCEANARIUM and allied Facilities. (f) A Tentative Operations & Maintenance Plan (the Operations & Maintenance Plan ) setting out the manner in which the Bidder proposes to carry out the Operations & Maintenance of the MRCI CUM OCEANARIUM and allied Facilities as set out in the Contract Documents (the Operations ) The Operations & Maintenance Plan shall be divided into the following sections: (i) a section entitled Operations Start-up which provides an outline contents and overview of the Bidder s proposed plans and programs for operational start-up of the MRCI CUM OCEANARIUM and allied Facilities; and (ii) a section entitled Operation & Maintenance Plan which provides an outline contents and overview of the Bidder s proposed plans and programs for Operations & Maintenance of the MRCI CUM OCEANARIUM and allied Facilities; (g) A tentative description of the Bidder s plans and methodologies to ensure that the requirements of the applicable Environmental Management Plan for the proposed MRCI CUM OCEANARIUM and allied Facilities at Site will be implemented and monitored; in addition, the Bidder shall submit Code of Conduct, as described in BDS, to ensure compliance with its Environmental, Social, Health and Safety (ESHS) obligations under the Contract. A detailed note, outlining its proposed methodology and program of Development including implementation of the Environmental Management Plan and Safety Page 24

25 Assurance under this Contract, shall be provided. (h) A Tentative Staffing Plan (the Staffing Plan ) setting out the Bidder s proposed staffing arrangements for carrying out the Development and Operations. The Staffing Plan shall be divided into the following sections: (i) two sub-sections, (one for the Development and other for the Operations) each entitled the Staffing Chart and each consisting of a chart setting out a tentative list of all Developer s Personnel positions, the role of each position, the duration of existence of the position, and the choice of location of the staff person filling the position during the periods of assignment to carry out the Development and Operations; and A tentative list of all nominated contractors and consultants and a detailed description of the activities to be carried out or the supplies to be provided by the nominated contractors and consultants. The Bidder shall provide the name and nationality of all nominated contractors and consultants. 3.4 Technical Section Part II Bid Security (1) In Part II of the Technical Section of its Bid, the Bidder shall furnish, as part of its Bid, a Bid security in the amount and currency stipulated in the Bid Data Sheet. The bid security of a Joint Venture must define as bidder all Joint Venture Partners and list them in the following manner: a Joint Venture consisting of...,... and.... (2) The Bid Security shall, at the Bidder s option, be in the form of a certified cheque, but only if the certified cheque shows a validity date, letter of credit or a bank guarantee from a reputable bank or insurance company selected by the Bidder and located in any eligible country. If the institution issuing the security is located outside the country of the Authority, it shall have a correspondent financial institution located in the country of the Authority to make it enforceable. The format of any bank guarantee provided by a Bidder shall be in accordance with the form of Bid Security contained in Annex A to the Bidding Documents. The Bidder shall ensure that the Bid Security remains valid for a period of 45 days after the end of the original Bid Validity Period, as defined in ITB Section 3.14(1), and 45 days after any extension subsequently requested by the Authority in accordance with ITB Section 3.14(2). (3) Any Bid not accompanied by an acceptable Bid Security shall be rejected by the Authority as being non-responsive. The Bid Security of a joint venture must be in the name of all of the participants in the joint venture submitting the Bid. (4) The Authority will return the Bid Securities of the unsuccessful Bidders as promptly as possible, but not later than 45 days after the expiration of the Bid Validity Period. (5) The Bid Security of the Successful Bidder will be returned when the Bidder has signed the Form of Contract pursuant to ITB Section 6.4 and has provided the required performance security and if required in the BDS, the Environmental, Social, Health and Safety (ESHS) Performance Security in accordance with ITB Section 6.5. (6) The Bid Security may, in the discretion of the Authority, be forfeited, Page 25

26 (a) if the Bidder withdraws its Bid during the Bid Validity Period; or (b) in the case of the Successful Bidder, if the Successful Bidder fails within the specified time limit, (i) to execute the Form of Contract in accordance with ITB Section 6.4; or (ii) to furnish the performance security to the Authority and if required in the BDS, the Environmental, Social, Health and Safety (ESHS) Performance Security in accordance with ITB Section Technical Section Part III Bid Form, Qualification Information and Qualification Criteria Bid Form (a) In Part III of the Technical Section of its Bid, each Bidder shall provide a completed Bid Form in the same form and substance as the Bid Form contained in Annex A to the Bidding Documents. (b) In Part III of the Technical Section of its Bid, Bidders shall submit Information Forms duly completed to evidence compliance with the Qualification Criteria provided in the following paragraphs. The Information Forms are provided in the Annex A - Part j to the Bidding Documents Qualification Criteria General Evaluation of the Bidders qualifications will be based on compliance with all the following minimum pass-fail criteria. Additional requirements for joint ventures are given in Sections and Bidders may submit the Bid either as, 1. a stand-alone firm, company, legal entity formed as per the applicable law; or 2. a joint venture with a limit on the number of partners, if so specified in the BDS (ITB) 1.2.2; provided that they meet the requirements of the Bidding Documents. For the purpose of assessing qualification criteria, the qualifications and experience of nominated contractor may be included to the extent set out in Section Subcontracting a. Bidders will be evaluated based on the qualifications of, 1. the Bidder; and 2. nominated sub-contractors and or sub-consultants in case of a Bidder participating as a single entity, with respect to the design, development, built and commissioning experience and Operation & Maintenance experience requirements set out respectively in Sections (a) (1) and (a) (2), and only if the sub-contractors and sub- consultants are nominated for the purpose of this bid. Page 26

27 b. The Bidder shall provide a tentative list of all nominated contractors and consultants and a record of their experience and qualifications in the applicable Information Forms. c. Bidders will not be permitted to change the contractors and consultants nominated in their Bid for the purpose of compliance with the qualification criteria Developer s s Responsibility After award of the Contract, the subcontracting of any part of the work, except for those sub-contractors and sub consultants nominated in the Bid, shall require to be intimated to the Authority in writing. Notwithstanding such consent, the Developershall remain responsible for the acts, defaults, and neglects of all sub-contractors and sub consultants during Contract implementation Qualification Criteria - Technical Capabilities (Experience in Construction, Operation and Maintenance of MRCI CUM OCEANARIUM) For the purpose of determining a bidder s compliance with the qualification criteria specified in this Section, MRCI CUM OCEANARIUM means either a large marine mammal park or large scale aquarium presenting an ocean habitat with marine animals, especially large ocean dwellers and which shall include facilities like acrylic tunnel with moving walkways along with various ancillary facilities like touch pools, marine mammal stadia, etc. For the purpose of this Section, following will not be covered under the definition of MRCI CUM OCEANARIUM: A static aquarium; Oceanarium not having integrated Research Facilities. (a) The Bidder shall provide evidence that (1) It has designed, developed, built, and commissioned at least one MRCI CUM OCEANARIUM with minimum 3 million litres of enclosed water which has been operating successfully for a period of minimum 2 consecutive years during the last 10 years and is functioning satisfactorily as on the date of bid submission. (2) The bidder has successfully operated and maintained at least one MRCI CUM OCEANARIUM with minimum 3 million litres of enclosed water for a period of minimum 2 years during the last 10 years. Design experience specified in Section (a) (1) and Operation & Maintenance experience required as per Section (a) (2) can be met by the bidder s nominated sub-contractor. However, in case development, built and commissioning experience specified in section (a) (1) cannot be met by the Bidder on its own, it may be met by the Bidder s nominated sub-contractor, subject to the condition that the Page 27

28 Bidder shall submit confirmation with the Bid that the detailed contract signed between Bidder and its nominated sub-contractor shall be submitted within 45 days of issue of Notification of Award by the Authority Qualification Criteria Financial Capabilities Deleted a. The Bidder shall demonstrate that it has minimum net worth of INR 750 Million in each of the last three financial years preceding the date of submission of bid. The bidder shall demonstrate through its audited financial statements its Net Worth which should not be less than 750 million or USD 1.1million as on 31/03/2018 b. The Bidder shall provide confirmation with the Bid that in the event of its Bid being accepted, the Special Purpose Company constituted by it in accordance with ITB shall achieve Financial Close in compliance with SCC 26 c. The Bidder s audited balance sheets or other financial statements acceptable to the Authority, for the last three years shall be submitted to demonstrate the soundness of the Bidder s current financial position. If deemed necessary by the Authority, the Authority shall have the authority to make inquiries with the Bidder s bankers Qualification Criteria Litigation History and Legal Matters The Bidder shall provide accurate information on the Historical Contract Non- Performance Form about contract non-performance and pending litigation with respect to contracts completed or ongoing under its execution over the last five years. Bidder should establish to the Authority satisfaction that non-performance of a contract did not occur as a result of bidder s default. Non-performance, as decided by the Employer, shall include all contracts where (a) nonperformance was not challenged by the bidder, including through referral to the dispute resolution mechanism under the respective contract, and (b) contracts that were so challenged but fully settled against the bidder. Non-performance shall not include contracts where Employer s decision was overruled by the dispute resolution mechanism. Nonperformance must be based on all information on fully settled disputes or litigation, i.e. dispute or litigation that has been resolved in accordance with the dispute resolution mechanism under the respective contract and where all appeal instances available to the Bidder have been exhausted. The Bidder shall provide accurate information in the Bidder s Bid Form about any litigation or arbitration resulting from contracts completed or ongoing under its execution over the last five years. A consistent history of court/arbitral awards against the Bidder or any Partner of a joint venture may result in rejection of the Bid The Bidder shall provide information on any civil work contracts that have been suspended or terminated and/or performance security called by an Employer for reasons related to the non-compliance of any environmental, or social, or health or safety requirements or safeguards in the last five years preceding the deadline for submission of bids Qualification Criteria for Joint Venture a. One of the Joint Venture partners shall satisfy the criteria specified in Section (a) (1) with a proviso that the design, development, built and commissioning experience specified in the said Section may be met by any other JV Partner or a nominated Page 28

29 contractor. At least one of the remaining partners of the JV shall have experience of building and commissioning an MRCI CUM OCEANARIUM during the last 10 years. b. One of the Joint Venture partners or a nominated contractor shall satisfy the criteria specified in Section (a) (2). c. For the purpose of satisfying the qualification criteria set out in Sections 3.5.4, and 3.5.7, qualifications/experience of the Joint Venture Partners shall be considered as under: (i) (ii) Net worth requirement as stated in Sections (a) for all partners taken together; Financial soundness as set out in Section (c) in respect of each partner of the JV; (iii) (iv) legal disclosure as stated in Section for each partner of the JV. Declaration for non-compliance of any environmental, or social, or health or safety requirements or safeguards as stated in Section for each partner of the JV. d. Each partner of a joint venture Bidder shall provide the information to evidence compliance with the criteria set out in Section (a) to (c) Joint Venture (a) Lead Partner One of the joint venture Partners who is responsible for performing a key function in executing a major component of the proposed Contract shall be nominated the Lead Partner and will be in charge during the bidding process and, in the event of a successful bid all the joint venture partners shall form a SPC as per ITB Section 1.2.2, for Contract execution. The Lead Partner shall be authorized to incur liabilities and receive instructions for and on behalf of any and all partners of the joint venture. This authorization shall be evidenced by the submission of a power of attorney signed by legally authorized signatories of each of the joint venture Partners in favour of the Lead Partner as per proforma enclosed in Annexure A - Part L, as part of the Bid. 1 The Authority may use this information to seek further information or clarifications in carrying out its due diligence Page 29

30 (b) All Partners All partners of the joint venture shall be liable jointly and severally for the execution of the Contract in accordance with the Contract terms and a copy of the undertaking as per format provided under Annexure A - Part M signed by the joint venture partners shall be submitted with the bid. 3.6 Technical Section Part IV - Joint Venture Documents and Requirements (1) Each Joint Venture Bidder shall submit, as Part IV of the Technical Section of its Bid, a written commitment, in the form of a letter duly executed by an authorized officer of each joint venture participant, which, (a) confirms each joint venture participant s commitment to the joint venture and acceptance of the joint venture arrangements described in the Bid in accordance with ITB Section & 3.6(2); (b) confirms each joint venture participant s willingness to form a SPC and to provide a joint and several guarantee to the Authorityto underwrite the performance of the joint venture in respect of the Contract; and (c) identifies which joint venture participant, a. will assume the leading role on behalf of the other joint venture participants; and b. will have the authority to commit all joint venture participants. (2) A copy of the Joint Venture Agreement entered into by the Partners (JV Participants) shall be submitted with the bid. Alternatively, a Letter of Intent as per format provided under Annexure A - Part K to form a SPC in the event of a successful bid shall be signed by all partners and submitted with the bid together with a copy of the proposed Agreement, clearly indicating the objectives of the joint venture, the proposed management structure, the contribution of each participant to the joint venture operations, the commitment of the participants to joint and several liability for performance of the contract, recourse or sanctions within the joint venture in the event of default or withdrawal of any participant, and arrangements for providing the required indemnities. (3) If the Successful Bidder is a Joint Venture to whom the contract is awarded, all partners of the Joint Venture shall form a SPC as per ITB section and SPC shall sign and execute the contract with the Authorityand shall be jointly and severally responsible to Authorityfor the performance of the contract, 3.7 Technical Section Part V Power of Attorney Each Bidder shall provide, as Part V of the Technical Section of its Bid, a written power of attorney in accordance with ITB Section 3.15(3). 3.8 Technical Section Part VI Commissions and Gratuities In Part VI of the Technical Section of its Bid, each Bidder shall provide detailed information listing all commissions and gratuities, if any, paid or to be paid by the Bidder to agents relating to this Bid Page 30

31 or the Contract if the Bidder is awarded the Contract. The Bidder shall list the name and address of any agents, the amount and currency paid or to be paid to the agents and the purpose of the commission or gratuity. If no such commissions and gratuities have been paid, the Bidder shall provide this information in Part VI of the Technical Section of its Bid. 3.9 Technical Section Part VII Pre-Printed Literature If the Bidder wishes to provide pre-printed literature about the Bidder or the joint venture participants, that pre-printed literature shall be contained in Part VII of the Technical Section of the Bid only and shall be separately bound Financial Section Financial Offer Schedules Each Bidder shall submit completed and properly executed Financial Offer in the forms contained in Annex A Part b to the Bidding Documents. Bidders shall complete the Financial Offer in full and shall not amend or change the form in any way. The Financial Section of each Bidder s Bid shall consist of only completed and properly executed Financial Offer The Financial Offer shall consist of the different parts in the following order: (A) (B) A Tentative Investment Plan proposal which shall include the following: Statement of the total amount proposed to be invested by the Bidder in the MRCI CUM OCEANARIUM and allied Facilities. The investment shall include the amount of Grant which will be made available by the Authority during Development Period, as specified in the BDS. The bidder shall indicate how his share of the investment is proposed to be phased over the Development Period. The Investment Plan should clearly show how the total amount of (a) investment proposed to be made from the Bidder s own funds and (b) Grant provided by the Authority will be used. For this purpose, the Bidder should present statement of estimated cost of the MRCI CUM OCEANARIUM and allied Facilities - detailing costs of all assets and species of marine life, so as to account for the total amount of investment including Grant. Financing Plan The Bidder shall submit a Tentative Financing Plan clearly stating the amount of debt, equity, subordinated debt, and Grant envisaged for financing the entire Project. The Financial Plan must also contain the source of equity and the plan envisaged for mobilising debt / subordinated debt in concurrence with the Investment Plan. (C) Lease rent: The proposal shall include a confirmation that the bidder (if selected as Developer) shall, apart from sharing the profit as stipulated in section (D), pay annual lease rent for the lease period of 25 years effective from the commencement of operation of the Project, for the land to be provided by the Authority for building the MRCI CUM OCEANARIUM and allied Facilities. The lease rent for the first year of operation shall be fixed at the level indicated in the BDS which shall be escalated for the subsequent years of operation in the manner specified in the BDS. Page 31

32 (D) Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis Profit Sharing Proposal The proposal shall include a confirmation that the bidder (if selected as Developer) shall share Profit before Tax - from the operation of the MRCI CUM OCEANARIUM and allied Facilities - with the Authority each year, following completion of five years of operation, during the remaining Operations Period, which shall be determined in the manner specified in the BDS. The Bidder shall also confirm that in the event of contract being awarded to it, if loss is incurred by it in any year of the operation, it shall not pass on such loss to the Authority either directly or through set off against profits in the subsequent year(s) or any other dues payable to the Authority If the proposal submitted by a Bidder does not comply with section , the bid will be deemed to be non-responsive and shall be rejected Financial Section Financial Offer (1) Bidders shall submit their Tentative investment proposal for the MRCI CUM OCEANARIUM and allied Facilities on a single responsibility basis such that the total Financial Offer covers all of the Developer s obligations mentioned in or to be reasonably inferred from the Bidding Documents in respect of the Design, Build, Finance,Operate, Maintain & Transfer the MRCI CUM OCEANARIUM and allied Facilities as set out in the Contract. This includes all requirements under the Developer s responsibilities for developing the MRCI CUM OCEANARIUM and allied Facilities including the acquisition of all permits, approvals and licences, the design, building, acquisition of animals, marketing and managing and maintenance, and such other activities as specified in the Bidding Documents, all in accordance with the requirements of the General Conditions of Contract and the Appendices thereto. Financial Offer shall take into account Goods and Services Tax (and other taxes, duties, levies or charges, if any) of the Authority s country which shall be borne by the Developer. The Project being a edutainment institution for the purposes of scientific research, conservation, dissemination of scientific knowledge on the animals and their ecosystem, the Authority may, subject to its powers, recommend the Project for exemption from levy of GST and other local taxes and levies. Note: Bidders may like to ascertain custom duty exemption benefits available in India to the Contracts with Grant provided by Authority / World Bank, as the case may be.. They are solely responsible for obtaining such benefits which they have considered in their Bid and in case of failure to receive such benefits for reasons whatsoever, the Authority will not compensate the Bidder (Developer). The Bidder shall furnish along with his bid a declaration to this effect in the Declaration Format provided in Annex A to the bidding documents. Where the Bidder has quoted taking into account such benefits, he must give all information required for issue of certificates as per form stipulated in Annex A to the Bidding Documents. In case the Bidder has not provided the required information or has indicated to be furnished later on in the Declaration Format, the same shall be construed that the goods/equipment for which certificate is required is Nil. To the extent the Authority determines the quantities indicated therein are reasonable keeping in view the work schedule, construction programme and methodology, the certificates will be Page 32

33 issued and no subsequent changes will be permitted. The certificate will be issued by the Authority within 60 days of signing of the Form of Contract. If the Bidder has considered the customs/ duty exemption for materials/goods/ equipment, etc., to be bought for the Development, the Bidder shall confirm and certify that the Authority will not be required to undertake any responsibilities of the Government of India Scheme or the said exemptions being available during the contract execution, except issuing the required certificate. Bids which do not conform to the above provisions or any condition by the Bidder which makes the bid subject to availability of customs/ duty exemption for materials/goods/ equipment, etc., or compensation on withdrawal of any variations to the said exemptions will be treated as non-responsive. Any delay in procurement of the equipment /machinery/goods, etc., as a result of the above shall not be entertained as a reason for granting any extension of time Financial Section Currencies of the Investment amounts and Grant (a) Bidder shall indicate the amount proposed to be invested from its own resources in local and foreign currencies as under: (i) For those inputs to the Development of the MRCI CUM OCEANARIUM and allied Facilities that the Bidder expects to supply from within the Authority s country in Indian Rupees; and (ii) For those inputs to the Development of the MRCI CUM OCEANARIUM and allied Facilities that the Bidder expects to supply from outside the Authority s country. (b) Bidder shall note that the Grant amount shall be disbursed by the Authority to the Successful Bidder Developer as per schedule given in SCC section. i. Part of the Grant amount will be disbursed as Advance on signing of Form of Contract either in a mix of currencies or in INR at the selected Bidder s option; and ii. Balance Grant amount will be paid only in local currency (INR). For this purpose, the Bidder shall indicate in the Financial Offer whether it opts for receipt of part of Grant amount as Advance, in a mix of currencies (in the same proportion as quoted in its Financial Offer), or entirely in INR Bidding of Alternatives not to be considered (1) The Bidders shall base their Bids on the terms and conditions of the Bidding Documents and, without limiting the generality of the foregoing, shall, (a) Submit their bids based on the terms and conditions in the Bidding Documents; (b) submit their Bids based on the assumption that the final Contract will be the same as the Draft Contract and shall not base their Bids on the premise that they may be able to change the Draft Contract; and (c) Include in their Bids a Form of Contract and Contract Documents initialled on each page in accordance with ITB Section 3.15(2) (c). (2) No Bidder shall submit a Bid that contains statements that are inconsistent with the Bidding Documents. Page 33

34 (3) A Bidder shall not submit a Bid that proposes an arrangement between the Authority and the Bidder which, in the discretion of the Authority, is different than the arrangement set out in the Bidding Documents (an Alternative Bid ). The Authority intends to enter into a Contract to Design, Build, Finance, Operate, Maintain & Transfer an MRCI CUM OCEANARIUM and allied Facilities based on the terms and conditions of the Bidding Documents. If a Bidder submits an Alternative Bid it will be returned to the Bidder and will not be considered, in any way, by the Authority Period of Validity of Bid (1) Bids shall remain valid for the period named in the Bid Data Sheet after the Submission Deadline or any extension thereof prescribed by the Authority for the receipt of Bids, pursuant to ITB Section 3.14(2) (the Bid Validity Period ). A Bid valid for a shorter period shall be rejected by the Authority as being non-responsive. (2) In exceptional circumstances, the Authority may solicit the Bidders consent to an extension of the Bid Validity Period. The request and responses thereto shall be made in writing and sent by air mail, courier or fax. If a Bidder accepts to prolong the Bid Validity Period, the Bid Security shall also be suitably extended. A Bidder may refuse the request without forfeiting its Bid Security. A Bidder granting the request will not be required nor permitted to modify its Bid, except as provided in ITB Section Format and Signing of Bid (1) Each Bidder shall prepare and submit one signed and initialed original of its Bid and the number of copies of the Bid as set out in the Bid Data Sheet, clearly marking one each as Original Bid, Copy No. 1, or Copy No. 2, etc. as appropriate. In the event of any discrepancy between the copies and the original, the original shall govern. (2) The original and all copies of the Bid, each consisting of the documents listed in ITB Section 3.2, shall be typed or written in indelible ink. The person or persons duly authorized to bind the Bidder to the Bid and Contract shall sign the Bid by, (a) signing the original of the Bid Form; (b) initialling all of the pages of the original of the Bid, except for un-amended printed literature; and (c) initialling the Form of Contract and initialling all pages of the Contract Documents. (3) The authority of the person or persons signing the Bid to bind the Bidder shall be demonstrated by a written and duly notarized power of attorney included in the Bid and submitted as Part V of the Technical Section of the Bid and which shall bind the Bidder for the full length of the Bid Validity Period. (4) The Bid shall contain no alterations, omissions or additions, unless such corrections are initialled by the person or persons signing the Bid. Page 34

35 Section 4: SUBMISSION OF BIDS 4.1 Sealing and Marking of Bids (1) Each Bidder shall seal the original and each copy of the Bid in separate envelopes, duly marking the envelopes as Original Bid and Copy No. [number]. The envelopes shall then be sealed in an outer envelope. (2) The inner and outer envelopes shall, (a) be addressed to the Authorityat the address specified in the Bid Data Sheet; and (b) bear the Contract name indicated in the Bid Data Sheet and the statement DO NOT OPEN BEFORE 30 th June Hrs, with the date and time specified in the Bid Data Sheet pursuant to ITB Section 5.1. (3) The inner envelopes shall indicate the name and address of the Bidder so that the Bid can be returned unopened in the event that it is declared late. (4) If the outer envelope or package is not sealed and marked as required by this ITB Section 4.1, the Authority will assume no responsibility for the Bid s misplacement or premature opening. If any of the outer envelope or package discloses the Bidder s identity, the Authority will not guarantee the anonymity of the Bid but this disclosure shall not constitute grounds for Bid rejection. 4.2 Deadline for Submission of Bids (1) Bids must be received by the Authority at the address specified in the Bid Data Sheet no later than the time and date stated in the Bid Data Sheet as the Submission Deadline. (2) The Authority may, at its discretion, extend the Submission Deadline by amending the Bidding Documents in accordance with ITB Sections 2.6 and 2.9(2), in which case all rights and obligations of Authority and Bidders will thereafter be subject to the Submission Deadline as extended. (3) Each Bidder shall deliver its Bid by hand or by courier. A Bidder shall not submit a Bid by facsimile or electronic means. Each Bidder shall be responsible for the timely delivery of its Bid to the address set out in the Bid Data Sheet irrespective of any delivery or local difficulties. 4.3 Late Bids Any Bid received by the Authority after the Submission Deadline prescribed by the Authority, pursuant to ITB Section 4.2, will be rejected and returned unopened to the Bidder. 4.4 Withdrawal, Substitution, and Modification of Bids (1) A Bidder may withdraw, substitute, or modify its bid after it has been submitted by sending a written notice, duly signed by an authorized representative, and shall include a copy of the authorization in accordance with ITB Sections 3.15 (2) and 3.15 (3), (except that withdrawal notices do not require copies). The corresponding substitution or modification of the bid must accompany the respective written notice. All notices must be prepared and submitted in Page 35

36 accordance with ITB Sections 3.15 and 4.1 (except that withdrawal notices do not require copies) and in addition, the respective envelopes shall be clearly marked Withdrawal, Substitution, Modification. Such notices shall be received by the Authority prior to the deadline for submission of bids in accordance with ITB Section 4.2. (2) Bids requested to be withdrawn in accordance with ITB Section 4.4 (1) shall be returned unopened to the Bidders. (3) No Bid may be modified, substituted or withdrawn in the interval between the deadline for submission and the expiration of the Bid Validity Period. Withdrawal of a Bid during this interval may result in the Bidder s forfeiture of its Bid Security, pursuant to ITB Section3.4(6). Page 36

37 Section 5: BID OPENING AND EVALUATION 5.1 Opening of Bid by Authority (1) The Authority shall conduct the bid opening in public at the address, date and time specified in the BDS. (2) First, envelopes marked WITHDRAWAL shall be opened and read out and the envelope with the corresponding bid shall not be opened, but returned to the Bidder. If the withdrawal envelope does not contain a copy of the power of attorney confirming the signature as a person duly authorized to sign on behalf of the Bidder, the corresponding bid will be opened. No bid withdrawal shall be permitted unless the corresponding withdrawal notice contains a valid authorization to request the withdrawal and is read out at bid opening. Next, envelopes marked SUBSTITUTION shall be opened and read out and exchanged with the corresponding Bid being substituted, and the substituted Bid shall not be opened, but returned to the Bidder. No Bid substitution shall be permitted unless the corresponding substitution notice contains a valid authorization to request the substitution and is read out at bid opening. Envelopes marked MODIFICATION shall be opened and read out with the corresponding Bid. No Bid modification shall be permitted unless the corresponding modification notice contains a valid authorization to request the modification and is read out at Bid opening. Only envelopes that are opened and read out at Bid opening shall be considered further. (3) All other envelopes shall be opened one at a time, reading out: the name of the Bidder and whether there is a modification; enclosed volume of water of the Oceanarium proposed in the Bid, amounts proposed to be invested from Bidder s own resources and the Authority s Grant; the presence of a Bid Security; and any other details as the Authority may consider appropriate. Only the details of enclosed volume of water and the proposed investments read out at Bid opening shall be considered for evaluation. No Bid shall be rejected at Bid opening except for late bids, in accordance with ITB section 4.3. (4) The Authority shall prepare a record of the Bid opening that shall include, as a minimum: the name of the Bidder and whether there is a withdrawal, substitution, or modification; enclosed volume of water of the MRCI cum Oceanarium and allied Facilities proposed in the Bid, amounts proposed to be invested from Bidder s own resources and the Authority Grant; and the presence or absence of a Bid Security. The Bidders representatives who are present shall be requested to sign the attendance sheet. A copy of the record shall be distributed to all Bidders who submitted bids in time. 5.2 Clarification of Bids During 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 permitted. 5.3 Preliminary Examination of Bids (1) The Authority will examine each Bid to determine whether it is complete, whether any computational errors have been made, whether required bid security has been furnished, whether the documents have been properly signed, and whether the Bid is generally in order. Page 37

38 (2) Total amounts of investment proposed, and the Grant provided by the Authority shall be taken as final and no arithmetical corrections be applied to these figures, in case of any discrepancy because of the computational errors in the statement of estimated costs of MRCI CUM OCEANARIUM and allied Facilities presented with the bid in terms of ITB (A). (3) The Authority may waive any minor informality, nonconformity or irregularity in a Bid that does not constitute a material deviation, and that does not prejudice or affect the relative ranking of any Bidder as a result of the technical and price evaluation pursuant to ITB Sections 5.5 and 5.6. (4) 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 material deviations, objections, conditionality or reservations. A material deviation, objection, conditionality or reservation is one, (a) that affects in any substantial way the scope, quality or performance of the Contract; (b) that limits in any substantial way, inconsistent with the Bidding documents, the Authority rights or the Successful Bidder s obligations under the Contract; or (c) whose rectification would unfairly affect the competitive position of other Bidders who are presenting substantially responsive Bids. (5) 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 determination of a Bid s responsiveness is to be based on the contents of the Bid itself without recourse to extrinsic evidence. 5.4 Estimated Project Cost The draft Contract included in the Bidding Document stipulates Advance Payment of Grant the selected Bidder as a percentage of the Estimated Project Cost. For this purpose, the Authority will determine the Estimated Project Cost of each substantially responsive bid as under: Estimated Project Cost = Investment proposed in the Bid from the Bidder s own resources + Grant amount to be provided by the Authority (INR 520 million). Advance Payment of Grant will be made to the selected Bidder (Developer) either in a mix of currencies in the same proportion as quoted in its Financial Offer, or entirely in INR according to its option expressed in the Financial Offer in accordance with ITB If the Selected Bidder opts to receive Advance Payment of Grant entirely in INR, then the Estimated Project Cost in INR will be determined by converting the amounts in various currencies at the selling exchange rate based on the source and date of the exchange rate specified in the Bid Data Sheet. Page 38

39 5.5 Technical Evaluation (1) The Authority will carry out a detailed evaluation of the Technical Sections previously determined to be substantially responsive in order to determine on a pass/fail basis whether the technical aspects are in accordance with the requirements set forth in the Bidding Documents. Bidders acknowledge that, in order to reach such a determination, the Authority will examine and analyse the technical aspects of each Bid on the basis of the information supplied by Bidders, taking into account the completeness, consistency and level of detail of the relevant part of the Bid. (2) The Authority will evaluate a number of mandatory criteria on a pass-fail basis (each such item will be referred to as a Pass-Fail Technical Criterion, and collectively referred to as the Pass- Fail Technical Criteria ). (3) The Pass-Fail criteria for each of the components are as follows: i. T 1 : Tentative Design Philosophy & Project Concept- see ITB Section 3.3(b) ii. iii. iv. T 2 : Tentative Project Marketing & Business Model- see ITB Section 3.3(c) T 3 : Tentative Implementation Plan (Development Phase) - see ITB Section 3.3 (e) T 4 : Tentative Operations & Maintenance Plan - see ITB Section 3.3(f) v. T 5 : Tentative Staffing Plan - see ITB Section 3.3(h) Points for the above mentioned criteria are allocated as under: SN Criteria Maximum Points 1 T 1 : Tentative Design Philosophy & Project Concept 2 T 2 : Tentative Project Marketing & Business Model 3 T 3 : Tentative Implementation Plan (Development Period) 4 T 4 : Tentative Operations & Maintenance 20 Plan 5 T 5 : Tentative Staffing Plan 15 A Bidder will be determined qualified in Technical Evaluation, if it scores minimum 60% points in each of the five criteria listed above. The Authority will also determine Total Score (in five criteria) achieved by a Technically Qualified Bid which will be referred to in further evaluation only in a situation described in ITB Section (4) Bids determined technically qualified will be eligible for further evaluation in accordance with ITB Section Total 100 Page 39

40 5.6 Evaluation for selection of Bidder for award All Bids which qualify in Technical Evaluation will be compared with each other to select the bidder which has offered to build MRCI CUM OCEANARIUM and allied Facilities with the largest volume of enclosed water. Such Bid will be determined as the Most Advantageous Bid. All other technically qualified bids will be ranked in the descending order of the enclosed volume of water offered for Development of the MRCI CUM OCEANARIUM In the event two or more technically qualified bids have offered to build the MRCI CUM OCEANARIUM and allied Facilities with equal volumes of enclosed water, such Bids will be ranked in the order of the total scores achieved during evaluation of the Technical Sections. It is clarified that the Bid which has received higher score in Technical Evaluation will rank higher than another Bid with a lower score in Technical Evaluation, if both Bids have offered equal volumes of enclosed water. 5.7 Qualification of the Bidder (i) (ii) The Authority shall determine to its satisfaction whether the Bid that is selected as the Most Advantageous Bid and is substantially responsive meets the Qualification Criteria specified in ITB Sections to The determination shall be based upon an examination of the documentary evidence of the Bidder s qualifications submitted by the Bidder, pursuant to ITB Section (b). An affirmative determination shall be a prerequisite for award of the Contract to the Bidder. A negative determination shall result in disqualification of the bid, in which event the Authority shall proceed to the bid which is the second Most Advantageous Bid to make a similar determination of that Bidder s qualifications to perform satisfactorily. 5.8 Contacting the Authority (i) From the time of bid opening to the time of Contract award, if any Bidder wishes to contact the Authority, it must do so in writing. (ii) Any effort by a Bidder to influence the Authority, its advisors, employees, consultants or agents, in the Authority s Bid evaluation, Bid comparison, or Contract award decision may, in the discretion of the Authority, result in rejection of the Bidder s Bid. Page 40

41 SECTION 6: AWARD OF CONTRACT 6.1 Award Criteria Subject to ITB Section 6.2, the Authority will award the Contract to the Bidder whose Bid has been determined technically to be substantially responsive, has received a pass in the technical evaluation, and whose bid has been selected as the Most Advantageous provided further that the bidder is determined to be qualified to perform the Contract satisfactorily. 6.2 Authority Right to Accept or Reject and Waive Irregularities (1) The Authority reserves the right to, (a) accept any Bid; (b) reject any Bid; (c) annul the bidding process and reject all Bids; (d) annul the bidding process and commence a new process; and (e) waive irregularities, minor informalities, or minor non-conformities which do not constitute material deviations in the submitted Bids from the Bidding Documents, at any time prior to the award of the Contract without incurring any liability to the affected Bidder or Bidders and without any obligation to inform the affected Bidder or Bidders of the grounds for the Authority s actions. (2) Nothing in ITB Section 6.2(1) is intended to permit the Authorityto refuse to provide reasons for rejection to an unsuccessful Bidder. 6.3 Notification of Award Prior to the expiration of the Bid Validity Period, the Authorityshall notify the Successful Bidder in writing by courier that its Bid has been accepted by the Authority (the Notification of Award ). The effectiveness of the Contract shall be as of the date of the Authority s signing of the Form of Contract. 6.4 Signing the Form of Contract (1) At the same time as the Authority sends the Successful Bidder the Notification of Award, the Authority shall send the Successful Bidder, (a) Form of Contract; and (b) other Contract Documents. (2) Not later than 60 days after the Successful Bidder s receipt of the Notification Award, the Form of Contract and other Contract Documents pursuant to ITB Sections 6.3 and 6.4(1), the Successful Bidder shall sign and date the Form of Contract and initial each page of the Form of Contract and return them to the Authority. Page 41

42 The successful Bidder shall form the SPC and provide within forty five (45) days of receipt of the Letter of Acceptance from the Authority a certified copy of its constituent documents and evidence of its shareholding structure including the articles of association and shareholder agreement (if any). 6.5 Performance Security No later than 90 days after signing of the Form of Contract by the Authority, the Successful Bidder shall provide the Authority with the performance security and, if required in the BDS, the Environmental, Social, Health and Safety (ESHS) Performance Security, in accordance with the conditions of Contract, using for that purpose the Performance Security and ESHS Performance Security Forms set out in Annex A or in another form approved by the Authority. The Performance Security of a Joint Venture shall be in the name of Joint Venture. 6.6 Failure to Sign the Form of Contract or Provide the Performance Security If the Successful Bidder fails to comply with the provisions of ITB Section 6.5, this failure shall constitute sufficient grounds for annulment of the award and forfeiture of the Bid Security, and in which event the Authority may make the award to the Bidder who has been determined the second Most Advantageous Bid or call for new bids. 6.7 Adjudicator The Authority and Developer will appoint the Adjudicator in mutual consultation before signing of Form of Contract. If, on the day the Form of Contract is signed, the Authority and the Developer have not agreed on the appointment of the Adjudicator, the Adjudicator shall be appointed, at the request of either party, by the Appointing Authority specified in the Special Conditions of Contract. 6.8 Fraud and Corruption It is the WoBank s policy to require that Borrowers (including beneficiaries of Bank loans), bidders, suppliers, contractors and their agents (whether declared or not), sub-contractors, subconsultants, service providers or suppliers, and any personnel thereof, observe the highest standard of ethics during the procurement and execution of Bank-financed contracts.2 In pursuance of this policy, the Bank: (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, directly or indirectly, of anything of value to influence improperly the actions of another party; 3 ; 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; In this context, any action to influence the procurement process or contract execution for undue advantage is improper. For the purpose of this sub-paragraph, another party refers to a public official acting in relation to the procurement process or contract execution. In this context, public official includes World Bank staff and employees of other organizations taking or reviewing procurement decisions. Page 42

43 iii. iv. collusive practice is an arrangement between two or more parties designed to achieve an improper purpose, including to influence improperly the actions of another party; 5 coercive practice is impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of the party to influence improperly the actions of a party; 6 v. "obstructive practice" is (aa) deliberately destroying, falsifying, altering, or concealing of evidence material to the investigation or making false statements to investigators in order to materially impede a Bank 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 (bb) acts intended to materially impede the exercise of the Bank s inspection and audit rights provided for under paragraph 6.8 (e) below. (b) will reject a proposal for award if it determines that the bidder recommended for award, or any of its personnel, or its agents, or its sub-consultants, sub-contractors, service providers, suppliers and/or their employees, has, directly or indirectly, engaged in corrupt, fraudulent, collusive, coercive, or obstructive practices in competing for the contract in question; (c) will declare misprocurement and cancel the portion of the loan allocated to a contract if it determines at any time that representatives of the Borrower or of a recipient of any part of the proceeds of the loan engaged in corrupt, fraudulent, collusive, coercive, or obstructive practices during the procurement or the implementation of the contract in question, without the Borrower having taken timely and appropriate action satisfactory to the Bank to address such practices when they occur, including by failing to inform the Bank in a timely manner at the time they knew of the practices; (d) will sanction a firm or individual, at any time, in accordance with the prevailing Bank s sanctions procedures,7 including by publicly declaring such firm or individual ineligible, 3 For the purpose of this sub-paragraph, party refers to a public official; the terms benefit and obligation relate to the procurement process or contract execution; and the act or omission is intended to influence the procurement process or contract execution. 4 For the purpose of this sub-paragraph, parties refers to participants in the procurement process (including public officials) attempting either themselves, or through another person or entity not participating in the procurement or selection process, to simulate competition or to establish bid prices at artificial, non-competitive levels, or are privy to each other s bid prices or other conditions. 5 For the purpose of this sub-paragraph, party refers to a participant in the procurement process or contract execution 6 A firm or individual may be declared ineligible to be awarded a Bank financed contract upon: (i) completion of the Bank s sanctions proceedings as per its sanctions procedures, including, inter alia, cross-debarment as agreed with other International Financial Institutions, including Multilateral Development Banks, and through the application the World Bank Group corporate administrative procurement sanctions procedures for fraud and corruption; and (ii) as a result of temporary suspension or early temporary suspension in connection with an ongoing sanctions proceeding. See footnote 14 and paragraph 8 of Appendix 1 of these Guidelines. Page 43

44 either indefinitely or for a stated period of time: (i) to be awarded a Bank-financed contract; and (ii) to be a nominated8; sub-contractor, consultant, manufacturer or supplier, or service provider of an otherwise eligible firm being awarded a Bank-financed contract; will require that a clause be included in bidding documents and in contracts financed by a Bank loan, requiring bidders, suppliers and contractors, and their sub-contractors, agents, personnel, consultants, service providers, or suppliers, to permit the Bank to inspect all accounts, records, and other documents relating to the submission of bids and contract performance, and to have them audited by auditors appointed. 7 A nominated sub-contractor, consultant, manufacturer or supplier, or service provider (different names are used depending on the particular bidding document) is one which has either been: (i) included by the bidder in its pre-qualification application or bid because it brings specific and critical experience and know-how that allow the bidder to meet the qualification requirements for the particular bid; or (ii) appointed by the Borrower. Page 44

45 Bid Data Sheet The following bid-specific data for the MRCI cum Oceanarium and allied Facilities shall amend or supplement the provisions in the Instructions to Bidders (ITB). Whenever there is a conflict, the provisions herein shall prevail over those in the ITB. ITB SECTION REFERENCE ITB 1.1(a) ITB 1.1(a) ITB 1.1(a) ITB 1.1(d) REQUIRED INFORMATION Name of the Borrower: Government of India and SPMU Gujarat Credit number:4765-in Credit amount: US$ 222 million Name of the Project: Integrated Coastal Zone Management Project Name of the Contract: Design, Build, Finance, Operate, Maintain & Transfer the MRCI CUM OCEANARIUM and allied Facilities at Somnath in Gujarat on DBFOOT basis including 25 years post Development Operation & Maintenance in sustainable mode. Name of Authority: Gujarat Ecology Commission Block No. 18, 1st Floor, Udhyog Bhavan Gandhinagar (Gujarat) ITB The number of partners of a JV shall not exceed 3. ITB The electronic address of firms and individuals debarred by the World Bank is: ITB 2.2(1) ITB 2.4 ITB 2.5, 2.6 (2) Address of Authority: Gujarat Ecology Commission, 1 st Floor, Udhyog Bhavan, Gandhinagar, Gujarat, India Data Room: Data Room is the office of the Gujarat Ecology Commission, Udhyog Bhavan, Block No. 18, 1st Floor, Udhyog Bhavan, Gandhinagar (Gujarat) Venue and time of pre-bid meeting: Date/Time : 25:01:2018 at 3.00PM Venue: Conference Room Additional Project Director, Gujarat State Project Management Unit, Gujarat Ecology Commission, Block No. 18, 1 st Floor, Udhyog Bhavan, Gandhinagar, Gujarat Proceedings of the pre-bid meeting, replies to the queries, and Addenda to bidding documents, if any, will be uploaded on the SPMU s website ( ITB 2.7 Contact person: Additional Project Director Gujarat Ecology Commission, Udhyog Bhavan, Block No. 18, 1st Floor, Gandhinagar (Gujarat) Telephone: (079) / Fax: (079) Page 45

46 ITB SECTION REFERENCE ITB 2.9(1), 2.2(3), 2.3(1), 2.4(1), 2.9(2) REQUIRED INFORMATION The estimated timetable is: (a) Issue of Bidding Documents: [From to ] (b) Site Visits [From to ] (c) Pre-Bid Meeting [ ] (d) Last Day for Bidders to Submit Questions on Bidding [.] Documents (e) Last Day for Bidders to Submit Supplementary Questions[. ] (arising out of Site Visits only) (f) Issue of Response to Questions [.] (g) Deleted (h) Deadline for Submission of Bids [ ] (Submission Deadline) 12:00:noon local [Gandhinagar] (i) Opening of Bids [ ] 12:30:p.m. local [Gandhinagar] (j) Identification of Successful Bidder To be intimated later (k Notification of Award To be intimated later (l) Last Date for Contract Signature To be intimated later (m) Development Period Starting Date (n) Development Period Completion Date ITB 3.1 Language of Bid is [English]. Page 46

47 ITB SECTION REQUIRED INFORMATION REFERENCE ITB 3.3(b)(ii)(B) Design, Build, Finance, Operate, Maintain & Transfer MRCI CUM OCEANARIUM and allied Facilities at Somnath on DBFOOT basis including 25 years post Development Operation & Maintenance on sustainable mode with appropriate technology. Authority will make available land measuring 40,000 square metres for the proposed MRCI CUM OCEANARIUM and allied Facilities. ITB 3.3 (c) ITB 3.3 (g) The Developer shall provide free access to the MRCI facility during the entire Operations Period to the Authority s s Authorties s officials and researchers as may be certified by the Authority or his representative from time to time ( not exceeding 25 nos in a day) and the Authority will send request letter to Developer at least one day prior to the visit of officials. Code of Conduct (ESHS) The Bidder shall submit Code of Conduct that will apply to its employees and subcontractors, to ensure compliance with its Environmental, Social, Health and Safety (ESHS) obligations under the Contract. The code must contain and address the issues related to 1. Compliance with applicable laws, rules, and regulations of the jurisdiction 2. Compliance with applicable health and safety requirements (including wearing prescribed personal protective equipment, preventing avoidable accidents and a duty to report conditions or practices that pose a safety hazard or threaten the environment) 3. The use of illegal substances 4. Non-Discrimination (for example on the basis of family status, ethnicity, race, gender, religion, language, marital status, birth, age, disability, or political conviction) 5. Interactions with community members (for example to convey an attitude of respect and non-discrimination) 6. Sexual harassment (for example to prohibit use of language or behavior, in particular towards women or children, that is inappropriate, harassing, abusive, sexually provocative, demeaning or culturally inappropriate) 7. Violence or exploitation (for example the prohibition of the exchange of money, employment, goods, or services for sex, including sexual favors or other forms of humiliating, degrading or exploitative behavior) 8. Protection of children (including prohibitions against abuse, defilement, or otherwise unacceptable behavior with children, limiting interactions with children, and ensuring their safety in project areas) 9. Sanitation requirements (for example, to ensure workers use specified sanitary facilities provided by the Developer and not open areas) Page 47

48 ITB SECTION REFERENCE REQUIRED INFORMATION 10. Avoidance of conflicts of interest (such that benefits, contracts, or employment, or any sort of preferential treatment or favors, are not provided to any person with whom there is a financial, family, or personal connection) 11. Respecting reasonable work instructions (including regarding environmental and social norms) 12. Protection and proper use of property (for example, to prohibit theft, carelessness or waste) 13. Duty to report violations of this Code 14. Non retaliation against workers who report violations of the Code, if that report is made in good faith. In addition, the Bidder shall detail how this Code of Conduct will be implemented. This will include: how it will be introduced into conditions of employment/engagement, what training will be provided, how it will be monitored and how the Developer proposes to deal with any breaches. The Developer shall be required to implement the agreed Code of Conduct upon Contract award. Management Strategies and Implementation Plans (MSIP) to manage the (ESHS) risks The Bidder shall submit Management Strategies and Implementation Plans (MSIP) to manage the following key Environmental, Social, Health and Safety (ESHS) risks. Traffic & Human Health safety Plan; Environment Management Plan; Social Management Plan; Plan for various statutory clearances. The Developer shall be required to submit along with Final Concept & Design and subsequently implement, the Developer s Environment and Social Management Plan, in accordance with the Special Conditions of Contract as per Clause 25 that includes the agreed Management Strategies and Implementation Plans described here. Page 48

49 ITB SECTION REFERENCE ITB 3.3(h)(ii)(B) ITB 3.3 (j) ITB SECTION REFERENCE ITB 3.4(1) ITB (A) ITB (B) ITB (C) ITB 3.14(1) ITB 3.15(1), 4.1(1) and 4.4(2)(a) ITB 4.1(2)(a), 4.2(1), 4.2(3), 4.4(3)(b) ITB 4.4(3)(c) 4.1(2)(b), ITB 4.1(2)(b), 4.2(1), 5.1(1)(b) REQUIRED INFORMATION Language capabilities for Bidder s Personnel; [English] Maximum percentage of sub-contracting is 50%. However the nominated sub-contractor whose experience and qualification have been claimed for meeting the qualification criteria in accordance with stipulations in ITB Section 3.5 shall be excluded while applying the ceiling of 50%. In case the said ceiling exceeds, the Developer shall submit justification for the same for consideration of the Authority. REQUIRED INFORMATION Amount of Bid Security: INR 5 million or US $ million The Authority shall provide Grant of INR 520 (five hundred and twenty) million to the successful bidder for Development of the MRCI cum Oceanarium and allied Facilities which shall be disbursed as per schedule stipulated in Para 15 of the SCC. Annual lease charges for the first year of Operation payable to the Authority for the land provided for building the MRCI CUM OCEANARIUM and allied Facilities shall be INR 100,000 (Rupees One Lakh only). The lease rent shall be escalated in subsequent years of Operation, at a compound rate of 5% per annum, and the total lease amount for the year shall be payable at the end of each year. The Developer shall share with the Authority a proportion of the Profit (before Tax) from the operation of the MRCI CUM OCEANARIUM and allied Facilities; the said proportion shall be determined as under: Share of Profit before Tax to be paid to the Authority = Profit (before Tax) from the operation of the MRCI CUM OCEANARIUM and allied Facilities x Grant provided by the Authority Total Project investment actually made by the Developer for Development of the MRCI CUM OCEANARIUM and allied Facilities [using its own funds/resources] Figures of Total Project Investment (actuals) shall be determined and verified by the Authority in accordance with the procedure specified in paragraph 23 of SCC Section. Bid Validity Period: 180 days Original and 3 copies. Address of Bid submission: Additional Project Director, Gujarat State Project Management Unit, Gujarat Ecology Commission, Block No. 18, 1 st Floor, Udhyog Bhavan, Gandhinagar, Gujarat Date : 31 st July-2018 Time: Hrs. Name of Contract: Design, Build, Finance, Operate, Maintain & Transfer MRCI CUM OCEANARIUM and allied Facilities at Somnath on DBFOOT basis including 25 years post Development Operation & Maintenance Location, date and time of opening of Bid: Gujarat State Project Management Unit, Gujarat Ecology Commission, Block No. 18, 1 st Floor, Udhyog Bhavan, Gandhinagar, Gujarat Date:31 st July-2018 Time: 12:30 Hrs. Page 49

50 ITB 5.4 ITB 6.5 Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis Following shall be considered for conversion of Investment amounts quoted in foreign currency into INR. (i) Date of exchange rate: Last day of submission of bid (Submission Deadline). (ii) BC selling exchange rate as declared by State Bank of India, Main Branch Ahmedabad / Gandhinagar. If it is a Bank holiday on the said date, the previous working day s rate shall be considered. The successful Bidder shall be required to submit an Environmental, Social, Health and Safety (ESHS) Performance Security. ITB 6.5 ITB 6.7 Amount of Performance Security for Contract Performance: 4% of the Estimated Project Cost. Amount of ESHS Performance Security: 1% of the Estimated Project Cost. For this purpose, Estimated Project Cost = Quoted Investment amount + Grant amount to be provided by the Authority. Name of the Adjudicator and hourly fee will be decided on mutual consultation with Developer after signing of Contract Page 50

51 Annex A to the Bidding Documents (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) Bidder s Bid Form Bidder s Financial Offer Schedules Form of Bid Security Form of Performance Security and ESHS Performance Security Form of Bank Guarantee Advance Payment of Grant Deleted Form for Clarification Questions List of Eligible Countries Declaration Format for Deemed Export Benefits Information Forms Form of Letter of Intent by JV Partners Form of Power of Attorney for Joint Venture Form of undertaking by JV Partners Deleted Page 51

52 Annexure A Part a [NAME OF PROJECT] Date: Loan/Credit No: Contract No: BIDDER S BID FORM [Name of Contract] To: [Name and address of Authority] Gentlemen, Having examined the Bidding Documents, including Addendum Nos. [insert numbers], the receipt of which is hereby acknowledged, we, the undersigned, offer to Design, Build, Finance, Operate, Maintain & Transfer MRCI CUM OCEANARIUM and allied Facilities under the abovenamed Contract in full conformity with the said Bidding Documents as per details furnished below: Investment proposal We have offered to Design, Build, Finance, Operate, Maintain & Transfer MRCI CUM OCEANARAIUM and allied facilties with enclosed water of...litres. [Bidder should insert the volume of enclosed water proposed in its Bid above million litres.] Our Investment Proposal indicates total amount proposed to be invested in the MRCI CUM OCEANARIUM and allied Facilities. The investment includes the amount of Grant which will be made available by the Authority to part finance the Development, as specified in the BDS. We have also indicated how our share of the investment and the Grant from the Authority will be used over the Development Period. As required, we have included in our Proposal a statement of estimated cost of the MRCI CUM OCEANARIUM and allied Facilities - including all assets and species of marine life, duly accounting for the total amount of investment including Grant. The break-up of the proposed investment is as under: (i) Investment to be made from our own resources =... [Bidder shall insert figure for each currency including INR] (ii) Grant amount = INR... Total investment (i) + (ii) =... [Bidder shall insert figure for each currency including INR] The above amounts and details are in accordance with our Financial Offer Schedules attached herewith which form part of this Bid. We confirm to abide by the following in the event of Contract being awarded to us: (a) We will pay lease rent for the land provided to us for setting up the MRCI CUM OCEANARIUM and allied Facilities for the period of Operation, namely 25 years, effective from the commencement of operation of the Project Facilities, in accordance with ITB (B) read with the corresponding provision in the BDS. (b) We will share with the Authority, the Profit (before Tax) - from the operation of the MRCI CUM OCEANARIUM and allied Facilities - in accordance with ITB (D) read with the Page 52

53 corresponding provision in the BDS and Para 23 of the SCC. However, in case loss is incurred by us in any year of the operation, we shall not pass on such loss to the Authority either directly or through set off against profits in the subsequent year(s) or any other dues payable to the Authority. We meet the eligibility requirements and have no conflict of interest in accordance with ITB We have not been suspended nor declared ineligible by the Employer based on execution of a Bid Securing Declaration in the Authority country in accordance with ITB We undertake, if our Bid is accepted, to commence Development of MRCI CUM OCEANARIUM and allied Facilities and to achieve completion within the respective times stated in the Bidding Documents. If our Bid is accepted, we undertake to provide the Performance Security and an Environmental, Social, Health and Safety (ESHS) Performance Security in accordance with the Bidding Documents. We are not participating, as a Bidder or as a contractor, in more than one bid in this bidding process in accordance with ITB (e). We, including any of our contractors or suppliers for any part of the Contract, have not been declared ineligible by the World Bank, under the Authority country laws or official regulations or by an act of compliance with a decision of the United Nations Security Council; We are not a government owned entity. / We are a government owned entity but meet the requirements of ITB 1.2.6; We have paid, or will pay the following commissions, gratuities, or fees with respect to the bidding process or execution of the Contract: Name of Recipient Address Reason Amount (If none has been paid or is to be paid, indicate none. ) We agree to abide by this Bid, which consists of this letter and the other documents listed in ITB Section 3.2, for the period identified in the Bid Data Sheet as the length of the Bid Validity Period, and it shall remain binding upon us and may be accepted by you at any time before the expiration of that period. Page 53

54 Until a formal contract is prepared and executed between us, this Bid, together with your written acceptance thereof and your notification of award, shall constitute a binding contract between us. We understand that you are not bound to accept the lowest or any Bid you may receive. Dated this day of, [Year]. [signature] In the capacity of [position] Duly authorized to sign this bid for and on behalf of [name of Bidder] Page 54

55 Annexure A Part b BIDDER S FINANCIAL OFFER SCHEDULES PREAMBLE TO THE FINANCIAL OFFER SCHEDULES 1.0 General 1.1 The Financial Offer Schedules are divided into separate Schedules as follows: Schedule 1 Schedule 2 Schedule 3 Schedule 4 Tentative Investment Plan indicating how total investment proposed to be made in the MRCI CUM OCEANARIUM and allied Facilities, comprising (i) Bidder s own funds/resources and (ii) Grant provided by the Authority is proposed to be phased over the period of Development of Project Facilities; it will include statement of estimated cost of the MRCI CUM OCEANARIUM and allied Facilities detailing costs of all assets and species of marine life, so as to account for the total amount of investment including Grant. The Bidder shall submit a Tentative Financing Plan clearly stating the amount of debt, equity, subordinated debt and Grant envisaged for financing the entire Project. The Financial Plan must also contain the source of equity and the plan envisaged for mobilising debt / subordinated debt in concurrence with the Investment Plan. Lease Rent Schedule will include confirmation that the bidder (if selected as Developer) shall, pay annual lease rent, in accordance with ITB (C) read with the BDS, for the lease period of 25 years effective from the commencement of operation of the facility, for the land to be provided by the Authority for building the MRCI CUM OCEANARIUM and allied Facilities. Profit Sharing - Schedule will include confirmation that the Bidder (if selected Developer) shall share with the Authority, Profit (before Tax) - from the operation of the MRCI CUM OCEANARIUM and allied Facilities - in accordance with ITB (D) read with the corresponding provision in the BDS and Para 23 of the SCC. However, in case of loss in any year of the operation, the same shall not be passed on to the Authority either directly or through set off against profits in the subsequent year(s) or any other dues payable to the Authority. Schedule 5 Tentative Itemised cost sheet for the proposed Development of the MRCI CUM OCEANARIUM and allied Facilities - detailing costs of all assets and species of marine life, so as to account for the total amount of investment including Grant. Bidders are deemed to have read the Contract Documents, including the Technical Specifications Appendix consisting of the Development Appendix,, and other sections of the Bidding Documents to ascertain the full scope of the requirements of the Contract included in each item prior to preparation of the Financial Offer Schedules. 1.3 Bidder shall particularly take into account the requirements specified in ITB 3.10 and the corresponding provisions in the BDS before filling in the Financial Offer Schedules. Page 55

56 1.4 If a Bidder is unclear or uncertain as to the scope of any item, it shall seek clarification in accordance with the Instructions to Bidders in the Bidding Documents prior to submitting the Bid. 2.0 Financial amounts 2.1 Financial amounts shall be filled in indelible ink, and any alterations necessary due to errors shall be initialled by the Bidder. As specified in the Bid Data Sheet, all financial amounts shall be fixed and firm for the duration of the Contract, except that Annual Lease Rent payable to the Authority under Schedule 3 shall be escalated at compound rate of 5% per annum during the entire period of operation of 25 years. 2.2 The financial amounts shall be quoted in the manner indicated and in the currencies specified in the Instructions to Bidders in the Bidding Documents. For each item, Bidders shall complete each appropriate column in the respective Schedules, giving the financial breakdown as indicated in the Schedules. Financial amounts given in the Schedules against each item shall be for the scope covered by that item as detailed in the Contract or elsewhere in the Bidding Documents. 2.3 The Authority will make payments to the Developer for the amount of Grant in INR only as specified in ITB Section. Bidder s attention is drawn to the Schedule of Disbursement of the Grant stipulated in paragraph 15 of the Special Conditions of Contract. 2.4 When requested by the Authority, the Bidder shall provide the Authority with a breakdown of any composite or lump sum items included in the Schedules. Schedule 1 - Investment Plan Investment (i) Total investment in the MRCI CUM OCEANARAIUM and allied Facilities with quoted enclosed volume of...million litres of water proposed by the Bidder, using its own funds/resources [Bidder should insert the volume of enclosed water proposed in its Bid.] Currency INR... Amount (ii) Amount of Grant Page 56

57 Year-wise breakup of total investment proposed by the Bidder, using its own funds/resources and the Grant provided by the Authority Year Bidder s own resources I II Total Estimated Project Cost Currency Amount Grant from Authority (INR) Page 57

58 Schedule 2 Financing Plan [Bidder shall provide the details as specified in Para 1.1 of Annexure A Part b Page 58

59 Schedule 3 - Annual Lease Rent payable to the Authority for the land provided for building the MRCI CUM OCEANARIUM and allied Facilities [Bidder shall provide the confirmation as specified in Para 1.1 of Annexure A Part b] Page 59

60 Schedule 4 - Sharing of Profit (before Tax) We agree to share the Profit (before Tax) generated from the MRCI CUM OCEANARIUM and allied Facilities - with the Authority each year after completion of five years of operation during the remaining Operations Period - as stipulated in the BDS and reproduced below: Share of Profit (before Tax) to be paid to the Authority = Profit (before Tax) from the operation of the MRCI CUM OCEANARIUM and allied Facilities x Grant amount provided by the Authority Total Project investment actually made by the Developer for construction of the MRCI CUM OCEANARIUM and allied Facilities from its own funds/resources For the purpose of determining the Share of Profit payable to the Authority, we agree to the mechanism specified in Para 23 of the SCC Section - calculation and verification of the actual Project Investment made by us for construction of the MRCI CUM OCEANARIUM using our own funds/resources and the Grant. We also agree to pay the share of Profit to the Authority on annual basis in the manner specified in SCC. Page 60

61 Schedule 5 Details of total estimated project cost for the proposed Development S Particulars N 1 Civil Construction 2 Acrylic/Glass Aquarium windows cost 3 Filtration Plant 4 Lighting 5 Chilling 6 Building air-conditioning 7 Species cost 8 Sea water processing and storage 9. Amount in INR Total Particulars are just indicative, Bidder can list particulars as per their own assessment Page 61

62 Annexure A Part c Form of Bid Security (Bank Guarantee) [The bank shall fill in this Bank Guarantee Form in accordance with the instructions indicated.] [Guarantor letterhead or SWIFT identifier code] Beneficiary: [Authority to insert its name and address] IFB No.: [Authority to insert reference number for the Invitation for Bids] Alternative No.: [Insert identification No if this is a Bid for an alternative] Date: [Insert date of issue] BID GUARANTEE No.: [Insert guarantee reference number] Guarantor: [Insert name and address of place of issue, unless indicated in the letterhead] We have been informed that [insert name of the Bidder, which in the case of a joint venture shall be the name of the joint venture (whether legally constituted or prospective) indicating the names of all members thereof] (hereinafter called "the Applicant") has submitted or will submit to the Beneficiary its bid (hereinafter called "the Bid") for the execution of under Invitation for Bids No. ( the IFB ). Furthermore, we understand that, according to the Beneficiary s conditions, bids must be supported by a bid guarantee. At the request of the Applicant, we, as Guarantor, hereby irrevocably undertake to pay the Beneficiary any sum or sums not exceeding in total an amount of ( ) upon receipt by us of the Beneficiary s complying demand, supported by the Beneficiary s statement, whether in the demand itself or a separate signed document accompanying or identifying the demand, stating that either the Applicant: (a) (b) has withdrawn its Bid during the period of bid validity set forth in the Applicant s Letter of Bid ( the Bid Validity Period ), or any extension thereto provided by the Applicant; or having been notified of the acceptance of its Bid by the Beneficiary during the Bid Validity Period or any extension thereto provided by the Applicant (i) has failed to execute the contract agreement, or (ii) has failed to furnish the performance security, and, if required, the Environmental, Social, Health and Safety (ESHS) Performance Security, in accordance with the Instructions to Bidders ( ITB ) of the Beneficiary s bidding document. Page 62

63 This guarantee will expire: (a) if the Applicant is the successful bidder, upon our receipt of copies of the contract agreement signed by the Applicant and the performance security and, if required, the Environmental, Social, Health and Safety (ESHS) Performance Security, issued to the Beneficiary in relation to such contract agreement; or (b) if the Applicant is not the successful bidder, upon the earlier of (i) our receipt of a copy of the Beneficiary s notification to the Applicant of the results of the bidding process; or (ii) forty five days after the end of the Bid Validity Period. Consequently, any demand for payment under this guarantee must be received by us at the office indicated above on or before that date. This guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010 Revision, ICC Publication No [Signature(s)] Note: All italicized text is for use in preparing this form and shall be deleted from the final product. Page 63

64 Annexure A Part d 1. FORM OF PERFORMANCE SECURITY (For Contract Performance) [Guarantor letterhead or SWIFT identifier code] Beneficiary: [Authority, Name & Address. PERFORMANCE GUARANTEE No.: [Insert guarantee reference number] Guarantor: [Insert name and address of place of issue, unless indicated in the letterhead] We have been informed that _ [insert name of Developer, which in the case of a joint venture shall be the name of the joint venture] (hereinafter called "the Applicant") has entered into Form of Contract No. [insert reference number of the contract] dated [insert date] with the Beneficiary, for the execution of _ [insert name of contract and brief description of Works] (hereinafter called "the Contract"). Furthermore, we understand that, according to the conditions of the Contract, a performance guarantee is required. At the request of the Applicant, we as Guarantor, hereby irrevocably undertake to pay the Beneficiary any sum or sums not exceeding in total an amount of [insert amount in figures] ( ) [insert amount in words], 1 such sum being payable in the types and proportions of currencies in which the Contract Price is payable, upon receipt by us of the Beneficiary s complying demand supported by the Beneficiary s statement, whether in the demand itself or in a separate signed document accompanying or identifying the demand, stating that the Applicant is in breach of its obligation(s) under the Contract, without the Beneficiary needing to prove or to show grounds for your demand or the sum specified therein. This guarantee shall expire, no later than the. Day of, 2 2, and any demand for payment under it must be received by us at this office indicated above on or before that date. This guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010 Revision, ICC Publication No. 758, except that the supporting statement under Article 15(a) is hereby excluded. [signature(s)] 1 The Guarantor shall insert an amount specified in the Letter of Acceptance and denominated either in the currency(cies) of the Contract or a freely convertible currency acceptable to the Beneficiary. 2 Insert the date 180 days after the End date as described in SCC 17. The Authority should note that in the event of an extension of this date for completion of the Contract, the Authority would need to request an extension of this guarantee from the Guarantor. Such request must be in writing and must be made prior to the expiration date established in the guarantee. Page 64

65 Note: All italicized text (including footnotes) is for use in preparing this form and shall be deleted from the final product. Page 65

66 Beneficiary: Annexure A Part d 2. Environmental, Social, Health and Safety (ESHS) Performance Security Date: _ [Insert date of issue] ESHS Demand Guarantee [Guarantor letterhead or SWIFT identifier code] [insert name and Address of Authority] ESHS PERFORMANCE GUARANTEE No.: [Insert guarantee reference number] Guarantor: [Insert name and address of place of issue, unless indicated in the letterhead] We have been informed that (hereinafter called "the Applicant") has entered into Form of Contract No. dated with the Beneficiary, for the execution of (hereinafter called "the Contract"). Furthermore, we understand that, according to the conditions of the Contract, an Environmental, Social, Health and Safety (ESHS) performance guarantee is required. At the request of the Applicant, we as Guarantor, hereby irrevocably undertake to pay the Beneficiary any sum or sums not exceeding in total an amount of ( ), 1 such sum being payable in the types and proportions of currencies in which the Contract Price is payable, upon receipt by us of the Beneficiary s complying demand supported by the Beneficiary s statement, whether in the demand itself or in a separate signed document accompanying or identifying the demand, stating that the Applicant is in breach of its Environmental, Social, Health and/or Safety (ESHS) obligation(s) under the Contract, without the Beneficiary needing to prove or to show grounds for your demand or the sum specified therein. This guarantee shall expire, no later than the. Day of, 2 2, and any demand for payment under it must be received by us at this office indicated above on or before that date. This guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010 Revision, ICC Publication No. 758, except that the supporting statement under Article 15(a) is hereby excluded. [signature(s)] Note: All italicized text (including footnotes) is for use in preparing this form and shall be deleted from the final product. 1 The Guarantor shall insert an amount representing the percentage of the Accepted Contract Amount specified in the Letter of Acceptance, and denominated either in the currency (cies) of the Contract or a freely convertible currency acceptable to the Beneficiary. 2 Insert the date 180 days after the End date. The Authority should note that in the event of an extension of this date for completion of the Contract, the Authority would need to request an extension of this guarantee from the Guarantor. Such request must be in writing and must be made prior to the expiration date established in the guarantee. Page 66

67 Annexure A Part e FORM OF BANK GUARANTEE ADVANCE PAYMENT OF GRANT AMOUNT [Guarantor letterhead or SWIFT identifier code] Beneficiary: [Insert name and Address of Authority] Date: [Insert date of issue] ADVANCE PAYMENT GUARANTEE No.: [Insert guarantee reference number] Guarantor: [Insert name and address of place of issue, unless indicated in the letterhead] We have been informed that [insert name of Developerr, which in the case of a joint venture shall be the name of the joint venture] (hereinafter called the Applicant ) has entered into Contract No. [insert reference number of the contract] dated [insert date] with the Beneficiary, for the execution of [insert name of contract and brief description of Works] (hereinafter called "the Contract"). Furthermore, we understand that, according to the conditions of the Contract, the Beneficiary shall release the Grant amount to the Applicant in advance in the sum [insert amount in figures] () [insert amount in words] against an advance payment guarantee. At the request of the Applicant, we as Guarantor, hereby irrevocably undertake to pay the Beneficiary any sum or sums not exceeding in total an amount of ([insert amount in figures]) [insert amount in words] 1 upon receipt by us of the Beneficiary s complying demand supported by the Beneficiary s statement, whether in the demand itself or in a separate signed document accompanying or identifying the demand, stating either that the Applicant: (a) (b) has used the advance Grant amount for purposes other than the costs of mobilization in respect of the Development of Project; or has failed to repay the advance Grant amount in accordance with the Contract conditions, specifying the amount which the Applicant has failed to repay. A demand under this guarantee may be presented as from the presentation to the Guarantor of a certificate from the Beneficiary s bank stating that the advance Grant amount referred to above has been credited to the Applicant on its account number [insert number] at [insert name and address of Applicant s bank]. The maximum amount of this guarantee shall be progressively reduced by the amount of the Grant certified for release or the amount of advance repaid by the Applicant, whichever occurs first as specified in copies of interim statements 1 The Guarantor shall insert an amount representing the amount of the advance payment and denominated either in the currency(ies) of the advance payment as specified in the Contract, or in a freely convertible currency acceptable to the Authority. Page 67

68 or payment certificates which shall be presented to us. This guarantee shall expire, at the latest, upon our receipt of a copy of the interim payment certificate indicating that ninety (90) percent of the Grant Amount has been certified for release, or on the [insert day] day of [insert month], 2 [insert year], 2 whichever is earlier. Consequently, any demand for payment under this guarantee must be received by us at this office on or before that date. This guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010 Revision, ICC Publication No. 758, except that the supporting statement under Article 15(a) is hereby excluded. [signature(s)] Note: All italicized text (including footnotes) is for use in preparing this form and shall be deleted from the final product. 1 Another party refers to a public official acting in relation to the procurement process or contract execution]. In this context, public official includes World Bank staff and employees of other organizations taking or reviewing procurement decisions. Page 68

69 Annexure A Part f- Deleted Page 69

70 Annexure A Part g Form for Clarification Questions Bidder s Name: Bidder s Address: Date Submitted: Item No. Section Reference Page No. Section or Article No. Question/Query/Clarification/Comment Page 70

71 Annexure A Part h Eligible Countries Eligibility for the Provision of Goods, Works and Non Consulting Services in Bank-Financed Procurement In reference to ITB 1.2.8, for the information of the Bidders, at the present time firms, goods and services from the following countries are excluded from this bidding process: Under ITB (a) : None Under ITB (b) : None Page 71

72 Annexure A Part I Declaration regarding customs& GST exemption for materials / goods / equipments, etc., to be purchased for use in setting up of the Project Facilities (Bidder s Name and Address) To: Dear Sir: Ref: Setting up of MRCI cum Oceanarium and allied Facilities Certificate for Import/Procurement of goods, materials,/ equipment, etc. 1. We confirm that we are solely responsible for obtaining customs duty & GST waivers which we have considered in our bid and in case of failure to receive such waivers for reasons whatsoever, the Authority will not compensate us. 2. We are furnishing below the information required by the Authority for issue of the necessary certificates required in terms of the Customs Notification No. 85/ The goods, equipment and materials, etc., for which certificates are required are as under: Items Goods Make/ Brand Name/ Class Capacity [where applicable] Quantity Value State whether it will be procured locally or imported [if so from which country] Remarks regarding justification for the quantity and their usage in setting up of MRCI cum Oceanarium and allied Facilities [a] [b] [c] [d] [e] [f] [g] 4. We agree that the certificate will be issued only to the extent considered reasonable by the Page 72

73 Authority for the Project, based on the Bid submitted by us, construction programme and methodology furnished along with the Bid. 5. We confirm that the above materials / equipments / goods etc., will be exclusively used for Development of the above Project. We are aware that exemption will be issued to only goods/material/equipment etc., which form part of the Project on permanent basis but not for the goods/material/equipment etc., which after completion of the Project remain with the Developer for further deployment in other projects. Date: Place: (Signature) (Printed Name) (Designation) (Common Seal). Page 73

74 Annexure A Part j Information Forms Page 74

75 General Information INFORMATION FORM (1) All individual firms and each participant in a joint venture submitting the bids are required to complete the information in this form. Nationality information should be provided for all bidders that are partnerships or individually owned firms. If the Bidder proposes to use nominated contractors or consultants, the following information should also be supplied for the contractor(s) and consultant(s). 1. Name of firm 2. Head office address 3. Telephone Contact 4. Fax Telex 5. Place of incorporation / registration Year of incorporation / registration 1. Name Nationality of owners 1 Nationality To be completed by all owners of partnerships or individually owned firms. Page 75

76 INFORMATION FORM (2) (Ref. ITB Section 3.5) General Design, Build, Operation and Management Experience Information Name of Bidder or participant of a joint venture All individual firms and all participants of a joint venture are requested to complete the information in this form with regard to their experience in designing, building, operating, managing and maintaining MRCI CUM OCEANARIUM. Description of Contract/ MRCI CUM OCEANARIUM with its Capacity Volume of enclosed water of the MRCI CUM OCEANARIUM built and key exhibits Name of Joint Venture Participant, Contractor or ConsultantResponsible for work on the Contract Name of City Country Population served Contract Role (joint venture participant, subcontractor, sub consultant, lead, etc.) and percentage share in the total contract Nature, role and extent of participation (describe fully) Date of contract commencement Date of contract termination Contract value (US$) Individual for reference Address, Telephone, Fax for reference Page 76

77 General Turnover Information Name of Bidder or participant of a joint venture INFORMATION FORM (2A) All individual firms and all participants of a joint venture are requested to complete the information in this form with regard to their experience in designing, building, operating, managing and maintaining MRCI CUM OCEANARIUM. The information supplied should be the annual turnover of the Bidder (or each member of a joint venture) in terms of the amounts billed to clients for each year for work in progress or completed, converted to U.S. dollars at the rate of exchange at the end of the period reported. The annual periods should be calendar years, with partial accounting for the year up to the date of submission of Applications. Use a separate sheet for each participant of a joint venture. Bidders should not enclose testimonials, certificates, and publicity material with their Application as they will not be taken into account in the evaluation of qualifications. Annual turnover data (in the area of infrastructure development and engineering construction). Year Turnover INR /US$ equivalent (converted at the rate of exchange at the end of the period reported) [Year] [Year] [Year] [Year] [Year] Page 77

78 INFORMATION FORM (2B) Joint Venture Summary Names of all participants of a joint venture 1. Lead Participant 2. Participant 3. Participant 4. Participant Annual turnover data (in the area of infrastructure development and engineering construction). Participant 1. Lead Participant 2. Participant Information Form (2A) page no. [Year] [Year] [Year] [Year] [Year] 3. Participant 4. Participant Totals Page 78

79 INFORMATION FORM (3A) (Ref. ITB Section 3.5) Design, development, construction, testing and commissioning of MRCI CUM OCEANARIUM Name of Bidder or participant of a joint venture Description of Contract/ MRCI CUM OCEANARIUM Name of Joint Venture Participant, Contractor or Consultant Responsible for work on the Contract Name of City Country Capacity/Size of MRCI CUM OCEANARIUM Volume of enclosed water of the MRCI CUM OCEANARIUM built Contract Role (joint venture participant, subcontractor, sub consultant, lead, etc.) Nature, role and extent of participation (describe fully) Date of contract commencement Date of contract termination Contract value in INR or equivalent to US$ Individual for reference Address, Telephone, Fax for reference. Page 79

80 INFORMATION FORM (3B) (Ref. ITB Section 3.5) Experience in successful Operation and Maintenance of MRCI CUM OCEANARIUM Name of Bidder or participant of a joint venture Description of Contract/ MRCI CUM OCEANARIUM Name of Joint Venture Participant, Contractor or Consultant Responsible for work on the Contract Name of City/Urban area Country Capacity/Size of MRCI CUM OCEANARIUM Volume of enclosed water of the MRCI CUM OCEANARIUM Number of years operated (with period) Contract Role (joint venture participant, subcontractor, sub consultant, lead, etc.) Nature, role and extent of participation (describe fully) Date of contract commencement Date of contract termination Contract value in INR or equivalent to US$ Individual for reference Address, Telephone, Fax for reference Page 80

81 INFORMATION FORM (4) Financial Capabilities (Ref. ITB Section 3.5) Name of Bidder or participant of a joint venture Bidders, including each partner of a joint venture, shall provide financial information to demonstrate that they meet the requirements stated in the ITB 3.5. Each Bidder or participant of a joint venture shall complete this form. If necessary, separate sheets shall be used to provide complete banker information. A copy of the audited balance sheets shall be attached. Banker Name of banker Address of banker Telephone Fax Contact name and title Telex Summarize actual assets and liabilities in INR or equivalent to U.S. dollar (at the rates of exchange current at the end of each year) for the previous five calendar years. Based upon known commitments, summarize projected assets and liabilities in INR or equivalent to U.S. dollar for the next two calendar years, unless the withholding of such information by stock market listed public companies can be substantiated by the Bidder. Financial information in INR or equivalent to US$ Actual: Previous five years Projected: Next two years [Year] [Year] [Year] [Year] [Year] [Year] [Year] 1. Total assets 2. Current assets 3. Total liabilities 4. Current liabilities 5. Profits before taxes 6. Profits after taxes Page 81

82 Specify proposed sources of financing, such as liquid assets, unencumbered real assets, lines of credit, and other financial means, net of current commitments, available to meet the total construction cash flow demands of the subject Contract or contracts as indicated in ITB Section (b) Source of Financing Amount in INR or equivalent to US $ Attach audited financial statements including, as a minimum, profit and loss account, balance sheet, and explanatory notes for compliance with ITB Sections (a) & (c) (for the individual Bidder or each participant of a joint venture). If audits are not required by the laws of Bidders' countries of origin, partnerships and firms owned by individuals may submit their balance sheets certified by a registered accountant, and supported by copies of tax returns. Also attach the following Certificates with the Bid: (a) Chartered Accountant s Certificate indicating Net worth of the Bidder in each of last three financial years preceding the date of submission of bid; OR such certificate for each Partner in case the bidder is a JV. Page 82

83 INFORMATION FORM (5)- Deleted ( Page 83

84 INFORMATION FORM (5A)- Deleted Page 84

85 HISTORICAL CONTRACT NON-PERFORMANCE (Ref. ITB Section 3.5.6) [The following table shall be filled in for the Bidder and for each partner of a Joint Venture] Bidder s Legal Name: [insert full name] Date: [insert day, month, year] Joint Venture Party Legal Name: [insert full name] ICB No. and title: [insert ICB number and title] Page [insert page number] of [insert total number] pages Non-Performing Contracts in accordance with ITB Section 3.5 Contract non-performance did not occur during the [number] years specified in ITB Section 3.5 Contract(s) not performed during the [number] years specified in ITB Section 3.5 Year Non performed portion of contract Contract Identification Total Contract Amount (current value in INR or equivalent US$) [insert year] [insert amount and percentage] Contract Identification: [indicate complete contract name/number, and any other identification] [insert amount] Name of Employer: [insert full name] Address of Employer: [insert street/city/country] Reason(s) for non performance: [indicate main reason(s)] Pending Litigation, in accordance with ITB Section No pending litigation in accordance with ITB Section Pending litigation in accordance with ITB Section Page 85

86 ENVIRONMENTAL, SOCIAL, HEALTH, AND SAFETY PERFORMANCE DECLARATION (Ref. ITB Section 3.5.7) [The following table shall be filled in for the Bidder, each member of a Joint Venture and each Specialized Subcontractor] Bidder s Name: [insert full name] Date: [insert day, month, year] Joint Venture Member s or Specialized Subcontractor s Name: [insert full name] Year [insert year] [insert year] Environmental, Social, Health, and Safety Performance Declaration in accordance with ITB Section No suspension or termination of contract: An employer has not suspended or terminated a contract and/or called the performance security for a contract for reasons related to Environmental, Social, Health, or Safety (ESHS) performance since the date specified in ITB Declaration of suspension or termination of contract: The following contract(s) has/have been suspended or terminated and/or Performance Security called by an employer(s) for reasons related to Environmental, Social, Health, or Safety (ESHS) performance since the date specified in ITB 3.5.7: Suspended or terminated portion of contract [insert amount and percentage] [insert amount and percentage] Contract Identification Contract Identification: [indicate complete contract name/ number, and any other identification] Name of Employer: [insert full name] Address of Employer: [insert street/city/country] Reason(s) for suspension or termination: [indicate main reason(s)] Contract Identification: [indicate complete contract name/ number, and any other identification] Name of Employer: [insert full name] Address of Employer: [insert street/city/country] Reason(s) for suspension or termination: [indicate main reason(s)] [list all applicable contracts] Total Contract Amount (current value, currency, exchange rate and US$ equivalent) [insert amount] [insert amount] Performance Security called by an employer(s) for reasons related to ESHS performance Year Contract Identification Total Contract Amount (current value, currency, exchange rate and US$ equivalent) Page 86

87 [insert year] Contract Identification: [indicate complete contract name/ number, and any other identification] Name of Employer: [insert full name] Address of Employer: [insert street/city/country] Reason(s) for calling of performance security: [indicate main reason(s)] [insert amount] Page 87

88 FORM OF LETTER OF INTENT BY JV PARTNERS TO ENTER INTO JV AGREEMENT Annexure A - Part K THIS LETTER OF INTENT signed on this... day of... Two Thousand and...by... a company incorporated under the laws of... and having its Registered Office at...(hereinafter called the "Party No.1" which expression shall include its successors, executors and permitted assigns) and M/s... a company incorporated under the laws of... and having its Registered Office at...(hereinafter called the "Party No.2" which expression shall include its successors, executors and permitted assigns) and M/s a Company incorporated under the laws of... and having its Registered Office at... (hereinafter called the "Party No.3" which expression shall include its successors, executors and permitted assigns) for the purpose of making a bid and entering into a Contract [hereinafter called the "Contract" (in case of award) to design, build, finance, operate, maintain and transfer Marine Research Conservation & Information Centre cum Oceanarium (MRCI CUM OCEANARIUM) and allied Facilities for which bids have been invited by...(hereinafter called the "Authority"). WHEREAS the Party No.1, Party No.2 and Party No.3 intend to enter into a Joint Venture Agreement. AND WHEREAS the Authority invited bids as per the above mentioned Specification to design, build, finance, operate, maintain and transfer Marine Research Conservation & Information Centre cum Oceanarium (MRCI CUM OCEANARIUM) stipulated in the bidding documents. AND WHEREAS ITB Clause Qualification Criteria and ITB Clause 3.6 forming part of the bidding documents, inter-alia, stipulates that two or more qualified partners, meeting the requirements of 'Qualification Requirement of the Bidder', as applicable may bid, provided, they submit a Letter of Intent to enter into Joint Venture Agreement and form a Special Purpose Company (SPC) in accordance with ITB Section and The Joint Venture Partners fulfill all other requirements under ITB Clause 5.7 Qualification of the Bidder and in such a case, the Letter of Bid (Bid Form) shall be signed by the Partner-in-Charge so as to legally bind all the Partners of the Joint Venture, who will be jointly and severally liable to perform the Contract by entering into Joint Venture Agreement as per proforma submitted with the Bid in accordance with ITB 3.6 which will be legally binding on all partners and all obligations hereunder. The above clause further states that this Letter of Intent shall be attached to the bid and the Contract Performance Guarantee will be as per the format enclosed with the bidding document without any restrictions or liability for either party. AND WHEREAS the bid is being submitted to the Authority vide proposal No...dated... by Party No.1 based on this letter of Intent between all the parties; under these presents and the bid has been signed by all the parties. NOW THIS UNDERTAKING WITNESSETH AS UNDER: In consideration of the above premises and agreements all the parties of this letter of Intent do hereby declare and undertake: Page 88

89 1. In requirement of the award of the Contract by the Authority to the Joint Venture Partners, we, the Parties do hereby undertake that M/s... the Party No.1, shall act as lead Partner and further declare and confirm that we the parties to the Joint Venture shall jointly and severally be bound unto the Authority for the successful performance of the Contract and shall be fully responsible for the design, build, finance, operate, maintain and transfer the Marine Research Conservation & Information Centre cum Oceanarium (MRCI CUM OCEANARIUM) and allied F acilities i n accordance with the Contract for which we shall enter into Joint Venture Agreement and form a SPC as per ITB Section as per proforma submitted with the Bid which will be legally binding on all partners. 2. If the Contract is awarded to Joint Venture then in case of any breach or default of the said Contract by any of the parties to the Joint Venture, the party(s) will be fully responsible for the successful performance of the Contract and to carry out all the obligations and responsibilities under the Contract in accordance with the requirements of the Contract. 3. Further, if the Authority suffers any loss or damage on account of any breach in the Contract or any shortfall in the performance guaranteed as per the specification in terms of the Contract, the Party(s) of these presents will promptly make good such loss or damages caused to the Authority, on its demand without any demur. It shall not be necessary or obligatory for the Authority to proceed against lead Partner to these presents before proceeding against or dealing with the other Party(s), the Authority can proceed against any of the parties who shall be jointly and severally liable for the performance and all other liabilities/obligations under the Contract to the Authority. 4. The financial liability of the Parties of the Deed of Undertaking to the Authority in the event of award of Contract on the Joint Venture, with respect to any of the claims arising out of the performance or non-performance of the obligations set forth in the Deed of Undertaking, read in conjunction with the relevant conditions of the Contract shall, however not be limited in any way so as to restrict or limit the liabilities or obligations of any of the Parties of the Deed of Undertaking. 5. It is expressly understood and agreed between the Parties to this Letter of Intent that the responsibilities and obligations of each of the Parties shall be as delineated in Appendix- I (to be suitably appended by the Parties along with this Letter of Intent in its bid). It is further undertaken by the parties that the above sharing of responsibilities and obligations shall not in any way be a limitation of joint and several responsibilities of the Parties under the Contract in the event of award of Contract on Joint Venture. 6. It is also understood that this Letter of Intent is provided for the purposes of undertaking joint and several liabilities of the partners to the Joint Venture for submission of the bid and performance of the Contract if awarded and that this Letter of Intent shall not be deemed to give rise to any additional liabilities or obligations, in any manner or any law, on any of the Parties to this Letter of Intent or on the Joint Venture, other than the express provisions of the Contract. 7. This Letter of Intent shall be construed and interpreted in accordance with the provisions of the Contract. 8. In case of an award of a Contract, we the parties to this Letter of Intent do hereby agree that we shall enter into Joint Venture Agreement as per proforma submitted Page 89

90 with the Bid and form a SPC as per ITB Section which will be legally binding on all partners and we shall be jointly and severally responsible for furnishing a Contract Performance Security from a bank in favor of the Authority in the currency/currencies of the Contract. 9. It is further agreed that this Letter of Intent shall be irrevocable and shall form an integral part of the bid. It shall be effective from the date first mentioned above for all purposes and intents. IN WITNESS WHEREOF, the Parties to this Letter of Intent have through their authorized representatives executed these presents and affixed Common Seals of their respective companies, on the day, month and year first mentioned above. Common Seal of... has been affixed in my/ our presence pursuant to Board of Director's Resolution dated... Name... For Lead Partner (Party No.-1) For and on behalf of M/s Designation... Signature... Signature of The authorized representative) WITNESS: I. II. Common Seal of... has been affixed in my/ our presence pursuant to Board of Director's Resolution dated... Name... For Party No.-2 For and on behalf of M/s Designation... Signature... Signature of The authorized representative) WITNESS: I. II. Page 90

91 Common Seal of... has been affixed in my/ our presence pursuant to Board of Director's Resolution dated... Name... For Party No.-3 For and on behalf of M/s Designation... Signature... Signature of The authorized representative) WITNESS: I. II. Page 91

92 FORM OF POWER OF ATTORNEY FOR JOINT VENTURE Annexure A - Part L (On Non-judicial Stamp Paper of Appropriate value, if required as per laws of the country of the bidder, to be purchased in the Name of Joint Venture) KNOW ALL MEN BY THESE PRESENTS THAT WE, the Partners whose details are given hereunder... have formed a Joint Venture under the laws of... (*)/ intend to form a Joint Venture (*) [(*) delete whichever is not applicable] and having our Registered Office(s)/Head Office(s) at...(hereinafter called the 'Joint Venture' which expression shall unless repugnant to the context or meaning thereof, include its successors, administrators and assigns) acting through M/s... being the Partner in-charge do hereby constitute, nominate and appoint M/s... a Company incorporated under the laws of... and having its Registered/Head Office at... as our duly constituted lawful Attorney (hereinafter called "Attorney" or "Authorized Representative" or "Partner In-charge") to exercise all or any of the following powers for and on behalf the Joint Venture in regard to Invitation for Bids issued by..,..(hereinafter called the Authority) for Design, Build, Finance, Operate, Manage & Transfer MRCI cum Oceanarium and allied Facilities: i) To sign and submit proposal and participate in the aforesaid Bid invited by the Authority on behalf of the "Joint Venture". ii) iii) iv) To negotiate with the Authority the terms and conditions for award of the Contract pursuant to the aforesaid Bidding and to sign the Contract with the Authority for and on behalf of the "Joint Venture". To do any other act or submit any document related to the above. To receive, accept and execute the Contract for and on behalf of the "Joint Venture". For the above purpose, the person(s) authorized by the Partner In-charge shall be the person(s) authorized to act on behalf of the "Joint Venture" as per the Power of Attorney given to him/her/them by the Partner In-Charge. It is clearly understood that all the partners of the joint venture shall be liable jointly and severally for the execution of the Contract in accordance with the Contract terms and the Partner In-charge (Lead Partner) shall ensure performance of the Contract and if one or more Partners fail to perform their respective portions of the Contract, the same shall be deemed to be a default by all the Partners. It is expressly understood that this Power of Attorney shall remain valid binding and irrevocable till completion of the Development as well as the Operation Periods in terms of the Contract. The Joint Venture hereby agrees and undertakes to ratify and confirm all the whatsoever the said Attorney/Authorized Representatives/Partner in-charge quotes in the bid, negotiates and signs the Contract with the Authority and/or proposes to act on behalf of the Joint Page 92

93 Venture by virtue of this Power of Attorney and the same shall bind the Joint Venture as if done by itself. IN WITNESS THEREOF the Partners Constituting the Joint Venture as aforesaid have executed these presents on this...day of...under the Common Seal(s) of their Companies. For and on behalf of the Partners of Joint Venture The Common Seal of the above Partners of the Joint Venture: The Common Seal has been affixed there unto in the presence of: WITNESS 1. Signature... Name... Designation... Occupation Signature... Name... Designation... Occupation... Page 93

94 Annexure A - Part M FORM OF UNDERTAKING BY THE JOINT VENTURE PARTNERS (On Non-Judicial Stamp Paper of Appropriate Value, if required as per laws of the country of the bidder, to be purchased in the Name of Joint Venture) THIS JOINT DEED OF UNDERTAKING executed on this...day of...two Thousand and...by... a company incorporated under the laws of... and having its Registered Office at...(hereinafter called the "Party No.1 which expression shall include its successors, executors and permitted assigns) and M/s... a company incorporated under the laws of... and having its Registered Office at...(hereinafter called the "Party No.2" which expression shall include its successors, executors and permitted assigns) and M/s...a Company incorporated under the laws of...and having its Registered Office at... (hereinafter called the "Party No.3" which expression shall include its successors, executors and permitted assigns) for the purpose of making a bid and form a Special Purpose Company (SPC) in accordance with ITB Section for entering into a Contract [hereinafter called the "Contract" in case of award] for design, build, finance, operate, manage and transfer Marine Research Conservation & Information Centre cum Oceanarium (MRCI CUM OCEANARIUM) and allied Facilities for which bids have been invited by..,..hereinafter called the "Authority". WHEREAS the Party No.1, Party No.2 and Party No.3 have entered into an Agreement dated... AND WHEREAS the Authority invited bids for design, build, finance, operate, manage and transfer Marine Research Conservation & Information Centre cum Oceanarium (MRCI CUM OCEANARIUM) and allied Facilities as stipulated in the bidding documents. AND WHEREAS ITB Clause 3.5 Qualification Criteria and ITB Clause 3.6 forming part of the bidding documents, inter-alia, stipulate that an undertaking of two or more qualified partners, meeting the requirements of Q u a l i f i c a t i o n Criteria of t h e Bidder', as applicable may bid, provided, the Joint Venture fulfills all other requirements under Clause 5.7 Qualification of the Bidder and in such a case, the Letter of Bid (Bid Form) shall be signed by the Partner-in- Charge so as to legally bind all the Partners of the Joint Venture, who will be jointly and severally liable to perform the Contract and all obligations hereunder. The above clause further states that this Undertaking shall be attached to the bid and the Contract Performance Guarantee will be as per the format enclosed with the bidding document without any restrictions or liability for either party. AND WHEREAS the bid is being submitted to the Authority vide proposal No...dated... by Party Page 94

95 No.1 based on this Undertaking between all the parties; under these presents and the bid in accordance with the requirements of ITB Clause 3.5 Qualification Criteria and ITB Clause 3.6 has been signed by all the parties. NOW THIS UNDERTAKING WITNESSETH AS UNDER: In consideration of the above premises and agreements all the parties of this Deed of Undertaking do hereby declare and undertake: 1. In requirement of the award of the Contract by the Authority to the Joint Venture Partners, we, the Parties do hereby undertake that M/s... the Party No.1, shall act as Lead Partner and further declare and confirm that we the parties to the Joint Venture shall form a SPC in accordance with ITB Section and shall jointly and severally be bound unto the Authorityfor the successful performance of the Contract and shall be fully responsible to design, build, finance, operate, maintain and transfer Marine Research, Conservation & Information Centre cum Oceanarium (MRCI CUM OCEANARIUM) and allied Facilities in accordance with the Contract. 2. In case of any breach or default of the said Contract by any of the parties to the Joint Venture, the parties do hereby undertake to be fully responsible for the successful performance of the Contract and to carry out all the obligations and responsibilities under the Contract in accordance with the requirements of the Contract. 3. Further, if the Authority suffers any loss or damage on account of any breach in the Contract or any shortfall in performance of the Project Facilities guaranteed as per the specification in terms of the Contract, the Party(s) of these presents undertake to promptly make good such loss or damages caused to the Authority, on its demand without any demur. It shall not be necessary or obligatory for the Authority to proceed against Lead Partner to these presents before proceeding against or dealing with the other Party(s), the Authority can proceed against any of the parties who shall be jointly and severally liable for the performance and all other liabilities/obligations under the Contract to the Authority. 4. The financial liability of the Parties of this Deed of Undertaking to the Authority, with respect to any of the claims arising out of the performance or non-performance of the obligations set forth in this Deed of Undertaking, read in conjunction with the relevant conditions of the Contract shall, however not be limited in any way so as to restrict or limit the liabilities or obligations of any of the Parties of this Deed of Undertaking. 5. It is expressly understood and agreed between the Parties to this Undertaking that the responsibilities and obligations of each of the Parties shall be as delineated in Appendix - I (to be suitably appended by the Parties along with this undertaking in its bid). It is further undertaken by the parties that the above sharing of responsibilities and obligations shall not in any way be a limitation of joint and several responsibilities of the Parties under the Contract. 6. It is also understood that this Undertaking is provided for the purposes of undertaking joint and several liabilities of the partners to the Joint Venture for submission of the bid and performance of the Contract if awarded and that this Undertaking shall not be deemed to give rise to any additional liabilities or obligations, in any manner or any law, on any of the Parties to this Undertaking or on the Joint Venture, other than the express provisions of the Contract. 7. This Undertaking shall be construed and interpreted in accordance with the provisions of the Contract. 8. In case of an award of a Contract, we the parties to this Deed of Undertaking Page 95

96 do hereby agree that we shall be jointly and severally responsible for furnishing a Contract Performance Security from a bank in favour of the Authority in the currency/currencies of the Contract. 9. It is further agreed that this Deed of Undertaking shall be irrevocable and shall form an integral part of the bid and shall continue to be enforceable till the Authority discharges the same or upon the completion of the Contract in accordance with its provisions, whichever is earlier. It shall be effective from the date first mentioned above for all purposes and intents. IN WITNESS WHEREOF, the Parties to this Deed of Undertaking have through their authorized representatives executed these presents and affixed Common Seals of their respective companies, on the day, month and year first mentioned above. Common Seal of... has been affixed in my/ our presence pursuant to Board of Director's Resolution dated... Name... For Lead Partner (Party No.-1) For and on behalf of M/s Designation... Signature... Signature of representative) For Party No.-2 For and on behalf M/s... The Of authorized WITNESS: I. II. Common Seal of... has been affixed in my/ our presence pursuant to Board of Director's Resolution dated... Name... For Party No.-2 For and on behalf of M/s Page 96

97 Designation... Signature... Signature of the authorized representative) WITNESS: I. II. Common Seal of... has been affixed in my/ our presence pursuant to Board of Director's Resolution dated... Name... For Party No.-3 For and on behalf of M/s Designation... Signature... Signature of The authorized representative) WITNESS: I. II. Page 97

98 Annex B to the Bidding Documents The Draft Contract Documents (i) (ii) (iii) Form of Contract General Conditions of the Contract Appendices to the General Conditions Page 98

99 FORM OF CONTRACT TO DESIGN, BUILD, FINANCE, OPERATE, MANAGE & TRANSFER MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM Page 99

100 CONTRACT TO DESIGN, BUILD, FINANCE, OPERATE, MANAGE & TRANSFER MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM FORM OF CONTRACT THIS CONTRACT is made and entered into this day of, [Year] Between Project Director & Member Secretary, Gujarat Ecology Commission, 1st Floor, Udhyog Bhavan, Gandhinagar, Gujarat, India (hereafter the Authority ) And [Name of Developer Company goes here] incorporated under the laws of [place of incorporation] with its principal place of business at [Address of the bidder] (hereafter the Developer ) And WHEREAS: (1) The Authority has the jurisdiction to enter into the Contract, as defined in Section 1.1 below, pursuant to the Applicable Law; (2) The Authority has received all requisite approvals necessary and has conformed with all requisite laws in accordance with the Applicable Law to permit the Authority to enter into the Contract; (3) The Authority desires to engage the Developer to design, build, finance, operate, & maintain the MRCI CUM OCEANARIUM and allied Facilities for 25 years commencing from Operations Starting Date and thereafter transfer to it; (4) The Developer has represented to the Authority that it has the skills and ability to design, build, finance, operate, and maintain the MRCI CUM OCEANARIUM and allied Facilities in an economical and effective manner and agrees to do so upon and subject to the terms and conditions of the Contract Documents; (5) The Developer responded to the Invitation for Bid dated December 2017 organized by the Authority and was selected to Design, Build, Finance,, Operate, Manage & Transfer the MRCI cum Oceanarium and allied Facilities as set out in the Contract; (6) The Developer has the corporate capacity and authority to enter into the Contract. NOW THEREFORE, in consideration of the mutual covenants and Agreements hereinafter set forth, the Authority and the Developer agree as follows: Page 100

101 ARTICLE 1- CONTRACT DOCUMENTS 1.1 Contract Documents This Contract to Design, Build, Finance, Operate, Maintain & Transfer a MRCI CUM OCEANARIUM and allied Facilities between the Authority and the Developer(the Contract ) consists of the following documents (collectively, the Contract Documents ), and each of the following shall be read and construed as an integral part of the Contract: (a) Form of Contract (b) Letter of Acceptance (c) Special Conditions of Contract (Appendix 1 to GCC) (d) General Conditions of Contract (e) Deleted (f) Deleted (g) Deleted (h) Appendix 2D - Applicable Laws (i) Appendix 3 Location Map and Site Details (j) Appendix 4 Developers s Bid (the Developers s Bid ) including the Technical Proposal and Financial Proposal (k) Appendix 5 Applicable Permits (l) Appendix 6 - Minimum Development Plan (m) Appendix 7 Format of Site Lease Deed (n) Appendix 8 Project Implementation Schedule (o) Appendix 9 Final Concept & Design prepared and submitted by the Developer post award of Contract and approved by the Authority. 1.2 Order of Precedence (1) In the event of any ambiguity or conflict between the Contract Documents listed in Section 1.1 of this Form of Contract, the order of precedence shall be the order in which the Contract Documents are listed in Section 1.1 of this Form of Contract. (2) Notwithstanding Section 1.2(1) of this Form of Contract and any other term or condition in the Contract Documents, if any statement or provision in Final Concept & Design incorporated in Appendix 9 (attached to the Contract), is not consistent with or conflicts with any other term or condition in the remainder of the Contract Documents, the Final Concept & Design shall govern. 1.3 Definitions Capitalized words and phrases used herein shall have the same meanings as are ascribed to them in the General Conditions of Contract and Appendices to the General Conditions of Contract. Page 101

102 ARTICLE 2- GRANT TO THE DEVELOPER AND TERMS OF DISBURSEMENT 2.1 Grant to the Developer & Estimated Project Cost The Authority hereby agrees to provide Grant of INR 520 (five hundred and twenty) million to the Developer in accordance with the Contract conditions. Estimated Project Cost including the above mentioned Grant as per Developer s Bid is Terms of Disbursement of Grant The terms and procedure of disbursement of the agreed Grant amount to Developer are set out in the Conditions of the Contract. ARTICLE 3 - EFFECTIVE DATE AND STARTING DATES 3.1 Effective Date and Starting Date The Effective Date, the Development Starting Date and Operations Starting Date for the Contract shall be determined in accordance with the Conditions of the Contract. IN WITNESS WHEREOF the Authority and the Developer have caused this Form of Contract to be duly executed by their duly authorized representatives. EXECUTED as of the date first written above. [AUTHORITY] By: Name: Title: Witness: [THE DEVELOPER] By: Name: Title: Witness: Page 102

103 APPENDIX B to the bidding document The Draft Contract MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM (PART OF INTEGRATED COASTAL ZONE MANAGEMENT PROJECT) UNDER WORLD BANK FINANCE AGREEMENT NO. ICB/ICZMP/01/ General Conditions of Contract (GCC) GENERAL CONDITIONS FOR A CONTRACT TO DESIGN, BUILD, FINANCE,OPERATE, MAINTAIN & TRANSFER MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM AND ALLIED FACILITIES Page 103

104 TABLE OF CONTENTS A. CONTRACT AND INTERPRETATION ARTICLE 1 - CONTRACT AND INTERPRETATION Definitions Contract Documents Interpretation Language Singular or Plural Headings Persons Incoterms Entire Agreement Amendment Number of Days Independent Developer Joint Venture Non-waiver Severability Country of Origin Survival of Obligations Notice Governing Law Settlement of Disputes Adjudicator Arbitration Obligations during Arbitration Assignment Contract Records, Accounting and Auditing Contract Records Accounting Auditing the Developer s Own Accounts and the Contract Records Developer s Audited Accounts Inspections and Audit by the Bank Developer s Claims during the Development Period ARTICLE 2 - CONTRACT TERM, TIMING AND COMPLETION General Effectiveness of Contract Expiration of Contract Commencement of Development Development Period and Operations Period Development Period Commencement, Delays and Suspension Commencement of the Development Time for Completion Development Time Schedule Extension of the Time for Completion Rate of Progress Delay of Completion Liquidated Damages - Delay Operations Period Commencement of the Operations Assistance after the End Date Extension of the Contract 126 ARTICLE- 3: OBLIGATIONS OF THE DEVELOPER General Services and Standards of Performance Page 104

105 3.5 Compliance with Laws Conflict of Interest Site Information and Investigation Access to the Site and Facility ARTICLE 4 - OBLIGATIONS OF THE AUTHORITY Authority s Assistance to the Developer Access to the Site and New Facility Reviews and Approvals of Submissions ARTICLE 5 GRANT AND DISBURSEMENT Grant Terms of Disbursement of Grant Liquidated Damages - Operations Securities Performance Security Taxes and Duties ARTICLE 6 TECHNOLOGY, PATENT, TRADE MARK,COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS Technology, Patent, Trademark, Copyright and other intellectual property rights Confidentiality ARTICLE 7 CONTRACT MONITORING DURING THE DEVELOPMENT AND OPERATIONS PERIODS Appointment of Project Monitoring Engineer Development Monitoring Monitoring during the Development Period Project Monitoring Engineer s Duties and Authority Replacement of Project Monitoring Engineer Determinations by Project monitoring Engineer Operations Monitoring Monitoring during the Operations Period 138 ARTICLE 8 REPRESENTATIVES, STAFF AND SUBCONTRACTING Representatives Authority s Representative Developer s Representative Developer s Superintendence Developer s Personnel Replacement of Developer s Personnel Subcontractors ARTICLE 9 LIABILITY AND RISK DISTRIBUTION Defect Liability Limitation of Liability Transfer of Ownership and Existing Equipment and Materials Not Applicable Care of the Site and Facility Indemnification Insurance Unforeseeable Physical Conditions Force Majeure War Risks Change in Laws and Regulations Patent Indemnity Indemnity by Developer Notice of Claim Indemnity by Authority148 ARTICLE 10-CHANGE IN CONTRACT ELEMENTS Change to the Development Page 105

106 10.4 Change in the Grant amount ARTICLE 11 SUSPENSION AND TERMINATION Suspension Suspension by the Authority Suspension by the Developer Termination Termination for Authority s Convenience Payment upon Termination by the Authority for Convenience Termination for Developer s Default Payment upon Termination for Developer s Default Termination by Developer General Provisions - Termination 157 Page 106

107 GENERAL CONDITIONS OF CONTRACT A. CONTRACT AND INTERPRETATION ARTICLE 1 - CONTRACT AND INTERPRETATION 1.1 Definitions Unless the context otherwise requires, the following terms wherever used in this Contract have the following meanings: Accounting Year means the financial year commencing from the first day of April of any calendar year and ending on the thirty-first day of March of the next calendar year; Adjudicator means the person that is named in the SCC; Applicable Laws means all laws brought into force and effect by Government of India or the State Government including rules, regulations and notifications made thereunder and judgments, decrees, injunctions, writs and orders of any court of record, applicable to this Contract and the exercise, performance and discharge of the respective rights and obligations of the Parties hereunder, as may be in force and effect during the subsistence of this Contract. An illustrative list of laws applicable to the Contract are set forth in Appendix 2D. Applicable Permits means all clearances, licenses, permits, authorisations, no objection certificates, consents, approvals and exemptions required to be obtained or maintained under Applicable Laws in connection with the Project during the subsistence of this Contract. The tentative permits required under the Project are set forth in Appendix 5; Associate or Affiliate means, in relation to either Party (and/or Joint Venture Members), a person who controls, is controlled by, or is under the common control with such Party (or Joint Venture Member) [as used in this definition, the expression control means, with respect to a person which is a company or corporation, the ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such person, and with respect to a person which is not a company or corporation, the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise]; Arbitration Act means the Arbitration and Conciliation Act, 1996 and shall include modifications to or any re-enactment thereof, as in force from time to time; Authority means the Party named as Authority in the Form of Contract; Authority s Representative is defined in GCC Section 8.1.1(1); Background Information Document means the Background Information Document provided to the Developer by the Authority during the bidding process that preceded this Contract; Bank means the World Bank; Bid means the documents in their entirety comprised in the bid submitted by the Successful Bidder / Joint Venture in response to the IFB in accordance with the provisions thereof and Bids Page 107

108 shall mean the bids submitted by any and all the bidders; Bidding Documents means the documents issued by the Authority in respect of the bidding process for the selection of a Developer to design, build, finance, operate, maintain & transfer the MRCI CUM OCEANARIUM and allied Facilities; Change is defined in GCC Section (1); Conditions of Contract means collectively the General Conditions of Contract and Special Conditions of Contract; Contract means the agreement between the Authority and the Developer which consists of the Contract Documents; Contract Documents means the documents set forth in Clause 1.1. of Form of Contract and any amendments or modifications thereto made in accordance with the provisions contained in this Contract; Contractor means a person or persons, as the case may be, with whom the Developer enter into any of the EPC contract, techno-commercial agreement, operations & maintenance contract, or any other agreement or a material contract for design, construction, development, operation, and / or maintenance of Project Facilities and / or matters connected therewith or incidental thereto; Contract Term means the period of the Contract, including any renewals approved by the Authority, commencing on the Effective Date and continuing to, and including, the End Date; Costs means all expenditures reasonably incurred, or to be incurred, by the Developer including overheads but excluding profit; Country means the country specified in the SCC; Data Room means the data room which may be established by the Authority in the bidding process as set out in the Bidding Documents; Debt Due means the aggregate of the following sums expressed in Indian Rupees outstanding on the Transfer Date: (a) the principal amount of the debt provided by the Lenders under the Financing Agreements for financing the Estimated Project Cost (the principal ) but excluding any part of the principal that had fallen due for repayment two years prior to the Transfer Date; (b) all accrued interest, financing fees and charges payable under the Financing Agreements on, or in respect of, the debt referred to in sub-clause (a) above until the Transfer Date but excluding (i) any interest, fees or charges that had fallen due one year prior to the Transfer Date, (ii) any penal interest or charges payable under the Financing Agreements to any Lender, and (iii) any prepayment charges in relation to accelerated repayment of debt except where such charges have arisen due to Authority s Default; and (c) any Subordinated Debt which is included in the Financial Package and disbursed by lenders for financing the Estimated Project Cost; provided that if all or any part of the Debt Due is convertible into Equity at the option of Lenders and/or the Developer, it shall for the purposes of this Contract be deemed to be Debt Due even after Page 108

109 such conversion and the principal thereof shall be dealt with as if such conversion had not been undertaken; provided further that the Grant shall not be included in the principal, for determining the amount as provided in sub-clause (a) above; Development means all works and things necessary to complete setting up of Project Facilities and commission the Project for commercial operation in accordance with this Contract; Developer means the Successful Bidder retained by the Authority, and the term includes Special Purpose Company which may be formed by the Successful Bidder to Design, Build, Finance, Operate, Maintain & Transfer the MRCI CUM OCEANARIUM and allied Facilities including post commissioning Operation & Maintenance for 25 years and is the Party named as Developer in the Form of Contract; Development Completion Certificate means a certificate issued by the Project Monitoring Engineer in accordance with GCC section 2.3.6; Development Period is defined in GCC Section 2.2(a); Development Starting Date is defined in GCC Section 2.1.3(1); Drawings means all of the drawings, calculations and documents pertaining to Project Facilities as set out and shall include as built drawings of the Project; Effective Date means the date on which this Contract comes into force and effect pursuant to GCC Section 2.1.1; End Date is defined in GCC Section 2.1.2; EPC Contract means the engineering, procurement and construction contract or contracts entered into by the Developer with one or more contractors for, inter alia, engineering and construction of the Project Facilities in accordance with the provisions of this Contract; EPC Contractor means the person with whom the Developer has entered into an EPC Contract; Extension Date is defined in GCC Section 2.4.3; Equity means the sum expressed in Indian Rupees representing the paid up equity share capital of the Developer for meeting the equity component of the Estimated Project Cost, and shall for the purposes of this Contract include convertible instruments or other similar forms of capital, which shall compulsorily be convertible into equity share of the Developer; Financing Agreements means the agreements executed by the Developer with its Lender(s) in respect of financial assistance provided by the Lenders for the Project by way of loans, guarantees, subordinated debt, subscription to non-convertible debentures and other debt instruments including loan agreements, guarantees, notes, debentures, bonds, security agreements, and other documents relating to the financing (including refinancing) of the Estimated Project Cost, and includes amendments or modifications made thereto; Final Concept & Design means development of the initial concept with such change / modification / amendment as may be desired by the Successful Bidder for a MRCI CUM Page 109

110 OCEANARIUM and allied Facilities, containing details inter alia the architectural vision & design, conceptual plans, floor plan, landscape plan, area and built volume statement, surveys & reports, investigation reports, technical specifications, designs, drawings (excluding any confidential information on any proprietary, patented technology, designs and drawings), plans, utilities, codes, program and phasing strategy, implementation plan, safety plan, environment / disaster management plan, occupational health & safety program, and site regulations & safety. The Final Concept & Design shall include all components as per Minimum Development Plan set forth in Appendix 6 and all commercial facilities including hotel, food courts / kiosks, etc. The Final Concept & Design prepared and submitted by the Developer post award of Contract shall be approved by the Authority. Force Majeure is defined in GCC Section 9.8(1); GCC Section means General Conditions of Contract Section; GOI means the Government of India; GoG or State Government or Government means the Government of Gujarat or any of its Department acting on behalf of the Government of Gujarat; Government Instrumentality means any department, division or sub-division of the Government or GoI and includes any commission, board, authority, agency or municipal and other local authority or statutory body including Panchayat under the control of the Government or GoI, as the case may be, and having jurisdiction over all or any part of the Project or the performance of all or any of the obligations of the Developer under or in pursuant of this Contract; Good Industry Practice means such practices, methods, techniques, designs, standards, skills, diligence, efficiency, reliability and prudence which are generally and reasonably expected from a reasonably skilled and experienced Project Developer engaged in the same type of Project as envisaged under this Contract and which would be expected to result in the performance of its obligations by the Developer in accordance with this Contract, Applicable Laws and Applicable Permits in reliable, safe, economical and efficient manner; IFB means the Invitation for Bids issued by the Authority in December 2017 for Design, Build, Finance, Operate, Maintain & Transfer the MRCI cum Oceanarium and allied Facilities. Initial Concept Plan means a report prepared and submitted by a Bidder to the Authority along with its Bid which records the initial design idea proposed by the Bidder to meet inter alia the requirements of Minimum Development Plan for further consideration in the Final Concept & Design stage post award of Contract; Intellectual Property means all patents, trademarks, service marks, logos, get-up, trade names, internet domain names, rights in designs, blue prints, programmes and manuals, drawings, copyright (including rights in computer software), database rights, semi-conductor, topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world; Site Lease Deed means the Lease Deed for the Site as set forth in Appendix 7; Liquidated Damages for Delay is defined in GCC Section 2.3.6(2); Page 110

111 Minimum Development Plan shall have the meaning as set forth in Appendix 6; MRCI CUM OCEANARIUM is abbreviation for Marine Research, Conservation & Information Centre cum Oceanarium; Oceanarium means either a large marine mammal park or large scale aquarium presenting an ocean habitat with marine animals, especially large ocean dwellers and which shall include facilities like acrylic tunnel with moving walkways along with various allied facilities like touch pools, marine mammal stadia, etc.; Operations Period is defined in GCC Section 2.2(b); Operations means the Operation & Maintenance of the Project Facilities by the Developer during the Operations Period ; Operations Starting Date is defined in GCC Section 2.1.3(2); Party means the Authority or the Developer, as the case may be, and Parties means both of them; Performance Security is defined in GCC Section 5.4.1(1); Project means the design, build, finance, operate, maintain & transfer the MRCI CUM OCEANARIUM and allied Facilities in accordance with the provisions of this Contract, and includes all works, services, equipment and other activities relating to or in respect of the Scope of the Contract; Project Assets means all physical and other assets relating to and forming part of the Site including (a) rights over the Site in the form of lease, right of way or otherwise; (b) tangible assets such as civil works, electrical systems, communication systems, rest areas, relief centers, maintenance depots and administrative offices; (c) Project Facilities situated on the Site including assets created towards Minimum Development Plan; (d) all rights of the Developer under the Project Agreements; (e) financial assets, such as receivables, security deposits etc.; (f) insurance proceeds; and (g) Applicable permits and authorizations relating to or in respect of the Project; Project Facilities means all the amenities and facilities situated on the Site, and other project components to be developed by the Developer from time to time during the term of this Contract; Project Implementation Schedule means the project milestones set forth in Appendix 8 and the Final Concept & Design, and any amendment or modification thereto; Project Monitoring Engineer shall have the meaning set forth in GCC Section 7.1; Developer means the Successful Bidder and the term includes Special Purpose Company (SPC) which may be formed by the Successful Bidder; Provided that in case SPC is formed by the Successful Bidder post award of Contract, the term Developer refers only the SPC and not the Selected Bidder; Developer s Representative is defined in GCC Section 8.1.2(1); Page 111

112 Site means the physical area as set out in Appendix 3 on which the Project Facilities are set-up by the Developer; Safety Consultant shall have the meaning set forth in GCC Section 3.1; Site Information is defined in GCC Section 3.5(1); Specifications and Standards means the specifications and standards relating to the quality, quantity, capacity and other requirements of the Project as included in the Final Concept & Design, and any amendment or modification thereto; Submission Deadline means the last date for the submission of bids, as stated in the Bidding Documents; Subsequent Operator means the operator identified by the Authority to continue operating the Project Facilities upon termination or completion of the Contract and may include the Authority; Taxes is defined in GCC Section 5.5; Technology means know-how and intellectual property required for development, operation and maintenance of the Project Facilities and for fulfillment of all other obligations of the Developer under this Contract. Technology shall include designs, drawings, material specifications, manual standards, assembly and testing process, quality control, quality assurance, inspection procedures and acceptance standards; Tests mean the tests carried out by the Developer to determine commissioning of Project in accordance with the provisions of this Contract and shall mutatis mutandis, include similar Tests to determine completion of MRCI CUM OCEANARIUM and allied Facilities; Termination Notice means the communication issued in accordance with this Contract by one Party to the other Party for terminating this Contract; Termination Payment means the amount payable by the Authority to the Developer under and in accordance with the provisions of this Contract, upon termination; Third Party means any person or entity other than the Parties; Time for Completion is defined in GCC Section 2.3.2; Transfer Date means the date on which this Contract expires pursuant to the provisions of this Contract or is terminated by a Termination Notice; Transition Assistance is defined in GCC Section 2.4.2; User means a person who uses or intends to use the Project Facilities or any part thereof in / on the Site; Unforeseeable means not reasonably foreseeable on the Submission Deadline by an experienced Project Developer that conducted or should have conducted the inspections and examinations or who knew or should have known the information described in GCC Section 3.5; and War Risks is defined in GCC Section 9.9(1). Page 112

113 1.2 Contract Documents Subject to the Form of Contract provisions, all documents forming part of the Contract, and all parts thereof, are intended to be correlative, complementary and mutually explanatory. The Contract shall be read as a whole. The following appendices which are incorporated by reference into the Contract shall be referred to as follows: Appendix 1 - Special Conditions of Contract (the SCC ) Appendix 2 - Technical Specifications consisting of, Appendix 2A Development Appendix ) Appendix 2B - Applicable Laws Appendix 3 - Location Map and Site Details Appendix 4 - Developer s Bid (the Proponent s Bid ) including the Technical Proposal and Financial Proposal Appendix 5 - Site Lease Deed Following documents submitted by Developer with its Bid in accordance with ITB/BDS 3.3 (g), shall also form part of the Contract: (i) The ESHS Management Strategies and Implementation Plans; (ii) Code of Conduct (ESHS). 1.3 Interpretation Language 1. All Contract Documents, all correspondence and communications to be given, and all other documentation to be prepared and supplied under the Contract shall be written in the language specified in the SCC and the Contract shall be construed and interpreted in accordance with that language. 2. If any of the Contract Documents, correspondence or communications are prepared in any language other than the governing language under GCC Section 1.3.1(1), the translation of such documents, correspondence or communications into the governing language shall prevail in matters of interpretation Singular or Plural The singular shall include the plural and the plural shall include the singular except where the context otherwise requires Headings The headings in the Contract Documents are included for ease of reference and Page 113

114 shall neither constitute a part of the Contract nor affect its interpretation Persons Words importing persons or entities shall include firms, corporations and government entities Incoterms Unless inconsistent with any provision of the Contract, the meaning of any trade term and the rights and obligations of the Parties there under shall be prescribed by Incoterms Incoterms means international rules for interpreting trade terms published by the International Chamber of Commerce, 38 Course Albert 1 er, Paris, France Entire Agreement This Contract constitutes the entire agreement between the Authority and the Developer with respect to the subject matter of the Contract and supersedes all communications, negotiations and agreements, whether written or oral, made by the Parties with respect thereto made prior to the date of the Contract Amendment No amendment or other variation of the Contract shall be effective unless it is in writing, is dated, expressly refers to the Contract and is signed by a duly authorised representative of each Party to the Contract Number of Days Except as expressly stated to the contrary elsewhere herein, in computing the number of days for the purposes of the Contract all days shall be counted, including Saturdays, Sundays and legal holidays in the Country, provided, however, that if the final day of any period shall fall on a Saturday, Sunday, or legal holiday in the Country, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or legal holiday in the Country Independence of Developer (1) The Developer shall be independent in its performance of the Contract. The Contract does not create any agency, partnership, joint venture or other joint relationship between the Authority and the Developer or its Shareholders or Affiliates. (2) Subject to the provisions of the Contract, the Developer shall be solely responsible for the manner in which the Contract is performed. All employees, agents, representatives, contractors or consultants engaged by the Developer and or its contractors in connection with the performance of the Contract shall be under the complete control of the Developer and shall not be deemed to be employees of the Authority, and nothing contained in the Contract, or in any contract or subcontract awarded by the Developer, shall be construed to create any contractual relationship or legal obligation between the Developer s employees, agents, representatives, contractors or subcontractors and the Authority. Page 114

115 Joint Venture (1) If the Developer consists of a joint venture of more than one person, all the Partners hereby authorise the representative named in the SCC to act on their behalf in exercising all the Partner s and Developer s rights and obligations towards the Authority under this Contract, including the receiving of approvals / consents / orders / certificates / instructions if any and Grant from the Authority, amendment of the Contract and in all other matters under the Contract, including the settlement of disputes. (2) If the Developer is a joint venture of two or more Partners, each Partner of the joint venture, shall be jointly and severally bound to the Authority for the fulfilment of the provisions of the Contract by the Developer. (3) The composition, control or constitution of the Developer shall be in accordance with the Developer s Bid and shall not be altered without the prior consent of the Authority Non-waiver (1) Subject to GCC Section (2), no relaxation, waiver, forbearance, delay or indulgence by either Party in enforcing any of the terms and conditions of the Contract or the granting of time by either Party to the other shall prejudice, affect or restrict the rights of that Party under the Contract, nor shall any waiver by either Party of any breach of Contract operate as waiver of any subsequent or continuing breach of Contract. (2) To be a valid waiver, any waiver of a Party s rights, powers or remedies under the Contract shall, Severability (a) be in writing; (b) be dated and signed by the Authority or Developer s Representative, whichever is granting such waiver; and (c) specify the right, power or remedy being waived and the extent to which it is being waived. If any provision or condition of the Contract is prohibited or rendered invalid or unenforceable, such prohibition, invalidity or unenforceability shall not affect the validity or enforceability of any other provisions and conditions of the Contract Country of Origin Origin means the place where the materials, equipment and other supplies for the New Facility are mined, grown, produced or manufactured, and from which the services are provided Survival of Obligations Page 115

116 1.4 Notice Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis Upon the termination or expiration of the Contract pursuant to the Contract, all rights and obligations of the Parties hereunder shall cease, except those noted in the SCC. (1) All notices to be given under the Contract shall be in writing and shall be sent by personal delivery, courier or facsimile to the address for notice of the relevant Party as set out in the SCC and the following provisions apply: (a) Any notice sent by facsimile shall be confirmed by the sender no later than two days after dispatch by a notice sent by courier; (b) Any notice sent by courier shall be deemed to have been delivered 10 days after dispatch. In proving the fact of dispatch, it shall be sufficient to show that the envelope containing such notice was properly addressed, with proper payment for the courier, and conveyed to the courier service for transmission; and (c) Any notice delivered personally or sent by facsimile shall be deemed to have been delivered on the date of dispatch. (2) A Party may change its address for notice pursuant to this Contract by giving the other Party notice of change in accordance with this GCC Section 1.4. (3) The Developer s address for the purpose of giving notice pursuant to this GCC Section 1.4 shall be in the Country named in the SCC. (4) Notices shall be deemed to include any approvals, consents, instructions, orders, certificates and similar communications to be given under the Contract. 1.5 Governing Law This Contract, its meaning and interpretation, and the relation between the Parties shall be governed by the Applicable Law. 1.6 Settlement of Disputes Adjudicator (1) If any dispute of any kind whatsoever arises between the Authority and the Developer in connection with or arising out of the Contract including, (a) any question regarding the existence, validity or termination of the Contract; and (b) any matter related to the performance of the obligations, the Parties shall seek to resolve any such dispute or difference by mutual consultation. If the Parties fail to resolve such a dispute or difference by mutual consultation, the dispute shall be referred in writing, by either the Developer or the Authority, to the Adjudicator with a copy to the other Party or Parties. (2) GC Section 1.6.1(1) shall apply, Page 116

117 (a) during the execution of the Services and after the completion of the Services; and (b) before and after the termination, abandonment or breach of the Contract. (3) The Adjudicator shall give its decision in writing to both Parties no later than 30 days after the referral of a dispute. If the Adjudicator has rendered its decision within the 30 day time limit, and no notice of intention to commence arbitration has been given by either the Authority or the Developer prior to the expiration of 60 days after the reference of the dispute to the Adjudicator, the Adjudicator s decision shall become final and binding upon the Authority and the Developer. Any decision that has become final and binding shall be implemented by the Parties forthwith. (4) The Adjudicator shall be paid a fee at the rate specified in the SCC plus reasonable expenditures incurred in the execution of its duties as Adjudicator, and these costs shall be divided equally between the Authority and the Developer. (5) If the Adjudicator resigns or dies, or the Authority and the Developer agree that the Adjudicator is not fulfilling its functions in accordance with the provisions of the Contract, a new Adjudicator shall be jointly appointed by the Authority and the Developer. If the Authority and the Developer cannot agree on a new Adjudicator within 30 days after the resignation, death or removal of the existing Adjudicator, the new Adjudicator shall be appointed at the request of either Party by the Appointing Authority specified in the SCC Arbitration (1) If either the Authority or the Developer is dissatisfied with the Adjudicator s decision, or if the Adjudicator fails to give a decision within 30 days after a dispute being referred to it, then either Party Developermay, within 60 days after such reference, give notice to the other Party with a copy for information to the Adjudicator, of its intention to commence arbitration, as hereinafter provided, as to the matter in dispute, and no arbitration in respect of this matter may be commenced unless such notice is given. (2) Any dispute in respect of which a notice of intention to commence arbitration has been given, in accordance with GCC Section 1.6.2(1), shall be finally settled by arbitration. (3) Arbitration proceedings shall be conducted in accordance with the rules of procedure designated in the SCC Obligations during Arbitration Notwithstanding any reference to arbitration herein, (a) the Parties shall continue to perform their respective obligations under the Contract unless they otherwise agree; and (b) 1.7 Assignment the Authority shall pay the Developer the Grant due to the Developer. Page 117

118 (1) The Developer shall not assign to any Third Party the Contract, or any part thereof, or any right, benefit, obligation or interest therein or thereunder without the prior consent of the Authority, which consent may not be unreasonably withheld. (2) The Developer may assign, absolutely or by way of charge, any monies due and payable to it or that may become due and payable to it under the Contract. (3) To be a valid assignment which has been approved by the Authority pursuant to GCC Section 1.7(1), the assignment must, (a) (b) (c) be in writing; be dated and signed by the Authority s Representative; and state the specific details of the assignment. 1.8 Contract Records, Accounting and Auditing Contract Records (1) Except as provided in GC Section 6.1, all, plans, programs, reports, surveys and guidelines of any kind whatsoever related to Final Concept & Design and Development and Operations of the project (the Contract Records ) prepared by the Developer in performing the Development & Operations shall become and remain the property of the Authority and the Developer shall deliver all Contract Records and a detailed inventory of those Contract Records to the Authority no later than the date of termination or expiration of the Contract, except such Contract Records that are required to be delivered at an earlier date. (2) The Contract Records shall include, (a) all safety records, records related to species history and inventory maintained by the Developer; (b) all the operational manuals and guidelines and periodic reports maintained and prepared by the Developer in carrying out the Operations Services; and the Final Concept & Design, whether stored in hard copy or electronically. ( c) All documents related to various equipment s and their history (3) The Developer shall provide the Authority with unrestricted access to the Contract Records during the term of the Contract, including the right to make and retain copies. (4) Deleted (5) Except as provided in GC Section 6.1, the Developer acknowledges that the Authority, as owner of the Contract Records, may deal with the Contract Records in any way it determines, including making the Contract Records publicly available and making those available to prospective bidders who may be involved in the process to select a Subsequent Operator. Page 118

119 1.8.2 Accounting The Developer shall prepare and keep accurate and systematic books of accounts in respect of the Project and the Contract in accordance with generally accepted accounting principles as applicable to it Audit of Developer s Accounts (1) The Authority may, at its sole discretion, audit, (a) the Estimated / Total Project Cost and actual utilization of the same on Project Facilities, accounts documents, bills, records and other documents relating to Estimated / Total Project Cost at any reasonable time and with 7 working day s notice to the Developer; and (b) the Contract Documents at any reasonable time and without notice to the Developer, (c) Adherence to Minimum Development Plan specified in Development Appendix 2A by the Developer The Authority may complete the audit or audits by itself or may retain an independent auditor, at the Authority s expense, to complete the audit or audits. The Authority shall audit the Estimated /Total Project Cost as stated in (1) in a period one year from Operations Starting Date. Developer shall submit all documents related to total Project Cost within 30 days of issuance of Development Completion Certificate Developer s Audited Accounts The Developer shall submit to the Authority, no later than 180 days after the end of the Developer s fiscal year, the annual audited financial statements for each of the Developer s fiscal years that occur during the Contract Term Inspections and Audit by the Bank The Developer shall permit and shall cause its Sub-contractors and sub-consultants to permit, the Bank and/or persons appointed by the Bank to inspect the Site and/or the accounts and records relating to the performance of the Contract and the submission of the Bid, and to have such accounts and records audited by auditors appointed by the Bank if requested by the Bank. The Developer s and its Sub-contractors and sub-consultants attention is drawn to GC Section which provides, inter alia, that acts intended to materially impede the exercise of the Bank s inspection and audit rights provided for under GC Section constitute a prohibited practice subject to contract termination (as well as to a determination of ineligibility pursuant to the Bank s prevailing sanctions procedures). 1.9 Developer s Claims during the Development Period (1) If the Developer considers itself to be entitled to any extension of the Time for Completion under any section related to Development of Project Facilities of these General Conditions of Contract, the Developer shall give notice to the Project Monitoring Engineer, describing Page 119

120 the event or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and no later than 30 days, after the Developer became aware, or should have become aware, of the event or circumstance. (2) If the Developer fails to give notice of a claim within such period of 30 days, the Time for Completion shall not be extended, and the Authority shall be discharged from all liability in connection with the claim. Otherwise, the following provisions of this GCC Section 1.9 shall apply. (3) The Developer shall also submit any other notices related to the Development which are required by the Contract, and supporting particulars for the claim, that are relevant to such event or circumstance. (4) The Developer shall keep such contemporary records as may be necessary to substantiate any claim related to the Development, either on the Site or at another location acceptable to the Project Monitoring Engineer. Without admitting the Authority s liability, the Project Monitoring Engineer may, after receiving any notice under this GCC Section 1.9, monitor the record-keeping or instruct the Developer to keep further contemporary records. The Developer shall permit the Project Monitoring Engineer to inspect all these records, and shall, if instructed, submit copies to the Project Monitoring Engineer. (5) No later than 42 days after the Developer became aware, or should have become aware, of the event or circumstance giving rise to the claim, or within such other period as may be proposed by the Developer and approved by the Project Monitoring Engineer, the Developer shall send to the Project Monitoring Engineer a fully detailed claim which includes full supporting particulars of the basis of the claim and of the extension of time. If the event or circumstance giving rise to the claim has a continuing effect, (a) this fully detailed claim shall be considered as interim; (b) the Developer shall send further interim claims at monthly intervals, giving the accumulated delay, and such further particulars as the Project Monitoring Engineer may reasonable require; and (c) the Developer shall send a final claim no later than 30 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Developer and approved by the Project Monitoring Engineer. (6) No later than 42 days after receiving a claim or any further particulars supporting a previous claim, or within such other period as may be proposed by the Developer and approved by the Project Monitoring Engineer, the Project Monitoring Engineer shall respond with approval, or with disapproval and detailed comments. The Project Monitoring Engineer may also request any necessary further particulars, but shall nevertheless give his response on the principles of the claim within such time. (7) The Developer shall proceed in accordance with GCC Section to request an extension, if any, of the Time for Completion before or after its expiry in accordance with GCC Section (8) The requirements of this GCC Section 1.9 are in addition to those of any other provision which may apply to a claim. If the Developer fails to comply with this or another provision in relation to any claim, any extension of completion time for Development shall take Page 120

121 account of the extent, if any, to which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is excluded under GCC Section 1.9(2). (9) This GCC Section 1.9 shall apply only in respect of Development of the Project Facilities.. Page 121

122 B. SUBJECT MATTER OF THE CONTRACT ARTICLE 2 - CONTRACT TERM, TIMING AND COMPLETION 2.1 General Effectiveness of Contract The Form of Contract shall be signed by the Special Purpose Company constituted by the Developer, prior to its signing by the Authority. The Contract shall come into force and effect on the date the Form of Contract is signed by the Authority which shall not be later than 60 days from the Notification of Award (the Effective Date ) Expiration of Contract This Contract shall terminate on either, (a) the specified number of months after the Operations Starting Date named in the SCC; (b) the Extension Date pursuant to GCC Section 2.4.3; or (c) the date of Contract termination pursuant to GCC Section 11.2, (the End Date ), whichever is applicable Commencement of Development 1. Unless otherwise stated in the SCC, the Development Starting Date shall be no later than 180 days after the Effective Date, this could be extended upon written request by the Developer giving explanation of having put reasonable efforts for clearances. The Developer has to give monthly progress report on progress of clearances. The Authority shall give the Developer at least seven days prior notice of the Development Starting Date. 2. The Operations Starting Date shall be the day following the date of issue of Development Completion Certificate by the Authority. 2.2 Development Period and Operations Period The Contract Term shall be divided into two periods as follows: (a) the period commencing on the Development Starting Date and ending on the date of issue of Development Completion Certificate (the Development Period ); and (b) the period commencing on the Operations Starting Date and ending on the End Date (the Operations Period ), namely the date of completion of the Operations period of 25 years or any extension thereto., commencing from the date of Operational Acceptance Certificate. 2.3 Development Period Commencement, Delays and Suspension Commencement of the Development The Developer shall commence the Development no later than the Development Page 122

123 Starting Date, and shall then proceed with the Development activities with due expedition and without delay Time for Completion The Developer shall complete the whole of the Development in accordance with the Time for Completion set out in the SCC ( Time for Completion ) including, (a) successfully completing the Tests on Commissioning; and (b) completing all of the Development activities such that the completed Project Facilities can be used as fully operational in accordance with the Contract Development Time Schedule 1. The Developer shall submit a detailed time programme (the Time Schedule ) to the Authority no later than 30 days after the Development Start Date. The Developer shall also submit a revised Time Schedule whenever the previous Time Schedule is inconsistent with actual progress or with the Developer s obligations. Each Time Schedule shall include a description of, (a) the order in which the Developer intends to carry out the Development Services, including the anticipated timing of each stage of design, Design-Build Documents, procurement, manufacture, inspection, delivery to the Site, construction, erection, testing and commissioning; (b) the periods for review and any other submissions, approvals and consents specified in the Contract; (c) the sequence and timing of inspections and tests specified in the Contract; (d) the scheduled Time for Completion, the planned Time for Completion and the planned New Operations Starting Date; (e) all major events and activities in the production of Design-Build Documents; and (f) all major phases and milestones of the Design-Build Services. 2. The Authority through Project Monitoring Engineer shall review each Time Schedule / Revised Time Schedule, as the case may be, and provide comments to the Developer as to whether the Time Schedule / Revised Time Schedule, as the case may be, complies with the Contract. If the Authority fails to provide such comments prior to the expiration of 21 days after receiving a Revised Implementation Schedule, the Project Propoent shall proceed in accordance with the Time Schedule, subject to its other obligations under the Contract. The Developer shall be entitled to rely upon the Project Implementation Schedule / Revised Implementation Schedule, as the case may be, when planning its activities. 3. The Developer shall promptly give notice to the Authority Project Monitoring Engineer of specific probable future events or circumstances which may adversely affect the Development or delay the execution of the Contract. The Project Monitoring Engineer may require the Developer to submit an estimate of the anticipated effect of the future event or circumstances, or a proposal under GCC Section Page 123

124 4. If, at any time, the Authority gives notice to the Developer that a Time Schedule / Revised Time Schedule, as the case may be, fails, to the extent stated, to comply with the Contract or to be consistent with actual progress and the Developer s stated intentions, the Developer shall submit a Revised Time Schedule to the Authority in accordance with this GCC Section Extension of the Time for Completion 1. The Time for Completion shall be extended if the Developer is delayed or impeded in the performance of the Development by reason of any of the following: (a) a Change, unless the Parties have already agreed to an adjustment to the Time for Completion as part of the applicable Change; (b) an occurrence of Force Majeure as provided in GCC Section 9.8, Unforeseeable physical conditions as provided for in GCC Section 9.7, or loss or damage as a result of the occurrences set out in GCC Section 9.4(2); (c) any suspension order given by the Authority pursuant to GCC Section ; (d) any change in the Applicable Law in accordance with GCC Section 9.10; (e) any default or breach of the Contract by the Authority or any activity, act or omission in performance of obligations by the Authority; or (f) any other matter specifically mentioned in the Contract, by such period as shall be fair and reasonable in all the circumstances and as shall fairly reflect the actual delay or impediment sustained by the Developer. 2. The Developer shall submit, to the Authority, any notice of a claim for an extension of the Time for Completion in accordance with GCC Section The Developer shall, at all times, use reasonable efforts to minimize any delay in the performance of its obligations under the Contract Rate of Progress 1. If, at any time, the Developer s progress in respect of the Development, (a) is too slow to complete the Development of the Project Facilities in accordance with the Time for Completion; or (b) has fallen, or will fall, behind the current Time Schedule other than as a result of a cause listed in GCC Section 2.3.4, then the Authority may instruct the Developer to submit a Revised Implementation Schedule and supporting report describing the revised methods which the Developer proposes to adopt in order to expedite progress and complete the Development. 2. Unless the Authority notifies otherwise, the Developer shall adopt the revised methods referred to in GC Section 2.3.5(2), which may require increases in, Page 124

125 the working hours or in the numbers of Developer s Personnel, or both; or (a) Plant and Equipment, at the risk and cost of the Developer Delay of Completion Liquidated Damages - Delay 1. The Developer guarantees that it shall start Operation of the MRCI CUM OCEANARIUM and allied Facilities in accordance with the Time for Completion specified in the SCC and GCC Section or in accordance with an extension of the Time for Completion granted to the Developer in accordance with GCC Section If the Developer fails to complete Commissioning of the Project Facilities within the Time for Completion, or any extension thereof in accordance with GCC Section 2.3.4, the Developer shall pay to the Authority liquidated damages in the amount specified in the SCC ( Liquidated Damages-Delay ). The aggregate amount of Liquidated Damages - Delay shall in no event exceed the amount specified as Maximum in the SCC. The Authority may terminate the Contract pursuant to GC Section if the Developer reaches the Maximum level for Liquidated Damages Delay. 3. The payment or payments by the Developer of Liquidated Damages Delay shall completely satisfy the Developer s obligation to complete Development of the Project Facilities within the Time for Completion or any extension thereof pursuant to GCC Section The payment or payments by the Developer of Liquidated Damages Delay shall not in any way relieve the Developer of its obligations to complete the Facility or any other obligations and liabilities of the Developer under the Contract Tests At least 30 (thirty) days prior to the likely completion of the Project Facilities as per the Final Concept & Design or any amendment or modification thereto, the Developer shall notify the Project Monitoring Engineer of its intent to subject the project components under Minimum Development Plan to tests including environment, safety aspects and to issue Development Completion Certificate. The date and time of each of the Tests shall be mutually agreed upon between the Developer and Project Monitoring Engineer, and notified to the Authority who may designate its representative to witness the Tests. In the event of the Developer and the Project Monitoring Engineer failing to mutually agree on the dates for conducting the Tests, the Developer shall fix the dates by not less than 10 (ten) days notice to the Project Monitoring Engineer. The Project Monitoring Engineer shall observe, monitor and review the result of the Tests to determine compliance of the project components under Minimum Development Plan with respect to environment, social, health and safety aspects and also to issue Development Completion Certificate and if it is reasonably anticipated or determined by the Project Monitoring Engineer during the course of any Test that the performance of the project components under Minimum Development Plan or any part thereof does not meet the specifications and standards for the Project, it shall have the right to suspend or delay such Test and require the Developer to remedy and rectify the defects or deficiencies. Upon Page 125

126 completion of each Test, the Project Monitoring Engineer shall provide to the Developer and the Authority copies of all Test data including detailed test results. For the avoidance of doubt, it is expressly agreed that the Project Monitoring Engineer may require the Developer to carry out additional Tests, in accordance with Good Industry Practice, for determining the compliance of the Project Facilities with specifications and standards. Rescheduling of Tests If the Project Monitoring Engineer certifies to the Authority and the Developer that it is unable to issue the Project Completion Certificate because of events or circumstances on account of which the Tests could not be held or had to be suspended, the Developer shall be entitled to re-schedule the Tests and hold the same as soon as reasonably practicable. Development Completion Certificate Upon Development of Project Facilities and successful completion of Tests, Authority shall issue to the Developer a certificate (the Development Completion Certificate ). 2.4 Operations Period Commencement of the Operations The Developer shall commence the Operations no later than the Operations Starting Date and shall then proceed with the Operations with due exception and without delay Assistance after the End Date The Developer, upon written request by the Authority no later than 60 days prior to the End Date, shall provide assistance to the Authority, at the cost of Authority, during a transitional period of up to 60 days after the End Date (the Transition Assistance ). The purpose of the Transition Assistance is to ensure a smooth transition between the Developer and a Subsequent Operator of the Project Facilities. The Transition Assistance shall be related to only transition services and shall not be the full Operation of the Project Facilities as set out in the Final Concept & Design. During the Transition assistance there will be joint operations by Developer and the subsequent operator and the cost of the same shall be met from the revenues generated from the project Extension of the Contract If both Parties agree, this Contract may be extended for a period of up to 25 years after the End Date. The Party interested shall notify the other Party Developerno later than 6 months prior to the End Date if it wishes to enter into negotiations in order to extend the duration of the Contract. The date on which the Contract is to expire as a result of an extension shall be the Extension Date. Page 126

127 ARTICLE- 3: OBLIGATIONS OF THE DEVELOPER 3.1 General Services The Developer shall 1) The Developer shall comply with all Applicable Laws and Applicable Permits (including renewals as required) in connection with the Project. 2) The Developer shall discharge its obligations in accordance with Good Industry Practice and as a reasonable and prudent person. 3) The Developer shall, at its own cost and expense, in addition to and not in derogation of its obligations elsewhere set out in this Contract: a) make, or cause to be made, necessary applications to the relevant Government Instrumentalities with such particulars and details, as may be required for obtaining all Applicable Permits and obtain and keep in force and effect such Applicable Permits in conformity with the Applicable Laws; b) procure, as required, the appropriate proprietary rights, licences, agreements and permissions for materials, methods, processes and systems used or incorporated into the Project; c) perform its payment obligations to the Authority as per the provisions of this Contract; d) perform and fulfil its obligations under the Financing Agreements; e) make reasonable efforts to maintain harmony and good industrial relations among the personnel employed by it or its contractors and consultants in connection with the performance of its obligations under this Contract; f) ensure and procure that its contractors and consultants comply with all Applicable Laws and Applicable Permits in the performance by them of any of the Developer s obligations under this Contract; g) not do or omit to do any act, deed or thing which may in any manner be violative of any of the provisions of this Contract; h) always act in a manner consistent with the provisions of this Contract and not cause or fail to do any act, deed or thing, whether intentionally or otherwise, which may in any manner be violative of any of the provisions of this Contract; i) procure that all facilities and amenities within the Project are operated and maintained in accordance with Good Industry Practice and the users have nondiscriminatory access for use of the same; j) ensure that users are treated with due courtesy and consideration and provided with ready access to services and information; k) procure updation and improvement of Technology from time to time and carry out upgradation and renovation of the Project Facilities to ensure safety and reliability and /or economic value of the Project; l) Transfer the Project Facilities to the Authority at the End Date, in accordance with the provisions thereof. Page 127

128 3.1.1 Employment of trained personnel The Developer shall ensure that the personnel engaged by it and / or its contractors and consultants in the performance of its obligations under this Contract are at all times properly trained for their respective functions Obligations relating to aesthetic quality of the Project The Developer shall maintain high standard in the appearances and aesthetic quality of the Project and achieve integration of the Project with the character of the surrounding landscape through both appropriate design and sensitive management of all visible elements. The Developer shall engage professional designers for ensuring that the design of Project meeting the aesthetic standards Safety Requirements The Developer shall comply with the provisions of this Contract, Applicable Laws and Applicable Permits and conform to Good Industry Practice for securing the safety of the users. In particular, the Developer shall develop, implement and administer a surveillance and safety programme for providing a safe environment on or about the Project Facilities, and shall comply with the safety of International Standards. The Authority shall appoint an experienced and qualified firm or organization (the Safety Consultant ) or direct the Project Monitoring Engineer for carrying out safety audit of the Project Facilities in accordance with the Safety Requirements, and shall take all other actions necessary for securing compliance with the Safety Requirements Expenditure on Safety Requirements All costs and expenses arising out of or relating to safety requirements shall be borne by the Developer to the extent such costs and expenses are reasonably necessary to ensure safety of users and Project Facilities Safety Certification during Operations Period The Developer, shall during the Operations Period, comply to the safety requirements for the Project and carry out the periodic testing, mock drills, etc. of its safety equipment and maintain the validity of its safety clearance as applicable from the respective statutory agencies. 3.2 Compliance with Laws The Developer shall comply with the Applicable Law and shall ensure that the Developer s Personnel and contractors comply with the Applicable Law. The Developer shall indemnify and hold harmless the Authority from and against any and all liabilities, damages, claims, fines, penalties and expenses of whatever nature arising or resulting from violation of the Applicable Law by the Developer, the Developer s Personnel the contractors and the subcontractors personnel. 3.3 Conflict of Interest (1) The Grant provided by the Authority to Developer pursuant to GCC Article 5 shall be the Page 128

129 Developer sole financial assistance provided in connection with this Contract and, except as provided in GCC Article 5, the Developer shall not accept for its own benefit any trade commission, discount or similar payment in connection with activities pursuant to this Contract or in the discharge of its obligations hereunder, and the Developer shall use its best efforts to ensure that the Developer s Personnel, contractors, and the subcontractors employees and agents, similarly shall not receive any such payments. (2) Deleted. (3) Deleted (4) The Developer and its Shareholders shall not participate in any discussions or work and shall not provide any services or advice to the Authority related to, (a) Deleted; (b) the development or review of bidding documents to retain any Subsequent Operator; or (c) the preparations for the procurement process to retain any Subsequent Operator. 3.4 Site Information and Investigation 1. The Developer acknowledges that the Authority made available to the Developer, during the bidding process, either directly or by placing the data in the Data Room and Background Information Document, all available data on hydrological and sub-surface conditions of the Site, and studies on environmental impact that had been obtained by or on behalf of the Authority from investigations in anticipation of the Development and Operations (the Site Information ). The Developer shall be responsible for interpreting all data about the Site that is provided to it by the Authority. 2. The Developer shall be deemed to have inspected and examined the Site, its surroundings, the Site Information and other available information, and to have satisfied itself before entering into the Contract, as to, a) the form and nature of the Site, including the sub-surface conditions; b) the applicable hydrological, hydro-geological and climatic conditions; c) the Scope of the Project and its obligations under the Contract for Development and Operation of the Project Facilities, and the remedying of any defects; and d) the Developer s requirements for access to the Site, accommodation, personnel, power, transport, water and other services. 3. The Developer shall be deemed to have obtained all necessary information as to risks, contingencies and all other circumstances that may influence or affect the performance of its obligations under the Contract. 4. To the extent the Developer did not make any of the interpretations, investigations or examinations, or did not satisfy itself, or did not obtain such information as called for in this GCC Section 3.5, the Developer represents and warrants that it is willing to assume and does hereby assume responsibility for any and all loss and damage from any cause whatsoever which the Developer s interpretations, investigations, examinations and obtaining of information may have avoided and agrees to indemnify the Authority from all Page 129

130 risk thereof and from conditions arising or developing in the course of performing its obligations which may make the Development and Operation of Project Facilities more onerous and more expensive to fulfil or perform than was contemplated on the Effective Date. Notwithstanding anything in the Contract to the contrary, the Developer acknowledges and declares that in entering into the Contract it did not and does not rely upon any information or report provided by or on behalf of the Authority or its agents, representatives or employees. 3.5 Access to the Site and Project Facilities by the Authority (1) The Developer shall, during both the Development and Operation Periods, provide free and uninterrupted access to the Authority s officials to the Site and the Project Facilities at the Authority s request to carry out their obligations under the Contract. The Authority shall make reasonable efforts to provide reasonable notice to the Developer prior to the Authority s access.. The Developer shall give all reasonable access to any Agency or staff employed by the Authority to carry out any work in the Marine Research Conservation and Information (MRCI) Centre, especially at the research space proposed to be created as part of the facility Page 130

131 ARTICLE 4 - OBLIGATIONS OF THE AUTHORITY 4.1 Authority s Obligations to the Developer The Authority shall use reasonable efforts to, (a) provide the Developer, contractors and Developer s Personnel with work permits and such other documents as shall be necessary to enable the Developer, contractors or Developer s Personnel to perform their respective obligations; (b) Facilitate for Developer s Personnel and, if appropriate, their eligible dependants to obtain promptly all necessary entry and exit visas, residence permits, exchange permits and any other documents required for their stay in the Country; (c) Facilitate the prompt clearance through customs of any material, equipment, goods or other items required for the Development and Operation of the Project Facilities and of the personal effects of the Developer s Personnel and their eligible dependants; and (d) Issue to officials, agents and representatives of the Authority all such instructions as may be necessary or appropriate for the prompt and effective implementation of the obligations by the Developer. (e) The Authority shall, at its own cost and expenses undertake, comply with and perform all its obligations set out in this Contract or arising hereunder. (f) The Authority agrees to provide support to the Developer and undertakes to observe, comply with and perform, subject to and in accordance with the provisions of this Contract and the Applicable Laws, the following: (g) upon written request from the Developer, and subject to the Developer complying with Applicable Laws, provide all reasonable support and assistance to the Developer in procuring Applicable Permits required from any Government Instrumentality for Development and Operation of the Project; (h) upon written request from the Developer, assist the Developer in obtaining access to all necessary infrastructure facilities and utilities, including water and electricity at rates and on terms no less favourable to the Developer than those generally available to commercial customers receiving substantially equivalent services; (i) Facilitate obtaining approval from the local body and relevant agencies; (j) Facilitate customs duty, GST and other exemptions for the Project entitled by the Developer under Applicable Laws; (k) Facilitate all Applicable Permits relating to environmental protection and conservation of the Site: (l) Release of Grant amount by the Authority to the Developer as per Schedule set forth in SCC, based on request made by the Developer; Page 131

132 (m) assure as far as possible that no barriers are erected or placed on the Site by the Authority, by any Government Instrumentality or persons claiming through or under it; (n) assist the Developer in seeking police assistance wherever necessary during the course of the Project; (o) not do or omit to do any act, deed or thing which may in any manner be violative of any of the provisions of this Contract; and (p) support, cooperate with and facilitate the Developer in the Development and Operation of the Project Facilities in accordance with the provisions of this Contract. 4.2 Access to the Site and Facility The Authority shall be responsible for acquiring and providing legal and physical possession of the Site, all associated areas and right-of-ways, and permission if required to access there and to all other areas reasonably required for the proper execution of the Contract including all requisite rights of way. The Authority shall provide the Developer, free of charge, full possession of the Site and all necessary associated areas as advised by the Developer for creating required Project Facilities during the term of the Contract. The Authority shall execute and register the Site Lease Deed as per format prescribed in Appendix 7 simultaneously on signing of the Form of Contract. 4.3 Reviews and Approvals of Submissions (1) Upon submission of Final Concept & Design within 120 days from Effective Date by the Developer to the Authority for approval, the Authority shall review and either approve or provide written comment to the Developer no later than 60 days after the day of submission by the Developer or the Development Starting Date whichever is later (2) If the Authority fails to approve or refuses to approve the Developer s submission in accordance with GC Section 4.3(1), the Developer shall notify the Authority in writing that it has not received a response to its submission. (3) If the Authority, as applicable, fails to respond to the Developer s written notification pursuant to GC Section 4.3(2) within 30 days after the receipt by the Authority, as applicable, of the Developer s written notification, the Developer s submission shall be deemed to be approved. Page 132

133 C. GRANT TO THE DEVELOPER ARTICLE 5 GRANT AND DISBURSEMENT 5.1 Grant The Authority shall provide Grant of an agreed amount stipulated in SCC to the Developer in accordance with the Contract conditions which shall be utilized along with the Developer s funds to meet the cost of Project Facilities within the Time for Completion specified in the Contract. 5.2 Terms of Disbursement of Grant (1) The Authority shall, subject to the contract conditions, disburse the agreed Grant amount as per Schedule and Procedure stipulated in SCC. (2) The currency or currencies in which Grant shall be disbursed to the Developer under this Contract shall be specified in the SCC. 5.3 Liquidated Damages - Operations The Developer shall pay the Authority liquidated damages for failure to meet Technical Standards (as set out in the Final Concept and Design) at the rate specified in SCC Securities Performance Security (1) The Developer shall provide Securities (Contract Performance and ESHS Performance) for its proper performance of the Contract to the Authority no later than the date specified in the Bidding Documents (the Performance Security ). (2) The Performance Security shall be, (a) in the amount specified in the SCC; (b) denominated in the currency stipulated in SCC; and (c) shall be in the form specified in the Bidding Documents or in another form approved by the Authority. (3) The Performance Security is a bank guarantee and shall be issued by either, (a) a bank or insurance company located in the Country; or (b) a foreign bank or insurance company through a correspondent bank or insurance company located in the Country. (4) The Performance Security shall be valid until 180 days after the End Date, or any extension to the End Date. (5) The Authority shall return the Performance Security no later than 14 days after its expiration. Page 133

134 (6) The cost of complying with this GCC Section shall be borne by the Developer. 5.5 Taxes and Duties Except as otherwise specifically provided in the Contract, the Developer shall bear and pay all the taxes, duties, levies and charges, if any assessed on the Developer by all municipal, state or national government authorities in connection with the Project in and outside of the Country. Page 134

135 D. INTELLECTUAL PROPERTY ARTICLE 6 TECHNOLOGY, PATENT, TRADE MARK, COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS: 6.1 Technology, Patent,, Trade Mark, Copyright and other Intellectual Property Rights (1) As between the Parties, the Developer shall retain the patents, technical know-how, trade mark, information, copyright and other intellectual property rights on the Contract Documents, Final Concept & Design and amendments or modifications thereto, the Project Facilities and Project Assets. The Authority shall not be entitled to any right or licence to copy, use or communicate any technology, patent, technical know-how, trademark, copyright, and / or other intellectual property rights applied in Development and Operation of Project Facilities. (2) On Transfer of MRCI cum Oceanarium and allied Facilities, the Authority will have the limited right to use the technology existing on Project Facilities as at the End Date. 6.2 Confidentiality (1) The Developer shall not use any documents, data and other information received from the Authority for any purpose other than as are required for the performance of its obligations under the Contract. (2) The obligations of the Developer under GCC Sections 6.2(1) and 6.2(2), shall not apply to that information which, (a) now or hereafter enters the public domain through no fault of the Developer; (b) can be proven to have been possessed by the Developer at the time of disclosure and which was not previously obtained, directly or indirectly, from the Authority; or (c) otherwise lawfully becomes available to the Developer from a Third Party that has no obligation of confidentiality. Page 135

136 E. EXECUTION OF THE CONTRACT OBLIGATIONS ARTICLE 7 CONTRACT MONITORING DURING THE DEVELOPMENT AND OPERATION PERIODS BY AUTHORITY 7.1 Appointment of Project Monitoring Engineer The Authority shall adopt two separate approaches to contract monitoring during the Contract Term as follows: (a) from the Effective Date until the Operations Starting Date, the Development Monitoring approach will be put in place by the Authority; and (b) from the Operations Starting Date until the End Date, the Operations Monitoring approach will be put in place by the Authority. The Authority shall appoint a globally reputed project management consulting firm with proven track record in setting up, operate and maintaining Oceanarium Projects with similar or higher specification as the Project Monitoring Engineer (the Project Monitoring Engineer ). The Project Monitoring Engineer shall be the Authority s Representative under the Contract during the Development Period. 7.2 Development Monitoring Monitoring during the Development Period GCC Section 7.2 shall apply only during the Development Period Project Monitoring Engineer s Duties and Authority) (1) The Role of Project Monitoring Engineer during the Development Period is limited to the following : (a) To monitor the Developer complies with the Minimum Development Plan specified in Appendix 6; (b) To ensure that Development of Project Facilities are in line with Project Implementation Schedule / Revised Implementation Schedule, as the case may be; (c) To grant extension of time for Development of Project Facilities to Developer on happening of any event specified in the Contract Documents; (d) To monitor Tests on completion of Development of Project Facilities for commissioning of Project; (e) To issue Development Completion Certificate on satisfactory completion of Tests by the Developer; (f) To carry out Safety Audit of Project Facilities as and when required by the Page 136

137 Authority; (g) To ensure that international safety standards and environmental aspects included in Final Concept & Design are followed and the Project Facilities are safe for use by the Public; (h) To furnish to the Authority a monthly report on progress of Development within 10 days of close of each month; (i) To give such other information as may be required by the Authority from time to time; (j) To ensure that Environmental, Social, Health & Safety (ESHS) Management Strategies and Implementation Plans and Code of Conduct are adopted by the Developer on the Project; (k) To inspect the Project Facilities at least once in a quarter, make report of such inspection (the Inspection Report ) and send the same to the Authority and Developer within 7 (seven) days of such inspection; (l) To submit copies of communication exchanged with the Developer and vice versa to the Authority forthwith. (m) To perform any other function which is required to be performed by the Project Monitoring Engineer under the Contract Documents; (2) The Project Monitoring Engineer shall have no authority to amend the Contract. (3) The remuneration, cost and expenses of Project Monitoring Engineer shall be borne by the Authority. (4) If the Project Monitoring Engineer is obligated to obtain the approval of the Authority before exercising a specific authority, these restrictions shall be set out in the SCC. If the Project Monitoring Engineer exercises a specified authority for which the Authority s approval is required then, for the purposes of the Contract, the Authority shall be deemed to have given approval. (5) Except as otherwise stated in the Contract i. if the Project Monitoring Engineer carries out duties or exercises authority, specified in or implied by the Contract, the Project Monitoring Engineer shall be deemed to act for the Authority; Replacement of the Project Monitoring Engineer If the Authority intends to replace the Project Monitoring Engineer, the Authority shall, not less than 42 days before the intended date of replacement, give notice to the Developer of the name, address and relevant experience of the intended replacement Project Monitoring Engineer. The Authority shall not replace the Project Monitoring Engineer with a person against whom the Developer raises reasonable objection by notice to the Authority, with supporting particulars Determinations by the Project Monitoring Engineer Page 137

138 (1) Whenever the Contract specifically provides that the Project Monitoring Engineer shall proceed in accordance with this GCC Section to agree or determine any matter within its scope covered under GCC Section 7.2.2(1), the Project Monitoring Engineer shall consult with each Party in an endeavour to reach agreement. If agreement is not achieved, the Project Monitoring Engineer shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances. (2) The Project Monitoring Engineer shall give notice to the Parties of each agreement or determination, with supporting particulars. Each Party shall give effect to each agreement or determination unless and until revised under GCC Section Operations Monitoring Monitoring during the Operations Period This GCC Section 7.3 shall apply only during the Operations Period and the period of time immediately after the End Date solely for the purpose of resolving transition issues and any outstanding issues arising during the Operations Period. The role of Authority s Representative during the Operations Period is limited to the following functions (a) To monitor the Developer continues to comply with Minimum Development Plan specified in Appendix 2A; (b) To ensure that international safety standards and environmental aspects included in Final Concept & Design and any amendment or modification thereto are followed and the Project Facilities are safe for use by the Public; and (c) To ensure that Environmental, Social, Health & Safety (ESHS) Management Strategies and Implementation Plans and Code of Conduct are adopted by the Developer on the Project. (d) Monitoring compliance with any standards applicable for operation of the Facility or adherence to operation manual Page 138

139 ARTICLE 8 REPRESENTATIVES, STAFF AND SUBCONTRACTING 8.1 Representatives Authority s Representative during the Development Period (1) Project Monitoring Engineer shall be the Authority s representative (the Authority s Representative ) during the Development. (2) The Authority shall name its Representative no later than 14 days after the Effective Date. (3) The Authority may change its Representative from time to time and shall give notice of the change without delay. The Authority shall not change its representative at a time and in such a manner as to impede the progress of Development or the Operations. (4) The Authority s Representative shall represent and act for the Authority at all times during the performance of the Contract. All notices, instructions, orders, certificates, approvals and all other communications under the Contract by the Authority shall be given by the Project Monitoring Engineer as applicable, except as herein otherwise provided. (5) All notices, instructions, information and other communications given by the Developer to the Authority under the Contract shall be given to the Project Monitoring Engineer, except as herein otherwise provided Developer s Representative (1) If the Developers s representative is not named in the SCC, the Developer shall name its representative (the Developer s Representative ) no later than 14 days after the Effective Date and shall request the Authority to approve the proposed Developer s Representative. If the Authority makes no objection to the proposed Developer s Representative, the Developer s Representative shall be deemed to have been approved. (2) If the Authority objects to the proposed Developer s Representative before the expiration of 14 days after the proposal, the Developer shall propose a replacement no later than 14 days after receiving the Authority s objection and reasons for the objection and GC Section 8.1.2(1) shall apply to the proposed replacement. (3) The Developer s Representative shall represent and act for the Developer at all times during the performance of the Contract. All notices, instructions, orders, certificates, approvals and all other communications under the Contract by the Developer shall be given by the Developer s Representative, except as herein otherwise provided. (4) All notices, instructions, information, and other communications given by the Authority to the Developer under the Contract shall be given to the Developer s Representative as established pursuant to this GC Section (5) The Developer shall not revoke the appointment of the Developer s Representative without the Authority s prior written consent, which shall not be unreasonably withheld. If the Authority consents thereto, the Developer shall appoint some other person as the Developer s Representative, pursuant to the procedure set out in this GC Section Page 139

140 (6) The Developer s Representative may, subject to the approval of the Authority, which shall not be unreasonably withheld, at any time delegate to any person any of the powers, functions and authorities vested in him or her. Any such delegation may be revoked at any time. Any such delegation or revocation shall be subject to a prior notice signed by the Developer s Representative, and shall specify the powers, functions and authorities thereby delegated or revoked. No such delegation or revocation shall take effect unless and until a copy thereof has been delivered to the Authority and the Project Monitoring Engineer. (7) Any act or exercise by any person of powers, functions and authorities so delegated to him or her in accordance with GC Section 8.1.2(6) shall be deemed to be an act or exercise by the Developer s Representative. 8.2 Developers Superintendence (1) Throughout the term of Contract, the Developer shall provide all necessary superintendence to plan, arrange, direct, manage, inspect and test the Services. (2) Superintendence shall be given by a sufficient number of persons having adequate knowledge of the language for communications as set out in the SCC and of the operations to be carried out, including the methods and techniques required, the hazards likely to be encountered and methods of preventing accidents, for the satisfactory and safe execution of the Services. (3) The Developer s Representative shall appoint a suitable person as construction or operations manager as applicable (the Manager ). The Manager shall supervise all work done at the Site and Facility by the Developer and shall be present at the Site or Facility through normal working hours except when on leave, sick or absence connected with the proper performance of the Contract. Whenever the Manager is absent from the Site, a suitable person shall be appointed to act as his or her deputy. 8.3 Developer s Personnel (1) The Developer shall provide and employ on the Site for the performance of the Operations such skilled, semi-skilled and unskilled labour as is necessary for the proper and timely execution of the Contract (the Developer s Personnel ). The Developer is encouraged to use local labour that has the necessary skills. The Developer shall provide all expertise needed to carry out the Operations. (2) Unless otherwise provided in the Contract, the Developer shall be responsible for the recruitment, employment, transportation, accommodation and catering of all labour, local or expatriate, required for the execution of the Contract and for all payments in connection therewith. (3) The Developer shall be responsible for obtaining all necessary permits and visas from the appropriate authorities for the entry of all labour and personnel to be employed on the Site into the Country. (4) The Developer shall at its own expense provide the means of repatriation to all of its and its Subcontractor s personnel employed on the Contract at the Site to their various home countries. It shall also provide suitable temporary maintenance of all such persons from the cessation of their employment on the Contract to the date programmed for their departure. In the event that the Developer defaults in providing such means of transportation and Page 140

141 temporary maintenance, the Developer may provide the same to such personnel and recover the cost of doing so from the Developer. (5) The Developer shall at all times during the progress of the Contract use its best endeavours to prevent any unlawful, riotous or disorderly conduct or behaviour by or amongst its employees and the labour of its Subcontractors. (6) The Developer shall, in all dealings with its labour and the labour of its Subcontractors currently employed on or connected with the Contract, pay due regard to all recognized festivals, official holidays, religious or other customs and all local laws and regulations pertaining to the employment of labour. 8.4 Replacement of Developer s Personnel The Developer or Project Monitoring Engineer may require the Developer to remove and replace any member of the Developer s Personnel who, (a) persists in any misconduct or lack of care; (b) carries out duties incompetently or negligently; (c) fails to comply with any provision of the Contract including the Developer s ESHS commitments; or (d) persists in any conduct which gives the Authority reasonable cause to be dissatisfied with him or her. 8.5 Subcontractors (1) The Developer shall not enter into any contract or contracts that will result in the Developer exceeding the maximum percentage of subcontracting permitted by the Authority in respect of the Development and the Operations, as set out in the Bidding Documents. (2) Except with respect to the Subcontractors named in the Developer s Bid, the Developer shall not enter into a contract with any Subcontractor without the prior consent of the Authority. (3) The Developer shall be responsible for the observance by Subcontractors of the terms and conditions of the Contract and shall ensure that all relevant terms of the Contract are included in the Developer s contracts with Subcontractors. (4) Subcontracting by the Developer shall not relieve the Developer of any of its obligations under the Contract and the Developer shall be responsible for the acts, omissions and defaults of all Subcontractors, and the Subcontractors, employees, agents and subsubcontractors, as fully as if they were acts, omissions or defaults of the Developer or the Developer s Personnel. Page 141

142 F. LIABILITY AND RISK DISTRIBUTION ARTICLE 9 LIABILITY AND RISK DISTRIBUTION 9.1 Defect Liability The Developer warrants that the Site and Project Facilities or any part thereof shall be free from defects in the design, engineering, materials and workmanship. It shall be Developer s responsibility to maintain at all times at its cost the MRCI CUM OCEANARIUM and allied Facilities and keep them free from any defects throughout the period of operations, i.e. 25 years after the Development Period till the same is handed over to the Authority in good working order. 9.2 Limitation of Liability Except in cases of criminal negligence or wilful misconduct, (a) the Developer shall not be liable to the Authority in contract, tort, or otherwise, for any indirect or consequential loss or damage, loss of use, or loss of profits or interest costs, provided that this exclusion shall not apply to any obligation of the Developer to pay liquidated damages to the Authority; and (b) the aggregate liability of the Developer to the Authority, whether under the Contract, in tort or otherwise, shall not exceed the amount of Grant disbursed by the Authority. 9.3 Transfer of Ownership and Existing Equipment and Materials Not Applicable 9.4 Care of the Site and Facility (1) Except as provided in GCC Sections 9.9 and 9.4(2), the Developer shall be responsible for the care and custody of the Site and Project Facilities or any part thereof until the End Date and shall make good at its own cost any loss or damage that may occur to the Site or Project Facilities from any cause whatsoever during such period except for fair wear and tear and natural or man-made occurrences such as earthquakes, land subsidence, sea level rises, tsunamis or typhoons or other similar damaging events. The Developer shall also be responsible for any loss or damage to the Site or Project Facilities caused by the Developer or its contractors in the course of any activity carried out, pursuant to GCC Section 9.1. (2) If any loss or damage occurs to the Site or Project Facilities or any part thereof by reason of, (a) insofar as they relate to the Country, nuclear reaction, nuclear radiation, radioactive contamination, pressure wave caused by aircraft, watercraft, landcraft or other objects, or any other occurrences that an experienced Project Developer Developercould not reasonably foresee, or if reasonably foreseeable could not reasonably make provision for or insure against, insofar as such risks are not normally or practically insurable on the insurance market and are mentioned in the general exclusions of the policy of insurance, including War Risks, taken out under GCC Section 9.6; (b) any use or occupation by the Authority or any Third Party, other than a contractor, authorized by the Authority of any part of the Site or Project Facilities; or Page 142

143 (c) any use of or reliance upon any data or specification provided or designated by or on behalf of the Authority, or any such matter for which the Developer has disclaimed responsibility herein, (d) the Authority shall pay to the Developer all sums payable in respect of the Site executed, notwithstanding that the same be lost, destroyed or damaged. If the Authority requests the Developer in writing to make good any loss or damage to the Project Facilities thereby occasioned, the Developer shall make good the same at the cost of the Authority in accordance with GCC Section 10.1.If the Authority does not request the Developer in writing to make good any loss or damage to the Project Facilities thereby occasioned, the Authority shall either request a change in accordance with GCC Section 10.1, excluding the performance of that part of the Project Facilities thereby lost, destroyed or damaged, or, where the loss or damage affects a substantial part of the Project Facilities, the Authority shall terminate the Contract pursuant to GCC Section (3) The Developer shall be liable for any loss of or damage to any Developer's Equipment (Development), Developer's Equipment (Operations) or any other property of the Developer used or intended to be used for purposes of the Site or the Facility, except where such loss or damage arises by reason of any of the matters specified in GC Sections 9.4(2)(b) and 9.9. (4) With respect to any loss or damage caused to the Facility or any part thereof, the Developer's Equipment (Development) or the Developer's Equipment (Operations) by reason of any of the matters specified in GC Section 9.9(1), the provisions of GC Section 9.9(3) shall apply. 9.5 Indemnification (1) Subject to GCC Section 9.5(5), the Developer shall indemnify and hold harmless the Authority and its employees and officers from and against any and all suits, actions or administrative proceedings, claims, demands, losses, damages, costs, and expenses of whatsoever nature, including attorney s fees and expenses, in respect of the death or injury of any person arising in connection with the Developer s performance of the Contract and by reason of the negligence of the Developer or its contractors, or their employees, officers or agents, except any injury, death or property damage caused by the negligence of the Authority, its contractors, employees, officers or agents. (2) If any proceedings are brought or any claim is made against the Authority that might subject the Developer to liability under GCC Section 9.5(1), the Authority shall promptly give the Developer a notice thereof and the Developer may at its own expense and in the Authority s name conduct such proceedings or claim and any negotiations for the settlement of any such proceedings or claim. (3) If the Developer fails to notify the Authority prior to the expiration of 30 days after receipt of a notice given pursuant to GCC Section 9.5(2) that it intends to conduct any such proceedings or claim, then the Authority shall be free to conduct the same on its own behalf. Unless the Developer has so failed to notify the Authority within the 30 days period, the Authority shall make no admission that may be prejudicial to the defence of any such proceedings or claim. (4) The Authority shall, at the Developer s request, provide all available assistance to the Page 143

144 Developer in conducting such proceedings or claim, and shall be reimbursed by the Developer for all reasonable expenses incurred in so doing. (5) The Authority shall indemnify and hold harmless the Developer and its employees, officers and contractors from any liability for loss of or damage to property of the Authority that is caused by fire, explosion or any other perils, in excess of the amount recoverable from insurances procured under GCC Section 9.6, provided that such fire, explosion or other perils were not caused by any act or omission of the Developer. (6) The Party entitled to the benefit of an indemnity under this GCC Section 9.5 shall take all reasonable measures to mitigate any loss or damage which has occurred. If the Party fails to take such measures, the other Party s liabilities shall be correspondingly reduced. 9.6 Insurance The Insurance to be provided by the Developer during his entire duration of Contract period has been specified in SCC. 9.7 Unforeseeable Physical Conditions (1) In this GCC Section 9.7, physical conditions means natural physical conditions and manmade and other physical obstructions and pollutants, which the Developer encounters at the Site during Development, including sub-surface, oceanographic and hydrological conditions. (2) If the Developer encounters adverse physical conditions which it considers to have been Unforeseeable, the Developer shall give notice to the Project Monitoring Engineer as soon as practicable. (3) The Developer s Notice pursuant to GCC Section 9.7(2) shall describe the physical conditions, so that they can be inspected by the Project Monitoring Engineer, and shall set out the reasons why the Developer considers them to be Unforeseeable. The Developer shall continue the Development, using such proper and reasonable measures as are appropriate for the physical conditions, and shall comply with any instructions which the Project Monitoring Engineer may give. If an instruction constitutes a Change GCC Section shall apply. (4) If and to the extent that the Developer encounters physical conditions which are Unforeseeable, gives the notice required by GCC Section 9.7(2), and suffers delay or incurs Cost due to these conditions, the Developer shall be entitled subject to GCC Section 1.9 only to an extension of time for any such delay, if completion is or will be delayed, under GCC Section However, cost implications, if any, shall be to the Developer s account. (5) After receiving such notice and inspecting or investigating these physical conditions, the Project Monitoring Engineer shall proceed in accordance with GCC Section to agree or determine, (a) whether and to what extent these physical conditions were Unforeseeable; and (b) the amount of delay if any, pursuant to GCC Section 9.7(4). Page 144

145 (6) The Project Monitoring Engineer may take account of any evidence of the physical conditions foreseen by the Developer when submitting the Bid, which may be made available by the Developer, but shall not be bound by any such evidence. 9.8 Force Majeure (1) Force Majeure shall mean any event, (a) beyond the reasonable control of the Authority or of the Developer, as the case may be; and (b) which is unavoidable notwithstanding the reasonable care of the Party affected. (2) Force Majeure shall include the events listed below in this GCC Section 9.8(2) if the conditions set out in GCC Section 9.8(1) (a) and (b) are satisfied: (a) war, hostilities or warlike operations, whether a state of war be declared or not, invasion, act of foreign enemy and civil war; (b) rebellion, revolution, insurrection, mutiny, usurpation of civil or military government, conspiracy, riot, civil commotion and terrorist acts; (c) confiscation, nationalization, mobilization, commandeering or requisition by or under the order of any government or de jure or de facto authority or ruler or any other act or failure to act of any local state or national government authority; (d) strike, sabotage, lockout, embargo, import restriction, port congestion, lack of usual means of public transportation and communication, industrial dispute, shipwreck, shortage or restriction of power supply, epidemics, quarantine and plague; (e) tsunami, earthquake, landslide, volcanic activity, fire, flood or inundation, tidal wave, typhoon or cyclone, hurricane, storm, lightning, or other inclement weather condition, nuclear and pressure waves or other natural or physical disaster; and (f) shortage of labour, materials or utilities where caused by circumstances that are themselves Force Majeure. (3) If the Parties are prevented, hindered or delayed from or in performing any of their obligations under the Contract by an event of Force Majeure, then it shall notify the other in writing of the occurrence of such event and the circumstances thereof within 14 days after the occurrence of such event. (4) The Party who has given such notice shall be excused from the performance or punctual performance of its obligations under the Contract for so long as the relevant event of Force Majeure continues and to the extent that such Party s performance is prevented, hindered or delayed. The Time for Completion shall be extended in accordance with GCC Section 2.3.4(1) for events of Force Majeure during the Development Period. If the Time for Completion is extended in accordance with GCC Section 2.3.4(1), the End Date shall be extended for a period of time equal to the period of time during which the relevant event of Force Majeure continued. Page 145

146 (5) The Party or Parties affected by the event of Force Majeure shall use reasonable efforts to mitigate the effect thereof upon its or their performance of the Contract and to fulfil its or their obligations under the Contract, but without prejudice to either Party s right to terminate the Contract under GCC Sections 9.8(7) and 9.9(6). (6) No delay or non-performance by either Party hereto caused by the occurrence of any event of Force Majeure shall, (a) constitute a default or breach of the Contract; or (b) subject to GCC Sections 9.4(2), 9.9(3) and 9.9(5), give rise to any claim for damages, if and to the extent that such delay or non-performance is caused by the occurrence of an event of Force Majeure. (7) If the performance of the Contract is substantially prevented, hindered or delayed for a single period of more than 90 days or an aggregate period of more than 180 days on account of one or more events of Force Majeure during the term of the Contract, the Parties will attempt to develop a mutually satisfactory solution, failing which either Party may terminate the Contract by giving a notice to the other, but without prejudice to either Party s right to terminate the Contract under GCC Section 9.9(6). (8) In the event of termination pursuant to GCC Section 9.8(7), the rights and obligations of the Authority and the Developer shall be as specified in GCC Sections (2) and (1). (9) Notwithstanding GCC Section 9.8(6), Force Majeure shall not apply to any obligation of the Authority to release Grant to the Developer herein. 9.9 War Risks (1) War Risks shall mean any event specified in GCC Section 9.8(2)(a) and (b) and any explosion or impact of any mine, bomb, shell, grenade or other projectile, missile, munitions or explosive of war, occurring or existing in or near the Country. (2) Notwithstanding anything contained in the Contract, the Developer shall have no liability whatsoever for or with respect to, (a) destruction of or damage to the Site and Project Facilities or any part thereof; (b) destruction of or damage to property of the Authority or any Third Party; or (c) injury or loss of life, if such destruction, damage, injury or loss of life is caused by any War Risks, and the Authority shall indemnify and hold the Developer harmless from and against any and all claims, liabilities, actions, lawsuits, damages, costs, charges or expenses arising in consequence of or in connection with the same. (3) If the Site, Project Facilities or any part thereof,, Developer materials / goods / equipment used during Development and Operations Developeror any other property of the Developer Page 146

147 used or intended to be used for the purposes of the Development and Operations sustains destruction or damage by reason of any War Risks, the Authority shall pay the Developer for, (a) any part of the Facility, materials / goods / equipment destroyed or damaged, to the extent not already paid for by the Authority; (b) replacing or making good any Developer's materials / equipment / goods Developeror other property of the Developer so destroyed or damaged; and (c) so far as may be required by the Authority, and as may be necessary for completion of Development & Operations, replacing or making good any such destruction or damage to the Site, Project Facilities, materials / equipment/ goods or any part thereof. (4) If the Authority does not require the Developer to replace or make good any such destruction or damage to the Site or Project Facilities, the Authority shall either request a Change in accordance with GCC Section 10.1 excluding the performance of that part of the Facility thereby destroyed or damaged or, where the loss, destruction or damage affects a substantial part of the Site or Project Facilities, shall terminate the Contract, pursuant to GCC Section (5) Notwithstanding anything contained in the Contract, the Authority shall pay the Developer for any increased Costs that are in any way attributable to, consequent on, resulting from, or in any way connected with any War Risks, if the Developer notifies the Authority in writing of any such increased Cost as soon as practicable. (6) If, during the term of the Contract, any War Risks occur that financially or otherwise materially affect the execution of the Contract by the Developer, the Developer shall use its reasonable efforts to execute the Contract with due and proper consideration given to the safety of its and its contractor / sub-contractor s personnel engaged in Development or Operations. If performance of obligations by the Private Proponent becomes impossible or is substantially prevented for a single period of more than 90 days or an aggregate period of more than 180 days on account of any War Risks, the Parties will attempt to develop a mutually satisfactory solution, failing which either Party may terminate the Contract by giving a notice to the other. (7) In the event of termination pursuant to GCC Section 9.9(4) or 9.9(6), the rights and obligations of the Authority and the Developer shall be as specified in GCC Sections (2) and (1) Change in Laws and Regulations If, after a date which is 30 days prior to the Submission Deadline in the Bidding Documents, in the Country, any law, regulation, ordinance, order or by-law having the force of law is enacted, promulgated, abrogated or changed, which shall be deemed to include any change in interpretation or application by the competent authorities, that subsequently affects the Time for Completion, the Time for Completion shall be reasonably adjusted to the extent that the Developer has thereby been affected in the performance of any of its obligations under the Contract. Page 147

148 9.11 Patent Indemnity Indemnity by Developer The Developer shall indemnify and hold harmless the Authority and its employees and officers from and against any and all suits, actions or administrative proceedings, claims, demands, losses, damages, costs, and expenses of whatsoever nature, including attorney s fees and expenses, which the Authority may suffer as a result of any infringement or alleged infringement by the Developer, Subcontractors, or their employees, agents, or representatives, of any patent, utility model, registered design, trademark, copyright or other intellectual property right registered or otherwise existing Notice of Claim (1) If any proceedings are brought or any claim is made against the Authority arising out of the matters referred to in GC Section , the Authority shall promptly give the Developer a notice thereof, and the Developer may at its own expense and in the Authority s name conduct such proceedings or claim and any negotiations for the settlement of any such proceedings or claim. (2) If the Developer fails to notify the Authority no later than 30 days after receipt of such notice that it intends to conduct any such proceedings or claim, then the Authority shall be free to conduct the same on its own behalf. Unless the Developer has so failed to notify the Authority no later than the 30 day period, the Authority shall make no admission that may be prejudicial to the defence of any such proceedings or claim. (3) The Authority shall, at the Developer s request, give all available assistance to the Developer in conducting such proceedings or claim, and shall be reimbursed by the Developer for all reasonable expenses incurred in so doing Indemnity by Authority The Authority shall indemnify and hold harmless the Developer and its employees, officers and contractors / sub-contractors from and against any and all suits, actions or administrative proceedings, claims, demands, losses, damages, costs, and expenses of whatsoever nature, including attorney s fees and expenses, which the Developer may suffer as a result of any infringement or alleged infringement by the Authority of any patent, utility model, registered design, trademark, copyright or other intellectual property right registered or otherwise existing at the Effective Date arising out of or in connection with the Project. Page 148

149 G. CHANGE IN CONTRACT ELEMENTS ARTICLE 10-CHANGE IN CONTRACT ELEMENTS 10.1 Change to the Development (1) The Developer at it s sole discretion may add or modify or innovate project features and facilities from time to time as per advancements available internationally and to achieve commercial viability of the Project. Provided that the Developer shall ensure that such addition or modification or innovation, shall comply with the Minimum Development Plan stated in Appendix 2A. In case due to improvisation / innovation in the Project technology, there is a material deviation from the Minimum Development Plan or area under Minimum Development Plan, the Developer shall take the approval of the Authority before making any such change. For the avoidance of doubt, if any modification to Project has a material effect on the safety of users, the same shall be subject to safety related certification in accordance with Applicable Laws and the procedure. For the avoidance of doubt, all modifications made hereunder shall comply with the Minimum Development Plan, Specifications and Standards prescribed in Final Concept & Design, Applicable Laws and the provisions of this Contract. (2) Notwithstanding GCC Section (1) and (2), no change made necessary because of any default of the Developer in the performance of its obligations under the Contract shall be deemed to be a Change, and such change shall not result in any adjustment of the Time for Completion Change in the Grant amount The Developer shall make no claim whatsoever for any adjustment in the agreed Grant amount during the Contract Period. Page 149

150 ARTICLE 11 SUSPENSION AND TERMINATION 11.1 Suspension Suspension by the Authority (1) The Authority may request the Project Monitoring Engineer, as applicable, by notice to the Developer order the Developer to suspend performance of any or all of its obligations under the Contract in the event of breach or non-compliance with Environmental, Social, Health & Safety (ESHS) Management Strategies and Implementation Plans. Such notice shall specify the obligation of which performance is to be suspended, the effective date of the suspension and the reasons therefore. The Developer where agreeing with such notice, shall thereupon suspend performance of such obligation, except those obligations necessary for the care or preservation of the Site or Project Facilities, until ordered in writing to resume such performance by the Authority. (2) Upon the Developer having cured the default within a period not exceeding 90 (ninety) days from the date of Notice of Suspension, the Authority shall revoke the Suspension forthwith and restore all rights of the Developer under this Contract. (3) If, by virtue of a suspension order given by the Authority other than by reason of the Developer s wilful default or breach referred to in Clause (1), the Developer s performance of any of its obligations is suspended for an aggregate period of more than 90 days, then at any time thereafter and provided that at that time such performance is still suspended, the Developer may give a notice to the Authority requiring that the Authority shall, no later than 30 days after the Authority s receipt of the notice, order the resumption of such performance or request and subsequently order a Change in accordance with GCC Section 10.1, excluding the performance of the suspended obligations from the Contract. (4) If the Authority fails to order the resumption of performance in accordance with GCC Section (2), the Developer may, by a further notice to the Authority elect to treat the suspension, where it affects a part only of the Project Facilities, as a deletion of such part in accordance with GCC Section 10.1 or, where it affects the whole of the Project Facilities, as termination of the Contract pursuant to GCC Section Suspension by the Developer (1) If, the Authority has, (a) failed to pay the Developer all or any instalment of the Grant due under the Contract within the period specified in the Contract; ; or (b) has committed a substantial breach of the Contract, the Developer may give a notice to the Authority that requires payment of such Grant, with interest thereon as stipulated in GCC Section 5.2(3) or specifies a breach & requires the Authority to remedy the same, as the case may be. (2) If the Authority fails to pay the Grant required by the Developer in accordance with GCC Page 150

151 Section (1) or fails to remedy the breach or take steps to remedy the breach no later than 14 days after receipt of the Developer s notice, then the Developer may, upon giving 14 days notice to the Authority, suspend performance of all or any of its obligations under the Contract, or, in the case of the Development, reduce the Developer s rate of progress. (3) If the Developer is unable to carry out any of its obligations under the Contract for any reason attributable to the Authority, including the Authority s failure to provide possession of or permission to access to the Site or other areas in accordance with GCC Section 4.2, then the Developer may, upon giving 14 days notice to the Authority, suspend performance of all or any of its obligations under the Contract, or, in the case of the Development, reduce the Developer s rate of progress. (4) If the Developer s performance of its obligations is suspended or the rate of progress is reduced pursuant to this GCC Section , then the Time for Completion shall be extended in accordance with GCC Section Termination Termination for Authority s Convenience (1) The Authority may at any time terminate the Contract for any reason by giving the Developer a notice of termination that refers to this GC Section (1). (2) Upon receipt of the notice of termination under GC Section (1), (a) the Developer shall, either immediately or upon the date specified in the notice of termination, (i) cease all further work, except for such work as the Authority may specify in the notice of termination for the sole purpose of protecting that part of the Facility already executed, or any work required to leave the Site in a clean and safe condition; (ii) terminate all Subcontracts; and remove all Developer s Equipment (Design-Build) and, except if the Authority asserts its rights pursuant to GC Section 9.3.1(5), Developer Equipment (Operations) from the Site, repatriate the Developer Payment upon Termination by the Authority for Convenience Payment upon Termination by Authority for Convenience (1) Upon termination of this Contract pursuant to GC Section , the Authority shall make only the following payments to the Developer, (a) Debt Due and utilised as per the Financing Plan and as certified by Design-Build Engineer & Operations Engineer (b) 100% of the Adjusted Equity ( Adjusted Equity means the Equity funded in Indian Rupees and adjusted on the first day of the current month (the Reference Date ), in the manner set forth below, to reflect the Page 151

152 change in its value on account of depreciation and variations in WPI, and for any Reference Date occurring: (a) on or before Operational Acceptance the Adjusted Equity shall be a sum equal to the Equity funded in Indian Rupees and expended on the Project, revised to the extent of one half of the variation in WPI occurring between the first day of the month of Appointed Date and the Reference Date; (b) from Operational Acceptance and until the 4th (fourth) anniversary thereof, an amount equal to the Adjusted Equity as on Operational Acceptance shall be deemed to be the base (the Base Adjusted Equity ) and the Adjusted Equity hereunder shall be a sum equal to the Base Adjusted Equity, revised at the commencement of each month following Operational Acceptance to the extent of variation in WPI occurring between Operational Acceptance and the Reference Date; (c) after the 4th (fourth) anniversary of Operational Acceptance, the Adjusted Equity hereunder shall be a sum equal to the Base Adjusted Equity, reduced by 0.49% (zero point four nine per cent) thereof at the commencement of each month following the 4th (fourth) anniversary of Operational Acceptance and the amount so arrived at shall be revised to the extent of variation in WPI occurring between Operational Acceptance and the Reference Date; For the avoidance of doubt, the Adjusted Equity shall, in the event of Termination, be computed as on the Reference Date immediately preceding the Transfer Date; provided that no reduction in the Adjusted Equity shall be made for a period equal to the duration, if any, for which the Concession Period is extended, but the revision on account of WPI shall continue to be made; The Termination for Developer s Default (1) The Authority, without prejudice to any other rights or remedies it may possess, may terminate the Contract forthwith in the following circumstances, by giving a notice of termination and its reasons therefore to the Developer, referring to this GCC Section (1): (a) If the Developer becomes bankrupt or insolvent, has a receiving order issued against it, compounds with its creditors, or, if the Developer is a corporation, a resolution is passed or order is made for its winding up, other than a voluntary liquidation for the purposes of amalgamation or reconstruction, a receiver is appointed over any part of its undertaking or assets, or if the Developer takes or suffers any other analogous action in consequence of debt; (b) If the Developer assigns or transfers the Contract or any right or interest therein in violation of the provision of GCC Section 1.7; or (2) If the Developer, (a) has abandoned or repudiated the Contract; (b) has without valid reason failed to commence Development on the Site or Project Facilities promptly or has suspended, other than pursuant to GCC Section (2), the progress of Contract performance for more than 90 days after Page 152

153 receiving a written instruction from the Authority to proceed; persistently fails to carry out the Development or Operations in accordance with the Contract which causes a material adverse effect on the Authority or persistently neglects to carry out its obligations under the Contract without just cause then the Authority may, without prejudice to any other rights it may possess under the Contract, give a notice to the Developer stating the nature of the default and requiring the Developer to remedy the same. If the Developer fails to remedy or to take steps to remedy the same within 90 (ninety) days unless the default has occurred solely as a result of any breach of this Contract by the Authority or due to Force Majeure after its receipt of such notice, then the Authority may terminate the Contract forthwith by giving a notice of termination to the Developer that refers to this GCC Section (2). (3) Upon receipt of the notice of termination under GCC Sections (1) or (2) the Developer shall, either immediately or upon such date as is specified in the notice of termination, (a) cease all further work, except for such work as the Authority may specify in the notice of termination for the sole purpose of protecting that part of the Site and Project Facilities already executed, or any work required to leave the Site and Project Facilities in a clean and safe condition; (b) terminate all contracts/sub-contracts; (c) deliver to the Authority the parts of the Project Facilities executed by the Developer up to the date of termination. This will be followed by the claims being referred by both Parties to Arbitration in accordance with SCC Para 9Developer (d) deliver to the Authority all Contract Documents, including the Final Concept & Design, prepared by the Developer or its contractors as of the date of termination. (4) The Authority may enter the Project Facilities and upon the Site, expel the Developer, and, if the Project Facilities are not completed, the Authority may complete the Project itself or by employing any Third Party. This will be followed by the claims being referred by both Parties to Arbitration in accordance with SCC Para Corrupt or Fraudulent Practices If the Authority determines, based on reasonable evidence, that the Developer has engaged in corrupt, fraudulent, collusive or coercive practices, in competing for or in executing the Contract, then the Authority may, after giving 14 days notice to the Developer, terminate the Contract and expel it from the Site, and the provisions of Section 11.2 shall apply as if such termination had been made under Section [Termination for Developer s Default]. Should any employee of the Developer be determined, based on reasonable evidence, to have engaged in corrupt, fraudulent or coercive practice during the execution of the Contract, then that employee shall be removedveloper For the purposes of this Sub-Clause: Page 153

154 (i) (ii) corrupt practice is the offering, giving, receiving or soliciting, directly or indirectly, of anything of value to influence improperly the actions of another party; 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; 1 Another party refers to a public official acting in relation to the procurement process or contract execution]. In this context, public official includes World Bank staff and employees of other organizations taking or reviewing procurement decisions. Page 154

155 (iii) (iv) (v) collusive practice is an arrangement between two or more parties designed to achieve an improper purpose, including to influence improperly the actions of another party; coercive practice is impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of the party to influence improperly the actions of a party; obstructive practice is (aa) deliberately destroying, falsifying, altering or concealing of evidence material to the investigation or making false statements to investigators in order to materially impede 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 Payment upon Termination for Developer s Default If the Contract is terminated pursuant to GCC Section and, subject to GCC Section (2), the Developer shall not be entitled for any payment, except for the payments determined in accordance with GC (4). 2 Party refers to a public official; the terms benefit and obligation relate to the procurement process or contract execution; and the act or omission is intended to influence the procurement process or contract execution. 3 Parties refers to participants in the procurement process (including public officials) attempting to establish bid prices at artificial, non competitive levels. 4 Party refers to a participant in the procurement process or contract execution. Page 155

156 Termination by Developer (1) If, (a) the Authority has, (i) failed to release all or any instalment of Grant to the Developer under the Contract within the specified period, failed to give uninterrupted and unobstructed possession of the land required for the Project free from all encumbrances & charges or commits a material default in complying with any of the provisions of this Contract and such default has a Material Adverse Effect on the Developer, or the Authority repudiates this Contract or otherwise takes any action that amounts to or manifests an irrevocable intention not to be bound by this Contract the Developer may give a notice to the Authority that requires payment of such sum, with interest thereon as stipulated in GCC Section 5.2(3), or specifies the breach and requires the Authority to remedy the same, as the case may be; and (ii) failed to release such Grant together with such interest, failed to remedy the breach or take steps to remedy the breach no later than 30 days after receipt of the Developer s notice; or (b) the Developer is unable to carry out any of its obligations under the Contract for any reason attributable to the Authority, including the Authority s failure to provide possession of or access to the Site or other areas, then the Developer may give a notice to the Authority thereof, and if the Authority has failed to pay the outstanding sum, or to remedy the breach no later than 30 days after receipt of such notice, or if the Developer is still unable to carry out any of its obligations under the Contract for any reason attributable to the Authority no later than 30 days after receipt of the notice, the Developer may, by a further notice to the Authority referring to this GCC Section (1), forthwith terminate the Contract. (2) The Developer may terminate the Contract forthwith by giving a notice to the Authority to that effect, referring to this GCC Section (2), (a) if the Authority becomes bankrupt or insolvent; (b) has a receiving order issued against it, or compounds with its creditors; (c) being a corporation, if a resolution is passed or order is made for its winding up, other than a voluntary liquidation for the purposes of amalgamation or reconstruction; or (d) a receiver is appointed over any part of its undertaking or assets, or if the Authority takes or suffers any other analogous action in consequence of debt. (3) If the Contract is terminated under GCC Section (1) or (2), then, (a) the Developer shall immediately, Page 156

157 (i) cease all further work, except for such work as may be necessary for the purpose of protecting that part of the Site and Project Facilities already executed, or any work required to leave the Site in a clean and safe condition; and (ii) terminate all contracts/sub-contracts; and (b) the Developer, subject to the payment specified in GCC Section , shall (i) deliver to the Authority the parts of the Project Facilities executed by the Developer up to the date of termination; and (ii) deliver to the Authority all Contract Records, including the Final Concept & Design, in existence as of the date of termination. (4) Termination by the Developer pursuant to this GCC Section is without prejudice to any other rights or remedies of the Developer that may be exercised in lieu of or in addition to rights conferred by this GCC Section Deleted General Provisions - Termination 1. In this GCC Section 11.2, the expression Project Facilities executed shall include completion of Development of whole or any part of the Project Facilities and includes all works, services, equipment and other activities relating to or in respect of the Scope of the Project or subject to a legally binding obligation to purchase by the Developer and used or intended to be used for the purpose of performing the obligations, up to and including the date of termination. 2. In this GCC Section 11.2, in calculating any monies due from the Authority to the Developer, account shall be taken of, (i) (ii) any sum previously paid by the Authority to the Developer under the Contract; any sum owing by the Developer to the Authority under the Contract, including Liquidated Damages Delay or liquidated damages calculated pursuant to GCC Section 5.4. Page 157

158 Appendix 1 Special Conditions of Contract SPECIAL CONDITIONS OF CONTRACT APPENDIX 1 TO GENERAL CONDITIONS FOR A CONTRACT TO DESIGN, BUILD, FINANCE, OPERATE, MAINTAIN & TRANSFER MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM Page 158

159 SPECIAL CONDITIONS OF CONTRACT The following Special Conditions of Contract (SCC) shall supplement the General Conditions of Contract. Whenever there is a conflict, the provisions herein shall prevail over those in the General Conditions of Contract (GCC). The corresponding article and section numbers of the General Conditions are indicated in parentheses. 1. Clause Language The language shall be English 2. Clause Joint Venture The Clause stands replaced by the following clause: a. If the Developer is a joint venture of more than one person, the joint venture partners hereby authorize the Lead Partner as named in the joint venture agreement provided by the Developer as a part of his bid to act on their behalf in exercising all rights and obligations towards the Authority under this Contract including receiving of approvals, consents, instructions and Grant from the Authority, amendment of the Contract and in all other matters under the Contract including the settlement of disputes. b. If the Developer is a joint venture of two or more persons, each member of the joint venture shall be jointly and severely responsible to the Authority for the performance of this Contract including fulfillment of all the obligations of the Developer. c. The composition, control or constitution of the Developer shall be in accordance with the Developer s Bid and shall not be altered without the prior consent of the Authority. d. The joint venture arrangements incorporated in the joint venture agreement signed and executed between the members of the joint venture shall be maintained without any changes throughout the period of Contract. Any change in the said arrangements during the period of Contract on any exceptional grounds shall be subject to Authority s prior approval. 3. Clause Survival of Obligations On termination or expiration of the Contract, the rights and obligations of the parties towards settlement of disputes through arbitration in the form of an arbitration clause shall survive. 4. Clause 1.4 Notice All notices to the relevant party shall be sent to the following address: a. Developer b. Authority Page 159

160 PIN: Tel: Fax: 5. Clause 1.5 Governing Law The Applicable Law will be the Laws of India as well as the laws prevailing in the State of Gujarat. 6. Deleted 7. Deleted 8. Deleted 9. Clause (3) - Arbitration All disputes arising in connection with this contract shall be finally settled under the arbitration rules of the United Nations Commission on International Trade Law (UNICITRAL) by one or more arbitrators appointed in accordance with the rules. However, if the Contract is with the domestic Developer, arbitration shall be conducted in accordance with the Arbitration & Conciliation Act, 1996 and any amendments thereto. The place of Arbitration shall be Ahmedabad, India in case of domestic Developer, or a neutral venue agreed by the two parties in case the developer is a foreign entity. The proceedings shall be conducted in English language and the award shall be final and binding on the Parties. Each party shall bear its own cost of the Arbitration. 10. Clause (a) - Expiration of Contract The contract shall terminate on the End Date. 11. Clause Time for Completion The Time for Completion for Development of Project Facilities shall be 36 months from the Development Starting Date. 12. Clause (2) - Liquidated Damages - Delay If the Developer fails to complete Development of Project Facilities within the specified Time for Completion, the Developer shall pay to the Authority liquidated damages at the rate of INR 5 (five) million per month (or part thereof) of delay. The Maximum Liquidated Damages Delay shall be 10 % of the agreed amount of Grant released to Developer by the AuthorityDeveloper 13. Clause (5) The Contract does not provide for bonus payment to the Developer for early completion. Page 160

161 14. Clause 4.2 Delete the existing clause and replace it with the following clause: 14.1 The Authority shall provide to the Developer physical possession of the land required for Development of MRCI CUM OCEANARIUM and allied Facilities at the proposed site subject to the ceiling 40,000 square metres. The Authority shall provide access thereto and all other areas reasonably required for the proper execution of the Contract including all Rights of Way, access to the ocean, ocean floor and harbor areas for boat use associated with the Project. The Authority shall provide the Developer full possession of the site for the MRCI CUM OCEANARIUM and allied Facilities during the term of the Contract, subject to the condition that the Developer shall pay annual lease charges to the Authority in accordance with SCC para The Authority shall execute and register the Site Lease Deed as per format prescribed in Appendix 7 simultaneously on signing the Form of Contract Annual Lease Charges for the Land provided by the Authority The Developer shall pay Lease Rent for the land provided for Development of the MRCI CUM OCEANARIUM and allied Facilities for the entire period (25 years) of Operation of the MRCI CUM OCEANARIUM and allied Facilities. Lease Rent payable for the first year of Operation of the MRCI CUM OCEANARIUM and allied Facilities shall be INR 1,00,000 (Rupees One Lakh only). The lease rent for the subsequent years of Operation shall be determined by escalating the lease rent of the first year at a compound rate of 5% per annum. The total Lease amount for the year shall be payable within 10 days of the end of the year. 15. Clause Terms of Disbursement of Grant (a) (b) The Authority shall provide Grant of INR 520 million to the Developer which shall be utilized along with the Developer s funds to meet the cost of Development of MRCI CUM OCEANARIUM and allied Facilities. The Authority shall disburse the amount of Grant, as per schedule given below: S.N Milestone Instalment of Grant to be disbursed 1 On submission of Bank Guarantee after signing Advance payment of 10% of the Total of the Contract agreement Estimated Project Cost subject to a maximum amount of INR 300 million. For this purpose, Total Estimated Project Cost = Total Investment proposed by the Developer using its own funds/resources + Grant amount to be provided by the Authority (INR 520 million). Advance payment will be made in proportionate amounts of the currencies in which the Total Estimated Project Cost is denominated. The total amount of the Advance Payment expressed in equivalent INR (at the time of payment) will be counted towards the payable Grant amount of INR 520 million. However, if the Developer has opted in its Bid in reference to ITB 3.12 (b) to receive the entire Advance payment in INR, the Page 161

162 Authority will make payment accordingly following the provisions of ITB Final Design & Concept covering details of land utilisation with GA drawings and layout for MRCI CUM OCEANARIUM Plan comprising the Minimum Development Plan, method for animal procurement, Design & Construction schedule, Performance milestones etc.and Completion and approval of detail engineering designs and construction drawing with technical details. It shall also include details required for compliance with applicable Laws/ Rules/Regulations for protection of environment, public health and safety, and the applicable parts of the Environment Management Plan the project 3 After Environment Impact Assessment, Coastal Regulation Zone [CRZ] and Environment Clearance 5% of the Total Estimated Project Cost subject to a maximum amount of INR 150 million Balance Grant Amount 16. Clause Liquidated Damages - Operations Maximum liquidated damage for delay [period of non-operation during the operation period] of 0.05% of grant per month up to maximum 10% of grant provided by Authority. 17. Clause (2) (a) The Performance Securities shall be provided by the Developer as Bank Guarantees on the Formats included in the Bidding Document as under; (a) Performance Security for Contract Performance Bank Guarantee: in the amount of 3 (Three) percent of the Estimated Project Cost (including Grant from the Authority) denominated in the types and proportions of the currencies in which the Estimated Project Cost Price is expressed in the Developer s Bid, or in a freely convertible currency acceptable to the Authority. Page 162

163 (b) Environmental, Social, Safety and Health (ESHS) Performance Security - Bank Guarantee: in the amount of 2 (Two) percent of the Estimated Project Cost (including Grant from the Authority) denominated in the types and proportions of the currencies in which the Estimated Project Cost Price is expressed in the Developer s Bid, or in a freely convertible currency acceptable to the Authority. Above mentioned Performance Securities shall be valid until 180 days after the End Date or any extension to the End Date. In the event that the Developer is unable to obtain from its bank, Performance Securities valid until 180 days after the End Date or any extension to the End Date, it shall furnish to the Authority an explanation for the same. If the Authority is satisfied with such explanation, the Developer will be allowed to submit Performance Securities valid initially until 180 days beyond the Development Period stipulated in SCC 11 (in reference to GCC 2.3.2) subject to the condition that the Performance Securities shall be renewed/extended from time to time, in the manner specified in the following paragraph, so as to be valid until 180 days after the End Date (i.e. completion of the Operations Period of 25 years) or any extension to the End Date. It shall be the responsibility of the Developer to furnish extensions of the Performance Securities from time to time 120 days prior to the expiry of the existing Performance Securities. In case the renewed Performance Securities/their extensions are not received by the Authority at least 60 days prior to the expiry date of the existing Performance Security, the Authority will be entitled to take measures for enforcement/forfeiture of the Performance Security without any further notice to the Developer. 18. Clause 7.2.2(4) Only the Authority shall have right to decide in the following matters: (a) Assignment of the Contract, or any part thereof, under GCC Section 1.7; (b) Extension of the Time for Completion under GCC Section 2.3.4; (c) Changes and modification to Concept Design not meeting the Minimum Development Plan 19. Clause 8.1.1(1) (a) 1. Project Management Consultants (PMC) appointed by the Authority shall function as Project Monitoring Engineer during the Development Period 2. Any person/agencies/official appointed by the Authority shall function as the Authority s Representative during the Operations Period. 20. Clause 9.6 The GCC clause 9.6 stands deleted and replaced by the following clause: General Requirements for Insurances The Developer shall insure the exhibit animals (where the Developer considers it practical to do so), its employees and staff and visitors as detailed below, as well as the building infrastructure and facility including electro-mechanical instruments to cover all natural and manmade risks all through the Contract Period. The nature and quantum of the insurances will be decided by the Developer in mutual consultation with the Authority The nature and quantum of insurances will be decided by the Developer. Page 163

164 Unless otherwise stated elsewhere in the Contract, the insurances specified in this Sub-Clause: (a) (b) (c) shall be effected and maintained by the Developer as insuring Party, shall be in the joint names of the Parties, shall be extended to cover liability for all loss and damage to the Authority s land (except things insured under Sub-Clause 9.6.4) arising out of the Developer s performance of the Contract, Insurance for Developer s Personnel The Developer shall effect and maintain insurance against liability for claims, damages, losses and expenses (including legal fees and expenses) arising from injury, sickness, disease or death of any person employed by the Developer or any of its Developer Personnel. The Authority shall also be indemnified under the policy of insurance, except that this insurance may exclude losses and claims to the extent that they arise from any act or neglect of the Authority or of the Authority s Personnel. The insurance shall be maintained in full force and effect during the whole time that these personnel are assisting in the Development & Operation or of the Project Facilities till the End Date of the Contract. For the Contractor s employees, the insurance may be effected by the Contractor, but the Developer shall be responsible for compliance with this Clause. 23. Profit Sharing The Developer shall share with the Authority a proportion of the Profit (before Tax) from the Operation of the MRCI CUM OCEANARIUM and allied Facilities - each year after completion of five years of operation during the remaining Operations Period - and the said proportion shall be determined as under: Share of Profit before Tax to be paid to the Authority = Profit (before Tax) from the operation of the MRCI CUM OCEANARIUM and allied Facilities x Grant provided by the Authority Total Project Investment actually made by the Developer for Development of the MRCI CUM OCEANARIUM and allied Facilities [using its own funds/resources] In the event loss is incurred by the Developer in any year of the operation of the MRCI CUM OCEANARIUM and allied Facilities, it shall not pass on such loss to the Authority either directly or through set off against profits in the subsequent year(s) or any other dues payable to the Authority. For the purpose of this Clause the Developer shall, on completion of the MRCI CUM OCEANARIUM and allied Facilities, submit details of the total Project Investment actually made by it in various currencies for construction of the MRCI CUM OCEANARIUM and allied Facilities from its own funds/resources and the Grant provided by the Authority - for verification by a Practicing Chartered Accountant appointed by the Authority. The copies of audited financial statements comprising balance sheet, statement of profit and loss, cash flow statement along with schedules, notes and reports of Directors and Statutory Auditors thereon ( Audited Financial Statements ), duly approved and adopted by the Developer shall be Page 164

165 furnished to the Authority within 180 days of close of each accounting year to which they pertain For the purpose of this Clause, Total Project Investment in INR will be determined by the Authority based on the verified figures of expenditure(s) incurred in various currencies by converting them into INR using the B. C. Selling Exchange rate as on the respective dates of payments made by the Developer for inputs to the Project Facilities, as published/declared by State Bank of India main Branch at Ahmedabad/Gandhinagar. The Total Project Investment determined by the Authority in INR and the figures of annual profits declared by the Developer will be the basis for determining the share of Profit before Tax payable to the Authority. The share of Profit (before tax) to be paid to the Authority within 30 days of submission of Audited Financial Statements and the reported Profit (before Tax) figure in the Audited Financial Statements shall be the base for arriving at the share of Profit (before tax). In case of delay in payment within prescribed period, the Developer shall pay interest on the said share of profit for the period of delay at the prime lending rate of State Bank of India prevailing at that time +2% 24. Transfer of MRCI CUM OCEANARIUM and Allied Facilities to Authority At the end of the Operations Period of 25 years or any extention thereof, the MRCI CUM OCEANARIUM and allied Facilities will be transferred by the Developer to the Authority on AS IS WHERE IS RUNNING CONDITION without any compensation for the funds and resources invested by the Developer during Development and Operations Periods subject to following (a) The facility with all its equipments shall be in good working condition. (b) In case of major repairs /replacement of equipment, the performance guarantee for such unit/equipment shall be extended by six months from the date of putting back in to satisfactory operation of such unit/equipment, in case such putting back is at the end of completion of operations period. (c) All records of operation & maintenance shall be handed over to the Authority in proper condition. (d) The Project Monitoring Engineer shall carry out Inspection of the facility viz: Exhibit health, safety and behaviour, internal display and interpretation facilities, life support systems, relevant technology, Civil units, Mechanical units/equipments, Electrical units/equipments, instruments, & all other Major & minor units/machines has to be carried out & the defects and unsatisfactory working performances of the equipments/ machines shall be made good and operationalised by the Developer at his own cost. (e) The Developer shall repaint/refinish the facility including all civil structures, mechanical, electrical equipments/ units /structures as per relevant specifications. (f) In case taking over is delayed on account of Developer's failure, the operation & maintenance period will be extended further till it meets the requirement without any extra cost to Authority. 25. ESHS Management Strategies and Implementation Plans The Developer shall not commence Development, including mobilization and/or pre- construction activities unless the Project Monitoring Engineer is satisfied that appropriate measures are in place to address environmental, social, health and safety risks and impacts. At a minimum, the Developer shall apply the Management Strategies and Implementation Plans and Code of Conduct, submitted as part of the Final Concept & Design and agreed as part of the Contract. These Management Strategies and Implementation Plans and Code of Conduct collectively comprise the Developer s Environmental and Social Management Plan (ESMP). The ESMP shall Page 165

166 be reviewed, periodically (but not less than every six (6) months, and updated in a timely manner, as required, by the Developer to ensure that it contains measures appropriate to address environmental, social, health and safety risks and impacts on the users and the Project.. These provisions shall also apply during the Operations Period with such modifications as may be decided by the Developer and approved by Authority on recommendation of Project Monitoring Engineer 26. Financial Close 26.1 The Developer hereby agrees and undertakes that it shall achieve Financial Close within 150 (one hundred and fifty) days from the date of this Contract Agreement and in the event of delay, it shall be entitled to a further period not exceeding 60 (sixty) days, subject to payment of Damages to the Authority in a sum calculated at the rate of 0.1% (zero point one per cent) of the Performance Security for Contract Performance (namely 4% of the Total Estimated Project Cost) for each day of delay; provided that the Damages specified herein shall be payable every week in advance and the period beyond the said 150 (one hundred and fifty) days shall be granted only to the extent of Damages so paid; provided further that no Damages shall be payable if such delay in Financial Close has occurred solely as a result of any default or delay by the Authority The Developer shall, upon occurrence of Financial Close, notify the Authority forthwith, and shall have provided to the Authority, at least 2 (two) days prior to Financial Close, 3 (three) true copies of the Financial Package and the Financial Model duly attested by a Director of the Developer, along with 3 (three) soft copies of the Financial Model in MS Excel version or any substitute thereof Termination due to failure to achieve Financial Close Notwithstanding anything to the contrary contained in this Contract Agreement, in the event that Financial Close does not occur, for any reason whatsoever, within the period set forth in Clause 26.1, all rights, privileges, claims and entitlements of the Developer under or arising out of this Contract Agreement shall be deemed to have been waived by, and to have ceased with the concurrence of the Developer, and the Contract Agreement shall be deemed to have been terminated by mutual agreement of the Parties Upon Termination under Clause , the Authority shall be entitled to encash the Performance Security for Contract Performance and appropriate the proceeds thereof as Damages; provided, however, if Financial Close has not occurred solely as a result of the Authority being in default of any of its obligations, it shall, upon Termination, return the Performance Security forthwith. Page 166

167 APPENDIX 2A Development APPENDIX (DA) Development APPENDIX (DA) TO THE GENERAL CONDITIONS OF CONTRACT FOR DESIGN, BUILD, FINANCE, OPERATE AND TRANSFER OF MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM AND ALLIED FACILITIES Page 167

168 Article 1 - General 1.1 Description of Development Services DEVELOPMENT APPENDIX (DA) The Developer shall carry out and be responsible for the design, construction, sourcing, procurement and transportation of animals/biological samples for the MRCI CUM OCEANARIUM at Somnath, Gujarat. The Developer s work and services as part of the Development shall cover all necessary or desirable activities to achieve the highest standards in design, construction, acquisition of animals/biological samples for the MRCI CUM OCEANARIUM and all allied works in accordance with and as contemplated in the Minimum Development Plan and Final Concept and Design (a) the design services in respect of the MRCI CUM OCEANARIUM and all allied works to include engineering, architectural, interior display with appropriate scientific researched literature and landscaping with all necessary drawings and visualisations including environmental assessment with necessary mitigation measures (b) the building and construction work and services in respect of the MRCI CUM OCEANARIUM and all allied works (c) Acquisition of animals/biological samples for the MRCI CUM OCEANARIUM to include sourcing, procurement, handling and transportation through legal and legitimate channels, of all animals/biological samples adhering to all environment, health and safety standards and applicable wildlife and other relevant laws as set out in Appendix 2B or any other as deemed necessary. ARTICLE 2-DESIGN PRINCIPLES 2.1 General Design and Engineering a) The Developer shall design and execute of the MRCI CUM OCEANARIUM and its execution in compliance with the technical specifications and requirements contained in the contract, codes of practices as published by the Bureau of Indian Standard (BIS) or its equivalent standard as well as applicable laws, rules and regulations stipulated by the Government of India or international if higher.. Wherever, the codes, standards and manual do not provide for the design and execution of some component i.e. required to be designed and executed, the Developer shall follow the standard architectural, landscape and MRCI CUM OCEANARIUM architectural, engineering and display practices. b) The designs and drawings as formulated by the Developer shall be subject to approval by authority through a Project Monitoring Engineer Design Responsibilities The Developers s design and design-related services shall include, but not limited to the following: Page 168

169 1. Site investigation and data collection including geo-technical surveys, topographical surveys or any other survey/analysis towards investigation of soil strength, composition, water content, and other important soil characteristics, contour, physical features, etc. of the site for the design, construction and transportation of material and species for the MRCI CUM OCEANARIUM. The Developer is responsible for undertaking the market study and demand assessment, techno-commercial feasibility of the project; if required beyond the studies that have already been undertaken and shall be provided to the bidder 2. The Developer is responsible for the preparation of detailed environment and social impact assessments complying to the safeguard policies of the World Bank, as applicable to MRCI CUM OCEANARIUM 3. The Developer is responsible for obtaining necessary Coastal Regulation Zones clearance, Environmental Clearance(s) and Consent to Build and Operate from competent authorities such as National/ State Coastal Zone authority, State pollution control board and any other as applicable as per the law of the country. 4. The Developer is responsible for meeting or exceeding all necessary and applicable technical standards, Indian laws and regulations or international standards, if higher in design and execution of MRCI CUM OCEANARIUM; in all the cases BIS standards has to be minimum followed 5. The Developer shall be responsible for preparation and adherence to an Environment Management Plan (EMP) applicable during Development and Operations stage of the facility. 6. The Developer shall be responsible for preparation of a Disaster Management Plan for the facility in accordance to all applicable laws and regulations. 2.2 Minimum Development Plan The MRCI cum Oceanarium and its Allied Facilities shall be an edutainment institution for the purposes of scientific research, conservation and dissemination of scientific knowledge on the animals and their ecosystem through interactive and experiential mediums housing the following facilities and containing a minimum enclosed water volume of 7 million litres. I. EXHIBITS Sr.No. Project Components 1. Overall Oceanarium project ( should be at least a 5 th Generation Oceanarium), inclusive of multiple exhibits, both indoor and outdoor, and Development Obligations Oceanarium with Tunnel length of 150 metres for public travel, with a variety of viewing experiences including 270 degrees viewing Minimum 7.0 Million Litres Project Water Capacity. At least one large cylindrical tank Remarks It should have a cylindrical underwater acrylic viewing gallery of at least 12 metres diameter with proper structural provision, including internal circulation space for viewing along with lift / escalator / ramp / staircase (if needed) for vertical movement. Aquarium with exhibits ranging but not limited to fresh, brackish and sea water flora and fauna, shall contain: different types of large species; Page 169

170 public spaces with 270 degree tunnels with atleast one element for a 360 degree panoramic view which should have minimum diameter of 0 m 2. Display Tanks Small exhibits, display tanks and pools Wall mounted tanks 3. Cylindrical Tanks 4. Touch pools Touch or Feeding Pools 5 Nos. 5. Marine Species different types of exotic species from international waters / oceanic / aquatic ecosystems, if available and allowed for importation and holding by the relevant authorities in India and from preferred locations of export; and different types of Indian species. Up to 50 Nos. of exhibits, small display tanks and pools 5 Nos. including a large one About 250 to 300 species and 15,000 to 20,000 Nos. 6. Commercial Souvenir Shops - 2 Nos. Cafeteria - 2 or 3 locations Underwater Restaurant with 60 seating capacity Community Centre with 1000 seating capacity Food Courts 7. Lab For management of the MRCI CUM OCEANARIUM 8. Car Parking Minimum 2 ECS per 100 sq. metre of built up space 9. Allied Facilities Education Class Room with 100 seating capacity This should be in accordance with the Development Control Regulations. The Project Developer can preferably use one or more basements for parking. It can be conventional or semi-automatic with puzzle and pit puzzle modules. Seal / Pinniped Stadium Penguin Park Cultural Food Court Musical Fountain 10. Others Fish Stocking & Rearing Tanks Laser Shows Amphi Theatre Turtle Park All terrain scooter & cars II. SPECIES Types of species Fish Reptiles Marine Mammals Coral & Other reef species Freshwater Estuarine Marine Pinnipeds Page 170

171 Indigenous/Exotic (where import / export is allowed) Indian Ocean Exotic Number Not Required to of species Total 500 Number to of Animals Total 10,000 Key exhibits Shark Species Marine Fishes, Ray Fish, etc. All Species of Turtles, Marsh Crocodil e, Snakes, etc. The exhibits, species and animal numbers provided under I & II above are only for the purpose of meeting the minimum requirements of Authority under the Project. Modern Oceanarium Concepts implemented today may vary substantially in terms of exhibit value, animal welfare and visitor safety (i.e. egress, disorientation and safety issues with walkways and acrylic tunnels and windows) as well as in terms of regulatory aspects from various authorities around the world. The Developer is at full liberty and at its sole discretion custom design the Project Facilities based on predicted visitor numbers and to suit its commercial interests. At the Final Concept & Design Stage, the capacity of the MRCI CUM OCEANARIUM and allied Facilities shall be determined by the Project Developer including tunnel length, small exhibits, etc., using the latest approaches to Oceanarium exhibits, sizing, design requirements, modern and the best commercially viable technology and cost input. Exhibits for exotic species can be included only subject to obtaining the approval of all government instrumentalities in India and internationally. Exhibits for specific Indian species shall be included only upon approval by all relevant Indian authorities for capture, transportation, holding and exhibition. III. RESEARCH FACILITY FOR THE STATE GOVERNMENT Comprehensive planning and design of a shell and core office and laboratory facility as the Research Centre with an approximate usable area of 10% of built up area preferably as one consolidated space. The facility should have a distinguished entry and exit from that of the MRCI CUM OCEANARIUM and allied Facilities. The facility shall be preferred on the ground floor or split in 2-3 levels such that the clear usable space of 10% of the total built up area is achieved with a centrally located core. The research facility shall be developed in a fashion that offers maximum flexibility and adaptability. Therefore appropriate column spacing of at least 5m is suggested. The shell and core facility to be equipped with the following: (i) (ii) Base structure, including and not limited to foundation, beams, columns, floor slabs, and roof structure, that includes standard structural bay spacing and floor to floor heights required to accommodate clear 9-0 ceiling height Building envelope, including and not limited to insulated exterior walls, exterior glazing, Page 171

172 and roof (iii) (iv) (v) (vi) Building standard finished ceiling/false ceiling, internal wall finishing and ambient lighting Common areas, including and not limited to entrance vestibule, main lobby, public elevator lobby, fire egress stairways and corridors, mechanical rooms, electricalswitchgear, communication equipment rooms, public and service elevator shafts, and elevator equipment rooms toilet blocks for male, female and specially abled Pantry (vii) Electrical and mechanical systems, including and not limited to central heating, ventilation, and air conditioning systems, emergency generator, and Building Automation System (BAS). The HVAC system shall be separate from the MRCI CUM OCEANARIUM complex. (viii) Combination fire standpipe/sprinkler system and central fire alarm system (ix) (x) Core areas for each floor, including and not limited to potable domestic water riser, separate sanitary and storm drain systems, sanitary vent, electrical power distribution panels and circuits breakers in an electrical closet, designated connection point to the central fire alarm system, and a distribution backboard within a wire closet; all services to provide for connections to horizontal extensions. Minimum required furniture such as seating areas, officer chambers, Air conditioners etc. 2.3 Final Concept and Design Within 120 days from the effective date Developer has to submit Final concept and Design incorporating the Minimum Development Plan and Final concept and design should contain all details related construction, operation and maintenance of the Project containing inter alia 1. the technology,designs, drawings(excluding any confidential information on any proprietary /patented technology, designs and drawings), 2. plans, utilities, investigation reports, BOQs, costing, 3. Project Implementation Schedule, 4. Technical standards for Development 5. Operation & Maintenance Manuals including Standards & Specifications, 6. safety plan, 7. detailed plan of sea water abstraction, water supply system and treatment 8. Waste management plan including chemical waste disposal if any, sea water, waste water and storm water management, solid waste and sewerage treatment 9. format of Progress Report for the Authority, 10. Procedure, methodology, standards, specifications & guidelines for acquisition,maintenance & transportation of species 11. shall include all the components as per Minimum Development Plan specified in 2.2 of Development Appendix. Page 172

173 Appendix 2B Applicable Regulatory Laws Appendix APPENDIX 2B TO THE GENERAL CONDITIONS OF CONTRACT FOR DESIGN, BUILD, FINANCE, OPERATE, MAINTAIN & TRANSFER OF MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM AND ALLIED FACILITIES Page 173

174 APPENDIX 2B The Developer shall strictly adhere to and comply with the relevant guidelines set by the Government of India through laws, rules and regulations as stipulated in the table for issues concerning the Scope of Project.. Clearances required as per the following to the extent applicable shall be taken from competent authority by the Developer Sr.No. Name/ Act Relevant issues where compliance is required Concerned Authority 1 Water (Prevention and Control of Pollution) Act, Marine Fishing Regulation Act, Environment (Protection) Act, 1986 EIA Notification 4 Coastal Regulation Zone (CRZ) Notification Forest Conservation Act, 1980 (amended in 1988) Water pollution In case of local species Environment Clearance Coastal Zone Management, Coastal pollution abatement Forest Conservation State Pollution Control Board Fisheries Department, GoG MoEF & CC MoEF & CC Not Applicable since the proposed land is not falls within forest area however Developer may ascertain from local authority 6 Wildlife Protection Act, 1972 (amended in 2001) Conservation and management of wildlife State national life board & wild 7 Animal Welfare Act Welfare of animals Department of Animal Husbandry, GoG 8 Indian Fisheries Act, 1897 For collection of exhibits of local species Fisheries Department, GoG Page 174

175 9 Air (Prevention and Control of Pollution) Act, Hazardous Wastes (Management and Handling) Rules, Biological Diversity Act Environment Impact Assessment Notification, Gujarat Fisheries Act, 2003 Environment Management Waste management For collection of local samples Environment Clearance Transportation of marine exhibits and collection of exhibits of local species SPCB SPCB Gujarat Biodiver sity Board MoEF & CC Fisheries Departm ent, GoG 14 Prevention of Cruelty to Animals Act, 1960 Performing Animals Rules, 2000, Breeding of and Experiments on Animals Rules, 1998 MoEF & CC Note: The above list is only tentative. All other laws applicable to the Project during the subsistence of the Contract is deemed to be included herein. Page 175

176 Appendix 3 Location Map and Site Details LOCATION MAP AND SITE DETAILS FOR DESIGN, BUILD, FINANCE, OPERATE, MAINTAIN & TRANSFER OF MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM Page 176

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