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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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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, 1st Floor,
Gandhinagar (Gujarat)
Revised Document
July 2018
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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INDEX
Bidding Documents
Annex A to Bidding Documents
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
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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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
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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Invitation for Bids
CONTRACT TO DESIGN, BUILD, FINANCE, OPERATE, MAINTAIN &TRANSFER
MARINE RESEARCH, CONSERVATION &
INFORMATION CENTRE CUM OCEANARIUM
AND ALLIED FACILITIES
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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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, 2011.
2. 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
Bid
Security
Cost of
Bidding
Document
Period
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
INR 5
million Or
US$ 0.077
million
Rs.10000 or
US$ 200
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.
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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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 31/03/2018
6. 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 11.00 to
1700 hours 30th December 2017 to 31
st July -2018.
7. 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 non-
refundable 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
(www.geciczmp.com) w.e.f 30th December 2017. 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 (www.geciczmp.com) w.e.f 30th December 2017.
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. 1000. 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.
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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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 31st 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, 1st Floor,
Gandhinagar – 382 010, Gujarat, India
Phone No. 079-23257656; Fax No. 079-23257656,
Email: [email protected] ,
Project Website: www.geciczmp.com
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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INTEGRATED COASTAL ZONE MANAGEMENT
PROJECT
INSTRUCTION TO BIDDERS
FOR A CONTRACT TO
DESIGN, BUILD, FINANCE,OPERATE & TRANSFER
MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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TABLE OF CONTENTS
INTERNATIONAL COMPETITIVE BIDDING ................................................................................................. 1
SECTION – 1: INTRODUCTION ....................................................................................................................... 13
1.1 Source of Funds & Scope of work.................................................................................................. 13
1.2 Eligible Bidders .............................................................................................................................. 13
1.3 Eligible Material, Equipment, and Services ................................................................................... 16
1.4 Inspection and Audit....................................................................................................................... 16 1.5 Cost of Bidding .............................................................................................................................. 17
SECTION – 2: THE BIDDING DOCUMENTS ................................................................................................. 18
2.1. Content of Bidding Documents ...................................................................................................... 18
2.2 Clarification of Bidding Documents ............................................................................................... 19
2.3 Site Visit ......................................................................................................................................... 19
2.4 Data Room and Background Information....................................................................................... 20
2.5 Pre-Bid Meeting ............................................................................................................................. 20
2.6 Amendment of Bidding Documents ............................................................................................... 20
2.7 Contact with the Authority For the Purpose of Clarification ......................................................... 20
2.8 Information Provided by the Authority/Bidder’s Due Diligence ................................................... 21
2.9 Timetable ........................................................................................................................................ 21
SECTION – 3: PREPARATION OF BIDS ......................................................................................................... 22
3.1 Language of Bid ............................................................................................................................. 22
3.2 Documents Comprising the Bid ..................................................................................................... 22
3.3 Technical Section – Part I – Technical and Staffing Information .................................................. 22
3.4 Technical Section – Part II – Bid Security ..................................................................................... 25
3.5 Technical Section – Part III – Bid Form, Qualification Information and Qualification Criteria ... 26
3.6 Technical Section – Part IV - Joint Venture Documents and Requirements .................................. 30
3.7 Technical Section – Part V – Power of Attorney ........................................................................... 30
3.8 Technical Section – Part VI – Commissions and Gratuities ........................................................... 30
3.9 Technical Section – Part VII – Pre-Printed Literature .................................................................... 31
3.10 Financial Section – Financial Offer Schedules .............................................................................. 31
3.11 Financial Section – Financial Offer ................................................................................................ 32
3.12 Financial Section –Currencies of the Investment amounts and Grant ............................................ 33
3.13 Bidding of Alternatives not to be considered ................................................................................. 33
3.14 Period of Validity of Bid ................................................................................................................ 34 3.15 Format and Signing of Bid ............................................................................................................. 34
SECTION – 4: SUBMISSION OF BIDS ............................................................................................................. 35
4.1 Sealing and Marking of Bids .......................................................................................................... 35
4.2 Deadline for Submission of Bids .................................................................................................... 35
4.3 Late Bids ........................................................................................................................................ 35 4.4 Withdrawal, Substitution, and Modification of Bids ...................................................................... 35
SECTION – 5: BID OPENING AND EVALUATION ....................................................................................... 37
5.1 Opening of Bid by Authority .......................................................................................................... 37
5.2 Clarification of Bids ....................................................................................................................... 37
5.3 Preliminary Examination of Bids ................................................................................................... 37
5.4 Estimated Project Cost ................................................................................................................... 38
5.5 Technical Evaluation ...................................................................................................................... 39
5.6 Evaluation for selection of Bidder for award ................................................................................. 40
5.7 Qualification of the Bidder ............................................................................................................. 40
5.8 Contacting the Authority ................................................................................................................ 40
SECTION– 6: AWARD OF CONTRACT .......................................................................................................... 41
6.1 Award Criteria ................................................................................................................................ 41
6.2 Authority’s Right to Accept or Reject and Waive Irregularities .................................................... 41
6.3 Notification of Award..................................................................................................................... 41
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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6.4 Signing the Form of Contract ......................................................................................................... 41
6.5 Performance Security ..................................................................................................................... 42
6.6 Failure to Sign the Form of Contract or Provide the Performance Security ................................... 42
6.7 Adjudicator ..................................................................................................................................... 42
6.8 Fraud and Corruption ..................................................................................................................... 42
ANNEXURE A- PART N ...................................................................................................................................... 51
ARTICLE 1 - CONTRACT AND INTERPRETATION ................................................................................. 107
1.1 Definitions .................................................................................................................................... 107
1.2 Contract Documents ..................................................................................................................... 113
1.3 Interpretation ................................................................................................................................ 113 1.3.1 Language 113 1.3.2 Singular or Plural 113
1.3.3 Headings 113
1.3.4 Persons 114
1.3.5 Incoterms 114
1.3.6 Entire Agreement 114
1.3.7 Amendment 114
1.3.8 Number of Days 114
1.3.9 Independent Developer 114
1.3.10 Joint Venture 115
1.3.11 Non-waiver 115
1.3.12 Severability 115
1.3.13 Country of Origin 115
1.3.14 Survival of Obligations 115
1.4 Notice ........................................................................................................................................... 116
1.5 Governing Law ............................................................................................................................. 116
1.6 Settlement of Disputes .................................................................................................................. 116 1.6.1 Adjudicator 116
1.6.2 Arbitration 117 1.6.3 Obligations during Arbitration 117
1.7 Assignment ................................................................................................................................... 117
1.8 Contract Records, Accounting and Auditing ................................................................................ 118 1.8.1 Contract Records 118
1.8.2 Accounting 119
1.8.3 Auditing the Developer’s Own Accounts and the Contract Records 119
1.8.4 Developer’s Audited Accounts 119 1.8.5 Inspections and Audit by the Bank 119
1.9 Developer’s Claims during the Development Period ................................................................... 119
ARTICLE 2 - CONTRACT TERM, TIMING AND COMPLETION ........................................................... 122
2.1 General ....................................................................................................................................... 122 2.1.1 Effectiveness of Contract 122
2.1.2 Expiration of Contract 122 2.1.3 Commencement of Development 122
2.2 Development Period and Operations Period .......................................................................... 122
2.3 Development Period – Commencement, Delays and Suspension ............................................... 122 2.3.1 Commencement of the Development 122 2.3.2 Time for Completion 123
2.3.3 Development Time Schedule 123
2.3.4 Extension of the Time for Completion 124
2.3.5 Rate of Progress 124
2.3.6 Delay of Completion – Liquidated Damages - Delay 125
2.4 Operations Period ......................................................................................................................... 126 2.4.1 Commencement of the Operations - 126
2.4.2 Assistance after the End Date 126
2.4.3 Extension of the Contract 126
ARTICLE- 3: OBLIGATIONS OF THE DEVELOPER ................................................................................ 127
3.1 General – Services and Standards of Performance ........................................................................... 127
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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3.2 Compliance with Laws ................................................................................................................. 128
3.3 Conflict of Interest ........................................................................................................................ 128
3.4 Site Information and Investigation ............................................................................................... 129
3.5 Access to the Site and Facility ...................................................................................................... 130
ARTICLE 4 - OBLIGATIONS OF THE AUTHORITY ................................................................................. 131
4.1 Authority’s Assistance to the Developer ...................................................................................... 131
4.2 Access to the Site and New Facility ............................................................................................. 132
4.3 Reviews and Approvals of Submissions ...................................................................................... 132
ARTICLE 5 – GRANT AND DISBURSEMENT.............................................................................................. 133
5.1 Grant ............................................................................................................................................ 133
5.2 Terms of Disbursement of Grant .................................................................................................. 133
5.3 Liquidated Damages - Operations ................................................................................................ 133 5.4 Securities ...................................................................................................................................... 133 5.4.1 Performance Security 133
5.5 Taxes and Duties .......................................................................................................................... 134
ARTICLE 6 – TECHNOLOGY , PATENT, TRADE MARK ,COPYRIGHT AND OTHER INTELLECTUAL
PROPERTY RIGHTS ......................................................................................................................................... 135
6.1 Technology , Patent , Trademark , Copyright and other intellectual property rights ............... 135
6.2 Confidentiality .............................................................................................................................. 135
ARTICLE 7 – CONTRACT MONITORING DURING THE
DEVELOPMENT AND OPERATIONS PERIODS 136
7.1 Appointment of Project Monitoring Engineer .............................................................................. 136
7.2 Development Monitoring ............................................................................................................. 136 7.2.1 Monitoring during the Development Period 136
7.2.2. Project Monitoring Engineer’s Duties and Authority 136
7.2.3 Replacement of Project Monitoring Engineer 137 7.2.4 Determinations by Project monitoring Engineer 137
7.3 Operations Monitoring ................................................................................................................. 138 7.3.1 Monitoring during the Operations Period 138
ARTICLE 8 – REPRESENTATIVES, STAFF AND SUBCONTRACTING................................................. 139
8.1 Representatives ............................................................................................................................. 139 8.1.1 Authority’s Representative 139
8.1.2 Developer’s Representative 139
8.2 Developer’s Superintendence ....................................................................................................... 140
8.3 Developer’s Personnel .................................................................................................................. 140
8.4 Replacement of Developer’s Personnel ........................................................................................ 141 8.5 Subcontractors .............................................................................................................................. 141
ARTICLE 9 – LIABILITY AND RISK DISTRIBUTION ............................................................................... 142
9.1 Defect Liability ............................................................................................................................. 142
9.2 Limitation of Liability .................................................................................................................. 142
9.3 Transfer of Ownership and Existing Equipment and Materials – Not Applicable ....................... 142
9.4 Care of the Site and Facility ......................................................................................................... 142
9.5 Indemnification ............................................................................................................................ 143
9.6 Insurance ...................................................................................................................................... 144
9.7 Unforeseeable Physical Conditions .............................................................................................. 144
9.8 Force Majeure .............................................................................................................................. 145
9.9 War Risks ..................................................................................................................................... 146
9.10 Change in Laws and Regulations ...................................................................................................... 147
9.11 Patent Indemnity ........................................................................................................................... 148 9.11.1 Indemnity by Developer 148
9.11.2 Notice of Claim 148
9.11.3 Indemnity by Authority148
ARTICLE 10-CHANGE IN CONTRACT ELEMENTS ................................................................................. 149
10.1 Change to the Development ......................................................................................................... 149
10.2 Change in the Grant amount ......................................................................................................... 149
Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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ARTICLE – 11 – SUSPENSION AND TERMINATION ................................................................................ 150
11.1 Suspension .................................................................................................................................... 150 11.1.1 Suspension by the Authority 150
11.1.2 Suspension by the Developer 150
11.2 Termination .................................................................................................................................. 151 11.2.1 Termination for Authority’s Convenience 151
11.2.2 Payment upon Termination by the Authority for Convenience 151 11.2.3 Termination for Developer’s Default 152
11.2.4 Payment upon Termination for Developer’s Default 155
11.2.5 Termination by Developer 156
11.2.6 .
11.2.7 General Provisions - Termination 157
SPECIAL CONDITIONS OF CONTRACT ..................................................................................................... 159
1. Clause 1.3.1 – Language .............................................................................................................. 159
2. Clause 1.3.10 – Joint Venture ....................................................................................................... 159
3. Clause 1.3.14 – Survival of Obligations ....................................................................................... 159
4. Clause 1.4 – Notice ....................................................................................................................... 159
5. Clause 1.5 – Governing Law ........................................................................................................ 160
6. Clause 1.6.1(1) - Adjudicator) ...................................................................................................... 160
7. Clause 1.6.1 (4) - Adjudicator’s Fee ............................................................................................. 160
8.. Clause 1.6.1 (5) - Appointing Authority for New Adjudicator ..................................................... 160
9. Clause 1.6.2 (3) - Arbitration ........................................................................................................ 160
10. Clause 2.1.2 (a) - Expiration of Contract ...................................................................................... 160
11. Clause 2.3.2 - Time for Completion ............................................................................................. 160
12. Clause 2.3.6 (2) - Liquidated Damages - Delay ........................................................................... 160
13. Clause 2.3.6 (5) ............................................................................................................................. 160
14. Clause 4.2 ..................................................................................................................................... 160
15. Clause 5.2 ……………………………………………………………………………………….161
16. Clause 5.4 - Liquidated Damages - Operations ............................................................................ 162
17. Clause 5.4.1 (2) (a) ....................................................................................................................... 162
18. Clause 7.2.2(4) ............................................................................................................................. 163
19. Clause 8.1.1(1) (a) ........................................................................................................................ 163
20. Clause 9.6 ..................................................................................................................................... 163
21. Clause 9.6.1 .................................................................................................................................. 163
22. Clause 9.6.4……………………………………………………………………………………..164 23. Profit Sharing ............................................................................................................................... 164
24 Transfer of MRCI Oceanarium and allied facilities to Authority………………………………..165
25 ESHS management strategies and implementation plan…………………………………………165
26 Financial Close………………………………………………………………………………… 166
DEVELOPMENT APPENDIX (DA) ................................................................................................................ 167
ARTICLE 1: GENERAL .................................................................................................................................... 168
1.1 Description of Development Services ........................................................................................... 168
ARTICLE 2-DESIGN PRINCIPLES ................................................................................................................ 168
2.1 General ......................................................................................................................................... 168 2.1.1 Design and Engineering 168
2.1.3 Design Responsibilities 168
2.2 Minimum Development Plan ............................................................................................................ 169
2.3 Final Concept and Design . .............................................................................................................. 172
APPLICABLE REGULATORY LAWS APPENDIX ...................................................................................... 173
LOCATION MAP AND SITE DETAILS ......................................................................................................... 176
SITE LEASE DEED…………………………………………………………………………………………… 179
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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 5.
1.2 Eligible Bidders
1.2.1 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.
1.2.2 A Bidder may be a firm that is a private entity, a government-owned entity—subject to
ITB 1.2.6 — 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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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 3.5.3 (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.
1.2.3 A Bidder shall not have a conflict of interest. Any Bidder found to have a conflict of
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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) directly or indirectly controls, is controlled by or is under common control with
another Bidder; or
(b) receives or has received any direct or indirect subsidy from another Bidder; or
(c) has the same legal representative as another Bidder; or
(d) 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
(e) 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 / sub-
contractor in more than one bid; or
(f) 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
(g) 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
(h) 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
(i) 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.
1.2.4 A Bidder may have the nationality of any country, subject to the restrictions pursuant to
ITB 1.2.8. 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..
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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.
1.2.6 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.
1.2.7 A Bidder shall not be under suspension from bidding by the Authority as the result of the
operation of a Bid–Securing Declaration.
1.2.8 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.
1.2.9 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
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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.
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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. Bidder’s Price Schedules;
iii. Form of Bid Security;
iv. Form of Performance Security;
v. Form of Bank Guarantee – Advance Payment;
vi. Form for Clarification Questions;
vii. List of Eligible Countries
viii. Declaration Format for Deemed Export Benefits
Information Forms
ix. Form of Letter of Intent by JV Partners to enter into JV Agreement
x. Form of Power of Attorney for Joint Venture
xi. Form of Undertaking by the Joint Venture Partners
xii. 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
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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.
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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 (www.geciczmp.com) w.e.f 30th December 2017.
2.5 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.
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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.
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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. Part III – the Bid Form required by ITB Section 3.5(1), and the information
required by ITB Section 3.5(2);
iv. 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 3.10.
(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:
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(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
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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
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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,
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(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 6.5.
3.5 Technical Section – Part III – Bid Form, Qualification Information and
Qualification Criteria
3.5.1 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.
3.5.2 Qualification Criteria – General
3.5.2.1 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 3.5.8 and 3.5.9. 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 3.5.3.
3.5.2.2. 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 3.5.3 (a) (1) and 3.5.3 (a) (2), and
only if the sub-contractors and sub- consultants are nominated for the purpose of
this bid.
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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.
3.5.2.3 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.
3.5.3 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 3.5.3 (a) (1) and Operation &
Maintenance experience required as per Section 3.5.3 (a) (2) can be met by the
bidder’s nominated sub-contractor.
However, in case development, built and commissioning experience specified
in section 3.5.3 (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
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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.
3.5.4 Qualification Criteria – Financial Capabilities
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 1.2.2
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.
3.5.5 Deleted
3.5.6 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) non-
performance 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. Non-
performance 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.
3.5.7 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.
3.5.8 Qualification Criteria for Joint Venture
a. One of the Joint Venture partners shall satisfy the criteria specified in Section 3.5.3 (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
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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 3.5.3 (a) (2).
c. For the purpose of satisfying the qualification criteria set out in Sections 3.5.4, 3.5.6
and 3.5.7, qualifications/experience of the Joint Venture Partners shall be considered
as under:
(i) Net worth requirement as stated in Sections 3.5.4 (a) for all partners taken
together;
(ii) Financial soundness as set out in Section 3.5.4 (c) in respect of each partner
of the JV;
(iii) legal disclosure as stated in Section 3.5.6 for each partner of the JV.
(iv) Declaration for non-compliance of any environmental, or social, or health or
safety requirements or safeguards as stated in Section 3.5.7 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 3.5.8 (a) to (c).
3.5.9 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
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
(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
1.2.2 & 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 1.2.2 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
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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.
3.10 Financial Section – Financial Offer Schedules
3.10.1 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.
3.10.2 The Financial Offer shall consist of the different parts in the following order:
(A) 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.
(B) 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 3.10.2 (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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
(D) 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.
3.10.3 If the proposal submitted by a Bidder does not comply with section 3.10.2, the bid will be
deemed to be non-responsive and shall be rejected.
3.11 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
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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.
3.12 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.
3.13 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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
(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.
3.14 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 4.4.
3.15 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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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 30th June 2018 -- 12.30 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
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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).
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
(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 3.10.2 (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 3.12.
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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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. T1: Tentative Design Philosophy & Project Concept- see ITB Section 3.3(b)
ii. T2: Tentative Project Marketing & Business Model- see ITB Section 3.3(c)
iii. T3: Tentative Implementation Plan (Development Phase) - see ITB Section
3.3 (e)
iv. T4: Tentative Operations & Maintenance Plan - see ITB Section 3.3(f)
v. T5: Tentative Staffing Plan - see ITB Section 3.3(h) Points for the
above mentioned criteria are allocated as under:
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 5.6.2.
(4) Bids determined technically qualified will be eligible for further evaluation in accordance with
ITB Section 5.6.
SN Criteria Maximum Points
1 T1: Tentative Design Philosophy & Project Concept
25
2 T2: Tentative Project Marketing & Business Model
20
3 T3: Tentative Implementation Plan
(Development Period)
20
4 T4: Tentative Operations & Maintenance Plan
20
5 T5: Tentative Staffing Plan 15
Total 100
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
5.6 Evaluation for selection of Bidder for award
5.6.1 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.
5.6.2 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) 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 3.5.2 to 3.5.8.
(ii) 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 3.5.1 (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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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, sub-
consultants, 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;4
1
In this context, any action to influence the procurement process or contract execution for undue
advantage is improper. 2
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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
iii. “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
iv. “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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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.
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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
REQUIRED INFORMATION
ITB 1.1(a) Name of the Borrower: Government of India and SPMU Gujarat
ITB 1.1(a) Credit number:4765-IN Credit amount: US$ 222 million
Name of the Project: Integrated Coastal Zone Management Project
ITB 1.1(a) 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.
ITB 1.1(d) Name of Authority: Gujarat Ecology Commission
Block No. 18, 1st Floor,
Udhyog Bhavan Gandhinagar
(Gujarat)
ITB 1.2.2 The number of partners of a JV shall not exceed 3.
ITB 1.2.5 The electronic address of firms and individuals debarred by the World
Bank is: http://www.worldbank.org/debarr.
ITB 2.2(1) Address of Authority: Gujarat Ecology Commission, 1st Floor, Udhyog
Bhavan, Gandhinagar, Gujarat, India
ITB 2.4 Data Room:
Data Room is the office of the Gujarat Ecology Commission, Udhyog
Bhavan, Block No. 18, 1st Floor, Udhyog Bhavan, Gandhinagar (Gujarat)
ITB 2.5, 2.6 (2) 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, 1st Floor, Udhyog Bhavan,
Gandhinagar, Gujarat-380 010
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
(www.geciczmp.com).
ITB 2.7 Contact person: Additional Project Director Gujarat Ecology Commission, Udhyog Bhavan, Block No. 18, 1st Floor,
Gandhinagar (Gujarat)
Telephone: (079) 23257656/23257658 Fax: (079) 23257657
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
ITB SECTION
REFERENCE
REQUIRED INFORMATION
ITB 2.9(1), 2.2(3), 2.3(1), 2.4(1), 2.9(2)
The estimated timetable is:
(a) Issue of Bidding Documents: [From 30.12.17 to 30.07.18 ]
(b) Site Visits [From 01.01.18 to 27.07.18]
(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 [31.07.18]
(Submission Deadline) 12:00:noon local [Gandhinagar]
(i) Opening of Bids [31.07.18]
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].
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ITB SECTION
REFERENCE
REQUIRED INFORMATION
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) 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.
ITB 3.3 (g) 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)
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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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
ITB SECTION
REFERENCE
REQUIRED INFORMATION
ITB 3.3(h)(ii)(B) Language capabilities for Bidder’s Personnel; [English]
ITB 3.3 (j) 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.
ITB SECTION
REFERENCE
REQUIRED INFORMATION
ITB 3.4(1) Amount of Bid Security: INR 5 million or US $ 0.077 million
ITB 3.10.2 (A) 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.
ITB 3.10.2 (B) 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.
ITB 3.10.2 (C) 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.
ITB 3.14(1) Bid Validity Period: 180 days
ITB 3.15(1), 4.1(1) and 4.4(2)(a)
Original and 3 copies.
ITB 4.1(2)(a), 4.2(1), 4.2(3), 4.4(3)(b)
Address of Bid submission:
Additional Project Director, Gujarat State Project Management Unit,
Gujarat Ecology Commission,
Block No. 18, 1st Floor, Udhyog Bhavan,
Gandhinagar, Gujarat-380 010 Date : 31
st July-2018 Time: 12.00 Hrs.
ITB 4.1(2)(b), 4.4(3)(c)
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
ITB 4.1(2)(b), 4.2(1),
5.1(1)(b) Location, date and time of opening of Bid: Gujarat State Project Management Unit, Gujarat Ecology Commission,
Block No. 18, 1st Floor, Udhyog Bhavan,
Gandhinagar, Gujarat-380 010
Date:31st July-2018 Time: 12:30 Hrs.
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ITB 5.4 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.
ITB 6.5 The successful Bidder shall be required to submit an Environmental, Social,
Health and Safety (ESHS) Performance Security.
ITB 6.5 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.
ITB 6.7 Name of the Adjudicator and hourly fee will be decided on mutual
consultation with Developer after signing of Contract
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Annex A to the Bidding Documents
(a) Bidder’s Bid Form
(b) Bidder’s Financial Offer Schedules
(c) Form of Bid Security
(d) Form of Performance Security and ESHS Performance Security
(e) Form of Bank Guarantee – Advance Payment of Grant
(f) Deleted
(g) Form for Clarification Questions
(h) List of Eligible Countries
(i) Declaration Format for Deemed Export Benefits
(j) Information Forms
(k) Form of Letter of Intent by JV Partners
(l) Form of Power of Attorney for Joint Venture
(m) Form of undertaking by JV Partners
(n) Deleted
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Annexure A – Part a
BIDDER’S BID FORM
[NAME OF PROJECT]
Date:
Loan/Credit No:
Contract No:
[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 above-
named 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 3.10.2
(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 3.10.2 (D) read with the
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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 1.2.3.
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 1.2.7.
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 1.2.3 (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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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]
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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 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.
Schedule 2 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.
Schedule 3 Lease Rent – Schedule will include confirmation that the bidder (if
selected as Developer) shall, pay annual lease rent, in accordance with
ITB 3.10.2 (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.
Schedule 4 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 3.10.2 (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.
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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.]
(ii) Amount of Grant
INR.......
Currency Amount
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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
Grant from
Authority
(INR)
Currency Amount
I
II
Total
Estimated
Project
Cost
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Schedule 2 – Financing Plan
[Bidder shall provide the details as specified in Para 1.1 of Annexure A – Part b
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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]
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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.
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Schedule 5 Details of total estimated project cost for the proposed Development
S
N
Particulars Amount in INR
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 ……
… ….
… ………
Total
Particulars are just indicative, Bidder can list particulars as per their own assessment
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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) 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
(b) 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.
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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. 758.
[Signature(s)]
Note: All italicized text is for use in preparing this form and shall be deleted from the
final product.
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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.
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Note: All italicized text (including footnotes) is for use in preparing this form and shall be
deleted from the final product.
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Annexure A – Part d
2. Environmental, Social, Health and Safety (ESHS) Performance Security
ESHS Demand Guarantee
[Guarantor letterhead or SWIFT identifier code]
Beneficiary: [insert name and Address of Authority]
Date: _ [Insert date of issue]
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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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) has used the advance Grant amount for purposes other than the costs of
mobilization in respect of the Development of Project; or
(b) 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
1The 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.
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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.
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Annexure A – Part f- Deleted
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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
1.
2.
3.
4.
5.
6.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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 1.2.8 (a) : None
Under ITB 1.2.8 (b) : None
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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. 85/99.
3. The goods, equipment and materials, etc., for which certificates are required are as under:
Items 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
Goods
[a]
[b]
[c]
[d]
[e]
[f]
[g]
4. We agree that the certificate will be issued only to the extent considered reasonable by the
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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: (Signature)
Place: (Printed Name)
(Designation)
(Common Seal)
.
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Annexure A – Part j
Information Forms
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INFORMATION FORM (1)
General Information
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
Nationality of owners1
Name Nationality
1.
2.
3.
4.
5.
1. To be completed by all owners of partnerships or individually owned firms.
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INFORMATION FORM (2)
(Ref. ITB Section 3.5)
General Design, Build, Operation and Management Experience Information
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$)
Individual for reference
Address,
Telephone,
Fax for reference
Name of Bidder or participant of a joint venture
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INFORMATION FORM (2A)
General Turnover Information
All individual firms and all participants of a joint venture are requested to complete the information in this form
with regard to their experience in designing, building, operating, managing and maintaining MRCI CUM OCEANARIUM. The information supplied should be the annual turnover of the Bidder (or each member of a
joint venture) in terms of the amounts billed to clients for each year for work in progress or completed, converted to U.S. dollars at the rate of exchange at the end of the period reported. The annual periods should be
calendar years, with partial accounting for the year up to the date of submission of Applications.
Use a separate sheet for each participant of a joint venture.
Bidders should not enclose testimonials, certificates, and publicity material with their Application as they will
not be taken into account in the evaluation of qualifications.
Annual turnover data (in the area of infrastructure development and engineering
construction).
Year Turnover INR /US$ equivalent (converted
at the rate of exchange at the end
of the period reported)
[Year]
[Year]
[Year]
[Year]
[Year]
Name of Bidder or participant of a joint venture
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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
Information
Form (2A)
page no.
[Year]
[Year]
[Year]
[Year]
[Year]
1. Lead
Participant
2. Participant
3. Participant
4. Participant
Totals
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
INFORMATION FORM (3A)
(Ref. ITB Section 3.5)
Design, development, construction, testing and commissioning of MRCI CUM OCEANARIUM
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
.
Name of Bidder or participant of a joint venture
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
INFORMATION FORM (3B)
(Ref. ITB Section 3.5)
Experience in successful Operation and Maintenance of MRCI CUM OCEANARIUM
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
Name of Bidder or participant of a joint venture
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
INFORMATION FORM (4)
Financial Capabilities (Ref. ITB Section 3.5)
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 Contact name and title
Fax 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
Name of Bidder or participant of a joint venture
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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 3.5.4 (b)
Source of Financing Amount in INR or equivalent to US $
1.
2.
3.
4.
Attach audited financial statements—including, as a minimum, profit and loss account, balance sheet, and
explanatory notes—for compliance with ITB Sections 3.5.4 (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.
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INFORMATION FORM (5)- Deleted
(
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INFORMATION FORM (5A)- Deleted
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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$)
[insert
year]
[insert amount
and percentage]
Contract Identification: [indicate complete contract
name/number, and any other identification]
Name of Employer: [insert full name]
Address of Employer: [insert street/city/country]
Reason(s) for non performance: [indicate main
reason(s)]
[insert amount]
Pending Litigation, in accordance with ITB Section 3.5.6
No pending litigation in accordance with ITB Section 3.5.6
Pending litigation in accordance with ITB Section 3.5.6
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ENVIRONMENTAL, SOCIAL, HEALTH, AND SAFETY PERFORMANCE
DECLARATION
(Ref. ITB Section 3.5.7)
[The following table shall be filled in for the Bidder, each member of a Joint Venture and each
Specialized Subcontractor]
Bidder’s Name: [insert full name]
Date: [insert day, month, year]
Joint Venture Member’s or Specialized Subcontractor’s Name: [insert full name]
Environmental, Social, Health, and Safety Performance Declaration
in accordance with ITB Section 3.5.7
No suspension or termination of contract: An employer has not suspended or terminated a contract
and/or called the performance security for a contract for reasons related to Environmental, Social, Health, or Safety (ESHS) performance since the date specified in ITB 3.5.7.
Declaration of suspension or termination of contract: The following contract(s) has/have been
suspended or terminated and/or Performance Security called by an employer(s) for reasons related to
Environmental, Social, Health, or Safety (ESHS) performance since the date specified in ITB 3.5.7:
Year Suspended or
terminated
portion of
contract
Contract Identification Total Contract
Amount (current
value, currency,
exchange rate and
US$ equivalent)
[insert
year]
[insert amount
and percentage]
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)]
[insert amount]
[insert
year]
[insert amount
and percentage]
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)]
[insert amount]
… … [list all applicable contracts] …
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)
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
[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]
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
Annexure A - Part K
FORM OF LETTER OF INTENT BY JV PARTNERS TO ENTER INTO
JV AGREEMENT
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 3.5 - 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 1.2.2 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:
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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
1.2.2 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
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with the Bid and form a SPC as per ITB Section 1.2.2 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 ...............
For Lead Partner (Party No.-1) For and on
behalf of M/s
Name ........................................
Designation ..................................
Signature ..................................... Signature
representative)
of The authorized
WITNESS:
I…………………………………….
II…………………………………….
Common Seal of ............................ has
been affixed in my/ our presence
pursuant to Board of Director's
Resolution dated ...............
For Party No.-2 For and on behalf of M/s
Name ........................................
Designation ..................................
Signature ..................................... Signature
representative)
of The authorized
WITNESS:
I…………………………………….
II…………………………………….
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Common Seal of ............................ has
been affixed in my/ our presence
pursuant to Board of Director's
Resolution dated ...............
For Party No.-3 For and on behalf of M/s
Name ........................................
Designation ..................................
Signature ..................................... Signature
representative)
of The authorized
WITNESS:
I…………………………………….
II…………………………………….
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Annexure A - Part L
FORM OF POWER OF ATTORNEY FOR JOINT VENTURE
(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) 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".
iii) To do any other act or submit any document related to the above.
iv) 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
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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.................................................
2. Signature....................................................
Name......................................................
Designation................................................
Occupation..........................................................
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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 1.2.2 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
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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 1.2.2 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
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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 authorized
Of
WITNESS:
I…………………………………….
II…………………………………….
Common Seal of ............................ has
been affixed in my/ our presence
pursuant to Board of Director's
Resolution dated ...............
For Party No.-2 For and on behalf of M/s
Name ........................................
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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 ...............
For Party No.-3 For and on behalf of M/s
Name ........................................
Designation ..................................
Signature ..................................... Signature
representative)
of The authorized
WITNESS:
I…………………………………….
II…………………………………….
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Annex B to the Bidding Documents
The Draft Contract Documents
(i) Form of Contract
(ii) General Conditions of the Contract
(iii) Appendices to the General Conditions
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FORM OF CONTRACT TO
DESIGN, BUILD, FINANCE, OPERATE, MANAGE & TRANSFER
MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM
OCEANARIUM
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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:
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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.
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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...........
2.2 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:
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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/01/2015-16
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
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TABLE OF CONTENTS
A. CONTRACT AND INTERPRETATION ............................................................... 116
ARTICLE 1 - CONTRACT AND INTERPRETATION ................................................................................. 107
1.4 Definitions .................................................................................................................................... 107
1.5 Contract Documents ..................................................................................................................... 113
1.6 Interpretation ................................................................................................................................ 113 1.6.1 Language 113 1.6.2 Singular or Plural 113
1.6.3 Headings 113
1.6.4 Persons 114
1.6.5 Incoterms 114
1.6.6 Entire Agreement 114
1.6.7 Amendment 114
1.6.8 Number of Days 114
1.6.9 Independent Developer 114
1.6.10 Joint Venture 115
1.6.11 Non-waiver 115
1.6.12 Severability 115
1.6.13 Country of Origin 115
1.6.14 Survival of Obligations 115
1.7 Notice ........................................................................................................................................... 116
1.8 Governing Law ............................................................................................................................. 116
1.9 Settlement of Disputes .................................................................................................................. 116 1.9.1 Adjudicator 116
1.9.2 Arbitration 117
1.9.3 Obligations during Arbitration 117
1.9 Assignment ................................................................................................................................... 117
1.10 Contract Records, Accounting and Auditing ................................................................................ 118 1.10.1 Contract Records 118
1.10.2 Accounting 119
1.10.3 Auditing the Developer’s Own Accounts and the Contract Records 119
1.10.4 Developer’s Audited Accounts 119 1.10.5 Inspections and Audit by the Bank 119
1.9 Developer’s Claims during the Development Period ................................................................... 119
ARTICLE 2 - CONTRACT TERM, TIMING AND COMPLETION ........................................................... 122
2.4 General ....................................................................................................................................... 122 2.4.1 Effectiveness of Contract 122
2.4.2 Expiration of Contract 122 2.4.3 Commencement of Development 122
2.5 Development Period and Operations Period .......................................................................... 122
2.6 Development Period – Commencement, Delays and Suspension ............................................... 122 2.6.1 Commencement of the Development 122 2.6.2 Time for Completion 123
2.6.3 Development Time Schedule 123
2.6.4 Extension of the Time for Completion 124
2.6.5 Rate of Progress 124
2.6.6 Delay of Completion – Liquidated Damages - Delay 125
2.5 Operations Period ......................................................................................................................... 126 2.5.1 Commencement of the Operations - 126
2.5.2 Assistance after the End Date 126
2.5.3 Extension of the Contract 126
ARTICLE- 3: OBLIGATIONS OF THE DEVELOPER ................................................................................ 127
3.4 General – Services and Standards of Performance ........................................................................... 127
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3.5 Compliance with Laws ................................................................................................................. 128
3.6 Conflict of Interest ........................................................................................................................ 128
4.4 Site Information and Investigation ............................................................................................... 129
4.5 Access to the Site and Facility ...................................................................................................... 130
ARTICLE 4 - OBLIGATIONS OF THE AUTHORITY ................................................................................. 131
4.4 Authority’s Assistance to the Developer ...................................................................................... 131
4.5 Access to the Site and New Facility ............................................................................................. 132
4.6 Reviews and Approvals of Submissions ...................................................................................... 132
ARTICLE 5 – GRANT AND DISBURSEMENT.............................................................................................. 133
5.5 Grant ............................................................................................................................................ 133
5.6 Terms of Disbursement of Grant .................................................................................................. 133
5.7 Liquidated Damages - Operations ................................................................................................ 133 5.8 Securities ...................................................................................................................................... 133 5.4.1 Performance Security 133
5.5 Taxes and Duties .......................................................................................................................... 134
ARTICLE 6 – TECHNOLOGY , PATENT, TRADE MARK ,COPYRIGHT AND OTHER INTELLECTUAL
PROPERTY RIGHTS ......................................................................................................................................... 135
6.3 Technology , Patent , Trademark , Copyright and other intellectual property rights ............... 135
6.4 Confidentiality .............................................................................................................................. 135
ARTICLE 7 – CONTRACT MONITORING DURING THE
DEVELOPMENT AND OPERATIONS PERIODS 136
7.3 Appointment of Project Monitoring Engineer .............................................................................. 136
7.4 Development Monitoring ............................................................................................................. 136 7.2.1 Monitoring during the Development Period 136
7.2.2. Project Monitoring Engineer’s Duties and Authority 136
7.2.5 Replacement of Project Monitoring Engineer 137 7.2.6 Determinations by Project monitoring Engineer 137
7.3 Operations Monitoring ................................................................................................................. 138 7.3.1 Monitoring during the Operations Period 138
ARTICLE 8 – REPRESENTATIVES, STAFF AND SUBCONTRACTING................................................. 139
8.2 Representatives ............................................................................................................................. 139 8.2.1 Authority’s Representative 139
8.2.2 Developer’s Representative 139
8.6 Developer’s Superintendence ....................................................................................................... 140
8.7 Developer’s Personnel .................................................................................................................. 140
8.8 Replacement of Developer’s Personnel ........................................................................................ 141 8.9 Subcontractors .............................................................................................................................. 141
ARTICLE 9 – LIABILITY AND RISK DISTRIBUTION ............................................................................... 142
9.12 Defect Liability ............................................................................................................................. 142
9.13 Limitation of Liability .................................................................................................................. 142
9.14 Transfer of Ownership and Existing Equipment and Materials – Not Applicable ....................... 142
9.15 Care of the Site and Facility ......................................................................................................... 142
9.16 Indemnification ............................................................................................................................ 143
9.17 Insurance ...................................................................................................................................... 144
9.18 Unforeseeable Physical Conditions .............................................................................................. 144
9.19 Force Majeure .............................................................................................................................. 145
9.20 War Risks ..................................................................................................................................... 146
9.21 Change in Laws and Regulations ...................................................................................................... 147
9.22 Patent Indemnity ........................................................................................................................... 148 9.22.1 Indemnity by Developer 148
9.22.2 Notice of Claim 148
9.22.3 Indemnity by Authority148
ARTICLE 10-CHANGE IN CONTRACT ELEMENTS ................................................................................. 149
10.3 Change to the Development ......................................................................................................... 149
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10.4 Change in the Grant amount ......................................................................................................... 149
ARTICLE – 11 – SUSPENSION AND TERMINATION ................................................................................ 150
11.2 Suspension .................................................................................................................................... 150 11.2.1 Suspension by the Authority 150
11.2.2 Suspension by the Developer 150
11.3 Termination .................................................................................................................................. 151 11.3.1 Termination for Authority’s Convenience 151
11.3.2 Payment upon Termination by the Authority for Convenience 151 11.3.3 Termination for Developer’s Default 152
11.3.4 Payment upon Termination for Developer’s Default 155
11.3.5 Termination by Developer 156
11.3.6 .
11.3.7 General Provisions - Termination 157
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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”
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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 10.1.1(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 pre-
payment 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
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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
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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);
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“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);
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“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).
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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
1.3.1 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.
1.3.2 Singular or Plural
The singular shall include the plural and the plural shall include the singular except
where the context otherwise requires.
1.3.3 Headings
The headings in the Contract Documents are included for ease of reference and
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shall neither constitute a part of the Contract nor affect its interpretation.
1.3.4 Persons
Words importing persons or entities shall include firms, corporations and
government entities.
1.3.5 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 2010. Incoterms means international rules for interpreting trade terms
published by the International Chamber of Commerce, 38 Course Albert 1er, 75008
Paris, France.
1.3.6 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.
1.3.7 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.
1.3.8 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.
1.3.9 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.
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1.3.10 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.
1.3.11 Non-waiver
(1) Subject to GCC Section 1.3.11(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,
(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.
1.3.12 Severability
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.
1.3.13 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.
1.3.14 Survival of Obligations
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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.
1.4 Notice
(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
1.6.1 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,
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(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.
1.6.2 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.
1.6.3 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) the Authority shall pay the Developer the Grant due to the Developer.
1.7 Assignment
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(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) be in writing;
(b) be dated and signed by the Authority’s Representative; and
(c) state the specific details of the assignment.
1.8 Contract Records, Accounting and Auditing
1.8.1 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.
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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.
1.8.3 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 1.8.3 (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.
1.8.4 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.
1.8.5 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 11.2.3.1 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 1.8.5 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
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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 7.2.6 to request an
extension, if any, of the Time for Completion before or after its expiry in accordance with
GCC Section 2.3.4.
(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
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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. .
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B. SUBJECT MATTER OF THE CONTRACT
ARTICLE 2 - CONTRACT TERM, TIMING AND COMPLETION
2.1 General
2.1.1 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”).
2.1.2 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.
2.1.3 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
2.3.1 Commencement of the Development
The Developer shall commence the Development no later than the Development
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Starting Date, and shall then proceed with the Development activities with due
expedition and without delay.
2.3.2 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.
2.3.3 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, Development 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 Development Documents; and
(f) all major phases and milestones of the Development.
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
Developer 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 and the 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 10.1.3.
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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 2.3.3.
2.3.4 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 11.1.1;
(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 10.1.3.
3. The Developer shall, at all times, use reasonable efforts to minimize any delay in the
performance of its obligations under the Contract.
2.3.5 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,
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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.
2.3.6 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 2.3.2 or in accordance with an extension of the
Time for Completion granted to the Developer in accordance with GCC Section 2.3.4.
2. 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 11.2.3 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 2.3.4.
4. 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.
2.3.7 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
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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
2.4.1 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.
2.4.2 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
2.4.3 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.
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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 non-
discriminatory 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.
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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.
3.1.2 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.
3.1.3 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.
3.1.4 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.
3.1.5 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
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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
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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
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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;
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(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.
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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 16.
5.4 Securities
5.4.1 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.
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(6) The cost of complying with this GCC Section 5.4.1 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.
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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.
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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
7.2.1 Monitoring during the Development Period
GCC Section 7.2 shall apply only during the Development Period.
7.2.2. 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
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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;
7.2.3 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.
7.2.4 Determinations by the Project Monitoring Engineer
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(1) Whenever the Contract specifically provides that the Project Monitoring Engineer shall
proceed in accordance with this GCC Section 7.2.6 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 1.9.
7.3 Operations Monitoring
7.3.1 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
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ARTICLE 8 – REPRESENTATIVES, STAFF AND
SUBCONTRACTING
8.1 Representatives
8.1.1 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.
8.1.2 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 8.1.2.
(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 8.1.2.
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(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
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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 sub-
subcontractors, as fully as if they were acts, omissions or defaults of the Developer or the
Developer’s Personnel.
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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
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(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 11.2.1.
(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
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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 man-
made 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
10.1.3 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 Section2.3.4. 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 7.2.6 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).
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(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.
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(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 11.2.1(2) and
11.2.2(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
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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 11.2.1.
(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
11.2.1(2) and 11.2.2(1).
9.10 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.
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9.11 Patent Indemnity
9.11.1 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.
9.11.2 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 9.11.1, 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.
(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.
9.11.3 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.
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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 10.1.1(1) and 10.1.1(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.
10.2 Change in the Grant amount
The Developer shall make no claim whatsoever for any adjustment in the agreed Grant amount
during the Contract Period.
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ARTICLE – 11 – SUSPENSION AND TERMINATION
11.1 Suspension
11.1.1 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 11.1.1 (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 11.1.1(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 11.2.1.
11.1.2 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
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Section 11.1.2(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 11.1.2, then the Time for Completion shall be
extended in accordance with GCC Section 2.3.4.
11.2 Termination
11.2.1 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 11.2.1(1).
(2) Upon receipt of the notice of termination under GC Section 11.2.1(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 (Development) 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
11.2.2 Payment upon Termination by Authority for Convenience
(1) Upon termination of this Contract pursuant to GC Section 11.2.1, 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 Project
Monitoring 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
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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;
11.2.3 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
11.2.3(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
11.1.1(2), the progress of Contract performance for more than 90 days after
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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
11.2.3(2).
(3) Upon receipt of the notice of termination under GCC Sections 11.2.3(1) or 11.2.3(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 9.
11.2.3.1 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 11.2.3 [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:
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(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;
(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;
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.
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(iii) “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;
(iv) “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;
(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 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
11.2.4 Payment upon Termination for Developer’s Default
If the Contract is terminated pursuant to GCC Section 11.2.3 Developer shall not be
entitled for any payment, except for the payments determined in accordance with GC
11.2.3 (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.
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11.2.5 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 11.2.5(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 11.2.5(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 11.2.5(1) or 11.2.5(2), then,
(a) the Developer shall immediately,
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(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 11.2.6, 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 11.2.5 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 11.2.5.
11.2.6 Deleted
11.2.7 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) any sum previously paid by the Authority to the Developer under the
Contract;
(ii) 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.
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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
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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 1.3.1 – Language
The language shall be “English”
2. Clause 1.3.10 – 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 1.3.14 – 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
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PIN:
Tel:
Fax:
Email:
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 1.6.2 (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 2.1.2 (a) - Expiration of Contract
The contract shall terminate on the End Date .
11. Clause 2.3.2 - Time for Completion
The “Time for Completion” for Development of Project Facilities shall be 36 months from the
Development Starting Date.
12. Clause 2.3.6 (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 2.3.6 (5)
The Contract does not provide for bonus payment to the Developer for early completion.
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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 14.2. The Authority shall execute and register the Site Lease Deed
as per format prescribed in Appendix 7 simultaneously on signing the Form of Contract.
14.2 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 5.2 - Terms of Disbursement of Grant
(a) 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.
(b) 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
of the Contract agreement
Advance payment of 10% of the Total
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
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Authority will make payment accordingly
following the provisions of ITB 5.4.
2 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
5% of the Total Estimated Project Cost
subject to a maximum amount of INR 150
million
3 After Environment Impact Assessment, Coastal Regulation Zone [CRZ] and Environment
Clearance
Balance Grant Amount
16. Clause 5.3 - 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 5.4.1 (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 .
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(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:
9.6.1 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.
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Unless otherwise stated elsewhere in the Contract, the insurances specified in this Sub-Clause:
(a) shall be effected and maintained by the Developer as insuring Party,
(b) shall be in the joint names of the Parties,
(c) 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,
9.6.4 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
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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
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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.
26.2 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.
26.3 Termination due to failure to achieve Financial Close
26.3.1 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.
26.3.2 Upon Termination under Clause 26.3.1, 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.
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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
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DEVELOPMENT APPENDIX (DA)
Article 1 - General
1.1 Description of Development Services
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
2.1.1 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
2.1.2 Design Responsibilities
The Developers’s design and design-related services shall include, but not limited to the following:
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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
Development Obligations Remarks
1. Overall
Oceanarium
project (
should be at
least a 5th
Generation
Oceanarium),
inclusive of
multiple
exhibits, both
indoor and
outdoor, and
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
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;
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public spaces
with 270
degree tunnels
with atleast
one element
for a 360
degree
panoramic
view which
should have
minimum
diameter of 0
m
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.
2. Display Tanks Small exhibits, display tanks
and pools
Wall mounted tanks
Up to 50 Nos. of exhibits, small display tanks
and pools
3. Cylindrical
Tanks
5 Nos. including a large one
4. Touch pools Touch or Feeding Pools 5 Nos.
5. Marine
Species
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
Education Class Room with 100 seating
capacity
8. Car Parking Minimum 2 ECS per 100 sq.
metre of built up space
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.
9. Allied
Facilities
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
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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) 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
(ii) Building envelope, including and not limited to insulated exterior walls, exterior glazing,
Indigenous/Exotic (where import / export is allowed)
Indian
Ocean
Exotic
Number
of species
Not Required 5 100 15 5 to 10 150
Total 500
Number
of
Animals
5000 300 25 to 50 2100
Total 10,000
Key
exhibits
Shark
Species
Marine
Fishes,
Ray
Fish,
etc.
All
Species
of
Turtles,
Marsh
Crocodil
e,
Snakes,
etc.
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and roof
(iii) Building standard finished ceiling/false ceiling, internal wall finishing and ambient lighting
(iv) 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
(v) toilet blocks for male, female and specially abled
(vi) 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) 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.
(x) 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 .
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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
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
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,
1974
Water pollution State Pollution
Control Board
2 Marine Fishing Regulation
Act, 1978
In case of local species Fisheries
Department,
GoG
3 Environment
(Protection) Act, 1986 –
EIA -2011 Notification
Environment Clearance MoEF & CC
4 Coastal Regulation Zone
(CRZ) Notification 2011
Coastal Zone
Management, Coastal
pollution abatement
MoEF & CC
5 Forest Conservation Act,
1980 (amended in 1988)
Forest Conservation 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 wild
life board
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
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Bid Document for Marine Research, Conservation & Information Centre Cum Oceanarium at Somnath on DBFOT basis
9 Air (Prevention and
Control of Pollution)
Act, 1981
Environment
Management
SPCB
10 Hazardous Wastes
(Management and
Handling) Rules, 1989
Waste management SPCB
11 Biological Diversity Act
2002
For collection of local
samples
Gujarat
Biodiver
sity
Board
12 Environment Impact
Assessment Notification,
2006
Environment Clearance MoEF & CC
13 Gujarat Fisheries Act,
2003
Transportation of marine
exhibits and collection of
exhibits of local species
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.
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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
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Appendix 4
Developers Bid
DEVELOPERS BID
FOR
DESIGN, BUILD, FINANCE, OPERATE, MAINTAIN & TRANSFER
OF MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM
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Appendix 5
FORMAT OF SITE LEASE DEED
SITE LEASE DEED FOR
DESIGN, BUILD, FINANCE, OPERATE, MAINTAIN & TRANSFER
OF MARINE RESEARCH, CONSERVATION & INFORMATION CENTRE CUM OCEANARIUM
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SITE LEASE DEED SITE LEASE DEED made on the ______ day of _________ 20** by and among BETWEEN 1. [Name & Address of Authority] (hereinafter referred to as the “Authority / Lessor” which expression shall, unless repugnant to the context or meaning thereof, include its administrators, successors and assigns) and 2. M/s. ________________________________________, a Special Purpose Company (SPC) incorporated under the Companies Act, 2013 and having its registered office at _______________________ (hereinafter referred to as the “Developer / Lessee”, which expression shall, unless the context otherwise requires, includes its successors and permitted assigns); WHEREAS : A. The Authority has vide the Form of Contract dated _________ (hereinafter “Contract”) awarded a Contract to _______ (the “Developer” or the “Lessee” herein) to implement the Project at Site, involving Design, Build, Finance, Operate, Manage & Transfer [DBFOOT] the Marine Research, Conservation & Information Centre cum Oceanarium and allied Facilities in accordance with the provisions of the Form of Contract; B. Pursuant to and under the Form of Contract, the Lessor is required to vest with the Lessee the land comprising the Site and all leasehold rights relating thereto for a period coterminous with the Term of the Form of Contract under a valid and binding Site Lease Deed for the purpose of Developing and Operating of the Project; C. The Site has been leased by the ______________ Department to ________ Department and being holding the lawful possession of the Site with a good title thereto as per the terms and conditions annexed herewith (Annexure 1), the Authority is desirous of sub-leasing the Site unto the Lessee and vesting unencumbered possession thereof with the Lessee, on the terms and conditions hereinafter contained. NOW THIS LEASE DEED WITNESSETH AS FOLLOWS: 1. The words and expressions used in this Deed but not defined shall, unless the context otherwise requires, have the meaning as defined / assigned to them respectively in the Form of Contract. 2. The following words and expressions shall, except where the context otherwise requires, have the meaning as hereunder: a) “Site Lease Deed” or “Deed” means this Site Lease Deed; b)" Form of Contract” shall mean the Contract dated _____________ entered into between the Authority and Lessee; c) “Term of the Deed” means the period specified under GCC Sections 2.1.1 & 2.2 of the Form of Contract; d) “Premises” means all the lands comprising the Site, more particularly delineated in Schedule A of this Deed and demarcated on the site plan attached thereto;
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e) “Parties” shall mean Lessor and Lessee herein, and where the context admits or requires, the Successful Bidder / Joint Venture; f) “Authority” means the Gujarat Ecology Commission; g) “Developer” means Successful Bidder / Joint Venture; h) “Annexure” means any of the Annexure, supplements and documents annexed to this Deed. 3. The Authority hereby leases the Premises unto the Developer as a “vacant possession” under the terms of this Deed from the ___ day of 20** for a period of which period shall be coterminous with the Term of the Form of Contract and shall be extended or terminated at a prior date to coincide with the Term of the Form of Contract. The Authority hereby undertakes that it shall not terminate this Deed, except upon the due and valid termination of the Form of Contract. 4. In consideration of the Form of Contract between the Authority and the Developer, with the Selected Bidder / Joint Venture, and in consideration of the Annual Lease Rent herein reserved and the covenants on the part of the Developer, the Authority hereby leases unto the Developer the Premises without interruption or interference, free from encumbrances and together with the full and free right and liberty of way and passage, the easementary rights and other rights in relation thereto with delivery of vacant possession thereof. 5. In consideration of the Authority leasing the Site to the Developer, the Developer shall, pay to the Authority the Annual Lease Rent of Rs.1,00,000/- (Rupees One Lakh only) from the first year of operation of the Project, with 5% annual escalation for the remaining duration of the Operations Period. The first Annual Lease Rent payment shall be paid within 10 days of the end of first year of Operation of the Project and the second Annual Lease Rent payment shall be paid pro-rata for the period beginning from second anniversary date of Operation of the Project until the completion of the succeeding Accounting Year. Thereafter Annual Lease Rent shall be paid on annual basis for every Accounting Year. The Lessor hereby vests the Premises with the Developer along with all easementary rights, free from any encumbrance. Any liability arising out of providing the Premises free of encumbrances shall be borne solely by the Authority. 6. The Authority hereby vests the Premises with the Developer under this Deed for the purpose of Developing & Operating the Project, including the Design, Built, Finance, Operate, Manage, & Transfer the Project Facilities thereat in accordance with the terms and conditions of the Form of Contract. The Developer shall not sub-lease the whole or any part of the land comprising the Project Site, leased to it by Authority under this Deed, to any person in any form or under any arrangement, device or method, provided that the Developer shall be entitled to:
a) enter into Contractual Arrangements, including the sub-leasing, letting, subletting, licensing, franchising or similar arrangements in respect of the built up area, which, however, shall not involve the transfer of the leasehold rights therein or thereof; and
b) appoint contractors / sub-contractors / consultants for Development & Operation of the Project at the Premises in accordance with the provisions of the Form of Contract.
7. The Authority hereby agrees that for the purpose of raising financial assistance for the Project, the Developer may assign all its rights, title, interest and benefits under the Form of Contract, limited to the extent of such rights therein, to or in favour of the Lenders in accordance with the provisions of the Financing Agreements, provided that: a) in the event of the termination of the Form of Contract such assignment shall stand extinguished; and
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b) the Developer shall have the right and authority to mortgage, encumber or create any security interest whatsoever on the leasehold rights of the Site, the Project Facilities or any other built up area thereat or therein, in full or part, in favour of the Lenders and in the event of recovery of dues Authority would have the first right to recover its dues.
8.In the event of termination of the Form of Contract by efflux of time or otherwise, this Deed shall be terminated and the lease of the Premises and all rights in relation thereto shall be determined, the Developer, the Transferees and Persons claiming through or under it / them shall hand over the vacant possession of the Premises to the Authority and forthwith vacate the Premises without any demur or delay.
8. The Authority hereby covenants with the Developer as under: a) That it shall not increase the Annual Lease Rent due and payable by the Developer subject to Clause 5 hereof; b) That the Annual Lease rent, is paid by the Developer to the Authority as per SCC Section 14.2 of the Form of Contract; c) That it shall not interfere with or impede in any manner or otherwise limit, restrict or impose conditions in relation to: (i) the complete, free and full enjoyment of the Premises by the Developer for the purpose of Development & Operation of the Project and all rights related thereto; (ii) the design, construction, operate, maintain & transfer the Project; (iii) the implementation of the Project by the Developer; and (iv) the possession, control and use by the Developer of the Premises, the Project Facilities constructed thereon and any other facilities developed in the course of implementation of the Project; provided that the same are in compliance with the terms and conditions of the Form of Contract and this Deed; and d) That it shall not terminate this Deed, except upon the due and valid termination of the Form of Contract in accordance with the terms thereof; 9.That there are no litigations, claims, demands or any proceedings pending before any authority in respect of acquisition of the Premises or in respect of any other land-dispute, and that the Developer shall have complete, lawful and uninterrupted possession, control and use of the Premises; 10. The Lessee hereby covenants with the Authority as follows: a) That it shall Design, Build, Finance, Operate, Manage & Transfer the Project Facilities / Project at the Premises as per its obligations under and the terms and conditions of the Form of Contract; b) That it shall operate and maintain the Project Facilities or cause it to be operated and maintained in accordance with the Form of Contract; c) That it shall observe and perform all terms, covenants, conditions and stipulations of this Deed and the Form of Contract; and d) That it shall keep the Premises free from encroachments during the Term of the Form of Contract and carry out its maintenance and repairs in accordance with the provisions of the Form of Contract. 11. Each Party hereto represents and warrants that: a) It has full power and authority to execute, deliver and perform its obligations under this Deed and to carry out the transactions contemplated hereby; b) It has taken all necessary actions to authorize the execution, delivery and performance of this Deed; and
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c) This Deed constitutes its legal, valid and binding obligations that shall be enforceable against it in accordance with the terms hereof. 12. The Parties agree that a) The failure of the Developer to perform its obligations under this Deed and any breach of covenants or undertakings given and provided for in this Deed by the Developer shall amount to a Developer Event of Default under the Form of Contract; b) Any dispute, controversy or claim arising out of or in relation to this Deed or the interpretation of any of its provisions shall be settled in accordance with the provision of GCC of the Form of Contract; c) The stamp duty and registration charges for the execution and registration of this Deed shall be borne by the Lessee in accordance with the provisions of the Applicable Laws; d) In case of ambiguities, conflicts or discrepancies between the Form of Contract and this Deed, the Form of Contract shall prevail; e) All notices under the terms of this Deed shall be sent either by hand, facsimile or courier to the following addresses: Authority: Developer: 13.Selected Bidder / Joint Venture agrees to and confirms the provisions of this Deed and undertakes that it shall ensure, at its cost and consequence, that the Developer abides by the provisions hereof. The Selected Bidder / Developer is a confirming Party to this Deed. IN WITNESS WHEREOF the Parties have executed and delivered this Deed by their duly authorized representative on the date first above written: SIGNED ON BEHALF OF AUTHORITY Signature : Name Designation : SIGNED, SEALED AND DELIVERED Developer by the hand of its authorized representative Signature : Name Designation : Pursuant to Resolution dated__________ of its Board of Directors Signed, Sealed and Delivered For and on behalf of the Selected Bidder/Joint Venture, We agree to be bound by the terms and conditions of this Deed Signature: Name: Designation: Signature: Name: Designation: In the presence of Witness: (i) (ii) Date: Place: