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Punjab Ashok Hotel Company LimitedC/o Punjab Tourism Development Corporation Ltd.
SCO- 183-84, Sector- 8 C,
Madhya Marg, Chandigarh- 160018
Revival of Incomplete Hotel at Sri Anandpur Sahib On
Design, Build, Finance, Operate, Maintain and Transfer basis
The Managing Director, Punjab Ashok Hotel Company Limited (PAHCL) invites Proposalsfor Development of Hotel at Sri Anandpur Sahib on Design, Build, Finance, Operate,Maintain and Transfer basis.
The Request for Proposal Document shall be available on the websites mentioned belowfrom 14th August 2018 till the proposal due date i.e. 10th September 2018.
– http://itdc.eproc.in,
– www.tourism.gov.in,
– www.theashokgroup.com,
– www.tenders.gov.in,
– www.eprocure.in,
– www.dipam.gov.in,
- http://punjabtourism.gov.in/Punjab.html#/downloads/Tourism
Response on prescribed format should be submitted in the manner and at the placedescribed in the RFP document on or before 1600 hours of 10/09/2018.
•For any information and clarification, please contact Mr. S.P.Singh Dhindsa, ProjectCoordinator (Admn.), Punjab Heritage & Tourism Promotion Board, Plot No. 3,Sector- 38 A, Dakshin Marg, Chandigarh-160014. +91 172 5042954,[email protected].
In the event of any corrigendum or amendment in the RFP document, the same would beissued on the above websites only.
PAHCL reserves the right to accept or reject any application and to annul the selectionprocess at any time, without incurring any liability and without assigning any reasonthereof
Managing Director
Revival of Incomplete Hotel at Anandpur Sahib
through PPP mode
SECTION – I : REQUEST FOR PROPOSAL
PUNJAB ASHOK HOTEL COMPANY LIMITED C/o India Tourism Development Corporation Limited SCOPE Complex, Core-8, 5thFloor,
7-Lodhi Road, New Delhi-110003.
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Contents
Contents
DISCLAIMER ................................................................................................................................ 3
1 INVITATION FOR PROPOSAL ........................................................................................ 5
1.1 Introduction ...................................................................................................................... 5
2 PROJECT BACKGROUND ................................................................................................ 7
2.1 Introduction ...................................................................................................................... 7
2.2 Development Envisaged (the “project”) .......................................................................... 10
2.3 Commercial Consideration .............................................................................................. 11
2.4 Revenue Stream from the Project ....................................................................................12
2.5 Statutory Clearances ........................................................................................................12
2.6 Development Parameters to be followed..........................................................................12
2.7 Assignability and Encumbrances .....................................................................................14
3 GENERAL TERMS AND CONDITIONS FOR EVALUATION ......................................... 15
3.1 The evaluation of the Proposals will be completed in 2 Steps .......................................... 15
3.2 Technical Qualification Conditions .................................................................................. 15
3.3 Proposal Submitted by a Consortium ..............................................................................16
3.4 Fee and Deposits to Be Paid by the Bidder ..................................................................... 18
3.5 One Bid per Bidder .......................................................................................................... 20
3.6 Proposal Preparation and Cost........................................................................................ 20
3.7 Due Diligence, Inspection and Investigation .................................................................. 20
3.8 Validity of Proposal ......................................................................................................... 20
3.9 Right to Reject Proposals ................................................................................................ 20
3.10 Disputes ...........................................................................................................................21
4 TENDERING PROCEDURE AND SCHEDULE .............................................................. 22
4.1 General ............................................................................................................................ 22
4.2 Amendment of RFP ......................................................................................................... 22
4.3 Preparation and Submission of Proposal ........................................................................ 22
4.4 Language and Currency ................................................................................................... 25
4.5 Bidder’s Responsibility.................................................................................................... 25
4.6 Sealing and Marking of Proposals ................................................................................... 25
4.7 Modification and Withdrawal of Proposals ..................................................................... 26
4.8 Opening of Proposals ...................................................................................................... 27
4.9 Evaluation of Proposals ................................................................................................... 27
4.10 Confidentiality .................................................................................................................... 28
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4.11 Acceptance of the Proposal ............................................................................................. 28
4.12 Execution of Concession Agreement ............................................................................... 29
4.13 Proposals of other Bidders .............................................................................................. 29
5 PRESCRIBED FORMATS ................................................................................................ 31
A. Letter of Application & Interest ....................................................................................... 31
B. General Information of the Bidder .................................................................................. 33
C. Format for Financial Proposal ........................................................................................ 35
D. Affidavit ........................................................................................................................... 36
E. Format for Power of Attorney for Signing of Application ............................................... 38
F. Format for Proposal Security (Bank Guarantee) ............................................................. 39
G. Power of Attorney by Each Member of the Consortium in Favour of Lead Member......................................................................................................................................... 42
H. Format of Parent / Holding Company Guarantee ........................................................... 44
I. Format of Individual / Single Bidder Guarantee Towards SPC ............................................. 47
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DISCLAIMER
The information contained in this Request for Proposal (RFP) document or subsequently
provided to Bidders, whether verbally or in documentary form by or on behalf of Punjab
Ashok Hotel Company Limited (PAHCL) or any of its employees or its advisors, is
provided to Bidders on the terms and conditions set out in this RFP document and any other
terms and conditions subject to which such information is provided.
This RFP document is not an Agreement and is not an offer or invitation to any other party.
The purpose of this RFP document is to provide the Bidders with information to assist the
formulation of their Proposal submission. This RFP document does not purport to contain all
the information each Bidder may require. This RFP document may not be appropriate for all
persons and it is not possible for PAHCL and their employees or advisors to consider the
investment objectives, financial situation and particular needs of each Bidder. Certain Bidders
may have a better knowledge of the proposed Project than others. Each recipient must conduct
its own analysis of the information contained in this RFP or to correct any inaccuracies therein
that may appear in this RFP document and is advised to carry out its own investigation into
the proposed Project, the legislative and regulatory regimes which applies thereto and by and
all matters pertinent to the proposed Project and to seek its own professional advice on the
legal, financial, regulatory and taxation consequences of entering into any agreement or
arrangement relating to the proposed project.
PAHCL and their employees and advisors make no representation or warranty and shall incur
no liability under the Law of Contract, Tort, the Principles of Restitution or unjust enrichment
or otherwise for any loss, expense or damage, accuracy, reliability or completeness of the RFP
document, which may arise from or be incurred or suffered in connection with anything
contained in this RFP, any matter deemed to form part of this RFP, the award of the Project,
the information and any other information supplied by or on behalf of PAHCL or their
employees, any consultants or otherwise arising in any way from the selection process for the
Project.
PAHCL may in its absolute discretion, but without being under any obligation to do so, can
amend or supplement the information in this RFP document. The information that PAHCL is
in a position to furnish is limited to this RFP document and the information available at the
contact address given in para 1.1.6, along with any amendments/ clarifications thereon.
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This RFP document and the information contained herein are confidential and for use only by
the person to whom it is issued. It may not be copied or distributed by the recipient to third
parties (other than in confidence to the recipient's professional advisor). In the event that the
recipient does not continue with the involvement in the Project in accordance with RFP
document, the information contained in the RFP shall not be divulged to any other party. The
information contained in the RFP document must be kept confidential.
Mere submission of a responsive Bid/ Proposal does not ensure selection of the Bidder as
Concessionaire
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1 INVITATION FOR PROPOSAL
1.1 Introduction
1.1.1 In the year 1998, ITDC had entered into a Joint Venture Agreement with Punjab
Tourism Development Corporation (PTDC) to develop a hotel at Anandpur Sahib and
thereafter, for operating and maintaining the said hotel, incorporated a Joint Venture
Company named as Punjab Ashok Hotel Company Limited (PAHCL). As per the terms
and conditions of Memorandum of Understanding (MoU) signed between both the
Joint-Venture partners, the CMD-ITDC was appointed as the chairperson and
Managing Director of PTDC is the Managing Director of the Board of Directors in the
JV Company. The Government of Punjab has earmarked a land parcel measuring ~5.25
acres to the JV for the purpose of development of hotel at Anandpur Sahib.
1.1.2 A 3-Star hotel was proposed, on the land parcel, to be constructed by the Punjab Ashok
Hotel Company Limited (PAHCL) for the benefit of visiting tourists and devotees.
1.1.3 This Request for Proposal (RFP) document is for the Revival of Incomplete Hotel at
Anandpur Sahib in the State of Punjab through Public Private Partnership format on
Design, Build, Finance, Operate and Transfer (DBFOT) basis for a pre-determined
Concession Period of 33 (thirty three) years, henceforth referred as “the Project”.
1.1.4 An Agreement will be drawn up between the Punjab Ashok Hotel Company Limited
(PAHCL) (hereinafter referred as the “C o n c e s s i o n i n g Authority”) and the
Successful Bidder (hereinafter referred as the “Concessionaire”). Revenues from the
“Project” will accrue to the Successful Bidder (“the Concessionaire”) undertaking the
Project during the Concession Period.
1.1.5 A “Single Stage” bidding process is planned to be followed for determining the
Successful Bidder. The bidders would be required to meet the minimum threshold
Technical Qualification Conditions and qualify for undertaking the Project as set out
in this RFP document. This qualification assessment would be carried out as part of
the current bidding and evaluation process. The Financial Proposal of only those
bidders that possess the minimum threshold Technical Qualification Conditions (as
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laid down in Clause 3.2) and other relevant documents (as per formats provided in
Clause 5) would be opened and evaluated.
1.1.6 The RFP document contains information about the Project, bidding process, Proposal
submission, qualification and Financial Proposal requirements.
1.1.7 The RFP submissions must be received not later than 1600 hrs on
10/09/2018 in the manner specified in the RFP document at the address given
below and PAHCL shall not be responsible for any delay in receiving the Proposal
and reserves the right to reject and/ or accept any or all Proposals without
assigning any reason thereof:
Managing Director
Punjab Ashok Hotel Company Limited
SCO- 183-84, Sector- 8 C,
Madhya Marg, Chandigarh- 160018
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2 PROJECT BACKGROUND
2.1 Introduction
2.1.1 PAHCL intends to explore possible market driven development options for developing
facilities on incomplete hotel project in line with its business objectives and decided
the Revival of Incomplete Hotel at Anandpur Sahib through Public Private Partnership
(‘Project’).
2.1.2 About the city - Anandpur Sahib
Anandpur Sahib is one of the most important sacred places of the Sikhs and closely
linked with their religious traditions and history. It is located on the lower spurs of
the Himalayas surrounded by picturesque natural scenery, with the river Satluj
forming a shimmering and shiny blue border on the south west barely four miles
away. So far as the historical significance of Anandpur Sahib is concerned, it is
second only to Amritsar, the city of Golden Temple.
Anandpur Sahib was founded in the year 1665 by the ninth Sikh Guru, Guru Tegh
Bahadur, near the ruins of an ancient place, Makhowal. On May 13,1665, Guru
Tegh Bahadur went to Bilaspur to attend the mourning for Raja Dip Chand of
Bilaspur State. The Dowager Rani Champa of Bilaspur offered to give the Guru a
piece of land in her state. The Guru bought the site on payment of five hundred
rupees. The land consisted of the villages of Lodhipur, Mianpur and Sahota. Here
on the mound of Makhowal, Guru Tegh Bahadur raised a new habitation. The
ground was broken on June 19, 1665, by Baba Gurditta Randhawa.
Baisakhi in 1999, at Anandpur Sahib marked the completion of 300 years of the
birth of the Khalsa. It was on Baisakhi day in 1699 that Guru Gobind Singh baptised
the Panj Pyaras at the place where Takht Sri Keshgarh Sahib stands.
Anandpur Sahib comes to life every year on the occasion of Hola Mohalla. This
tradition dates back to the times of the 10th Guru, Guru Gobind Singh. The Guru
decreed that the occasion of the festival of Holi be the occasion for the display of
the martial spirit of his people. He gave this festival of Holi the Sikh name of
'HolaMohalla'. Each year HolaMohalla marks the congregation of up to 100,000
devotees from all over the country for a festival of colour and gaiety.
2.1.3 Connectivity
Anandpur Sahib is well connected with rest of region. It is around 90 km from state
capital of Chandigarh via NH 205 & NH 503. The holy town is very well connected
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through rail network of Indian railways and a special pilgrimage train special Panj
Takht covering all 5 prominent Takh across country make a halt here. The nearest
airport is Chandigarh.
Table 1: Distances from Major Cities
Destination Distance (km)
Chandigarh 90
Delhi 320
Amritsar 183
Manali 244
Source: Darashaw Research
2.1.4 Details of the Location and Existing Facilities
As per the revenue records, the ownership of the land made available for the Project
is with the Department of Tourism, Punjab. As per the JV agreement, ITDC has
made contribution through the construction cost whereas PTDC has contributed
through land for the Project. Total area of land for the Project is ~5.25 Acres. The
land is in L-shape and located on Park Street Road connecting NH – 503 and SH –
22 to Takht Sri Kesgarh Sahib.
Figure 1: Distances of Anandpur Sahib from Major Cities
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Total land area is around ~5.25 acres or ~21,252 sq. m. As per the Greater Mohali
Area Development Authority (GMADA) Regional Plan 2008-58, the permissible
FAR is 1.75 for commercial development. Based on this, the total area available for
development is approximately 37,191 sq. m. At present, the total built up area is
approximately 2,508 sq. m.
The site is located just 150 m from the junction of road connecting Takht Shri
Kesgarh Sahib to NH – 503 in front of Panj Piara Park. The site is flat and free from
all encumbrances. The site has well defined entry and exit point on 10 m road.
The shape of plot is L – shaped and front boundary wall is shorter that back
boundary wall There is no scope for future expansion of site due to being
surrounded by local population.
The present hotel complex has a hotel block, restaurant, lounge and office block.
Only basic civil structure work has been completed for above mentioned
components
The site has basic electrical infrastructure ready and well placed. Connection of
required load is available to meet all electrical requirements.
The site has a dedicated water supply to meet all requirements. All internal
plumbing has been completed. There is a water tank for water storage. Kitchen &
dining area as well as toilets have separate drainage line.
The site has 6 feet tall boundary wall along its boundary fitted with 2 ft. high barbed
wire on it.
2.1.5 PAHCL proposes to select a Successful Bidder for taking up the development of the
aforesaid Project (on DBOFT mode i.e. Design, Build, Finance Operate and Transfer
mode) in the form of a Concession.
The Concession Period for the Project shall be for a period of 33 (thirty-three) years
including construction period of 2 (two) years.
This Concession Period is to be taken from the Compliance Date i.e. the date on
which both the parties have complied with the Conditions Precedent.
2.1.6 The proposed Project Site shall be leased for 33 (thirty-three) years to the Successful
Bidder for the purpose of development of the Project on DBFOT mode. The Successful
Bidder as Concessionaire shall develop the Project Facility/ies and thereafter, operate
and maintain it throughout the Concession Period. The act of granting permission to
develop the Project Facility/ies at the Project Site and to use the Project Facilities or
any part thereof shall not vest or create any proprietary interest in the Project/ Project
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Facilities or any part thereof including any permanent fixtures, fittings, etc. installed
at the location of the Project Site in favour of the Concessionaire or any sub-lessee (s).
2.1.7 The Successful Bidder (Concessionaire) shall be entitled to sub-lease the built up space
other than the Hotel Rooms for allied activities to parties as detailed out in clause 2.2.1
to the sub-lessee. However, for any such sub-leasing the guidelines mentioned in the
Concession Agreement shall be observed.
2.1.8 End of the Concession Period
End of the Concession Period by efflux of time – On expiry of the
Concession Period of 33 (thirty-three) years
All rights given under the Concession Agreement shall cease to have effect and the
Project Site and the entire Project Facilities being fully functional or operational
thereof shall be transferred back to PAHCL.
2.2 Development Envisaged (the “project”)
2.2.1 The Successful Bidder may be required to develop the following Project Facilities at
the Project Site and hereinafter be called as “Project”:
The proposed concept m a y have following components:
A Hotel Complex (Mandatory) which shall include refurbishment of the present
rooms already constructed.
Banquet Facility
Coffee Shop
Indoor Activity Zone
Indoor activity zone may be planned to increase engagement level of visiting
tourists. The gaming zone may have board games, interactive games and
adventure activities and separate play area for kids.
Food Court
Parking
The hotel complex will be mandatory component.
The developer will be authorized to choose any or all permissible activities in the project as per
applicable laws.
It is being clarified here that the Successful Bidder shall have the option to upgrade the existing
Complex and thereafter, develop and complete the overall super-structure with all internal
furnishing.
The Successful Bidder shall adhere to the guidelines of Ministry of Tourism, Govt. of India so as
to procure and maintain a minimum of 3 star rating for the hotel complex during the
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concession period. The bidder shall get a 3 star rating for the hotel complex within 30 months
from completion of construction period.
The Successful Bidder shall also be required to follow the guidelines of other concerned
authorities and implementation standards prescribed in this RFP document.
The detailed Scope of Work has been laid down in Schedules of the Concession Agreement.
Pursuant to the above stated, the Successful Bidder shall make payments to PAHCL, as per
payment terms, in lieu of the development and O&M rights granted for the “Concession
Period” as per the Concession Agreement. The fully functional and operational facilities will
be transferred back to PAHCL after the expiry of Concession Period or in case of premature
termination for any reason whatsoever.
2.2.2 The Successful Bidder may use or allow the use of the Project Facilities for other
activities, which are not envisaged at this stage, only after prior written approval of
PAHCL. However, the decision of the PAHCL shall be final in this regard.
2.2.3 The Project shall be developed as per the terms & condition of this RFP and in
accordance to the existing guidelines of concerned statutory bodies, minimum
standards prescribed in this RFP document and industry best practices.
2.2.4 The Project Facilities to be developed by the Concessionaire must conform to the
existing building regulations and bye-laws of the local authorities and all other
applicable regulations/bye-laws/norms etc. The responsibility to get all the necessary
permits and approvals for the above will lie with the Concessionaire.
2.3 Commercial Consideration
Upfront Premium - The Successful Bidder shall be required to pay Rs. 1.00
(One) Crores (excluding the applicable taxes, which shall be payable separately) to
PAHCL as Upfront Premium for grant of sub-lease. The Upfront Premium shall be
payable in two equal instalments as below:-
First instalment At the time of signing of Concession Agreement
Second Instalment Twelve (12) months from signing of Concession
Agreement
Annual Concession Fee: In addition, the Successful Bidder would pay an
Annual Concession Fee to PAHCL.
Escalation in Annual Concession Fees will be in every two years at the rate of Consumer
Price Index (CPI) of all the commodities, published at www.labourbureau.nic.in, over the
previous Annual Concession Fee but the same would be reviewed after every 10 years
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within the concession period.
2.4 Revenue Stream from the Project
The revenue shall be generated from the users of the Project Facilities.
2.5 Statutory Clearances
2.5.1 Envisaged development is permissible on the Project Site under reference, however the
Concessionaire is required to adhere to the development control norms as per the
prevailing building bye-laws of concerned development authority/ies and arrange
approvals accordingly. The Successful Bidder shall obtain clearances and sanctions
from competent statutory authorities for building plans, utilities, fire fighting, electric
connection, etc. as per the applicable regulations. It is to be clearly understood that all
such clearances are to be obtained by the Successful Bidder and PAHCL can only
provide assistance, wherever possible, on best effort basis without any binding
obligation.
2.5.2 The Successful Bidder shall plan and install fire-detection, fire-alarm and fire-fighting
system and shall procure necessary approval from competent authority on design and
installation. Such fire-fighting arrangements should conform to the National Building
Code, Punjab Building Bye-laws, Municipal Corporation Building Bye-Laws and
Punjab Fire Safety (Fire Prevention) Rules and other rules and regulations, as
applicable with all amendments from time to time.
2.5.3 If during this period any loss of property and/or life takes place, the loss and account
of the same shall be borne entirely by the Successful Bidder. It is hereby clarified that,
PAHCL shall not be liable for any such claims. The Successful Bidder would be
responsible for the payments arising out of any Third Party claims. The Successful
Bidder is advised to procure insurance for meeting such liabilities at its own cost.
2.6 Development Parameters to be followed
The following Development parameters are to be considered.
Particulars FAR Ground Coverage
Maximum Height
Hotel Complex 1:1.75 50% No restriction on the height of the building subject to clearance from Air Force Authority and fulfillment of other applicable norms/ laws/ rules such as set-back, distance between buildings etc. However, adherence to the structural safety and fire safety requirements as per
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National Building Code shall be compulsory
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2.7 Assignability and Encumbrances
2.7.1 Apart from use of the built up space and Project Facilities as per the terms of Section-
II of this RFP document, the Successful Bidder (Concessionaire) shall be entitled to
assign any of his rights, or interests in the Concession Agreement in favour of Lenders/
Financial Institutions at any time, for raising finance for the Project. However,
notwithstanding anything contained herein, the Concessionaire shall not have any
right to put a lien on the fixed assets, site, building etc of the Project or mortgage them
to any financial institution for whatsoever reasons.
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3 GENERAL TERMS AND CONDITIONS FOR EVALUATION
3.1 The evaluation of the Proposals will be completed in 2 Steps
Step 1 – Opening of Technical Proposals
Step 2 - Opening of Financial Proposals of technically qualified applicants
The entire bidding process has been explained elaborately in Clause 4 of this RFP
Document- Section I
3.1.1 The Successful Bidder shall be issued Letter of Intent (LoI). After issue of the LoI in
writing and acceptance of the same by the Successful Bidder within 7 (seven) days, the
Successful Bidder shall enter into a Concession Agreement (draft enclosed as Section
–II in the RFP document) with PAHCL within 30 (thirty) days of receipt of LoI and
carry out his responsibilities/ obligations.
3.2 Technical Qualification Conditions
3.2.1 Interested National/ International Independent Legal entities including Consortia
meeting the following criteria may submit their proposals.
3.2.2 The bidder should be legally competent to enter into contract as per prevailing Indian
Laws.
3.2.3 Only those bidders meeting both of the following “Minimum Eligibility Criteria” and
other relevant documents as per Clause 5 and other provisions of Section-I of the RFP
Document will be considered as “Technically Qualified” for the Project.
a) Technical Capability
During the last 7 years, the bidder shall have,
Experience in running of at least one Budget hotel / resort or above rating, which is operational.
OR
Experience in Development (completed) of one Hotel / Shopping Mall / Multiplex
having built-up area of not less than 1.5 Lakhs sqft.
OR
Two such projects having built-up area not less than 1 lakh sqft. each.
However, such Bidder (s) will be required to have a tie-up, later, with any International
/ National Hotel operator chain which is running at least one property of 3 star
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category or above within India or Abroad, within 30 (thirty) months of
completion of construction period.
b) Financial Capability
Net Worth of Rs. 3.00 Crores, as at the close of preceding financial year, also the
bidders should have positive net-worth in the last 2 financial/accounting year.
3.2.4 High Networth Route/ Real Estate Fund/ Infrastructure Fund Criteria
The prospective bidder/s having a Net-worth of Rs. 200 Crores (Rupees Two Hundred
Crores) & above, as on 31st March 2018
‘OR’
Real Estate / Infrastructure Funds having Assets Under Management (AUM) of Rs.
1,000 Crores & more as on 31st March 2018 will be exempted from the above
stated “Minimum Eligibility Criteria” in “para 3.2.3”. However, such bidder
shall have to demonstrate this net-worth/ AUM independently, without forming a
Consortium / Joint Venture and would be required to have a tie-up, later, with an
International / National 3 - Star or above Hotel/ Resort within 30 (thirty) months of
completion of construction period.
3.2.5 The Bidder must submit Audited Annual Accounts (Balance Sheet and Profit & Loss
Account with Schedules) for three years mentioned in clause 3.2.3 (b). In case of a
Consortium, the audited annual accounts of lead member of the consortium shall be
submitted, for the said years.
3.3 Proposal Submitted by a Consortium
3.3.1 There can be a maximum of 3 (Three) members in a Consortium.
3.3.2 The Lead Member of the Consortium must satisfy both the Technical and Financial
Capability requirements given in Clause 3.2.3.
3.3.3 The Memorandum of Agreement (MoA) signed by all Consortium members and
submitted along with this Bid / Proposal.
3.3.4 No change in the constitution of consortium will be allowed. Proposals submitted by a
Consortium must provide a written agreement (Memorandum of Agreement) to be
signed by each member in that Consortium and also, on their respective company
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Letter-head duly signed by the authorized signatory of the company which describes
the responsibilities and equity commitments of that member in the Consortium. One
of the Consortium members would be required to be nominated as Lead Member.
3.3.5 The Consortium shall, inter alias form a Special Purpose Company (SPC) registered in
India for the implementation of the Project. SPC shall be formed after issuance and
acceptance of Letter of Intent (LOI) within 3 (three) weeks from the receipt of LOI. The
SPC would enter into the Agreement and subsequently carry out all the responsibilities
of the Successful Bidder and undertake the Project as stipulated in the Concession
Agreement. The proposed shareholding of the members of the Consortium in the SPC
must be in compliance with the criteria specified in the RFP document. However, the
membership structure of the Bidder shall not be changed by the Bidder without
PAHCL’s prior written approval. The aggregate equity share holding of the
Members of the Consortium in the issued and paid up equity share capital of the
SPC shall not be less than 74% (seventy-four per cent) during the period of
Concession Agreement.
3.3.6 In addition to the above obligations, the Lead Member of the Consortium shall
maintain a minimum equity component of at least 51% throughout the Concession
Period, in the SPC so formed under this clause.
3.3.7 All Members of the Consortium shall be liable jointly and severally for the execution of
the Project in accordance with the terms of the Concession Agreement and a statement
to this effect shall be included in the Memorandum of Agreement (MoA) mentioned
under clause 4.3.3, as well as in the Proposal and in the MoA. PAHCL may require such
documents / undertakings/ indemnities as it may deem fit from consortium members
before or at the time of issuance of Letter of Intent/ signing of the Concession
Agreement.
3.3.8 The Lead Member nominated at the time of submission of the Proposal shall continue
to be the Lead Member of the SPC. Such Lead Member shall hold authorization in the
form of Power of Attorney. The Proposal must designate one or more person(s) to
represent the Bidder in its dealings with PAHCL. Unless specifically advised to the
contrary, PAHCL will assume that the person (s) designated is authorized to perform
all tasks, including, but not limited to, providing information, responding to inquiries
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and entering into contractual commitments on behalf of the Company or the
Consortium as the case may be.
3.3.9 Deleted
3.3.10 Each member of the Consortium shall submit a signed letter (on the company's Letter
Head) with the Proposal, which states that, the said member:
a) Has reviewed the entire Proposal.
b) Is in accord with each key element of the Proposal, including, but not limited to,
its technical and price components, description of the member's responsibilities
and commitments to the Project, and the designated person(s) who will represent
the Consortium during the negotiation process. Any substantive exception or
caveat should be addressed in the enclosed letter.
c) Has participated in only one Proposal for this Project.
d) Each of the Consortium members will be jointly and severally liable to PAHCL.
3.3.11 All pertinent information that may affect the performance of the responsibilities of any
Consortium member – such as ongoing litigation, financial distress, or any other such
matter – must be disclosed.
3.4 Fee and Deposits to Be Paid by the Bidder
3.4.1 Proposal Security
i. The Proposal shall be accompanied by an initial Proposal Security for a value of Rs.
40 Lakhs (Rupees Forty Lakhs only) in any one of the following manners:
a) A Demand Draft issued by a Scheduled Bank in favour of “Punjab Ashok
Hotel Company Limited” payable at Anandpur Sahib and in the format
given in Clause 5 (F)
OR
b) NEFT/ RTGS in favour of “Punjab Ashok Hotel Company Limited” as per
below details:
A/C Name: Punjab Ashok Hotel Company Ltd.
Name of Bank: Punjab National Bank
Branch Address: Anandpur Sahib (Ropar) Punjab – 140118
IFSC: PUNB0097300
Account No: 0973002100000011
OR
c) In form of an Irrevocable Bank Guarantee in favour of Managing Director,
Punjab Ashok Hotel Company Limited, payable at Anand pur Sahib. However,
the Technical Proposals of the Bidders shall be opened only after the
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verification of the BG by the concerned authorities.
ii. The Proposal Security of the Successful Bidder will be returned on receipt of
Construction Performance Security as elaborated in clause 3.4.2.
iii. Any Proposal submitted without the Proposal Security in the form as specified in
the RFP document shall be summarily rejected.
iv. The Proposal Security of Bidders whose Proposal is rejected on account of being
Non-Responsive or Non-Reasonable in accordance with the RFP document, will be
returned/refunded, without interest, within a period of sixty (60) days from the date
of opening of technical bid of bidder. The Proposal Security shall be forfeited by
PAHCL, in the following cases:
a) If the Bidder withdraws his Bid/ Proposal after Technical Proposal opening and
during the proposal validity period.
b) In case of a Successful Bidder, if the Bidder fails within the specified time limit
to sign the Concession Agreement.
c) In case of a Successful Bidder, if the Bidder fails within the specified time limit
to furnish the required Construction Performance Security or fails to start the
work within stipulated period.
Note: Proposal Security of other bidders would be retained till the Concession Agreement
is signed with the Successful Bidder, PAHCL and will be refunded subsequent
thereto within 7 days.
3.4.2 Performance Security
The Successful Bidder, for due and faithful performance of its obligations under the
Concession Agreement, shall be required to provide to PAHCL within 3 weeks of
receipt of the Letter of Intent from the PAHCL.
“Construction Performance Security”: The bidder shall submit the
Construction Performance Security equivalent to Rs. 75 Lakhs in favour of Punjab
Ashok Hotel Company Limited in the form of a Bank Guarantee, within 3 (three)
weeks from the receipt of LOI. The Construction Performance Security shall be kept
valid till the time construction completion certificate is issued by the Concessioning
Authority to the Concessionaire. Once the Construction Completion Certificate is
issued, the Concessionaire shall submit the O&M Performance Security to the
Concessioning Authority and Construction Performance Security shall be returned.
The Operation and Maintenance Performance Security: The
Concessionaire shall, at the time of issuance of Construction Completion Certificate
from the Authority, The bidder has to submit the O&M Performance Security in
form of the Bank Guarantee. The O&M performance security shall be equivalent to
1.5 times of the Annual Concession Fee payable to the Concessioning Authority for
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the respective year and shall be kept valid throughout the Concession Period. The
O&M Performance Security shall be renewed every year with the change in Annual
Concession Fee.
3.5 One Bid per Bidder
Each bidder shall submit only one bid for the Project. Violation of this shall lead to
disqualification of the bidder along with the consortium it is the part of.
3.6 Proposal Preparation and Cost
All Bidders are required to submit a detailed proposal (herein-after referred to as the
Proposal or Bid) in accordance with the guidelines set forth in this RFP document.
Bidders should provide information sought herein in the prescribed formats in order to
accurately establish and interpret the information provided. The cost of preparation of
Proposal and related expenses shall be borne by the Bidders themselves.
3.7 Due Diligence, Inspection and Investigation
The Bidders shall be deemed to have conducted a due diligence exercise with respect to
all aspects of the Project, including a detailed survey of the site and information/ data
provided by PAHCL in the RFP Document, when they submit the Proposal. Interested
Bidders are invited to visit and inspect the site at their own expense. Failure to
investigate fully the site or subsurface conditions shall not be a valid ground to relieve
the Bidder subsequently after its Proposal nor shall it relieve the Bidder from any
responsibility for estimating the difficulty or costs of successfully completing the Project.
3.8 Validity of Proposal 3.8.1 The Proposal shall remain valid for a period not less than one hundred eighty (180)
days from the due date of submission (“Proposal Validity Period”). PAHCL reserve the
right to reject any Proposal that does not meet this requirement. Validity of Proposal
shall be extended for a specified additional period at the request of PAHCL.
3.8.2 A bidder agreeing to the request will not be allowed to modify his Proposal, but would
be required to extend the validity of his Proposal Security for the period of extension.
3.8.3 The Proposal Validity Period of the Successful Bidder shall be extended till the date of
execution of the Concession Agreement.
3.9 Right to Reject Proposals 3.9.1 Notwithstanding anything contained in this RFP Document, PAHCL reserve the right
to reject any / all proposals including the highest proposal or withdraw the invitation
of the proposal at any stage without citing any reason. Nothing contained herein shall
confer any right upon a bidder or create any obligation / liability upon PAHCL of any
type whatsoever.
3.9.2 Misrepresentation / Fraud / Breach of Terms and Conditions
If it is discovered at any point of time that the bidder has suppressed any fact or given
a false statement or has done misrepresentation or fraud or has violated any of the
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terms of this bid/ Proposal, the bid will be cancelled by PAHCL. In such an event, the
bidder will not be entitled to any compensation whatsoever, or refund of any other
amount paid by him.
3.10 Disputes
3.10.1 All disputes between the Successful Bidder and PAHCL shall be settled as per the
Dispute Resolution Procedure elaborated in the Draft Concession Agreement. During
the bidding process no dispute of any type would be entertained. Even in such cases
where PAHCL ask for additional information from any bidder, the same cannot be
adduced as a reason for citing any dispute.
3.10.2 The courts at Delhi alone shall have the exclusive jurisdiction to try all the cases arising
out of this RFP document.
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4 TENDERING PROCEDURE AND SCHEDULE
4.1 General
4.1.1 Bidders may send their queries to PAHCL by 20/08/2018 in writing. All the bidders
will be sent clarification to queries received till the stipulated date. The queries
received after the prescribed date will not be entertained by PAHCL.
4.1.2 Pre-Bid Meeting
i. The Bidders designated representatives are invited to attend the Pre-Bid Meeting
at their own cost, to be held on 23/08/2018 at 1500 PM at Chandigarh.
ii. The purpose of the Pre-Bid Meeting will be to clarify and discuss issues with respect
to the Project, the RFP document or any other related issues.
iii. deleted
iv. It is preferable to attend the Pre-Bid Meeting. Subsequent to the date of the Pre-
Bid Meeting, PAHCL may not respond to questions or inquiries from any Bidder
who has not attended the Pre-Bid Meeting.
4.2 Amendment of RFP
4.2.1 At any time prior to the Proposal Due Date, PAHCL may, for any reason, whether at its
own initiative or in response to the clarifications requested by bidder (s), modify the
RFP through the issuance of Addendum. This will be uploaded only on the website
following websites and shall be binding upon them.
• http://itdc.eproc.in,
• www.tourism.gov.in,
• www.theashokgroup.com,
• www.tenders.gov.in,
• www.eprocure.in,
• www.dipam.gov.in,
• https://etender.punjabgovt.gov.in under "Punjab Heritage Tourism
Promotion Board" head in other tenders
4.2.2 In order to give the bidders reasonable time in which to take an Addendum into
account, or for any other reason, PAHCL may, at its discretion, extend the Proposal
Due Date.
4.3 Preparation and Submission of Proposal
4.3.1 Completed proposals shall be submitted on or before 1600 hours, 10/09/2018-
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(Proposal Due Date) at PAHCL at the address given below.
Managing Director
Punjab Ashok Hotel Company Limited
SCO- 183-84, Sector- 8 C,
Madhya Marg, Chandigarh- 160018
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4.3.2 PAHCL at its sole discretion, retains the right, but is not obliged, to extend the Proposal
Due Date by issuing an Addendum as stated above.
4.3.3 Bidders shall furnish the information strictly as per the formats given in Clause 6 of
this RFP document without any ambiguity. PAHCL shall not be responsible if the
bidder fails to provide the information in the prescribed formats resulting in lack of
clarity in interpretation and consequent disqualification.
4.3.4 In case of a Consortium, wherever required, the Proposal must contain such
information individually for each member of the Consortium.
4.3.5 In case of a Consortium, the members shall submit a Memorandum of Agreement
(MOA) conveying their intent to jointly bid for the project, and in case the project is
awarded to them, to form a ‘SPC’ that will subsequently carry out all its responsibilities
as the ‘Concessionaire’. The MOA shall also include the nomination of the Lead
Member in the Consortium and responsibilities of each member at each stage.
4.3.6 All proposals/bids/offers shall be signed by the duly ‘Authorized Signatory’ of the
Bidder. In case of a Consortium, the proposal shall be signed by the duly Authorized
Signatory of the Lead Member. Bidders shall submit a supporting Power of Attorney
authorizing the signatory of the Proposal to commit the bidder and agreeing to ratify
all acts, deeds and things lawfully done by the said attorney. In case of a Consortium,
such Power of Attorney shall be signed by all members of the Consortium and shall be
legally binding on all of them.
4.3.7 The Authorized Signatory shall initial the Proposal on each page. He shall also initial
all the alterations, omissions, additions, or any other amendments made to the
Proposal.
4.3.8 All witnesses shall be the persons of status and probity and their full names and
addresses shall be stated below their signatures. All signatures in the Proposal
documents shall be dated.
4.3.9 Bidders are required to submit one original set of the Proposal, including the Original
RFP issued/ downloaded to them and clearly marked as “ORIGINAL”.
4.3.10 Any Bidder, which submits or participates in more than one Proposal for the said
project shall be disqualified and shall also cause the disqualification of all the Consortia
in which it is a member.
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4.4 Language and Currency
4.4.1 The Proposal and all related correspondence and documents shall be written in English
language. If any supporting document attached to the bid is in any other language, the
same will be supported by an English translation and in case of any ambiguity the
translation (original as translated by PAHCL) shall prevail.
4.4.2 The currency for the purpose of the Proposal shall be Indian National Rupee (INR).
4.5 Bidder’s Responsibility
4.5.1 would be deemed that prior to the submission of Proposal, the bidder has made a
complete and careful examination of:
The requirements and other information set forth in this RFP document.
The various aspects of the Project including, but not limited to the following:
o The Project Site, existing facilities and structures, access roads and public
utilities in the vicinity of the Project Site;
o All other matters that might affect the Bidder’s performance under the
terms of this RFP, including all risks, costs, liabilities and contingencies
associated with the project.
4.5.2 Project Site Visit
a. The bidders prior to submitting their bid for the project, are expected to visit and
examine the project sites and the sites’ surroundings at his/her own expenses, the
sites being offered on “as is where is” basis and ascertain on their own
responsibility information, technical data, traffic data, market study, etc. including
actual condition of existing services which may or may not have to be
shifted/removed/replaced etc.
b. It shall be assumed that all these factors were accounted for by the bidder while
quoting his bid. The bidder shall be deemed to have full knowledge of the sites
whether he inspects it or not.
4.5.3 PAHCL shall not be liable for any mistake or error or neglect by the bidder in respect
of the above. Proposals that are not substantively responsive to the requirements of
this RFP document will be rejected.
4.6 Sealing and Marking of Proposals
4.6.1 The Proposals shall be sealed, marked and submitted as explained below:
a) Envelope No.1 containing the Proposal Security shall be marked as
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“PROPOSAL SECURITY DEPOSIT” as per Format F
b) Envelope No. 2, duly marked as “TECHNICAL PROPOSAL” and shall contain
the following:
Relevant documents (Such as audited financial statements and documentary
evidence of experience like client certificate, etc.) confirming the “Technical
Qualification Conditions” laid down in Clause 3.2.
Letter of Application and Interest (As per Format A)
General Information on the Bidder (As per Format B)
Power Of Attorney for Signing of Application (as per Format E)
Affidavit (As per Format D)
Original RFP Document duly signed (on each page) by an authorized
representative as a token of acceptance.
Power of Attorney by Each Member of the Consortium in Favour of Lead
Member (as per format G)
Deed of Guarantee (as per Format H)
Letter from all consortium members, as per clause 4.3.10.
All required submissions, if the Bidder is applying through Consortium and as stated
in the RFP Document
c) Envelope No. 3; duly marked as “FINANCIAL PROPOSAL” (as per
Format C)
d) All the above envelopes shall be enclosed in an outer cover/ envelope marked as
“RFP for Revival of Incomplete Hotel at Anandpur Sahib through PPP”
e) The Outer envelope shall be addressed to:
Managing Director
Punjab Ashok Hotel Company Limited
SCO- 183-84, Sector- 8 C,
Madhya Marg, Chandigarh- 160018
If any envelope is not sealed and marked, as instructed above, PAHCL assumes no
responsibility for the misplacement or premature opening of the Proposal submitted. In that
case, the prematurely opened proposals will be rejected. PAHCL hereby clarifies that only the
hard bound proposals shall be considered responsive. If the proposal is not hard bound, it
shall be summarily rejected.
4.6.2 Any Proposal received by PAHCL after 1630 hours on the Proposal Due Date will be
liable for rejection.
4.7 Modification and Withdrawal of Proposals
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4.7.1 No Proposal shall be modified or withdrawn by the bidder after the Proposal Due Date.
4.7.2 Withdrawal of a Proposal during the interval between Proposal Due Date and
expiration of the Proposal Validity Period would result in forfeiture of the proposal
security.
4.8 Opening of Proposals
4.8.1 The Technical Proposals received shall be opened by the Committee constituted by
PAHCL in the presence of the Bidders who choose to attend at 1630 hours on
10/09/2018. The date for opening of Financial Proposals shall be intimated in
advance to the technically qualified bidders.
4.8.2 A. PAHCL reserve the right to reject any Proposal, if:
1. It is not signed, sealed and marked as stipulated in Clause 4.6.
2. There are inconsistencies between the Proposal and the supporting documents.
4.8.2 B. PAHCL reserve the right to reject any Proposal and forfeit the proposal security, if 1. There are conditions proposed with the Technical and/or Financial Proposals.
2. It provides the information with material deviations/ forged / fabricated documents.
4.8.3 A material deviation or reservation is one:
a) which affects in any substantial way, the scope, quality, or performance of the
Project, or
b) which limits in any substantial way, inconsistent with the RFP document, PAHCL’s
rights or the Bidder’s obligations, or
c) which would affect unfairly the competitive position of other Bidders’ presenting
substantially responsive bids.
4.8.4 No request for modification or withdrawal shall be entertained by PAHCL in respect of
such Proposals.
4.8.5 To facilitate evaluation of Proposals, the Concessioning Authority may, at its sole
discretion, seek clarification in writing from any Bidder regarding its Bid.
4.9 Evaluation of Proposals
The evaluation will be done in two steps as explained below:
4.9.1 In Step - I, the Proposal Security in Envelope 1 shall be first checked. The Proposals
without the appropriate Proposal Security, or where the Proposal security is in form of
the BG and the banks do not verify the Bank Guarantees submitted as Proposal
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Security, will be rejected. Then in Step II, submission (s) in Envelope 2 i.e. Technical
Proposal shall be checked. All bidders passing Step I of the evaluation will be
considered responsive enough to be considered for the next steps.
4.9.2 In Step– II of evaluation, the Financial Proposals in Envelope 3 of only those bidders
who have passed Step I and Step II shall be opened in presence of the nominees of the
bidders, who choose to attend the same. Bidders shall be ranked H1, H2, H3 etc. in
decreasing order of their Financial Proposals. The selection will be made on the basis
of the highest Annual Concession Fee (H1). The bidder quoting the highest Annual
Concession Fee will be invited to sign the Concession Agreement.
4.9.3 Deleted
4.9.4 Deleted
4.9.5 The Proposal (Financial Proposal and Technical Proposal) should be unconditional
and any conditionality attached with the Proposal shall result in the rejection of the
Proposal.
4.9.6 Financial Proposals of bidders who do not qualify the Step-I of evaluation will not be
opened and will be returned unopened.
4.10 Confidentiality
4.10.1 Information relating to the examination, clarification, evaluation and
recommendation for the short-listed bidders shall not be disclosed to any person not
officially concerned with the process. PAHCL will treat all information submitted as
part of all proposals in confidence and will insist that all who have access to such
material treat it in confidence. PAHCL will not divulge any such information unless it
is ordered to do so by any Government authority that has the power under law to
require its disclosure or due to statutory compliances.
4.11 Acceptance of the Proposal
4.11.1 PAHCL shall issue Letter of Intent (LoI) to the selected bidder for the Project.
4.11.2 The selected bidder is required to send his acceptance of the LoI within seven (7) days
from the date of its receipt.
4.11.3 PAHCL shall retain the right to withdraw the LoI in the event of the selected bidder’s
failure to accept the LoI within the time limit specified in the above clause.
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4.11.4 In this event, PAHCL shall forfeit the Proposal Security of the selected bidder.
4.12 Execution of Concession Agreement
4.12.1 The Successful Bidder is required to sign the Concession Agreement within 30 days of
conveying his acceptance of the LoI to PAHCL in writing. But prior to signing of the
Agreement, the bidders must satisfy the following conditions. PAHCL shall not execute
the Concession Agreement until these conditions have been satisfied.
The Successful Bidder has submitted the requisite Construction Performance
Security to PAHCL, within 3 (three) weeks from the receipt of LOI.
The Successful Bidder has submitted the requisite Upfront Premium to PAHCL,
within 3 (three) weeks from the receipt of LOI.
The Successful Bidder, in case of consortium, has to form a SPC, as per provisions
laid down in Clause 3.3.5, within 3 (three) weeks from the receipt of LOI.
Deleted
Deleted
4.12.2 Failure to meet the above conditions will result in a breach and PAHCL shall be entitled
to cancel the award without being liable, in any manner whatsoever, to the bidder and
to appropriate the Proposal Security and any other amount deposited till that time as
‘Damages’.
4.12.3 The cost of stamp duty for execution of Concession Agreement, registration charges
and any other related legal documentation charges and other incidental charges will
be borne by the Successful Bidder.
4.12.4 In case of failure to sign the Concession Agreement within the stipulated time, PAHCL
shall retain the right to cancel the Award and forfeit the bidder’s Proposal Security and
any other amount deposited till that time without being liable in any manner
whatsoever to the bidder.
4.13 Proposals of other Bidders
4.13.1 PAHCL shall return the Proposal Security received from the bidders who have not
qualified in Step I of the evaluation, within 180 (One hundred eighty) days of opening
of the Technical Proposal. The Proposal Security shall be returned without payment of
any interest.
4.13.2 Proposal Security received from all the short listed bidders after Step – II of evaluation
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will be returned within 60 (Sixty) days from the date of opening of financial proposal,
and returned thereafter, without payment of any interest.
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5 PRESCRIBED FORMATS
A. Letter of Application & Interest
(To be submitted and signed by the Bidder’s authorized signatory)
The Managing Director Punjab Ashok Hotel Company Limited
SCO- 183-84, Sector- 8 C,
Madhya Marg, Chandigarh- 160018
Subject: RFP for Revival of Incomplete Hotel at Anandpur Sahib through PPP
Sir,
1. Being duly authorized to represent and act for and on behalf of. ……………(Hereinafter
referred to as “the Bidder”), and having studied and fully understood all the
information provided in the bid document, the undersigned hereby apply as a bidder
for “Revival of Incomplete Hotel at Anandpur Sahib through PPP” according
to the terms & conditions of the RFP Document issued by PAHCL.
2. Our Technical & Financial Proposals are as per the requisite formats along with the
supporting documents, duly filled and signed on each page and are enclosed in
separate sealed envelopes as specified.
3. The Proposal Security is enclosed in the Envelope 1 marked “Proposal Security
Deposit”.
4. PAHCL and its authorized representatives are hereby authorized to conduct any
inquiries / investigation to verify the statements, documents and information
submitted in connection with the application and to seek clarification from our banker
regarding any financial and technical aspects. This letter of application will also serve
as authorization to any individual or authorized representative of any institution
referred to the supporting information, to provide such information deemed necessary
and as requested by yourselves to verify statements and information provided in the
application or with regard to the resources, experience and competence of the present
Bidder.
5. PAHCL and its authorized representatives may contact the following persons for any
further information:
Name of the person (s) : …………
Address: ……………………………………..
Phone: ……………..; Fax: ………………….
6. This application is made with full understanding that:
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a) PAHCL reserves the right to reject or accept any bid, cancel the bidding process, and /
or reject all bids.
b) PAHCL shall not be liable for any of the above actions and shall be under no obligation
to inform the Bidder of the same.
7. I/ We, the undersigned, declare that the statements made and the information
provided in the duly completed application forms enclosed herewith, are complete,
true and correct in every detail.
8. I/ We hereby confirm that we have read, understood and accepted all the detailed
terms and conditions of this RFP and Project related Information as required for the
Proposal. We have also visited the project site for the assessment and have made our
own due diligence and assessment regarding the Project.
9. I/ We agree to keep our proposal valid for one hundred eighty (180) days from the date
of submission of Proposal thereof and not to make any modifications in its terms and
conditions not acceptable to the PAHCL. Should this Proposal be accepted, I/ we
hereby agree to abide by and fulfill all the terms, conditions and provisions of the
aforesaid documents.
10. This application is made with the full understanding that the validity of proposal
submitted by me/ us will be subject to verification of all information, terms and
conditions submitted at the time of bidding and it’s final acceptance by PAHCL. I/ We
agree that, without prejudice to any other right or remedy, PAHCL shall be at liberty
to forfeit the said Proposal Security absolutely.
Authorized signatory Date :
Name and seal of Bidder Place : Encl:
1. The Proposal Security of Rs. _(Rupees ) in the form
of Demand Draft/ RTGS/ NEFT bearing No. _drawn upon (bank)
dated
2. Power Of Attorney for signing of Application (as per Format G)/Board resolution
authorizing the signatory
3. Memorandum of Agreement (MOA) in case of a Consortium
4. Relevant Submissions as per the given formats
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B. General Information of the Bidder
1. (a) Name :
(b) Country of incorporation :
(c) Address of the corporate headquarters and its branch office(s), if any, in India
:
2. Details of individual(s) who will serve as the point of contact / communication for PAHCL
within the Company:
(a) Name :
(b) Designation :
(c) Company :
(d) Address :
(e) Telephone Number :
(f) Mobile No :
(g) Fax Number :
(h) E-Mail Address :
3. In case of Consortium:
a. The information above (1& 2) should be provided for all the members of the
consortium.
b. Information regarding role of each member should be provided:
Sl. No. Name of Member Proportion of Equity to be Role*
held in the Consortium
1
2
3
* Specify whether Lead Member / Ordinary Member
Signed
(Name of the Authorized Signatory)
For and on behalf of
(Name of the bidder)
Designation
Place:
Date
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Documents to be enclosed:
1. Documents certifying Bidder’s legal status i.e. Certificate of incorporation /
registration etc.
2. Relevant documentary evidence for claiming the Hospitality experience as per clause
3.2.3 (a). the documents admissible for this shall be:
a. Ministry of Tourism Certification for Classification of the Hotel. Or,
b. In case of real estate experience, Certificate of Possession issued by concerned
Government Authority.
It is clarified that no document shall be admissible as the documentary evidence to
comply with conditions of the RFP document, which is dated after the Proposal Due
Date.
3. Proof of net worth in clauses 3.2.3 (b) and 3.2.4 respectively duly certified by
Chartered Accountant or Statutory Auditor on its letterhead.
4. The Audited Annual Financial Statements for the FY 2017-18, 2016-17 & 2015-16.
5. In case of a Consortium, MoU & Power of Attorney signed by each Consortium partner,
clearly indicating the lead partner
6. Latest brochures/ organization profiles, etc.
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C. Format for Financial Proposal
(To be submitted and signed by the Bidder’s authorized signatory) Managing Director
Punjab Ashok Hotel Company Limited
SCO- 183-84, Sector- 8 C,
Madhya Marg, Chandigarh- 160018
Sub: Revival of Incomplete Hotel at Anandpur Sahib through PPP.
Sir,
We hereby submit our Financial Proposal for the captioned Project. If the Project is awarded
to us, we agree to make the following payments to PAHCL as per the terms given in the Request
for Proposal (RFP) Document.
S.
No.
Description Amount (in Rs.)
I Annual Concession Fee Rs…………….(in figures)
Rupees………………. (in words)
II Taxes will be paid extra as
applicable from time to time
We are making this Proposal after taking into consideration all the terms and conditions stated
in the RFP document (including Article 2.9.1- “Annual Concession Fees” of the draft
Concession Agreement) and after careful assessment of the Project Site, all risks and
contingencies and all other conditions that may affect the financial proposal.
We agree to keep our offer valid for 180 (One Hundred and Eighty) days from the due date of
submission of this Proposal. We undertake to abide by all the terms and conditions of the RFP
Document.
Authorized signatory Date :
Name and seal of Bidder Place :
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D. Affidavit
(To be given separately by each consortium member in case of a consortium or otherwise by
the Bidder on a Stamp Paper of Rs. 10)
I,, ………………. S/o …………..,resident of ………………., the ……………...(insert designation) of
the ………………..(insert name of the single bidder/consortium member, if the bidder is a
consortium), do solemnly affirm and state as under :
1. That I am the authorised signatory of …………..(insert name of company / consortium
member) (hereinafter referred to as “Bidder / Consortium Member”) and I am duly
authorised by the Board of Directors of the Bidder / Consortium Member to swear and
depose this Affidavit on behalf of the Bidder / Consortium member.
2. That I have submitted information with respect to our eligibility for PAHCL proposal for
the Revival of Incomplete Hotel at Anandpur Sahib through PPP (hereinafter referred to
as “Project”) and I further state that all the said information submitted by us is accurate,
true and correct and is based on our records available with us.
3. That I hereby affirm to furnish any information, which may be requested by PAHCL to
verify our credentials / information provided by us under this tender and as deemed
necessary by PAHCL.
4. That if at any point of time including the Concession Period, in case PAHCL requests any
further / additional information regarding our financial and / or technical capabilities, or
any other relevant information, I shall promptly and immediately make available such
information accurately and correctly to the satisfaction of PAHCL.
5. That I fully acknowledge and understand that furnishing of any false or misleading
information by us in the RFP document shall entitle us to be disqualified from the
tendering process for the said project. The costs and risks for such disqualification shall be
entirely borne by us.
6. I state that all the terms and conditions of the Request for Proposal (RFP) Document have
been duly complied with.
DEPONENT
VERIFICATION :-
I, the above named deponent, do verify that the contents of paragraphs 1 to 6 of this affidavit
are true and correct to the best of my knowledge. No part of it is false and nothing material
has been concealed therein.
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Verified at ………………………, on this …………………. .day of………….…….., 2018. DEPONENT
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E. Format for Power of Attorney for Signing of Application
Know all men by these presents, we ……………………………………. (name and address of the
registered office) do hereby constitute, appoint and authorize Mr./Ms…………………..(name
and residential address) who is presently employed with us and holding the position of
………………………….as our attorney, to do in our name and on our behalf, all such acts, deeds
and things necessary in connection with or incidental to our bid for the Project Revival of
Incomplete Hotel at Anandpur Sahib through PPP including signing and submission of all
documents, applications, bids, participation in pre-bid conferences and providing information
/ responses to PAHCL, representing us in all matters before PAHCL and generally dealing with
PAHCL in all matters in connection with our bid for the said project.
We hereby agree to ratify and confirm all acts, deeds and things lawfully done by our said
attorney pursuant to this Power of Attorney and that all acts, deeds and things done by our
aforesaid attorney shall always be deemed to have been done by us.
In witness whereof, we the above named Principal have executed this Power
of Attorney on this Day of 2018.
For………………………………………….
Accepted
…………………...(Signature)
(Name, Title and address) of the Attorney
Note:
The mode of execution of the Power of Attorney should be in accordance with the procedure,
if any, laid down by the applicable law and the charter documents of the executant(s) and when
it is so required the same should be under common seal affixed in accordance with the required
procedures
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F. Format for Proposal Security (Bank Guarantee)
PROPOSAL SECURITY FORMAT
UNCONDITIONAL AND IRREVOCABLE BANK GUARANTEE
Bank Guarantee No.: Dated:
Issuer of Bank Guarantee:
(Name of the Bank)
(hereinafter referred to as the “Bank”)
Beneficiary of Bank Guarantee:
Punjab Ashok Hotel Company Limited (PAHCL)
Nature of Bank Guarantee:
Unconditional and irrevocable Bank Guarantee
Context of Bank Guarantee:
In pursuance of Clause 3.4.1 of Section 1 of the Request for Proposal Document dated
(hereinafter referred to as the “RFP” inclusive of draft Concession Agreement for the Revival
of Incomplete Hotel at Anandpur Sahib through PPP (hereinafter referred to as the “Project”),
provided however, such context of the Bank Guarantee or reference to the Agreement in this
Bank Guarantee shall in no manner to relied upon at any stage to adversely affect or dilute the
unconditional and irrevocable nature of this Bank Guarantee. The Contract of Bank Guarantee
is an independent Contract between the Bank and PAHCL and is not dependent upon
execution or performance of any Agreement amongst PAHCL and _(name of the
bidder).
Operative part of the Bank Guarantee:
1. At the request of the , we
, (name and address of
the bank), (hereinafter referred to as the “Bank”), do hereby unconditionally and
irrevocably affirm and undertake that we are the Guarantor and are responsible to the
PAHCL i.e. the beneficiary on behalf of the Bidder, up to a total sum of
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Rs. ,such sum being payable by us to the PAHCL immediately upon receipt
of first written demand from PAHCL.
2. We unconditionally and irrevocably undertake to pay to the PAHCL on an immediate
basis, upon receipt of first written demand from the PAHCL and without any cavil or
argument or delaying tactics or reference by us to Bidder and without any need for the
PAHCL to convey to us any reasons for invocation of the Guarantee or to prove the
failure on the part of the Bidder to repay the amount of Rs. or to show
grounds or reasons for the demand or the sum specified therein, the entire sum or
sums within the limits of Rs. .
3. We hereby waive the necessity of the PAHCL demanding the said amount from Bidder
prior to serving the Demand Notice upon us.
4. We further agree and affirm that no change or addition to or other modification to the
terms of the Agreement, shall in any way release us from any liability under this
unconditional and irrevocable Guarantee and we hereby waive notice of any such
change, addition or modification. We further agree with the PAHCL that the PAHCL
shall be the sole and the exclusive judge to determine that whether or not any sum or
sums are due and payable to him by Concessionaire, which are recoverable by the
PAHCL by invocation of this Guarantee.
5. This Guarantee will not be discharged due to the change in constitution of the Bank or
the Bidder. We undertake not to withdraw or revoke this Guarantee during its
currency/ validity period, except with the previous written consent of the PAHCL.
6. We unconditionally and irrevocably undertake to pay to the PAHCL, any amount so
demanded not exceeding Rs. , notwithstanding any dispute or disputes raised
by Bidder or anyone else in any suit or proceedings before any dispute review expert,
arbitrator, court, tribunal or other authority, our liability under this Guarantee being
absolute, unconditional and unequivocal. The payment so made by us under this
Guarantee to the PAHCL, shall be a valid discharge of our liability for payment under
this Guarantee and the Bidder shall be a valid discharge of our liability for payment
under this Guarantee and the Bidder shall have no claim against us for making such
payment.
7. This unconditional and irrevocable Guarantee shall remain in full force and effect and
shall remain valid until (180 days from the proposal due date).
Notwithstanding any contained herein:
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Our liability under this Bank Guarantee shall not exceed Indian Rs. . This
unconditional and irrevocable Bank Guarantee shall be valid w.e.f. (Date of
Submission of Proposal) to .
We are liable to pay the guaranteed amount or any part thereof under this unconditional and
irrevocable Bank Guarantee only and only if Punjab Ashok Hotel Company Limited (PAHCL),
serves upon us a written claim or demand on or before .
Authorized Signatory
For Bank
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G. Power of Attorney by Each Member of the Consortium in Favour of Lead
Member
Dated
POWER OF ATTORNEY
TO WHOMSOEVER IT MAY CONCERN
WHEREAS we have decided to participate in the bidding process for the “Revival of
Incomplete Hotel at Anandpur Sahib through PPP” (the “Project”) and we
[name of authorising company/agency] as independent member of ----------
[name of the Consortium], incorporated under the laws of ------------------, the registered
address of which is -------------- lawfully authorise (name of the lead
member) to represent and act on our behalf as the Lead Member of the Consortium to sign
any qualification statement, proposal, conduct negotiations, sign contracts, incur liabilities
and receive instructions on our behalf and to execute all other necessary matters in connection
with the Project. We hereby confirm that we are jointly and severally liable, together with other
members of the Consortium, to PAHCL for all of the obligations of the Consortium in respect
of our qualification statement, technical and financial proposal for the project, in accordance
with the RFP document for the Project issued on ------ and the addendums issued
subsequently.
We hereby ratify and confirm that all acts done by our said attorney ------ (name of lead
member) shall be binding on us as if the same has been done by us personally. We hereby also
ratify and confirm that if we are selected as Successful Bidder, we shall incorporate a Company
under The Companies Act, 1956 as per the following shareholding pattern:
IN WITNESS WHEREOF, we have hereunto set our respective hands this ---------day of ------
--2018 in the presence of the following witnesses
Witness 1 Witness 2
Signature ------------- Signature -----------
Party % Shareholding
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Name -------------- Name ------------
Address -------------- Address ------------
By --------------------- [the Authorizing Company]
Signature --------------------- [Signature of authorized signing officer]
Name --------------------- [Name of authorized signing officer]
Title --------------------- [Title of authorized signing officer]
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H. Format of Parent / Holding Company Guarantee
FORMAT OF PARENT / HOLDING COMPANY GUARANTEE (TO BE MADE ON
STAMP PAPER OF REQUISITE VALUE AND NOTORISED)
DEED OF GUARANTEE
THIS DEED OF GUARANTEE executed at this day of by M/s
(mention complete name) a company duly organized and existing under the
laws of (insert jurisdiction / country), having its Registered Office at
hereinafter called “the Guarantor” which expression shall, unless excluded by
or repugnant to the subject or context thereof, be deemed to include its successors and
permitted assigns.
WHEREAS
A. Punjab Ashok Hotel Company Limited (PAHCL) or “Concessioning Authority”, which
expression shall unless excluded by or repugnant to the context thereof, be deemed to
include its successor and assigns, had invited Bids / proposals for the “Project” – Revival
of the Hotel Complex at Sri Anandpur Sahib on PPP mode by issuing Request For Proposal
(“RFP”) document (including its addendums) to the prospective “Bidders” to implement
the said Project for and on behalf of the Concessioning Authority.
B. M/s (mention compete name), a company duly organized and existing
under the laws of India (insert jurisdiction / country), having its Registered Office at
(give complete address) hereinafter called “the Subsidiary”, which
expression shall, unless excluded by or repugnant to the subject or context thereof, be
deeded to include its successor and permitted assigns, is a Subsidiary of the Guarantor,
which has in response to the above mentioned RFP document (including its addendums)
invited by the PAHCL is submitting its Bid / proposal to Punjab Ashok Hotel
Company (hereinafter called “PAHCL”) to fulfill the condition that the Subsidiary shall
arrange a guarantee from its Parent / Holding company, guaranteeing due and satisfactory
performance of the work covered under the said RFP document (including its addendums)
or any change made in may be deemed appropriate by the PAHCL at any stage.
* Subsidiary shall mean and include – in case of a company or corporation, which is directly or indirectly owned by the Guarantor / Parent / Holding Company, by way of ownership of more than 50% (fifty per cent) of the voting shares of such Subsidiary company. Incase of a person (which is not a company or corporation), the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise.
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C. The Guarantor represents that they have gone through and understood the requirement of
the above said RFP document (including its addendums) and are capable of and
committed to provide technical, financial and such other supports as may be required by
the Subsidiary for the successful execution of the same.
D. The Guarantor is executing this Deed of Guarantee in favour of PAHCL, wherein the
Guarantor and the Subsidiary shall be jointly and severally liable towards the Project and
the Guarantor shall also be pledging / providing technical, financial and such other
supports as may be necessary to the Subsidiary for performance of the work relating to the
said Project as per the RFP document (including its addendums) and as per the Concession
Agreement contained in the RFP document.
E. Accordingly, at the request of the Subsidiary and in consideration of and as a
requirement for PAHCL to enter into agreement(s) with the Subsidiary, the Guarantor
hereby agrees to give this guarantee and undertakes as follows:
1. The Guarantor (Parent / Holding Company) unconditionally agrees that in case of non-
performance by the Subsidiary of any of its obligations in any respect, the Guarantor
shall, immediately on receipt of notice of demand by PAHCL, take up the Project
without any demur or objection, in continuation and without loss of time and without
any cost to PAHCL and duly perform the obligations and responsibilities of the
Subsidiary to the satisfaction of PAHCL. In case the Guarantor also fails to discharge
its obligations herein and is not able to complete the Project satisfactorily, PAHCL shall
have absolute rights for effecting the execution of the Project from any other person at
the risks and costs of the Guarantor. The Guarantor also undertakes to make good any
loss that may be caused to PAHCL for any non-performance or unsatisfactory
performance by the Guarantor or the Subsidiary of any of their obligations.
2. The Guarantor agrees that the Guarantee herein contained shall remain valid and
enforceable till the satisfactory execution and completion of the Project (including
discharge of the warranty obligations) awarded to the Subsidiary till the completion of
the Concession Period (including any extension).
3. The Guarantor shall be jointly with the Subsidiary, as also severally responsible for the
satisfactory execution and performance of Project during the currency of the
“Concession Agreement” to be entered amongst the Subsidiary, PAHCL.
4. The liability of the Guarantor, under this Guarantee, shall be limited to the value /
scope of the Concession Agreement to be entered amongst the Subsidiary and PAHCL.
Incase the Subsidiary is part of any SPC (to be so formed for the Project), the liability
of the Guarantor shall be limited to its Subsidiary’s proportional share in any such SPC.
In no event shall the Guarantor’s liability hereunder, either in its capacity of Guarantor
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or as a Concessionaire – should it perform the contract agreement(s) in the event of
the Subsidiary’s non-performance as per Para / Point 1 hereinabove, exceed that of the
Subsidiary’s liability under the mutually agreed Project contract awarded to the
Subsidiary. This will, however, be in addition to the forfeiture of the Performance
Guarantee furnished by the Subsidiary.
5. The Guarantor represents that this Guarantee has been issued after due observance of
the appropriate laws in force in India. The Guarantor hereby undertakes that the
Guarantor shall obtain and maintain in full force and effect all the governmental and
other approvals, permits and consents that are necessary and do all other acts and
things necessary or desirable in connection therewith or for the due performance of
the Guarantor’s obligations hereunder.
6. The Guarantor also agrees that this Guarantee shall be governed and construed in
accordance with the laws in force in India and subject to the exclusive jurisdiction of
the courts of only Delhi, India.
7. The Guarantor hereby declares and represents that this Guarantee has been given
without any undue influence or coercion from any person and that the Guarantor has
fully understood the implications of the same.
8. The Guarantor represents and confirms that the Guarantor has the legal capacity,
power and authority to issue this Guarantee and that giving of this Guarantee and the
performance and observations of the obligations hereunder do not contravene any
existing law or any judgment.
9. The Guarantor represents and confirms that in pursuance to Para / Point 8, the
Guarantor has submitted and provided to PAHCL (with this Deed of Guarantee), a
valid Board Resolution duly authorizing the Guarantor to pledge / provide technical,
financial and such other supports as may be necessary for performance of the work
relating to the said Project as per the RFP and Concession Agreement.
For & on behalf of (Parent / Holding Company)
M/s
Witness:
1.
2.
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I. Format of Individual / Single Bidder Guarantee Towards SPC
Format of Individual / Single Bidder Guarantee towards SPC (if applicable & after LOI)
(To Be Made On Stamp Paper of Requisite Value And Notorised)
DEED OF GUARANTEE
THIS DEED OF GUARANTEE executed at this day of by M/s
(mention complete name) a company duly organized and existing under the
laws of (insert jurisdiction / country), having its Registered Office at
hereinafter called “the Guarantor” or the “Successful Bidder”, which
expression shall, unless excluded by or repugnant to the subject or context thereof, be deemed
to include its successors and permitted assigns.
WHEREAS
A. Punjab Ashok Hotel Company Limited (hereinafter called “PAHCL” or “Concessioning
Authority”, which expression shall unless excluded by or repugnant to the context
thereof, be deemed to include its successor and assigns), had invited Bids / Proposals for
the “Project” – Development, Financing, Designing, Construction, Upgradation and
Operation & Maintenance of Hotel Complex at Sri Anandpur Sahib, Punjab by issuing
Request For Proposal (“RFP”) document (including its addendums) to the prospective
“Bidders” to implement the said Project for and on behalf of the Concessioning Authority.
B. M/s (mention compete name), a company duly organized and existing
under the laws of India (insert jurisdiction / country), having its Registered Office at
(give complete address) hereinafter called the Special Purpose Company
“the SPC”, which expression shall, unless excluded by or repugnant to the subject or
context thereof, be deemed to include its successor and permitted assigns, is a
Subsidiary of the Guarantor, and has been formed for the development of the Project with
one of the condition that the SPC shall arrange a guarantee from its Parent / Holding
Company, i.e. Guarantor, guaranteeing due and satisfactory performance of the work
covered under the said RFP document (including its addendums) or any change made in
may be deemed appropriate by the PAHCL at any stage.
* Subsidiary shall mean and include – in case of a company or corporation, which is directly or indirectly owned by the Guarantor / Parent / Holding Company, by way of ownership of more than 50% (fifty per cent) of the voting shares of such Subsidiary company. Incase of a person (which is not a company or corporation), the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise.
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C. The BID / Proposal submitted by the Guarantor was accepted by Punjab Ashok Hotel
Company Limited (hereinafter referred as “PAHCL”), on behalf of PAHCL and this
Guarantor was declared the “Successful Bidder”. Accordingly, the Guarantor is executing
this Deed of Guarantee towards / in favour of its SPC after the issuance of Letter of Intent
(LoI) dated by PAHCL to the Guarantor / Successful Bidder.
D. The Guarantor represents that it has gone through and understood the requirement of
the above said RFP document (including its addendums) and are capable of and
committed to provide technical, financial and such other supports as may be required by
the SPC for the successful execution of the same.
E. The Guarantor is executing this Deed of Guarantee in favour of PAHCL, wherein the
Guarantor and the Subsidiary shall be jointly and severally liable towards the Project and
the Guarantor shall also be pledging / providing technical, financial and such other
supports as may be necessary to the Subsidiary for performance of the work relating to
the said Project as per the RFP document (including its addendums) and as per the
Concession Agreement contained in the RFP document.
F. Accordingly, at the request of the Subsidiary and in consideration of and as a requirement
for PAHCL to enter into agreement(s) with the SPC, the Guarantor hereby agrees to give
this guarantee and undertakes as follows:
1. The Guarantor (Parent / Holding Company) unconditionally agrees that in case of
non-performance by the SPC of any of its obligations in any respect, the Guarantor
shall, immediately on receipt of notice of demand by PAHCL, take up the Project
without any demur or objection, in continuation and without loss of time and without
any cost to PAHCL and duly perform the obligations and responsibilities of the SPC
to the satisfaction of PAHCL. In case the Guarantor also fails to discharge its
obligations herein and is not able to complete the Project satisfactorily, PAHCL shall
have absolute rights for effecting the execution of the Project from any other person
at the risks and costs of the Guarantor. The Guarantor also undertakes to make good
any loss that may be caused to PAHCL for any non-performance or unsatisfactory
performance by the Guarantor or the SPC of any of their obligations.
2. The Guarantor agrees that the Guarantee herein contained shall remain valid and
enforceable till the satisfactory execution and completion of the Project (including
discharge of the warranty obligations) awarded to the SPC till the completion of the
Concession Period (including any extension).
3. The Guarantor shall be jointly with the SPC, as also severally responsible for the
satisfactory execution and performance of Project during the currency of the
“Concession Agreement” to be entered amongst the SPC andPAHCL.
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4. The liability of the Guarantor, under this Guarantee, shall be limited to the scope of
the Concession Agreement to be entered amongst the SPC andPAHCL. In no event
shall the Guarantor’s liability hereunder, either in its capacity of Guarantor or as a
Concessionaire – should it perform the contract agreement(s) in the event of the
SPC’s non-performance as per Para / Point 1 hereinabove, exceed that of the SPC’s
liability under the mutually agreed Project contract awarded to the SPC. This will,
however, be in addition to the forfeiture of the Performance Guarantee furnished by
the SPC.
5. The Guarantor represents that this Guarantee has been issued after due observance
of the appropriate laws in force in India. The Guarantor hereby undertakes that the
Guarantor shall obtain and maintain in full force and effect all the governmental and
other approvals, permits and consents that are necessary and do all other acts and
things necessary or desirable in connection therewith or for the due performance of
the Guarantor’s obligations hereunder.
6. The Guarantor also agrees that this Guarantee shall be governed and construed in
accordance with the laws in force in India and subject to the exclusive jurisdiction of
the courts of only Delhi, India.
7. The Guarantor hereby declares and represents that this Guarantee has been given
without any undue influence or coercion from any person and that the Guarantor has
fully understood the implications of the same.
8. The Guarantor represents and confirms that the Guarantor has the legal capacity,
power and authority to issue this Guarantee and that giving of this Guarantee and the
performance and observations of the obligations hereunder do not contravene any
existing law or any judgment.
9. The Guarantor represents and confirms that in pursuance to Para / Point 8, the
Guarantor has submitted and provided to PAHCL (with this Deed of Guarantee), a
valid Board Resolution duly authorizing the Guarantor to pledge / provide technical,
financial and such other supports as may be necessary for performance of the work
relating to the said Project as per the RFP and Concession Agreement.
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For & on behalf of (Parent / Holding Company)
M/s
Witness:
1.
2.
PUNJAB ASHOK HOTEL CORPORATION LIMITED
C/O India tourism Development Corporation,
SCOPE Complex, Core-8, 5thFloor,
7-Lodhi Road, New Delhi-110003.
Revival of Incomplete Hotel at Anandpur
Sahib through PPP mode SECTION – II: DRAFT CONCESSION AGREEMENT
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Contents
Article 1 Definitions & Interpretations ............................................................................... 6
1.1 Definitions ............................................................................................................................... 6
1.2 Interpretation ...................................................................................................................... 13
1.3 Measurements and Arithmetic Conventions ............................................................ 14
1.4 Ambiguities and Discrepancies ..................................................................................... 14
1.5 Priority of Documents ....................................................................................................... 15
Article 2 The Concession .................................................................................................. 16
2.1 Grant of rights to Concessionaire ................................................................................. 16
2.2 Acceptance by Concessionaire ....................................................................................... 16
2.3 Transfer of Project Site on Lease .................................................................................. 17
2.4 Conditions Precedent ........................................................................................................ 17
2.4.1 Obligations to Satisfy Conditions Precedent .................................................... 18
2.4.2 Non-fulfillment of Conditions Precedent .......................................................... 18
2.5 Rights and Use of the Project Site ................................................................................ 19
2.6 Peaceful Possession ........................................................................................................... 20
2.7 “Concession Period” or “Term” and “Extension” of Concession Agreement 20
2.8 Tie-Up / Joint Venture; Construction Period & Project Construction Completion Certificate ................................................................................................................... 21
2.8.2 Construction Period ................................................................................................... 21
2.8.3 Project Construction Completion Certificate ................................................... 22
2.9 Consideration to Concessioning Authority ............................................................... 22
2.9.1 Annual Concession Fee ............................................................................................ 22
2.9.2 Change in Law ............................................................................................................. 23
Article 3Obligations of Concessionaire ................................................................................. 24
3.1 Project Development Period........................................................................................... 24
3.2 Performance Security ........................................................................................................ 24
3.3 Financing Arrangement, Payment of Taxes, etc. .................................................... 25
3.4 Project Implementation ................................................................................................... 25
3.5 Operation and Maintenance ........................................................................................... 27
3.6 Minimum Equity Requirement (Concessionaire Shareholding) ...................... 29
3.7 Insurance ............................................................................................................................... 30
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3.8 Environmental Clearances and Compliance ............................................................ 30
3.9 General Obligations ........................................................................................................... 30
3.10 No Breach of Obligations ................................................................................................. 31
Article 4 Obligations of Concessioning Authority ............................................................. 32
Article 5 Force Majeure .................................................................................................... 33
5.1 Force Majeure Event ......................................................................................................... 33
5.2 Notice of Force Majeure Event ...................................................................................... 34
5.3 Performance of Obligations ............................................................................................ 35
5.4 Termination due to Force Majeure Event ................................................................. 35
5.5 Liability for other losses, damages etc. ....................................................................... 36
Article 6 Events of Default, Termination and Handback ................................................... 37
6.1 Events of Default ................................................................................................................ 37
6.2 Termination due to Event of Default .......................................................................... 39
6.3 Rights of Concessioning Authority on Termination .............................................. 41
6.4 Accrued Rights of Parties ................................................................................................ 42
6.5 Expiry of Term and/or Extension of Concession Agreement ............................ 42
6.6 Handback of Transfer Assets ......................................................................................... 42
Article 7 Dispute Resolution ............................................................................................ 44
7.1 Amicable Resolution ......................................................................................................... 44
7.2 Arbitration............................................................................................................................. 44
7.3 Adjudication by Regulatory Authority ........................................................................ 45
Article 8 Article 8 ............................................................................................................. 46
Article 9 Financing and Lender’s Rights ........................................................................... 47
Article 10 Representations and Warranties ........................................................................ 48
10.1 Representations and Warranties of the Concessionaire ...................................... 48
10.2 Representations and Warranties of Concessioning Authority .......................... 49
10.3 Obligation to Notify Change ........................................................................................... 49
Article 11 MISCELLANEOUS ............................................................................................ 50
11.1 Assignment and Charges ................................................................................................. 50
11.2 Interest and Right of Set Off ........................................................................................... 50
11.3 Governing Law and Jurisdiction ................................................................................... 51
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11.4 Waiver ..................................................................................................................................... 51
11.5 Survival ................................................................................................................................... 51
11.6 Amendments ........................................................................................................................ 51
11.7 Notices .................................................................................................................................... 52
11.8 Severability ........................................................................................................................... 52
11.9 No Partnership .................................................................................................................... 53
11.10 Language ................................................................................................................................ 53
11.11 Exclusion of Implied Warranties etc. .......................................................................... 53
11.12 Counterparts ........................................................................................................................ 53
11.13 General Liability and Indemnity ................................................................................... 53
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CONCESSION AGREEMENT
This AGREEMENT made on this the ____________ day of ___________ (Month), Two
Thousand and Seventeen at _____,
BETWEEN
M/s Punjab Ashok Hotel Company Limited, and having its registered office at
_____________________________ (hereinafter referred to as the "Concessioning
Authority" or "PAHCL", which expression shall include its permitted assigns and
successors-in-interest) of the First Part;
AND
M/s____________(a legal entity, competent to enter into agreement with Concessioning
Authority), a company incorporated under provisions of the Companies Act, 1956, having its
registered office at ____________ (hereinafter referred to as the "Concessionaire"),
(which expression shall, unless repugnant to or inconsistent with the context, mean and
include the successors and permitted assigns) of the Second Part.
WHEREAS,
A. Concessioning Authority has decided to select the Successful Bidder through a
competitive bidding process for the Revival of Incomplete Hotel at Anandpur Sahib
through PPP mode (the "Project") on land located in Anandpur Sahib, Punjab, which
shall be given on Lease by Concessioning Authority to the Concessionaire
B. The Concessioning Authority shall give on lease the facility i.e. incomplete hotel site
measuring ~21,246 Sq. Mtrs. (~5.25 Acres), to the Concessionaire (the details of the
Project Site attached at Schedule 2) for development purposes.
C. With an objective to seek private sector participation in the development of the
aforesaid Project at Anandpur Sahib, Punjab, the Concessioning Authority had
invited competitive proposals from interested bidders to partner Concessioning
Authority inter alia, to develop, design, engineer, finance, construct, upgrade, market,
operate & maintain and manage the same on the terms and conditions contained in
the RFP document and this Concession Agreement and to determine, levy, demand,
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collect, retain and appropriate Tariffs and User Charges from the Users of the Project
Facilities.
D. The process involved a single stage bidding process and henceforth, the RFP
document was issued to the interested bidders. Pursuant to the evaluation of the
proposals that were received from interested bidders, the Concessioning Authority
accepted the proposal submitted by the "Successful Bidder" i.e. _____________ or
consisting of M/s _________, _________ & _________ (collectively the
"Consortium") with ________ as its Lead Member and a Letter of Intent (LoI)
bearing No. _________ dated________ was issued to the Consortium/ Single
Individual.
E. Accordingly as per the terms and conditions of the RFP Document, the Successful
Bidder had incorporated the present Concessionaire under the Companies Act, 1956.
F. The Concessioning Authority acknowledges that as on this day, the Concessionaire
has submitted an Unconditional and Irrevocable Bank Guarantee for a value of
Rs._____ (Rupees) as Construction Performance Security for the Construction
Period.
G. The Concessionaire, in compliance to the conditions set out in the Request for
Proposal document, has paid to PAHCL, ____ the amount of Rs 1.00 Crores (Rupees
One Crores only) (excluding the applicable taxes which were paid extra), towards
Upfront Premium, by means of a Demand Draft dated ______, bearing number
_____ and drawn on _____________________(any scheduled bank). To be
paid in 2 (two) equal instalments i:e 1st instalment at the time of signing of
Concession Agreement and 2nd instalment after 12 months from signing of
Concession Agreement.
H. In pursuance to the above, the Concessioning Authority is executing this Agreement
to authorize the Concessionaire to design, develop, implement, finance, construct,
market, operate and maintain the abovementioned Project and its allied facilities at
Anandpur Sahib, Punjab, which shall be given on Lease by Concessioning Authority
to the Concessionaire in accordance with terms, conditions and covenants hereinafter
set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH AND IT IS HEREBY
AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
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Article 1 Definitions & Interpretations
1.1 Definitions
In this Agreement, except to the extent that the subject or context otherwise requires, the
following expressions shall have the following meanings:
“Affected Party” shall have the meaning ascribed to it in Article 5.1.1(a).
“Agreement” means this Concession Agreement as of date hereof, including Recitals,
Schedules, appendices and attachments hereto as may be amended, supplemented or
modified in accordance with the provisions hereto, the “Letter of Intent” issued by
PAHCL, the written clarifications issued to bidders, the RFP document along with their
addenda.
“Appendix” means any of the schedules, supplements or documents appended to this
Agreement.
“Applicable Laws” means any statute, law, regulation, Development Control Regulations
of Concessioning Authority, ordinance, notification, rule, judgment, order, decree, bye-law,
clearance, directive, guideline, policy, requirement, or other governmental restriction or any
similar form of decision of, or determination by, or any interpretation or administration
having the force of law of any of the foregoing, by any Government Agency or instrumentality
thereof having jurisdiction over the matter in question, whether in effect as of the date of this
Agreement or thereafter.
“Applicable Permits” means all clearances, permits, authorisations, permissions,
consents, exemptions, licenses, no-objection certificates and approvals required to be
obtained or maintained under or pursuant to Applicable Laws, in connection with
implementation of the Project during the subsistence of this Agreement.
“Appointed Date” means the date of this Concession Agreement.
“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.
“Book Value” shall mean the written down value in the audited books of the
Concessionaire of a specific asset or class of asset in accordance with generally accepted
accounting principles and applicable accounting standards.
“Certificate of Compliance” shall have the meaning ascribed to it in Article 2.4.1(ii).
“Clearance” means, as on the date of execution of this Agreement, any consents, licenses,
approvals, permits, exemptions, registrations, filings or other authorisations of whatever
nature, which is necessary for effective implementation of the Project.
“Concession Period” or “Term of Concession Agreement” shall have the meaning
ascribed to it in Article 2.7.
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"Concessionaire Event of Default" shall have the meaning ascribed to it in Article 6.1
(a).
“Concessionaire's Proposal to Rectify” shall have the meaning ascribed to it in Article
6.2 (a)(ii).
"Concessioning Authority Event of Default" shall have the meaning ascribed to it in
Article 6.1 (b).
"Concessioning Authority Proposal to Rectify" shall have the meaning ascribed to it
in Article 6.2 (b)(ii).
“Competent Authority” means the concerned department, Government Instrumentality
or authority of the Concessioning Authority duly empowered and authorized to grant
necessary sanctions and approvals.
“Compliance Date” means the date falling after 90 (Ninety) days after the Appointed Date
or such other date as agreed to between Concessioning Authority and the Concessionaire by
which time the Parties fulfill their Conditions Precedent (under Article 2.4), by the issuance
of “Certificate of Compliance” to each other by the respective Parties / their authorized
representatives.
“Conditions Precedent” shall have the meaning ascribed to it in Article 2.4.
“Construction Period” means the period from the Compliance Date till the issuance of
Project Construction Completion Certificate, in accordance with Article 2.8.
“Contractor(s)” means a reputed Person with whom the Concessionaire has entered into
or may enter into contracts / agreements for the purpose of development and
implementation of the Project.
“CPI” means the Consumer Price Index of all the commodities, published at
www.labourbureau.nic.in,
“Cure Period” shall have the meaning ascribed to it in Article 6.2 (a) (iii).
“Debt Due” means the aggregate of the following sums expressed in Indian Rupees
outstanding and payable to the Senior Lender under the Financing Documents: -
a) The principal amount of the debt provided by the Senior Lender under the Financing
Documents for financing the Project, which is outstanding as on the Termination Date,
excluding any part of the principal that had fallen due for repayment one year prior to
the Termination Date unless such repayment had been rescheduled with the prior
consent of the Concessioning Authority; and
b) All accrued interest, financing fee and charges payable on or in respect of the debt
referred to in the para (a) above upto the date preceeding the Termination Date but
excluding any interest or charges that had fallen due one year prior to the Termination
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Date, and penal interest or charges payable under the Financing Documents to any
Senior Lender.
“Dispute Resolution” shall have the meaning ascribed to it in Article 7.
“Easementary Rights” means all easements, reservations, right-of-way, utilities and other
similar rights as to the use of the real property, which are necessary or appropriate for the
conduct of business of the Lessee or Concessionaire related to the Project.
“Encumbrance” means any encumbrance such as mortgage, charge, pledge, lien,
hypothecation, security, interest, assignment, privilege or priority of any kind having the
effect of security or other such obligations and shall include without limitation any
designation of loss payees or beneficiaries or any similar arrangement under any insurance
policy pertaining to the Project, physical encumbrances and encroachments on the Project
Site.
“Fair Market Value” means the market value of the entire assets of Project Facilities less
the market value of land & Moveable Assets prevailing as on the Termination Date. Value for
this purpose will be determined by the Independent Auditor/Valuer appointed by the
Concessioning Authority based on generally accepted principles and norms.
“Financial Assistance” means the aggregate amount provided to the Concessionaire by
way of loan, lease finance, advances, guarantees, refinancing or otherwise and other debt
instruments by the Senior Lenders for the financing of the Total Project Cost (including any
amendments or modifications made thereto) and for all facilities and services relating to the
Project.
“Financial Closure” means the fulfilment of requisite Conditions Precedent to make
initial availability of funds under the Financial Documents / agreements.
“Financial Year” means the year commencing from 1stApril of any calendar year to the 31st
March of the next calendar year except in the first and the last calendar year of the
subsistence of this Agreement. In the first year of subsistence of this Agreement, it means the
period from the Compliance Date to the 31stMarch of next calendar year. In the last year of
subsistence of this agreement, it means the period from 1stApril to the Transfer Date.
“Financing Documents” means the documents / agreements executed by the
Concessionaire in respect of Financial Assistance to be provided by the Senior Lenders to the
Concessionaire by way of loans, guarantees, subscription to non-convertible debentures and
other debt instruments including loan agreements, guarantees, notes, debenture bonds and
other debt instruments, security agreements and other documents relating to the financing
(including refinancing) of the Total Project Cost.
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“Force Majeure” or “Force Majeure Event” shall have the meaning ascribed to it in
Article 5.
“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence
and foresight in compliance with the undertakings and obligations under this Agreement
which would reasonably and ordinarily be expected from a skilled and experienced Person
engaged in the development, implementation, operation and maintenance or supervision or
monitoring thereof or any of them of a Project of the type and size similar to that of the
Project.
“GoI” shall mean the Government of India.
“Government Authority” means Government of India or any State Government or
Governmental department, commission, board, body, bureau, agency, authority,
instrumentality, court or other judicial or administrative body, central, state, or local, having
jurisdiction over the performance of its obligations by the Parties under this or pursuant to
this Agreement and in matter or matters related to the Project.
“Lease Period” means the period of 33 (thirty three) years from the date on which the
Lease Deed is executed, during which period the Concessionaire is granted leasehold rights
of the Project Site in accordance with the terms and conditions set out in the Lease Deed,
and which shall be co-terminus with this Agreement.
“Legal Entity” shall mean any body corporate, organization, society, trust or institution
established as per the applicable laws of India, or in case of a Foreign Entity, recognized or
found eligible by Government of India to enter into any commercial trade or transaction,
after obtaining necessary approvals and sanctions from the Government of India in this
regard, as per the applicable laws of India including national security and public interest
persepective.
“Material Adverse Effect” means material adverse effect on (a) the ability of the
Concessionaire to exercise any of its rights or perform / discharge any of its duties /
obligations under and in accordance with the provisions of this Agreement and / or (b) the
legality, validity, binding nature or enforceability of this Agreement and which act or event
causes a material financial burden or loss to either Parties.
“Material Breach” means a breach by either Party of any of its obligations under this
Agreement which has or is likely to have a Material Adverse Effect on the Project and which
such Party shall have failed to cure.
“MoT” means the Ministry of Tourism, Government of India, which shall inspect and assess
the Hotel Complex and accredit it with 3 Star rating, based upon the Project Facilities,
amenities and services being offered by Hotel.
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“Movable Assets” shall mean and include all such equipment and furniture of the Project/
Project Facilities, which are tangible in nature and that is not immovable, and which was
owned by the Concessionaire and used as part of overall Development (especially during the
Operation & Maintenance) of the Project /Project Facilities.
“Notice to Commence” shall have the meaning ascribed to it in Article 2.4.1 (iii).
“Operation and Maintenance Period” is the period commencing after the Project
Construction Completion Date (as per Article 2.8) and terminating at the Transfer Date.
“Operator” shall have the meaning ascribed to it in Article 3.6 (e).
“Parties” means the parties to this Agreement and “Party” shall mean either of them, as the
context may admit or requires.
“Performance Security” means the Construction Performance Security and / or
Operation & Maintenance Performance Security by way of Bank Guarantee from a scheduled
bank acceptable to Concessioning Authority, as per Schedule 6(A) & 6(B), and as also
ascribed to in Article 3.2.
“Person” unless specifically provided otherwise, shall mean any individual, company,
corporation, partnership, joint venture, trust or Government Agency or any other legal entity
as the context may admit.
“Preliminary Notice to Remedy” shall have the meaning ascribed to it in Article 6.2
(a)(ii) and Article 6.2 (b)(ii).
“Project” means the development of site i.e Incomplete Hotel Complex at Anandpur Sahib.
The scope of the Project includes upgrading or dismantling/ reconstructing of the existing
Complex and thereafter, planning, designing, developing/ reconstructing, operating and
maintaining it strictly as per the guidelines laid down in this Concession Agreement, with all
foundation, buildings, structures, super-structures, constructions, additions, alterations or
improvements, etc. thereof, landscape structures, pavements, drainage facilities, sign boards,
electrical, mechanical, civil, sanitation, HVAC, furnishings and other works, equipments
installed therein and including but not limited to the furniture, fixtures and equipments,
other related facilities installed or affixed and all additions, modifications, alterations and
extensions thereto as may be effected by the Concessionaire from time to time to meet the
requirements laid down in this Concession Agreement and also, as per the approved and
sanctioned plans & layout and MoT guidelines.
“Project Agreements” means collectively, this Concession Agreement, the Financing
Documents, the Project Site Lease Deed, hire purchase agreements, Construction
Agreements and Operation & Maintenance Phase Agreements, in each case as amended,
supplemented or otherwise modified from time to time and any other agreements or contract
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that may be entered into by the Concessionaire with any person in connection with matters
relating to, arising out of or incidental to the Project.
“Project Construction Completion Date” means a date of the completion of the
Construction Period, which shall be at the expiry of a period of 24 (Twenty Four) months
from the Compliance Date or such other date (with the consent of Concessioning Authority)
by which the overall development of the Project is completed in accordance with the
provisions of this Agreement and when the Project Construction Completion Certificate is
issued by Concessioning Authority as per Article 2.8.
“Project Facilities” means all the facilities and amenities to be provided in the Project as
per the provisions of this Concession Agreement and the Schedules hereof and accreditation
given by MoT to the Hotel Complex.
“Project Construction Completion Certificate” means the certificate issued to the
Concessionaire by the Concessioning Authority and as described in Article 2.8.2.
“Project Site” means the site comprising ~21,246 Sq. Mtrs. (~5.25 Acres) earmarked for
the development of the Project at Anandpur Sahib as per details attached at Schedule-1 (built
up area 1 Lakh sqft), including land, buildings and permanent structures attached thereto
over which the Project is to be developed, constructed, implemented, established and
operated & maintained by the Concessionaire in accordance with the provisions of this
Agreement.
“Project Site Lease Deed” means the deed of lease to be entered into between
Concessioning Authority and Concessionaire in accordance with Article 2.3 and in the form
set out at Schedule 8.
“Regulatory Approvals” shall mean Governmental or regulatory approvals required by
the Parties for the establishment of the Project in the State of Punjab and as per the
applicable laws of India.
“Report” shall have the meaning as ascribed in Article 2.4 (c)(i).
“Rupee(s)” or “Rs.” or “Re.” or “₹ ” shall mean Indian rupee(s).
“SBI PLR” means the prime lending rate per annum for loans with 1 (one) year maturity as
fixed from time to time by the State Bank of India or any other arrangement that substitutes
such prime lending rate as mutually agreed between the Parties.
“Senior Lenders” means financial institutions, banks and multilateral lending agencies
including their successors and assigns, who have agreed to guarantee or provide finance to
the Concessionaire under any of the Financing Documents for meeting all or any part of the
Total Project Cost and who hold parripasu charge on the assets, rights, title and interests of
the Concessionaire
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“Structural Engineer” shall have the meaning ascribed to it in Article 3.4 (f).
“Structural Safety Certificate” shall have the meaning ascribed to it in Article 3.4 (f).
“Suspension” shall have the meaning ascribed to it in Article 9.2.
“Successful Bidder” means the Bidder or the Bidder Consortium consisting of M/s
____________, ____________ & ____________ (with ______ as its Lead Member)
that is finally awarded the Project and invited to enter into this Concession Agreement.
“Termination” means early termination of this Agreement, pursuant to Termination
Notice or non-fulfilment of Conditions Precedent or otherwise in accordance with the
provisions of this Agreement but shall not, unless the context otherwise requires, include
expiry of this Agreement due to efflux of time in the normal course.
“Termination Date” means the date specified in the Termination Notice as the date on
which Termination occurs.
“Termination Notice” means the notice of Termination of this Agreement by either Party
to the other Party, in accordance with the applicable provisions of this Agreement.
“Termination Payment” means the amount payable by either Party, as the case may be,
under this Agreement upon Termination.
“Third Party” or “Third Parties” means any Person, real or legal or Entity other than the
Parties of this Agreement.
“Total Project Cost” means the lowest of the following:
a) Total Project Cost as set forth in the Financing Documents.
b) Actual Capital Cost of the Project upon completion of the Project as certified by statutory
auditor(s).
c) The Total Cost of Project as determined / verified by engineer to be appointed by the
Concessioning Authority on the basis of drawings, the detailed cost estimate of the
Project and the proposal submitted by the Concessionaire and as approved by him with
due reference to work executed as per the approved drawings, specifications and
proposal.
“Transfer Assets” shall mean the immovable assets, fully operational and functional, of
the Project which are necessary or required for the performance of services and such other
assets as Concessionaire procures in accordance with the provisions of this Agreement and
shall specifically include all land, property and structures thereupon acquired or leased
during the term, all equipment and services, furnishings, etc. in relation to the operation of
the Project, as existing on the date of Termination.
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“Transfer Date” means the date immediately following the date of the expiry of the Term
under this Concession Agreement or any earlier termination thereof in accordance with the
provisions of this Agreement.
“User Charges” means all charges, costs, fees, tariff, rentals and other amounts by
whatever name called, payable to Concessionaire by the users or any other Person, etc.
pursuant to this Agreement, for the purpose of rendering of services by the Concessionaire
and utilisation of the Project Facilities of the Project by such users, or other Persons, at any
time and from time to time in relation to the Project.
“Vacant Possession” means delivery of the possession of the Project Site free from all
Encumbrances, restrictions or impediments and the grant of all Easements and all other
rights appurtenant or in relation thereto.
1.2 Interpretation
In this Agreement, unless the context otherwise requires:
a. any reference to a statutory provision shall include such provision as is from time to time
modified or re-enacted or consolidated so far as such modification or re-enactment or
consolidation applies or is capable of applying to any transactions entered into
hereunder;
b. references to Applicable Law shall include the laws, acts, ordinances, rules, regulations,
notifications, guidelines or byelaws which have the force of law in State of Punjab or
Union Territory forming part of the Union of India;
c. the words importing singular shall include plural and vice versa, and words denoting
natural persons shall include partnerships, firms, companies, corporations, joint
ventures, trusts, associations or partnerships, organisations or other entities (whether or
not having a separate legal entity);
d. terms and words beginning with capital letter and defined in this Agreement shall have
the meaning ascribed thereto herein, and terms and words defined in the Schedule and
used therein shall have the meaning ascribed thereto in the Schedule;
e. the headings are for convenience of reference only and shall not be used in, and shall not
affect, the construction or interpretation of this Agreement;
f. the words "include" and "including" are to be construed without limitation;
g. references to "construction" include investigation, design, engineering, procurement,
delivery, transportation, installation, processing, fabrication, testing, commissioning and
other activities incidental to the construction;
h. any reference to any period of time shall mean a reference to that according to Indian
Standard Time;
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i. any reference to day shall mean a reference to a calendar day;
j. any reference to month shall mean a reference to a calendar month;
k. reference to an individual shall include his legal representatives, successors, legal heirs,
executor and administrator;
l. the Schedules to this Agreement form an integral part of this Agreement and will be in
full force and effect as though they were expressly set out in the body of this Agreement;
m. any reference at any time to any agreement, deed, instrument, license or document of
any description shall be construed as reference to that agreement, deed, instrument,
license or other document as amended, varied, supplemented, modified or suspended at
the time of such reference;
n. references to recitals, Articles, sub-articles or Schedules in this Agreement shall, except
where the context otherwise requires, be deemed to be references to recitals, Articles,
sub-articles and Schedules of or to this Agreement;
o. any agreement, consent, approval, authorisation, notice, communication, information or
report required under or pursuant to this Agreement from or by any Party shall be valid
and effectual only if it is in writing under the hands of duly authorised representative of
such Party, in this behalf and not otherwise; and
p. unless otherwise stated, any reference to any period commencing "from" a specified day
or date and "till" or "until" a specified day or date shall include both such days or dates.
1.3 Measurements and Arithmetic Conventions
All measurements and calculations shall be in metric system and calculations done to 2
decimal places, with the third digit of 5 or above being rounded up and below 5 being
rounded down.
1.4 Ambiguities and Discrepancies
In case of ambiguities or discrepancies within this Agreement, the following shall apply:
a. between two Articles of this Agreement, the provisions of specific Articles relevant to the
issue under consideration shall prevail over those in other Articles;
b. between the Articles of this Agreement and the Schedules, the Articles shall prevail,
between Schedules and Appendices, the Schedules shall prevail;
c. between the written description on the drawings and the specifications and standards,
the latter shall prevail;
d. between the dimension scaled from the drawing and its specific written dimension, the
latter shall prevail; and
e. between any value written in numerals and that in words, the latter shall prevail.
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1.5 Priority of Documents
The documents forming part of the bidding process leading to this Agreement shall be
interpreted in the following descending order of priority:
a. This Concession Agreement
b. The Schedules to the Concession Agreement
c. The “Letter of Intent” issued to the Successful Bidder
d. The written clarifications issued to the bidders
e. Written addendum to the RFP Document
f. The RFP Document
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Article 2 The Concession
2.1 Grant of rights to Concessionaire
a. Subject to and in accordance with the terms and conditions set forth in this
Agreement, the Applicable Laws and Applicable Permits, the Concessioning
Authority hereby authorises the Concessionaire to invest, finance, design, engineer,
construct, upgrade, equip, commission, operate, market, maintain and manage the
Project during the Term of this Agreement / Lease Period.
b. For the purpose of implementing the Project, the Concessioning Authority inter alia
grants to the Concessionaire all the rights, powers, benefits, privileges, authorisations
and entitlements, to utilise the Project Site for the purposes of the Project, and to
further undertake the development, construction and improvement therein or
thereon, as may be necessary or appropriate to manage the Project and the right to
demand and collect User Charges from the Users of the Project/ Project Site in
accordance with the provisions of this Agreement.
c. Subject to the terms of this Agreement and other relevant provisions under
Applicable Laws, the Concessionaire shall have the right to enter into agreements
with such Persons, as it may deem necessary and appropriate, for performing its
obligations under this Agreement.
d. The Concessionaire may create an encumbrance, with respect to its rights, in favour
of Senior Lenders, only during the Lease Period strictly as per the provisions of
Article 9 & 10.1, in part or whole, in accordance with the terms of this Agreement.
Provided that the Concessionaire shall provide written intimation to the
Concessioning Authority along with relevant records of the encumbrance(s) created,
which shall be in strict compliance with the provisions of Article 10.1.
e. During the Lease Period, the Concessionaire shall have exclusive authority to
develop, implement, operate the Project and in accordance with the provisions of this
Agreement.
2.2 Acceptance by Concessionaire
In consideration of the rights, privileges and benefits conferred upon by the Concessioning
Authority and other good and valuable consideration expressed herein, the Concessionaire
hereby accepts and agrees and undertakes to perform / discharge all of its obligations in
accordance with the provisions hereof.
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2.3 Transfer of Project Site on Lease
a. Within 120 (One Hundred and Twenty) days from the Appointed Date,
Concessioning Authority shall execute a Project Site Lease Deed in favour of the
Concessionaire in the format prescribed in Schedule 8. Simultaneously, with the
execution of the Project Site Lease Deed, the Concessioning Authority shall hand over
the Vacant and peaceful physical possession of the Project Site to Concessionaire on
‘as-is-where-is’ basis, free from all Encumbrances. This Agreement shall run co-
terminus with the Project Site Lease Deed.
b. The stamp duty and registration charges in respect of this Agreement and that of the
Project Site Lease Deed shall be borne and paid wholly and exclusively by the
Concessionaire.
2.4 Conditions Precedent
a. Save and except as may otherwise be expressly provided herein, the respective rights
and obligations of the Parties under this Agreement shall be subject to the
satisfaction in full of the conditions precedent (“Conditions Precedent”) as set out
in Article 2.4 (b) and Article 2.4 (c) on or before the expiry of a period of 120 (One
hundred and Twenty) days from the Appointed Date.
b. Conditions Precedent for the Concessioning Authority
The Concessioning Authority shall have:
i. Delivered possession of the Project Site at the time of execution of the Project Site
Lease Deed. However, it is being clarified that this obligation shall be fulfilled by
the Concessioning Authority in the end once all the Conditions Precedent have
been fulfilled by the Concessionaire.
ii. Give comments / observations (if any) to the Report submitted by the
Concessionaire under Article 2.4(c)(i), within a time period of 45 (Forty Five)
days from the date of its receipt.
c. Conditions Precedent for the Concessionaire
The Concessionaire shall have –
i. Prepared a Concept Design / Drawing for the Project and preliminary Project cost
estimates, including the area statement, elevations, sections, details of services to
be so provided and as incorporated in the Concept Design / Drawing (such as
provision for the minimum number of rooms stipulated, provision for Parking
spaces, %age of Commercial Area being used, etc.) as per the applicable Local
Building Byelaws, Norms, etc. and submit the “Report” to the Concessioning
Authority for its approval, whereby meeting all the requirements mentioned
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herein, apart from all other requirements of this Concession Agreement in the
Concept Design / Drawings within a period of 90 days from the Appointed Date.
ii. Incorporate the necessary suggestions / amendments proposed by the
Concessioning Authority in its Concept Design / Drawing Report, within a period
of 15 (fifteen) days from the date of receipt of such suggestions from the
Concessioning Authority.
iii. Provided the Concessioning Authority copies (certified as true by the Director of
the Concessionaire) of all resolutions adopted by the Board of Directors of the
Concessionaire authorizing the execution, delivery and performance of this
Concession Agreement by the Concessionaire
iv. Delivered to the Concessioning Authority, a legal opinion from the legal counsel
of the Concessionaire with respect to the authority of the Concessionaire to enter
into this Agreement and the enforceability of the provisions thereof.
2.4.1 Obligations to Satisfy Conditions Precedent
i. Each Party hereto shall use all reasonable endeavours at its cost and expense to
procure the satisfaction in full of its respective Conditions Precedent set out
above within 120 (One hundred and Twenty) days of Appointed Date.
ii. Upon satisfaction in full of all Conditions Precedent for a Party, the other Party
shall forthwith issue to such Party a Certificate of Compliance with Conditions
Precedent (the “Certificate of Compliance”).
iii. The later of the date of issue of Certificate of Compliance to the Concessionaire or
the Concessioning Authority shall be the Compliance Date, whereupon the
obligations of the Parties under this Concession shall commence and whereon the
Concessioning Authority shall issue the “Notice to Commence” to the
Concessionaire
iv. Each Party shall bear its respective costs and expenses of satisfying such
Conditions Precedents unless otherwise expressly provided.
2.4.2 Non-fulfillment of Conditions Precedent
i. In the event that any of the Conditions Precedents relating to the Concessionaire
have not been fulfilled within 120 (one hundred and Twenty) days of the signing
of this Agreement and also, the Concessioning Authority has not waived them
fully or partially, this Agreement shall cease to have any effect as of that date and
shall be deemed to have been terminated and Concessioning Authority shall not
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be liable in any manner whatsoever to the Concessionaire or persons claiming
through or under it.
ii. In the event of Concessioning Authority failing to fulfil its conditions Precedent as
per Article 2.4(b), the Concessioning Authority shall return to the Concessionaire
the Upfront Premium deposited by the Concessionaire without any interest and
shall refund the Construction Performance Security and this agreement shall be
terminated.
iii. In the event the Concessioning Authority has terminated this Agreement under
Article 2.4.2 (a) due to non-fulfilment of Conditions Precedent by the
Concessionaire, the Concessioning Authority shall not be liable in any manner
whatsoever to the Concessionaire or its contractors, agents and employees and
the Concessioning Authority shall forfeit the Performance Security of the
Concessionaire.
iv. In the event that Vacant Possession of the Project Site has been delivered to the
Concessionaire prior to the fulfilment in full of the Conditions Precedent, upon
the termination of this Agreement the Project Site shall immediately revert to the
Concessioning Authority, free and clear from any Encumbrances, irrespective of
any outstanding claims between the Parties or any other claims, disputes etc.
whatsoever between the Parties.
v. Instead of terminating this Agreement as provided in paragraph 2.4(a) above or
as the case may be, the Parties may extend the time for fulfilling the Conditions
Precedent by mutual agreement.
2.5 Rights and Use of the Project Site
a. Pursuant to Article 2.3, the Concessionaire shall have the right to enter upon, occupy
and use the same and to make at its costs, charges and expenses such investigations
and development activities (including but not limited to land filling, levelling,
clearing, shifting of utilities, landscaping and related works including overcoming site
constraints, if any) and any other activity as may be necessary or appropriate to
implement the Project. In the event of termination of this Agreement due to non-
fulfilment of Conditions Precedent, the Concessioning Authority shall have no
liability to make any payment for the activities undertaken by the Concessionaire in
the Project Site.
b. The Concessionaire shall not mortgage, transfer, assign or otherwise encumber the
Project Site and / or any or all of its rights and interest in relation thereto in the form
of lease, sub-lease, license, right-of-way or otherwise create a security interest
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thereon in favour of the Lenders for the purpose of enabling Financing of the Project
and for securing finances for permitted activities or purposes under this Concession
Agreement.
c. Subject to the terms of this Agreement, the Concessionaire shall have the right to
develop, upgrade, create, obtain, set up, construct as the context admits or requires,
and operate and maintain the Project as per terms and conditions of this Agreement.
d. The Concessionaire shall have the right to the use of the Project Site in accordance
with the provisions of this Agreement and for this purpose it may regulate the entry
into and use of the same by Third Parties.
e. The Concessionaire shall not without the prior approval of Concessioning Authority
use the Project Site for any purpose other than for the purpose of the Project and
purposes incidental or ancillary thereto.
2.6 Peaceful Possession
The Concessioning Authority hereby warrants that the Project Site together with the
necessary right of way / way-leaves
a. has been acquired through the due process of law; and
b. belongs to and is vested in Concessioning Authority and that Concessioning
Authority has full powers to hold, dispose of and deal with the same consistent, inter
alia, with the provisions of this Agreement and that the Concessionaire shall, in
respect of the Project Site, have no liability regarding any compensation payment on
account of rehabilitation / resettlement or land acquisition of any Persons affected
thereby.
2.7 “Concession Period” or “Term” of Concession Agreement
a. This Agreement shall be valid and binding on the Parties throughout the period
commencing from the Appointed Date and ending with the expiry of Lease Period,
which shall be for 33 (thirty three) years and the Concessionaire hereby accepts the
Concession and agrees to implement the Project subject to and in accordance with
the terms and conditions of this Agreement.
b. Provided that in the event of early Termination, the period of Agreement shall be
limited to the period commencing from the Appointed Date and ending with the
Termination Date.
c. Deleted
d. Deleted
e. Deleted
f. Deleted
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g. Upon Termination of the Concession Period as per Article 2.7 the provisions of
Clause 6.6 (Handback of Transfer Assets) shall prevail and become applicable.
2.8 Tie-Up / Joint Venture; Construction Period & Project Construction
Completion Certificate
a. The Concessionaire shall be required to have a tie-up, later, with any International /
National Hotel operator chain which is running at least one property of 3 star
category or above within India or Abroad and get 3 (three) star rating for the project,
within 30 (thirty) months of completion of construction period and submit the
relevant documentary proofs to the Concessioning Authority.
2.8.1 Construction Period
i. The Construction Period shall be for a period of 24 (Twenty four) months (starting
from the Compliance Date) wherein the Concessionaire shall complete full and final
construction and development of the Project/ Project Facilities in all respect, as
defined in this Agreement including all necessary/ mandatory clearances, permits
etc. which are required for commencing the construction and execution of the Project
Works, so that all such conditions have been satisfied in full, and all such Clearances,
Permits, etc. are in full force and effect.
ii. It is being clarified here that the Concessionaire shall have to upgrade the existing
incomplete hotel Complex and henceforth, develop the Complex which should have
all the facilities as prescribed in the MoT guidelines for procuring minimum three
star hotel rating and as prescribed in this Concession Agreement. Also, during this
Construction Period, the Concessionaire shall be required to develop Hotel Complex,
Banquet Facility, Coffee Shop, Indoor Activity Zone, Food Court and Parking on the
Project Site. The Concessionaire shall be authorised to choose any or all the
permissible activities in the project, as per applicable law. However, no other
structure shall be allowed without the prior permission from the Concessioning
Authority.
iii. In the event that Project Construction Completion Date is not achieved prior to the
expiry of 24 months for any reason other than Force Majeure or reasons attributable
to the Concessioning Authority or any Competent Authority, the Concessionaire shall,
subject to paragraph below, pay to the Concessioning Authority damages for delay
beyond the date on which the construction completion was due to the extent of 0.1%
of the Performance Security per day for every day of delay subject to maximum Rs.
75.00 Lakhs until the construction completion is achieved. Provided that nothing
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contained in this paragraph shall be deemed or construed to authorize any delay by
the Concessionaire in achieving Project Construction Completion Date.
iv. In the event that Project Construction Completion Date does not occur within 120
(one hundred and twenty) days from the date on which the Project Construction
Completion Date was due, the Concessioning Authority shall be entitled to invoke the
Construction Performance Security and to terminate this Agreement on account of
Concessionaire Event of Default. Provided that instead of terminating the Concession
Agreement, the Concessioning Authority, may at its sole discretion, extend the time
for achieving Project Construction Completion Date on such terms and conditions as
it may deem fit.
2.8.2 Project Construction Completion Certificate
Upon completion of Project works, the Concessionaire may seek the issuance of
“Project Construction Completion Certificate” upon written intimation to
Concessioning Authority of such completion. The Concessioning Authority on its
part, after inspections of the Project relating to the requirements set out in Schedules
and in compliance with Article 2.8.2 and on verifying the relevant documentation,
shall promptly and in any case within not more than 45 (Forty Five) days from the
date of request thereof, issue such Certificate.
2.9 Consideration to Concessioning Authority
2.9.1 Annual Concession Fee
a. In consideration of the rights, privileges and interests granted by the
Concessioning Authority to the Concessionaire in terms of this
Agreement, the Concessionaire shall pay to the Authority or its
Nominee / Designated Recipient an Annual Concession Fee (amount
quoted by the Bidder in its Financial Proposal)( exclusive of applicable
Taxes to be paid extra). The Annual Concession Fee shall be increased
every 2 (Two) year at the rate, which shall be linked to CPI of all the
commodities, published at www.labourbureau.nic.in, over the
previous year’s Annual Concession Fee, but the same shall be reviewed
after every 10 (Ten) years within the concession period.
b. The First Annual Concession Fee shall be due on completion of one
year from the signing of Concession Agreement and accordingly, the
Concessionaire shall deposit the first Annual Concession Fee on or
before the completion of one year from the signing of Concession
Agreement. However, for rest of the years, the Concessionaire shall
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deposit the Annual Concession Fee 7 (seven) days prior to the
corresponding date in the subsequent years.
c. The Annual Concession Fee shall be payable by the Concessionaire to
the Concessioning Authority or its Nominee / Designated Recipient
every year at the Concessioning Authority’s or its Nominee’s /
Designated Recipient’s bank account at a scheduled bank (to be
intimated later on) payable at Anandpur Sahib.
d. In the event of delay up to four weeks in payment by the
Concessionaire, the Concessionaire shall be required to pay the
Concessioning Authority or its Nominee / Designated Recipient
interest at the rate of SBI Prime Lending Rate plus 4% per annum. In
the case of delay beyond such four weeks, it shall be considered as
Concessionaire Event of Default.
2.9.2 Change in Law
a. Change in law means the occurrence of any of the following events after the
Appointed Date:
i. Enactment of any new Law.
ii. The repeal in whole or in part (unless re-enactment with the same effect) or
modification of any existing Law.
iii. The commencement of any Law, which has not yet entered into effect.
iv. The change in interpretation or application of any Law by a Court of Record.
v. The imposition or requirement for a new statutory or regulatory approval or a
modification in the terms and conditions on which a statutory or regulatory
approval has already been obtained.
vi. It is specially clarified that a change in the rate of a tax or duty including new tax
enactment shall not be considered a Change in Law for the purpose of this Article.
b. If the Concessionaire suffers (or will suffer) delays or incurs (or will incur) additional
costs, or loss in revenue resulting from such Changes in Law, made after the
Appointed Date, the Concessionaire shall give notice to the Concessioning Authority.
After the receipt of any such notice, the Concessioning Authority shall proceed to
determine whether any adjustment is to made to the Annual Concession Fee to which
the Concessionaire is entitled to, which upon such determination shall be notified to
the Concessionaire accordingly. The Annual Concession Fee shall be adjusted taking
into account any increase or decrease in the costs resulting from Changes in Law
specifically in relation to the Project, made after the Appointed Date.
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c. The guiding principle in the operation of this Article shall be so as to place the
Concessionaire in subsequently the same legal, commercial and financial position as
it was prior to such Change in Law.
Article 3 Obligations of Concessionaire
In addition to and not in derogation or substitution of any of its other obligations under this
Agreement, the Concessionaire shall have the following obligations:
3.1 Project Development Period
a. Deleted
b. The Concessionaire shall be required to have a tie-up, later, with any International /
National Hotel operator chain which is running at least one property of 3 star
category or above within India or Abroad, within 30 (Thirty) months of completion of
construction period, as per Article 2.8 and submit the relevant documentary proofs to
the Concessioning Authority.
c. The Concessionaire shall be required to complete the construction of the Project and
its related services and Project Facilities within the Construction Period of 24 months
from the Compliance Date, as per Article 2.8 and obtain a Project Constriction
Completion Certificate.
3.2 Performance Security
a. For due and punctual performance of its obligations under this Agreement, relating
to the Project, the Concessionaire shall deliver to Concessioning Authority and
maintain Performance Security as specified in Schedule 7 and in the format as
specified in Schedule 6(A) and 6(B), which shall remain valid at all times through the
period specified.
b. The Performance Security shall be from a scheduled bank or a financial institution
approved by the Concessioning Authority, payable at Anandpur Sahib.
c. Upon occurrence of Concessionaire Event of Default, the Concessioning Authority
shall, without prejudice to its other rights and remedies hereunder or in law, be
entitled to encash and appropriate relevant amounts from the Performance Security
as damages. Upon such encashment and appropriation from the Performance
Security, the Concessionaire shall, within 30 (thirty) days replenish, in case of partial
appropriation, to its original level the Performance Security and in case of
appropriation of entire Performance Security to provide a fresh Performance Security
as aforesaid, failing which the Concessioning Authority shall be entitled to terminate
this Agreement.
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3.3 Financing Arrangement, Payment of Taxes, etc.
a. The Concessionaire shall at its cost, expenses and risk make such financing
arrangement as would be necessary to develop and implement the Project and to
meet all of its obligations under this Agreement, within a period of 120 days from the
Appointed Date.
b. The Concessionaire shall pay all duties, taxes, levies, etc. such Import Duties, etc.
towards all or any of the equipments, material, furnishings, etc. to be installed in the
Project apart from taking any necessary approvals / permissions for the same.
c. The Concessionaire shall pay at its own cost all applicable, existing and future taxes /
charges / fees / levies including any property tax, house tax, luxury tax, service(s) tax,
stamp duty, registration charges and / or pay cost of any legal documentation charges
such as Lease Deed, etc. in respect of the said Project / Project Facilities / Project
Site, as leviable.
3.4 Project Implementation
a. The Concessionaire shall develop the Project in accordance with the MoT guidelines
of Three Star Hotel or above and other Project components as per the provisions laid
down in the Concession Agreement and Schedules hereof. The Concessionaire shall
be required to complete the above stated within the Construction Period.
b. The Concessionaire shall consider, while designing, the exterior / façade of the
Project as per the development parameters / guidelines laid down in this Agreement
and Schedules thereof.
c. The Concessionaire shall be required to complete / construct the overall super-
structure with outer façade / exteriors and internal finishing’s/furnishings of the
Project within the Construction Period.
d. The Concessionaire shall obtain MoT Accreditation for Hotel Complex/ Project
within a period of 30 (thirty) months from the Project Construction Completion
Certificate.
e. The Concessionaire shall obtain all necessary approvals, permissions and sanctions
for setting up of Project and other allied infrastructure and facilities.
f. The Concessionaire shall obtain and submit “Structural Safety Certificate” of the
proposed Project Facilities from competent, reputed and recognized “Structural
Engineer” before the commencement of commercial activities to the Concessioning
Authority.
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g. The Concessionaire shall adhere to the safe construction parameters and complete
the construction works before the Project Construction Completion Date or such
extended date as may be approved by Concessioning Authority.
h. The Concessionaire may undertake construction works and services by itself or
through Contractor(s) possessing requisite technical, financial and managerial
expertise / capability; but in any case the Concessionaire shall and will remain solely
responsible for its overall liabilities and obligations under the contract, overall
supervision, monitoring and control of the activities of all the Contractors, sub-
contractors, their employees and agents engaged under respective “Project
Agreements” as may be necessary.
i. For this purpose, Concessionaire shall undertake all necessary activities such as
designing, planning, developing, financing, constructing, marketing, operating and
maintaining the Project and the Project Site, in accordance with the provisions of this
Agreement and as per Good Industry Practice.
j. For the purposes of determining whether the construction works are being
undertaken as per Building Laws / Bye-Laws, Development Controls, relevant
provisions of Indian Standards, National Building Code, etc., the Concessionaire shall
with due diligence carry out all necessary and periodical Tests. The Concessionaire
shall maintain proper record of such Tests and the remedial measures taken to cure
the defects or deficiencies, if any, indicated by the Test results.
k. The Concessionaire shall procure and install new, specified and necessary equipment,
plant, machinery, apparatus, services and its supporting infrastructure towards the
Project. It shall keep the entire Project Facilities / Project and its related equipment
adequately insured and shall pay regular and timely premium, at its own cost.
l. In terms with the provisions of this Agreement, the Concessionaire shall make timely
payment to Concessioning Authority, wherever required and applicable.
m. The Concessionaire shall implement and make operational the Project as per Article
2.8.
n. If the Concessionaire opts for the demolition of the existing Hotel Complex, then the
following provision shall be taken into consideration:
i. The land for the Project shall be carved out after the demolition of the existing
structures as per requirements. The demolition work shall be taken in a
planned manner as per Industry Practice to avoid any damage to the
adjoining properties, men and machinery.
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ii. The Concessionaire shall ensure that the area to be dismantled/ demolished
shall be adequately segregated/ cordoned off by suitable means and measures
and display boards shall be erected all around for warning of general public
and adjoining / nearby activities. Further requisite measures shall be taken to
avoid any damage to adjoining properties / assets by providing under pinning,
under shoring and sheet piling etc. as per requirements of the Project Site.
iii. The debris as a result of dismantling/ demolishing shall be the property of the
Concessionaire and it shall be disposed of at his sole discretion. For
avoidance of the doubt, the site shall be cleared of all debris before
undertaking construction activity.
iv. However, not withstanding anything contained herein it is clarified that there
shall be no relaxations with regards to Construction Period and Annual
Concession Fee and Upfront Premium agreed in case the Concessionaire opts
for demolition/ dismantling of the current structure.
3.5 Operation and Maintenance
a. The Concessionaire shall operate and maintain the Project Facilities in accordance
with the MoT guidelines for Three Star Hotel (Minimum), for the Hotel Component
and Good Industry Practice and Applicable Laws for the other components of the
Project. The Concessionaire shall throughout the continuance of this Agreement,
have full control and management of Project.
b. Deleted
c. The Concessionaire may undertake operations and maintenance of the Project
Facilities by itself or through a Person possessing requisite technical, financial and
managerial expertise / capability, provided Concessionaire shall be solely responsible
for implementation and operation and maintenance of the Project in accordance with
the provisions of this Agreement and it shall not relieve the Concessionaire of its
obligations and liabilities under this Agreement in any manner.
d. The Concessionaire shall with due diligence carry out all necessary and periodical
Tests in accordance with the applicable regulations and Applicable Laws. The
Concessionaire shall maintain proper record of such Tests and the remedial measures
taken to cure the defects or deficiencies, if any, indicated by the Test results.
e. The Concessionaire shall be entitled at its own costs, expenses and consequences to
perform the following:
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i. Institution and supervision of operating policies, principles, systems and
procedures for all departments including purchasing, accounting, credit
management and maintenance, personnel, etc.
ii. Instituting, conducting, defending, compromising, referring to arbitration and
abandoning any legal or other proceedings, claims and disputes in which the
said Project is concerned.
iii. To issue its receipts and invoice in its own name.
f. The Concessionaire will take professional indemnity insurance in respect of the
negligence of its staff members, employees, executives, Authorities in the operation
and management of the Project. The Concessionaire shall throughout the term of this
Agreement maintain the Professional Indemnity Insurance and from time to time
regularly bear and pay the insurance premium in this regard.
g. The Concessionaire shall bear and pay all expenses, taxes, due and payable in respect
of the operation and management of the Project, including GST and other such
levies/ duties as may be applicable from time to time and will ensure that these are
paid in time and no defaults are made in respect of the same. Further the
Concessionaire shall ensure that all returns in this regard are filed before the due
date as per Applicable Laws.
h. The Concessionaire shall not, in the operation of the Project, do any act or omission,
which shall be unlawful in nature and throughout the term, abide by all the laws,
rules, orders, regulations and other requirements as applicable for the operation and
management of the Project from time to time.
i. The Concessionaire shall keep and maintain all such books, records and reports as
are required to be maintained under Applicable Laws and shall submit or cause to be
submitted to appropriate authorities, all information and reports as are legally
required.
j. The Concessionaire will furnish to the Concessioning Authority such information as
required by the Concessioning Authority with respect to operation and management
of the Project.
k. Notwithstanding anything contained herein, the Concessionaire shall be solely
responsible for all the claims or proceedings filed with respect to the management
and operation of the Project whether with regard to any negligence committed in the
Project or by reason of deficiency in the service at the Project or otherwise for any
reason whatsoever whether intentionally or unintentionally and the Concessioning
Authority shall not be responsible or liable for the same whether vicariously or
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otherwise and the Concessionaire shall always keep the Concessioning Authority
indemnified in this regard.
l. The Concessionaire will ensure that the highest service standards and good
hospitality industry practices will be adopted and followed in the Hotel Complex and
the said Project throughout the Concession Period.
m. The Concessionaire shall maintain complete information relating to the Audited /
Certified Financial Statements, etc. for ascertaining true and correct status of the
accounts, revenues, etc. relating to Project. Upon request and after serving prior
Notice to the Concessionaire, the Concessioning Authority shall have the right to
check the Audited Financial Statements at any given point of time during the
currency of the Concession Period.
n. During the currency of contract, if Concessionaire may want to add more built up
area to the initial proposal submitted at the time of signing of the Concession
Agreement, the Concessionaire has to obtain prior approval of Concessioning
Authority prior to the start of any additional work. The Upfront Premium,
Construction Performance Security and Annual Concession Fee shall be increased on
the pro-rata basis to additional added area.
o. In the event the Concessionaire has failed to operate and maintain the Project in
accordance with the Good Industry Practices and as per the provisions of this
Agreement, a notice to that effect will be issued by Concessioning Authority to the
Concessionaire. The Concessionaire shall take all steps to address the concerns
raised by Concessioning Authority in the said notice within reasonable period. If the
Concessionaire does not remedy any such breach in the period specified in the notice,
it shall be constituted as “Concessionaire Event of Default” in terms of the provisions
of Article 6.
3.6 Minimum Equity Requirement (Concessionaire Shareholding)
a. The shareholding of the Lead Member (in case of Consortium) in the issued and paid
up equity share capital of the Concessionaire shall not be less than 51% during the
currency of Concession Agreement and all the members to the Consortium shall
maintain minimum of 74% of equity shareholding in the Concessionaire (i.e. the SPC
incorporated for the said Project);
b. Deleted
c. Deleted
d. Deleted
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e. In case of any change in the “Operator” of the Project, the Concessionaire shall duly
inform the Concessioning Authority of any such change so effected, alongwith a copy
of the agreement entered into with the Operator.
3.7 Insurance
At all times during the period of this Agreement, Concessionaire shall at its cost and expense,
purchase and maintain by due re-instatement or otherwise, all insurances in respect of the
Project Site and Project in accordance with the Good Industry Practice, as required under the
Financing Documents.
3.8 Environmental Clearances and Compliance
At all times, Concessionaire shall obtain the requisite Environmental Clearances from the
appropriate authorities and shall also ensure that the processes employed in the
construction, operation and maintenance thereof, for the Project is in compliance to the
Applicable Laws pertaining to environment, health and safety aspects including, policies and
guidelines related thereto.
3.9 General Obligations
The Concessionaire shall:
a. procure and maintain in full force and effect, as necessary, appropriate proprietary
rights, licenses, agreements and permissions for materials, methods, processes and
systems used in or incorporated into the Project;
b. at all times, to afford access to the Project Site to the authorised representatives of
Concessioning Authority, Senior Lenders, other persons duly authorised by any
Governmental Agency having jurisdiction over the Project, to inspect the project and to
investigate any matter within their authority and upon reasonable notice.
c. ensure that no structural damages is caused to the existing buildings and other
permanent structures at the Project Site as a result of Concessionaire’s activities or any of
its agents, contractors, tenants, etc. except in case the Concessionaire wishes to
demolish/ dismantle the existing project structure and replace it with a new structure as
per the design and drawings submitted to the Concessioning Authority and approved
thereof.
d. perform and fulfill its obligations under the Financing Documents.
e. make efforts to maintain harmony and good industrial relations among the personnel
employed in connection with the performance of its obligations under this Agreement
and shall be solely responsible for compliance with all labour laws and solely liable for all
possible claims and employment related liabilities of its staff employed in relation with
the Project and hereby indemnifies Concessioning Authority against any claims,
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damages, expenses or losses in this regard and that in no case and shall for no purpose
shall Concessioning Authority be treated as employer in this regard;
f. make its own arrangements for construction materials and observe and fulfil the
environmental and other requirements under the Applicable Laws and Applicable
Permits from time to time;
g. ensure that the Project Site remains free from all encroachments and take all steps
necessary to remove encroachments, if any;
h. pay all taxes, duties, levies and outgoings, including utility charges relating to the Project;
i. not do or omit to do any act, deed or thing which may in any manner be violative of any
of the provisions of this Agreement; and
j. transfer the Project to the Concessioning Authority in fully operational and functional
condition upon termination of this Agreement, in accordance with the provisions thereof.
3.10 No Breach of Obligations
The Concessionaire shall not be considered to be in breach of its obligations under this
Agreement on account of any of the following:
a. Force Majeure Event, subject to Article 5.3;
b. Concessioning Authority Event of Default;
c. Compliance with the directions of any Government Agency, other than instructions
issued as a consequence of a breach by the Concessionaire of any of its obligations
hereunder; and
d. Closure of the Project or part thereof with the approval of the Concessioning Authority.
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Article 4 Obligations of Concessioning Authority
4.1 In addition to and not in derogation or substitution of any of its other obligations
under this Agreement, Concessioning Authority shall have the following obligations:-
a. Deleted
b. Shall have right at all times, during the period of this agreement to inspect the books
of accounts and other relevant records of the Concessionaire for past three financial
years in respect of the said Project. The Concessioning Authority may for this
purpose, have inspection done at its cost by a person or person(s) in its employment.
The Concessioning Authority shall, however, give to the Concessionaire, a prior
written notice period of not less than 14 days before the date of commencement of
any such inspection.
c. Any claims, liabilities and litigations arising out of in providing the Project Site free of
Encumbrances, prior to the date of issue of Notice to Commence, shall be borne
solely by the Concessioning Authority and it shall hold it harmless from any such
liabilities that may arise as a result of any such transfer of the Project Site.
d. To facilitate the Concessionaire in getting all such approvals, permissions and
authorizations which the Concessionaire is obliged to seek under this Agreement in
connection with development of the Project and the performance of its obligations
hereunder;
e. Upon written request from the Concessionaire, facilitate the Concessionaire in
obtaining necessary infrastructure facilities and utilities, including water, electricity
and telecommunication facilities at rates and on terms no less favourable to the
Concessionaire than those generally available to commercial customers receiving
substantially equivalent facilities / utilities; and
f. Deleted
g. The Concessioning Authority shall deliver possession of the Project Site at the time of
execution of the Lease Deed. Failure to do so, for any reason other than
Concessionaire Event of Default, shall constitute an event of default by Concessioning
Authority ("Concessioning Authority Event of Default”).
h. Upon written request from the Concessionaire, provide reasonable facilitation to the
Concessionaire and any expatriate personnel of the Concessionaire to obtain
applicable visas and work permits for the purpose of discharging its obligations under
this Agreement by the Concessionaire
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Article 5 Force Majeure
5.1 Force Majeure Event
5.1.1 For the purpose of this Agreement, Force Majeure Event means any of the Non-
Political Event and/or Political Event, set out below including the impact /
consequence thereof which:
a. is beyond the control of the Party claiming to be affected thereby (the “Affected
Party”),
b. causes Material Adverse Effect and prevents the Affected Party from performing or
discharging its obligations under this Agreement; and
c. the Affected Party has been unable to overcome or prevent despite exercise of due
care and diligence. These Non-Political Force Majeure Events will include:
i. earthquake, flood, inundation, landslide;
ii. storm, tempest, hurricane, cyclone, lightning, thunder or other extreme
atmospheric disturbances;
iii. fire caused by reasons not attributable to the Concessionaire or any of the
employees or agents of the Concessionaire;
iv. acts of terrorism;
v. strikes, boycotts, labour disruptions or any other industrial disturbances not
arising on account of the acts or omissions of the Concessionaire;
vi. war, hostilities (whether war be declared or not);
vii. invasion, act of foreign enemy, rebellion, riots, weapon conflict or military
actions, civil war;
viii. ionising radiation, contamination by radio activity from nuclear fuel, any
nuclear waste, radioactive toxic explosion;
ix. volcanic eruptions and
x. any judgment or order of a court of competent jurisdiction or statutory
authority in India made against the Concessionaire in any proceedings
reasons other than failure of the Concessionaire to comply with any
Applicable Law or Applicable Permits or on account of breach thereof, or of
any contract, enforcement of this Agreement or exercise of any of its rights
under this Agreement by Concessioning Authority.
d. action of authorities having Material Adverse Effect (hereinafter referred to as
“Political Force Majeure Events”) including but not limited to :
i. Expropriation, compulsory confiscation or takeover by any Competent
Authority of any Project Assets or rights of the Concessionaire.
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ii. any unlawful, unauthorized or without jurisdiction revocation of, or refusal to
renew or grant without valid cause any consent or approval required by the
Concessionaire or any of the Contractors to perform their respective
obligations under the Project Agreement (other than a consent obtaining of
which is Condition Precedent) and provided that such delay, modification,
denial, refusal or revocation did not result from the Concessionaire’s or any
Contractors inability or failure to comply with any condition relating to grant,
maintenance or renewal of such consents or permits.
5.2 Notice of Force Majeure Event
a. As soon as practicable and in any case within 7 days of the date of occurrence of a
Force Majeure Event or the date of knowledge thereof, the Affected Party shall notify
the other Party of the same setting out, inter alia, the following in reasonable detail:
i. the nature and extent of the Force Majeure Event;
ii. the estimated Force Majeure Period;
iii. the nature of and the extent to which, performance of any of its obligations under
this Agreement is affected by the Force Majeure Event;
iv. the measures which the Affected Party has taken or proposes to take to alleviate /
mitigate the impact of the Force Majeure Event and to resume performance of
such of its obligations affected thereby; and
v. any other relevant information concerning the Force Majeure Event, and / or the
rights and obligations of the Parties under this Agreement.
b. As soon as practicable and in any case within 5 days of notification by the Affected
Party in accordance with the preceding Sub-article 5.2 (a), the Parties shall meet and
hold discussions in good faith and where necessary conduct physical inspection /
survey of the Project Facilities in order to:
i. assess the impact of the underlying Force Majeure Event;
ii. to determine the likely duration of Force Majeure Period; and
iii. to formulate damage mitigation measures and steps to be undertaken by the
Parties for resumption of obligations, the performance of which shall have been
affected by the underlying Force Majeure Event.
c. The Affected Party shall during the Force Majeure Period provide to the other Party
with regular (not less than fortnightly) reports concerning the matters set out in the
preceding Sub-article 5.2(b) as also any information, details or document, which the
Parties may reasonably requires.
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5.3 Performance of Obligations
If the Affected Party is rendered wholly or partially unable to perform any of its obligations
under this Agreement because of a Force Majeure Event, it shall be excused from
performance of such obligations to the extent it is unable to perform the same on account of
such Force Majeure Event provided that:
a. due notice of the Force Majeure Event has been given as required by the preceding
Article 5.2;
b. the excuse from performance shall be of no greater scope and of no longer duration
than is necessitated by the Force Majeure Event;
c. the Affected Party has taken all reasonable efforts to avoid, prevent, mitigate and
limit damage, if any, caused or is likely to be caused to the Project as a result of the
Force Majeure Event and to restore the Project Facilties, in accordance with the
Good Industry Practice and its relative obligations under this Agreement;
d. when the Affected Party is able to resume performance of its obligations under this
Agreement, it shall give to the other Party written notice to that effect and shall
promptly resume performance of its obligations hereunder, the non issue of such
notice being no excuse for any delay for resuming such performance;
e. the Affected Party shall continue to perform such of its obligations which are not
affected by the Force Majeure Event and which are capable of being performed in
accordance with this Agreement; and
f. any insurance proceeds received shall, subject to the provisions of Financing
Documents, be entirely applied to repair, replace or re-instate the assets damaged on
account of the Force Majeure Event, or in accordance with Good Industry Practice.
5.4 Termination due to Force Majeure Event
a. Termination
If a Force Majeure Event, continues or is in the reasonable judgment of the Parties
likely to continue beyond a period of 120 days, the Parties may mutually decide to
terminate this Agreement or continue this Agreement on mutually agreed revised
terms. If the Parties are unable to reach an agreement in this regard, the Affected
Party shall after the expiry of the said period of 120 days, be entitled to terminate this
Agreement.
Provided that the Parties may by mutual agreement, decide to continue this
Agreement on revised terms or to terminate this Agreement, if the Force Majeure
Event subsists or is likely to subsist for a period exceeding 180 days, then either Party
shall be entitled to terminate this Agreement.
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b. Termination Notice
If either Party, having become entitled to do so, decides to terminate this Agreement
pursuant to the preceding Sub-article 5.4(a), it shall issue Termination Notice setting
out;
i. in sufficient detail the underlying Force Majeure Event;
ii. the Termination Date which shall be a date occurring not earlier than 60 days
from the date of Termination Notice;
iii. the estimated Termination Payment including the details of computation thereof;
and
iv. any other relevant information.
c. Obligation of Parties
Following issue of Termination Notice by either Party, the Parties shall promptly take
all such steps as may be necessary or required to ensure that;
i. the Termination Payment, if any, payable by Concessioning Authority in
accordance with the following Sub-article 5.4(d) is paid to the Concessionaire on
the Termination Date; and
ii. the Project/ Project Site is handed back to Concessioning Authority by the
Concessionaire on the Termination Date free from all Encumbrance in
accordance with the provisions of Clause 6.6 (Handback of Transfer Assets) of
this Agreement.
d. Termination Payment in case of Termination due to Force Majeure Event
Upon Termination of this Agreement due to a Political Force Majeure Event,
Concessionaire shall be entitled to receive Fair Market Value (net of Land and
Movable Assets) of the Project Facilities and refund of Performance Security.
However, upon Termination of this Agreement due to a Non-Political Force Majeure
Event, the Concessionaire shall be entitled to receive and appropriate the proceeds of
any amounts under insurance policies. Performance Security, if subsisting, shall be
released.
Provided Concessioning Authority shall be entitled to deduct from such Termination
Payment any amount due and recoverable by Concessioning Authority including any
outstanding payment from the Concessionaire as on the Termination Date.
5.5 Liability for other losses, damages etc.
Save and except as expressly provided in this Article, neither Party hereto shall be liable in
any manner whatsoever to the other Party in respect of any loss, damage, cost, expense,
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claims, demands and proceedings relating to or arising out of occurrence or existence of any
Force Majeure Event.
Article 6 Events of Default, Termination and Handback
6.1 Events of Default
Event of Default shall mean either Concessionaire Event of Default or Concessioning
Authority Event of Default or both as the context may admit or requires:
a. Concessionaire Event of Default
Any of the following events shall constitute an Event of Default by the Concessionaire
("Concessionaire Event of Default") unless such event has occurred as a result of one or more
reasons set out in Article 5.1.1:-
i. The Concessionaire has failed to produce any documentary proof of any Tie up /
Joint Venture with an International / National Three Star or above Hotel/ Resort
company within a period of 30 months from the construction completion date, as per
Article 2.8.
ii. The Concessionaire has failed to achieve the construction and obtain Project
Construction Completion Certificate, i.e. complete the construction of the Project/
Project Facilities and amenities within the Project Construction Completion Period of
24 months from the Compliance Date, as per Article 2.8.
iii. The Concessionaire has failed to obtain the MoT accreditation, with respect to Hotel
Complex, within a period of 30 (Thirty) months from the Project Construction
Completion Certificate.
iv. The Concessionaire has failed to obtain the MoT accreditation, for Hotel Complex, in
any given calendar year and has failed to re-obtain the requisite MOT accreditation
within the “Concessionaire’s Proposal to Rectify” and / or the “Cure Period” as
provided under Article 6.2 (a).
v. The Concessionaire has failed to perform, implement or discharge any of its
obligations and / or failed to implement any of the provisions, as set out under this
Concession Agreement (including Schedules).
vi. The Concessionaire has failed to pay the Annual Concession Fee during the
Concession Period.
vii. The Concessionaire has failed to comply with the Applicable Laws / Applicable
Permits or any Rules and such failure has resulted in a Material Breach of the
Agreement;
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viii. The Concessionaire has failed to implement the Project in accordance with the
provisions of this Agreement and such failure, in the reasonable estimation of
Concessioning Authority, is likely to delay achieving Scheduled Project Construction
Completion Date.
ix. The Concessionaire’s failure to perform or discharge any of its obligations under this
Agreement, which has or is likely to have a Material Adverse Effect;
x. The Concessionaire has failed to make any other payments, other than the Annual
Concession Fee, due to Concessioning Authority and more than 60 days have elapsed
since such payment became due;
xi. The Concessionaire is in Material Breach of any of its obligations under this
Agreement and the same has not been remedied for more than 120 days;
xii. Any representation made or warranty given by the Concessionaire under this
Agreement is found to be false or misleading;
xiii. A resolution has been passed by the shareholders of the Concessionaire for voluntary
winding up of the Concessionaire;
xiv. Any petition for winding up of the Concessionaire has been admitted and liquidator
or provisional liquidator has been appointed or the Concessionaire has been ordered
to be wound up by Court of competent jurisdiction, except for the purpose of
amalgamation or reconstruction with the prior consent of Concessioning Authority,
provided that, as part of such amalgamation or reconstruction and the amalgamated
or reconstructed entity has unconditionally assumed all surviving obligations of the
Concessionaire under this Agreement;
xv. A default has occurred under any of the Financing Documents and any of the lenders
to the Project has recalled its Financial Assistance and demanded payment of the
amounts outstanding under the Financing Documents or any of them as applicable;
xvi. The Concessionaire has abandoned the Project for the consecutive period of 3 (three)
months;
xvii. The Concessionaire has unlawfully repudiated this Agreement or has otherwise
expressed an intention not to be bound by this Agreement;
xviii. The Concessionaire has suffered an attachment levied on any of its assets, which has
caused or is likely to cause a Material Adverse Affect on the Project and such
attachment has continued for a period exceeding 120 days.
xix. The Concessionaire has created encumbrance(s) beyond the Concession Period /
Term of this Concession Agreement / Lease Period and in violation of the provisions
herein in this regard.
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b. Concessioning Authority Event of Default
Failure of Concessioning Authority to deliver possession of the Project Site within 120 (one
hundred and twenty) days of execution of Lease Deed for any reason other than
Concessionaire Event of Default shall constitute an event of default by Concessioning
Authority ("Concessioning Authority Event of Default”).
6.2 Termination due to Event of Default
a. Termination for Concessionaire Event of Default
i. Without prejudice to any other right or remedy which Concessioning Authority may
have in respect thereof under this Agreement, upon the occurrence of a
Concessionaire Event of Default, Concessioning Authority shall be entitled to
terminate this Agreement in the manner as set out under Article 6.2(a)(ii) and Article
6.2(a)(iii).
ii. If Concessioning Authority decides to terminate this Agreement pursuant to
preceding (i), it shall in the first instance issue “Preliminary Notice to Remedy” to the
Concessionaire. The Concessionaire within 30 (Thirty) days of receipt of the
Preliminary Notice to Remedy, shall submit to Concessioning Authority in sufficient
detail, the manner in which it proposes to cure the underlying Event of Default (the
“Concessionaire's Proposal to Rectify”). In case of non-submission of the
Concessionaire's Proposal to Rectify within the said period of 30 (Thirty) days, the
Concessioning Authority shall be entitled to terminate this Agreement by issuing the
Termination Notice.
iii. If the Concessionaire's Proposal to Rectify is submitted within the period stipulated
therefore, the Concessionaire shall have further period of 90 (Ninety) (“Cure Period”)
to remedy / cure the underlying Event of Default. If, however the Concessionaire fails
to remedy / cure the underlying Event of Default within such further period allowed,
Concessioning Authority shall be entitled to terminate this Agreement by issuing the
Termination Notice.
b. Termination for Concessioning Authority Event of Default
i. Without prejudice to any other right or remedy which the Concessionaire may have in
respect thereof under this Agreement, upon the occurrence of Concessioning
Authority Event of Default, the Concessionaire shall be entitled to terminate this
Agreement by issuing Termination Notice.
ii. If the Concessionaire decides to terminate this Agreement pursuant to preceding the
above Clause (i), it shall in the first instance issue Preliminary Notice to Remedy to
the Concessioning Authority. Within 30 (Thirty) days of receipt of Preliminary
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Notice to Remedy, to Concessioning Authority shall forward to the Concessionaire its
proposal to remedy / cure the underlying Event of Default (the "Concessioning
Authority Proposal to Rectify”). In case of non-submission of Concessioning
Authority Proposal to Rectify within the said period of 30 (Thirty) days,
Concessionaire shall be entitled to terminate this Agreement by issuing Termination
Notice.
iii. If Concessioning Authority Proposal to Rectify is forwarded to the Concessionaire
within the period stipulated thereof, Concessioning Authority shall have further
period of 90 (Ninety) days to remedy / cure the underlying Event of Default. If,
however Concessioning Authority fails to remedy / cure the underlying Event of
Default within such further period allowed, the Concessionaire shall be entitled to
terminate this Agreement by issuing Termination Notice.
c. Termination Notice
If a Party having become entitled to do so, decides to terminate this Agreement pursuant to
the preceding Sub article 6.2 (a) or 6.2(b), it shall issue Termination Notice setting out:
i. in sufficient detail the underlying Event of Default;
ii. the Termination Date which shall be a date occurring not earlier than 60 days from
the date of Termination Notice;
iii. the estimated Termination Payment including the details of computation thereof;
and,
iv. any other relevant information.
d. Obligation of Parties
Following issue of Termination Notice by either Party, the Parties shall promptly take all
such steps as may be necessary or required to ensure that:
i. until Termination the Parties shall, to the fullest extent possible, discharge their
respective obligations so as to maintain the continued operation of the Project
Facility;
ii. the Project and Project Site shall be transferred to the Concessioning Authority by the
Concessionaire on the Termination Date, free from all Encumbrances, as per the
provisions of Clause 6.6 (Handback of Transfer Assets) of this Agreement.
iii. The Termination Payment, if any, payable by either Party in accordance with the
following sub clause (f) is paid to the Other Party on the Termination Date.
e. Withdrawal of Termination Notice
Notwithstanding anything inconsistent contained in this Agreement, if the Party who has
been served with the Termination Notice cures the underlying Event of Default to the
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satisfaction of the other Party at any time before the Termination occurs, the Termination
Notice shall be withdrawn by the Party which had issued the same.
Provided that the Party in breach shall compensate the other Party for any direct costs /
consequences occasioned by the Event of Default, which caused the issue of Termination
Notice.
f. Termination Payments
i. Upon Termination of this Agreement on account of Concessionaire Event of Default,
prior to the Project Construction Completion Date, Concessioning Authority shall
retain payments, if any, already received. In addition, Concessioning Authority shall
also be entitled to forfeit and retain the Construction Performance Security for
Construction Period, if subsisting.
ii. Deleted.
iii. In consequence to this, the Concessionaire shall hand over physical, vacant,
unencumbered possession of the Project Site / Project Facilities to the Concessioning
Authority. The Concessionaire shall also pay any balance (outstanding) up-to-date
Annual Concession Fee, payable by the Concessionaire to the Concessioning
Authority.
iv. Deleted
v. All payments due to the Concessionaire / Concessioning Authority as calculated
under Article 6 shall be made within 30 (thirty) days of receiving the Termination
Notice.
6.3 Rights of Concessioning Authority on Termination
Upon Termination of this Agreement for any reason whatsoever, Concessioning Authority
shall upon making the Termination Payment, if any, to the Concessionaire have the power
and authority to:
a. enter upon and take possession and control of the Project Facility and Project Site
forthwith as per the provisions of Clause 6.6 (Handback of Transfer Assets) of this
Agreement.
b. prohibit the Concessionaire and any person claiming through or under the
Concessionaire from entering upon / dealing with the Project Facilities and Project Site;
c. Notwithstanding anything contained in this Agreement, Concessioning Authority shall
not, as a consequence of Termination or otherwise, have any obligation whatsoever
including but not limited to obligations as to compensation for loss of employment,
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continuance or regularisation of employment, absorption or re-employment on any
ground, in relation to any person in the employment of or engaged by the Concessionaire
in connection with the Project, and the transfer of the Project Site and Project Facilities
by the Concessionaire to Concessioning Authority shall be free from any such obligation.
6.4 Accrued Rights of Parties
Notwithstanding anything to the contrary contained in this Agreement, Termination
pursuant to any of the provisions of this Agreement shall be without prejudice to accrued
rights of either Party including its right to claim and recover monetary damages and other
rights and remedies which it may have under law or contract. The rights and obligations of
either Party under this Agreement, including without limitation those relating to the
Termination Payment, shall survive the Termination but only to the extent such survival is
necessary for giving effect to such rights and obligations.
6.5 Expiry of Term and/or Extension of Concession Agreement
6.5.1 At the end of the Term (and/or any Extension thereof) of the Concession Agreement,
the provisions of Article 2.7 shall prevail and become applicable.
6.6 Handback of Transfer Assets
Upon termination of this Agreement and consequent obligation of Concessioning Authority
to acquire the “Transfer Assets” hereof, on expiry of the Term, the Concessionaire shall
ensure that on the Transfer Date its interest in:
i. Deleted
ii. All immovable property, assets, structures, buildings, services, furnishings, edifices,
court-areas, ways, walls, compounds, equipment, plant & machinery relatable to Transfer
Assets shall be transferred to Concessioning Authority or its nominee, clear of all
Encumbrances and with good title;
iii. The rights and obligations under or pursuant to all contracts relatable to Transfer Assets
and other arrangements entered into in accordance with the provisions of this
Agreement between Concessionaire and any third party shall (in consideration of
Concessioning Authority’s assumption of the obligations under or pursuant to the
contracts and other arrangements) be vested in Concessioning Authority or its nominee,
clear of all Encumbrances and with good title; and
iv. Notwithstanding anything contained in Article 6.6 (i),(ii) and (ii), prior to any transfer of
the Transfer Assets, Concessioning Authority, shall have the right to conduct a due
diligence of the contracts and agreements, the rights and obligations of which it is
assuming and shall not be bound to assume the rights and obligations of contracts that,
in the sole opinion of Concessioning Authority are unreasonably onerous, and would be
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considered onerous at the time that the contracts were entered into. In relation to all
such contracts that are not transferred to Concessioning Authority, no third Entity,
including the counter-party of such contract shall have any right, license, title, interest,
benefit, claim or demand against or over any Asset and such Transfer Asset shall be
transferred to Concessioning Authority or its nominee, free from all Encumbrances and
with good title.
v. Furthermore, notwithstanding anything contained in the Article 11.1 no liability (accrued
or contingent) of Concessionaire or relating to the Project arising on account of actions or
inactions prior to the Transfer Date shall be assumed or transferred to Concessioning
Authority or its nominees. The Concessioning Authority or its nominees shall not be
liable for liabilities in relation to the Project arising pursuant to the Transfer Date. In the
event of any such liability being assumed or transferred to Concessioning Authority or its
nominee or any Encumbrance existing on any of the Transfer Assets, the quantum of
such liability and / or amount corresponding to such Encumbrance, shall be
compensated by Concessionaire to Concessioning Authority.
vi. Without prejudice to the foregoing, Concessionaire agrees to indemnify and keep
indemnified the Concessioning Authority from and against all actions, proceedings,
losses, damages, liabilities, claims, costs and expenses whatsoever which may be
sustained or suffered by the Concessioning Authority as a result of any actions or
omissions of the Concessionaire prior to the transfer of the Transfer Assets. It is
expressly understood by the Parties that this Article shall survive the termination or
expiry of this Agreement.
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Article 7 Dispute Resolution
7.1 Amicable Resolution
a. Save where expressly stated to the contrary in this Agreement, any dispute, difference
or controversy of whatever nature between the Parties, howsoever arising under, out
of or in relation to this Agreement (the "Dispute") shall in the first instance be
attempted to be resolved amicably in accordance with the procedure set forth in Sub-
article 7.1 (b) below.
b. Either Party may require such Dispute to be referred to the Chairman of PAHCL and
Chairman of Board of Directors of the Concessionaire, for amicable settlement. Upon
such reference, the two shall meet at the earliest mutual convenience and in any case
within 30 (Thirty) days of such reference to discuss and attempt to amicably resolve
the Dispute, as evidenced by the signing of written terms of settlement within 30
(Thirty) days of such meeting or such longer period as may be mutually agreed by the
Parties. If the Dispute is not amicably settled within 30 (Thirty) days (or such longer
mutually agreed period) of such meeting between the two, either Party may refer the
Dispute to arbitration in accordance with the provisions of Article 7.2 below.
7.2 Arbitration
a. any dispute or difference between the parties as to matter arising under this agreement
which cannot be settled amicably within thirty days after receipt by a party of the other
party’s request for amicable settlement may be submitted by a party to arbitration in
accordance with the provisions of paragraph (b)
b. subject to paragraph (a) of this clause 7.2, in the event of any dispute, controversy or
claim arising between the parties hereto out of or in connection with this agreement or
interpretation of its terms, including without limitation, its validity, enforcement, breach,
performance, termination or expiration, such dispute, controversy or claim shall be
finally settled by arbitration.
c. “in event of any question, dispute or difference arising under the agreement or in
connection therewith, the matter shall be referred to the Managing Director of PAHCL
for appointment of sole arbitrator as per the provisions of the Arbitration and
Conciliation Act, 1996 as amended time to time. The sole arbitrator so appointed shall
not have any direct or indirect of any past or present relationship or interest in any of the
parties.
d. Place of Arbitration
The place of arbitration shall at Delhi only and the jurisdiction of the Courts of Delhi shall
prevail.
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e. English Language
The request for arbitration, the answer to the request, the terms of reference, any written
submissions, any orders and awards shall be in English and, if oral hearings take place,
English shall be the language to be used in the hearings.
f. Enforcement of Award
The Parties agree that the decision or award resulting from arbitration shall be final and
binding upon the Parties and shall be enforceable in accordance with the provisions of the
Arbitration Act subject to the rights of the aggrieved parties to secure relief from any higher
forum.
g. Performance during Arbitration
Pending the submission of and / or decision on a dispute and until the arbitral award is
published; the Parties shall continue to perform their respective obligations under this
Agreement, without prejudice to a final adjustment in accordance with such award.
7.3 Adjudication by Regulatory Authority
In the event of the constitution of a statutory Regulatory Authority with powers to adjudicate
upon Disputes between the Concessionaire and the Concessioning Authority, then instead of
reference to Arbitration under Article 7.2, such Regulatory Authority shall adjudicate upon
all Disputes arising out after its constitution, in accordance with the Applicable Laws.
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Article 8 Article 8
(DELETED)
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Article 9 Financing and Lender’s Rights
9.1 The Concessioning Authority hereby agrees that it shall enter into a Substitution
Agreement as given in Schedule 5 with the Senior Lender and the Concessionaire
thereby shall grant the Senior Lender rights to the extent those available to
Concessionaire in the event of “Termination for Concessionaire Event of Default” as set
out in Article 6.2 (a).
9.2 At any time after the Lenders' Representative have issued a Notice of Financial Default
of the Concessionaire, it may by notice require the Concessioning Authority to suspend
all the rights of the Concessionaire and undertake the operation and maintenance of
the Project on its own or through a Third Party. However, in case the Concessioning
Authority is not in the position to take up the O&M of the Project on its own or through
a Third Party, then till the time such Third Party is identified and is in a position to
take over the O&M of the Project, the Concessionaire shall have to Operate and
Maintain the Project in accordance with the terms and provisions of this agreement.
The aforesaid Suspension shall be revoked upon substitution of the Concessionaire by
a Nominated Company, and in the event such substitution is not completed within 180
(one hundred and eighty) days from the date of such Suspension, the Concessioning
Authority may terminate the Concession Agreement forthwith by issuing a
Termination Notice in accordance with the provisions of the Concession Agreement;
provided that upon written request from the Lenders' Representative and the
Concessionaire, the Concessioning Authority may extend the aforesaid period of 180
(one hundred and eighty) days by a period not exceeding 90 (ninety) days.
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Article 10 Representations and Warranties
10.1 Representations and Warranties of the Concessionaire
The Concessionaire represents and warrants to Concessioning Authority that:
a. it is duly organised, validly existing and in good standing under the laws of India;
b. it has full power and authority to execute, deliver and perform its obligations under this
Agreement and to carry out the transactions contemplated hereby;
c. it has taken all necessary corporate and other action under Applicable Laws and its
constitutional documents to authorise the execution, delivery and performance of this
Agreement;
d. it has the financial standing and capacity to undertake the Project;
e. this Agreement constitutes its legal, valid and binding obligation enforceable against it in
accordance with the terms hereof;
f. the information furnished in the bid / proposal and as updated on or before the date of
this Agreement is true and accurate in all respects as on the date of this Agreement;
g. the execution, delivery and performance of this Agreement will not conflict with, result in
the breach of, constitute a default under or accelerate performance required by any of the
terms of the Concessionaire's Memorandum and Articles of Association or any
Applicable Laws or any covenant, agreement, understanding, decree or order to which it
is a party or by which it or any of its properties or assets are bound or affected;
h. there are no actions, suits, proceedings or investigations pending or to the
Concessionaire's knowledge threatened against it at law or in equity before any court or
before any other judicial, quasi-judicial or other authority, the outcome of which may
constitute Concessionaire Event of Default or which individually or in the aggregate may
result in Material Adverse Effect;
i. it has no knowledge of any violation or default with respect to any order, writ, injunction
or any decree of any court or any legally binding order of any Government Agency which
may result in Material Adverse Effect;
j. it has complied with all Applicable Laws and has not been subject to any fines, penalties,
injunctive relief or any other civil or criminal liabilities which in the aggregate have or
may have Material Adverse Effect;
k. subject to receipt by the Concessionaire from Concessioning Authority of any amount
due under any of the provisions of this Agreement, in the manner and to the extent
provided for under the applicable provisions of this Agreement all rights and interests of
the Concessionaire in and to the Project Site and Project Facility shall pass to and vest in
Concessioning Authority on the Termination Date free and clear of all Encumbrances
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without any further act or deed on the part of the Concessionaire or Concessioning
Authority;
l. no representation or warranty by the Concessionaire contained herein or in any other
document furnished by it to Concessioning Authority or to any Government Agency in
relation to Applicable Permits contains or will contain any untrue statement of material
fact or omits or will omit to state a material fact necessary to make such representation
or warranty not misleading; and
m. Without prejudice to any express provision contained in this Agreement, the
Concessionaire acknowledges that prior to the execution of this Agreement, the
Concessionaire has after a complete and careful examination made an independent
evaluation of the Project Site, and the information provided by Concessioning Authority,
and has determined to its satisfaction the nature and extent of risks and hazards as are
likely to arise or may be faced by the Concessionaire in the course of performance of its
obligations hereunder.
n. The Concessionaire also acknowledges and hereby accepts the risk of inadequacy,
mistake or error in or relating to any of the matters set forth above and hereby confirms
that Concessioning Authority shall not be liable for the same in any manner whatsoever
to the Concessionaire
10.2 Representations and Warranties of Concessioning Authority
Concessioning Authority represents and warrants to the Concessionaire that:
a. Concessioning Authority has full power and authority to enter into this Agreement and
has taken all necessary action to authorise the execution, delivery and performance of
this Agreement;
b. This Agreement constitutes Concessioning Authority's legal, valid and binding obligation
enforceable against it in accordance with the terms hereof;
c. It has a good and valid right over the Project Site and has power and authority to grant a
lease in respect thereto to the Concessionaire; and
d. Deleted.
10.3 Obligation to Notify Change
In the event that any of the representations or warranties made / given by a Party ceases to
be true or stands changed, the Party who had made such representation or given such
warranty shall promptly notify the other of the same.
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Article 11 MISCELLANEOUS
11.1 Assignment and Charges
a. Save and except as provided otherwise in this Concession Agreement, the Concessionaire
shall not assign in favour of any person this Agreement or the rights, benefits and
obligations hereunder, without the prior sanction of the Concessioning Authority.
b. Notwithstanding anything stated elsewhere, the Concessionaire shall not create nor
permit to be created any encumbrance or lien over the Project Site (land, buildings and
permanent structures attached thereto).
c. Restraint set forth in Sub-articles 11.1 (a) and 11.1 (b) above, shall not apply to:
i. Assignment of Concessionaire’s rights, title, benefits and interest in Project Assets
other than the Project Site under this Agreement and other Project related Financial
Documents to or in favour of the Lenders as security for Financial Assistance
provided by them.
ii. Mortgage, pledge and hypothecate its rights, title, benefits and interest in the Project
Assets other than the Project Site, as security for indebtedness in favour of the
Lender, subject to the terms of this Concession Agreement and without yielding
possession of the Project to the Lender. It is being clarified here that such mortgage
or charge shall not extend beyond the expiry/ termination of the Concession Period.
However, it is being clarified here that the Concessionaire shall duly inform in writing
to the Concessioning Authority of any such assignment /charge, at all times during
the Concession Period.
Notwithstanding anything contained in Article 11.1 (c) the rights of the Concessionaire shall
not be contrary or in derogation to the provisions relating to Transfer of Assets contained
under Article 6.6. Further, the rights to Concessionaire to create encumbrance(s) as
mentioned in this Article 11.1 (c) shall be read with the provisions of Article 2.1 (d).
11.2 Interest and Right of Set Off
Any sum which becomes payable under any of the provisions of this Agreement by one
Party to the other Party shall, if the same be not paid within the time allowed for
payment thereof, shall be deemed to be a debt owed by the Party responsible for
payment thereof to the Party entitled to receive the same. Such sum shall until
payment thereof carry interest @ SBI PLR + 4% per annum, from the due date for
payment thereof until the same is paid to or otherwise realised by the Party entitled to
the same. Without prejudice to any other right or remedy that may be available under
this Agreement or otherwise under law, the Party entitled to receive such amount shall
also have the right of set off.
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Provided the stipulation regarding interest for delayed payments contained in this
Article 11.2 shall neither be deemed nor construed to authorise any delay in payment of
any amount due by a Party nor be deemed or construed to be a waiver of the
underlying breach of payment obligations.
11.3 Governing Law and Jurisdiction
This Agreement shall be governed by the laws of India. The Courts of Delhi only shall
have jurisdiction over all matters arising out of or relating to this Agreement.
11.4 Waiver
a. Waiver by either Party of any default by the other Party in the observance and
performance of any provision of or obligations under this Agreement:
i. shall not operate or be construed as a waiver of any other or subsequent default
hereof or of other provisions or obligations under this Agreement;
ii. shall not be effective unless it is in writing and executed by a duly authorised
representative of such Party; and
iii. shall not affect the validity or enforceability of this Agreement in any manner.
b. Neither the failure by either Party to insist on any occasion upon the performance of
the terms, conditions and provisions of this Agreement or any obligation hereunder
nor time or other indulgence granted by a Party to the other Party shall be treated or
deemed as waiver / breach of any terms, conditions or provisions of this Agreement.
11.5 Survival
Termination of this Agreement:
a. shall not relieve the Concessionaire or Concessioning Authority of any obligations
already incurred hereunder which expressly or by implication survives Termination
hereof; and
b. except as otherwise provided in any provision of this Agreement expressly limiting
the liability of either Party, shall not relieve either Party of any obligations or
liabilities for loss or damage to the other Party arising out of or caused by acts or
omissions of such Party, prior to the effectiveness of such Termination or arising out
of such Termination.
11.6 Amendments
This Agreement and the Schedules together constitute a complete and exclusive
understanding of the terms of the Agreement between the Parties on the subject hereof
and no amendment or modification hereto shall be valid and effective unless agreed to
by both the Parties hereto and evidenced in writing.
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11.7 Notices
Unless otherwise stated, notices to be given under this Agreement including but not
limited to a notice of waiver of any term, breach of any term of this Agreement and
termination of this Agreement, shall be in writing and shall be given by hand delivery,
recognised international courier, mail, telex or facsimile transmission and delivered or
transmitted to the Parties at their respective addresses set forth below:
If to Concessioning Authority:
The Managing Director
Punjab Ashok Hotels Company Limited
_________
If to the Concessionaire:
The Managing Director,
“__________________”
__________________________________
Fax No. ___________________________
Or such address, telex number, or facsimile number as may be duly notified by the respective
Parties from time to time, and shall be deemed to have been made or delivered.
a. in the case of any communication made by letter, when delivered by hand, by
recognised international courier or by mail (registered, return receipt requested) at
that address; and
b. in the case of any communication made by telex or facsimile, when transmitted
properly addressed to such telex number or facsimile number.
11.8 Severability
If for any reason whatsoever any provision of this Agreement is or becomes invalid,
illegal or unenforceable or is declared by any court of competent jurisdiction or any
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected in any manner, and the
Parties shall negotiate in good faith with a view to agreeing upon one or more
provisions which may be substituted for such invalid, unenforceable or illegal
provisions, as nearly as is practicable. Provided failure to agree upon any such
provisions shall not be subject to dispute resolution under this Agreement or
otherwise.
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11.9 No Partnership
Nothing contained in this Agreement shall be construed or interpreted as constituting
a partnership between the Parties. Neither Party shall have any authority to bind the
other in any manner whatsoever.
11.10 Language
All notices required to be given under this Agreement and all communications,
documentation and proceedings which are in any way relevant to this Agreement shall
be in writing and in English language.
11.11 Exclusion of Implied Warranties etc.
This Agreement expressly excludes any warranty, condition or other undertaking
implied at law or by custom or otherwise arising out of any other agreement between
the Parties and any representation by any Party not contained in a binding legal
agreement executed by the Parties.
11.12 Counterparts
This Agreement may be executed in 3 counterparts, each of which when executed and
delivered shall constitute an original of this Agreement but shall together constitute
one and only the Agreement.
11.13 General Liability and Indemnity
a. The Concessionaire shall indemnify, defend and hold Concessioning Authority
harmless against any and all proceedings, actions and third party claims arising out
of a breach by Concessionaire and its sub-contractors, agents, employees, etc. of any
of its obligations under this Agreement except to the extent that any such claim has
arisen due to breach by Concessioning Authority of any of its obligations under this
Agreement.
b. Deleted.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the day and year
first above written.
For and on behalf of Concessioning Authority
Signed by_______________
For and on behalf of Concessionaire
Signed by_______________
For and on behalf of Concessioning Authority
Signed by_______________
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In the presence of Witnesses:
1)
2)
PUNJAB ASHOK HOTEL COMPANY LIMITED
SCOPE Complex, Core-8, 5thFloor,
7-Lodhi Road, New Delhi-110003.
Revival of Incomplete Hotel at Anandpur Sahib
through PPP SECTION – III: SCHEDULES
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Schedule- 1: The Project
1.1. Broad Scope of Work
“A Hotel Complex along with a Coffee Shop, Indoor Activity Zone, Food Court
and Banquet Facility”
Under this developmental plan, the Hotel Complex/ Project shall be augmented with an
outdoor coffee shop, Indoor activity zone for all age group and banquet facility. The indoor
activity zone shall have activity for all age groups.
The proposed concept shall have following components:
1.1.1. A Hotel Complex
Present hotel block shall be refurbished by the Concessionaire and shall be used as hotel
complex. The hotel complex has approximately 33 rooms and the Concessionaire shall have
the option for addition of rooms, with intimation to the Concessioning Authority.
1.1.2. Multipurpose Hall
The Concessionaire has to develop approximately 5000sqftand will be used as banquet
facility or as conference facility to hold family as well as corporate events.
1.1.3. Outdoor Banquet Facility
Outdoor banquet facility shall be a complement to the proposed multipurpose hall.
1.1.4. Coffee Shop
This facility has been proposed to tap daily visiting tourist in town and the total area of coffee
shop would be around 2100 sq. ft.
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1.1.5. Indoor Activity Zone
Indoor activity zone has been planned to increase the engagement level of visiting tourist and
keep him stay put in the town for night. The gaming zone shall have board games, interactive
games and adventure activities and spate play area for smaller kids. Total area of the Indoor
Activity Zone shall be ~ 5250 sq ft.
1.1.6. Food Court
Food court will complement the coffee shop and will have varied food option catering various
cuisines. The total size of food court shall be around 4000sq ft.
1.1.7. Parking
The Concessionaire shall provide separate parking for in-house guest and day guest visiting
food court or coffee shop. This shall be an added attraction to the site as no other hotel in
town offer parking facility. The car parking would be able to accommodate ~ 50 cars
1.2. Optional Development Concepts
Following are the optional developments which can be developed by the Concessionaire:
1. Camping site with in the hotel complex
2. Adventure activities in nearby areas
3. Eco-tourism & trekking activities on the banks of Beas river
4. Allocation of some area in food court for commercial purpose
The Concessionaire is authorized to choose any or all the permissible activities in the project,
as per applicable laws.
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Schedule – 2: Project Site
2.1. Project History
India Tourism Development Corporation Ltd. (ITDC) entered into an Agreement with
Punjab Tourism Development Corporation (PTDC) on 7th July 1998 for setting up &
operating a quality hotel at Anandpur Sahib. ITDC was designated as Promoter whereas
PTDC were the Co-Promoter for this joint venture with 51% and 49% equity shareholding
respectively. The company was named as ‘Punjab Ashok Hotel Company Limited.’ (PAHCL)
ITDC started the construction work in the year 1998 but work was abandoned in year 2000.
The total area of the plot is around 6 acres of which 0.75 acre is occupied by the Tourist
Reception Centre (TRC Building). Hence for the Hotel the effective are is ~5.25 acres. The
structural and civil work of the Hotel property is completed whereas external development,
interiors, finishing and furnishing work is pending.
2.2. Project Site Appreciation
Anandpur Sahib is located
in Roopnagar district of
Punjab. It is 87 Kms from
Chandigarh. The property
is located in most
premium neighbourhood
surrounded by a world
class museum cum
interpretation centre built
on 100 acres area known
as ‘The Khalsa Heritage
Complex’. The museum is
inspired by the rich
natural and architectural
heritage of Sri Anandpur
Hotel Site
Virasat –e- Khalsa Gurudwara
Kesgarh Sahib
Railway Station Anandpur Sahib
Figure 1: Birdseye View of Project Site
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Sahib.
The project site is very conveniently located from bus station, railway station, Takhat Sri
Kesgarh Sahib and Virasat-e-Khalsa.
Table 1: Distance of Project Site from Major Points
S. No. Location Distance
1. Railway Station, Anandpur Sahib 1.5 Km
2. Bus Station, Anandpur Sahib 2.0 Km
3. Virasat-e-Khalsa 0.5 Km
4. Takht Sri Kesgarh Sahib 1.3 Km
2.3. Site Details
2.3.1. Land Details
As per revenue records, land for project is in the ownership of Department of Tourism,
Punjab. Total area of land is ~5.25 Acres and present land use as per revenue records is
hotel. The land is in L shape and located on Park Street Road connecting NH – 503 and SH
– 22 to Takht Sri Kesgarh Sahib.
2.3.2. Floor Area Ratio
Total land area is around 5.25 acres or 21,252 sq. m. As per GMADA Regional Plan 2008-58
the permissible FAR is 1.75 for commercial development. Based on this, the total area
available for development is approximately 37,191 sq. m. At present, the total built up area is
approximately 2,508 sq. m.
2.3.3. Present Infrastructure
On the site there is an incomplete hotel structure present. The site was developed by Punjab
Ashok Hotel Company LimitedLtd. and has an area spread of 5.25 acres. The entire 5.25 Acre
campus has been enclosed by a boundary wall, with only one entrance gate. In order to
maintain security and safety at the campus, no additional entry/exit points are to be
constructed. As all major Civil Infrastructure facilities are provided, details are as follows:
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2.3.3.1. Hotel Building
The present hotel complex has a hotel block, restaurant, lounge and office block. Only basic
civil work has been completed for above mentioned components. Due to lack of proper
maintenance the hotel building is in very bad state and lot of cracks have generated and at
many places vegetation on walls in visible.
2.3.3.2. 2.3.3.2 Electricity
The site has basic electrical infrastructure ready and well placed. There is a 200KVA
transformer installed to meet all electrical requirements.
Figure 2: Present Condition of Hotel Structure
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2.3.3.3. Water Supply & Sanitation
The site has a dedicated water supply to meet all requirements. All internal plumbing has
been completed. There is a water tank for water storage. Kitchen & dining area as well as
toilets have separate sewage line.
2.3.3.4. Boundary Wall
The site has 6 feet boundary wall along its boundary fitted with 2” high barbed wire on it.
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Schedule – 3: Standards & Specifications
1.1.Specifications for Design, Engineering and Construction
The primary objective of the Project is to provide a world class facility to visitors from all age
groups and all sections of society.
1.1.1 Project Site
1.1.1.1 Planning Guidelines
The development shall be in accordance with the provisions of Development Control
Regulations of the appropriate authority. Adequate surface drainage arrangement shall be
made.
1.1.1.2 Entry/Exit to Site
The Concessionaire shall provide entry and exit points in a manner which ensures that the
circulation is not in conflict with other vehicular or pedestrian movements on the access road
to the Project Site.
1.1.1.3 Zoning of Facilities
The Concessionaire shall ensure that the Project Facilities are appropriately zoned within the
Project Site based on the Resort-cum-Spa activities, extent of public usage, functional
relationships, noise levels and applicable norms/ regulations for the Project Site.
1.1.1.4 Parking
The Concessionaire shall ensure to provide sufficient Parking for the Project Facility within
the Project Site and shall be as per the norms specified in State Municipal Building Bye-Law.
The parking facility shall be provided to meet the peak hour and peak season demand of
visitors during the Concession Period. Adequate and appropriate landscaping shall also be
provided in the surface parking lots.
1.1.1.5 Landscaping and Street Furniture
The Concessionaire shall provide appropriate landscaping and street furniture within the
Project Site. The street furniture shall be designed so as to compliment the overall design
concept. The components of street furniture shall comprise of, but not be limited to the
following:
a. Signage- direction, information, safety and facility signs
b. Benches
c. Litterbins
d. Railings and Guards
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e. Street Lights/Poles
1.1.2 Road Marking
The Concessionaire shall ensure to provide an appropriate road marking in the Project Site
as per IRC: 67-2010.
1.1.3 Lighting
The Concessionaire shall ensure to provide an appropriate interior & exterior lighting
including illumination of car parks, walkways and access roads as per National Lighting
Code - 2010 (SP-2010). Street lighting shall be such that there are no shadow areas
anywhere along the road/ walkways.
1.1.4 Landscaping
All open areas in the Project Site shall be landscaped appropriately in order to reduce
pollution and enhance the overall aesthetics of the Project Site.
1.2 Minimum Construction Specifications: As per best Industry Practices
1.3 Utilities
Standby DG Set of adequate capacity to be provided to meet the emergency load
requirements or for backup during power outages along with the secondary backup
for the minimum operation.
Adequate underground/overhead water storage to be provided to cater for a day
requirement of domestic flushing and firefighting purpose.
The Concessionaire shall ensure the provision of proper fire safety measure
conforming to the provisions of National Building Code to the satisfaction of the
competent authority.
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Schedule – 4: Operation and Maintenance Requirements
H.1. General
1. The Concessionaire shall comply with the O&M Requirements set out in this
Schedule. In doing so, the Concessionaire shall ensure that the Project Facilities are
maintained to the standards and specifications as set out in the Construction
Requirements and also meet the other requirements, if any, set out in the Agreement.
2. The Concessionaire must apply and qualify the proposed project as a 3-Star or above
facility as per the guidelines1 issued by Ministry of Tourism, Government of India.
3. To maintain high standards of quality and safety during operations, it is required that
the Concessionaire shall apply and obtain ISO 9001 - Quality Management certificate
for the Activity Zone component within 6 (six) month of operation. These certificates
shall then be renewed periodically as applicable during the course of Concession
Period.
4. In the design, planning and implementation of all works and functions associated
with the operation and maintenance of the Project Facilities, the Concessionaire shall
take all such actions and do all such things (including without limitation, organizing
itself, adopting measures and standards, executing procedures including inspection
procedures, and engaging contractors) in such manner, as would:
a. ensure the safety of personnel deployed on and users of the Project Facilities or
part thereof;
b. keep the Project Facilities from undue deterioration and wear; and
c. permit unimpaired performance of statutory duties and functions of any party in
relation to the Project.
5. The Concessionaire shall ensure that:
a. Applicable and adequate safety measures are taken
b. Minimum delay is caused to users of the Project Facilities
c. Adverse effects on the environment and to the owners and occupiers of property
and/or land in the vicinity of the Project Facilities, due to any of its actions, is
minimized
1Guidelines available at
http://tourism.gov.in/writereaddata/Uploaded/Guideline/090620130333403.pdf
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d. Any situation which has arisen or likely to arise on account of any accident or
other emergency is responded to as quickly as possible and its adverse effects
controlled/ minimized
e. Disturbance or damage or destruction to property of third party by operations of
the Project Facility is controlled/ minimized
f. Members of the public are treated with due courtesy and consideration by its
employees/ agents
g. Users are provided with adequate information and forewarned of any event or any
other matter affecting the Project Facility to enable them to control/ minimize
any adverse consequences by such event or matter;
h. A complaint register to record grievances of any member of the public in relation
to the operations and maintenance of the Project Facilities is duly maintained.
The availability and access to the Complaint register shall be prominently
displayed at the entry and exit of the Project Facilities. Within one week following
close of each quarter, the Concessionaire shall be required to send a copy of the
complaint register to . may in its discretion direct the Concessionaire to take
further reasonable action as it may deem appropriate for a fair redressal of any
grievance.
i. All materials used in the maintenance, repair and replacement of any of the
project facility shall be required to meet the Construction Requirements.
j. The personnel assigned by the Concessionaire have the requisite qualifications
and experience and are given the training necessary to enable the Concessionaire
meet the O & M Requirements.
H.2. Operation and Maintenance Manual and O&M Plans
1. Prior to the completion of construction activity, the Concessionaire shall finalize the
O&M Plan - for Resort-cum-Spa, adventure activities as well as services such as water
supply, sanitary, electrical, air conditioning and fire protection.
2. Prior to making application for the Completion certificate for the Project the
Concessionaire shall finalize:
a. The O&M Manual
b. The O&M Plan for the first year of operations
c. The Concessionaire shall be required to submit both these documents to
Independent Engineer and the Concessioning Authority (for information) along
with the application for Completion Certificate.
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3. The Operation & Maintenance of the Project Facility shall be carried out to maintain
the performance standards, which shall comprise, but shall not be limited to that
described below.
The performance levels define the level at which the Project Facilities are to be operated
& maintained.
The operations management shall include the following:
a. Routine Maintenance Activities
b. Emergency Operations
a. Routine Maintenance Activities
In order to ensure smooth and uninterrupted use of the Project Facility during normal
operating conditions, routine maintenance of the Project Facility shall include but not be
limited to:
i. Keeping the Project Facilities in a clean, tidy and orderly condition free of litter and
debris;
ii. Removing and disposing of in accordance with all Applicable Laws and Applicable
Permits, all rubbish, debris, etc. including any and all equipment, supplies,
materials and wastes brought or produced by the Concessionaire/ Contractor;
iii. Taking all practical measures to prevent damage to the Project Facilities;
iv. Undertaking maintenance works in accordance with the O&M Plan and O&M
Manual;
v. Preventing, with the assistance of concerned law enforcement agencies where
necessary, any unauthorized entry to and exit from and any encroachments on the
Project Facilities;
vi. Taking all reasonable measures for the safety of all the visitors, workmen, material,
supplies and equipment brought to the Project Facilities.
The Concessionaire shall regularly carry out the necessary preventive maintenance
activities for the Project Facilities to ensure adherence to the Construction Requirements
throughout the Concession Period.
All maintenance activities shall be planned and coordinated in such a way that the
maintenance works shall generally be done during nights and holidays (if unavoidable)
so as to cause least disturbance.
Concessionaire shall adhere to the following Performance Indicators:
Component Performance Indicator
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Project Facility The Project Facility is to be managed very efficiently
throughout the Concession Period and especially during the
peak hours and peak season.
Concessionaire shall ensure that the circulation is not in
conflict with other vehicular or visitor movements while at
entry and exit from the Project Site.
To project facility shall remain operational on all days
throughout the Concession Period.
Toilet Blocks and Water
Chambers
It shall remain operational on all hours in a day between
opening and closing of the Project Facility.
Toilet Blocks should remain free from bad odour and
litter/spots at all times.
Parking Area The Concessionaire has to ensure that the vehicles are
parked at the designated parking areas for each category of
vehicles and also ensure ease of entry/ exit of vehicles.
The parking area shall be open to the visitor vehicles on all
hours in a day between opening and closing of the Project
Facility.
The parking are shall be provided to meet the peak hour and
peak season demand of visitors during the Concession
Period.
Parking Area should be managed in such a manner that
entry and exit is without queue.
Adequate and appropriate landscaping shall also be
provided in the surface parking lots.
Security A closed circuit system shall be strategically installed for
general surveillance of the Project Facility.
The Project Facility security staff shall be on duty and all
equipments related to security/surveillance of the Project
Facility shall be operational, for 24 hours throughout the
year.
Safety To apply and obtain the applicable safety certificate within
one years of operation to maintain the safety standards of
the Project Facilities.
In case of accidents and/or breakdowns and/or incidents:
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Visitors shall be removed from the affected area
within 15 minutes.
The operations shall be reorganized with proper
information, sufficient number or warning,
regulatory, information signs, displays or temporary
change in visitors circulation within 45 minutes.
If required, the emergency services (like ambulance,
firefighting station, etc.) shall be called immediately
and their services shall be arranged within 30
minutes of the accident.
Water Supply Water Supply shall be available for 24 hours at all the
desired places like toilets, drinking water chambers, Food
Court and other Allied Facilities.
Electricity and Lighting Electricity shall be available for 24 hours.
Standby Generator Sets Standby generator sets to supply power to the Project
Facility must be available at all times in case of disruption or
breakdown in power supply.
Telecommunication &
Networking Equipments
These shall remain functional throughout the year to ensure
and maintain interconnectivity between the various
components of the Project Facility.
Administration or Operation
and Maintenance Office
This shall remain open for 24 hours a day and throughout
the year to ensure the supervisory functioning of the regular
operations of the Project Facility.
Signage’s Appropriate educational, directional, warning sign boards
should be maintained.
Drinking water Chambers All drinking water chambers shall be cleaned daily.
Drinking water quality as per IS 10500 – 2012.
b. Emergency Operations
The Concessionaire shall be responsible for minimizing disruption to the visitors in the
event of accidents and/or breakdowns and/or incidents affecting the safety and use of the
Project Facility by providing adequate warnings, informatory signs etc. and by
maintaining liaison procedures with emergency services. This shall be achieved by the
provision of the following:
a. Declare a state of emergency and inform.
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b. Remove visitors from the affected area.
c. Co-ordinate with the emergency services and informing them about the situation.
d. Reorganize the operations with proper information, sufficient number or warning,
regulatory, information signs, displays or temporary change in visitors circulation.
e. Attend to the affected area using manpower, machinery at Concessionaire’s
disposal.
f. Clear the affected site and arrange for repairs.
g. Make a report of the incident to.
The Concessionaire shall evolve a comprehensive recovery plan for the restoration of the
breakdown in the operations. The plan must be documented by record keeping
procedures. The recovery plan shall include the following components:
a. Identify and prioritize essential facility functions for recovery.
b. Procedures for repairs / rebuilding / modifications, if any
c. Identify possible alternative traffic (visitor & vehicular) circulation / parking
plans.
d. Documentation process for after action reports.
e. Liasoning with the nearby emergency services such as trauma centres, hospitals,
police station, fire brigade office.
H.3. Safety
It is required that the Concessionaire shall apply and obtain all applicable safety
certificates within one year of operation to maintain the safety standards of the Project
Facilities. This shall then be adhered to and renewed periodically as applicable during the
course of the Concession Period. The Concessionaire shall implement a Safety
Management Programme in line with relevant guidelines and thereby, form part of the
O&M Manual.
H.4. Inspections
The Concessionaire shall plan inspection programme for the Project Facilities for its
smooth operations as follows:
H.5.1. Visual Inspection
Visual Inspections are broad general inspections carried out frequently by
maintenance engineers having adequate knowledge of building and pavement
structures. The purpose of visual inspection is to report fairly obvious deficiencies,
which could lead to accidents or maintenance problems. Such inspections shall be
frequent. The visual inspection may be carried out by visual assessment with careful
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observation of the specific object/ item of the Project Facilities for identification and
for quantification of the deficiencies or damages of the Project Facilities.
H.5.2. Thorough Inspection
Such an inspection is to be carried out on the basis of comprehensive checklist of
items related to the materials, condition and situation of the structure etc. This
inspection is to be carried out by the engineer having good knowledge of the specific
element to analyse the nature, and extent of defects/ deficiencies, suggest suitable
remedial measures to rectify/ remedy them and quantify repair work.
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MAINTENANCE AND PERFORMANCE STANDARDS – HOTEL
1. Preamble:
The following maintenance and performance standards cover only some of the minimum
requirements for operation. The Concessionaire shall operate, maintain and manage the
Project and allied facilities strictly conforming to the relevant Indian standards, the best
industry practices and internationally acceptable norms. Whether the requirements are
explicitly stated or not in the RFP documents, the Bidders must note Concessioning
Authority envisages and expects a truly international quality and standard facility in all
respects from the selected Concessionaire, as the binding contractual obligation.
2. General:
During the period of operation, the Concessionaire shall maintain all the facilities in
accordance with performance standards and maintenance requirements, as mentioned
below:
(i) Perform maintenance on a routine and periodic basis.
(ii) Provide functional facilities that (a) meet the Hotel requirements; (b) have an
environmentally acceptable atmosphere for users of the facility; (c) ensure the
safety of the visitors; and, (d) maintain a good environment in the site conducive to
all tourism and leisure facilities.
(iii) Identify potential problems early within the context of the planned maintenance
system so that corrective action may be planned and completed in a timely manner.
(iv) Establish a maintenance list for planned operation and maintenance. Follow an
orderly program so that maximum operational efficiency is attained.
3. Maintenance Works:
(i) The Concessionaire shall perform routine and periodic maintenance activities for
the project infrastructure viz, civil, mechanical and electrical works and equipment,
furniture for meeting the specified performance standards as per Table 1 below.
Table 1
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Maintenance Requirement
Description Required Level Facility/ Equipment
Power Supply,
Electrical
Installations,
Electrical
Equipments
Standby power arrangements shall
be made for necessary project
facilities like Hotel Convention &
Exhibition Center, etc.
No loose, open, un-insulated
wiring any of the areas. Switch
Boards, Electric meters are
enclosed in boxes and access to
authorized persons only.
Standby power supply by DG
sets shall be ready to be
operated and should be
available 24 hours
Natural and
Mechanical
Ventilation and
Illumination
Shall meet the required
Illumination level as specified in
the IS Code and NBC.
Shall meet the required Ventilation
level as specified in the IS Code
and NBC.
Any disruption to mechanical
ventilation, if provided, shall
be rectified within 24 hours.
Arrangements for natural
ventilation like skylights
ventilators, shafts etc. shall be
cleaned after every 5 days.
(ii) Maintenance of Circulation Areas of International Convention, Exhibition Center
,Hotel& Commercial area / Spaces, etc.: Circulation Area maintenance shall include
the entire house keeping activities requiring routine and periodic maintenance.
Annual maintenance shall be done for accessories like fans, lighting arrangements
etc in these areas.
4. Performance Standards: Intent:
(i) The performance levels define the level at which the proposed facilities are to be
maintained and operated. Performance standards are defined for operation and
maintenance of the facilities and the site environment.
(ii) The obligations of the Operator in respect of Maintenance requirements shall
include:
a) maintaining site environment so as to cause minimum disturbance to the
environment,
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b) ensure that the facilities are operational and rectification of the defects and
deficiencies within the minimum time,
c) ensure that the fixed parameters provided in this RFP are abided by at any
time during the Concession period,
(iii) Notwithstanding anything contrary to specified in this schedule, if the nature and
extent of any defect justifies more time for its repair or rectification as compared to
time specified herein, the Operator shall be entitled to additional time in conformity
with good industry practice. However the Operator shall get prior approval from
the Independent Engineer, for such additional requirements of time.
(iv) Notwithstanding anything to the contrary contained in this schedule, if any defect,
deficiency or deterioration in the project poses danger to the life and property of the
users thereof, the Concessionaire shall promptly take all reasonable measures for
eliminating or minimizing such danger.
5. Routine Maintenance Performance Standards:
Table 2
Performance Standards for Routine Maintenance
Sl.
No Serviceability Indicator
Required
Maintenance Level
Permissible Time Limit for
repairs/rectifications
1.
Power Supply,
Electrical Installations,
Electrical Equipments
shall be functional
Nil
Any disruption in power supply
shall be rectified in six hours.
Standby power supply by DG sets
shall be ready to be operated and
should be available 24 hours
2.
Natural and
Mechanical Ventilation
and Illumination for
multi storey parking, if
any, shall be functional
Nil
Any disruption to mechanical
ventilation if provided shall be
rectified within 24 hours. Sky- lits,
ventilators, shafts etc shall be
cleaned after every 5 days
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Sl.
No Serviceability Indicator
Required
Maintenance Level
Permissible Time Limit for
repairs/rectifications
3.
Boundary Wall shall be
without any Damage /
Breach
Nil
Any damage / breach to the
boundary wall shall be rectified
within three (3) days after their
detection.
4.
There shall be no
standing water on
pavement surface, no
water logging in the
centre
Nil
Immediate measures to be taken
and water logging should be
cleared within four hours.
B
Commercial Space
5.
All Toilets, Urinals,
bathrooms shall be
clean and functional
A minimum of 95%
toilets and urinals
shall be functional at
any given point of
time.
Toilets, Urinals, bathrooms shall
be demarked with suitable sign
boards. These should be kept clean
and hygienic and cleaning shall be
done at least twice daily.
6.
All drinking water
chambers shall be
clean and functional
A minimum of 95%
drinking water
chambers shall be
functional at any
given point of time
These shall be cleaned daily. Water
supply shall be for 24 hours.
Drinking water quality in all the
seasons shall be as per WHO
standards.
7.
Dustbins, spittoons etc.
shall be clean and
functional
A minimum of 95%
Dustbins, spittoons
shall be functional at
any given point of
time
The dustbin shall be emptied after
every six hours or earlier if it is full
or if creates foul smell in the
neighborhood.
8.
All Information
Signage and Display
Boards shall be visible,
legible and functional
Maximum 2%
number of damaged
signage and boards at
any given point of
time
These shall be cleaned once in a
week. Damaged signage and
boards shall be replaced, repaired
within seven days of their
detection
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Sl.
No Serviceability Indicator
Required
Maintenance Level
Permissible Time Limit for
repairs/rectifications
9.
Seating Arrangements
shall not be damaged
Maximum 5%
number of damaged
seats at any given
point of time
Any damaged seat shall be
repaired, replaced within seven
days of detection. These shall be
cleaned daily and checked that
they are firmly fixed/grouted to
the platform with the base.
10.
Power Supply,
Electrical Installations,
Electrical Equipments
shall be functional
Nil
Timely intervention with
Temporary measures within 8
hours, permanent restoration
within 7 days, depending on nature
and intensity of work required as
decided by the Independent
Engineer
11.
Staircases shall be
clean and functional Nil
The staircases shall be cleaned at
least twice a day. Damaged
handrails, risers or treads shall be
repaired within three days after
detection.
12.
Illumination (Lighting)
shall be functional
To meet the required
illumination level as
per national
standards
The ventilators, sky-lights, etc
serving as source of natural
ventilation and other luminaries
for artificial lighting shall be
cleaned once in seven days to
maintain the illumination level.
C Buildings such as Offices/ Administration, etc
13.
Defects in Electricity
gadgetry like bulbs/
lamp shades/ wiring/
etc
Nil
Temporary measures within 4
hours, permanent restoration
within 7 days
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Sl.
No Serviceability Indicator
Required
Maintenance Level
Permissible Time Limit for
repairs/rectifications
14.
Defects in all other
utilities like water
supply/tap/tap
connections/pipe/sewer
age and drainage pipes/
tanks & overflow/
glasses/ window panes/
all other building
furniture
Nil
Timely intervention with
Temporary measures within 8
hours, permanent restoration
within 7 days, depending on nature
and intensity of work required.
E Telecom system/networking
15.
Telecommunication
and Networking
Systems shall be
functional
Nil
Temporary measures within 8
hours, and permanent restoration
within 3 days
G Fire Fighting Equipments
16.
Fire Fighting
Equipments shall be
functional
Nil
Any damage to fire fighting
equipments installed in the
facilities and in public spaces shall
be rectified within 2 days of
detection.Fire extinguishers shall
be replaced before the end of its
expiry date.
The water tank meant for fire
fighting purpose shall remain
flooded with water to its capacity
at all the times.
H Water Tank
17.
Water Tank shall be
clean and functional Nil
Water tank shall be cleaned and
disinfected every month (by usage
of approved chemicals) to ensure
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Sl.
No Serviceability Indicator
Required
Maintenance Level
Permissible Time Limit for
repairs/rectifications
that no inorganic sedimentation
takes place.
6. Periodic Maintenance Performance Standards:
In order to maintain the quality and operational standards of high quality, the periodic
maintenance/renewal activities are proposed for the Project in Table 3.
Table 3
Periodic Maintenance/ Renewal Activities
Sl. Periodic Renewal Activities Time Limit for renewal
1 Repainting of furniture, signages
delineators, markings etc. Minimum once in a year
2 Repainting of Buildings and all other
structures. Minimum once in three years
3
Repainting of carpentry work like
joinery, doors, windows, ventilators,
wooden furniture etc in the offices,
cabins, booths etc.
Minimum once in three years
4 Resurfacing of Pavement
Routine repairs every year and premix
carpet every fourth year. Incase the
pavement is of Rigid type, no periodic
renewal would be required except cleaning
& filling of joints
5 Mechanical Equipment
Minimum once in a year as per
manufacturer’s installation, operation and
maintenance instruction manual
6 Electrical Equipment
Minimum once in a year as per
manufacturer’s installation, operation and
maintenance instruction manual
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7. Performance Standards for Operation:
Table 4
Performance Standards for Operation
Sl. Parameters Performance Indicators
1.
Convention & Exhibition
Center
To remain operational 24 hours a day throughout
the year.
2. Hotel
To remain operational 24 hours a day throughout
the year.
3. Parking Area
To remain operational 24 hours a day throughout
the year.
4. Enquiry Offices
To remain operational 16 hours a day throughout
the year.
5. Information System, Displays
To remain operational 24 hours a day throughout
the year.
6. Toilets
To remain operational 24 hours a day throughout
the year.
7. Water Supply
To remain operational 24 hours a day throughout
the year.
8. Electricity Supply
To remain operational 24 hours a day throughout
the year .
9.
Telecommunication and
Networking Equipment
To remain operational 24 hours a day throughout
the year.
10.
Standby Diesel Generator
Sets
Standby diesel generator sets to supply power to the
Project facilities must be available 24 hours a day,
throughout the year in case of disruption or
breakdown in power supply.
11. Maintenance Office
This shall remain open for 16 hours a day and
throughout the year.
12. Security
To remain functional 24 hours a day throughout the
year
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Appropriate fencing of the site with lighting and
security shall be provided to ensure that there will
be no encroachment on the site.
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Schedule 5: Substitution Agreement
DRAFT SUBSTITUTION AGREEMENT
THIS SUBSTITUTION AGREEMENT is entered into on this the ____ day of ____2017.
AMONGST
1. Punjab Ashok Hotel Company Limited having its registered office at
_______________ (hereinafter referred to as the “Concessioning Authority”
which expression shall unless repugnant to the context or meaning thereof include its
administrators, successors and assigns);
2. [______ Limited], a company incorporated under the provisions of the Companies
Act, 1956 and having its registered office at ______, (hereinafter referred to as the
“Concessionaire” which expression shall unless repugnant to the context or meaning
thereof include its successors and permitted assigns and substitutes);
3. ______ [NAME AND PARTICULARS OF Lenders’ Representative] and having its
registered office at ______,acting for and on behalf of the Senior Lenders as their
duly authorized agent with regard to matters arising out of or relation to this
Agreement (hereinafter referred to as the “Lenders’ Representative”, which
expression shall unless repugnant to the context or meaning thereof include its
successors and substitutes);
WHEREAS:
(A) The Concessioning Authority has entered into a Concession Agreement dated
______ (hereinafter referred to as the “Concession Agreement”) with
________________ (hereinafter referred to as the “Concessionaire”) for the
_____________ (hereinafter referred to as the “Project”) on design, build, operate
and transfer basis (DBOT), a copy of which is annexed hereto and marked as Annex-
A, which forms part of this Substitution Agreement.
(B) Senior Lenders have agreed to finance the Project in accordance with the terms and
conditions set forth in the Financing Agreements.
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(C) Senior Lenders have requested the Concessioning Authority to enter into this
Substitution Agreement for securing their interests through assignment, transfer and
substitution of the Concession to a Nominated Company in accordance with the
provisions of this Agreement and the Concession Agreement.
(D) In order to enable implementation of the Project including its planning, designing,
engineering financing, construction, operation and maintenance, levy, collect,
appropriate Tariffs and User Charges, the Concessioning Authority has agreed and
undertaken to transfer and assign the Concession to a Nominated Company in
accordance with the terms and conditions set forth in this Agreement and the
Concession Agreement.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Substitution Agreement, the following words and expressions shall, unless
repugnant to the context or meaning thereof, have the meaning hereinafter
respectively assigned to them:
“Agreement” means this Substitution agreement and any amendment thereto
made in accordance with the provisions contained in this Agreement;
“FinancialDefault” means occurrence of a material breach of the terms and
conditions of the Financing Agreements or a continuous default in Debt Service by
the Concessionaire for a minimum period of 3 (three) months;
“Lenders’Representative” means the person referred to as the Lenders’
Representative in the foregoing Recitals;
“NominatedCompany” means a company, incorporated under the provisions of
the Companies Act, 1956/2013, selected by the Lenders’ Representative, on behalf of
Senior Lenders, and proposed to the Concessioning Authority for
assignment/transfer of the Concession as provided in this Agreement;
“Notice of Financial Default” shall have the meaning ascribed thereto in Clause
3.2.1; and
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“Parties” Means the parties to this Agreement collectively and “Party” shall mean
any of the Parties to this Agreement individually.
1.2 Interpretation
1.2.1 Reference to Lenders' Representative shall, unless repugnant to the context or
meaning thereof, mean reference to the Lenders' Representative, acting for and on
behalf of Senior Lenders.
1.2.2 References to Clauses are, unless stated otherwise, references to Clauses of this
Agreement.
1.2.3 The words and expressions beginning with capital letters and defined in this
Agreement shall have the meaning ascribed thereto herein, and the words and
expressions used in this Agreement and not defined herein but defined in the
Concession Agreement shall, unless repugnant to the context, have the meaning
ascribed thereto in the Concession Agreement.
1.2.4 The rules of interpretation stated in Clauses 1.2, 1.3 and 1.4 of the Concession
Agreement shall apply, mutatis mutandis, to this Agreement.
2 ASSIGNMENT
2.1 Assignment of rights and title
The Concessionaire hereby assigns the rights, title, benefits and interest in the
Concession toand in favour of the Lenders' Representative pursuant to and in
accordance with the provisions of this Agreement and as per the provisions of
Articles 2.1(d), 9 and 11.1 of the Concession Agreement by way of security in respect
of financing by the Senior Lenders under the Financing Agreements.
3 SUBSTITUTION OF THE CONCESSIONAIRE
3.1 Rights of substitution
3.1.1 Pursuant to the rights, title, benefit and interest assigned under Clause 2.1, the
Lenders' Representative shall be entitled to substitute the Concessionaire by a
Nominated Company under and in accordance with the provisions of this
Agreement and the Concession Agreement.
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3.1.2 The Concessioning Authority hereby agrees to substitute the Concessionaire by
endorsement on the Concession Agreement in favour of the Nominated Company
selected by the Lenders' Representative in accordance with this Agreement. (For the
avoidance of doubt, the Senior Lenders or the Lenders' Representative shall not be
entitled to operate and maintain the Project as Concessionaire either individually or
collectively).
3.2 Substitution upon occurrence of Financial Default
3.2.1 Upon occurrence of a Financial Default, the Lenders' Representative may issue a
notice to the Concessionaire (the "Notice of Financial Default") along with
particulars thereof, and send a copy of the same to the Concessioning Authority
for its information and record. A Notice of Financial Default under this Clause 3
shall be conclusive evidence of such Financial Default and it shall be final and
binding upon the Concessionaire for the purposes of this Agreement.
3.2.2 Upon issue of Notice of Financial Default hereunder, the Lenders' Representative may,
without prejudice to any of its rights or remedies under this Agreement or the
Financing Agreements, substitute the Concessionaire by the Nominated Company in
accordance with the provisions of this Agreement.
3.2.3 At any time after the Lenders' Representative has issued a Notice of Financial
Default, it may by notice require the Concessioning Authority to suspend all the
rights of the Concessionaire and undertake the operation and maintenance of the
Project in accordance with the provisions of the Concession Agreement, and
upon receipt of such notice, the Concessioning Authority shall undertake
Suspension under and in accordance with the provisions of the Concession
Agreement. The aforesaid Suspension shall be revoked upon substitution of the
Concessionaire by a Nominated Company, and in the event such substitution is not
completed within 180 (one hundred and eighty) days from the date of such
Suspension, the Concessioning Authority may terminate the Concession
Agreement forthwith by issuing a Termination Notice in accordance with the
provisions of the Concession Agreement; provided that upon written request from
the Lenders' Representative and the Concessionaire, the Concessioning Authority
may extend the aforesaid period of 180 (one hundred and eighty) days by a period
not exceeding 90 (ninety) days.
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3.3 Substitution upon occurrence of Concessionaire Default
3.3.1 Upon occurrence of a Concessionaire Default, the Concessioning Authority shall by
a notice inform the Lenders' Representative of its intention to issue a Termination
Notice and grant 15 (fifteen) days time to the Lenders' Representative to make a
representation, stating the intention to substitute the Concessionaire by a
Nominated Company.
3.3.2 In the event that the Lenders' Representative makes a representation to the
Concessioning Authority within the period of 15 (fifteen) days specified in Clause
3.3.1, stating that it intends to substitute the Concessionaire by a Nominated
Company, the Lenders' Representative shall be entitled to undertake and complete
the substitution of the Concessionaire by a Nominated Company in accordance with
the provisions of this Agreement within a period of 180 (one hundred and eighty)
days from the date of such representation, and the Concessioning Authority shall
either withhold Termination or undertake Suspension during the aforesaid period of
180 (one hundred and eighty) days; provided that upon written request from the
Lenders' Representative and the Concessionaire, the Concessioning Authority shall
extend the aforesaid period of 180 (one hundred and eighty) days by a period not
exceeding 90 (ninety) days.
3.4 Procedure for substitution
3.4.1 The Concessioning Authority and the Concessionaire hereby agree that on or after
the date of Notice of Financial Default or the date of representation to the
Concessioning Authority under Clause 3.3.2, as the case may be, the Lenders'
Representative may, without prejudice to any other rights or remedies of the Senior
Lenders, invite, negotiate and procure offers, either by private negotiations or public
auction or tenders for the take over and transfer of the Project including the
Concession to the Nominated Company upon such Nominated Company's
assumption of the liabilities and obligations of the Concessionaire towards the
Concessioning Authority under the Concession Agreement and towards the Senior
Lenders under the Financing Agreements.
3.4.2 To be eligible for substitution in place of the Concessionaire, the Nominated
Company shall be required to fulfill the eligibility criteria that were laid down by
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the Concessioning Authority for short listing the bidders for award of the
Concession; provided that the Lenders' Representative may represent to the
Concessioning Authority that all or any of such criteria may be waived in the interest
of the Project, and if the Concessioning Authority determines that such waiver
shall not have any material adverse effect on the Project, it may waive all or any
of such eligibility criteria.
3.4.3 Upon selection of a Nominated Company, the Lenders' Representative shall request
the Concessioning Authority to:
(a) accede to transfer to the Nominated Company the right to construct,
implement, operate and maintain the Project in accordance with the provisions
of the Concession Agreement;
(b) endorse and transfer the Concession to the Nominated Company, on the same
terms and conditions, for the residual Concession Period; and
(c) enter into a Substitution Agreement with the Lenders' Representative and the
Nominated Company on the same terms as are contained in this Agreement.
3.4.4 If the Concessioning Authority has any objection to the transfer of Concession in
favour of the Nominated Company in accordance with this Agreement, it shall within
15 (fifteen) days from the date of proposal made by the Lenders' Representative, give a
reasoned order after hearing the Lenders' Representative. If no such objection is
raised by the Concessioning Authority, the Nominated Company shall be deemed to
have been accepted. The Concessioning Authority thereupon shall transfer and
endorse the Concession within 7 (seven) days of its acceptance/deemed acceptance
of the Nominated Company; provided that in the event of such objection by the
Concessioning Authority, the Lenders' Representative may propose another
Nominated Company whereupon the procedure set forth in this Clause 3.4 shall be
followed for substitution of such Nominated Company in place of the Concessionaire
3.5 Selection to be binding
The decision of the Lenders' Representative and the Concessioning Authority in
selection of the Nominated Company shall be final and binding on the
Concessionaire TheConcessionaire irrevocably agrees and waives any right to
challenge the actions of the Lenders' Representative or the Senior Lenders or the
Concessioning Authority taken pursuant to this Agreement including the
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transfer/assignment of the Concession in favour of the Nominated Company. The
Concessionaire agrees and confirms that it shall not have any right to seek
revaluation of assets of the Project or the Concessionaire's shares. It is hereby
acknowledged by the Parties that the rights of the Lenders' Representative are
irrevocable and shall not be contested in any proceedings before any court.
TheConcessioning Authority and the Concessionaire shall not have any right or
remedy to prevent, obstruct or restrain the Concessioning Authority or the Lenders'
Representative from effecting or causing the transfer by substitution and
endorsement of the Concession as requested by the Lenders' Representative.
4 PROJECT AGREEMENTS
4.1 Substitution of Nominated Company in Project Agreements
The Concessionaire shall ensure and procure that each Project Agreement contains
provisions that entitle the Nominated Company to step into such Project Agreement,
in place and substitution of the Concessionaire in the event of such Nominated
Company's assumption of the liabilities and obligations of the Concessionaire under
the Concession Agreement.
5 TERMINATION OF CONCESSION AGREEMENT
5.1 Termination upon occurrence of Financial Default
At any time after issue of a Notice of Financial Default, the Lenders' Representative
may by a notice in writing require the Concessioning Authority to terminate the
Concession Agreement forthwith, and upon receipt of such notice, the
Concessioning Authority shall undertake Termination under and in accordance
with the provisions of Article 6 of the Concession Agreement.
5.2 Termination when no Nominated Company is selected
In the event that no Nominated Company acceptable to the Concessioning Authority
is selected and recommended by the Lenders' Representative within the period of
180 (one hundred and eighty) days or any extension thereof as set forth in Clause
3.3.2, the Concessioning Authority may terminate the Concession Agreement
forthwith in accordance with the provisions thereof.
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5.3 Realisation of Debt Due
The Concessioning Authority and the Concessionaire hereby acknowledge and
agree that, without prejudice to their any other right or remedy, the Lenders'
Representative is entitled to receive from the Concessionaire, without any further
reference to or consent of the Concessionaire, the Termination Payments upon
Termination of the Concession Agreement.
6 DURATION OF THE AGREEMENT
6.1 Duration of the Agreement
This Agreement shall come into force from the date hereof and shall expire at the
earliest to occur of the following events:
(a) Termination of the Agreement; or
(b) no sum remains to be advanced, or is outstanding to the Senior Lenders, under
the Financing Agreements.
7 INDEMNITY
7.1 General indemnity
7.1.1 The Concessionaire will indemnify, defend and hold the Concessioning
Authority and the Lenders' Representative harmless against any and all proceedings,
actions and third party claims for any loss, damage, cost and expense of whatever
kind and nature arising out of any breach by the Concessionaire of any of its
obligations under this Agreement or on account of failure of the Concessionaire to
comply with Applicable Laws and Applicable Permits.
7.1.2 The Concessioning Authority will indemnify, defend and hold the Concessionaire
harmless against any and all proceedings, actions and third party claims for
any loss, damage, cost and expense arising out of failure of the Concessioning
Authority to fulfil any of its obligations under this Agreement, materially and
adversely affecting the performance of the Concessionaire's obligations under the
Concession Agreement or this Agreement, other than any loss, damage, cost and
expense, arising out of acts done in discharge of lawful functions by the Concessioning
Authority, its officers, servants and agents.
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7.1.3 The Lenders' Representative will indemnify, defend and hold the Concessionaire
harmless against any and all proceedings, actions and third party claims for any
loss, damage, cost and expense arising out of failure of the Lenders' Representative to
fulfil its obligations under this Agreement, materially and adversely affecting the
performance of the Concessionaire's obligations under the Concession Agreement,
other than any loss, damage, cost and expense, arising out of acts done in discharge
of lawful functions by the Lenders' Representative, its officers, servants and agents.
7.2 Notice and contest of claims
In the event that any Party hereto receives a claim from a third party in respect of
which it is entitled to the benefit of an indemnity under Clause 7.1 or in respect of
which it is entitled to reimbursement (the "Indemnified Party"), it shall notify the
other Party responsible for indemnifying such claim hereunder (the "Indemnifying
Party") within 15 (fifteen) days of receipt of the claim and shall not settle or pay the
claim without the prior approval of the Indemnifying Party, such approval not to be
unreasonably withheld or delayed. In the event that the Indemnifying Party wishes to
contest or dispute the claim, it may conduct the proceedings in the name of the
Indemnified Party and shall bear all costs involved in contesting the same. The
Indemnified Party shall provide all cooperation and assistance in contesting any
claim and shall sign all such writings and documents as the Indemnifying Party may
reasonably require.
8 DISPUTE RESOLUTION
8.1 Dispute resolution
8.1.1 Any dispute, difference or claim arising out of or in connection with this Agreement
which is not resolved amicably shall be decided by reference to arbitration to a Board of
Arbitrators comprising one nominee each of the Concessioning Authority,
Concessionaire and the Lenders' Representative. Such arbitration shall be held in
accordance with the provisions of the Arbitration and Conciliation Act, 1996.
8.1.2 The Arbitrators shall issue a reasoned award and such award shall be final and
binding on the Parties. The venue of arbitration shall be New Delhi and the
language of arbitration shall be English.
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9 MISCELLANEOUS PROVISIONS
9.1 Governing law and jurisdiction
This Agreement shall be construed and interpreted in accordance with and governed
by the laws of India, ansubject to clause 8.1 above, the Courts at New Delhi shall have
exclusive jurisdiction over all matters arising out of or relating to this Agreement.
9.2 Priority of agreements
In the event of any conflict between the Concession Agreement and this Agreement,
the provisions contained in the Concession Agreement shall prevail over this
Agreement.
9.3 Alteration of terms
All additions, amendments, modifications and variations to this Agreement shall be
effectual and binding only if in writing and signed by the duly
authorisedrepresentatives of the Parties.
9.4 Waiver
9.4.1 Waiver by any Party of a default by another Party in the observance and performance of
any provision of or obligations under this Agreement:
(a) shall not operate or be construed as a waiver of any other or subsequent default
hereof or of other provisions of or obligations under this Agreement;
(b) shall not be effective unless it is in writing and executed by a duly authorised
representative of the Party; and
(c) shall not affect the validity or enforceability of this Agreement in any manner.
9.4.2 Neither the failure by either Party to insist on any occasion upon the performance of the
terms, conditions and provisions of this Agreement or any obligation thereunder nor
time or other indulgence granted by a Party to another Party shall be treated or deemed
as waiver of such breach or acceptance of any variation or the relinquishment of any
such right hereunder.
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9.5 No third party beneficiaries
This Agreement is solely for the benefit of the Parties and no other person or entity shall
have any rights hereunder.
9.6 Survival
9.6.1 Termination of this Agreement:
(d) shall not relieve the Parties of any obligations hereunder which expressly or by
implication survive termination hereof; and
(e) except as otherwise provided in any provision of this Agreement expressly
limiting the liability of either Party, shall not relieve either Party of any
obligations or liabilities for loss or damage to the other Party arising out of or
caused by acts or omissions of such Party prior to the effectiveness of such
termination or arising out of such termination.
9.6.2 All obligations surviving the cancellation, expiration or termination of this
Agreement shall only survive for a period of 3 (three) years following the date of such
termination or expiry of this Agreement.
9.7 Severability
If for any reason whatever any provision of this Agreement is or becomes invalid,
illegal or unenforceable or is declared by any court of competent jurisdiction or any
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected in any manner, and
the Parties will negotiate in good faith with a view to agreeing to one or more
provisions which may be substituted for such invalid, unenforceable or illegal
provisions, as nearly as is practicable to such invalid, illegal or unenforceable
provision. Failure to agree upon any such provisions shall not be subject to dispute
resolution under Clause 8 of this Agreement or otherwise.
9.8 Successors and assigns
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This Agreement shall be binding on and shall inure to the benefit of the Parties and
their respective successors and permitted assigns.
9.9 Notices
All notices or other communications to be given or made under this Agreement shall be
in writing, shall either be delivered personally or sent by courier or registered post
with an additional copy to be sent by facsimile. The address for service of each
Party and its facsimile number are set out under its name on the signing pages hereto.
A notice shall be effective upon actual receipt thereof, save that where it is received
after 5.30 (five thirty) p.m. on any day, or on a day that is a public holiday, the notice
shall be deemed to be received on the first working day following the date of actual
receipt. It is hereby agreed and acknowledged that any Party may by notice change
the address to which such notices and communications to it are to be delivered or
mailed. Such change shall be effective when all the Parties have notice of it.
9.10 Language
All notices, certificates, correspondence and proceedings under or in connection
with this Agreement shall be in English.
9.11 Authorised representatives
Each of the Parties shall by notice in writing designate their respective
authorisedrepresentatives through whom only all communications shall be made. A
Party hereto shall be entitled to remove and/or substitute or make fresh
appointment of such authorised representative by similar notice.
9.12 Original Document
This Agreement may be executed in three counterparts, each of which
whereexecuted and delivered shall constitute an original of this Agreement.
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED
THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.
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SIGNED, SEALED AND SIGNED, SEALED AND
DELIVERED DELIVERED
For and on behalf of For and on behalf of
CONCESSIONAIRE by: CONCESSIONING AUTHORITY by:
(Signature) (Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address)
(Fax No.) (Fax No.)
SIGNED, SEALED AND DELIVERED
For and on behalf of
SENIOR LENDERS by the Lenders' Representative:
(Signature)
(Name)
(Designation)
(Address)
(Fax)
In the presence of:
1
2.
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SCHEDULE 6(A)
FORMAT OF CONSTRUCTION PERFORMANCE SECURITY (DURING
CONSTRUCTION PERIOD)
(BANK GUARANTEE)2
PERFORMANCE BANK GUARANTEE OF CONCESSIONAIRE
Bank Guarantee No.: ______ Dated:
_________________
Issuer of Bank Guarantee:
2 To be issued by a Scheduled Bank in India
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__________________(Name of the Bank)
__________________________________
__________________________________
(hereinafter referred to as the “Bank”)
Beneficiary of Bank Guarantee:
Punjab Ashok Hotel Company Limited
Nature of Bank Guarantee:
Unconditional and irrevocable Bank Guarantee.
Context of Bank Guarantee
Performance during Construction Period in respect of Concession Agreement (hereinafter
referred to as the “Agreement”) to be entered between Punjab Ashok Company Limited
(hereinafter referred to as the “Concessioning Authority”) and _______________
(hereinafter referred to as the “Concessionaire”) for the ______________ (hereinafter
referred to as the “Project”), provided however, such context of the Bank Guarantee or
reference to the Agreement in this Bank Guarantee shall in no manner to be relied upon at
any stage to adversely affect or dilute the unconditional and irrevocable nature of this Bank
Guarantee. The title of this Guarantee i.e. “Construction Performance Security” shall in no
manner and at no stage be relied upon to adversely affect or dilute the unconditional and
irrevocable nature of this Bank Guarantee. The Contract of Bank Guarantee is an
independent Contract between the Bank and Concessioning Authority and is not dependent
upon execution or performance of any Agreement between the Concessioning Authority and
__________(name of the bidder).
Operative part of the Bank Guarantee:
1. At the request of the Concessionaire, we ________________________,
___________________ (name and address of the bank), hereinafter referred to
as the “Bank”), do hereby unconditionally and irrevocably affirm and undertake that
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we are the Guarantor and are responsible to the Concessioning Authority i.e. the
beneficiary on behalf of the Concessionaire, upto a total sum of Rs. ____ Crores
(Rupees ______ Crores Only), such sum being payable by us to the Concessioning
Authority immediately upon receipt of first written demand from the Concessioning
Authority.
2. We unconditionally and irrevocably undertake to pay to the Concessioning Authority
on an immediate basis, upon receipt of first written demand from the Concessioning
Authority and without any cavil or argument or delaying tactics or reference by us to
Concessionaire and without any need for the Concessioning Authority to convey to us
any reasons for invocation of the Guarantee or to prove the failure to perform on the
part of the Concessionaire or to show grounds or reasons for the demand or the sum
specified therein, the entire sum or sums within the limits of Rs. ____ Crores
(Rupees ____ Crores Only).
3. We hereby waive the necessity of the Concessioning Authority demanding the said
amount from Concessionaire prior to serving the Demand Notice upon us.
4. We further agree and affirm that no change or addition to or other modification to
the terms of the Agreement, shall in any way release us from any liability under this
unconditional and irrevocable Guarantee and we hereby waive notice of any such
change, addition or modification. We further agree with the Concessioning Authority
that the Concessioning Authority shall be the sole and the exclusive judge to
determine that whether or not any sum or sums are due and payable to him by
Concessionaire, which are recoverable by the Concessioning Authority by invocation
of this Guarantee.
5. This Guarantee will not be discharged due to the change in constitution of the Bank
or the Concessionaire. We undertake not to withdraw or revoke this Guarantee
during its currency / validity period, except with the previous written consent of the
Concessioning Authority.
6. We unconditionally and irrevocably undertake to pay to the Concessioning Authority,
any amount so demanded not exceeding Rs. ____ Crores (Rupees _____ Crores
Only) notwithstanding any dispute or disputes raised by Concessionaire or anyone
else in any suit or proceedings before any dispute review expert, arbitrator, court,
tribunal or other authority, our liability under this Guarantee being absolute,
unconditional and unequivocal. The payment so made by us under this Guarantee to
the Concessioning Authority, shall be a valid discharge of our liability for payment
under this Guarantee and the Concessionaire shall be a valid discharge of our liability
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for payment under this Guarantee and the Concessionaire shall have no claim against
us for making such payment.
7. This unconditional and irrevocable Guarantee shall remain in full force and effect
and shall remain valid until ______________
Notwithstanding anything contained herein:
1. Our liability under this Bank Guarantee shall not exceed Indian Rs. ____Crores
(Rupees ____ Crores Only).
2. This unconditional and irrevocable Bank Guarantee shall be valid w.e.f.
__________to ____________.
3. We are liable to pay the guaranteed amount or any part thereof under this
unconditional and irrevocable Bank Guarantee only and only if the Concessioning
Authority serves upon us a written claim or demand on or before __________.
__________________
Authorized Signatory
For Bank
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SCHEDULE 6 (B)
FORMAT OF OPERATION AND MAINTENANCE PERFORMANCE SECURITY
(DURING O&M PERIOD)
(BANK GUARANTEE)3
PERFORMANCE BANK GUARANTEE OF CONCESSIONAIRE
Bank Guarantee No.: ______ Dated:
_________________
3 To be issued by a Scheduled Bank in India
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Issuer of Bank Guarantee:
__________________(Name of the Bank)
__________________________________
__________________________________
(hereinafter referred to as the “Bank”)
Beneficiary of Bank Guarantee:
Punjab Ashok Hotel Company Limited
Nature of Bank Guarantee:
Unconditional and irrevocable Bank Guarantee.
Context of Bank Guarantee
Performance during Operation & Maintenance Period in respect of Concession Agreement
dated ______ (hereinafter referred to as the “Agreement”) entered between
_______________(hereinafter referred to as the “PAHCL” or “Concessioning Authority”)
and_______________ (hereinafter referred to as the “Concessionaire”) for the
_________________ (hereinafter referred to as the “Project”), provided however, such
context of the Bank Guarantee or reference to the Agreement in this Bank Guarantee shall in
no manner to relied upon at any stage to adversely affect or dilute the unconditional and
irrevocable nature of this Bank Guarantee. The title of this Guarantee i.e. “O&M Performance
Security” shall in no manner and at no stage be relied upon to adversely affect or dilute the
unconditional and irrevocable nature of this Bank Guarantee. The Contract of Bank
Guarantee is an independent Contract between the Bank and PAHCL and is not dependent
upon execution or performance of any Agreement between PAHCL and __________(name
of the bidder).
Operative part of the Bank Guarantee:
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1. At the request of the Concessionaire, we ________________________,
___________________ (name and address of the bank), hereinafter referred to
as the “Bank”), do hereby unconditionally and irrevocably affirm and undertake that
we are the Guarantor and are responsible to the PAHCL i.e. the beneficiary on behalf
of the Concessionaire, upto a total sum of Rs. ___ Crores (Rupees ___ Crores Only),
such sum being payable by us to PAHCL immediately upon receipt of first written
demand from the PAHCL.
2. We unconditionally and irrevocably undertake to pay to the PAHCL on an immediate
basis, upon receipt of first written demand from the PAHCL and without any cavil or
argument or delaying tactics or reference by us to Concessionaire and without any
need for the PAHCL to convey to us any reasons for invocation of the Guarantee or to
prove the failure to perform on the part of the Concessionaire or to show grounds or
reasons for the demand or the sum specified therein, the entire sum or sums within
the limits of Rs. ____ Crores (Rupees ___ Crores Only).
3. We hereby waive the necessity of the PAHCL demanding the said amount from
Concessionaire prior to serving the Demand Notice upon us.
4. We further agree and affirm that no change or addition to or other modification to
the terms of the Agreement, shall in any way release us from any liability under this
unconditional and irrevocable Guarantee and we hereby waive notice of any such
change, addition or modification. We further agree with the PAHCL that the PAHCL
shall be the sole and the exclusive judge to determine that whether or not any sum or
sums are due and payable to him by Concessionaire, which are recoverable by the
PAHCL by invocation of this Guarantee.
5. This Guarantee will not be discharged due to the change in constitution of the Bank
or the Concessionaire. We undertake not to withdraw or revoke this Guarantee
during its currency / validity period, except with the previous written consent of the
PAHCL.
6. We unconditionally and irrevocably undertake to pay to the PAHCL, any amount so
demanded not exceeding Rs.____ Crores (Rupees ____ Crores Only)
notwithstanding any dispute or disputes raised by Concessionaire or anyone else in
any suit or proceedings before any dispute review expert, arbitrator, court, tribunal or
other authority, our liability under this Guarantee being absolute, unconditional and
unequivocal. The payment so made by us under this Guarantee to the PAHCL, shall
be a valid discharge of our liability for payment under this Guarantee and the
Concessionaire shall have no claim against us for making such payment.
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7. This unconditional and irrevocable Guarantee shall remain in full force and effect
and shall remain valid until ______________
Notwithstanding anything contained herein:
1. Our liability under this Bank Guarantee shall not exceed Indian Rs. ____Crores
(Rupees _____ Crores Only).
2. This unconditional and irrevocable Bank Guarantee shall be valid w.e.f.
__________to ____________.
2. We are liable to pay the guaranteed amount or any part thereof under this
unconditional and irrevocable Bank Guarantee only and only if the PAHCL serves
upon us a written claim or demand on or before __________.
__________________
Authorized Signatory
For Bank
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SCHEDULE 7
VALUE OF PERFORMANCE SECURITY
The value of Performance Security for the various phases of the Project shall be as set out in
this Schedule.
Type of
Security
Value of
Security
Instrument Duration
From
Duration
To
Construction
Performance
security
Rs. 75,00,000
(Rs Seventy Five
Lakhs only)
Bank Guarantee
in the format as
provided in
Schedule- 6(A)
Before
signing of
the
Concession
Agreement
Till issuance
of Project
Constructio
n
Completion
Certificate
O&M
Performance
security
Rs__________
_ (Rs _____
only)
Bank Guarantee
in the format as
provided in
Schedule- 6(B)
Date of issue
of Project
Construction
Completion
Certificate
Two months
after expiry
of
Concession
Period
The O&M Performance Security shall be enhanced at the rate such that
the O&M performance security is maintained at the level of 1.5 times of
the ACF payable for the year.
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SCHEDULE 8
DRAFT PROJECT SITE LEASE DEED
This Lease made at _________the _________ day of ________________ Two
Thousand Seventeen
BETWEEN
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Punjab Ashok Hotel Company Limited and having its registered office at
______________,hereinafter referred to as the “Lessor”, (which expression shall, unless
the context does not so admit, include its successors and assigns) of the One Part;
AND
M/s _______________________________, a Company Incorporated under the
Companies Act, 1956 and having its registered office at ___________________
hereinafter called “the Lessee” (which expression shall unless the context does not so
admit includes its successor or successors in business and permitted assigns) of the Other
Part;
WHEREAS
A. Punjab Ashok Hotel Company Limited (hereinafter referred to as the “Concessioning
Authority” or “PAHCL” or the “Lessor”) has vide the Concession Agreement dated
_________ (hereinafter “Concession Agreement”) entered between and
_______________ (hereinafter referred to as the “Concessionaire” or the
“Lessee”) granted Concession to ___________ to plan, design, finance, construct,
develop, operate and maintain a minimum Three Star Hotel at _______
(hereinafter referred to as the “Project”) on a Design, Build, Operate and Transfer
(DBOT) basis and to determine, levy, demand, collect, retain and appropriate Tariffs
and Fees from the Users of the Project Facility.
B. The vesting of the land comprising the Project Site and all rights relating thereto with
the Concessionaire by the Concessioning Authority, under a valid and binding lease
deed in a form satisfactory to the Concessionaire, is specified in the Concession
Agreement as a Condition Precedent to the Concessionaire undertaking its
obligations under the Concession Agreement.
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C. In order to satisfy this Condition Precedent of the Concession Agreement, the Lessor
hereby vests with the Lessee the land owned by it comprising the Project Site on the
terms and conditions and subject to the covenants and stipulations hereinafter
contained.
NOW THIS INDENTURE OF LEASE WITNESSETH AS FOLLOWS:
1. The capitalised terms contained herein shall, unless the context otherwise requires,
have the same meaning as ascribed to them in the Concession Agreement.
2. The following terms shall have the meaning as hereunder:
(a) Deed means this Lease Deed;
(b) Appendix means any of the appendices, supplements and documents
annexed to this Deed;
(c) Concession Agreement shall mean the Concession Agreement dated
_____________ entered into between PAHCL and ________; and a copy
of which is annexed hereto and marked as Appendix-B to form part of this
Lease Deed.
(d) Demised Premises means all the lands which are described, delineated and
shown in Appendix “A” hereto and which comprise the Project Site and are
owned by the Lessor;
(e) Parties shall mean Lessor and Lessee herein;
(f) Lessor means the Concessioning Authority;
(g) Lessee means the Concessionaire or ___________.
3. Interpretation
(a) Words denoting the singular shall include the plural and vice-versa;
(b) Words denoting a person shall include an individual, corporation, company,
partnership firm, joint ventures, trust or other entity;
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(c) Headings and bold typeface are only for convenience and shall be ignored for
the purposes of interpretation;
(d) Reference to any legislation or law or to any provision thereof shall include
references to any such law as it may, after the date of this Deed, from time to
time be amended, supplemented or re-enacted;
(e) References to the word “include” or “including” shall be construed without
limitation;
(f) References to this Deed or to any other agreement or deed or other
instrument shall be construed as a reference to such agreement, deed, or
other instrument as the same may from time to time be amended, varied,
supplemented or novated;
(g) Reference to any Party to this Deed or any other agreement or deed or other
instrument shall include its successors or permitted assigns;
(h) A reference to a section, Article, paragraph or Appendix is, unless indicated to
the contrary, a reference to a section, Article, paragraph or Appendix to this
Deed;
(i) The Appendices to this Deed are a part of this Deed and shall be enforced as if
they were expressly set out in the body of this Deed; and
(j) Any agreement, consent, approval, authorisation, proposal, notice,
communication, information or report required under or pursuant to this
Deed from or by any Party shall be valid and effectual only if it is in writing
under the hand of the duly authorised representative of such Party in this
behalf and not otherwise.
4. The Lessor hereby demises the Demised Premises unto the Lessee under the terms of
this Deed from the ____ day of _____ 2017 for a period, which shall be co-
terminous with the terms of the Concession Agreement and shall be extended or
terminated at a prior date to coincide with the Concession Period. The Lessor hereby
undertakes that it shall not terminate this Deed, except upon the due and valid
termination of the Concession Agreement.
5. In consideration of the Concession Agreement dated _______ between the Lessor
and the Lessee and in consideration of the premium herein reserved and the
covenants on the part of the Lessee, the Lessor hereby demises unto the Lessee the
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Demised Premises without interruption or interference, free from Encumbrances and
together with the full and free right and liberty of way and passage and other rights in
relation thereto, to implement the Project with delivery of Vacant Possession thereof.
6. The Lessee shall pay unto the Lessor an annual rent of Re 1/- as lease rental, which
shall be paid as an advance lease rental in single lump sum payment of Rs. 33/- (Rupees
Thirty three Only) on or prior to the date upon which this deed is executed.
7. The Lessor hereby vests the Demised Premises with the Lessee along with all
Easementary Rights, free from any Encumbrance; provided that the Lessee shall
remove the structures and public utilities at, on, over the Demised Premises at its
cost and expense and the Lessor shall render all necessary assistance in this behalf.
8. The Lessor hereby vests the Demised Premises with the Lessee under this Deed for
the purpose of implementing the Project, including for the purposes of planning,
designing, engineering, financing, construction, operation and maintenance of the
Project Facility and to develop, construct, operate and maintain all facilities,
structures, buildings, works and activities whatsoever as may be authorised under the
rights granted to the Lessee in accordance with the terms of the Concession
Agreement or otherwise approved by the Lessor.
9. The Parties hereby agree that the Lessee shall not mortgage, transfer or otherwise
encumber the Demised Premises and/or any or all of its rights and interest in relation
theretoin the form of lease, sub-lease, license, right-of-way or otherwise create a
security interest thereon in favour of the Lenders for the purpose of enabling
Financing of the Project and for securing finances for permitted activities or purposes
under the Concession Agreement. However, for the purposes of enabling financing of
the Project, the Lessee shall have the right to mortgage, transfer, assign etc its rights,
in favour of Senior Lenders, as per the provisions of the Concession Agreement.
10. The Lessor vests the Lessee with the right, without requiring any prior permission of
the Lessor, to vest with the Lenders the power to take over the control over,
possession of and all rights and interests in relation to the Demised Premises by
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appointing a Substitute Entity (nominated company) to replace the Concessionaire
and to perform the Concessionaire’s obligations hereunder upon the occurrence of an
Event of Default by the Concessionaire under the Concession Agreement or any
Project Agreement (“Lenders’ Step-In Rights”). The Lessor agrees and recognises that
the appointment of such Substitute Entity pursuant upon the exercise of the Lenders’
Step-In Rights shall not in any way constitute an Event of Default under/ or a
violation of the terms of this Deed, and that such Substitute Entity shall be entitled to
all the rights accruing to the Concessionaire under this Deed. The Lessor hereby
undertakes to novate this Deed in favour of the Substitute Entity (for the avoidance of
doubts, the novation shall not involve any amendment of this Deed other than an
amendment of the name of the Party defined as “Lessee” in this Deed) and at the
request of the Lenders execute any documentation concerning or relating to the
novation.
11. In the event of termination of the Concession Agreement by efflux of time or
otherwise, this Lease Deed shall stand terminated and the Concessionaire shall hand
over the Vacant Possession of the Project Site to the Concessioning Authority or its
nominated agency. And the Concessionaire, its contractors, sub-contractors, agents,
employees and Licensees shall henceforth vacate the Project Site.
12. The Lessor hereby covenants with the Lessee as under:
(a) That it shall not increase the lease rental due and payable by the Lessee under
Clause 6 hereof;
(b) That it shall not interfere with or impede in any manner or otherwise limit,
restrict or impose any conditions or restrictions on the complete, free and full
enjoyment and use of the Demised Premises and all rights in relation thereto
by the Lessee,
(c) It shall not interfere in or impede in any manner or otherwise limit, restrict or
impose conditions in relation to: (i) to the development, construction,
implementation, operation and maintenance of the Facility; (ii) the
implementation of the Project by the Lessee; and (iii) the possession, control
and use by the Lessee of the Demised Premises, the Facility constructed
thereon and any other facilities developed in the course of implementation of
the Concession Agreement or otherwise with the approval of the Lessor;
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(d) That except the lease rental specified in Clause 6 hereof, it shall not levy any
fee, rental, tax or any other charge on the Lessee for the lease of the Demised
Premises;
(e) That it has clear and marketable title to and is in lawful possession of the
Demised Premises and that there is no litigation, claim, demand or any
proceedings pending before any Competent Authority in respect of the
acquisition of or the Lessor’s title to or possession of the Demised Premises
and the Lessee shall have complete, lawful and uninterrupted Vacant
Possession, control and use of the Demised Premises; and
(f) That it shall not terminate this Deed, except upon the due and valid
termination of the Concession Agreement in accordance with the terms
thereof.
13. The Lessee hereby covenants with the Lessor as follows:
(a) That it shall develop, establish, design, construct, implement and commence
Commercial Operations of the Facility as per its obligations under the
Concession Agreement and complete the construction of the Facility within
the time period specified thereof in the Concession Agreement;
(b) That it shall operate and maintain the Facility or cause it to be operated and
maintained in accordance with the Concession Agreement;
(c) That it shall observe and perform all terms, covenants, conditions and
stipulations of this Deed;
(d) That it shall inform the Lessor about encroachments on the Demised Premises
that are affecting the performance of its rights under the Concession
Agreement. The Lessee shall assist the Lessor in removing these
encroachments; and
(e) That it shall pay all the applicable stamp duty and registration charges for the
proper and valid execution and registration of this Deed.
14. 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;
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(b) It has taken all necessary actions to authorise the execution, delivery and
performance of this Deed; and
(c) This Deed constitutes its legal, valid and binding obligations that shall be
enforceable against it in accordance with the terms hereof.
15. The Parties hereby acknowledge and specify that this Deed is being executed for the
benefit of the Lessee and the Lessee shall have the right to enforce this Deed through
specific performance. The Parties further agree that:
(a) The failure by a Party to perform its obligations under this Deed and any
breach of covenants or undertakings given and provided for in this Deed by
the Party shall amount to an Event of Default under the Concession
Agreement (“Event of Default”).
(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 provisions of Article 7 of the Concession Agreement.
(c) All notices under the terms of this Deed shall be sent either by hand, facsimile
or courier to the following addresses:
Lessor :
Lessee :
IN WITNESS WHEREOF the parties hereto have affixed their respective signatures to
this Lease Deed the day and year first herein above written:
SIGNED IN THE NAME AND ON
BEHALF OF THE PUNJAB ASHOK
HOTEL COMPANY
LIMITEDTHROUGH
SIGNED IN THE NAME AND ON
BEHALF OF ___________ PVT. LTD.
THROUGH :
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IN THE PRESENCE OF WITNESSES:
1.
2.
Place:
Date:
Appendix A: Particulars of land with detailed project site map / plan
Appendix B: Signed Concession Agreement
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