star hotel on dbfot basis - Uttarakhand Tourism

Volume I: Request for Proposal

DEVELOPMENT OF ALAKNANDA HOTEL AS 5-STAR HOTEL ON DBFOT BASIS

PROCUREMENT SECTION UTTARAKHAND TOURISM DEVELOPMENT BOARD

Pt. Deen Dayal Upadhyay Paryatan Bhawan, Near O.N.G.C. Helipad, Nimbuwala, Garhi Cantt, Dehradun, Uttarakhand – 248003

MAY 20, 2022

Development of Alaknanda hotel as 5-Star Hotel on DBFOT basis

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Disclaimer

The information contained in this Request for Proposal document (the “RFP”) or subsequently provided

to Bidder(s), whether verbally or in documentary or any other form by or on behalf of the Authority or

any of its employees or advisors, is provided to Bidder(s) on the terms and conditions set out in this

RFP and such other terms and conditions subject to which such information is provided.

This RFP is not an agreement and is neither an offer nor invitation by the Authority to the prospective

Bidders or any other person. The purpose of this RFP is to provide interested parties with information

that may be useful to them in making their financial offers (Bids) pursuant to this RFP. This RFP includes

statements, which reflect various assumptions and assessments arrived at by the Authority in relation

to the Project. Such assumptions, assessments and statements do not purport to contain all the

information that each Bidder may require. This RFP may not be appropriate for all persons, and it is not

possible for the Authority, its employees or advisors to consider the investment objectives, financial

situation and particular needs of each party who reads or uses this RFP. The assumptions,

assessments, statements and information contained in the Bidding Documents may not be complete,

accurate, adequate or correct. Each Bidder should, therefore, conduct its own investigations and

analysis and should check the accuracy, adequacy, correctness, reliability and completeness of the

assumptions, assessments, statements and information contained in this RFP and obtain independent

advice from appropriate sources.

Information provided in this RFP to the Bidder(s) is on a wide range of matters, some of which may

depend upon interpretation of law. The information given is not intended to be an exhaustive account

of statutory requirements and should not be regarded as a complete or authoritative statement of law.

The Authority accepts no responsibility for the accuracy or otherwise for any interpretation or opinion

on law expressed herein.

The Authority, its employees and advisors make no representation or warranty and shall have no liability

to any person, including any Applicant or Bidder under any law, statute, rules or regulations or tort,

principles of restitution or unjust enrichment or otherwise for any loss, damages, cost or expense which

may arise from or be incurred or suffered on account of anything contained in this RFP or otherwise,

including the accuracy, adequacy, correctness, completeness or reliability of the RFP and any

assessment, assumption, statement or information contained therein or deemed to form part of this

RFP or arising in any way for participation in this Bid Stage.

The Authority also accepts no liability of any nature whether resulting from negligence or otherwise

howsoever caused arising from reliance of any Bidder upon the statements contained in this RFP.

The Authority may in its absolute discretion, but without being under any obligation to do so, update,

amend or supplement the information, assessment or assumptions contained in this RFP.

The issue of this RFP does not imply that the Authority is bound to select a Bidder or to appoint the

Selected Bidder or Concessionaire, as the case may be, for the Project and the Authority reserves the

right to reject all or any of the Bidders or Bids without assigning any reason whatsoever.

The Bidder shall bear all its costs associated with or relating to the preparation and submission of its

Bid including but not limited to preparation, copying, postage, delivery fees, expenses associated with

any demonstrations or presentations which may be required by the Authority or any other costs incurred

in connection with or relating to its Bid. All such costs and expenses will remain with the Bidder and the

Authority shall not be liable in any manner whatsoever for the same or for any other costs or other

expenses incurred by a Bidder in preparation or submission of the Bid, regardless of the conduct or

outcome of the Bidding Process.


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Contents

Definitions................................................................................................................................................ 9

1 Bid Data Sheet .............................................................................................................................. 11

1.1 ..................................................................................................................................................... 11

1.2 ..................................................................................................................................................... 14

2 Selection Process and Instructions to Bidders .............................................................................. 19

2.1 Scope of Proposal ................................................................................................................. 19

2.2 Eligible Bidders...................................................................................................................... 19

2.3 General Terms of Bidding ..................................................................................................... 21

2.4 Change in Composition of the JV.......................................................................................... 24

2.5 Change in Ownership ............................................................................................................ 24

2.6 Cost of Bidding ...................................................................................................................... 25

2.7 Site Visit and Verification of Information ............................................................................... 25

2.8 Right to Accept and to Reject Any or All Bids ....................................................................... 25

2.9 Contents of the RFP .............................................................................................................. 26

2.10 Clarifications .......................................................................................................................... 27

2.11 Amendment Modification of RFP .......................................................................................... 27

2.12 Language .............................................................................................................................. 28

2.13 Format and Signing of Bid ..................................................................................................... 28

2.14 Sealing and Marking of Bids ................................................................................................. 28

2.15 Bid Due Date ......................................................................................................................... 29

2.16 Late Bids ............................................................................................................................... 29

2.17 Contents of the Bid ................................................................................................................ 29

2.18 Modifications/ Substitution/ Withdrawal of Bids .................................................................... 29

2.19 Rejection of Bids ................................................................................................................... 29

2.20 Validity of Bids ....................................................................................................................... 30

2.21 Confidentiality ........................................................................................................................ 30

2.22 Correspondence with the Bidder ........................................................................................... 30

2.23 Bid Security ........................................................................................................................... 30

3 Evaluation of Bids ......................................................................................................................... 32

3.1 Opening and Evaluation of Bids ............................................................................................ 32

3.2 Evaluation of Technical Proposal .......................................................................................... 32

3.3 Tests of Responsiveness ...................................................................................................... 32


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3.4 Details of Experience ............................................................................................................ 32

3.5 Financial Information for Purposes of Evaluation ................................................................. 32

3.6 Technical Capacity for Purposes of Evaluation .................................................................... 33

3.7 Shortlisting of Bidders ........................................................................................................... 33

3.8 Selection of Bidder ................................................................................................................ 33

3.9 Contacts During Bid Evaluation ............................................................................................ 34

4 Fraud and Corrupt Practices ......................................................................................................... 35

5 Pre-Bid Conference ....................................................................................................................... 37

6 Miscellaneous................................................................................................................................ 38

Appendix I. Letter Comprising the Bid .................................................................................................. 39

Annex i. Details of Bidder .................................................................................................................. 41

Annex ii. Technical Capacity of the Bidder ....................................................................................... 43

Annex iii. Financial Capacity of the Bidder ........................................................................................ 44

Annex iv. Details of Eligible Projects ................................................................................................. 45

Annex v. Statement of Legal Capacity .............................................................................................. 49

Appendix II. Financial Proposal ............................................................................................................ 50

Appendix III. Format of Bank Guarantee for Bid Security ..................................................................... 51

Appendix IV. Power of Attorney for signing of Proposal ....................................................................... 53

Appendix V. Power of Attorney for Lead Member of JV ....................................................................... 55

Appendix VI. Format for Anti-Collusion Certificate ............................................................................... 57

Appendix VII. Joint Bidding Agreement ................................................................................................ 58

I declare under penalty of perjury that the foregoing is true and correct. ............................................. 64

1 Definitions and interpretation ........................................................................................................ 69

1.1 Definitions .............................................................................................................................. 69

1.2 Principles of Interpretation .................................................................................................... 74

1.3 Measurements and Arithmetic Conventions ......................................................................... 75

1.4 Ambiguities within Agreement ............................................................................................... 76

2 The Concession ............................................................................................................................ 77

2.1 Grant of Concession ............................................................................................................. 77

2.2 Concession Period ................................................................................................................ 77

2.3 Acceptance of the Concession.............................................................................................. 78

2.4 Project Site ............................................................................................................................ 78

2.5 Use of the Project Site .......................................................................................................... 78

2.6 Information about the Project Site ......................................................................................... 78


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2.7 Peaceful Possession ............................................................................................................. 78

2.8 Rights and Title over the Project Site .................................................................................... 79

2.9 Clearance & Permissions ...................................................................................................... 79

2.10 Consideration to the Authority ............................................................................................... 79

3 Performance Security .................................................................................................................... 80

3.1 Performance Security ............................................................................................................ 80

3.2 Fresh Performance Security ................................................................................................. 80

4 User Charges ................................................................................................................................ 81

4.1 Levy, Collection and appropriation of User Charges ............................................................ 81

4.2 Revision of User Charges ..................................................................................................... 81

5 Obligations & Undertakings ........................................................................................................... 82

5.1 General Obligations of the Concessionaire .......................................................................... 82

5.2 Obligations of the Concessionaire during Implementation Period ........................................ 84

5.3 Obligations of the Authority ................................................................................................... 85

5.4 Minimum Equity requirements ............................................................................................... 85

6 Independent Expert ....................................................................................................................... 86

6.1 Independent Expert ............................................................................................................... 86

6.2 Duties and functions .............................................................................................................. 86

6.3 Authorised signatories ........................................................................................................... 86

6.4 Remuneration ........................................................................................................................ 86

6.5 Termination ........................................................................................................................... 86

7 Steering Group .............................................................................................................................. 87

7.1 Constitution ........................................................................................................................... 87

7.2 Functions ............................................................................................................................... 87

7.3 Steering Group as Maintenance Board ................................................................................. 87

7.4 Powers and Duties as the Maintenance Board ..................................................................... 87

8 Drawings ....................................................................................................................................... 88

8.1 Preparation of Drawings ........................................................................................................ 88

8.2 Review and Approval of Drawings ........................................................................................ 88

9 Project Implementation ................................................................................................................. 90

9.1 Execution ............................................................................................................................... 90

9.2 Inspection .............................................................................................................................. 90

9.3 Testing during Construction Period ....................................................................................... 90

9.4 Rejection ............................................................................................................................... 91


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9.5 Ownership ............................................................................................................................. 91

9.6 Commencement .................................................................................................................... 91

9.7 Time for Completion .............................................................................................................. 91

9.8 Delays Caused by Competent Authorities ............................................................................ 91

9.9 Extension of Time ................................................................................................................. 91

9.10 Progress ................................................................................................................................ 92

9.11 Delay in Completion .............................................................................................................. 93

9.12 Notice to Test ........................................................................................................................ 93

9.13 Tests on Completion ............................................................................................................. 93

9.14 Re-Testing ............................................................................................................................. 94

9.15 Failure to Pass Tests ............................................................................................................ 94

9.16 Construction Completion Certificate ..................................................................................... 94

9.17 Construction Completion Certificate not a Cessation of Liability .......................................... 95

9.18 Rectification ........................................................................................................................... 95

10 Operations and Maintenance Period ............................................................................................ 96

10.1 Commencement and Duration .............................................................................................. 96

10.2 Obligations of the Concessionaire during Operations and Maintenance Period .................. 96

10.3 Scope of Work During Operations and Maintenance Period ................................................ 96

10.4 Reporting ............................................................................................................................... 97

10.5 Books and Records ............................................................................................................... 98

10.6 Cost of Remedying Defects .................................................................................................. 98

10.7 Subsequent Tests ................................................................................................................. 98

10.8 Failure to Remedy Defects .................................................................................................... 98

10.9 Accidents ............................................................................................................................... 99

11 Financing Arrangement ............................................................................................................... 100

11.1 Financing Arrangement ....................................................................................................... 100

11.2 Amendments to Financing Documents ............................................................................... 100

12 Escrow Account: Article Deleted ................................................................................................. 101

13 Insurances ................................................................................................................................... 102

13.1 Insurance during the Implementation Period ...................................................................... 102

13.2 Insurance during the Operation Period ............................................................................... 102

13.3 Insurance Companies ......................................................................................................... 102

13.4 Evidence of Insurance Cover .............................................................................................. 102

13.5 Application of Insurance Proceeds ..................................................................................... 102


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13.6 Validity of the Insurance Cover ........................................................................................... 103

14 Force Majeure ............................................................................................................................. 104

14.1 Force Majeure Event ........................................................................................................... 104

14.2 Non-Political Event .............................................................................................................. 104

14.3 Indirect Political Event ......................................................................................................... 104

14.4 Political Event ...................................................................................................................... 105

14.5 Effect of Force Majeure Event............................................................................................. 105

14.6 Allocation of Costs During Subsistence of Force Majeure .................................................. 105

14.7 Termination ......................................................................................................................... 106

14.8 Termination Payment for Force Majeure Events ................................................................ 106

14.9 Dispute Resolution .............................................................................................................. 107

14.10 Liability for other losses, damages etc. ........................................................................... 107

14.11 Duty to Report ................................................................................................................. 107

14.12 Excuse from Performance of Obligations ....................................................................... 107

15 Events of Default and Termination .............................................................................................. 109

15.1 Event of Default ................................................................................................................... 109

15.2 Termination due to Event of Default ................................................................................... 111

15.3 Rights of the Authority on Termination ................................................................................ 112

15.4 Termination Payments ........................................................................................................ 112

15.5 Mode of Payment ................................................................................................................ 113

16 Change in Law ............................................................................................................................ 114

16.1 Change in Law .................................................................................................................... 114

16.2 Extension of Concession Period ......................................................................................... 114

17 Transfer of Project ....................................................................................................................... 115

17.1 Ownership ........................................................................................................................... 115

17.2 Handback of Transfer Assets .............................................................................................. 115

17.3 Obligations of Parties .......................................................................................................... 116

18 Dispute Resolution ...................................................................................................................... 118

18.1 Amicable Resolution ........................................................................................................... 118

18.2 Arbitration ............................................................................................................................ 118

19 Representations and Warranties, Disclaimer .............................................................................. 120

19.1 Representations and Warranties of the Concessionaire .................................................... 120

19.2 Disclaimer ............................................................................................................................ 121

19.3 Representations and Warranties of the Authority ............................................................... 121


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20 Miscellaneous.............................................................................................................................. 123

20.1 Assignment and Charges .................................................................................................... 123

20.2 Liability and Indemnity ......................................................................................................... 123

20.3 Advertising on the Project Site ............................................................................................ 124

20.4 Governing Law and Jurisdiction .......................................................................................... 124

20.5 Waiver ................................................................................................................................. 124

20.6 Survival ................................................................................................................................ 125

20.7 Amendments ....................................................................................................................... 125

20.8 Notices ................................................................................................................................ 125

20.9 Severability .......................................................................................................................... 126

20.10 No Partnership ................................................................................................................ 126

20.11 Language ........................................................................................................................ 126

20.12 Exclusion of Implied Warranties etc. ............................................................................... 126

20.13 Counterparts .................................................................................................................... 126

Schedule- A: The Project .................................................................................................................... 127

Broad Scope of Work ...................................................................................................................... 127

Schedule – B: Project Site .................................................................................................................. 128

Project Site Description ................................................................................................................... 128

Schedule- C: Project Facilities ............................................................................................................ 129

Schedule – D: Project Completion Schedule ...................................................................................... 131

Schedule- E: Independent Engineer’s Services ................................................................................. 133

Terms of Reference ........................................................................................................................ 133

Schedule – F: Drawings ...................................................................................................................... 135

Drawings ......................................................................................................................................... 135

Additional Drawings ........................................................................................................................ 135

Schedule – G: Standards & Specifications ......................................................................................... 136

Specifications for Design, Engineering and Construction ............................................................... 136

Schedule – H: Operation and Maintenance Requirements ................................................................ 138

General ............................................................................................................................................ 138

Operation and Maintenance Manual and O&M Plans .................................................................... 139

Safety .............................................................................................................................................. 142

Inspections ...................................................................................................................................... 142

Schedule – I: Vesting Certificate ......................................................................................................... 143

Schedule – J: Format of Performance Bank Guarantee of Concessionaire ....................................... 144


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Schedule – K: Substitution Agreement ............................................................................................... 146

Schedule – L: Indicative List of Clearances ........................................................................................ 152

Schedule – M: List of Prohibited Activities .......................................................................................... 153

Schedule – O: Memorandum of Understanding.................................................................................. 155


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Definitions

Agreement/ Development Agreement shall mean the Draft Development Agreement given in Part 2

of this RFP document.

Associates

For a Bidding Company or a JV Member, only those entities would be “Associates” who control and

are controlled by or are under the common control with such Bidder/ JV Member.

Authority shall mean the “Department of Tourism, Government of Uttarakhand” or “Uttarakhand

Tourism Development Board” or “UTDB”.

Bank shall mean any Nationalized Bank and any Indian Scheduled Commercial Bank as notified by

Reserve Bank of India.

Bidder(s) shall mean Bidding Company or Bidding JV that has submitted a Proposal in response to

this RFP Document.

Bid Document shall mean this Request for Proposal document or any other document issued by the

Authority as part of the Bid Process.

Bid Process shall mean various activities taken up by the Authority leading up to the selection of the

Successful Bidder.

Bidding Company shall mean a corporate entity (Public or Private Limited) registered in India as a

Proprietor or Partnership Firm or Society under respective Act satisfying the basic eligibility criteria of

bidding laid down herein.

Bid/ Proposal shall mean together Folder A and Folder B as defined in Clause 1.2.1 as submitted by

the Bidders in response to this RFP Document.

Bid Security shall have the meaning as referred in Clause 2.23 of this document.

Bid Validity Period shall mean the period stipulated in Clause 2.20 of Section 2 of this RFP Document,

for which the Proposal submitted is valid.

Bid Value shall mean the amount offered by the Bidder in the Financial Proposal payable to the

Authority for the purpose of developing the Project at the Project Site.

Competent Authority shall mean the authority having the power to accept or reject the Proposals of

the Bidders pursuant to evaluation.

JV shall mean Group of entities that have jointly submitted the Proposal for the Project.

JV Member

Each entity in the Bidding JV shall be referred to as a “JV Member”.

Developer shall mean the Successful Bidder with whom the Authority shall sign the Development

Agreement.


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Floor Area Ratio (FAR) means the quotient of the floor space excluding the area specifically exempted

from computation under the concerned regulations that can be constructed in a plot to the plot area.

FAR = Total covered floor area on all floors/ Plot area

“Financial Bid / Financial Proposal” shall mean the information submitted as per Appendix II of this

document and is part of the Bid/Proposal.

“Good Industry Practice” shall mean practices, methods, techniques and standards as changed from

time to time that are generally accepted for use in the infrastructure, construction and real estate

industry or any other good industry practice which is relevant to the said project.

In case of a Bidding JV, the “Lead Member (LM)” shall be that JV Member vested with the prime

responsibility of developing the Project and holding not less than 26% stake in the JV.

Project shall have the meaning as referred in Clause 1.1.4 of this document.

Project Site shall mean all that plot details as mentioned in Clause 1.1.3 of this document, which is

more specifically described in the Draft Development Agreement.

Proposal shall mean cumulatively Techno-Commercial proposal and its sub-proposal and the Financial

Proposal submitted by the Bidder in response to this RFP.

Proposal Due Date shall have the same meaning as referred to in Clause 1.2.11 of this Document.

Responsiveness / Non-responsive shall mean as referred in Clause 3.3 of this document.

Request for Proposal (RFP) shall mean this document inviting the submission of “Proposal” to

Development of Alaknanda hotel as 5-Star Hotel on DBFOT basis.

Selection Process shall have the same meaning as the 'Bid Process'.

Subsidiary/ Subsidiaries for a Bidding Company or a JV Member, Subsidiary / subsidiaries shall

mean only those entities in which the Bidding Company / JV Member” hold(s) more than 50% of the

voting securities directly.

Successful Bidder is the Bidder who inter-alia meets the following requirements (a) meets the

Technical and Financial criteria; and (b) who offers the highest Bid Value and adheres / consents to

adhere to all other conditions laid down by the Authority in regard to the Project.

THE WORDS AND EXPRESSIONS BEGINNING WITH CAPITAL LETTERS AND DEFINED IN THIS

DOCUMENT SHALL, UNLESS REPUGNANT TO THE CONTEXT, HAVE THE MEANING ASCRIBED

THERETO HEREIN.


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1 Bid Data Sheet

Clause No. Description

1.1 Background

1.1.1 Project Background & Introduction

Uttarakhand Tourism Development Board advises the Government on all matters relating

to tourism in the State. The statutory board is chaired by the Tourism Minister Govt. of

Uttarakhand. The Secretary tourism acts as Chief Executive Officer. The board also

functions as a regulatory and licensing Authority.

UTDB strives to place Uttarakhand on the tourism map of the world as one of the leading

tourist destinations, and to make Uttarakhand synonymous with tourism. Its prerogative is

to develop tourism as a major source of employment and income/revenue generation and

as a pivot of the economic and social development in the State.

UTDB envisages to develop manifold tourism related resources of the State in an eco-

friendly manner, with the active participation of the private sector and the local host

communities.

To strengthen Leisure and MICE tourism in Haridwar, UTDB intends to develop a 5-Star

Hotel at Haridwar with benchmark facilities for tourists coming to the state.

Approved map is attached already and all the NOC have already been received by the department. i) Need the approved set of drawings with validity and all required NOCs. ii) As we know, F.A.R of the region was revised and if the bidder wishes to reapply for

revisions which will raise differentials in the development charge, who will be liable for those extra fee/charges.

iii) What will be the procedure in case we wish to get the height increased/revised and sanctioned as per local bye laws.

1.1.2 Need for the Project

Promoting Leisure & MICE tourism in Uttarakhand is one of the key agendas of UTDB.

Haridwar serves as the Gateway to the Char Dhams of Uttarakhand and Dev Bhomi. The

‘Panch Tirth’ or the five pilgrimages located within the periphery of Haridwar, are

Gangadwara (Har Ki Pauri), Kushwart (Ghat), Kankhal, Bilwa Tirtha (Mansa Devi Temple)

and Neel Parvat (Chandi Devi). Haridwar is also one of the four places; where Kumbh Mela

occurs after rotation of every twelve years and Ardh Kumbh after every six years. Haridwar

has a long-standing position as a great source for Ayurvedic medicines and herbal

remedies as well as its unique Gurukul school system of traditional education.

It also provides lot of opportunity for business travel. Rajaji National Park is just 10 kms

from Haridwar. The national parks are one of the favourite destinations for many corporate

meetings, events and incentives or conferences. Team building exercise can be fun in

nature around.

In this context, UTDB has identified a land parcel located in the Belwala area of Haridwar

to be developed into 5-Star hotel to cater to the Premium tourist segment, foreigners and

corporate visitors.


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This 5-Star Hotel at Haridwar would help state by attracting Premium tourist segment,

foreigners and corporate visitors, which would result in more revenues for state and also

generate employment for the local population.

1.1.3 Site Location

The proposed 5-Star Hotel at Haridwar is to be developed on approx. 6042.55 sqm land

owned by UTDB comprising of an existing hotel with constructed area of 6333.57 sq. mts.

The land area is free from any encroachments and is ideal to develop a 5-Star Hotel at

Haridwar as envisaged by UTDB. Address of proposed site for project is:

Hotel Alaknanda,

Belwala, Mayapur,

Delhi Bypass Rd,

Haridwar, Uttarakhand 249401

1.1.4 The Project component (Construction)

Development of 5-Star Hotel at Haridwar shall have

Theme Based

o Suite (up to 4 Nos. Duplex Units)

o Deluxe Room (up to 50 Nos.)

o Standard Room (up to 50 Nos.)

Conference Hall / Convention Hall (2 Nos.)

Restaurant (2 Nos.)

Open-air terrace

Banquet lawn (1 Nos.)

24/7 Café

Spa & Wellness Center

Swimming Pool

Admin Block, Entrance Foyer and lobby

Commercial Space

Other facilities as deemed suitable may be included with prior permission of UTDB

UTDB is in process of map approval for additional construction of 6261.29 sq. mts.

Necessary fee for map approval has also been deposited.

1.1.5 Key Features

Area of Land approx. 6032.55 sqm

Topography of Area Plain

Maximum Building Height 24m ***

Maximum Ground Coverage 45% ***

FAR 2.40 ***


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*** As per local authority guidelines and byelaws. However, the Concessionaire is free to

seek fresh approvals for possible revisions.

1.1.6 Facilities Proposed to be Incorporated by the Developer in the Project

The Developer shall provide provision for merging of the traffic with the main road in the

front of the Project Site as per the requirement of the Project

1.1.7 The Contour of the Project

The Successful Bidder shall develop a 5-Star Hotel at Haridwar as per the prevalent

Development Control standards prescribed in the Act/Rules of State. Indicative capital cost

of the Project as assessed by the Authority is approximately Rs. 60.00 Crores (Rupees

Sixty Crores only) (the “Eligible Project Cost”). The assessment of actual costs,

however, will have to be made by the Bidders. The bidder has to optimally utilizing the area

and location of the property in order to maximize the output & objectives of the project.

Selected Bidder, who undertakes to incorporate an SPV prior to execution of the agreement

(the “Concessionaire”), shall be responsible for designing, engineering, financing,

procurement, construction, operation and maintenance of the Project under and in

accordance with the provisions of an agreement for a period of 30 Years (the “Concession

Agreement”) to be entered into between the Selected Bidder and the Authority in the form

provided by the Authority as part of the Bidding Documents pursuant hereto.

1.1.8 Construction Period

5-Star Hotel at Haridwar shall be developed within a maximum period of 3 Years (the

“Construction Period”) from the date of issuance of Letter of Award including any

extension as may specifically be provided there for and operated, maintained and owned

by the Successful Bidder.

1.1.9 Development Mode

The Project is proposed to be developed on Design, Build, Finance, Operate and Transfer

Basis (DBFOT)

1.1.10 Annual Concession Fee

In lieu of the development and operational rights of the site, the Developer shall provide an

Annual Concession Fee which shall be escalated at 5% every year on previous year fee.

1.1.11 Advertisement/ Hoarding Charges

During the construction period, the Bidder is allowed to put advertisement/ hoarding of

UTDB on the Project Site without any charges as per applicable laws.

1.1.12 Operation and Maintenance

The Developer shall ensure operation and maintenance of the Hotel facility as per the

minimum industry standards prescribed for a Category Hotel specified under Annexure ‘H’

of the Concession Agreement and in pursuance of the same may enter into tie ups with the

known brands in the industry to run the facility and maintain the prescribed industry

standards.


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1.1.13 Conformation with Bye Laws

Bidders shall ensure that the design of entire Project facility conforms to the provisions of

local development authorities, Bye-laws, requirements of all statutory/ regulatory bodies in

respect of fire hazard, ventilation & lighting requirement, safety, security, evacuation, alarm

etc. during disaster. The Project shall confirm with the norms of the National Disaster

Management Authority for the seismic zone in which the Project falls.

1.1.14 Incentives

For applicability of exemptions and other relaxations that may be available to tourism units

under Uttarakhand Tourism Policy 2018, policy document uploaded on

https://uttarakhandtourism.gov.in/wp-content/uploads/2018/11/Tourism-Policy.pdf may be

referred to for details.

1.1.15 Project Approvals

Bidder will be responsible to obtain all approvals from local bodies, statutory & regulatory

authorities in respect of Building Plan of the Project and/or its facilities to be constructed by

it.

1.1.16 Scope of Work

The Project envisages the following scope of work:

a. Preparing detailed design for the proposed Project in accordance with the approved

conceptual plans and design and getting them approved from the Authority or their

authorized representative, local bodies and other agencies.

b. Construction of the Project with minimum required facilities listed in Clause 1.1.4 above

at the Project Site.

c. Pay in advance the Annual Concession Fee in the manner as described in Clause

1.1.10.

d. O&M of project in accordance with the clause 1.1.12

1.1.17 Annual Taxes, Fee, Rates & Duties

The Bidder shall bear / pay all applicable taxes, fees, rates and duties in relation to the

Project at all time during and after the construction

1.2 Bid process and description

1.2.1 RFP & Bid Process

The Authority Invites Request for Proposal (RFP) from interested parties to participate in

the Bid Process. The Bid Proposal of only competent Bidders, who satisfy the eligibility

criteria prescribed in the document and furnish the details as per terms and conditions

stated in this document, shall be opened for the purpose of selecting the Successful Bidder

for the Project.

The Authority intends to follow a single stage Bidding Process for selection of the Bidder

for the Project as per Procurement Rules of Uttarakhand 2017. The Bids by interested

parties in response to the Bid Document would be required to be uploaded on

https://www.uktenders.gov.in (the “e-Tender website”) as mentioned in Bid Data Sheet in

two separate folders as indicated below:

https://uttarakhandtourism.gov.in/wp-content/uploads/2018/11/Tourism-Policy.pdf


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Folder 1: Technical Proposal

Folder 2: Financial Proposal

Applicants must satisfy themselves that they are qualified to bid, and should give an

undertaking to this effect in the form at Appendix I.

1.2.2 Bid Validity:

The Bid shall be valid for a period of not less than as indicated in Bid Data Sheet from the

date specified in Clause 1.2.11 for submission of bids (the “Bid Due Date”).

1.2.3 Draft Concession agreement

The Bidding Documents include the draft Concession Agreement for the Project. The

aforesaid documents and any addenda issued subsequent to this RFP Document, or

modified RFP documents but before the Bid Due Date, will be deemed to form part of the

Bidding Documents.

1.2.4 Bid Security

A Bidder is required to deposit, along with its Bid, a Bid Security equivalent to Rs. 120

lakhs (Rupees One Hundred and Twenty Lakhs only) refundable not later than 60 days

from the Bid Due Date or from the date of execution of agreement with the Successful

Bidder, whichever is later, except in the case of the highest Bidder.

The Bidders will have to provide Bid Security by way of online transfer through Real Time

Gross Settlement (RTGS) or National Electronic Funds Transfer (NEFT) to the account set

out below or through an irrevocable and unconditional Bank Guarantee as per format

(Appendix - III) before technical proposal opening. In case of non-payment within this

time and / or of lesser value, the proposal shall be summarily rejected.

Beneficiary Name CEO Uttarakhand Tourism Development Board Dehradun

Bank’s name Indian Bank

Account Number 50517934250

Branch Nimbuwala, Garhi Cantt

Address Nimbuwala, Garhi Cantt, Dehradun

IFSC IDIB00N599

GST No. 05AAALU0031F1ZK

PAN AAALU0031F

The Bid shall be summarily rejected if it is not accompanied by the Bid Security.

1.2.5 Eligible and Successful Bidder

Eligible bidder: To be eligible for pre-qualification and short-listing, the Bidders shall have

to satisfy the following conditions of eligibility:

a. Technical Capacity: For demonstrating technical capacity and experience (the

"Technical Capacity"), the Bidder shall have over the past 10 financial years

preceding the Bid Due Date have:

i. Category I: paid for, or received payments for, construction of Hotel/ Resort/ Spa/

Convention Facility / Tourism Infrastructure; and/or


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ii. Category II: Paid for development of Hotel/ Resort/ Spa/ Convention Facility /

Tourism Infrastructure (s) (excluding land cost); and/ or

Experience in development of Residential Projects will also be considered for

above two categories.

iii. Category III: Collected and appropriated revenues from Hotel/ Resort/ Spa/

Convention Facility / Tourism Infrastructure(s);

such that the above amount is equal to or more than:

I. 100% (one hundred percent) of Eligible Project Cost as mentioned in

Clause 1.1.7 in case of 1 (one) Eligible Project; or

II. 50% (fifty percent) of Eligible Project Cost as mentioned in Clause 1.1.7 in

case of 2 (two) Eligible Projects; or

III. 40% (forty percent) of Eligible Project Cost as mentioned in Clause 1.1.7

in case of 3 (three) Eligible Projects.

O&M Experience: The Bidder shall, in case of a JV, include a Member who has either by

itself or through its Associate, in the last 10 years, experience of 3 (three) years or more in

operation and maintenance (O&M) of 5-star category hotel/s specified in Clause 1.2.5, with

an annual average aggregate of revenue not less than Rs. 30 Crores (Rupees Thirty

Crores only). In case the Bidder is not a JV, it shall be eligible only if it has equivalent

experience of its own or through its Associates. In the event the Bidder does not have such

experience, it should furnish an undertaking that if selected to undertake the Project, it shall

enter into an agreement for entrusting its operation & maintenance (O&M) obligations to an

entity having the aforesaid experience within 60 days of the signing of Concession

Agreement, failing which the Concession Agreement shall be liable to termination. Such an

entity which proposes to undertake the O&M obligations shall be approved by the Authority.

b. Financial Capacity: The Bidder shall have a minimum Net Worth of Rs. 15.00 Crores

(the “Financial Capacity”) as on 31st March 2021.

Successful Bidder: Generally, the Successful Bidder shall be the highest Bidder. The

remaining Bidders shall be kept in reserve and may, in accordance with the process

specified in Clause 3.8 of the RFP, be invited to match the Bid submitted by the highest

Bidder in case such highest Bidder withdraws or is not selected for any reason. In the event

that none of the other Bidders match the Bid of the highest Bidder, the Authority may, in its

discretion, invite fresh Bids from all Bidders or annul the Bidding Process, as the case may

be.

1.2.6 Project Site Assessment

Bidders are invited to examine the Project in greater detail, and to carry out, at their cost,

such studies as may be required for submitting their respective Bids for award of the

Concession including implementation of the Project.

1.2.7 Bid parameter

Bids are invited for the Project on the basis of the highest Annual Gross revenue share (the

"Annual Concession Fee") to be paid by the Bidder during the period of concession. The

Concession Period is pre-determined, as indicated in the Concession Agreement. The

Annual Concession Fee shall constitute the sole criteria for evaluation of Bids. Subject to


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Clause 2.19, the Project will be awarded to the Bidder quoting the highest Annual Gross

revenue share.

In addition, the Concessionaire shall pay Rs. 50 Lakhs per year, every year

Moratorium is permitted for revenue sharing only during construction period or compliance

of Conditions Precedents by Concessioning Authority, whichever is later.

1.2.8 User Charges

The Concessionaire will be entitled to levy and charge an appropriate User Charges from

users of the Project, as prescribed in the RFP document.

1.2.9 Document Fee

The bidder is required to deposit Rs. 11,800/- (Rupees Eleven Thousand Eight Hundred)

including GST to be paid online as per details given below before technical proposal

opening. In case of non-payment within this time and / or of lesser value, the proposal

shall be summarily rejected. (the “Document Fee”) non-refundable as Bid Document

Fee.

The Bidders will have to provide Document Fee by way of online transfer only through Real

Time Gross Settlement or National Electronic Funds Transfer to the account set out below.

Beneficiary Name CEO Uttarakhand Tourism Development Board Dehradun

Bank’s name Indian Bank

Account Number 50517934250

Branch Nimbuwala, Garhi Cantt

Address Nimbuwala, Garhi Cantt, Dehradun

IFSC IDIB00N599

GST No. 05AAALU0031F1ZK

PAN AAALU0031F

The Bid shall be summarily rejected if it is not accompanied by the Document Fee.

1.2.10 Queries and Pre-bid

Any queries or request for additional information concerning this RFP shall be submitted in

writing by e-mail to:

The Chief Executive Officer,

Uttarakhand Tourism Development Board,

Pt. Deen Dayal Upadhyay Paryatan Bhawan, Near O.N.G.C. Helipad, Nimbuwala, Garhi

Cantt, Dehradun, Uttarakhand – 248003

Phone No.: +91 135 255 9898

Fax No.: +91 135 255 9988

e-mail: [email protected] with CC to Nodal Officer PPP Cell

The / subject of communication shall clearly bear the following identification/ title:

"Queries/Clarification: Development of Alaknanda hotel as 5-Star Hotel on DBFOT

basis"

mailto:[email protected]


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1.2.11 Schedule and Venue

The Authority shall endeavour to adhere to the following schedule (the “Schedule of

Bidding Process”):

Sl.

No. Event Description Date

1 Date of downloading RFP document From 2:00 PM on 20.05.2022

2 Pre-Proposal meeting At 12:00 Noon on 01.06.2022

3 Last date for seeking clarification, if any Upto 2:00 PM on 03.06.2022

4 Start date and time for uploading of proposals in e-Procurement platform

From 2:00 PM on 15.06.2022

5 Last date and time for uploading of proposals in e-Procurement platform

Upto 2:00 PM on 20.06.2022

6 Time and date for opening of Technical Proposals

at 2:30 PM on 20.06.2022

7 Time and date for opening of Financial Proposals

To be intimated later.

Venue for Opening of Technical & Financial Proposal:



1.2.12 Original Documents

The (a) Original Power of Attorney (as per format), (b) Original Affidavit (as per format)

(c) Original affidavit for litigation history (as per format) and (d) JV Agreement (if

applicable) shall be submitted in person or through registered post / speed post / courier to

PPP Cell of UTDB, Pt. Deen Dayal Upadhyay, Paryatan Bhawan, Near O.N.G.C. Helipad,

Nimbuwala, Garhi Cantt, Dehradun, before opening of Technical Proposals. The Proposal

Inviting Authority shall not be held liable for any delays in the receipt of these documents.

In case these original documents are not received within the stipulated time, the

proposal shall be summarily rejected. No other original documents are required at

this stage.


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2 Selection Process and Instructions to Bidders

A. General

2.1 Scope of Proposal

2.1.1 The Authority wishes to receive Proposals from experienced and capable Bidders in

respect of the Project.

2.1.2 The Financial Proposals of only those Bidders shall be opened who qualify the technical

eligibility criteria as laid down herein.

2.1.3 Qualification will be based on the assessment of Technical and Financial capability of

the Bidders in commissioning, operating and maintaining the Project Facilities.

2.2 Eligible Bidders

2.2.1 For determining the eligibility of Bidders for their pre-qualification hereunder, the

following shall apply:

a. The Bidder may be a single entity or a group of entities (the "JV"), joining together

to implement the Project. However, no Bidder applying individually or as a member

of a JV, as the case may be, can be member of another Bidder. The term Bidder

used herein would apply to both a single entity and a JV.

b. A Bidder may be a natural person, private entity or any combination of them with a

formal intent to enter into an agreement or under an existing agreement to form a

JV. A JV shall be eligible for consideration subject to the conditions set out in Clause

2.2.2 below.

2.2.2 Where the Bidder is a single entity or a JV, it shall be required to form an appropriate

Special Purpose Vehicle, incorporated under the Indian Companies Act 2013 (the

“SPV”), to execute the Concession Agreement and implement the Project. In case the

Bidder is a JV, it shall, in addition to forming an SPV, comply with the following additional

requirements:

a. Number of members in a JV shall not exceed 3 (three);

b. Qualification could be met individually or collectively by members of JV;

c. Subject to the provisions of clause (a) above, the Proposal should contain the

information required for each member of the JV;

d. Members of the JV shall nominate one member as the lead member (the "Lead

Member"), who shall have an equity share holding of at least 51% (fifty-one per

cent) of the paid up and subscribed equity of the SPV till a period of 5 (five) years

from the Project Construction Completion Date and 26% (twenty-six percent) during

the remaining Concession Period. The nomination(s) shall be supported by a Power

of Attorney, as per the format at Appendix V, signed by all the other members of the

JV;

e. All other members of the JV shall legally and beneficially hold not less than 26%

(twenty-six percent) of the paid up & subscribed equity share capital of the

Concessionaire till a period of 5 (five) years from the Project Construction

Completion Date.

f. The Proposal should include a brief description of the roles and responsibilities of

individual members, particularly with reference to financial, technical and O&M

obligations;


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g. An individual Bidder cannot at the same time be member of a JV applying for

qualification. Further, a member of a particular Bidder JV cannot be member of any

other Bidder JV applying for qualification;

h. The members of a JV shall form an appropriate SPV to execute the Project, if

awarded to the JV;

i. Members of the JV shall enter into a binding Joint Bidding Agreement, substantially

in the form specified at Appendix VII (the "Jt. Bidding Agreement"), for the

purpose of submitting a Bid. The Jt. Bidding Agreement, to be submitted along with

the Proposal, shall, inter alia:

i. Convey the intent to form an SPV with shareholding/ ownership equity

commitment(s) in accordance with this RFP, which would enter into the

Concession Agreement and subsequently perform all the obligations of the

Concessionaire in terms of the Concession Agreement, in case the concession

to undertake the Project is awarded to the JV;

ii. Clearly outline the proposed roles and responsibilities, if any, of each member;

iii. Commit the minimum equity stake to be held by each member;

iv. Commit that each of the members, whose experience will be evaluated for the

purposes of this RFP, shall subscribe for 26% (twenty-six per cent) or more of

the paid up and subscribed equity of the SPV and shall further commit that each

such member shall, for a period of 5 (five) years from the Project Construction

Completion Date, hold equity share capital not less than 26% (twenty-six per

cent) of the subscribed and paid up equity share capital of the SPV;

v. Members of the JV undertake that they shall collectively hold at least 100%

(hundred per cent) of the subscribed and paid up equity of the SPV at all times

until the fifth anniversary of the Project Construction Completion Date; and

vi. Include a statement to the effect that all members of the JV shall be liable jointly

and severally for all obligations of the Concessionaire in relation to the Project

until the Financial Close of the Project is achieved in accordance with the

Concession Agreement; and

vii. Except as provided under this RFP and the Bidding Documents, there shall not

be any amendment to the Jt. Bidding Agreement without the prior written

consent of the Authority.

2.2.3 Technical Qualification:

To be eligible for pre-qualification and short-listing, the Bidders shall have to satisfy the

following conditions of eligibility:

a. Technical Capacity: For demonstrating technical capacity and experience (the

"Technical Capacity"), the bidder shall fulfil eligibility as mentioned in Clause

1.2.5 (a)

2.2.4 Financial Capacity: The Bidder shall have a minimum Net Worth (the “Financial

Capacity”) as mentioned in Clause 1.2.5 (b).

2.2.5 In case of a JV, the combined technical capability of those Members, who have and

shall continue to have an equity share of at least 26% (twenty-Six per cent) each in the

SPV, should satisfy the above conditions of eligibility; provided that each such Member

shall, for a period of 5 (five) years from the Project Construction Completion Date, hold

equity share capital not less than 26% (twenty-six per cent) of the subscribed and paid

up equity of the SPV.

2.2.6 The Bidders shall enclose with its letter comprising the bid, to be submitted as per the


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format at Appendix I, complete with its Annexes, the following:

i. Certificate(s) from its statutory auditors or the concerned client(s) stating the project

cost (excluding the cost of land) in projects commissioned during the past 7 (seven)

years in respect of the projects specified in paragraph 2.2.3 (a) above. In case a

particular job/ contract has been jointly executed by the Bidder (as part of a JV), it

should further support its claim for the share in work done for that particular job/ contract

by producing a certificate from its statutory auditor or the client; and

ii. certificate(s) from its statutory auditors specifying the net worth of the Bidder (for

relevant financial year), specifying that the methodology adopted for calculating such

net worth conforms to the provisions of this RFP.

2.3 General Terms of Bidding

2.3.1 A Bidder is eligible to submit only one Bid for the Project. A Bidder bidding individually

or as a member of a JV shall not be entitled to submit another bid either individually or

as a member of any JV, as the case may be.

2.3.2 Notwithstanding anything to the contrary contained in the RFP, the detailed terms

specified in the draft Concession Agreement shall have overriding effect; provided,

however, that any conditions or obligations imposed on the Bidder hereunder shall

continue to have effect in addition to its obligations under the Concession Agreement.

2.3.3 The Financial Proposal should be furnished in the format on e-tender website only.

2.3.4 The Financial Proposal shall be the Annual Concession Fee (exclusive of GST as

applicable thereon, which shall be paid extra) to be quoted by the Bidder. Annual

Concession Fee shall be payable by the Concessionaire to the Authority, as the case

may be, as per the terms and conditions of the RFP and the provisions of the

Concession Agreement. The Annual Concession Fee shall be increased in accordance

to Clause 1.1.10 of this RFP.

2.3.5 The Bidder shall deposit a Bid Security equivalent to amount as mentioned in Bid Data

Sheet in accordance with the provisions of this RFP.

2.3.6 The Bid shall be summarily rejected if it is not accompanied by the Bid Security. The Bid

Security shall be refundable not later than 60 days from the Bid Due Date or from the

Date of signing of agreement with the Successful Bidder, whichever is later, except in

the case of the highest Bidder.

2.3.7 The Bidder should submit a Power of Attorney as per the format at Appendix IV,

authorising the signatory of the Bid to commit the Bidder.

2.3.8 In case the Bidder is a JV, the Members thereof should furnish a Power of Attorney in

favour of the Lead Member in the format at Appendix V.

2.3.9 Any condition or qualification or any other stipulation contained in the Bid shall render

the Bid liable to rejection as a non-responsive Bid.

2.3.10 The Proposal and all communications in relation to or concerning the Bidding

Documents and the Bid shall be in English language.

2.3.11 The Bidding Documents including the RFP and all attached documents are and shall

remain the property of the Authority and are transmitted to the Bidders solely for the

purpose of preparation and the submission of a Bid in accordance herewith. Bidders are

to treat all information as strictly confidential and shall not use it for any purpose other

than for preparation and submission of their Bid. The Authority will not return any Bid or

any information provided along therewith.

2.3.12 A Bidder shall not have a conflict of interest (the "Conflict of Interest") that affects the


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Bidding Process. Any Bidder found to have a Conflict of Interest shall be disqualified. In

the event of disqualification, the Authority shall forfeit and appropriate the Bid Security

or Performance Security, as the case may be, as mutually agreed genuine pre-

estimated compensation and damages payable to the Authority for, inter alia, the time,

cost and effort of the Authority, including consideration of such Bidder's proposal,

without prejudice to any other right or remedy that may be available to the Authority

hereunder or otherwise. Without limiting the generality of the above, a Bidder shall be

considered to have a Conflict of Interest that affects the Bidding Process, if:

i. the Bidder, its Member or Associate (or any constituent thereof) and any other

Bidder, its Member or any Associate thereof (or any constituent thereof) have

common controlling shareholders or other ownership interest; provided that this

disqualification shall not apply in cases where the direct or indirect shareholding of

a Bidder, its Member or an Associate thereof (or any shareholder thereof having a

shareholding of more than 5% (five per cent) of the paid up and subscribed share

capital of such Bidder, Member or Associate, as the case may be) in the other

Bidder, its Member or Associate is less than 5% (five per cent) of the subscribed

and paid up equity share capital thereof; provided further that this disqualification

shall not apply to any ownership by a bank, insurance company, pension fund or a

public financial institution referred to in section 2(72) of the Companies Act 2013.

For the purposes of this Clause 2.3.12 (i), indirect shareholding held through one or

more intermediate persons shall be computed as follows:

a. where any intermediary is controlled by a person through management control

or otherwise, the entire shareholding held by such controlled intermediary in

any other person (the “Subject Person”) shall be taken into account for

computing the shareholding of such controlling person in the Subject Person;

and

b. subject always to sub-clause (a) above, where a person does not exercise

control over an intermediary, which has shareholding in the Subject Person, the

computation of indirect shareholding of such person in the Subject Person shall

be undertaken on a proportionate basis; provided, however, that no such

shareholding shall be reckoned under this sub-clause (b) if the shareholding of

such person in the intermediary is less than 26% of the subscribed and paid up

equity shareholding of such intermediary; or

ii. a constituent of such Bidder is also a constituent of another Bidder; or

iii. such Bidder, or any Associate thereof receives or has received any direct or indirect

subsidy, grant, concessional loan or subordinated debt from any other Bidder, or

any Associate thereof or has provided any such subsidy, grant, concessional loan

or subordinated debt to any other Bidder, its Member or any Associate thereof; or

iv. such Bidder has the same legal representative for purposes of this Bid as any other

Bidder; or

v. such Bidder, or any Associate thereof has a relationship with another Bidder, or any

Associate thereof, directly or through common third party/ parties, that puts either

or both of them in a position to have access to each other’s information about, or to

influence the Application of either or each other; or

vi. such Bidder has participated as a consultant to the Authority in the preparation of

any documents, design or technical specifications of the Project.

2.3.13 A Bidder shall be liable for disqualification and forfeiture of Bid Security if any legal,

financial or technical adviser of the Authority in relation to the Project is engaged by the


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Bidder in any manner for matters related to or incidental to such Project during the

Bidding Process or subsequent to the (i) issue of the LOA or (ii) execution of the

Concession Agreement. In the event any such adviser is engaged by the Successful

Bidder or Concessionaire, as the case may be, after issue of the LOA or execution of

the Concession Agreement, then notwithstanding anything to the contrary contained

herein or in the LOA or the Concession Agreement and without prejudice to any other

right or remedy of the Authority, including the forfeiture and appropriation of the Bid

Security or Performance Security, as the case may be, which the Authority may have

thereunder or otherwise, the LOA or the Concession Agreement, as the case may be,

shall be liable to be terminated without the Authority being liable in any manner

whatsoever to the Successful Bidder or Concessionaire for the same.

2.3.14 The RFP is not transferable.

2.3.15 Any award of Concession pursuant to the RFP shall be subject to the terms of Bidding

Documents.

2.3.16 A bidder shall not be eligible for bidding hereunder if the Bidder, its Member or Associate

was, during a period of 2 (two) months preceding the Bid Due Date, either by itself or

as member of a JV:

i. pre-qualified and short-listed by the Authority for the Bid Stage comprising RFP in

related to 8 (eight) or more projects of the Authority; or

ii. declared by the Authority as the Successful bidder for undertaking 4 (four) or more

projects of the Authority; or

iii. unable to achieve financial close, for 2 (two) or more projects of the Authority, within

the period specified in the respective concession agreements entered into with the

Authority;

iv. under a declaration of ineligibility for corrupt or fraudulent practice or debarred or

blacklisted with any of the Government (Central or State), Semi-Govt. & PSU in

India.

2.3.17 Any entity, or any entity controlled by it, which has been barred by the Central/ State

Government from participating in any project (BOT or otherwise) would not be eligible

to submit a Proposal, either individually or as member of a JV if the bar subsists as on

the date of Proposal.

2.3.18 A Bidder including any JV Member or Associate should, in the last 3 (three) years, have

neither failed to perform on any contract, as evidenced by imposition of a penalty by an

arbitral or judicial authority or a judicial pronouncement or arbitration award against the

Bidder, JV Member or Associate, as the case may be, nor has been expelled from any

project or contract by any public entity nor have had any contract terminated any public

entity for breach by such Bidder, JV Member or Associate.

2.3.19 In computing the Technical Capacity and Net Worth of the Bidder/ JV Members under

Clauses 2.2.3, 2.2.4 and 3.3, the Technical Capacity and Net Worth of their respective

Associates would also be eligible hereunder.

2.3.20 For purposes of this RFP, Associate means, in relation to the Bidder/ JV Member, a

person who controls, is controlled by, or is under the common control with such Bidder/

JV Member (the "Associate"). As used in this definition, the expression "control"

means, with respect to a person which is a company or corporation, the ownership,

directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such

person, and with respect to a person which is not a company or corporation, the power

to direct the management and policies of such person by operation of law.


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2.3.21 While Qualification is open to persons from any country, the following provisions shall

apply:

i. Where, on the date of the Bid, not less than 15% (fifteen percent) of the aggregate

issued, subscribed and paid up equity share capital in a Bidder or its Member is

held by persons resident outside India or where a Bidder or its Member is controlled

by persons resident outside India; or

ii. if at any subsequent stage after the date of the Bid, there is an acquisition of not

less than 15% (fifteen percent) of the aggregate issued, subscribed and paid up

equity share capital or control, by persons resident outside India, in or of the Bidder

or its Member;

Then the Qualification of such Bidder or in the event described in sub clause (ii) above,

the continued Qualification of the Bidder shall be subject to approval of the Authority

from national security and public interest perspective. The decision of the Authority in

this behalf shall be final and conclusive and binding on the Bidder.

The holding or acquisition of equity or control, as above, shall include direct or indirect

holding/ acquisition, including by transfer, of the direct or indirect legal or beneficial

ownership or control, by persons acting for themselves or in concert and in determining

such holding or acquisition, the Authority shall be guided by the principles, precedents

and definitions contained in the Securities and Exchange Board of India (Substantial

Acquisition of Shares and Takeovers) Regulations, 1997, or any substitute thereof, as

in force on the date of such acquisition.

The Bidder shall promptly inform the Authority of any change in the shareholding, as

above, and failure to do so shall render the Bidder liable for disqualification from the

Bidding Process.

2.4 Change in Composition of the JV

2.4.1 Change in the composition of a JV will not be permitted by the Authority during the

Bidding process.

2.5 Change in Ownership

2.5.1 By submitting the Bid, the Bidder acknowledges and undertakes that the Lead Member

shall continue to hold minimum 51% of the equity and each of the other JV Members

shall continue to hold at least 26% of the equity of the Concessionaire until the fifth

anniversary of the Project Construction Completion Date is achieved under and in

accordance with the provisions of the Concession Agreement. The Bidder further

acknowledges and agrees that the aforesaid obligation shall be the minimum, and shall

be in addition to such other obligations as may be contained in the Concession

Agreement, and a breach hereof shall, notwithstanding anything to the contrary

contained in the Concession Agreement, be deemed to be a breach of the Concession

Agreement and dealt with as such thereunder. For the avoidance of doubt, the

provisions of this Clause 2.5.1 shall apply only when the Bidder is a JV.

2.5.2 By submitting the Bid, the Bidder shall also be deemed to have acknowledged and

agreed that in the event of a change in control of a JV Member or an Associate whose

Technical Capacity and/ or Financial Capacity is being taken into consideration for the

purposes of evaluation of eligibility conditions under and in accordance with the RFP,

the Bidder shall inform the Authority forthwith along with all relevant particulars about

the same and the Authority may, in its sole discretion, disqualify the Bidder or withdraw


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the LOA from the Successful Bidder, as the case may be. In the event such change in

control occurs after signing of the Concession Agreement but prior to Financial Close of

the Project, it would, notwithstanding anything to the contrary contained in the

Concession Agreement, be deemed to be a breach thereof, and the Concession

Agreement shall be liable to be terminated without the Authority being liable in any

manner whatsoever to the Concessionaire. In such an event, notwithstanding anything

to the contrary contained in the Concession Agreement, the Authority shall forfeit and

appropriate the Bid Security or Performance Security, as the case may be, as mutually

agreed genuine pre-estimated compensation and damages payable to the Authority for,

inter alia, time, cost and effort of the Authority, without prejudice to any other right or

remedy that may be available to the Authority hereunder or otherwise.

2.6 Cost of Bidding

2.6.1 The Bidders shall be responsible for all of the costs associated with the preparation of

their Bids and their participation in the Bidding Process. The Authority will not be

responsible or in any way liable for such costs, regardless of the conduct or outcome of

the Bidding Process.

2.7 Site Visit and Verification of Information

2.7.1 Bidders are encouraged to submit their respective Bids after visiting the Project site and

ascertaining for themselves the site conditions, location, surroundings, climate,

availability of power, water and other utilities for construction, access to site, handling

and storage of materials, weather data, applicable laws and regulations, and any other

matter considered relevant by them.

2.7.2 It shall be deemed that by submitting a Bid, the Bidder has:

a. made a complete and careful examination of the Bidding Documents;

b. received all relevant information requested from the Authority;

c. acknowledged and accepted the risk of inadequacy, error or mistake in the

information provided in the Bidding Documents or furnished by or on behalf of the

Authority relating to any of the matters referred to in Clause 2.7.1 above;

d. satisfied itself about all matters, things and information including matters referred to

in Clause 2.7.1 hereinabove necessary and required for submitting an informed Bid,

execution of the Project in accordance with the Bidding Documents and

performance of all of its obligations thereunder;

e. acknowledged and agreed that inadequacy, lack of completeness or incorrectness

of information provided in the Bidding Documents or ignorance of any of the matters

referred to in Clause 2.7.1 hereinabove shall not be a basis for any claim for

compensation, damages, extension of time for performance of its obligations, loss

of profits etc. from the Authority, or a ground for termination of the Concession

Agreement; and

f. agreed to be bound by the undertakings provided by it under and in terms hereof.

2.7.3 The Authority shall not be liable for any omission, mistake or error on the part of the

Bidder in respect of any of the above or on account of any matter or thing arising out of

or concerning or relating to RFP, the Bidding Documents or the Bidding Process,

including any error or mistake therein or in any information or data given by the Authority.

2.8 Right to Accept and to Reject Any or All Bids

2.8.1 Notwithstanding anything contained in the RFP, the Authority reserves the right to


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accept or reject any Bid and to annul the Bidding Process and reject all Bids at any time

without any liability or any obligation for such acceptance, rejection or annulment, and

without assigning any reasons therefore.

2.8.2 The Authority reserves the right to reject any Bid and appropriate the Bid Security if:

a. at any time, a material misrepresentation is made or uncovered, or

b. the Bidder does not provide, within the time specified by the Authority, the

supplemental information sought by the Authority for evaluation of the Bid.

2.8.3 Such misrepresentation/ improper response shall lead to the disqualification of the

Bidder. If the Bidder is a JV, then the entire JV shall be disqualified / rejected. If such

disqualification / rejection occurs after the Bids have been opened and the highest

Bidder gets disqualified / rejected, then the Authority reserves the right to:

i. invite the remaining Bidders to submit Bids in accordance with Clause 3.8.3 and

3.8.4; or

ii. take any such measure as may be deemed fit in the sole discretion of the Authority,

including annulment of the Bidding Process.

2.8.4 In case it is found during the evaluation or at any time before signing of the Concession

Agreement or after its execution and during the period of subsistence thereof, including

the Concession thereby granted by the Authority, that one or more of the pre-

qualification conditions have not been met by the Bidder or the Bidder has made

material misrepresentation or has given any materially incorrect or false information, the

Bidder shall be disqualified forthwith if not yet appointed as the Concessionaire either

by issue of the LOA or entering into of the Concession Agreement, and if the Bidder has

already been issued the LOA or has entered into the Concession Agreement, as the

case may be, the same shall, notwithstanding anything to the contrary contained therein

or in this RFP, be liable to be terminated, by a communication in writing by the Authority

to the Bidder, without the Authority being liable in any manner whatsoever to the Bidder

or Concessionaire, as the case may be. In such an event, the Authority shall forfeit and

appropriate the Bid Security or Performance Security, as the case may be, as mutually

agreed genuine pre-estimated compensation and damages payable to the Authority for,

inter alia, time, cost and effort of the Authority, without prejudice to any other right or

remedy that may be available to the Authority.

2.8.5 The Authority reserves the right to verify all statements, information and documents

submitted by the Bidder in response to the RFP or the Bidding Documents. Failure of

the Authority to undertake such verification shall not relieve the Bidder of its obligations

or liabilities hereunder nor will it affect any rights of the Authority thereunder.

B. Documents

2.9 Contents of the RFP

2.9.1 This RFP comprises the Disclaimer set forth hereinabove, the contents as listed below,

and will additionally include any Addenda issued in accordance with Clause 2.10.

Invitation for Bids

Section 1 Bid Data Sheet

Section 2 Selection Process and Instructions to Bidders

Section 3 Evaluation of Bids


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Section 4 Fraud and Corrupt Practices

Section 5 Pre-Bid Conference

Section 6 Miscellaneous

Appendices

I. Letter Comprising the Bid

II. Financial Proposal

III. Format of Bank Guarantee for Bid Security

IV. Power of Attorney for signing of Proposal

V. Power of Attorney for Lead Member of JV

VI. Guidelines of the Department of Disinvestment

VII. Joint Bidding Agreement

VIII. Format for Bid Security Declaration

IX. Format for previous 5-year litigation certificate

X. Format for Affidavit

2.9.2 The draft Concession Agreement to be provided by the Authority as part of the Bid

Documents shall be deemed to be part of this RFP.

2.10 Clarifications

2.10.1 Bidders requiring any clarification on the RFP may notify the Authority in writing by e-

mail in accordance with Clause 1.2.10. They should send in their queries before the

date mentioned in the Schedule of Bidding Process specified in Clause 1.2.11. The

Authority shall endeavour to respond to the queries within the period specified therein,

but no later than 15 (fifteen) days prior to the Bid Due Date. The responses will be

uploaded in the e-tender website.

2.10.2 The Authority shall endeavour to respond to the questions raised or clarifications sought

by the Bidders. However, the Authority reserves the right not to respond to any question

or provide any clarification, in its sole discretion, and nothing in this Clause shall be

taken or read as compelling or requiring the Authority to respond to any question or to

provide any clarification.

2.10.3 The Authority may also on its own motion, if deemed necessary, issue interpretations

and clarifications to all Bidders. All clarifications and interpretations issued by the

Authority shall be deemed to be part of the Bidding Documents. Verbal clarifications and

information given by Authority or its employees or representatives shall not in any way

or manner be binding on the Authority.

2.11 Amendment Modification of RFP

2.11.1 At any time prior to the deadline for submission of Bids, the Authority may, for any

reason, whether at its own initiative or in response to clarifications requested by a

Bidder, modify the RFP by the issuance of Addenda.

2.11.2 Any Addendum/Modification thus issued will be uploaded in the e-Tender website.

2.11.3 In order to afford the Bidders a reasonable time for taking an Addendum into account,

or for any other reason, the Authority may, at its own discretion, extend the Bid Due

Date.


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C. Preparation and Submission of Bids

2.12 Language

2.12.1 The Bid and all related correspondence and documents in relation to the Bidding

Process shall be in English language. Supporting documents and printed literature

furnished by the Bidder with the Proposal may be in any other language provided that

they are accompanied by translations of all the pertinent passages in the English

language, duly authenticated and certified by the Bidder. Supporting materials, which

are not translated into English, may not be considered. For the purpose of interpretation

and evaluation of the Bid, the English language translation shall prevail.

2.13 Format and Signing of Bid

2.13.1 The Bidder shall provide all the information sought under this RFP. The Authority will

evaluate only those Bids that are received in the required formats and complete in all

respects.

2.13.2 The Bidder shall submit its bid online in two folders separately i.e., “Technical Proposal

(Folder -I)” and “Financial Proposal (Folder-II)”. The contents of Technical and

Financial Bids will be as specified in this RFP. All documents are to be signed by the

authorized representative of the Bidders.

2.13.3 The Bid shall contain page numbers.

2.14 Sealing and Marking of Bids

2.14.1 The Bidder shall fill the excel utility supplied on e-tender website under the Financial

Proposal and upload the duly filled excel utility on e-tender website as per instructions

provided.

2.14.2 The documents of Technical Proposal shall be placed in a separate folder as specified

in e-tender website:

Folder 1: Technical Proposal

a. Proof of submission of Document fee of requisite amount as specified in Bid Data

Sheet.

b. Proof of submission of Bid Security as per Clause 2.3.5;

c. Power of Attorney for signing of Bid in the prescribed format (Appendix IV);

d. If applicable, the Power of Attorney for Lead Member of JV in the prescribed format

(Appendix V);

e. Certified copy of the Jt. Bidding Agreement, in case of a JV, substantially in the

format at Appendix VII;

f. Certified copy of Memorandum and Articles of Association, if the Bidder is a body

corporate, and if a partnership then a copy of its partnership deed;

g. Certified copies of Bidder's duly audited balance sheet and profit and loss account

for the preceding three years; and

h. A copy of the Concession Agreement with each page initialled by the person signing

the Bid in pursuance of the Power of Attorney referred to in Clause 2.14.2 (c)

hereinabove.

i. Letter comprising the Bid in the prescribed format (Appendix-I) along with Annexes

and supporting documents

j. Anti-Collusion Certificate in the format at Appendix VI

k. Bid security declaration in format at Appendix VIII


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l. Previous five years’ litigation history certificate in the format at Appendix IX

m. Affidavit in format at Appendix X

Proposal should contain information and details about each Member of the JV, wherever

required as per the RFP.

2.14.3 All the documents specified in Clauses 2.14.1, and 2.14.2 shall be uploaded on e-tender

website.

2.14.4 All communication shall be addressed to contact details provided in Bid Data Sheet.

2.14.5 Bids submitted by hard copy (except original documents specified in Clause 1.2.12),

fax, telex, telegram or e-mail shall not be entertained and shall be rejected.

2.15 Bid Due Date

2.15.1 Bids should be submitted as per schedule mentioned in Clause 1.2.11 in the manner

and form as detailed in this RFP.

2.15.2 The Authority may, in its sole discretion, extend the Bid Due Date by issuing an

Addendum in accordance with Clause 2.11 uniformly for all Bidders.

2.16 Late Bids

2.16.1 Bids received by the Authority after the specified time on the Bid Due Date shall not be

eligible for consideration and shall be summarily rejected.

2.17 Contents of the Bid

2.17.1 The Bid shall be furnished in the form of - Technical Proposal and Financial Proposal.

The contents of Technical Proposal shall be as mentioned in Clause 2.14.2 Financial

Proposal shall be as per the e-Bid format available on E-tendering website and shall

consist of Annual Concession Fee to be quoted by the Bidder. The Bidder shall specify

(in Indian Rupees) the Annual Concession Fee offered by him, to undertake the Project

in accordance with the RFP and the provisions of the Concession Agreement.

2.17.2 The Project will be awarded to the Bidder quoting the highest Annual Concession Fee.

2.17.3 The opening of Bids and acceptance thereof shall be substantially in accordance with

this RFP.

2.17.4 The proposed Concession Agreement shall be deemed to be part of the Bid.

2.18 Modifications/ Substitution/ Withdrawal of Bids

2.18.1 The Bidder may modify, substitute or withdraw its Bid after submission prior to Bid Due

Date. No Bid shall be modified, substituted or withdrawn by the Bidder on or after the

Bid Due Date.

2.18.2 Any alteration/ modification in the Bid or additional information supplied subsequent to

the Bid Due Date, unless the same has been expressly sought for by the Authority, shall

be disregarded.

2.19 Rejection of Bids

2.19.1 The Authority reserves the right to accept or reject all or any of the Bids without

assigning any reason whatsoever. It is not obligatory for the Authority to accept any Bid

or to give any reasons for their decision.

2.19.2 The Authority reserves the right not to proceed with the Bidding Process at any time,

without notice or liability, and to reject any Bid without assigning any reasons.


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2.20 Validity of Bids

2.20.1 The Bids shall be valid for a period of not less than period specified in Bid Data Sheet

from the Bid Due Date. The validity of Bids may be extended by mutual consent of the

respective Bidders and the Authority.

2.21 Confidentiality

2.21.1 Information relating to the examination, clarification, evaluation and recommendation for

the Bidders shall not be disclosed to any person who is not officially concerned with the

process or is not a retained professional advisor advising the Authority in relation to or

matters arising out of, or concerning the Bidding Process. The Authority will treat all

information, submitted as part of the Bid, in confidence and will require all those who

have access to such material to treat the same in confidence. The Authority may not

divulge any such information unless it is directed to do so by any statutory entity that

has the power under law to require its disclosure or is to enforce or assert any right or

privilege of the statutory entity and/ or the Authority.

2.22 Correspondence with the Bidder

2.22.1 The Authority shall not entertain any correspondence with from any Bidder in relation to

acceptance or rejection of any Bid.

D. Bid Security

2.23 Bid Security

2.23.1 The Bidder shall furnish as part of its Bid, a Bid Security as set forth in Clause 1.2.4 of

this RFP document. The Authority shall not be liable to pay any interest on the Bid

Security deposit so made and the same shall be interest free.

2.23.2 Any Bid not accompanied by the Bid Security shall be rejected by the Authority as non-

responsive.

2.23.3 Save as provided in Clauses 1.2.4 and 1.2.5 above, the Bid Security of unsuccessful

Bidders will be returned by the Authority, without any interest, as promptly as possible

on acceptance of the Bid of the Successful Bidder or when the Bidding process is

cancelled by the Authority.

2.23.4 The Successful Bidder's Bid Security will be returned, without any interest, upon the

Bidder signing the Concession Agreement and furnishing the Performance Security in

accordance with the provisions thereof. The Authority may, at the Successful Bidder's

option, adjust the amount of Bid Security in the amount of Performance Security to be

provided by him in accordance with the provisions of the Concession Agreement.

2.23.5 The Authority shall be entitled to forfeit and appropriate the Bid Security as mutually

agreed genuine pre-estimated compensation / damages to the Authority in any of the

events specified in Clause 2.23.6 herein below. The Bidder, by submitting its Bid

pursuant to this RFP, shall be deemed to have acknowledged and confirmed that the

Authority will suffer loss and damage on account of withdrawal of its Bid or for any other

default by the Bidder during the Bid validity period. No relaxation of any kind on Bid

Security shall be given to any Bidder.

2.23.6 The Bid Security shall be forfeited and appropriated by the Authority as mutually agreed

genuine pre-estimated compensation and damages payable to the Authority for, inter

alia, time, cost and effort of the Authority without prejudice to any other right or remedy

that may be available to the Authority hereunder or otherwise, under the following


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conditions:

I. If a Bidder submits a non-responsive Bid;

II. If a Bidder engages in a corrupt practice, fraudulent practice, coercive practice,

undesirable practice or restrictive practice as specified in Clause 4 of this RFP;

III. If a Bidder withdraws its Bid during the period of Bid validity as specified in this RFP

and as extended by the Bidder from time to time;

IV. In the case of Successful Bidder, if it fails within the specified time limit -

V. to sign the Concession Agreement and/or

VI. to furnish the Performance Security within the period prescribed therefore in the

Concession Agreement; or

VII. In case the Successful Bidder, having signed the Concession Agreement, commits

any breach thereof prior to furnishing the Performance Security.


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3 Evaluation of Bids

3.1 Opening and Evaluation of Bids

3.1.1 The Authority shall open the Technical Proposals on the Bid Due Date, at the place

specified in Bid Data Sheet and in the presence of the Bidders who choose to attend.

3.1.2 The Authority shall open Financial Proposals of only those Bidders who meet the

eligibility criteria specified in Clause 2.2.3 and 2.2.4 at such date and time as intimated

by the Authority.

3.1.3 The Authority will subsequently examine and evaluate the Bids in accordance with the

provisions set out in this Section 3.

3.1.4 To facilitate evaluation of Bids, the Authority may, at its sole discretion, seek

clarifications in writing from any Bidder regarding its Bid.

3.2 Evaluation of Technical Proposal

3.2.1 The Bidder’s competence and capability shall be evaluated on the basis of by the

following parameters:

a. Technical Capacity; and

b. Financial Capacity

3.3 Tests of Responsiveness

3.3.1 Prior to evaluation of Bids, the Authority shall determine whether each Bid is responsive

to the requirements of the RFP. A Bid shall be considered responsive only if:

a. Technical Proposal is received as specified in Clause 2.14.2;

b. Financial Proposal is received as per the format at Appendix II;

c. it is received by the Bid Due Date including any extension thereof pursuant to

Clause 2.14.2;

d. it is signed and marked as stipulated in Clauses 2.13 and 2.14;

e. it is accompanied by the Bid Security as specified in Clause 2.3.5;

f. it is accompanied by the Power(s) of Attorney as specified in Clauses 2.3.7 and

2.3.8, as the case may be;

g. it contains all the information (complete in all respects) as requested in this RFP

and/or Bidding Documents (in formats same as those specified);

h. it does not contain any condition or qualification; and

3.4 Details of Experience

3.4.1 The Bidder should furnish the details of Eligible Experience in accordance to clause

2.2.3 (a).

3.4.2 The Bidders must provide the necessary information relating to Technical Capacity as

per formats at Appendix I.

3.4.3 The Bidder should furnish the required Project-specific information and evidence in

support of its claim of Technical Capacity, as per format at Annex ii of Appendix I.

3.5 Financial Information for Purposes of Evaluation

3.5.1 The Bid must be accompanied by the Audited Annual Reports of the Bidder (of each

Member in case of a JV) for the last 3 (three) financial years, preceding the year in which

the Bid is made.

3.5.2 The bid must be accompanied by the Audited Annual Financial Statements along


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with ITR and 26 AS of the bidder(of each member in case of a JV) for last 3(three)

financial years, preceding the year in which the Bid is made.

3.5.3 In case the annual accounts for the latest financial year are not audited and therefore

the Bidder cannot make it available, the Bidder shall give an undertaking to this effect

and the statutory auditor shall certify the same. In such a case, the Bidder shall provide

the Audited Annual Reports for 3 (three) years preceding the year for which the Audited

Annual Report is not being provided.

3.5.4 The Bidder must establish the minimum Net Worth specified in Clause 2.2.3 (b), and

provide details as per format at Annex iii of Appendix I.

3.5.4.1 The bidder shall quote a fixed annual concession fee amount, to be paid to the

Authority per financial year including first financial year during the concession

period. The Annual Concession Fee amount shall be increased in accordance

to Clause 1.1.10.

3.5.4.2 The minimum amount of Annual Concession Fee for the first year (the

"Threshold Amount") is as specified in Bid Data Sheet. The bidder shall quote

Annual Concession Fee amount for the first year which shall not be less than

the Threshold Amount. The Annual Concession Fee amount shall be increased

in accordance to Clause 1.1.10.

3.6 Technical Capacity for Purposes of Evaluation

3.6.1 The Authority reserves the right to reject any Bid which is non-responsive and no

request for alteration, modification, substitution or withdrawal shall be entertained by the

Authority in respect of such Bid.

3.6.2 Eligible Experience in respect of each category shall be measured only for Eligible

Project(s).

3.6.3 The Bidder shall quote experience in respect of a particular Eligible Project under any

one category only, even though the Bidder (either individually or along with a member

of the JV) may have played multiple roles in the cited project. Double counting for a

particular Eligible Project shall not be permitted in any form.

3.6.4 Experience for any activity relating to an Eligible Project shall not be claimed by two or

more Members of the JV. In other words, no double counting by a JV in respect of the

same experience shall be permitted in any manner whatsoever.

3.6.5 The entity claiming experience shall, during the last 7 (seven) financial years preceding

the Bid Due Date, have (i) paid for development of the project (excluding the cost of

land), and/or (ii) collected and appropriated the revenues from the project.

3.7 Shortlisting of Bidders

3.7.1 In the first step of evaluation, Technical Proposals of Bidders adjudged responsive in

terms of Clause 3.1.1 shall be considered for Technical evaluation per Clause 2.2 and

3.6 of this RFP. The Bidders qualifying as per the conditions shall be shortlisted as pre-

qualified Bidders and shall be considered for the next step of evaluation.

3.7.2 In second step of evaluation, Financial Proposals of only those Bidders who have

passed the first step shall be opened in presence of the nominees of the Bidders, who

choose to attend the same.

3.8 Selection of Bidder

3.8.1 The Bidder quoting the highest Annual Concession Fee for first year offered to the

Authority shall be declared as the Successful Bidder (the “Successful Bidder”). The


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bidder shall quote a fixed annual concession fee amount, to be paid to the Authority per

financial year including first financial year during the concession period. The Annual

Concession Fee amount shall be increased in accordance to Clause 1.1.10

3.8.2 In the event that two or more Bidders quote the same amount of Annual Concession

Fee (the "Tie Bidders"), the Authority shall identify the Successful Bidder by draw of

lots, which shall be conducted, with prior notice, in the presence of the Tie Bidders who

choose to attend.

3.8.3 In the event that the highest Bidder withdraws or is not selected for any reason in the

first instance (the “first round of bidding”), the Authority may invite all the remaining

Bidders to revalidate or extend their respective Bid Security, as necessary, and match

the Bid of the aforesaid highest Bidder (the “second round of bidding”). If in the

second round of bidding, only one Bidder matches the highest Bidder, it shall be the

Successful Bidder. If two or more Bidders match the said highest Bidder in the second

round of bidding, then the Bidder whose Bid was higher as compared to other Bidder(s)

in the first round of bidding shall be the Successful Bidder. For example, if the third and

fifth highest Bidders in the first round of bidding offer to match the said highest Bidder

in the second round of bidding, the said third highest bidder shall be the Successful

Bidder.

3.8.4 In the event that no Bidder offers to match the highest Bidder in the second round of

bidding as specified in Clause 3.8.3, the Authority may, in its discretion, invite fresh Bids

(the “third round of bidding”) from all Bidders except highest Bidder of the first round

of bidding, or annul the Bidding Process, as the case may be. In case the Bidders are

invited in the third round of bidding to revalidate or extend their Bid Security, as

necessary, and offer fresh Bids, they shall be eligible for submission of fresh Bids

provided, however, that in such third round of bidding only such bids shall be eligible for

consideration which are higher than the Bid of the second highest Bidder in the first

round of bidding.

3.8.5 After selection, a Letter of Acceptance (the “LOA”) shall be issued by the Authority to

the Successful Bidder and the Successful Bidder shall, within 7 (seven) days of the

receipt of the LOA, confirm their acceptance. In the event the Successful Bidder fails to

confirm acceptance of LOA the Authority may, unless it consents to extension of time

for submission thereof, appropriate the Bid Security of such Bidder as mutually agreed

genuine pre-estimated loss and damage suffered by the Authority on account of failure

of the Successful Bidder to accept the LOA, and the next eligible Bidder may be

considered.

3.8.6 After acknowledgement of the LOA as aforesaid by the Successful Bidder, it shall

execute the Concession Agreement within the 30 (thirty) days from the date of issue of

LoA. The Successful Bidder shall not be entitled to seek any deviation in the Concession

Agreement.

3.9 Contacts During Bid Evaluation

3.9.1 Bids shall be deemed to be under consideration immediately after they are opened and

until such time the Authority makes official intimation of award/ rejection to the Bidders.

While the Bids are under consideration, Bidders and/ or their representatives or other

interested parties are advised to refrain from contacting by any means, the Authority

and/ or their employees/ representatives on matters related to the Bids under

consideration.


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4 Fraud and Corrupt Practices

4.1 The Bidders and their respective officers, employees, agents and advisers shall observe the

highest standard of ethics during the Bidding Process and subsequent to the issue of the

LOA and during the subsistence of the Concession Agreement. Notwithstanding anything to

the contrary contained herein, or in the LOA or the Concession Agreement, the Authority

shall reject a Bid, withdraw the LOA, or terminate the Concession Agreement, as the case

may be, without being liable in any manner whatsoever to the Bidder or Concessionaire, as

the case may be, if it determines that the Bidder or Concessionaire, as the case may be,

has, directly or indirectly or through an agent, engaged in corrupt practice, fraudulent

practice, coercive practice, undesirable practice or restrictive practice in the Bidding Process.

In such an event, the Authority shall forfeit and appropriate the Bid Security or Performance

Security, as the case may be, as mutually agreed genuine pre-estimated compensation and

damages payable to the Authority towards, inter alia, time, cost and effort of the Authority,

without prejudice to any other right or remedy that may be available to the Authority

hereunder or otherwise.

4.2 Without prejudice to the rights of the Authority under Clause 4.1 hereinabove and the rights

and remedies which the Authority may have under the LOA or the Concession Agreement,

if a Bidder or Concessionaire, as the case may be, is found by the Authority to have directly

or indirectly or through an agent, engaged or indulged in any corrupt practice, fraudulent

practice, coercive practice, undesirable practice or restrictive practice during the Bidding

Process, or after the issue of the LOA or the execution of the Concession Agreement, such

Bidder or Concessionaire shall not be eligible to participate in any tender or RFP issued by

the Authority during a period of 2 (two) years from the date such Bidder or Concessionaire,

as the case may be, is found by the Authority to have directly or indirectly or through an

agent, engaged or indulged in any corrupt practice, fraudulent practice, coercive practice,

undesirable practice or restrictive practices, as the case may be.

4.3 For the purposes of this Clause 4, the following terms shall have the meaning hereinafter

respectively assigned to them:

a. “corrupt practice” means (i) the offering, giving, receiving, or soliciting, directly or

indirectly, of anything of value to influence the actions of any person connected with the

Bidding Process (for avoidance of doubt, offering of employment to or employing or

engaging in any manner whatsoever, directly or indirectly, any official of the Authority

who is or has been associated in any manner, directly or indirectly with the Bidding

Process or the LOA or has dealt with matters concerning the Concession Agreement or

arising therefrom, before or after the execution thereof, at any time prior to the expiry of

one year from the date such official resigns or retires from or otherwise ceases to be in

the service of the Authority, shall be deemed to constitute influencing the actions of a

person connected with the Bidding Process); or (ii) engaging in any manner whatsoever,

whether during the Bidding Process or after the issue of the LOA or after the execution

of the Concession Agreement, as the case may be, any person in respect of any matter

relating to the Project or the LOA or the Concession Agreement, who at any time has

been or is a legal, financial or technical adviser of the Authority in relation to any matter

concerning the Project;

b. “fraudulent practice” means a misrepresentation or omission of facts or suppression

of facts or disclosure of incomplete facts, in order to influence the Bidding Process;


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c. “coercive practice” means impairing or harming, or threatening to impair or harm,

directly or indirectly, any person or property to influence any person’s participation or

action in the Bidding Process;

d. “undesirable practice” means (i) establishing contact with any person connected with

or employed or engaged by the Authority with the objective of canvassing, lobbying or

in any manner influencing or attempting to influence the Bidding Process; or (ii) having

a Conflict of Interest; and

e. “restrictive practice” means forming a cartel or arriving at any understanding or

arrangement among Bidders with the objective of restricting or manipulating a full and

fair competition in the Bidding Process.


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5 Pre-Bid Conference

5.1 To clarify and discuss issues with respect to the work and the proposal, a Pre-Proposal

meeting will be held on the date, time and place indicated in the Tender Schedule given on

Page no. 17 of this document, subject to required permissions on account of situation arising

out of COVID 19. In addition, participation through Video Conference (VC) will also be

facilitated, details for which will be shared on request. Attendance of the bidders at the Pre-

Proposal meeting is not mandatory. But it is highly recommended to attend for

understanding the provisions of RFP and Selection process. Interested bidders are

requested to submit the queries / suggestions / comments as per following format through

MS Word file:

Page No. Clause No. Existing Clause Queries / Suggestions / Comments

5.2 During the course of Pre-Bid conference, the Bidders will be free to seek clarifications and

make suggestions for consideration of the Authority. The Authority shall endeavour to

provide clarifications and such further information as it may, in its sole discretion, consider

appropriate for facilitating a fair, transparent and competitive Bidding Process.


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6 Miscellaneous

6.1 The Bidding Process shall be governed by, and construed in accordance with, the laws of

India and the Courts at Dehradun shall have exclusive jurisdiction over all disputes arising

under, pursuant to and/ or in connection with the Bidding Process.

6.2 The Authority, in its sole discretion and without incurring any obligation or liability, reserves

the right, at any time, to;

a. Suspend and/ or cancel the Bidding Process and/ or amend and/ or supplement the

Bidding Process or modify the dates or other terms and conditions relating thereto;

b. Consult with any Bidder in order to receive clarification or further information;

c. retain any information and/ or evidence submitted to the Authority by, on behalf of, and/

or in relation to any Bidder; and/ or

d. Independently verify, disqualify, reject and/ or accept any and all submissions or other

information and/ or evidence submitted by or on behalf of any Bidder.

6.3 It shall be deemed that by submitting the Bid, the Bidder agrees and releases the Authority,

its employees, agents and advisers, irrevocably, unconditionally, fully and finally from any

and all liability for claims, losses, damages, costs, expenses or liabilities in any way related

to or arising from the exercise of any rights and/ or performance of any obligations

hereunder, pursuant hereto and/ or in connection herewith and waives any and all rights and/

or claims it may have in this respect, whether actual or contingent, whether present or future.


Page 39 of 156

Appendix I. Letter Comprising the Bid

(Refer Clause 2.2.6)

Dated:

To,

The Chief Executive Officer


Pt. Deen Dayal Upadhyay Paryatan Bhawan, Near O.N.G.C. Helipad, Nimbuwala, Garhi Cantt,

Dehradun, Uttarakhand – 248003

Sub: Proposal for Project - Development of Alaknanda hotel as 5-Star Hotel on DBFOT basis

Dear Sir / Madam,

1. With reference to the RFP document dated ………..*, I/we, having examined the RFP document

and understood its contents, hereby submit my/our Proposal for the aforesaid project. The Proposal

is unconditional and unqualified.

2. I/ We acknowledge that the Authority will be relying on the information provided in the Proposal and

the documents accompanying such Proposal of the Bidders, and we certify that all information

provided in the Proposal and in Annexes I to IV is true and correct; nothing has been omitted which

renders such information misleading; and all documents accompanying such Proposal are true

copies of their respective originals.

3. This statement is made for the express purpose of qualifying as a Bidder for the development,

construction, operation and maintenance of the aforesaid Project.

4. I/ We shall make available to the Authority any additional information it may find necessary or

require to supplement or authenticate the Proposal statement.

5. I/ We acknowledge the right of the Authority to reject our Proposal without assigning any reason or

otherwise and hereby waive our right to challenge the same on any account whatsoever.

6. I/ We certify that in the last three years, we/ any of the JV Members or our/ their Associates have

neither failed to perform on any contract, as evidenced by imposition of a penalty by an arbitral or

judicial authority or a judicial pronouncement or arbitration award, nor been expelled from any

project or contract nor have had any contract terminated for breach on our part.

7. I/ We declare that:

a. I/ We have examined and have no reservations to the RFP document, including any Addendum

issued by the Authority.

b. I/ We do not have any conflict of interest in accordance with Clauses 2.3.12 and 2.3.13 of the

RFP document; and

c. I/We have not directly or indirectly or through an agent engaged or indulged in any corrupt

practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice, as

defined in Clause 4.3 of the RFP document, in respect of any tender or request for proposal

issued by or any agreement entered into with the Authority or any other public sector enterprise

or any government, Central or State; and

d. I/ We hereby certify that we have taken steps to ensure that in conformity with the provisions of

Section 4 of the RFP document, no person acting for us or on our behalf has engaged or will

engage in any corrupt practice, fraudulent practice, coercive practice, undesirable practice or

restrictive practice.

* All blank spaces shall be suitably filled up by the Bidder to reflect the particulars relating to such Bidder


Page 40 of 156

8. I/ We understand that you may cancel the Bidding Process at any time and that you are neither

bound to accept any Proposal that you may receive nor to invite the Bidders to Bid for the Project,

without incurring any liability to the Bidders, in accordance with Clause 2.19.2 of the RFP document.

9. I/ We believe that we/ our JV / proposed JV satisfy(ies) the Net Worth criteria and meet(s) all the

requirements as specified in the RFP document and are/ is qualified to submit a Bid.

10. I/ We declare that we/ any Member of the JV, or our/ its Associates are not a Member of a/ any

other JV applying for qualification.

11. I/ We certify that in regard to matters other than security and integrity of the country, we/ any

Member of the JV or any of our/ their Associates have not been convicted by a Court of Law or

indicted or adverse orders passed by a regulatory authority which could cast a doubt on our ability

to undertake the Project or which relates to a grave offence that outrages the moral sense of the

community.

12. I/ We further certify that in regard to matters relating to security and integrity of the country, we/ any

Member of the JV or any of our/ their Associates have not been charge-sheeted by any agency of

the Government or convicted by a Court of Law.

13. I/ We further certify that no investigation by a regulatory authority is pending either against us/ any

Member of the JV or against our/ their Associates or against our CEO or any of our Directors/

Managers/ employees.

14. I/ We undertake that in case due to any change in facts or circumstances during the Bidding

Process, we are attracted by the provisions of disqualification in terms of the provisions of this RFP;

we shall intimate the Authority of the same immediately.

15. The Statement of Legal Capacity as per format provided at Annex v in Appendix I of the RFP

document, and duly signed, is enclosed. The power of attorney for signing of proposal and the

power of attorney for Lead Member of JV, as per format provided at Appendix IV and V respectively

of the RFP, are also enclosed.

16. I/ We understand that the Successful Bidder shall either be an existing Company incorporated

under the Indian Companies Act, 1956, or shall incorporate as such prior to execution of the

Concession Agreement.

17. I/ We hereby confirm that we [are in compliance of/ shall comply with] the O&M requirements

specified in Clause 2.2.6.

18. I/ We hereby irrevocably waive any right or remedy which we may have at any stage at law or

howsoever otherwise arising to challenge or question any decision taken by the Authority in

connection with the selection of the Bidder, or in connection with the selection/ Bidding Process

itself, in respect of the above mentioned Project and the terms and implementation thereof.

19. I/ We agree and undertake to abide by all the terms and conditions of the RFP document.

20. I/ We certify that in terms of the RFP, my/our Net worth is ₹. ……………….. (Rupees In words).

21. {We agree and undertake to be jointly and severally liable for all the obligations of the

Concessionaire under the Concession Agreement till occurrence of Financial Close in accordance

with the Concession Agreement.}†

In witness thereof, I/ we submit this proposal under and in accordance with the terms of the RFP

document.

Yours faithfully,

Date: (Signature, name and designation of the Authorised Signatory)

Place: Name and seal of the Bidder/ Lead Member

† Omit if the Bidder is not a JV


Page 41 of 156

Annex i. Details of Bidder

1

.

a. Name:

b. Country of incorporation:

c. Address of the Corporate headquarters and its branch office(s), if any, in India:

d. Date of incorporation and /or commencement of business:

2

.

Brief description of the Company including details of its main lines of business and proposed role

and responsibilities in this Project:

3

.

a. Details of individual(s) who will serve as the point of contact/ communication for the Authority:

b. Name:

c. Designation:

d. Company:

e. Address:

f. Telephone Number:

g. E-Mail Address:

h. Fax Number:

4

.

a. Particulars of the Authorised Signatory of the Bidder:

b. Name

c. Designation:

d. Address:

e. Phone Number:

f. Fax Number:

5

.

In case of a JV:

a. The information above (1-4) should be provided for all the Members of the JV.

b. A copy of the Jt. Bidding Agreement, as envisaged in Clause 2.2.2 (g) should be attached to

the Proposal.

c. Information regarding the role of each Member should be provided as per table below:

Sl. No.

Name of the Member Role‡ {Refer Clause 2.2.2. (d)}§

Percentage of equity in the JV {Refer Clauses 2.2.2 (a), (c) & (g)}

1.

2.

3.

The following information shall also be provided for each Member of the JV:

No. Criteria Yes No

1.

Has the Bidder/ constituent of the JV been barred by the [Central/ State] Government, or any entity controlled by it, from participating in any project (BOT or otherwise).

2. If the answer to 1 is yes, does the bar subsist as on the date of Proposal

3.

Has the Bidder/ constituent of the JV paid liquidated damages of more than 5% of the contract value in a contract due to delay or has been penalised due to any other reason in relation to execution of a contract, in the last three years?

‡ The role of each Member, as may be determined by the Bidder, should be indicated in accordance with instruction 4 at Annex-IV.

§ All provisions contained in curly parenthesis shall be suitably modified by the Bidder to reflect the particulars relating to such Bidder.


Page 42 of 156

6

.

A statement by the Bidder and each of the Members of its JV (where applicable) or any of their

Associates disclosing material non- performance or contractual non-compliance in past projects,

contractual disputes and litigation/ arbitration in the recent past is given below (Attach extra

sheets, if necessary)


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Annex ii. Technical Capacity of the Bidder**

(Refer to Clauses 2.2.3(a), 3.3 and 3.4 of the RFP)

Bidder Type†† Member

Code‡‡

Project

Code§§ Category***

Experience††† (Equivalent ₹ Crore)‡‡‡

Payments made/ received for construction

/ installation / operation of Eligible Projects

(1) (2) (3) (4) (5)

Single Entity

Bidder

a

b

c

d

JV Member 1

1a

1b 1c

1d

JV Member 2

2a

2b

2c

2d

JV Member 3

3a

3b

3c

3d

** Provide details of only those projects that have been undertaken by the Bidder under its own name and/ or by an Associate

specified in Clause 2.3.19 and/ or by a project company eligible under Clause 3.6. Include only those projects which have an estimated capital cost exceeding the amount specified in Clause 2.2.3(a). In case the Bid Due Date falls within 3 (three) months of the close of the latest financial year, refer to Clause 3.5.2

†† A Bidder consisting of a single entity should fill in details as per the row titled Single entity Bidder and ignore the rows titled

JV Member. In case of a JV, the row titled Single entity Bidder may be ignored. In case credit is claimed for an Associate,

necessary evidence to establish the relationship of the Bidder with such Associate, in terms of Clause 2.3.19, shall be provided.

‡‡ Member Code shall indicate NA for Not Applicable in case of a single entity Bidder. For other Members, the following

abbreviations are suggested viz. LM means Lead Member, TM means Technical Member, OMM means Operation & Maintenance Member, OM means Other Member.

§§ Refer Annex iv of this Appendix I. Add more rows if necessary.

*** Refer Clause 3.6.1.

††† In eligible projects, Construction/installation shall not include supply of goods or equipment except when such goods or

equipment form part of a turn-key contract/ EPC contract for the project. In no case shall the cost of land be included while evaluating the experience of an Eligible Project.

‡‡‡ For conversion of US Dollars to Rupees, the rate of conversion shall be rate as on the date 60 (sixty) days prior to the Bid

Due Date. In case of any other currency, the same shall first be converted to US Dollars as on the date 60 (sixty) days prior to the Bid Due Date, and the amount so derived in US Dollars shall be converted into Rupees at the aforesaid rate. The conversion rate of such currencies shall be the daily representative exchange rates published by the International Monetary Fund for the relevant date.


Page 44 of 156

Annex iii. Financial Capacity of the Bidder

(Refer to Clauses 2.2.4 and 3.5 of the RFP)

(In ₹ crore§§§)

Bidder type**** Member Code†††† Net Worth‡‡‡‡

As on 31st March 2020

(1) (2) (3)

Single entity Bidder

JV Member 1

JV Member 2

JV Member 3

TOTAL

Name & address of Bidder’s Bankers:

Instructions:

1. The Bidder/ its constituent JV Members shall attach copies of the balance sheets, financial

statements and Annual Reports for 3 (three) years preceding the Proposal Due Date. The financial

statements shall:

a. reflect the financial situation of the Bidder or JV Members and its/ their Associates where

the Bidder is relying on its Associate’s financials;

b. be audited by a statutory auditor;

c. be complete, including all notes to the financial statements; and

d. correspond to accounting periods already completed and audited (no statements for partial

periods shall be requested or accepted).

2. Net Worth shall mean:

a. For Company = Paid-up Equity Capital fund + Free Reserves

b. For Partnership Firm = Aggregate of partners' capital account + Reserves - Aggregate of

drawings by partners - Aggregate of advances to partners - (Revaluation reserves +

Miscellaneous expenditure not written off)

c. For Proprietor firm/ Proprietorship = Capital account/ computation in ITR.

3. In the case of a JV, a copy of the Jt. Bidding Agreement shall be submitted in accordance with

Clause 2.2.2 (h) of the RFP document.

4. The Bidder shall also provide the name and address of the Bankers to the Bidder.

5. The Bidder shall provide an Auditor’s Certificate specifying the Net Worth of the Bidder and also

specifying the methodology adopted for calculating such Net Worth in accordance with Clause 2.2.6

of the RFP document.

§§§ For conversion of other currencies into rupees, see note below Annex ii of Appendix I.

**** A Bidder consisting of a single entity should fill in details as per the row titled Single entity Bidder and ignore the rows titled

JV Members. In case of a JV, row titled Single entity Bidder may be ignored.

†††† For Member Code, see instruction 4 at Annex iv of this Appendix I.

‡‡‡‡ The Bidder should provide details of its own Financial Capability or of an Associate specified in Clause 2.3.20.


Page 45 of 156

Annex iv. Details of Eligible Projects

(Refer to Clauses 2.2.3(a), 3.2 and 3.3 of the RFP)

Experience Project Code:

Item Refer Instruction Particulars of the Project

(1) (2) (3)

Title & nature of the project

Category 5

Year-wise (a) payments received/ made for construction / installation / operation payments made for development of projects

6

Entity for which the project was constructed/ developed

7

Location

Project cost 8

Date of commencement of project/ contract

Date of completion/ commissioning 9

Equity shareholding (with period during which equity was held)

10

Whether credit is being taken for the Eligible Experience of an Associate (Yes/ No)

16

Instructions:

1. Bidders are expected to provide information in respect of each Eligible Projects in this Annex. The

projects cited must comply with the eligibility criteria specified in Clause 2.2 of the RFP, as the case

may be. Information provided in this section is intended to serve as a backup for information

provided in the Proposal. Bidders should also refer to the Instructions below.

2. For a single entity Bidder, the Experience Project Codes would be a, b, c, d etc. In case the Bidder

is a JV then for Member 1, the Experience Project Codes would be 1a, 1b, 1c, 1d etc., for Member

2 the Experience Project Codes shall be 2a, 2b, 2c, 2d etc., and so on.

3. A separate sheet should be filled for each Eligible Project.

4. Member Code shall indicate NA for Not Applicable in case of a single entity Bidder. For other

Members, the following abbreviations are suggested viz. LM means Lead Member, TM means

Technical Member, FM means Financial Member, OMM means Operation & Maintenance Member;

and OM means Other Member. In case the Eligible Project relates to an Associate of the Bidder or

its Member, write “Associate” along with Member Code.

5. Refer to Clause 2.2.3 of the RFP for category number.

6. The total payments received/ made and/or revenues appropriated for each Eligible Project are to

be stated in Annex ii of this Appendix I. The figures to be provided here should indicate the break-

up for the past 7 (seven) financial years. Year 1 refers to the financial year immediately preceding

the Proposal Due Date; Year 2 refers to the year before Year 1, Year 3 refers to the year before

Year 2, and so on. For Categories 1 and 2, expenditure on development of the project and/or

revenues appropriated, as the case may be, should be provided, but only in respect of projects

having an estimated capital cost exceeding the amount specified in Clause 2.2.3. Payment for

construction works should only include capital expenditure and should not include expenditure on

repairs and maintenance.

7. In case of projects where Operation and Maintenance or construction experience is shown,

particulars such as name, address and contact details of owner / Authority / Agency (i.e.,

concession grantor, counter party to PPA, etc.) may be provided.

8. Provide the estimated capital cost of Eligible Project.


Page 46 of 156

9. For ownership projects, the date of commissioning of the project, upon completion, should be

indicated. For projects with construction experience shown, date of completion of construction

should be indicated. In the case of projects under implementation, the likely date of completion or

commissioning, as the case may be, shall be indicated.

10. For projects, wherever applicable, the equity shareholding of the Bidder, in the company owning he

Eligible Project, held continuously during the period for which Eligible Experience is claimed, needs

to be given.

11. Experience for any activity relating to an Eligible Project shall not be claimed by two or more

Members of the JV. In other words, no double counting by a JV in respect of the same experience

shall be permitted in any manner whatsoever.

12. Certificate from the Bidder’s statutory auditor§§§§ or its respective clients must be furnished as per

formats below for each Eligible Project. In jurisdictions that do not have statutory auditors, the

auditors who audit the annual accounts of the Bidder/ Member/Associate may provide the requisite

certification.

13. If the Bidder is claiming experience under Categories 1 & 2*****, it should provide a certificate from

its statutory auditor in the format below:

Certificate from the Statutory Auditor regarding PPP projects†††††

Based on its books of accounts and other published information authenticated by it, this is to certify

that …………………….. (name of the Bidder/Member/Associate) is/ was an equity shareholder in

……………….. (title of the project company) and holds/ held ₹. ……… cr. (Rupees

………………………….. crore) of equity (which constitutes ……..%‡‡‡‡‡ of the total paid up and

subscribed equity capital) of the project company from …………... (date) to …………….. (date)§§§§§.

The project was/is likely to be commissioned on ……………. (date of commissioning of the project).

We further certify that the total estimated capital cost of the project is ₹. ……… cr. (Rupees

…………………crore), of which ₹. ……… cr. (Rupees …………… crore) of capital expenditure was

incurred during the past five financial years as per year wise details noted below:

………………………

………………………

We also certify that the eligible annual revenues collected and appropriated by the aforesaid project

company in terms of Clause 2.2.3 (a) (i) of the RFP during the past five financial years were ₹ ………

cr. as per year-wise details noted below:

………………………

………………………

§§§§ In case duly certified audited annual financial statements containing the requisite details are provided, a separate certification

by statutory auditors would not be necessary

***** Refer Clause 3.2.1 of the RFP.

††††† Provide Certificate as per this format only. Attach Explanatory Notes to the Certificate, if necessary. Statutory auditor means

the entity that audits and certifies the annual accounts of the company

‡‡‡‡‡ Refer instruction no. 10 in this Annex-IV.

§§§§§ In case the project is owned by the Bidding company, this language may be suitably modified to read: “It is certified that

…………….. (name of Bidder) constructed and/ or owned the ………….. (name of project) from ……………….. (date) to ………………… (date).”


Page 47 of 156

Name of the audit firm:

Seal of the audit firm: (Signature, name and designation of the authorised signatory)

Date:

14. If the Bidder is claiming experience under Category 3, it should provide a certificate from its statutory

auditors or the client in the format below:

Certificate from the Statutory Auditor/ Client regarding construction works******

Based on its books of accounts and other published information authenticated by it, {this is to certify

that …………………….. (name of the Bidder/Member/Associate) was engaged by ………………..

(title of the project company) to execute ……………… (name of project) for …………………. (nature

of project)}††††††. The construction of the project commenced on ………….. (date) and the project

was/ is likely to be commissioned on …………… (date, if any). It is certified that ……………. (name

of the Bidder/ Member/ Associate) received/paid ₹ ……….. cr. (Rupees

……………………………crore) by way of payment for the aforesaid construction works.

We further certify that the total estimated capital cost of the project is ₹. …… cr. (Rupees

…………………crore), of which the Bidder/Member/Associate received/paid ₹. ……… cr. (Rupees

……………………… crore), in terms of Clauses 2.2.3 (a) (ii) of the RFP, during the past five financial

years as per year wise details noted below:

………………………

………………………

{It is further certified that the payments/ receipts indicated above are restricted to the share of the

Bidder who undertook these works as a partner or a member of joint venture.}‡‡‡‡‡‡


Seal of the audit firm: (Signature, name and designation of the authorised signatory).

Date:

15. In the event that credit is being taken for the Eligible Experience of an Associate, as defined in

Clause 2.3.20, the Bidder should also provide a certificate in the format below:

Certificate from Statutory Auditor/ Company Secretary regarding Associate§§§§§§

****** Provide Certificate as per this format only. Attach Explanatory Notes to the Certificate, if necessary. Statutory auditor means

the entity that audits and certifies the annual accounts of the company

†††††† In case the Bidder owned the Eligible Project and engaged a contractor for undertaking the construction works, this

language may be modified to read: “ this is to certify that …………… (name of Bidder/ Member/ Associate) held 26% or more of the paid up and subscribed share capital in the……………. (name of Project company) when it undertook construction of the ………………. (name of Project) through ………………… (name of the contractor).

‡‡‡‡‡‡ This certification should only be provided in case of jobs/ contracts, which are executed as part of a partnership/ joint

venture. The payments indicated in the certificate should be restricted to the share of Bidder in such partnership/ joint venture. This portion may be omitted if the contract did not involve a partnership/ joint venture. In case where work is not executed by partnership/ joint venture, this paragraph may be deleted.

§§§§§§ In the event that the Bidder / JV Member exercises control oven an Associate by operation of law, this certificate may be

suitably modified and copies of the relevant law may be enclosed and referred to.


Page 48 of 156

Based on the authenticated record of the Company, this is to certify that more than 50% (fifty per

cent) of the subscribed and paid up voting equity of ……………… (name of the Associate) is held,

directly or indirectly*******, by ……………….. (name of Bidder/ JV Member). By virtue of the aforesaid

share-holding, the latter exercises control over the former, who is an Associate in terms of Clause

2.3.20 of the RFP.

A brief description of the said equity held, directly or indirectly, is given below:

{Describe the share-holding of the Bidder/ JV Member in the Associate}


Seal of the audit firm: (Signature, name and designation of Date: the authorized signatory).

16. It may be noted that in the absence of any detail in the above certificates, the information would be

considered inadequate and could lead to exclusion of the relevant project in computation of

Experience Score†††††††.

******* In the case of indirect share-holding, the intervening companies in the chain of ownership should also be Associates i.e.,

the share-holding in each such company should be more than 50% in order to establish that the chain of “control” is not broken

††††††† Refer Clause Error! Reference source not found. of the RFP.


Page 49 of 156

Annex v. Statement of Legal Capacity

(To be forwarded on the letterhead of the Bidder/ Lead Member of JV)

Ref. Date:

To,





Dear Sir / Madam,

We hereby confirm that we/ our members in the JV (constitution of which has been described in the

Proposal) satisfy the terms and conditions laid out in the RFP document.

We have agreed that …………………… (Insert member’s name) will act as the Lead Member of our

JV.‡‡‡‡‡‡‡

We have agreed that ………………….. (Insert individual’s name) will act as our representative/ will act

as the representative of the JV on its behalf* and has been duly authorized to submit the RFP. Further,

the authorized signatory is vested with requisite powers to furnish such letter and authenticate the same.

Thanking you,

Yours faithfully,

(Signature, name and designation of the authorised signatory)

For and on behalf of……………………………..

‡‡‡‡‡‡‡ Please strike out whichever is not applicable


Page 50 of 156

Appendix II. Financial Proposal

(Refer Clauses 2.14.1)

The Bidder shall fill the excel utility supplied on e-tender website under the Financial Proposal and

upload the duly filled excel utility on e-tender website as per instructions provided


Page 51 of 156

Appendix III. Format of Bank Guarantee for Bid Security

[To be issued by any Nationalized Bank/ Scheduled Banks in India]

From: …………………………………………………………………………

[Name and Address of Bank/ Financial Institution]

To,





1. ………………………………………[Name of relevant Bidder] (“Bidder”), has in response to a

Request for Proposal (“RFP”) issued by Uttarakhand Tourism Development Board (hereinafter

referred to as “Authority”) submitted a proposal dated [date to be inserted] (the “Proposal”) for it

to cause a company (the “Developer”) to implement the Development of Alaknanda hotel as 5-

Star Hotel on DBFOT basis. (the “Project”).

2. .…………………………………….[Name of Bank/Financial Institution] (the “Guarantor”) with its

registered office at …………………………………, unconditionally guarantees to pay the Authority

upon first written demand and without deduction the sum of INR ………. (Rupees in words) (the

“Guaranteed Sum”) subject to the conditions set out below.

3. The Guarantor unconditionally and irrevocably promises to pay on demand the Guaranteed Sum,

without protest or demur whatsoever upon the receipt of a written demand from the Authority which

shall be final and conclusive as against the Guarantor requiring the Guarantor to make payment to

the Authority. The written demand made shall specify the occurrence of one or more conditions set

out in clause 5 and such demand notice shall constitute prima facie conclusive evidence of the

occurrence of such events or conditions.

4. No underlying dispute as between the Authority and the Bidder, nor any pending Proposal for

interim relief or arbitration proceedings or other legal proceedings shall constitute any ground for

prevention, delay or obstruction for making payment to the Authority by the Guarantor and the

existence of any disputes or differences or claims in arbitration or otherwise shall not constitute any

ground for non-payment on this Guaranteed Sum.

5. The Authority shall notify the Guarantor of its demand for payment of the Guaranteed Sum without

any deduction of whatsoever nature and without reference to any claim or counter claim or set off,

upon the Authority’s notification that:

a. upon the occurrence of any of the conditions for default as set out in the Concession

Agreement.

b. there has been non-compliance of the conditions precedent as provided in the Concession

Agreement, or as elsewhere referred to in the RFP documents/ Concession Agreement.

Certification by the Authority of the occurrence of such event, shall be conclusive and binding on

the bank/financial institution.

6. This Guarantee shall be valid for a period of 180 days from the bid due date as mentioned in 1.2.11.

7. The release of this Guarantee and its return will be exclusively notified by the Authority and in the

event of the Authority requiring revalidation or extension of this Guarantee, the Guarantor has

accepted and shall be obligated to make such extension in favour of the Authority for a further

minimum term of six (6) months and the Bidder is deemed to have made the request for such

extension upon the execution and furnishing of this Guarantee in the first instance. The Guarantor


Page 52 of 156

shall not refuse such extension nor shall the Bidder be eligible to file any proceedings for stay or

return of Guarantee for any reason whatsoever.

8. This Guarantee shall be valid and effective for enabling the Authority to lodge a claim for payment

under the Guarantee till the date of expiry of the term of the Guarantee. The Guarantor shall be

obligated to make payment upon the Guarantee forthwith on demand if the claim is lodged within

the claim validity period and the obligation to pay would be subject to normal limitation for payment

of claims upon a guarantee. Time is of essence for payment and in the event of failure to make

payment, the Guarantor shall be obligated to pay compound interest at Two Percent (2%) above

the prime lending rate of the Guarantor institution, compounding quarterly in the event of the

Guarantor‘s failure to make payment upon the Guarantee for any reason whatsoever. Payment of

interest as provided would be no excuse for delayed payment or non-payment.

9. No change in the constitution of the Bidder, Developer or of the Guarantor shall be a ground for

release of the Guarantee and no variation in the RFP documents or the Concession Agreement

made post selection of the Bidder, or post making of the Proposal, shall constitute a variation, which

would, subject to the terms and conditions of this agreement, discharge the Guarantor. The

Guarantor shall notwithstanding such change, be bound to make payment upon the Guarantee on

demand.

10. The Guarantor agrees that it will not assign its obligations under this Guarantee without the prior

written consent of the Authority. The Authority will not unreasonably withhold its consent if the

proposed assignee is of at least equal financial standing to the Guarantor and the assignee

assumes in writing the obligations of the Guarantor under this Guarantee at the same time or before

the assignment.

11. This Guarantee binds the Guarantor, its successors and permitted assigns.

SEAL OF [BANK/FINANCIAL INSTITUTION] ………………………………..

NAME OF [BANK/FINANCIAL INSTITUTION] ………………………………..

SIGNATURE ……………………………..

NAME ……………………………..

TITLE ……………………………..

DATE ……………………………..


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Appendix IV. Power of Attorney for signing of Proposal


Know all men by these presents, We…………………………………………….. (name of the firm and

address of the registered office) do hereby irrevocably constitute, nominate, appoint and authorise Mr/

Ms (name), …………………… son/daughter/wife of ……………………………… and presently residing

at …………………., who is presently employed with us/ the Lead Member of our JV and holding the

position of ……………………………. , as our true and lawful attorney (hereinafter referred to as the

“Attorney”) to do in our name and on our behalf, all such acts, deeds and things as are necessary or

required in connection with or incidental to submission of our Proposal for the Development of

Alaknanda hotel as 5-Star Hotel on DBFOT basis proposed or being developed by the Uttarakhand

Tourism Development Board (the “Authority”) including but not limited to signing and submission of

all Proposals and other documents and writings, participate in Pre-Proposal Conference and other

conferences and providing information/ responses to the Authority, representing us in all matters before

the Authority, signing and execution of all contracts including the Concession Agreement and

undertakings consequent to acceptance of our Proposal, and generally dealing with the Authority in all

matters in connection with or relating to or arising out of our Proposal for the said Project and/ or upon

award thereof to us and/or till the entering into of the Concession Agreement with the Authority.

AND we hereby agree to ratify and confirm and do hereby ratify and confirm all acts, deeds and things

lawfully done or caused to be done by our said Attorney pursuant to and in exercise of the powers

conferred by this Power of Attorney and that all acts, deeds and things done by our said Attorney in

exercise of the powers hereby conferred shall and shall always be deemed to have been done by us.

IN WITNESS WHEREOF WE, …………………………., THE ABOVE NAMED PRINCIPAL HAVE

EXECUTED THIS POWER OF ATTORNEY ON THIS ……… DAY OF …………. 2022

For

…………………………..

(Signature, name, designation and address)

Witnesses:

1.

2.

(Notarised)

Accepted

……………………………

(Signature)

(Name, Title and Address of the Attorney)

Notes:

The mode of execution of the Power of Attorney should be in accordance with the procedure, if any,

laid down by the applicable law and the charter documents of the executant(s) and when it is so


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required, the same should be under common seal affixed in accordance with the required

procedure.

Wherever required, the Bidder should submit for verification the extract of the charter documents

and documents such as a resolution/ power of attorney in favour of the person executing this Power

of Attorney for the delegation of power hereunder on behalf of the Bidder.

For a Power of Attorney executed and issued overseas, the document will also have to be legalised

by the Indian Embassy and notarised in the jurisdiction where the Power of Attorney is being issued.

However, the Power of Attorney provided by Bidders from countries that have signed The Hague

Legislation Convention 1961 are not required to be legalised by the Indian Embassy if it carries a

conforming Appostille certificate.


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Appendix V. Power of Attorney for Lead Member of JV


Whereas the Uttarakhand Tourism Development Board (“the Authority”) has invited Proposals from

interested parties for the Development of Alaknanda hotel as 5-Star Hotel on DBFOT basis Project (the

“Project”).

Whereas, …………………….., …………………….., ……………………..and ……………………..

(collectively the “JV”) being Members of the JV are interested in bidding for the Project in accordance

with the terms and conditions of the Request for Proposal (RFP) and other connected documents in

respect of the Project, and Whereas, it is necessary for the Members of the JV to designate one of them

as the Lead Member with all necessary power and authority to do for and on behalf of the JV, all acts,

deeds and things as may be necessary in connection with the JV’s Proposal for the Project and its

execution.

NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS

We, …………………….. having our registered office at …………………….., M/s. ……………………..

having our registered office at …………………….., M/s. …………………….. having our registered office

at …………………….., and …………………….. having our registered office at ……………………..,

(hereinafter collectively referred to as the “Principals”) do hereby irrevocably designate, nominate,

constitute, appoint and authorise M/S …………………….. having its registered office at

…………………….., being one of the Members of the JV, as the Lead Member and true and lawful

attorney of the JV (hereinafter referred to as the “Attorney”). We hereby irrevocably authorise the

Attorney (with power to sub-delegate) to conduct all business for and on behalf of the JV and any one

of us during the bidding process and, in the event the JV is awarded the concession/contract, during

the execution of the Project and in this regard, to do on our behalf and on behalf of the JV, all or any of

such acts, deeds or things as are necessary or required or incidental to the submission of its Proposal

for the Project, including but not limited to signing and submission of all Proposals and other documents

and writings, participate in bidding process and other conferences, respond to queries, submit

information/ documents, sign and execute contracts and undertakings consequent to acceptance of the

Proposal of the JV and generally to represent the JV in all its dealings with the Authority, and/ or any

other Government Agency or any person, in all matters in connection with or relating to or arising out

of the JV’s Proposal for the Project and/ or upon award thereof till the Concession Agreement is entered

into with the Authority.

AND hereby agree to ratify and confirm and do hereby ratify and confirm all acts, deeds and things

lawfully done or caused to be done by our said Attorney pursuant to and in exercise of the powers

conferred by this Power of Attorney and that all acts, deeds and things done by our said Attorney in

exercise of the powers hereby conferred shall and shall always be deemed to have been done by us/

JV.

IN WITNESS WHEREOF WE THE PRINCIPALS ABOVE NAMED HAVE EXECUTED THIS POWER

OF ATTORNEY ON THIS …………………. DAY OF ………. 2022

For ……………………..

(Signature)

……………………..

(Name & Title)

For ……………………..


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(Signature)

……………………..

(Name & Title)

Witnesses:

1.

2.

………………………………………

(Executants)

(To be executed by all the Members of the JV)

Notes:

The mode of execution of the Power of Attorney should be in accordance with the procedure, if any,

laid down by the applicable law and the charter documents of the executant(s) and when it is so

required, the same should be under common seal affixed in accordance with the required

procedure.

Also, wherever required, the Bidder should submit for verification the extract of the charter

documents and documents such as a resolution/ power of attorney in favour of the person executing

this Power of Attorney for the delegation of power hereunder on behalf of the Bidder.

For a Power of Attorney executed and issued overseas, the document will also have to be legalised

by the Indian Embassy and notarised in the jurisdiction where the Power of Attorney is being issued.

However, the Power of Attorney provided by Bidders from countries that have signed The Hague

Legislation Convention 1961 are not required to be legalised by the Indian Embassy if it carries a

conforming Appostille certificate.


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Appendix VI. Format for Anti-Collusion Certificate§§§§§§§

(Refer Clause 2.14.2 (j)

We hereby certify and confirm that in the preparation and submission of this Proposal, we have not

acted in concert or in collusion with any other Bidder or other person/s and also not done any act, deed

or thing which is or could be regarded as anti-competitive.

We further confirm that we have not offered nor will offer any illegal gratification in cash or kind to any

person or agency in connection with the instant Proposal.

Dated this ……………………..Day of …………………., 2022

Name of the Bidder

…………………………………………….

Signature of the Authorised Person

…………………………………………….

Name of the Authorised Person

§§§§§§§ On the bidder’s letter head


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Appendix VII. Joint Bidding Agreement

(Refer Clause 2.2.2 (h))

(To be executed on Stamp paper of appropriate value)

THIS JOINT BIDDING AGREEMENT is entered into on this the ………… day of ………… 2022

AMONGST

1. ………… and having its registered office at ………… (hereinafter referred to as the “First Part”

which expression shall, unless repugnant to the context include its successors and permitted

assigns)

AND

2. ………… and having its registered office at ………… (hereinafter referred to as the “Second Part”


assigns)

AND

3. ………… and having its registered office at ………… (hereinafter referred to as the “Third Part”


assigns)

The above mentioned parties of the FIRST, SECOND AND THIRD, are collectively referred to as the

“Parties” and each is individually referred to as a “Party”

WHEREAS,

A. Uttarakhand Tourism Development Board having its office at Pt. Deen Dayal Upadhyay Paryatan

Bhawan, Near O.N.G.C. Helipad, Nimbuwala, Garhi Cantt, Dehradun, Uttarakhand – 248003

(hereinafter referred to as the “Authority” which expression shall, unless repugnant to the context

or meaning thereof, include its administrators, successors and assigns) has invited Proposals (the

“Proposals”) by its Request for Proposal No. ………… dated …………(the “RFP”) for selection

of Bidder for Development of Alaknanda hotel as 5-Star Hotel on DBFOT basis (the “Project”).

B. The Parties are interested in jointly bidding for the Project as members of a JV and in accordance

with the terms and conditions of the RFP document and other bid documents in respect of the

Project, and

C. It is a necessary condition under the RFP document that the members of the JV shall enter into a

Joint Bidding Agreement and furnish a copy thereof with the Proposal.

NOW IT IS HEREBY AGREED as follows:

1. Definitions and Interpretations

1.1. In this Agreement, the capitalized terms shall, unless the context otherwise requires, have the

meaning ascribed thereto under the RFP.

2. JV

2.1. The Parties do hereby irrevocably constitute a JV (the “JV”) for the purposes of jointly

participating in the Bidding Process for the Project.

2.2. The Parties hereby undertake to participate in the Bidding Process only through this JV and

not individually and/ or through any other JV constituted for this Project, either directly or

indirectly or through any of their Associates.

3. Covenants

The Parties hereby undertake that in the event the JV is declared the selected Bidder and awarded

the Project, it shall incorporate a special purpose vehicle (the “SPV”) under the Indian Companies


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Act 1956 for entering into a Concession Agreement with the Authority and for performing all its

obligations as the Concessionaire in terms of the Concession Agreement for the Project.

4. Role of the Parties

The Parties hereby undertake to perform the roles and responsibilities as described below:

First Party:

Second Party:

Third Party:

(Please Specify Role of the each Party such as Lead Member, financial Member etc. for the Project)

5. Joint and Several Liability

The Parties do hereby undertake to be jointly and severally responsible for all obligations and

liabilities relating to the Project and in accordance with the terms of the RFP and the Concession

Agreement, till such time as the Financial Close for the Project is achieved under and in accordance

with the Concession Agreement.

6. Shareholding in the SPV

6.1. The Parties agree that the proportion of shareholding among the Parties in the SPV shall be

as follows:

First Party:

Second Party:

Third Party:

6.2. The Parties undertake that a minimum of 26% (twenty-six per cent) of the subscribed and paid

up equity share capital of the SPV shall, at all times till the second anniversary of the date of

commercial operation of the Project, be held by the Parties of the First and Second Part whose

experience and net worth have been reckoned for the purposes of qualification and short-

listing of Bidders for the Project in terms of the RFP.

6.3. The Parties undertake that each of the Parties specified in Clause 6.2 above shall, at all times

between the commercial operation date of the Project and the second anniversary thereof,

hold subscribed and paid up equity share capital of SPV equivalent to at least 5% (five per

cent) of the Total Project Cost.

6.4. The Parties undertake that they shall collectively hold 100% (hundred per cent) of the

subscribed and paid up equity share capital of the SPV at all times until the second anniversary

of the commercial operation date of the Project.

6.5. The Parties undertake that they shall comply with all equity lock-in requirements set forth in

the Concession Agreement.

6.6. The Parties undertake that the O&M Member shall subscribe and hold at least 10% (ten per

cent) of the subscribed and paid up equity shares in the SPV in terms of the Concession

Agreement

7. Representation of the Parties

Each Party represents to the other Parties as of the date of this Agreement that:

a. Such Party is duly organised, validly existing and in good standing under the laws of its

incorporation and has all requisite power and authority to enter into this Agreement;

b. The execution, delivery and performance by such Party of this Agreement has been authorised

by all necessary and appropriate corporate or governmental action and a copy of the extract of

the charter documents and board resolution/ power of attorney in favour of the person executing

this Agreement for the delegation of power and authority to execute this Agreement on behalf

of the JV Member is annexed to this Agreement, and will not, to the best of its knowledge:

i. require any consent or approval not already obtained;

ii. violate any Applicable Law presently in effect and having applicability to it;


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iii. violate the memorandum and articles of association, by-laws or other applicable

organizational documents thereof;

iv. violate any clearance, permit, concession, grant, license or other governmental

authorisation, approval, judgement, order or decree or any mortgage agreement, indenture

or any other instrument to which such Party is a party or by which such Party or any of its

properties or assets are bound or that is otherwise applicable to such Party; or

v. create or impose any liens, mortgages, pledges, claims, security interests, charges or

Encumbrances or obligations to create a lien, charge, pledge, security interest,

encumbrances or mortgage in or on the property of such Party, except for encumbrances

that would not, individually or in the aggregate, have a material adverse effect on the

financial condition or prospects or business of such Party so as to prevent such Party from

fulfilling its obligations under this Agreement;

c. this Agreement is the legal and binding obligation of such Party, enforceable in accordance with

its terms against it; and

d. there is no litigation pending or, to the best of such Party's knowledge, threatened to which it

or any of its Affiliates is a party that presently affects or which would have a material adverse

effect on the financial condition or prospects or business of such Party in the fulfilment of its

obligations under this Agreement.

8. Termination

This Agreement shall be effective from the date hereof and shall continue in full force and effect

until the Financial Close of the Project is achieved under and in accordance with the Concession

Agreement, in case the Project is awarded to the JV. However, in case the JV is either not

prequalified for the Project or does not get selected for award of the Project, the Agreement will

stand terminated in case the Bidder is not pre-qualified or upon return of the Proposal Security by

the Authority to the Bidder, as the case may be.

9. Miscellaneous

9.1. This Joint Bidding Agreement shall be governed by laws of {India}.

9.2. The Parties acknowledge and accept that this Agreement shall not be amended by the Parties

without the prior written consent of the Authority.

IN WITNESS WHEREOF THE, PARTIES HAVE EXECUTED AND DELIVERED THIS CONSULTANCY

AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN

SIGNED, SEALED AND DELIVERED

For and on behalf of

PARTY OF THE FIRST PART

By;

(Signature)

(Name)

(Designation)


PARTY OF THE SECOND

PART

By;

(Signature)

(Name)

(Designation)


PARTY OF THE THIRD PART

By;

(Signature)

(Name)

(Designation)

Notes:

The mode of the execution of the Joint Bidding Agreement should be in accordance with the

procedure, if any, laid down by the Applicable Law and the charter documents of the executant(s)

and when it is so required, the same should be under common seal affixed in accordance with the

required procedure.


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Each Joint Bidding Agreement should attach a copy of the extract of the charter documents and

documents such as resolution / power of attorney in favour of the person executing this Agreement

for the delegation of power and authority to execute this Agreement on behalf of the JV Member.

For a Joint Bidding Agreement executed and issued overseas, the document shall be legalised by

the Indian Embassy and notarized in the jurisdiction where the Power of Attorney has been

executed.


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Appendix VIII

Bid Security Declaration

Not Applicable


Page 63 of 156

Appendix IX

(On not less than Rs. 100/- stamp paper)

LITIGATION HISTORY

[Note: Bidder/Proposer shall provide the certification or information as per format given below.

Failure to provide such certification or information (fully and accurately) may result in a

determination that the Bid/Proposal is non-responsive.]

NO LITIGATION CERTIFICATION

I, ,

hereby certify that

(person responsible for submission of Bid/Proposal)

(Bidder/Proposer name as shown on Bid/Proposal)

has not been involved in any litigation for five (5) years preceding the date of submittal of this

Bid/Proposal.

LITIGATION HISTORY INFORMATION

(1) Name of Case:

Court case identification number:

Jurisdiction in which case was filed:

Outcome of the case:

(2) Name of Case:

Court case identification number:

Jurisdiction in which case was filed:

Outcome of the case:


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DECLARATION:

I declare under penalty of perjury that the foregoing is true and correct.

Executed this day of (month and year) at

by

(signature of person responsible for submission of Bid/Proposal)

Appendix - X

(On not less than Rs. 100/- stamp paper)

AFFIDAVIT

I / We, ………………………………. who is / are Authorised to sign and submit the proposal

against your tender [ title and reference number of the Invitation for proposals] do hereby

undertake as follows:

i. all the statements, documents, testimonials, certificates, etc., uploaded are genuine

and the contents thereof are true,

ii. any of our personnel, representatives, sub-consultants, sub-Service Providers, service

providers, Service Provider s and/or their employees will not directly or indirectly,

engage in any activity that may intervene, interfere and/or influence the procurement

process at any stage,

iii. indemnify and compensate the UTDB from any penalties and costs that may be

incurred due to lapse/s on our part including incorrect / misrepresented / forged

documents or statements,

iv. our firm / company, M/s. ………………………….. and our Principal M/s.

…………………… are not blacklisted by any ministry / department / undertaking of

Government of India, any State government and / or any Union territory administration

in India.

2. If we are found contravening this undertaking even after award of contract in our favour or

anyone else, we accept disciplinary action by the UTDB including rejection of our proposal,

annulment of contract and blacklisting.

Authorized signatory for the Bidder

Signed: _______________________

Name: ________________________

Designation:____________________

Date: _________________________

(Notarised)

(Name, Title and Address of the Attorney)

Accepted

……………………………

(Signature)

Witnesses:

1. ……………………………

2. ……………………………

Duly Authorised to sign this Authorization on behalf of: [insert complete name of Bidder]


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Volume II: Draft Concession Agreement

BETWEEN

Uttarakhand Tourism Development Board

[“AUTHORITY”]

AND

(Name of the Concessionaire)

[“CONCESSIONAIRE”]

{This Contract will be suitably modified as per changes that may be required / relevant based

on Proposal finally accepted and pre-contract negotiation)


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Concession Agreement

This AGREEMENT is entered into on this the ____________ day of ___________ (month),

__________ (year) at Dehradun.

BETWEEN

Uttarakhand Tourism Development Board having its registered office at Pt. Deen Dayal Upadhyay

Paryatan Bhawan, Near O.N.G.C. Helipad, Nimbuwala, Garhi Cantt, Dehradun, Uttarakhand – 248003

represented by its Chief Executive Officer (hereinafter referred to as "Authority"), which expression

shall, unless the context otherwise requires, includes its administrators, successors and assigns) of the

ONE PART;

AND

M/s_____________________________ Limited, a Company incorporated under the Companies Act,

2013 having its office at __________________________________, (hereinafter referred to as the

“Concessionaire” which expression shall unless repugnant to the context or meaning thereof include

its administrators, successors and assigns) of OTHER PART;

WHEREAS,

A. The Authority had decided to select the Concessionaire through a competitive bidding process

for Development of Alaknanda hotel as 5-Star Hotel on DBFOT basis (the “Project”) through

Public-Private Partnership (the “PPP”) on Design, Build, Finance, Operate and Transfer (the

"DBFOT") basis at ___________________; a location near ____________________

comprising ________________ sq m (approximately _____), in accordance with the terms and

conditions set forth in the Concession Agreement.

B. With an objective to seek private sector participation in the development of the aforesaid

Project, the Authority had invited competitive Proposals/ Bids from interested parties by its RFP

Notice No ***** dated ***** (the “RFP Notice”) for selection of a Concessionaire to develop,

design, engineer, finance, construct, market, operate, maintain and manage the same on the

terms and conditions contained in the Request for Proposal (RFP) document and to determine,

levy, demand, collect, retain and appropriate User Charges from the Users of the Project

Facility.

C. The Authority had prescribed the technical and commercial criteria, and invited Proposals from

bidders pursuant to the Tender Notice for undertaking the Development of Alaknanda hotel as

5-Star Hotel on DBFOT basis.

D. In response to the Request for Proposal document, the Authority received Proposals from

various Bidders.

E. After evaluation of the Bids received, the Authority had accepted the Bid of the Individual bidder/

JV comprising ……………………., ……………………. and ………………………… (Collectively

the “JV”) with ………………….. as its lead member (the “Lead Member” and issued its Letter

of Award No. ***** dated ****** (hereinafter called the “LOA”) to the [Individual company / JV]

requiring, inter alia, the execution of this Concession Agreement within 45 (forty-five) days of

the date of issue thereof.

F. As per the terms and conditions of the RFP Document, the Successful Bidder {have

incorporated the Concessionaire as a Special Purpose Company in India / is a company

incorporated} under the Companies Act, 2013 to implement the Project. The Successful Bidder

hereby agrees to serve as a guarantor towards the roles and obligations of the Concessionaire

as detailed out in the Concession Agreement.


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G. The Authority acknowledges that as on this day, the Concessionaire has:

a. submitted an unconditional and irrevocable Bank Guarantee for a value of ₹_______

(Rupees __________only) as Performance Security for the Concession Period as per

the conditions specified in Clause 3.1.

b. In pursuance to the above, the Authority and Authority is executing the Agreement to

grant the Concession to the Concessionaire to develop, design, engineer, finance,

construct, market, operate & maintain and manage the above mentioned Project and

its allied facilities, in accordance with terms, conditions and covenants hereinafter set

forth.

NOW THEREFORE, in view of the offer, mutual promises and consideration set out herein, the

Authority, the Authority and the Concessionaire (each individually a “Party” hereto, and collectively the

“Parties”) hereby agree to be bound by the provisions of this Concession Agreement.


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1 Definitions and interpretation

1.1 Definitions

In this Concession Agreement, unless repugnant to the context in which these words and

expressions appear the words and expressions defined below shall have the meanings

assigned to them: ‐

“Accounting Year” means the financial year commencing from the first day of April of any

calendar year and ending on the thirty-first day of March of the next calendar year.

“Agreement” means this signed Concession Agreement (including the Schedules, Recitals

of the Concession Agreement, the Letter of Award issued by the Authority, the written

clarifications, addendums, amendments etc. to the RFP document issued subsequently to

the Bidders and all other documents and papers attached as annexure).

“Applicable Laws” means all laws which are applicable to the Project and/or the

Concessionaire extending to the State of Uttarakhand, having been enacted or brought into

force by Government of India or Government of Uttarakhand including regulations and rules

made there under, and judgments, decrees, injunctions, writs and orders of any Court of

Record, as may be in force and effect during the subsistence of this Agreement.

“Applicable Permits” means all clearances, licenses, permits, authorizations, no objection

certificates, consents, approvals and exemptions required to be obtained or maintained by

the Concessionaire under Applicable Laws during the subsistence of this Agreement.

“Arbitration Act” means the Arbitration and Conciliation Act, 1996 and the Rules there

under and shall include modifications to or any re-enactment thereof, as in force from time

to time.

"Change in Law" means the occurrence of any of the following after the date of this

Agreement:

a. the enactment of any new Indian law;

b. the repeal, modification or re-enactment of any existing Indian law:

c. the commencement of any Indian law which has not entered into effect until the date of

this Agreement;

d. a change in the interpretation or application of any Indian law by a court of record as

compared to such interpretation or application by a court of record prior to the date of

this Agreement; or

e. any change in the rates of any of the Taxes.

“COD" means the commercial operations date of the Project which shall be the date on

which the Independent Expert has issued the Completion Certificate or the Provisional

Certificate upon completion of construction of the Project and which shall, subject to the

provisions of this Agreement, be not later than ------.

“Commencement Date” means the date on which the physical possession of the Project

Site is delivered by the Authority to the Concessionaire, which shall not be later than 30

(thirty) days from the date of this Agreement.

“Completion Certificate” means the certificate issued by the Independent Expert pursuant

to Clause 9.16.

“Concession” shall have the meaning ascribed thereto in Clause 2.1.


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"Concession Period" means the period as applicable specified in Clause 2.2.

“Concessionaire” means M/s. XXXX and shall include its successors and permitted

assigns expressly approved by the Authority or the Authority.

“Authority” means Uttarakhand Tourism Development Borad or UTDB or Department of

Tourism, Government of Uttarakhand.

“JV” means the JV consisting of (i) AAAA (ii) BBBB and (iii) CCCC formed/ acting pursuant

to the Memorandum of Understanding dated --------------- (Schedule ‘O’) entered into by

them, for the purpose of bidding for the Project and in the event of being successful to

implement the Project through a special purpose vehicle to be formed and incorporated by

them in India.

“Construction Works” means all works and things necessary to achieve commercial

operation of the Project in accordance with this Agreement.

“Cure Period” means the period specified in this Agreement for curing any breach or default

of any provision of this Agreement by the Party responsible for such breach or default.

“Debt Due” means the aggregate of the following sums expressed in Indian Rupees

outstanding and payable to the Lender under the Financing Documents:

a. The principal amount of the debt provided by the 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

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 up to the date preceding the Termination Date but

excluding any interest or charges that had fallen due one year prior to the Termination

Date, and penal interest or charges payable under the Financing Documents to any

Senior Lender.

“Dispute” shall have the meaning set forth in Clause 18.1.

“Dispute Resolution Procedure” means the procedure for resolution of Disputes set forth

in Article 18.

"Drawings" means all of the drawings, designs, calculations and documents pertaining to

the Project as set forth in Schedule ‘F’ and shall include "as built" drawings of the Project.

"Emergency" means a condition or situation that is likely to endanger the security of the

individuals on or about the Project including users thereof or which poses an immediate

threat of material damage to any of the Project Assets

“Encumbrances” means any encumbrances 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 Site, physical encumbrances or encroachments on the Project Site

where applicable herein.

“Equity” means the sum expressed in Indian Rupees representing the equity share capital

of the Concessionaire and shall include the funds advanced by any JV Member or by any of

the shareholders of the Concessionaire for meeting the equity component of the Total Project


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Cost. Provided, however, that for the purposes of computing Termination Payments under

this Concession, Equity shall be reckoned as an amount that is arrived at after excluding

from the equity share capital of the Concessionaire the sum by which the capital cost of the

Project as stated by the Concessionaire for purposes of claiming Termination Payments

exceeded the Total Project Cost.

“Financing Documents” means the documents executed by the Concessionaire in respect

of financial assistance (including refinancing) for the Project to be provided by the Lenders

by way of loans, advances, subscription to debentures and other debt instruments and

guarantees, risk participation, take-out financing or any other form of credit enhancement

and shall include loan agreements, guarantee agreements, subscription agreements, notes

and any documents providing security for such financial assistance, and includes

amendments or modifications made thereto.

“Financial Close” means the date on which the Financing Documents providing for funding

by the Lenders have become effective and the Concessionaire has immediate access to

such funding under the Financing Documents.

“Force Majeure” or “Force Majeure Event” shall mean an act, event, condition or

occurrence specified in the Article 14.

“Good Industry Practice” means those practices, methods, techniques, standards, skill,

diligence and prudence which are generally and reasonably expected and accepted from a

reasonably skilled, prudent and experienced operator engaged in construction and operation

of projects akin to the Project. It would include good engineering practices in the design,

engineering, construction and project management which would be expected to result in the

performance of its obligation by the Concessionaire and in operation and maintenance of

the Facilities in accordance with this Concession Agreement, Applicable Laws, and

Clearances, reliability, safety, environment protection, economy and efficiency.

"Government Agency" means Government of India (GoI), Government of Uttarakhand

(GoUK) or any state government or governmental, department, commission, board, body,

bureau, agency, authority, instrumentality, court or other judicial or administrative body,

central, state, or local, having jurisdiction over the Concessionaire, the Project Assets or any

portion thereof, or the performance of all or any of the services or obligations of the

Concessionaire under or pursuant to this Agreement.

"Implementation Period" means the period beginning from the Commencement Date and

ending on the COD.

“Independent Expert” means the engineer appointed under the provisions of Article 6.

“Indirect Political Event” shall have the meaning ascribed thereto in Clause 14.3.

“Keys” shall mean a room with maximum occupancy of two persons.

“Lender(s)” means financial institutions, banks, funds, trusts or trustees of the holders of

debentures or other securities their successors and assigns, who provide financial

assistance to the Concessionaire under any of the Financing Documents.

“Maintenance Manual” shall have the meaning ascribed to it in Clause 10.4.

"Maintenance Programme" shall have the meaning ascribed to it in Clause 10.4.

“Material Adverse Effect” means consequences of events outside the control of the

Affected Party which (a) render any right vested in a Party by the terms of this Concession


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ineffective, or (b) significantly impairs or frustrates the ability of any Party to observe and

perform in a timely manner its obligations under this Concession Agreement, or (c) frustrates

a material provisions of this Concession Agreement or any of the Project Agreements.

“Material Breach” means a breach by either Party of any of its obligations under the

Agreement which has or is likely to have a Material Adverse Effect on the Project and which

such Party shall have failed to cure.

“Non-Political Event” shall have the meaning ascribed thereto in Clause 14.2.

"O&M" means the operation and maintenance of the Project during Operations Period

including but not limited to functions of maintenance, collection and retention of Fees and

performance of other services incidental thereto.

"O&M Contract" means the Operation and Maintenance Contract that may be entered into

between the Concessionaire and the O&M Contractor for O&M of the Project/Project Facility.

"O&M Contractor" means the person or entity with whom the Concessionaire has entered

into an O&M Contract for discharging O&M functions for and on behalf of the

Concessionaire.

"O&M Expense" means expenses incurred by or on behalf of the Concessionaire, duly

certified by its Statutory Auditors for all regularly scheduled and reasonably anticipated O&M

during Operations Period, including, without limitation (a) all cost of salaries and other

employee compensation and contract fee payable to the O&M Contractor, if any, (b) cost of

materials, supplies, utilities and other services, (c) premia for insurance, (d) all franchise,

excise, property and other similar taxes and all costs and fees incurred in order to obtain and

maintain all Applicable Permits necessary for the O&M of the Project/Project Facility at its

full design capacity, (e) all repair, replacement and maintenance costs of the Project/Project

Facility, and (f) all other expenditures required to be incurred under Applicable Law or under

Applicable Permits necessary for the operation and maintenance of the Project according to

the Specifications and Standards at its full design capacity.

"Operations Period" means the period commencing from COD and ending at the expiry of

the Concession Period.

“Parties” means the parties to this Agreement collectively and “Party” shall mean any of the

parties to this Agreement individually.

“Performance Security” means the Performance Security for construction or Performance

Security for operation and maintenance as applicable in terms set out in Schedule ‘J’.

“Person” means any natural person, firm, corporation, company, partnership, joint venture,

trust or other entity, having legal capacity to sue and be sued in its name.

“Project” means the project described in Schedule ‘A’ which the Concessionaire is required

to design, engineer, procure, finance, construct, operate, maintain and transfer in

accordance with the provisions of this Agreement.

“Project Agreements” means, collectively, this Concession Agreement, the Financing

Documents, hire purchase agreements, sub‐license agreements/arrangements,

construction agreements and operation & maintenance agreements, in each case as

amended, supplemented or otherwise modified from time to time.

“Project Assets” means all tangible and intangible assets relating to the Project including,

but not limited to,


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a. rights over the Project Site in the form of licence, sub‐licence, right‐of‐way or otherwise,

b. tangible assets such as civil works and equipment including foundations, all buildings,

pavements, substructures and superstructures, bridges, movement and parking areas,

all internal and external services, drainage facilities, sign boards, HVAC works, electrical

works including sub‐station, and telephone and communication equipment, rest areas

and administrative office(s) at the project site

c. Project Facilities created on the Site

d. All rights of the Concessionaire under the Project Agreements/Documents

e. Financial assets, such as receivables, security deposits, cash and investments and

f. Insurance proceeds and

g. Applicable Permits and authorizations relating to or in respect of the Project.

"Project Completion Schedule” means the progressive Project milestones set forth in

Schedule ‘D’ for the implementation of the Project.

“Project Facilities”/ “Facilities” means all the amenities and facilities required as basic

and support infrastructure for the Project for the optimal functioning thereof, including but not

limited to sewage and sanitation system, water supply, electricity distribution and supply,

paved roads and lanes, and specific equipment and facilities, situated on the Site, as

described in Schedule ‘C’.

“Project Site” means the land area earmarked for the development of the Project at Project

Site comprising a land area of Approx. 2,329 Sqm. However, the details of Project Site has

been laid down in Schedule ‘B’, wherein the Project/ Project Facility is to be developed,

constructed, implemented, established, operated, maintained and managed by the

Concessionaire in accordance with the provisions of the Agreement.

“Rs.” or “Rupees” or “₹” or “INR” refers to the lawful currency of the Republic of India.

"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, and in the absence of such rate, the

average of the prime lending rates for loans with 1 (one) year maturity fixed by the State

Bank of India and failing that any other arrangement that substitutes such prime lending rate

as mutually agreed between the Parties.

"Specifications and Standards" means the specifications and standards relating to the

quality, capacity and other requirements for the Project as set forth in Schedule ‘G’ and any

modifications thereof, or additions thereto as included in the design and engineering for the

Project submitted by the Concessionaire to, and expressly approved by the Authority.

“Statutory Auditors” means an Independent, recognized and reputable firm of the

chartered accountants duly licensed to practice in India acting as the Independent statutory

auditors of the Concessionaire under the provisions of Act including any statutory

modification or re‐enactment or replacement thereof, for the time being in force.

“Substitution Agreement” means the agreement set out in Schedule ‘K’.

"Termination" means termination of this Agreement and the Concession hereunder

pursuant to a Termination Notice or otherwise in accordance with the provisions of this

Agreement but shall not, unless the context otherwise requires, include the expiry of this

Agreement/Concession due to expiry to the Concession Period in the normal course.

“Termination Date” means the date on which the Termination occurs which shall be the

date on which Termination Notice has been delivered or deemed to have been delivered by


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a Party issuing the same to the other Party in accordance with the provisions of this

Agreement.

“Termination Notice” means the communication issued in accordance with this

Concession Agreement by a Party to the other Party for terminating this Concession

Agreement.

“Termination Payment” means the aggregate of the amounts payable by the Authority or

the Authority to the Concessionaire under this Agreement upon Termination including

Termination Payment receivable by the Concessionaire pursuant to Clause 14.4.

“Total Project Cost” means the lowest of the following:

a. The actual capital cost of the Project upon completion of the Project and mandatory

Project Facilities;

b. Total Project Cost as set forth in the Financing Documents;

c. a sum of ₹_______ (Rupees _____________ Only).

provided that in the event WPI increases, on an average, by more than [3% (three per

cent)] per annum for the period between the Bid Date and Project COD, the amount

mentioned in (a) and (b) above shall be increased such that the effect of increase in

WPI, in excess of such [3% (three per cent)], is reflected in the Total Project Cost;

provided further that in the event of Termination, the Total Project Cost shall be deemed

to be modified to the extent of variation in WPI or Reference Exchange Rate occurring

in respect of Adjusted Equity and Debt Due, as the case may be, in accordance with the

provisions of this Agreement;

provided also that the Total Project Cost shall not exceed the actual capital cost of the

Project upon completion of the Project;

“Users” means all the persons who use all or any one or more of the facilities, amenities,

utilities etc. established or provided in the Project under suitable arrangement entered into

by such persons with the Concessionaire / Concessionaire’s sub-lessees on terms and

conditions as stipulated from time to time by the Concessionaire’s sub-lessees in this regard.

“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 the Agreement, for the purpose of rendering of services by the Concessionaire

and utilisation of the Project Facility of the Project by such users, or other Persons, at any

time and from time to time in relation to the Project.

“WPI’ means the wholesale price index published monthly by the Ministry of Industry, GOI

and shall include any index which substitutes the WPI.

1.2 Principles of Interpretation

In this Concession 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 for modification or re-

enactment or consolidation applies or is capable of applying to any transactions

entered into hereunder;

b. Reference to laws of Government of Uttarakhand, laws of India or Indian Laws or

regulation having force of law shall include the laws, acts, ordinances, rules,

regulations, guidelines or byelaws which have the force of law in State of Uttarakhand;


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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, organisations or other entities (whether or not having a

separate legal entity);

d. The headings are for convenience and reference only and shall not be used in and

shall not affect, the construction or interpretation of this Agreement;

e. Terms and words beginning with capital letters shall have the meaning as defined in

this Agreement including the Schedules;

f. The words "include" and "including" are to be construed without limitation;

g. References to "construction" include, unless the context otherwise requires

investigation, design, engineering, procurement, delivery, transportation, installation,

processing, fabrication, testing, commissioning and other activities incidental to the

construction;

h. Any reference to any period of time shall mean a reference to that according to Indian

Standard Time;

i. Any reference to day shall mean a reference to a calendar day;

j. Any reference to month shall mean a reference to a calendar month;

k. The Schedules of 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;

l. 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;

m. 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;

n. Any Agreement, consent, approval, authorization, notice, communication, information

or report required under or pursuant to this Agreement from or by any Party shall be

valid and effective only if it is in writing under the hands of duly authorized

representative of such party, as the case may be, in this behalf and not otherwise;

o. Any reference to any period commencing “from” a specified day or date and “till” or

“until” a specified day or date shall include both such days or dates; provided that if the

last day of any period computed under this Agreement is not a business day, then the

period shall run until the end of next business day.

p. The damages payable by either Party to the other of them as set forth in this

Agreement, whether on per diem basis or otherwise, are mutually agreed genuine pre‐

estimated loss and damage likely to be suffered and incurred by the Party entitled to

receive the same and are not by way of penalty.

q. Unless expressly provided otherwise in this Agreement, any documentation required

to be provided or furnished by the Concessionaire to the Authority and/or the agency

or person appointed by the Authority shall be provided free of cost and in two copies,

and if the Authority and/or the person appointed by the Authority is required to return

any such documentation with their comments and/or approval, they shall be entitled to

retain two copies thereof.

1.3 Measurements and Arithmetic Conventions


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All measurements and calculations shall be in metric system and calculations done in 2

decimals places, with the third digit of 5 or above rounded up and below 5 rounded down

except in Fee calculation which shall be rounded off to nearest Rupee.

1.4 Ambiguities within Agreement

In case of ambiguities or discrepancies within this Agreement, the following shall apply:

a. Between two Articles or more of this Agreement, the provisions of specific Article

relevant to the issue under the consideration shall prevail over those in other Articles;

b. Between the Articles and the Schedules, the Articles shall prevail, save and except as

expressly provided in the Articles or the Schedules;

c. Between the written description on the Drawings and the Specifications

And

Standards, the latter shall prevail;

d. Between the written description on the Drawing and the 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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2 The Concession

2.1 Grant of Concession

2.1.1 Subject to and in accordance with the terms and conditions set forth in this Agreement,

the Authority hereby grants and authorises the Concessionaire to plan, design, finance,

engineer, construct, develop, equip, operate, maintain, modernize and manage the

Project and to exercise and/or enjoy the rights, powers, privileges, authorisations and

entitlements as set forth in this Agreement, including but not limited to the right to levy,

demand, collect and appropriate user fee from the users for using the Project/ Project

Facility or any part thereof (collectively “the Concession”).

2.2 Concession Period

2.2.1 The Concession Period for “the Project” shall commence from the Commencement

Date and shall extend for a period of 30 (thirty) years from such date (the “Concession

Period”) during which the Concessionaire is authorized to implement and to operate

the Project in accordance with the provisions hereof. For the avoidance of doubt, the

Concession Period shall include the Construction Period.

Thereafter, there shall be a bidding in which the Concessionaire shall

have Right of First Refusal (RoFR) provided the offered proposal is within

the range of 20% from H1 and the Concessionaire agrees to match the H1

Financial Proposal.

2.2.2 It is hereby made clear that:

a. In the event of the Concession Period being extended by the Authority beyond the

said period in accordance with the provisions of this Concession Agreement, the

Concession Period shall include the period/ aggregate period by which the

Concession is so extended, and

b. In the event of Termination, the Concession Period shall mean and be limited to the

period commencing from the Compliance Date and ending with the Termination.

2.2.3 At the end of the Concession Period or sooner termination of this Agreement for any

reason whatsoever, all rights given under this Concession Agreement shall cease to

have effect and the Project with all the fixtures and other assets permanently attached

to the Project shall revert to the Authority without any obligation of the Authority to pay

or adjust any consideration or other payment to the Concessionaire.

2.2.4 The Authority shall, at any time prior to the date of expiry of the Concession Period,

have the right to grant concession with respect to the Project for a period which it may

determine its sole discretion, after the expiry of the Concession Period, through

competitive bidding amongst developers other than the Authority and any undertaking

owned by it. The Authority further agrees that the Concessionaire shall have the right to

participate in such competitive bidding and make its offer in accordance with the terms

thereof. In the event that the Concessionaire is not the highest bidder, it shall have the

first right of refusal to accept the concession, if its bid is in the range of +/- [10% (ten per

cent)] of the highest bid. Provided that the aggregate amounts paid by the

Concessionaire to the Authority during the Concession Period in the nature of liquidated

damages in accordance with the terms of this Agreement, are not more than [15%

(fifteen per cent)] of the amount of the Performance Security or not more than [5 (five)]


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incidents of Concessionaire Default shall have occurred for [6 (six)] consecutive months

during the entire Concession Period. For the purposes of this Article 2.2, the aggregate

amounts of liquidated damages paid by the Concessionaire to the Authority during the

Concession Period shall be calculated at the present value, which shall be taken as on

the Execution Date.

2.3 Acceptance of the Concession

2.3.1 The Concessionaire hereby accepts the Concession and agrees and undertakes to

implement the Project/ provide Project Facility, and to perform/discharge all of its

obligations in accordance with the terms and conditions set forth in this Agreement.

2.4 Project Site

2.4.1 The Authority hereby undertakes to handover to the Concessionaire physical

possession of the Project Site free from Encumbrance within 30 (thirty) days from the

date of this Agreement together with the necessary rights of way/ way leaves for the

purpose of implementing the Project in accordance with this Agreement.

2.4.2 The Authority confirms that upon the Project Site being handed over pursuant to the

preceding Clause 2.4.1; the Concessionaire shall have the exclusive right to enter upon,

occupy and use the Project Site and to make at its costs, charges and expenses such

for development and improvements in the Project Site as may be necessary or

appropriate to implement the Project and to provide Project Facility subject to and in

accordance with the provisions of this Agreement.

2.5 Use of the Project Site

2.5.1 The Concessionaire, subject to complying with the terms and conditions of this

Agreement, shall have the right of use of the Project Site during the Concession Period

in accordance with the terms of this Agreement and such right shall be limited for the

purposes mentioned in Agreement. The Concessionaire shall not use the Project Site

or the Project for any other purpose not intended herein.

2.6 Information about the Project Site

2.6.1 The information about the Project Site set out in Schedule ‘B’ in good faith and with

due regard to the matters for which such information is required by the Concessionaire.

The Authority agrees to provide to the Concessionaire, upon a reasonable request, any

further information relating to the Project Site, which the Authority may now possess or

may hereafter come to possess. Subject to this the Authority makes no representation

and gives no warranty to the Concessionaire in respect of the condition of the Project

Site.

2.7 Peaceful Possession

2.7.1 The Authority warrants that:

a. the Project Site together with the necessary right of way/ way leaves having been

acquired through the due process of law belongs to and vested in the Authority, and

that the Authority as full powers to hold, dispose of and deal with the same

consistent, interalia, with the provisions of this Agreement;

b. the Concessionaire shall have no obligation/ liability as to payment of any

compensation whatsoever to or the rehabilitation and resettlement of any Person

from whom the Project Site or any part thereof had been acquired and that the same

shall be the sole responsibility of the Authority; and


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c. the Concessionaire shall, subject to complying with the terms and conditions of this

Agreement, remain in peaceful possession and enjoyment of the Project Site during

the Concession Period. In the event the Concessionaire is obstructed by any Person

claiming any right, title or interest in or over the Project Site or any part thereof or in

the event of any enforcement action including any attachment, distraint,

appointment of receiver or liquidator being initiated by any Person claiming to have

any interest in/ charge on the Project Site or any part thereof, the Authority shall, if

called upon by the Concessionaire, defend such claims and proceedings and also

keep the Concessionaire indemnified against any direct or consequential loss or

damages which the Concessionaire may suffer, on account of any such right, title,

interest or charge.

2.8 Rights and Title over the Project Site

2.8.1 The Concessionaire shall have exclusive rights to the use of the Project Site in

accordance with the provisions of this Agreement and for this purpose it may regulate

the entry and use of the same by third parties.

2.8.2 The Concessionaire shall allow access to, and use of the Project Site/ Project Facility

for telegraph lines, electric lines or such other public purposes as the Authority may

specify, provided that such access or use does not result in a Material Adverse Effect

or closure of Project Facility for a period exceeding 120 (one hundred twenty) days and

that the Authority undertakes to ensure that the Project Facility is restored at the cost

and expenses of the Authority as per the Specifications and Standards. Where such

access or use causes any loss of Fee to the Concessionaire, the Authority shall

compensate the Concessionaire for such loss of User Charges by increasing the

Concession Period suitably.

2.8.3 The Concessionaire shall not part with or create any Encumbrance on the whole or any

part of the Project Site save and except as set forth and permitted under this Agreement

provided however that nothing contained herein shall be construed or interpreted as

restriction on the right of the Concessionaire to appoint any Contractor for the

performance of its obligations hereunder including for operation and maintenance of all

or any part of the Project / Project Facility.

2.9 Clearance & Permissions

2.9.1 The Concessionaire shall, however, apply for and obtain any other Applicable Permits

as listed in Schedule ‘L’ that may be necessary or required for the Project under any

Applicable Laws.

2.10 Consideration to the Authority

2.10.1 Annual Concession Fee

a. In consideration of the rights, privileges and interests granted by the Authority to the Concessionaire in terms of this Agreement, the Concessionaire shall pay to an Annual Concession Fee (ACF) of ₹ [insert] (Rupees [insert in words] only) and GST as applicable with from time to time.

b. The Annual Concession Fee payable to the Authority shall be the amount quoted

by the Successful Bidder/ Concessionaire in its Financial Proposal, dated _____.

The ACF shall be increased, after every third year, at the rate of 5% (five percent),

over the previous ACF.

c. The first payment of such Annual Concession Fee will fall due on the date of signing

of Concession Agreement. Thereafter, Annual Concession Fee shall increase by


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5% per year and payment shall be due and payable by the Concessionaire to every

year on the anniversary of the date of signing of this agreement. Failure to pay the

Annual Concession Fee on due date shall attract interest at the rate of SBI PLR plus

4% per annum for the unpaid period. If the Annual Concession Fee payment

remains unpaid for a period exceeding three (3) months from the due date, the

Authority shall terminate the agreement as per the provision of Article 15 of this

Agreement.

3 Performance Security

3.1 Performance Security

3.1.1 For due and punctual performance of its obligations under the Agreement, relating to

the Project, the Concessionaire shall deliver to the Authority no later than 90 days

from the date of this agreement an irrevocable and unconditional guarantee for a sum

equivalent to ₹_____________/- (Rupees _____________ only)******** in form set forth in

Schedule - J (the “Performance Security”) Until such time the Performance Security

is provided by the Concessionaire pursuant hereto and the same comes into effect, the

Bid security shall remain in force and effect, and upon such provision of the

Performance Security pursuant hereto, shall release the Bid Security to the

Concessionaire.

3.1.2 The Performance Security shall be from a Scheduled Commercial Bank in India and

payable at Dehradun. The Performance Security shall be valid for a period of 12 (twelve)

months and shall be renewed every year, at least 30 (thirty) days prior to the date of

expiry of the Bank Guarantee. All charges, fees, costs and expenses related to the

Bank Guarantee shall be borne and paid by the Concessionaire. The Concessionaire

undertakes and warrants to the Authority that the bank guarantee furnished as above

shall be unconditional and irrevocable and shall continue to be effective and enforceable

for 6 (six) months after the expiry of the Concession Period.

3.1.3 The performance security in the form of bank guarantee shall be renewed every year till

the end of the Concession Period and transfer of the Project along with the Project Site

to the Authority. If the Agreement is terminated due to any event other than a

Concessionaire Event of Default, the Performance Security shall, subject to the

Authority’s right to receive or recover amounts, if any, due from the Concessionaire

under the Agreement, be duly discharged and released to the Concessionaire.

3.2 Fresh Performance Security

3.2.1 Upon occurrence of Concessionaire Event of Default, the 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 the Performance Security, in case of partial

appropriation, to its original level before such encashment or appropriation of and in

case of appropriation of entire Performance Security to provide a fresh Performance

Security and the Concessionaire shall, within the time so granted replenish or furnish

to a fresh Performance Security as aforesaid, failing which the The Authority

shall be entitled to terminate the Agreement.

******** Calculated at 5% (five per cent) of the amount specified as eligible project cost.


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4 User Charges

4.1 Levy, Collection and appropriation of User Charges

4.1.1 The Concessionaire may determine the tariff structure for different categories of Keys

and other services in such manner as it deems fit; provided however, that such tariffs

shall not be combined with any facility or service that is not directly connected with the

Project.

4.1.2 The Concessionaire may levy and recover an additional service charge for and in

respect of any facility or service as it may deem fit.

4.1.3 The Concessionaire may, for occupancy of Keys in the Project by Users, levy and

recover such tariffs as it may determine from time to time and shall also be entitled to

charge market related rates for other services such as telephone, telefax, laundry, food,

beverages, liquor, recreation amenities (outdoor pool, health club, spa, sauna, fitness

facility etc.), outdoor catering, vending machines, Wi-Fi services and any other service.

The Concessionaire may also recover rent or fee for use of commercial or other spaces

of every description and kind, provided by the Concessionaire.

4.2 Revision of User Charges

4.2.1 The Concessionaire may offer such special discounted tariffs or charges to any

individual or class of clients as it may deem necessary for promotion of its business.


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5 Obligations & Undertakings

In addition to and not in derogation or substitution of any of the obligations set out elsewhere in this

Agreement, the Parties agree and undertake as under:

5.1 General Obligations of the Concessionaire

The Concessionaire shall at its own cost and expense:

I. Take over the possession of the Project Site from the Authority, provided it is being

delivered in accordance with the provisions of this Concession Agreement and safeguard

and use the Project Site solely for the purpose of discharging its obligations under this


II. Obtain any and all permits, necessary approvals, clearances and sanctions from the

Competent Authority, for building plans, infrastructure facilities including power, water

supply, drainage & sewerage, firefighting, telecommunications etc., as and when they may

be required, for the Concessionaire and its employees to perform their obligations under

this Concession Agreement;

III. Comply and observe at all times with all Applicable Permits, approvals and applicable laws,

norms/ standards in the performance of its obligations under this Agreement including

those being performed by any of its Contractors;

IV. Make arrangements and procurement of firm commitment for financing the Project and

achieve Financial Closure and deliver complete evidence to the Authority that Financial

Closure has been accomplished, within a period of 90 days from the date of signing of this

Concession Agreement. As and when these documents are approved by the Lenders, with

or without modifications, true notarized copies of the Financing Package, Financing

Documents & the Financial Model shall be furnished by the Concessionaire to the Authority

forthwith. The soft copy of the Financing Package, Financing Documents & the Financial

Model shall also be provided.

V. Ensure that the commercial area has been constructed at the Project Site as per conceptual

plans;

VI. Ensure that the Project shall be used for the intended purpose only as agreed between the

Parties.

VII. Shall have the right to sub-licence the use of commercial area of the Project, during the

subsistence of this Concession Agreement only with a clear stipulation that sub-licence

granted shall terminate simultaneously with the termination of this Concession Agreement

including any sooner determination of the Concession Period for any reason whatsoever.

All contracts, agreements or arrangements with sub-licensees shall specifically stipulate

this covenant of termination of the sub-licence rights and further that the sub-licensee shall

not have any claim whatsoever against the Authority for any such termination. The

Concessionaire shall prepare a draft standard format of the sub-licence arrangement/

agreement and obtain approval of the draft standard format from the Authority which the

Concessionaire will be required to sign with the sub-licensee for the use of the commercial

area of the Project. The Concessionaire shall furnish the copy of such agreement/

arrangement to the Authority.

VIII. Shall ensure that the use of the Project Site is restricted to the Schedule ‘A’.

IX. Submit to the Authority certified true copies of each of the Project Agreements and any

further replacement, amendment or modifications within 7 (seven) days of their execution.


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X. To be responsible for safety, soundness and durability of the Project, including other

structures, services forming part thereof and their compliance with the local building

byelaws.

XI. . In case the concessionaire decides upon renovation then they will ensure structure

strength is not compromised in any manner and all necessary reinforcements as per

development plan and structure engineer’s report are complied with

XII. Submit “Structural Safety Certificate” of the proposed Project from competent structural

engineer before the commencement of commercial activities. The Concessionaire shall

ensure that the certificate is also counter certified/ signed by the Independent Expert.

XIII. To pay at its own cost all applicable existing and future taxes/ charges/ fees/ levies including

the property tax, GST, stamp duty, registration charges and any other legal documentation

charges, if any, in respect of the said Project, including Project Site, as applicable.

XIV. To duly supervise, monitor and control the activities of Contractors, subcontractors, their

employees and agents under their respective Project Agreements as may be necessary.

XV. To ensure harmony and good industrial relations amongst the personnel employed in

connection with the performance of the Concessionaire’s obligations under this Agreement.

XVI. To obtain and maintain in force all insurance in accordance with the provisions of this

Agreement and Good Industry Practice.

XVII. To take all reasonable precautions for the prevention of accidents on or about the Project/

Project Site and provide all reasonable assistance and emergency medical aid to accident

victims.

XVIII. Not to permit any contractor, sub-contractors or other person, claiming through or under

the Concessionaire, to create or place any Encumbrances or security interest over all or

any part of Project Site or the Project Assets or on any rights of the Concessionaire therein

or under this Agreement, save and except as expressly permitted in this Agreement.

XIX. To ensure that such Project Site remains free from all encumbrances, encroachments and

trespass during the entire Concession Period.

XX. To provide all assistance to the Independent Expert/ expert/ independent auditor/ arbitrator

as it may require for the performance of their duties and services.

XXI. At all times, to afford access to the Project Site to the authorized representatives of

Authority, Lenders, other persons duly authorized 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.

XXII. To remain solely and primarily responsible to Authority for observance of all the provisions

of this Concession Agreement on behalf of the Concessionaire, its employees and

representatives and further on behalf of the sub-licensees, their employees and agents and

any person acting under or for and on behalf of the Concessionaire or the sub-licensees,

the sub-contractor as fully as if they were the acts or defaults of the Concessionaire, its

agents or employees.

XXIII. To remain liable for and to indemnify, protect, defend and hold harmless Authority,

Authority’s officers, employees and agents from and against any and all demands, claims,

suits and causes of action and any and all liability, costs, expenses, settlements and

judgments arising out of the failure of the Concessionaire to discharge its obligations under

this Article and to comply with the provisions of Applicable Laws and Applicable Permits.

XXIV. To acknowledge and recognize that time is of the essence of this Agreement and that the

performance of its obligations shall be construed accordingly.


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XXV. To remain at all times, responsible and liable for all its obligations under this Agreement

notwithstanding anything contained in any other agreement, and no default under any

agreement shall excuse the Concessionaire from its obligations or liability hereunder.

XXVI. The Concessionaire may undertake development of Project by itself or through one or more

contractors possessing requisite technical, financial and managerial expertise/capability;

but in either case, the Concessionaire shall remain solely responsible to meet the scope of

work as mentioned in this Agreement.

XXVII. The Concessionaire shall make timely and due payment of the ACF at all time during the

Concession period.

XXVIII. The Concessionaire shall timely furnish the Performance Security/ O&M Security as per

the terms of the Concession Agreement.

XXIX. The Concessionaire shall timely make good the shortfall in the Performance Security/ O&M

Security.

5.2 Obligations of the Concessionaire during Implementation Period

5.2.1 The Concessionaire shall, before commencement of construction of the Project;

I. Submit, 2 (two) copies each (soft/ hard) of the detailed design, including

Architectural Plans, Structural Drawings, all internal and estate services of the

Project to the Independent Expert;

II. have requisite organisation and designate and appoint suitable officers/

representatives as it may deem appropriate to supervise the Project and to deal with

the Independent Expert/ the Steering Group and to be responsible for all necessary

exchange of information required pursuant to this Agreement;

5.2.2 Carry out the Works strictly in accordance with the provisions of this Concession

Agreement, the Technical Requirements, Performance Standards, the Project

Implementation Schedule and the Schedules of this Concession Agreement, and all

works not mentioned in this Concession Agreement but which may be inferred to be

necessary for safe, reliable and efficient construction and operation of the Works;

5.2.3 Undertake to complete the construction within the specified Construction Period,

provided that the Concessionaire shall not be in breach of this Clause 5.2.3 if any non-

fulfilment or the delay in fulfilment of its obligation are caused by (i) the occurrence of

an event of Force Majeure or (ii) any other act or omission of the Authority in

contravention of its obligations under this Concession Agreement;

5.2.4 Furnish the Authority with the "As Built Drawings" of the Project within 30 (thirty) days

of the completion of the Construction of the Project;

5.2.5 Carry out its obligations/duties with regard to the operation and maintenance of the

Project in accordance with the Schedules to this Concession Agreement. The

obligations shall include all work which is necessary to satisfy the Schedules, Technical

Requirements and Performance Standards or is implied by this Concession Agreement,

or arises from any obligation of the Concessionaire, and all duties not mentioned in this

Concession Agreement, but which may be inferred to be necessary for the safe, reliable

and efficient operation of the Project;

5.2.6 Operate and maintain the Project and all its components, including maintaining

necessary records, for the periods stipulated herein after, as per the Technical

Requirements and Performance Standards set out, and shall remedy any defects within

the Concession Period. The Concessionaire shall provide all superintendence, labour,

plant, materials, equipment, and all such other things for such operation (including Tariff


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collection) and maintenance (including remedying of defects).

5.2.7 Take full responsibility for the adequacy, stability and safety of all Project Site

operations, of all methods of construction, operation and maintenance of the Project,

irrespective of any approval or consent by the Authority.

5.3 Obligations of the Authority

The Authority shall:

I. Hand over the physical possession of Project Site together with necessary right of way/

way leaves to the Concessionaire within 30 (thirty) days from the date of this Agreement,

free from any Encumbrance;

II. Grant in a timely manner all such approvals, permissions and authorisations which the

Concessionaire may require or is obliged to seek from the Authority in connection with

implementation of the Project and the performance of the Concessionaire’s obligations

under this Agreement;

III. Subscribe to the Substitution Agreement within 15 (fifteen) days of intimation by the

Concessionaire regarding Financial Close;

IV. Ensure peaceful use of the Project Site by the Concessionaire under and in accordance

with the provisions of this Agreement without any let or hindrance from the Authority or

persons claiming through or under it;

V. Assist the concessionaire in expediting the process of permission and approvals from the

Development Authority. However, such request has to be expressly be made by the

concessionaire in writing.

VI. Observe and comply with all its obligations set forth in this Agreement.

5.4 Minimum Equity requirements

a. The aggregate shareholding of the JV Members (in case of JV) or Associate/s (in case

of Individual Bidder) in the issued and paid up equity share capital of the Concessionaire

(here the term “Concessionaire” connotes the special purpose company as formed by

the JV Members or the individual Bidder) shall be not less than:

a. 51% (fifty one percent) till a period of five years from the Commercial Operation

Date of the Project or issuance of Construction Completion Certificate (i.e. the

Lock in Period);

b. 26% (twenty six percent) till the Transfer Date/issuance of Concession

Agreement Completion Certificate.

b. All other members of the JV shall legally and beneficially hold not less than 26% (twenty

six percent) of the paid-up equity capital of the Concessionaire till the fifth anniversary

of the Project Construction Completion Date.

c. At no stage shall any change in the Equity Components / shareholding patterns be made

by the JV Members or by any of the Associates without obtaining prior approval from the

Authority. On an application made for the purpose, the Authority may permit the change

of equity components / shareholding patterns, provided that the Concessioning

Authority is satisfied that the proposed changes shall be in the interest of the

implementation of the Project in future and would not be detrimental to any of the rights

or interests of the Authority. However, no such change in the equity components /

shareholding pattern shall be permitted by the Authority, which would make the JV

members non-compliant with Clause 5.4 (a) and 5.4 (b) above.


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6 Independent Expert

6.1 Independent Expert

The Authority shall appoint, no later than [90 (ninety)] days from the Execution Date, a third-

party agency (the “Independent Expert”) for the Concession Period. Provided that the

Authority shall have the right to appoint any of its agencies or departments to monitor the

Project until the Independent Expert is appointed in accordance with this Clause 6.1. The

provisions of this Agreement with respect to the Independent Expert shall apply mutatis

mutandis to such agency or department until the Independent Expert is appointed in

accordance with the provisions of Schedule E and this Clause 6.1 and such provisions shall

be repeated after expiry of each appointment.

6.2 Duties and functions

a. The Independent Expert shall discharge its duties and functions substantially in

accordance with the terms of reference set forth in Schedule E.

b. The Independent Expert shall submit regular periodic reports at least [once every month]

to the Authority in respect of its duties and functions set forth in Schedule E.

c. A true copy of all communications sent by the Authority to the Independent Expert and

by the Independent Expert to the Authority shall be sent forthwith by the Independent

Expert to the Concessionaire.

d. A true copy of all communications sent by the Independent Expert to Concessionaire

and by the Concessionaire to the Independent Expert shall be sent forthwith by the

Independent Expert to the Authority.

6.3 Authorised signatories

The Authority shall require the Independent Expert to designate and notify to the Authority

and the Concessionaire up to 2 (two) persons employed in its firm to sign for and on behalf

of the Independent Expert, and any communication or document required to be signed by

the Independent Expert shall be valid and effective only if signed by any of the designated

persons; provided that the Independent Expert may, by notice in writing, substitute any of

the designated persons by any of its employees.

6.4 Remuneration

The remuneration, cost and expenses of the Independent Expert shall be paid by the

Authority, .

6.5 Termination

The Authority may, in its discretion, terminate the appointment of the Independent Expert at

any time, but only after the appointment of another Independent Expert in accordance with

Clause 6.1 above.


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7 Steering Group

7.1 Constitution

The Authority shall through an office order, constitute a Steering Group comprising of a

representative each of the Authority and the Concessionaire within 30 (thirty) days of this

Agreement.

7.2 Functions

The Steering Group shall hold meetings at least once every 3 (three) month to review the

progress during the Implementation Period and every 6 (six) month during the Operations

Period. The representative of the Authority shall act as the Chairman of the Steering Group.

The Steering Group shall carry out such functions and exercise such powers as are

prescribed / conferred under this Agreement.

7.3 Steering Group as Maintenance Board

During the operation and maintenance period the Steering Group act as the Maintenance

Board. Wherever possible, the Maintenance Board shall act by consensus. If consensus is

not reached, it shall take vote, and if there is a tie in such vote, the representative of the

Authority shall have the casting vote.

7.4 Powers and Duties as the Maintenance Board

a. The Maintenance Board shall have the powers and duties set out in this Concession

Agreement or any other powers required for the proper development, operation and

maintenance of the Project, including, (without limitation):

i. Compliance to the O & M Manual;

ii. Review the Concessionaire’s periodic reports;

iii. Approve any improvements or modifications proposed by any of the members of the

Maintenance Board;

iv. Review Performance Safety & Security requirements;

v. Any other matter which it deems necessary for the development, operation or

maintenance of the Project Site/ Project;

vi. Impose penalties on the Concessionaire as stipulated in Clause 10.2.2.

b. The Maintenance Board shall have the power to appoint Expert or Specialist Person in

any area required, for a review of the operation, maintenance and planning of the

Project. Such persons shall act as an "Expert", whose expert professional opinion, once

confirmed by the Maintenance Board, shall be binding on the Parties and the

Maintenance Board.

c. Without limitation to the generality of the foregoing Articles, the Maintenance Board shall

have the power to appoint a valuer as an Expert to undertake and determine the cost of

repairs required as well as for the valuation of any other Works.

d. The Concessionaire and the Authority shall extend full co-operation to the Maintenance

Board and to any Expert appointed by the Maintenance Board. All the expenses of the

Maintenance Board shall be borne equally between the Parties.

e. The Maintenance Board shall meet at least once every quarter of the calendar year at

such time & venue as may be indicated by the Chairman and notified to all the members

of the Maintenance Board at least 14 (fourteen) days before the date of the meeting.


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8 Drawings

8.1 Preparation of Drawings

The Concessionaire shall, at its cost, charges and expenses, cause Drawings to be prepared

in accordance with the Specification and Standards. The Concessionaire may, for this

purpose, adopt with or without any modifications the Drawings, if any, made available by the

Authority, provided, notwithstanding such adoption, the Concessionaire shall be solely

responsible for the adequacy of the Drawings.

8.2 Review and Approval of Drawings

8.2.1 The Concessionaire shall promptly and in such sequence as is consistent with the

Project Completion Schedule, submit a copy each of all Drawings to the Independent

Expert.

8.2.2 By forwarding the Drawings to the Independent Expert pursuant to Clause 8.2.1 above,

the Concessionaire represents that it has determined and verified that the design and

engineering including field construction criteria related thereto are in conformity with the

Specifications and Standards.

8.2.3 Within 15 (fifteen) days of the receipt of the Drawings, Independent Expert shall review

the same taking into account and convey its comments/observations, if any, thereon to

the Concessionaire with particular reference to the conformity or otherwise with the

Specifications and Standards. It is expressly agreed that notwithstanding any review or

failure to review by the Independent Expert or any comments/observations of the

Independent Expert, the Authority shall not be liable for the adequacy of the Drawings

and that the Concessionaire shall solely be responsible therefore and shall not be

relieved or absolved in any manner whatsoever of its obligations, duties and liabilities

as set forth in this Agreement.

8.2.4 If the comments/ observations of Independent Expert indicate that the Drawings are not

in conformity with the Specifications and Standards, such Drawings shall be revised by

the Concessionaire to the extent necessary and resubmitted to Independent Expert for

further review. Independent Expert shall give its observations and comments, if any,

within 15 (fifteen) days of the receipt of such revised Drawings. Provided, however, that

any observations or comments of Independent Expert or failure of Independent Expert

to give any observations or comments on such revised Drawings shall not relieve or

absolve the Concessionaire of its obligation to conform to such Specifications and

Standards.

8.2.5 If the Independent Expert does not object to the Drawings submitted to it by the

Concessionaire within a period stipulated in above Clauses 8.2.3 or 8.2.4 as applicable,

the Concessionaire shall be entitled to proceed with the Project accordingly.

8.2.6 The Concessionaire shall be responsible for delays in Project Completion and

consequences thereof caused by reason of any Drawings not being in conformity with

the Specifications and Standards and shall not be entitled to seek any relief in this regard

from the Authority.

8.2.7 Within 90 (ninety) days of the COD, the Concessionaire shall furnish to the Authority

three copies of "as built" Drawings duly vetted by the Independent Expert reflecting the

Project as actually designed, engineered and constructed.

8.2.8 This Article shall also be applicable if any new Works, strengthening, rehabilitation of

any part of the Project are carried out during the Operation and Maintenance Period.


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The Concessionaire shall keep one set of Final Drawings at Project Site for the entire

Concession Period.

8.2.9 If the Concessionaire desires to use any designated device, materials or any process

covered by letters of “Patents” or “Copyrights”, the right for such use shall be secured

by the Concessionaire by suitable legal arrangements and agreements with the Patents’

owner. A copy of the agreement shall be filed with the Authority.

8.2.10 Except where otherwise stated in this Concession Agreement, the Concessionaire shall

pay all tonnage, levies, cess, royalties, rent and other payments or compensation, if any,

for Plant and Machinery or other materials required for the Works.


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9 Project Implementation

9.1 Execution

All Works shall be executed in the manner set out in this Concession Agreement. Where the

manner of execution is not set out in this Concession Agreement, the Works shall be

executed under the instructions of the Independent Expert during the Construction Period

and the Authority during the Operation and Maintenance Period, in a proper, workmanlike

and careful manner and as per Good Industry Practice, with properly equipped facilities and

non‐hazardous materials.

9.2 Inspection

9.2.1 The Authority and Independent Expert shall be entitled, during fabrication, construction

or preparation at any places where Works are being carried out, to inspect, examine

and test the materials and workmanship, and to check the progress thereof of all Works

under this Concession Agreement. The Concessionaire shall give the Authority and

Independent Expert full opportunity to inspect, examine, measure and test any Works

on Project Site or wherever being carried out.

9.2.2 The Concessionaire shall give due notice to the Authority and Independent Expert

whenever such Work is ready. The Independent Expert and the Authority shall then

respond to the Concessionaire with its intention to either carry out the inspection,

examination, measurement or testing within 14 (fourteen) days, or notify that it is

considered unnecessary. If the Concessionaire fails to give such notice, it shall, when

required by the Independent Expert, uncover such work and thereafter reinstate and

make good at Concessionaire’s own cost.

9.2.3 If the Independent Expert or the Authority fails to respond to the Concessionaire’s notice

within 14 (fourteen) days of receiving the notice, it shall be deemed to imply that they

do not consider it necessary to inspect the Works mentioned in the notice.

9.3 Testing during Construction Period

9.3.1 If the Authority or the Independent Expert requires Tests at any time during the

Construction Period, the Concessionaire shall provide all documents and other

information necessary for testing and other such assistance, labour, materials,

electricity, fuel, stores, apparatus and instruments as are necessary to carry out such

tests efficiently. The Concessionaire shall provide engineering support and technical

know-how as the Authority or the Independent Expert shall reasonably request for the

purpose of the Tests.

9.3.2 The Concessionaire shall provide sufficient and suitably qualified and experienced staff

to carry out such Test.

9.3.3 The Concessionaire shall promptly forward to the Independent Expert duly certified

reports of the Tests. If the Independent Expert has not attended the Tests, he shall

accept the readings as accurate. When the specified Tests have been passed,

Independent Expert shall endorse the Concessionaire's Test certificate, or issue a

confirmation to it to that effect and intimate Authority forthwith.

9.3.4 The Authority is entitled to insist for the Concessionaire to carry out any Tests of any

type, as it deems fit. If such Tests are not in accordance with general Good Industry

Practices, then the Authority may carry out the tests and the Cost of which shall be

borne by the Concessionaire.


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9.4 Rejection

9.4.1 If, as a result of inspection, examination or testing under Clause 9.3, the Independent

Expert decides that any plant, materials, design or workmanship is defective or

otherwise not in accordance with this Concession Agreement, the Independent Expert

may reject such plant, materials, design or workmanship and shall notify the

Concessionaire within 7 days recording clearly his reasons thereof.

9.4.2 9.4.2 The Concessionaire shall then, within the time permitted by the Independent

Expert, make good the defect and ensure that the rejected item or work complies with

this Concession Agreement. If Independent Expert requires such plant, materials,

design or workmanship to be re-tested, all such Tests shall be repeated under Clasue

9.14 at the cost of the Concessionaire.

9.5 Ownership

Each item of Plant and Machinery and the Materials shall be the property of Concessionaire

till the expiry of the Concession Period or upon the premature termination of this Concession

Agreement. The Concessionaire shall assume full responsibility for the Plant and Machinery,

Materials and Works at the Project Site.

9.6 Commencement

9.6.1 The rights and obligations of the Parties under this Concession Agreement shall

commence from the Proposal Acceptance Date. Any Works of whatever nature, which

the Concessionaire elects to carry out prior to the Proposal Acceptance Date including

investigations, surveys, design, etc. shall be entirely at the risk and Cost of the

Concessionaire.

9.6.2 The Concessionaire shall not be permitted to commence work on any part of the Project

Site prior to the issuance of the "Letter of Award".

9.6.3 Any delay on the part of the Authority (unless such delay is contributed by the

Concessionaire) in the completion of the Conditions Precedent shall be deemed to be

a delay in commencement of the Project.

9.7 Time for Completion

The development of the Project shall be in accordance with the “Time for Completion of

Construction”, provided that this period, as stated, may be extended in accordance with

Clauses 9.9 and 9.10.

9.8 Delays Caused by Competent Authorities

If the following conditions apply:

i. The Concessionaire has diligently followed the procedures laid down by the Competent

Authorities and under Applicable Laws, and

ii. The Competent Authorities delay, impede or prevent the Concessionaire from complying

with the Time of Completion of Construction or any revision thereof;

then any such delay will be considered as a cause of delay giving an entitlement to extension

of time under Clause 9.9.

9.9 Extension of Time

9.9.1 The Concessionaire may apply for an extension of the Time for Completion of

Construction if it is or will be delayed either before or after the Time for Completion of


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Construction, by any of the following causes:

i. A Force Majeure event;

ii. A cause of delay giving an explicit and express entitlement to extension of time

under any Articles in this Concession Agreement, unless the Concessionaire has

not complied with such Article;

iii. Any delay, impediment or prevention by the Authority;

iv. Any delay caused by Competent Authorities under Clause 9.8 above.

Provided that the Concessionaire shall at all times use its best endeavours to minimize

any delay in the performance of its obligations under this Concession Agreement,

whatever may be the cause of such delay.

9.9.2 If the Concessionaire intends to apply for an extension of the Time for Completion of

Construction, the Concessionaire shall give notice to Independent Expert and the

Authority of such intention as soon as possible and in any case within 28 (twenty-eight)

days of the start of the event giving rise to any such delay, together with any other notice

required by this Concession Agreement and relevant to such cause. Any such notice

shall state the extent of the actual and anticipated delay and its anticipated effect on the

Time for Completion of Construction, and shall specify the steps the Concessionaire

proposes to take to minimize such delay. The Concessionaire shall keep such records

as may be necessary to substantiate any application, either on the relevant Project Site

or at another location acceptable to Independent Expert and the Authority, and such

other records as may reasonably be requested by the Authority and the Independent

Expert. The Concessionaire shall provide and permit the Authority and the Independent

Expert to inspect all such records.

9.9.3 Within 28 (twenty-eight) days of the first day of such delay (or such other period as may

be agreed by the Authority), the Concessionaire shall submit full supporting details of

its application. Except that, if the Concessionaire cannot submit all relevant details within

such period because the cause of delay continued for a period exceeding 7 (seven)

days, the Concessionaire shall submit interim details at intervals of not more than 28

(twenty-eight) days (from the first day of such delay) and full and final supporting details

of its application within 21 (twenty-one) days of the last day of delay.

9.9.4 Provided that the Concessionaire has complied with this Clause 9.9.4, the Authority

shall proceed in accordance with Clause 5.3 to determine either prospectively or

retrospectively such adjustment as may be due, taking into account all relevant

circumstances. The Authority shall notify the Concessionaire accordingly. When

determining each extension of time, the Authority shall review its previous

determinations and may revise, but shall not decrease, the extension, and provided that

the extension of time is not a consequence of any negligence, default or breach of

Concession Agreement by the Concessionaire or those for whom it is responsible.

9.9.5 The Concessionaire shall not be entitled to an extension of the Time for Completion of

Construction, to the extent that the delay in respect of which the extension of time is

requested is attributable to any negligence, default or breach of this Concession

Agreement by the Concessionaire or those for whom it is responsible, as determined by

the Independent Expert.

9.10 Progress

9.10.1 If at any time, the Concessionaire's actual progress falls behind the Project

Implementation Schedule referred to in Schedule ‘D’, or it becomes apparent that it will


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so fall behind, the Concessionaire shall submit to the Authority and Independent Expert

a revised Project Implementation Schedule taking into account the prevailing

circumstances. The Concessionaire shall, at the same time, notify the Authority and the

Independent Expert of the steps being taken to expedite progress so as to achieve

completion within the Time for Completion of Construction as specified under Clause

9.7.

9.10.2 If the revision of the Project Implementation Schedule is necessitated due to any default,

negligence or oversight of the Concessionaire, the Concessionaire shall be responsible,

to take all further steps for the rectification and revision of the programme and the

underlying Works at its cost.

9.10.3 Notwithstanding anything to the contrary in this Clause 9.10.3, a revision in the Project

Implementation Schedule that results in the extension of the Time for Completion of

Construction will become effective only after it has been approved in writing by the

Authority.

9.11 Delay in Completion

9.11.1 If the Concessionaire delays Completion of Construction beyond the Time for

Completion of Construction and if in the opinion of the Independent Expert, such delay

is caused by any negligence, default, or failure of the Concessionaire, no extension of

Time for Completion of Construction shall be given by the Authority. In such a case the

duration of the Concession Period shall also not be adjusted and the Concessionaire

shall be solely responsible for the corresponding reduction of the period for which the

Project is used and any reduction in revenue as a consequence thereof.

In case the Concessionaire fails to complete the Works within the Time for Completion

of construction, the Authority shall issue a notice to the Concessionaire to complete the

construction within such reasonable time as will be specified in the notice and shall also

be asked to pay damages. If the Concessionaire fails to complete construction of the

Works within the time specified in the notice the Authority may proceed to terminate the

Concession Agreement in accordance Article 15.

9.12 Notice to Test

9.12.1 As soon as construction of the Works is, in the opinion of the Concessionaire,

substantially complete, the Concessionaire shall so notify the Authority and the

Independent Expert that the Concessionaire is ready to conduct Tests to demonstrate

that the Works have been completed in accordance with the specifications and

standards and provisions of this Concession Agreement.

9.13 Tests on Completion

9.13.1 Before commencement of the Tests, the Concessionaire shall ensure that it has

provided the Independent Expert with all required documents. The provisions of Clause

9.3 shall be applicable mutatis mutandis to the carrying out of the Tests under this

Article. The Concessionaire shall give to the Independent Expert not less than 28

(twenty-eight) days' notice of its intent to carry out the Tests. Unless otherwise agreed,

such Tests shall be carried out within 14 (fourteen) days after this date, or on such day

or days as the Independent Expert shall instruct.

9.13.2 The Tests shall include checking of construction records, documents and drawings, trial

runs, checks of profiles and levels, or any other Tests that may be reasonably necessary

to confirm that the Works meet the Technical Requirements/ standards. The


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Independent Expert shall draw up a detailed list of Tests, along with the acceptable

standards to be carried out by the Concessionaire and shall furnish the same to the

Concessionaire within 14 (fourteen) days of the receipt of the Concessionaire’s intention

to carry out the Tests.

9.13.3 The Independent Expert shall monitor the results of the Tests to determine the

compliance of the Project with the standards and Technical Requirements. The

Concessionaire shall provide the Independent Expert and the Authority with the copies

of all Test data and Test results.

9.13.4 The results of the Tests on Completion shall be compiled and evaluated by the

Independent Expert. Upon the Independent Expert determining the Tests to be

successful, the Independent Expert shall issue the Construction Completion Certificate

in accordance with Clause 9.16.

9.13.5 If the Independent Expert certifies that it is unable to issue the Completion Certificate or

Provisional Certificate because of events or circumstances which excuse the

performance of the Concessionaire's obligations in accordance with this Agreement and

as a consequence thereof the Tests could not be held or had to be suspended, the

Concessionaire shall re-schedule the Tests and hold the same as soon as reasonably

practicable.

9.13.6 The Concessionaire shall bear all the expenses relating to Tests under this Agreement.

9.14 Re-Testing

9.14.1 If the Independent Expert is not satisfied with the results of any Tests, it shall within 7

(seven) days thereof notify the Concessionaire of such conclusion stating the reasons

for such dissatisfaction. In such an event Clause 9.4 shall apply and the Independent

Expert may require such failed Tests and the Tests on Completion of any related work,

to be repeated under the same terms and conditions.

9.15 Failure to Pass Tests

9.15.1 If the Works or parts thereof, fail to pass the Tests on completion repeated under Clause

9.14, the Independent Expert shall be entitled to:

i. Order further repetition of Tests on completion under Clause 9.14, in which

case the Concessionaire shall be obliged to carry out such adjustments,

repairs, replacements and/or modifications as may be required to ensure that

the Works or part achieve the requirements; or

ii. Reject the Works or part (as the case may be), if the Construction Completion

Certificate could not be issued within 90 (Ninety) days from the date the

Concessionaire had notified the Independent Expert about the actual date of

the first Test pursuant hereto for reasons attributable to the Concessionaire, in

which event, the Authority shall have the same remedies against the

Concessionaire as are provided under Clause 15.1.1.

9.16 Construction Completion Certificate

9.16.1 The construction work in this Concession Agreement shall not be considered to be

completed until the Construction Completion Certificate has been signed by the

Independent Expert and delivered to the Authority and the Concessionaire, stating that

the Concessionaire has completed its construction obligations under the Concession

Agreement to the Independent Expert's satisfaction.

9.16.2 The Construction Completion Certificate shall be given by the Independent Expert within


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28 (twenty-eight) days after:

i. The Concessionaire has provided all the Construction Documents (including

completion drawings) for the Works;

ii. The Concessionaire has remedied any defects in the Works;

iii. The Concessionaire has completed and tested all the Works, as specified by the

Independent Expert;

iv. The Works as an integrated structure is in conformity with the Technical

Requirements; and

v. The Concessionaire has submitted “Structural Safety Certificate”.

9.16.3 The Independent Expert would be required to issue the “Construction Completion

Certificate” after the construction of the Project has been completed in all respect and

is ready to use. However, the required documents as stated in Clause 9.16 shall be

submitted by the Concessionaire and also, comply with all the obligations, wherein

mentioned in the Concession Agreement, required to be met before and after the

issuance of the Construction Completion Certificate.

9.17 Construction Completion Certificate not a Cessation of Liability

9.17.1 The issuance of the Construction Completion Certificate under this Article shall not in

any way but it shall be a milestone for reckoning the commencement of Commercial

Operations and permit the Concessionaire to commence Commercial Operations of the

Project:

i. Reduce or alter the liabilities of the Concessionaire;

ii. Constitute a waiver of unfulfilled obligations;

iii. Bar remedy and rectification of defects;

iv. Constitute an acceptance of the Works; and

9.18 Rectification

9.18.1 If the Concessionaire is obliged to carry out adjustments, repairs, replacements or

modifications after completion of construction to maintain the Works etc. the Authority

shall permit the Concessionaire to carry out all such adjustments, repairs, replacements

or modifications as may be necessary. If the adjustment, repair, replacement or

modification cannot be made without stopping the operations of the Project, then such

request shall only be granted if the Concessionaire's request is reasonable under all the

circumstances, having regard to the Concessionaire's obligations to keep the Project

operation open during all permitted hours of the day.


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10 Operations and Maintenance Period

10.1 Commencement and Duration

10.1.1 The Operation and Maintenance Period of the Project shall commence from the date of

issue of Construction Completion Certificate (Commercial Operations Date/COD) and

terminate at the Transfer Date.

10.2 Obligations of the Concessionaire during Operations and Maintenance

Period

10.2.1 During the Operations and Maintenance Period (“Operations and Maintenance

Phase”), the Concessionaire shall be responsible for performing all the obligations and

complying with the Performance Standards laid down in Schedule ‘H’ of this


10.2.2 In the event of failure to perform the obligations or comply with the Performance

Standards laid down in Schedule ‘H’, the Concessionaire shall be liable to a penalty

which shall not exceed the Performance Security and for the enforcement of which the

Performance Security may be used. The amount of penalty payable by the

Concessionaire for a default under this provision shall be determined by the

Maintenance Board.

10.2.3 The Concessionaire recognizes and acknowledges the fact that the Project is intended

to provide a public facility, and the Concessionaire shall have no right to prevent, impede

or obstruct any bona fide visitor from using the Project, save and except for regulating

such usage under the terms of this Concession Agreement. Under exceptional

circumstances, if the Concessionaire apprehends any detriment to the Project it shall

seek instructions from the Authority, whose decision in this regard shall be final.

10.3 Scope of Work During Operations and Maintenance Period

In addition to what is provided elsewhere in this Concession Agreement, the Concessionaire

shall have the following obligations and responsibilities during the Operations and

Maintenance Period:

10.3.1 The Concessionaire shall be responsible, at its own cost, for all the maintenance and

repairs of the Project and all its components, including roads, buildings, structures, all

services and allied works. The Concessionaire shall also carry out rectification of any

defects in the design or construction of any component of the Works.

10.3.2 The Concessionaire shall, put appropriate danger sign boards in English, Hindi and the

local language, notices and barriers as necessary in order to avoid any accidents and/or

emergencies on the Project Site.

10.3.3 The Concessionaire shall deploy adequate trained staff to manage complete operations

of the Project as per Performance Standards detailed in Schedules to this Agreement.

The Concessionaire shall bear the entire responsibility and liability for operation of the

Project.

10.3.4 The Concessionaire shall be entitled to levy, demand, collect, retain and appropriate the

Project Revenues as per the terms of this Concession Agreement.

10.3.5 The Concessionaire shall at its cost, carry out such periodic inspections, as well as

assist the Authority or its nominee to carry out any (reasonable) random or periodic

inspections or checks of any part or component of the Works, the cost of any Test shall

be borne by the Concessionaire.


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10.3.6 The Concessionaire shall carry out all checks and maintenance or repair works with

adequate advance notice in such a planned manner that there shall be minimal

disruption of the operations of the Project.

10.3.7 The Concessionaire shall ensure general upkeep of the Project Area in accordance with

the development envisaged.

10.4 Reporting

10.4.1 The Concessionaire shall in consultation with the Independent Expert prepare and

evolve, not later than 28 days prior to the Scheduled Construction Completion Date, a

draft Operation and Maintenance Manual (“O&M Manual”) providing the detailed plan

for regular and preventive maintenance of the Project. The Concessionaire shall at its

cost, provide within 21 (twenty-one) days of its finalization, submit the draft of the O&M

Manual to the Independent Expert for its review. The O&M Manual will become final

only after it has received the final approval of the Authority. Within a period of 30 (thirty)

days from the date of receipt of the O&M Manual, the Authority shall revert to the

Concessionaire with its comments and suggestions (if any) on the O&M Manual, which

shall be implemented and the O&M Manual shall be re-submitted for approval of the

Authority.

10.4.2 Not later than 28 (twenty-eight) days prior to the start of each Financial Year, the

Concessionaire shall provide to the Authority its proposed programme for maintenance

(“Maintenance Programme”) for the said Financial Year.

10.4.3 The Concessionaire shall undertake inspection of the Project, at least once every year,

to determine its condition including its compliance with the standards as set out in the

Schedules to this Concession Agreement and the O&M Manual. On the basis of this

inspection and the activities carried out during the year, the Concessionaire shall, at its

cost, prepare and submit to the Authority, 2 (two) copies of the “Annual Project

Report” for any calendar year within 7 (seven) days of the next calendar year. The

“Annual Project Report” shall include the following:

i. The contract value of the works executed during the year;

ii. Any cost variations occurring due to Change in Law;

iii. Any other variation which may have become due in accordance with this

Concession Agreement;

iv. Any claims of the Concessionaire;

v. A list of items requiring repair or maintenance and a maintenance plan for the next

calendar year.

10.4.4 The Concessionaire shall also provide the Authority with such reports, which are

required to comply with the instructions of Competent Authority or the standing

procedures for any clearance, etc. The Concessionaire shall also submit to the Authority

the following:

i. Upon obtaining knowledge thereof, any of;

a. Litigation, claims, disputes or actions, threatened or pending concerning the

Project;

b. Refusal to grant, renew or extend, or any action threatened or pending that

might affect any Clearance;

c. All penalties or notices of violation issued by any Competent Authority.

ii. Information concerning new or significant aspects of the Project, including any

material complaint about the Facilities from any person;


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iii. If the Authority, acting reasonably, requests a report or document about any

information regarding the Facilities, the Concessionaire shall prepare a draft of such

document within any reasonable time limit prescribed.

10.4.5 The Authority may from time to time specify any changes in the formats or periodicity

for any reports.

10.4.6 The Concessionaire shall be liable for and shall indemnify, protect, defend and hold

harmless, the Authority, the Authority's officers, employees and agents from any liability,

costs, expenses, settlements and judgments arising out of any failure to prepare and

submit reports in accordance with the requirements of law, directive or clearance.

10.5 Books and Records

The Concessionaire shall, at its cost:

10.5.1 Prepare and maintain, in a format approved by the Authority, and on generally accepted

Indian accounting principles, proper, accurate and complete books, records and

accounts of all transactions related to the Project.

10.5.2 Provide to the Authority or persons notified by it, access to such records and accounts;

10.5.3 Deliver to the Authority annual audited accounts of the Concessionaire for the Project

within 180 (one hundred and eighty) days of close of each Financial Year.

10.5.4 Retain and store on the Project Site for a period of ten years all records relating to the

Project, which shall be the property of the Authority.

10.5.5 Provide support to the Authority to meet all the data requirements of all competent

authorities.

10.6 Cost of Remedying Defects

10.6.1 If any defect appears or damage occurs to the Project or any part thereof, the Authority

shall promptly notify the Concessionaire in writing and the Concessionaire shall execute

all work of amendment, reconstruction and remedying defects, imperfections or other

faults or damages, as may be instructed by the Authority.

10.6.2 If in the reasoned decision of the Authority, the defects are due to:

a. The design of the Works,

i. Plant and Machinery, Materials or workmanship not being in accordance with

this Concession Agreement; or

ii. Failure by the Concessionaire to comply with any of its other obligations, all

works shall be executed by the Concessionaire at its own cost.

10.7 Subsequent Tests

10.7.1 If the remedying of any defect or damage is such that it may affect the efficiency or

performance of the Works, the Authority may require the Concessionaire to carry out at

the Concessionaire’s cost such Tests as necessary. The requirement for such Tests

shall be notified within 28 (twenty-eight) days after the defect or damage is remedied.

10.8 Failure to Remedy Defects

10.8.1 If the Concessionaire fails to remedy any defect or damage within a reasonable time,

the Authority may fix a date on or by which to remedy the defect or damage, and give

the Concessionaire reasonable notice of such date. If the Concessionaire fails to

remedy the defect or damage by such date, the Authority may (at its sole discretion):


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i. Carry out the work itself or by others, in a reasonable manner and at the

Concessionaire's cost, but the Concessionaire shall have no responsibility for such

work. All costs incurred by the Authority hereunder shall be reimbursed by the

Concessionaire to the Authority within 60 (sixty) days of receipt of demand thereof, and

in the event of default in reimbursing such costs, the Authority shall be entitled to recover

the same from the Performance Guarantees; or

ii. If the defect or damage is such that the Authority has been deprived of substantially the

whole of the benefit of the Works, it may terminate this Concession Agreement but

without relieving the Concessionaire of liability for breach of this Concession Agreement.

10.9 Accidents

10.9.1 In the event of an accident, the Concessionaire shall, by most expeditious means, inform

the concerned Civil and Police Authorities and also the Authority. The Concessionaire's

responsibilities with regard to the operation of the Project shall in no way be diminished

by informing the above officials, as it shall be required to take expeditious action for the

medical and legal aspects notwithstanding any delay on the part of these officials to give

any instructions. The Concessionaire shall preserve the Project Site of such accident

intact, until completion of all legal formalities. The Concessionaire shall then arrange for

the expeditious removal of the wreckage or debris and for cleaning the Project Site. If

any portion of the Project suffers any damage, the Concessionaire shall, with the

consent of Authority, arrange for the repair and rectification thereof.

10.9.2 The Concessionaire shall, in the event of any accident, incur any expenditure or take

any other action as necessary (in accordance with Good Industry Practices). Except

when the cause of the accident is attributed to any act or negligence of the Authority,

any expenditure in connection with an accident shall be compensated to the

Concessionaire in accordance with Clause 5.3.

10.9.3 Any communication to the news media made by the Concessionaire shall provide only

enough information to satisfy public concern and the Concessionaire shall neither make

any admissions nor accept any liability in any such communications.


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11 Financing Arrangement

11.1 Financing Arrangement

11.1.1 The Concessionaire shall at its cost, expenses and risk make such financing

arrangement as would be necessary to finance the Project and to meet its obligations

under this Agreement in a timely manner.

11.1.2 In the event of the Concessionaire employing the funds borrowed from the Lenders to

finance the Project, the provisions relating to Lenders including those relating to

Financial Close and Substitution Agreement shall apply.

11.1.3 The Concessionaire shall within 7 (seven) days of achieving Financial Close submit to

the Authority one set of Financing Documents evidencing Financial Close.

11.2 Amendments to Financing Documents

11.2.1 For the avoidance of doubt the Parties agree that no amendment made to the Financing

Documents without express consent of the Authority shall have the effect of enlarging

in any manner, the obligation of the Authority in respect of Termination Payment under

this Agreement.


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12 Escrow Account: Article Deleted


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13 Insurances

13.1 Insurance during the Implementation Period

13.1.1 The Concessionaire shall, at its cost and expense, purchase and maintain during the

Implementation Period such insurances as are necessary, including but not limited to

the following:

i. developers’ all risk insurance;

ii. comprehensive third party liability insurance including injury or death to personnel

of Persons who may enter the Project Site;

iii. workmen’s compensation insurance;

iv. any other insurance that may be necessary to protect the Concessionaire, its

employees and its assets (against loss, damage or destruction at replacement

value) including all Force Majeure Events that are insurable and not otherwise

covered in items (i) to (iii).

13.2 Insurance during the Operation Period

13.2.1 The Concessionaire shall, at its cost and expense, purchase and maintain during the

Operation Period insurance to cover against:

i. loss, damage or destruction of the Project Facility, at replacement value;

ii. the Concessionaire’s general liability arising out of the Concession;

iii. liability to third parties; and

iv. any other insurance that may be necessary to protect the Concessionaire and its

employees, including all Force Majeure Events that are insurable and not otherwise

covered in items (i) to (iii).

13.3 Insurance Companies

13.3.1 The Concessionaire shall insure all insurable assets comprised in the Project Assets

and/ or the Project Facility through Indian insurance companies and if so permitted by

the Authority, through foreign insurance companies, to the extent that insurances are

necessary to be effected through them.

13.4 Evidence of Insurance Cover

13.4.1 The Concessionaire shall, from time to time, provide to the Authority copies of all

insurance policies (or appropriate endorsements, certifications or other satisfactory

evidence of insurance) obtained by the Concessionaire in accordance with this

Agreement.

13.5 Application of Insurance Proceeds

13.5.1 Subject to the provisions of the Financing Documents, all moneys received under

insurance policies shall be promptly applied by the Concessionaire towards repair or

renovation or restoration or substitution of the Project Facility or any part thereof which

may have been damaged or destroyed. The Concessionaire may designate the Lenders

as the loss payees under the insurance policies/ assign the insurance policies in their

favour as security for the financial assistance. The Concessionaire shall carry out such

repair or renovation or restoration or substitution to the extent possible in such manner

that the Project Facility or any part thereof, shall, after such repair or renovation or

restoration or substitution be as far as possible in the same condition as they were

before such damage or destruction, normal wear and tear excepted.


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13.6 Validity of the Insurance Cover

13.6.1 The Concessionaire shall pay the premium payable on such insurance policy(ies) so as

to keep the policy(ies) in force and valid throughout the Concession Period and furnish

copies of the same to the Authority. Each insurance policy shall provide that the same

shall not be cancelled or terminated unless 10 (ten) days clear notice of cancellation is

provided to the Authority in writing. If at any time the Concessionaire fails to purchase

and maintain in full force and effect any and all of the insurances required under this

Agreement, the Authority may at its option purchase and maintain such insurance and

all sums incurred by the Authority therefore shall be reimbursed by the Concessionaire

forthwith on demand, failing which the same shall be recovered by the Authority by

exercising right of set off or otherwise.


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14 Force Majeure

14.1 Force Majeure Event

14.1.1 As used in this Agreement, a Force Majeure Event shall mean occurrence in India of

any or all of Non Political Event, Indirect Political Event and/ or Political Event as defined

in Clauses 14.2, 14.3 and 14.4 respectively which prevent the Party claiming Force

Majeure (the "Affected Party") from performing its obligations under this Agreement

and which act or event (i) is beyond the reasonable control and not arising out of the

fault of the Affected Party, (ii) the Affected Party has been unable to overcome such act

or event by the exercise of due diligence and reasonable efforts, skill and care, and (iii)

has a Material Adverse Effect on the Project.

14.2 Non-Political Event

14.2.1 For purposes of Clause 14.1 hereinabove, Non Political Event shall mean one or more

of the following acts or events:

i. acts of God or events beyond the reasonable control of the Affected Party which

could not reasonably have been expected to occur, exceptionally adverse weather

conditions, lightning, earthquake, cyclone, flood, volcanic eruption or fire (to the

extent originating from a source external to the Project Site or beyond design

specifications for the Construction Works) or landslide;

ii. radioactive contamination or ionizing radiation;

iii. strikes or boycotts (other than those involving the Concessionaire, Contractors or

their respective employees/representatives or attributable to any act or omission of

any of them) interrupting supplies and services to the Project for a period exceeding

7 (seven) days in an Accounting Year, and not being an Indirect Political Event set

forth in Clause 14.3;

iv. any failure or delay of a Contractor but only to the extent caused by another Non

Political Event and which does not result in any offsetting compensation being

payable to the Concessionaire by or on behalf of such Contractor;

v. any judgement or order of any court of competent jurisdiction or statutory authority

in India made against the Concessionaire in any proceedings for 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, or enforcement of this

Agreement or exercise of any of its rights under this Agreement by the Authority;

14.3 Indirect Political Event

14.3.1 For purposes of Clause 14.1 hereinabove, Indirect Political Event shall mean one or

more of the following acts or events:

i. An act of war (whether declared or undeclared), invasion, armed conflict or act of

foreign enemy, blockade, embargo, riot, insurrection, terrorist or military action, civil

commotion, or politically motivated sabotage which prevents collection of Fee by

the Concessionaire for a period exceeding a continuous period of 7 (seven) days in

an Accounting Year;

ii. Industry wide or state wide or India wide strikes or industrial action which prevent

collection of Fees by the Concessionaire for a period exceeding a continuous period

of 7(seven) days in an Accounting Year; or

iii. Any public agitation which prevents collection of Fee by the Concessionaire for a

period exceeding a continuous period of 7 (seven) days in an Accounting Year.


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14.4 Political Event

14.4.1 For purposes of Clause 14.1 hereinabove, Political Event shall mean one or more of the

following acts or events by or on account of the Authority or any other Government

Agency:

i. Change in Law, only when provisions of Article 16 cannot be applied;

ii. Expropriation or compulsory acquisition by any Government Agency of any Project

Assets or rights of the Concessionaire or of the Contractors; or

iii. Any unlawful or unauthorised 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 Agreements (other than a consent the obtaining of which is

condition precedent) provided that such delay, modification, denial, refusal or

revocation did not result from the Concessionaire’s or any Contactor’s inability or

failure to comply with any condition relating to grant, maintenance or renewal of

such consents or permits.

14.5 Effect of Force Majeure Event

14.5.1 Upon occurrence of any Force Majeure Event, the following shall apply:

i. There shall be no Termination of this Agreement except as provided in the Clause

14.7 hereinafter;

ii. Where the Force Majeure Event occurs before COD, the dates set forth in the

Project Completion Schedule, and the Concession Period shall be extended by the

period for which such Force Majeure Event shall subsist;

iii. Where a Force Majeure Event occurs after COD, the Concessionaire shall continue

to make all reasonable efforts to operate the Project and/or to collect Fee, but if it is

unable or prevented from doing so, the Concession Period shall, having due regard

to the extent of the impact thereof as determined by the Steering Group, be

extended by the period for which collection of Fee remains affected on account

thereof; and

iv. Costs arising out of or concerning such Force Majeure Event shall be borne in

accordance with the provisions of the Clause 14.6 hereinafter.

14.6 Allocation of Costs During Subsistence of Force Majeure

14.6.1 Subject to the provisions of Clause 14.5 hereinabove, upon occurrence of a Force

Majeure Event, the costs arising out of such event shall be allocated as follows:

i. When the Force Majeure Event is a Non Political Event, the Parties shall bear their

respective costs and neither Party shall be required to pay to the other Party any

costs arising out of any such Force Majeure Event;

ii. Where the Force Majeure Event is an Indirect Political Event, the costs attributable

to such Force Majeure Event and directly relating to the Project (the "Force

Majeure Costs") shall be borne by the Concessionaire to the extent of the

Insurance Cover, and to the extent Force Majeure Costs as duly certified by the

Statutory Auditors exceed the Insurance Cover, one half of the same shall be

reimbursed by the Authority to the Concessionaire within 90 (ninety) days from the

date of receipt of Concessionaire’s claim thereof;

iii. Where the Force Majeure Event is a Political Event, the Force Majeure Costs to the

extent actually incurred and certified by the statutory Auditors of Concessionaire


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shall be reimbursed by the Authority to the Concessionaire within 90 (ninety) days

from the date of receipt of Concessionaire’s claim thereof; and

iv. The Authority may at its option reimburse the Force Majeure Costs to the

Concessionaire in cash or compensate the Concessionaire for such costs by

appropriate extension of the Concession Period, which extension shall also be given

effect within the period of 90 (ninety) days specified in preceding Sub-Clauses (ii)

or (iii) as the case may be.

14.6.2 For avoidance of doubt, Force Majeure Costs shall not include loss of Fee / revenues

or any debt repayment obligations but shall include interest payments on such debt,

O&M Expenses and all other costs directly attributable to the Force Majeure Event.

14.7 Termination

14.7.1 If a Force Majeure Event continues or is in the reasonable judgement of the Parties is

likely to continue beyond a period 120 (one hundred twenty) 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 (one hundred twenty)

days, be entitled to terminate this Agreement by issuing Termination Notice.

14.8 Termination Payment for Force Majeure Events

Upon Termination of this Agreement pursuant to Clause 14.7 hereinabove, Termination

Payment to the Concessionaire shall be made in accordance with the following:

14.8.1 If the Termination is on account of a Non Political Event, the Concessionaire shall be

entitled to receive from by way of Termination Payment an amount equal to 90% (ninety

percent) of the Debt Due less pending insurance claims, if any. Provided that in the

event such insurance claims or any part thereof are not admitted and paid, the

Concessionaire shall be entitled to receive from the Authority further sum equal to 90%

(ninety percent) of amount of such claims not admitted.

14.8.2 If the Termination is on account of an Indirect Political Event, the Concessionaire shall

be entitled to receive from by way of Termination Payment an amount equal to:

i. the total Debt Due, less pending Insurance claims, if any. Provided, however, that if

any of such insurance claims are not admitted and paid, the Concessionaire shall

be entitled to receive from the Authority further sum equal to 80%(eighty percent) of

such claims not admitted, plus

ii. 110% (one hundred ten percent) of the Equity subscribed in cash and actually spent

on the Project if such Termination occurs at any time during three years

commencing from the Commencement Date and for each successive year

thereafter, such amount shall be adjusted every year to fully reflect the changes in

WPI during such year, and the adjusted amount so arrived shall be reduced every

year by 7.5% (seven and half percent) per annum.

14.8.3 If the Termination of this Agreement is on account of a Political Event, the

Concessionaire shall be entitled to receive from by way of Termination Payment an

amount equal to:

i. the total Debt Due, plus

ii. 150% (one hundred fifty percent) of the Equity subscribed in cash and actually spent

on the Project if such Termination occurs at any time during three years

commencing from the Commencement Date and for each successive year


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thereafter, such amount shall be adjusted every year to fully reflect the changes in

WPI during such year, and the adjusted amount so arrived at shall be reduced by

7.5% (seven and half percent) per annum.

14.9 Dispute Resolution

14.9.1 In the event that the Parties are unable to agree in good faith about the occurrence or

existence of a Force Majeure Event, such Dispute shall be finally settled in accordance

with the Dispute Resolution Procedure, provided however that the burden of proof as to

the occurrence or existence of such Force Majeure Event shall be upon the Party

claiming relief and/or excuse on account of such Force Majeure Event.

14.10 Liability for other losses, damages etc.

14.10.1 Save and except as expressly provided in this Article 13, neither Party hereto shall be

liable in any manner whatsoever to the other Party in respect of any loss, damage, cost,

expense, claims, demands and proceedings relating to or arising out of occurrence or

existence of any Force Majeure Event or exercise of any right pursuant to this Article

13.

14.11 Duty to Report

The Affected Party shall discharge the following obligations in relation to reporting the

occurrence of a Force Majeure Event to the other Party:

14.11.1 The Affected Party shall not claim any relief for or in respect of a Force Majeure Event

unless it shall have notified the other Party in writing of the occurrence of the Force

Majeure Event as soon as reasonably practicable, and in any event within 7 (seven)

days after the Affected Party knew, or ought reasonably to have known, of its occurrence

and the probable material affect that the Force Majeure Event is likely to have on the

performance of its obligations under this Agreement.

14.11.2 Any notice pursuant to this Clause 14.11 shall include full particulars of:

i. the nature and extent of each Force Majeure Event which is the subject of any claim

for relief under this Article 14 with evidence in support thereof;

ii. the estimated duration and the effect or probable effect which such Force Majeure

Event is having or will have on the Affected Party's performance of its obligations

under this Agreement;

iii. the measures which the Affected Party is taking, or proposes to take, to alleviate

the impact of such Force Majeure Event; and

iv. any other information relevant to the Affected Party's claim.

14.11.3 For so long as the Affected Party continues to claim to be affected by such Force

Majeure Event, it shall provide the other Party with regular (and not less than weekly)

written reports containing information as required by this Clause 14.11 and such other

information as the other Party may reasonably request the Affected Party to provide.

14.12 Excuse from Performance of Obligations

If the Affected Party is rendered wholly or partially unable to perform its obligations under

this Agreement because of a Force Majeure Event, it shall be excused from performance of

such of its obligations to the extent it is unable to perform on account of such Force Majeure

Event provided that:

14.12.1 the suspension of performance shall be of no greater scope and of no longer duration

than is reasonably required by the Force Majeure Event;


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14.12.2 the Affected Party shall make all reasonable efforts to mitigate or limit damage to the

other Party arising out of or as a result of the existence or occurrence of such Force

Majeure Event and to cure the same with due diligence: and

14.12.3 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.


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15 Events of Default and Termination

15.1 Event of Default

Event of Default means the Concessionaire Event of Default or the Authority Event of Default

or both as the context may admit or require.

15.1.1 Concessionaire Event of Default

Each of the following events or circumstances, to the extent not caused by a default of

the Authority or Force Majeure and if not cured within the “Cure Period” which shall be

60 (sixty) days from the date of notice of default (the “Default Notice”) from the

Authority, shall be considered for the purpose of this Agreement as Event of Default of

the Concessionaire (“Concessionaire Events of Default”):

15.1.1.1 The Concessionaire is in breach of its obligations under this Concession

Agreement, which has a Material Adverse Effect upon the Authority or the

Project.

15.1.1.2 The Concessionaire is in breach of any representation or warranty made under

this Agreement or it repudiates this Concession Agreement;

15.1.1.3 The Concessionaire fails to meet the progressive milestones set forth in the

Project Implementation Schedule or amendments thereto as provided for in this


15.1.1.4 The Concessionaire abandons the Project or any of its material obligations as

provided under this Agreement;

15.1.1.5 The Concessionaire not issuing, renewing, replacing or providing the

Performance Security in accordance with the terms of this Agreement;

15.1.1.6 The Concessionaire fails to pay Annual Concession Fee, as applicable;

15.1.1.7 The Concessionaire does not comply with its Minimum Equity Requirements

under Clause 5.4;

15.1.1.8 The Concessionaire fails to undertake the Minimum Development Obligations

as mentioned in this Agreement;

15.1.1.9 The Concessionaire fails to achieve Financial Close within the stipulated time

period of 90 days from the Proposal Acceptance Date, unless expressly

extended by the Authority;

15.1.1.10 A Lender recalls its loan under the Financing Documents on the ground that the

Concessionaire has defaulted on its obligations to the Lender under the

Financing Documents;

15.1.1.11 The Concessionaire creates any Encumbrances, charges or lien in respect of

Project/Project Site or ant part thereof in favour of any Person, save and except

as otherwise expressly permitted in this Concession Agreement;

15.1.1.12 Any transfer pursuant to law of either (a) the rights and/or obligations of the

Concessionaire under this Concession Agreements and/ or (b) all or material

part of the assets or undertaking of the Concessionaire; except (i) to the extent

permitted by this Concession Agreement or (ii) where any such transfer, in the

reasonable opinion of the Authority, does not affect the ability of the

Concessionaire to perform its obligations under this Concession Agreement;

15.1.1.13 A resolution is passed by the shareholders of the Concessionaire for the

voluntary winding up of the Concessionaire;


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15.1.1.14 The Concessionaire is adjudged bankrupt or insolvent or if a trustee or receiver

is appointed for the Concessionaire or for any of its property that has a material

bearing on the Project;

15.1.1.15 The Concessionaire fails to comply with the provisions laid down in Clause

15.1.1.11 to 15.1.1.18;

15.1.1.16 Any petition for winding up of the Concessionaire is admitted by a court of

competent jurisdiction or the Concessionaire is ordered to be wound up by court,

except if such petition is for the purpose of amalgamation or reconstruction,

provided that as part of such amalgamation and reconstruction, the property,

assets and undertaking of the Concessionaire are transferred to the

amalgamated or reconstructed entity and that the amalgamated or

reconstructed entity has unconditionally assumed the obligations of the

Concessionaire under this Agreement and Project Agreements, and provided

that:

a. The amalgamated entity or reconstructed entity has the technical capability

and the operating experience necessary for the performance of its

obligations under this Agreement and Project Agreements;

b. The amalgamated entity or restructured entity has the financial standing to

perform its obligations under this Agreement and Project Agreements and

has a credit worthiness at least as that good as that of the Concessionaire

as on the Compliance Date; and

c. All the Project Agreements remain in full force and effect.

15.1.1.17 The Concessionaire assigns this Concession Agreement or any of its rights or

obligations under the Concession Agreement, where such assignment is not in

accordance with the terms and conditions of the Concession Agreement.

15.1.1.18 An Escrow Default has occurred and the Concessionaire fails to cure the default

within a Cure Period of 60 (sixty) days.

15.1.2 Authority Event of Default

Each of the following events or circumstances, to the extent not caused by a default of

the Concessionaire or Force Majeure, and if not cured within the Cure Period, which

shall be 60 (sixty) days (unless provided otherwise in this Concession Agreement), from

the date of notice of default (the “Default Notice”) from the Concessionaire, shall be

considered for the purpose of this Agreement as events of default of the Authority

(“Authority Event of Default”):

15.1.2.1 Any defect in the title, ownership and possession of the Authority with respect

to the Project Site;

15.1.2.2 GoUK or any Competent Authority have by an act of commission or omission

created circumstance that has a Material Adverse Effect on the Concessionaire,

and the Authority has failed to compensate the Concessionaire for the same

through an adjustment to the Concession Period.

15.1.2.3 The Authority is in breach of its obligations under this Concession Agreement,

which has a Material Adverse Effect upon the Concessionaire or the Project and

this breach is not cured within a cure period of 90 days from the date of Default

Notice.

15.1.2.4 The Authority is in breach of any representation or warranty made under this

Agreement, or it repudiates this Concession Agreement.


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15.2 Termination due to Event of Default

15.2.1 Termination for Concessionaire Event of Default

15.2.1.1 Without prejudice to any other right or remedies which the Authority may have

under this Agreement, upon occurrence of a Concessionaire Event of Default,

the Authority shall be entitled to terminate this Agreement by following the

procedure set forth hereinafter:

15.2.1.2 The Authority shall be entitled to issue a Termination Notice to the

Concessionaire. The Termination Notice shall grant the Concessionaire 30

(thirty) days (the "Termination Period") to make a representation and if during

the Termination Period the Concessionaire takes suitable steps to remedy the

default/ situation, the Authority shall be entitled to withdraw the Termination

Notice.

15.2.1.3 If the Termination Notice is not withdrawn within the Termination Period, the

Authority shall send a copy of the Termination Notice to the Lender, thereby

granting the Lender a 30 (thirty) day "Suspension Period" in accordance with

the terms of the Substitution Agreement. During the Suspension Period, the

Lender may exercise its Step-In Rights in accordance the Substitution

Agreement such that the Lender may nominate an "Additional Obligor". In the

Step-In Period, the Lender may procure that the default stated in the Termination

Notice is cured, and upon the curing of the default, the Authority shall withdraw

its Termination Notice and grant permission to the Concessionaire to resume its

work under the Concession Agreement.

15.2.1.4 The Suspension Period may be extended up to a maximum of 180 (One hundred

and eighty) days at the request of the Lender.

15.2.1.5 During the Suspension Period the Lender may request the Authority to replace

the Concessionaire with a "Substitute" named by the Lender, who shall be a

Person capable of discharging the roles and responsibilities of the

Concessionaire under the Concession Agreement. Upon receipt of such a

request the rights and obligations of the Concessionaire under the Concession

Agreement shall be assigned to the Substitute, who shall step into the shoes of

the Concessionaire from the date of the assignment.

15.2.1.6 If, upon receipt of a copy of the Termination Notice, the Lender fails to exercise

its rights under this Clause 15.2 and procures that either:

a. The Concessionaire Event of Default is cured within the Suspension Period,

or

b. The Concession is assigned under Clause 15.2.1.3 to a Substitute Entity

capable of discharging the roles and responsibilities of the Concessionaire,

the Authority shall be entitled to terminate this Concession Agreement with

no liability of the Concessionaire or the Lender, save and except as

provided in Clause 15.5.1 hereof.

15.2.2 Termination for Authority Events of Default

Without prejudice to any right or remedy, which the Concessionaire may have under this

Agreement, upon occurrence of an Authority Event of Default, the Concessionaire shall

be entitled to issue a Termination Notice to the Authority. The Termination Notice shall

grant the Authority a further period of 30 (thirty) days (the “Termination Period”) to

make a representation, and if, during the Termination Period the Authority takes suitable


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steps to remedy the situation, the Concessionaire shall be entitled to withdraw the

Termination Notice. If the Termination Notice is not withdrawn within the Termination

Period, this Concession Agreement will automatically terminate on the expiry of the

Termination Period.

15.3 Rights of the Authority on Termination

15.3.1 Upon Termination of this Agreement, the Authority shall:

a. Take possession and control of the Project forthwith;

b. Take possession and control of all Plant and Machinery, Materials, stores,

implements, construction and equipment on or about the Project Site;

c. Restrain the Concessionaire and any person claiming through the Concessionaire

from entering upon the Project Site or any part of the Project;

d. Require the Concessionaire to comply with the provisions relating to Article 17:

Transfer of Project; and

e. Succeed upon election by the Authority, without necessity of any further action by

the Concessionaire, to the interests of the Concessionaire under such of the Project

Agreements as the Authority may in its discretion deem appropriate, and shall upon

such election be liable to the Third Party contractors under the Project Agreements

only for compensation accruing and becoming due and payable to them under the

terms of their respective Project Agreements from and after the date the Authority

elects to succeed to the interests of the Concessionaire. For the avoidance of doubt,

it is hereby agreed and the Concessionaire hereby acknowledges that all sums

claimed by such contractors as being due and owing for Works and services

performed or accruing on account of any act, omission or event prior to such date

shall constitute debt between the Concessionaire and such Contractors, and the

Authority shall not in any manner be liable for such sums.

15.3.2 Upon Termination of this Agreement it shall be the responsibility of the Concessionaire

to:

a. Hand over the Project Site, Works and Facility to the Authority in accordance to

Article 17. Provide all relevant data, design and drawings, records and information

access to all reasonable requests from the Authority in connection with taking over

the Project Site/ Project.

b. Cease all further Works, except for such essential Works as may be necessary and

as instructed by Authority, for the purpose of making safe, protecting or continuing

operations on the Project.

c. Hand over all the Construction Documents, Plant and Machinery and Materials to

the Authority.

d. Remove all Concessionaire's Equipment, which is on the Project Site, and repatriate

all its staff and labour from the Project Site, except for such essential equipment,

staff and labour as may be necessary and as instructed by Authority, for the purpose

of making safe, protecting or continuing operations on the Project, and

e. Co-operate with the Authority and the Substitute Entity nominated by the Lenders

and comply with all reasonable requests thereof, including the execution of any

documents and other actions, provided the Authority bears any reasonable Costs

incurred by the Concessionaire relating thereto.

15.4 Termination Payments

15.4.1 Upon Termination by the Authority as described above, the Concessionaire hereby


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acknowledges that no Termination payment shall be due or payable by the Authority. In

addition to this, the Authority shall forfeit the entire amount of the Performance Security.

Concessionaire acknowledges that within 10 days of termination, the Concessionaire

shall vacate the Project Site. Concessionaire acknowledges that once the Agreement is

terminated the land allocated shall be returned back to the Authority. In such case, the

licence in respect of the Project Land will stand cancelled ipso facto and Project Land

is returned to the Authority automatically. The entire construction made by the

Concessionaire till that date on the Project Site as part of the scope of work shall get

transferred to the Authority without any consideration.

15.4.2 Upon Termination by the Concessionaire on account of the Authority Event of Default,

the Concessionaire shall be entitled to receive from the Authority by the way of

Termination Payment a sum equal to the lowest of the following (a) or (b):

a. 100% of Book Value of Project Assets based on historic investment (net of

depreciation) created by the Concessionaire less Intangible Assets. It is specially

clarified here that the cost of project assets would not include the cost of original

project facility which was provided to the Concessionaire.

b. 100% of debt due less pending insurance claims In addition to this, the Performance

Security shall be released by the Authority.

15.4.3 All payments due to the Concessionaire as calculated under Clause 15.4.2 shall be

made within 30 (thirty) days of termination of the Concession Agreement.

15.5 Mode of Payment

15.5.1 Notwithstanding any instructions to the contrary issued or any dispute raised by the

Concessionaire, the Termination Payment, and all other payments that would become

payable by the Authority under any of the provisions of this Agreement shall, so long as

the Debt Due is remaining outstanding, be made only by way of credit directly to a bank

account designated therefore by the Lenders and advised to the Authority and the

Concessionaire in writing. Any payment so made shall to the extent of such payment

constitute a valid discharge to the Authority of its obligations towards the Concessionaire

with regard to the Termination Payment and payment of any other monies due

hereunder.

15.5.2 Notwithstanding anything to the contrary contained in this Agreement, any Termination

pursuant to the provisions of this Agreement shall be without prejudice to accrued rights

of either Party including its right to claim and recover money damages and other rights

and remedies which it may have in law or contract. All rights and obligations of either

Party under this Agreement, including without limitation Termination Payment, shall

survive the Termination of this Agreement to the extent such survival is necessary for

giving effect to such rights and obligations.


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16 Change in Law

16.1 Change in Law

If as a result of Change in Law, the Concessionaire suffers (or will suffer) delays or increase

in costs or reduction in net after tax return or other financial burden, the Concessionaire may

notify the same to the Authority and propose amendments to this Agreement so as to put

the Concessionaire in the same financial position as it would have occupied had there been

no such Change in Law resulting in such cost increase, reduction in return or other financial

burden as aforesaid.

16.2 Extension of Concession Period

The Authority shall upon being notified by the Concessionaire of the Change in Law and the

proposed amendments to this Agreement, assess the change in the financial position as a

result of such Change of Law and determine the extension to the Concession Period so as

to put the Concessionaire in the same financial position as it would have occupied had there

been no such Change in Law and recommend the same to the Authority. The Authority shall,

within 30 (thirty) days of receipt of such recommendation, extend the Concession Period by

such period as has been recommended by the Authority.


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17 Transfer of Project

17.1 Ownership

Without prejudice and subject to the Concession, the ownership of the Project Site, including

the Project Facilities and all improvements made therein by the Concessionaire, shall at all

times remain that of the Authority.

17.2 Handback of Transfer Assets

Upon Termination of the Agreement for any reason whatsoever or the Expiry of Term of

Concession Agreement and consequent obligation of Concessionaire shall hand over

“Transfer Assets” to Authority, on expiry of the Term:

17.2.1 All Movable Assets, movable property, stocks, materials, vehicles and spares at the site

are to be cleared by the Concessionaire and transfer the site to the Authority or its

nominee, clear of any Encumbrances;

17.2.2 All immovable property, assets, structures, buildings, services, furnishings, edifices,

court-areas, ways, walls, compounds relatable to Transfer Assets shall be transferred

to the Authority or its nominee, clear of all Encumbrances and with good title;

17.2.3 All assets, duly certified by the concerned regulatory / licensing / accreditation / rating

agency, as given below:

a. Structural Safety Certificate of the Project Facility from competent, reputed and

recognized Structural Engineer Shall be transferred to the Authority or its nominee,

clear of Encumbrances and with good title;

17.2.4 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 the

Agreement between Concessionaire and any third party shall (in consideration of the

Authority’s assumption of the obligations under or pursuant to the contracts and other

arrangements) be vested in the Authority or its nominee, clear of all Encumbrances and

with good title; and

17.2.5 Notwithstanding anything contained in Clause 20.5 prior to any transfer of the Transfer

Assets, the 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 the

Authority are unreasonably onerous, and would be considered onerous at the time that

the contracts were entered into. In relation to all such contracts that are not transferred

to the 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 the Authority or its nominee, free from all

Encumbrances and with good title.

17.2.6 Furthermore, notwithstanding anything contained in the Agreement no liability (accrued

or contingent) of Concessionaire or relating to the Project Facility arising on account of

actions or inactions prior to the Transfer Date shall be assumed or transferred to the

Authority or its nominees. 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 the 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 the Authority.


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17.2.7 Without prejudice to the foregoing, Concessionaire agrees to indemnify and keep

indemnified the Authority from and against all actions, proceedings, losses, damages,

liabilities, claims, costs and expenses whatsoever which may be sustained or suffered

by the 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.

17.2.8 Vesting Certificate

Handback of Transfer Assets is deemed to be complete on the date when all the

requirements under Clause 20.5 have been fulfilled by the Concessionaire, the Authority

shall, without unreasonable delay, thereupon issue a certificate substantially in the form

set forth in Schedule ‘I’, which will have the effect of constituting evidence of divestment

by the Concessionaire of all of its rights, title and interest in the Project, and their vesting

in the Authority pursuant hereto. It is expressly agreed that the issue of Vesting

Certificate shall not in any manner be construed or interpreted as restricting the exercise

of any rights by the Authority or its nominee on, or in respect of, the Project on the

footing that all requirements under the Agreement have been complied with by the

Concessionaire.

17.3 Obligations of Parties

17.3.1 Concessionaire’s Obligations

The Concessionaire shall, on the date of expiry of Concession Period or termination of

the Concession, hand back vacant, peaceful possession of the Project Site and the civil

structures created on the land, to the Authority free of cost, in good operable condition

and free from all Encumbrances, on as-is-where-is basis. The Concessionaire would be

allowed to dismantle and remove all the movable assets including equipments, vehicles

etc. from the Project Site. The Concessionaire agrees that it shall also be responsible

for obtaining peaceful possession of the Project Facilities from any sub-licensee for the

purpose of handback to the Authority.

a. Atleast 4 (four) months before the expected expiry of the Concession Period, a joint

inspection of the Project Site and Project Facilities shall be undertaken by the

Authority and the Concessionaire. The Authority shall, within 45 (forty-five) days of

such inspection prepare and furnish to the Concessionaire a list of works/ jobs

(“Handback Requirements”), if any, to be carried out so as to conform to the

Construction Requirements, O&M Requirements and other provisions of the

Agreement. The Concessionaire shall promptly undertake and complete such

works/ jobs at least 2 (two) months prior to the expected expiry of the Concession

Period and ensure that the Project Site and immovable assets continues to meet

such requirements until the same are handed back to the Authority.

b. The Authority shall, within 15 (fifteen) days of the joint inspection undertaken under

preceding clause (a) prepare and furnish to the Concessionaire a list of items, if

any, with corresponding distinctive descriptions, which are to be compulsorily

handed back to the Authority along with the Project Site.

c. The Concessionaire would have a period of 30 (thirty) days for the dismantling of

the movable assets post the expiry of the Concession Period or the date of the

termination of the Concession, extendable by another 15 days on submitting a

written application to the Authority. The Concessionaire would be obligated to allow


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right of access to the new concessionaire or its associates, as the case may be,

during the dismantling period.

d. The Concessionaire hereby acknowledges the The Authority’s rights specified in

Article 15 enforceable against it upon Termination and its corresponding obligations

arising therefrom. The Concessionaire undertakes to comply with and discharge

promptly all such obligations.

e. If at the time of handing back of the Project Facilities any material defect is

observed, then the Concessionaire shall be obligated to make good the defect,

failing which, the Authority shall reserve the right to deduct such amount from the

Concessionaire's Performance Security.

f. Concessionaire shall execute such deeds of conveyance, documents and other

writings as the Authority may reasonably require for conveying, divesting and

assigning all the rights, title and interest of the Concessionaire in the Project.

17.3.2 The Authority’s Obligations

The Authority shall, subject to the Authority’s right to deduct amounts towards:

a. carrying out works/ jobs listed under Clause 17.3.1(a) which have not been carried

out by the Concessionaire;

b. purchase of items, which have not been handed back to the Authority along with the

Project Site and civil structure in accordance with Clause 17.3.1(b); and

c. any outstanding dues, which may have accrued in respect of the Project Site and

Project Facilities during the Concession Period, duly discharge and release to the

Concessionaire the Performance Security within 6 (six) months from the

Termination Date.


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18 Dispute Resolution

18.1 Amicable Resolution

18.1.1 Save where expressly stated otherwise in this Agreement, any dispute, difference or

controversy of whatever nature howsoever arising under, out of or in relation to this

Agreement including incompletion of the Project between the Parties and so notified in

writing by either Party to the other (the "Dispute") in the first instance shall be

attempted to be resolved amicably by the Steering Group and failing resolution of the

same in accordance with the procedure set forth in Clause 18.1.2 below.

18.1.2 Either Party may require the Dispute to be referred to the Chief Executive Officer,

Uttarakhand Tourism Development Board and the Chairman of the Board of Directors

of the Concessionaire, for the time being for amicable settlement. Upon such reference,

the two shall meet at the earliest mutual convenience and in any event within 15 (fifteen)

days of such reference to discuss and attempt to amicably resolve the Dispute. If the

Dispute is not amicably settled within 15 (fifteen) days of such meeting between the two,

either Party may refer the Dispute to arbitration in accordance with the provisions of

Clause 18.2 below.

18.2 Arbitration

18.2.1 Arbitrators

Any Dispute which is not resolved amicably as provided in Clause 18.1.1 shall be finally

settled by binding arbitration under the Arbitration and Conciliation Act, 1996. The

arbitration shall be by a panel of three arbitrators, one to be appointed by each Party

and the third to be appointed by the two arbitrators appointed by the Parties. A Party

requiring arbitration shall appoint an arbitrator in writing, inform the other Party about

such appointment and call upon the other Party to appoint its arbitrator if the other Party

fails to appoint its arbitrator, the Party appointing arbitrator shall take steps in

accordance with Arbitration and Conciliation Act, 1996.

18.2.2 Place of Arbitration

The place of arbitration shall be Dehradun but by agreement of the Parties, the

arbitration hearings, if required, can be held elsewhere from time to time.

18.2.3 English Language

The request for arbitration, the answer to the request, the terms of reference, any written

submissions, any orders and rulings shall be in English and, if oral hearings take place,

English shall be the language to be used in the hearings.

18.2.4 Procedure

The procedure to be followed within the arbitration, including appointment of arbitrator /

arbitral tribunal, the rules of evidence which are to apply shall be in accordance with the

Arbitration and Conciliation Act, 1996.

18.2.5 Enforcement of Award

Any decision or award resulting from arbitration shall be final and binding upon the

Parties. The Parties hereto hereby waive, to the extent permitted by law, any rights to

appeal or to review of such award by any court or tribunal. The Parties hereto agree that

the arbitral award may be enforced against the Parties to the arbitration proceeding or

their assets wherever they may be found and that a judgement upon the arbitral award

may be entered in any court having jurisdiction thereof.


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18.2.6 Fees and Expenses

The fees and expenses of the arbitrators and all other expenses of the arbitration shall

be initially borne and paid by respective Parties subject to determination by the

arbitrators. The arbitrators may provide in the arbitral award for the reimbursement to

the prevailing party of its costs and expenses in bringing or defending the arbitration

claim, including legal fees and expenses incurred by Party.

18.2.7 Performance during Arbitration

Pending the submission of and/or decision on a Dispute, difference or claim or until the

arbitral award is published; the Parties shall continue to perform all of their obligations

under this Agreement without prejudice to a final adjustment in accordance with such

award.


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19 Representations and Warranties, Disclaimer

19.1 Representations and Warranties of the Concessionaire

The Concessionaire represents and warrants to the Authority that:

19.1.1 It is duly organized, validly existing and in good standing under the laws of the

jurisdiction of its incorporation;

19.1.2 It has full power and authority to execute, deliver and perform its obligations under this

Concession and to carry out the transactions contemplated hereby;

19.1.3 It has taken all necessary corporate and other action under Applicable Laws and its

constitutional documents to authorize the execution, delivery and performance of this


19.1.4 It has the financial standing and capacity to undertake the Project;

19.1.5 This Concession constitutes its legal, valid and binding obligation enforceable against it

in accordance with the terms hereof;

19.1.6 It is subject to civil and commercial laws of India with respect to this Concession and it

hereby expressly and irrevocably waives any immunity in any jurisdiction in respect

thereof;

19.1.7 All the information furnished in the Concessionaire’s Proposal is, and shall be, true and

correct as on the Proposal Acceptance Date and the Balance Sheet and Profit and Loss

Account of the Concessionaire for each of the Financial Years after the Proposal

Acceptance Date furnished to the Authority shall give true and fair view of the affairs of

the Concessionaire;

19.1.8 It shall furnish a copy of the audited accounts of the Concessionaire within 180 (one

hundred and eighty) days of the close of each Financial Year after the Proposal

Acceptance Date and any material change subsequent to the date of such accounts

shall be notified to the Authority by the Concessionaire within 30 (thirty) days of its

occurrence and warrants that the accounts and the information furnished as aforesaid

shall be true and correct;

19.1.9 The execution, delivery and performance of this Concession 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 is bound or

affected;

19.1.10 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

result in the breach of or constitute a default of the Concessionaire under this

Concession or which individually or in the aggregate may result in any Material Adverse

Effect on its business, properties or assets or its condition, financial or otherwise, or in

any impairment of its ability to perform its obligations and duties under this Concession

Agreement;

19.1.11 The Concessionaire 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

Competent Authority which may result in any Material Adverse Effect or impairment of

the Concessionaire’s ability to perform its obligations and duties under this Concession


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Agreement;

19.1.12 The Concessionaire 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 on its financial condition or its

ability to perform its obligations and duties under this Concession Agreement;

19.1.13 The aggregate equity share holding of the JV Members and their Associates (in case of

a JV) or equity share holding of the Associates (in case of individual bidder) in the issued

and paid up equity share capital of the Concessionaire are and shall remain in

accordance with the requirements stipulated in Clause 5.4;

19.1.14 Each JV Member was and is duly organized and existing under the laws of the

jurisdiction of its incorporation and has full power and authority to consent to and has

consented to the Concessionaire entering into this Concession and has agreed to and

unconditionally accepted the terms and conditions set forth in this Concession

Agreement;

19.1.15 All rights and interests of the Concessionaire in the Project shall pass to and vest in the

Authority on the Transfer Date free and clear of all liens, claims, and encumbrances

without any further act or deed on the part of the Concessionaire or the Authority and

that none of Project Assets including materials, supplies or equipments forming part

thereof shall be acquired by the Concessionaire subject to any agreement under which

a security interest or other lien or encumbrance is retained by any person save and

except as expressly provided in this Concession Agreement;

19.1.16 No representation or warranty by the Concessionaire contained herein or in any other

document furnished by it to the Authority, or to any Competent Authority in relation to

clearances 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

19.1.17 The Concessionaire warrants that no sums, in cash or kind, have been paid or will be

paid by or on behalf of the Concessionaire, to any person by way of commission or

otherwise for securing the Concession or entering into of this Concession Agreement or

for influencing or attempting to influence any officer or employee of the Authority.

19.2 Disclaimer

19.2.1 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 tourist arrivals, Specifications and Standards, Project Site and all the

information provided by the Authority, and has determined to the Concessionaire's

satisfaction the nature and extent of such difficulties, risks and hazards as are likely to

arise or may be faced by the Concessionaire in the course of performance of its

obligations hereunder.

19.2.2 The Concessionaire further acknowledges and hereby accepts the risk of inadequacy,

mistake or error in or relating to any of the matters set forth in Clause 19.2.1 above and

hereby confirms that the Authority shall not be liable for the same in any manner

whatsoever to the Concessionaire.

19.3 Representations and Warranties of the Authority

The Authority represents and warrants to the Concessionaire that:


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19.3.1 The Authority has full power and authority to execute, deliver and perform its obligations

under this Concession Agreement and to carry out the transactions contemplated

hereby;

19.3.2 The Authority has taken all necessary actions to authorize the execution, delivery and

performance of this Concession Agreement;

19.3.3 This Concession Agreement constitutes a legal, valid and binding obligation enforceable

against the Authority in accordance with the terms hereof;

19.3.4 The Authority is subject to civil and commercial laws of India with respect to this

Concession and it hereby expressly and irrevocably waives any sovereign immunity in

any jurisdiction in regard to matters set forth in this Concession Agreement;

19.3.5 The Authority has good and valid right to the Project Site, and has power and authority

to grant a license in respect thereto to the Concessionaire;

19.3.6 The Concessionaire shall have complete, lawful and uninterrupted Vacant Possession

of the Project Site in accordance with this Concession Agreement;

19.3.7 There is no litigation, claim, demand or any proceeding pending before any authority in

respect of the Authority’s title to or possession of the land constituting the Project Site;

19.3.8 All information provided by the Authority in the Bid Documents in connection with the

Project is to the best of its knowledge and true and accurate in all material respects; and

19.3.9 The Authority has the financial standing and capacity to perform its obligations under



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20 Miscellaneous

20.1 Assignment and Charges

20.1.1 Subject to Sub-Clauses 20.1.2 and 20.1.3 herein below, this Agreement shall not be

assigned by the Concessionaire save and except with prior consent in writing of the

Authority, which consent the Authority shall be entitled to decline without assigning any

reason whatsoever.

20.1.2 Subject to Sub-Clause 20.1.3 herein below, the Concessionaire shall not create nor

permit to subsist any Encumbrance over or otherwise transfer or dispose of all or any of

its rights and benefits under this Agreement or any Project Agreement to which

Concessionaire is a party except with prior consent in writing of the Authority, which

consent the Authority shall be entitled to decline without assigning any reason

whatsoever.

20.1.3 Restraint set forth in Sub-Clauses 20.1.1 and 20.1.2 above shall not apply to:

a. liens/encumbrances arising by operation of law (or by an agreement evidencing the

same) in the ordinary course of business of the Project ;

b. mortgages/pledges/hypothecation of goods/assets other than Project Site, as

security for indebtedness, in favour of the Lenders and working capital providers for

the Project;

c. assignment of Concessionaire’s rights, title and interest under this Agreement to or

in favour of the Lenders pursuant to and in accordance with the Substitution

Agreement as security for their financial assistance.

20.1.4 Upon occurrence of the Concessionaire Event of Default the Lenders shall have the

right of substitution as provided in the Substitution Agreement.

20.2 Liability and Indemnity

20.2.1 General indemnity

The Concessionaire will indemnify, defend, save and hold harmless the Authority and

its officers, employees, agents and consultants against any and all suits, proceedings,

actions, demands 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 any related Agreement, except to the extent that

any such suits, proceedings, actions, demands and claims have arisen due to any

negligent act or omission, or breach of this Agreement on the part of the Authority

indemnified persons.

20.2.2 Liability of Authority

The Authority will indemnify, defend, save and hold harmless the Concessionaire

against any and all suits, proceedings, actions, demands and third party claims for any

loss, damage, cost and expense of whatever kind and nature arising out of;

a. defect in title and/or the rights of the Authority in the Project Land given on

Concession to the Concessionaire

b. breach by the Authority of any of its obligations under this Agreement or any related

Agreement, which materially and adversely affect the performance by the

Concessionaire of its obligations under this Agreement, save and except that where

any such claim, suit, proceeding, action, and/or demand has arisen due to a

negligent act or omission, or breach of any of its obligations under any provision of


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this Agreement or any related Agreement and/or breach of its statutory duty on the

part of the Concessionaire, its subsidiaries, affiliates, contractors, employees or

agents, the same shall be the liability of the Concessionaire.

20.2.3 Indemnity by the Concessionaire

Without limiting the generality of Clause 9.7, the Concessionaire shall fully indemnify,

hold harmless and defend the Authority from and against any and all loss and/or

damages arising out of or with respect to:

a. failure of the Concessionaire to comply with Applicable Laws and Applicable

Permits;

b. payment of taxes required to be made by the Concessionaire in respect of the

income or other taxes of the Concessionaire’s contractors, suppliers and

representatives; or

c. non-payment of amounts due as a result of materials or services furnished to the

Concessionaire or any of its contractors which are payable by the Concessionaire

or any of its contractors.

d. Breach by the Concessionaire of any of the obligations under this Agreement.

20.2.4 Limitation of Liabilities

Notwithstanding anything to the contrary contained in this Clause 20.2.4, the indemnities

herein provided shall not include any claim or recovery in respect of any cost, expense,

loss or damage of an indirect, incidental or consequential nature, including loss of profit,

except as expressly provided in this Agreement.

20.2.5 Survival on Termination

The provisions of this Clause 20.6 shall survive Termination.

20.3 Advertising on the Project Site

During the construction period, the Developer shall not permit/allow advertisement/hoarding

of other than Uttarakhand Tourism Development Board.

20.4 Governing Law and Jurisdiction

This Agreement shall be construed and interpreted in accordance with and governed by the

laws of India and the Courts at Dehradun, India shall have jurisdiction over all matters arising

out of or relating to this Agreement.

20.5 Waiver

Waiver by either Party of any default by the other Party in the observance and performance

of any provisions of or obligations under this Concession 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 Concession Agreement;

b. Shall not be effective unless it is in writing and executed by a duly authorized

representative of the Party; and

c. Shall not affect the validity or enforceability of this Concession Agreement in any

manner.

Neither the failure by either Party to insist on any occasion upon the performance of the

terms, conditions and provisions of this Concession Agreement or any obligation thereunder

nor time or other indulgence granted by a Party to the other Party shall be treated or deemed


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as waiver of such breach or acceptance of any variation or the relinquishment of any such

right hereunder.

20.6 Survival

Termination of this Agreement (a) shall not relieve the Concessionaire or the Authority of

any obligations hereunder which expressly or by implication survives Termination hereof,

and (b) except as otherwise provided in any provision of this Agreement expressly limiting

the liability of either Party, shall not relieve either Party of any obligations or 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.

20.7 Amendments

This Agreement and the Schedules together constitute a complete and exclusive statement

of the terms of the Agreement between the Parties on the subject hereof and no amendment

or modification hereto shall be valid and effective unless agreed to by all the Parties hereto

and evidenced in writing.

20.8 Notices

20.8.1 Wherever provision is made for the giving or issuance of any notice, instruction, consent,

approval, certificate or determination by any Person, unless otherwise specified, such

communication shall be in writing and shall not be unreasonably withheld or delayed.

Wherever provision is made for a communication to be "written" or "in writing", this

means any hand-written, typewritten or printed communication, including the agreed

systems of electronic transmission.

20.8.2 All certificates, notices or written orders between the Parties shall either be delivered by

hand against written acknowledgement of receipt, or be sent by registered

acknowledgement due pre‐paid post or courier or one of the agreed systems of

electronic transmission. In the event of any dispute, unless such acknowledgement of

receipt is provided, the communication shall be treated as not given.

20.8.3 In the case of the Concessionaire, all communication shall be marked for the attention

of the person and to the address provided below, or to such other person or address as

may be intimated to the Authority by the Concessionaire from time to time.

Name of Concessionaire’s Representative:

XXXXX

Address for communication:

Address Line 1

Address Line 2

In the case of the Authority, all communication shall be addressed to:


Uttarakhand Tourism Development Board



Tel: No.: +91 135 255 9898;

Fax No.: +91 135 255 9988;

E-Mail: [email protected] and CC to [email protected]

mailto:[email protected]


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20.9 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 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.

20.10 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.

20.11 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.

20.12 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 or any

representation by any Party not contained in a binding legal agreement executed by the

Parties.

20.13 Counterparts

This Agreement may be executed in 2 (two) counterparts, each of which when executed and

delivered shall constitute an original of this Agreement.

IN WITNESS whereof the Parties have executed and delivered this Concession Agreement as of the

date first above written.


For and on behalf of the Authority by:


For and on behalf of Concessionaire by:

(Signature) (Signature)

(Name)

(Name)

(Designation) (Designation)

In the presence of:

1.

2.


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Schedule- A: The Project

Broad Scope of Work

The scope of work includes but not limited to:

1. Development of 5-Star Hotel at Haridwar shall have

a. Theme Based

i. Suite (up to 4 Nos. Duplex Units)

ii. Deluxe Room (up to50 Nos.)

iii. Standard Room (up to 50 Nos.)

b. Conference Hall / Convention Hall (2 Nos.)

c. Restaurant (2 Nos.)

d. Open-air terrace

e. Banquet lawn (1 Nos.)

f. 24/7 Café

g. Spa & Wellness Center

h. Swimming Pool

i. Admin Block, Entrance Foyer and lobby

j. Commercial Space

2. Operation and Maintenance of the Project in accordance with conditions of this document.


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Schedule – B: Project Site

Project Site Description

The Project is to be developed on approximately 6032.55 sqm of land owned by UTDB. As mentioned

earlier, the land is free from any/all encroachments has an existing hotel building of 6333.57 sq. mts.

Below is location map of site:

For approved plan all the NOCs have already been received by the department. However, the Concessionaire is free to re-apply in accordance with applicable law / rules / regulations for revisions, including any modification in the FAR, as per their project implementation plan. The Concessionaire will have to bear all applicable costs for such revisions.


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Schedule- C: Project Facilities

The Project shall be finalized in accordance with the plan submitted by the Concessionaire and shall

include:

1. Theme Based

a. Suite (up to4 Nos. Duplex Units)

b. Deluxe Room (up to50 Nos.)

c. Standard Room (up to 50 Nos.)

2. Conference Hall / Convention Hall (2 Nos.)

3. Restaurant (2 Nos.)

4. Open-air terrace

5. Banquet lawn (1 Nos.)

6. 24/7 Café

7. Spa & Wellness Center

8. Swimming Pool

9. Admin Block, Entrance Foyer and lobby

10. Commercial Space

The Project shall be completed by the Concessionaire in conformity with the Specifications and

Standards set forth in Schedule G.

Minimum Activities to be Carried out by the Concessionaire

The following activities to be performed by the concessionaire includes but not limited to:

1. Pre-Commissioning Phase

i. During the design, construction & erection phase, the Concessionaire shall prepare the

detailed engineering including detailed design, drawings, and architectural plan and obtain

requisite approvals from Competent Authorities.

ii. Overall designs, material specifications and workmanship shall be the Concessionaire’s

responsibility.

2. Construction Phase

The Concessionaire shall ensure to:

i. Strictly follow the guidelines on quality as set out in NBC/ BIS/ IRC/ MORTH/ PWD/ CPWD

specifications or equivalent international Standards (ASTM, DIN etc.) specifications;

ii. Deploy adequate number of qualified and competent personnel having relevant experience

and skills for implementation of the Project;

iii. Ensure that the construction of the Project Facilities shall be undertaken with minimal

inconvenience to the traffic using the roads surrounding the Project Site;

iv. Ensure that the construction of the Project Facilities shall be undertaken with no/minimal

adverse effects on the environment and to the owners and occupiers of property and/or

land in the vicinity of the Project Site

v. Take necessary precautions to minimize accidents and respond to emergency as quickly

as possible;

vi. Take precautions to avoid inconvenience, damage, destruction of or disturbance to any

third party rights and properties;

vii. Provide a safe, clear and information system of road signs in connection with the Project,

wherever required;


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viii. Ensure adequate safety of the personnel deployed at the Project Site which shall include

measures for the safety such as the provision and maintenance of barricades, traffic signs

and illumination;

ix. Planning and designing of buildings as per norms and standards prescribed in Act/ Rules

in the state of Uttarakhand;

x. Planning and designing of buildings should also follow the standards & Specifications for

green building laid down by Indian Green Building Council, if applicable;

xi. Comply with the Applicable Laws and Applicable Permits obtained for the Project including

the clearances obtained by the Government Agency;

xii. Adhere to the Construction Plan;

xiii. Obtain relevant certificate(s) from national/international agency with prior consent of the

Authority, to certify the safety and quality of the adventure activities during / after their

installation and submit the same to the Authority and Independent Engineer. Such

Certifications shall be renewed periodically as applicable during the course of Concession

Period.


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Schedule – D: Project Completion Schedule

1. Project Completion Schedule

During Construction Period, the Concessionaire shall comply with the requirements set forth in

this Schedule for each of the Project Milestones (the "Project Completion Schedule"). Within

15 (fifteen) days of the date of each Project Milestone, the Concessionaire shall notify the

Authority of such compliance along with necessary particulars thereof.

a. Project Milestone-I (As submitted by the Concessionaire)

i. Project Milestone-I shall occur on the date falling on the [90th (Ninetieth)] day from the

Appointed Date (the "Project Milestone-I").

ii. Prior to the occurrence of Project Milestone-I, the Concessionaire shall have

commenced construction of the Project and expended not less than 5% (five per cent)

of the total capital cost set forth in the Financing Documents.

b. Project Milestone-II

i. Project Milestone-II shall occur on the date falling on the [180th (One Hundred

Eightieth)] day from the Appointed Date (the "Project Milestone-II").

ii. Prior to the occurrence of Project Milestone-II, the Concessionaire shall have

commenced construction of permanent structures like buildings and expended not less

than 35% (thirty-five per cent)] of the total capital cost set forth in the Financing

Documents.

c. Project Milestone-III

i. Project Milestone-III shall occur on the date falling on the [360th (Three Hundred

Sixtieth)] day from the Appointed Date (the "Project Milestone-III").

ii. Prior to the occurrence of Project Milestone-II, the Concessionaire shall have

commenced construction of permanent structures like buildings and expended not less

than 50% (fifty per cent)] of the total capital cost set forth in the Financing Documents

iii. Prior to the occurrence of Project Milestone-Ill, the Concessionaire shall have

commenced installation of machinery and equipments in the Project and expended not

less than 50% (fifty per cent)] of the total capital cost set forth in the Financing

Documents.

d. Project Milestone-IV

i. Project Milestone-III shall occur on the date falling on the [540th (Five Hundred

Fortieth)] day from the Appointed Date (the "Project Milestone-IV").

ii. Prior to the occurrence of Project Milestone-Ill, the Concessionaire shall have

commenced installation of machinery and equipments in the Project and expended not

less than 75% (seventy-five per cent)] of the total capital cost set forth in the Financing

Documents.

e. Project Construction Completion Date

i. The Project Construction Completion Date shall occur on the [720th (Seven Hundred

Twentieth)] day from the Appointed Date.

ii. On or before the Project Construction Completion Date, the Concessionaire shall have

completed full and final construction and development of the Project/Project Facility in

all respect, as defined in this Agreement.

2. Extension of period

Upon extension of any or all of the aforesaid Project Milestones or the Project Construction

Completion Date, as the case may be, under and in accordance with the provisions of this


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Agreement, the Project Completion Schedule shall be deemed to have been amended

accordingly.


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Schedule- E: Independent Engineer’s Services

Terms of Reference

1. Objectives

The Independent Engineer shall be required to:

I. Act independently on behalf of both the Authority and the Concessionaire to review and

monitor all activities, associated with design, construction and safety, to ensure compliance

with provisions of the Concession Agreement.

II. Visit, inspect, and report to the Authority on various aspects of the project and carry out all

such activities as are provided in the Concession Agreement. Without prejudice to this, the

scope of services of the Independent Engineer shall be as specified in Clauses 2 to 4.

III. The Independent Engineer shall have no authority to relieve the Concessionaire of any of

its duties or to impose additional obligations other than those expressly provided in the


2. Scope of Services

a. Pre-implementation Period

i. Review the Project Report prepared by the Concessionaire.

ii. Review the Implementation Schedule submitted by the Concessionaire.

iii. Proof checking of designs, calculations and working drawings prepared by the

Concessionaire for the construction of various components of the Project

Facility in accordance with provisions of the Concession Agreement.

iv. Review the adequacy of the geo-technical studies, sub-soil investigations,

hydrological investigation and the topographical survey, if any, carried out by

the Concessionaire.

v. Review the environmental management plan for the Project during

Implementation Period and Operations Period.

vi. Review the proposed quality assurance and quality control procedures during

the Implementation Period and Operations Period.

vii. Review the safety measures proposed during Implementation Period and

Operations Period.

b. Implementation Period

i. Monitor quality assurance and quality control during Implementation period.

ii. Review the material testing results, mix designs and order special tests of materials

and/or completed works, and/or order removal and substitution of substandard

materials and/or works as required.

iii. Ensure that the construction work is carried out in accordance with the

Specifications and Standards and Good Industry Practice.

iv. Identify delays in completion and recommend to the Steering Group/

Concessionaire the remedial measures to expedite the progress.

v. Review “As Built” drawings for each component of the works prepared by the

Concessionaire.

vi. Review the safety measures provided by the Concessionaire.

vii. Supervise and monitor various Completion Tests as provided in the Concession

Agreement

viii. Issue the Completion Certificate, as the case may be, in accordance with the

provisions of the Concession Agreement.

ix. Review and approve the Maintenance Manual prepared by the Concessionaire.


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c. General

i. Design a Management Information System (MIS) for monitoring of the Project by

the Authority.

ii. Determine and recommend changes to the Project Completion Schedule,

Scheduled Project Completion Date and the Concession Period in accordance with


iii. Mediate and assist in resolving disputes between the Authority and

Concessionaire.

3. Interaction with Steering Group

The Independent Engineer shall interact with the Steering Group on a regular basis.

4. Reporting Requirements

I. The Independent Engineer shall prepare and submit to the Steering Group three copies

and to the Concessionaire two copies of Monthly Progress Report during the

implementation period reports.

II. Various other reports as provided in the Concession Agreement such as Completion

Report.

5. Period of Services

The period of services shall be the Construction Period.


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Schedule – F: Drawings

Drawings

In compliance with the obligations set forth in Article 8.2 of this Agreement, the Concessionaire shall

furnish to the Independent Expert, free of cost, all Drawings listed below:

[Note: The Authority shall list and describe in this Schedule all the Drawings that the Concessionaire is

required to furnish under Article 8.2.]

Additional Drawings

If the Independent Expert determines that for discharging its duties and functions under this Agreement,

it requires any drawings other than those listed hereinabove, it may by notice require the

Concessionaire to furnish such drawings forthwith. Upon receiving a requisition to this effect, the

Concessionaire shall promptly prepare and furnish such drawings to the Independent Expert as if such

drawings formed part of this Schedule F.


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Schedule – G: Standards & Specifications

Specifications for Design, Engineering and Construction

1. Building Bye Laws as applicable in state

2. The Concessionaire shall ensure to provide an appropriate road marking in the Project Site as

per IRC: 67-2010.

3. 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.

4. Minimum Construction Specifications: As Applicable

Component Specifications/Standards

RCC structures IS 456: 2000 using limit state method

Concrete Minimum Grade - M25

Reinforcement bars High yield strength deformed bars of grade Fe-415 conforming to

IS-1786

Steel structure design IS 800 – 1984

Structural steel IS-2062

Illumination National Lighting Code – 2010 (SP-72)

IS 10322 (Part I) – 1982 / IEC 598 – 1 (1979) Luminaires: Part I –

General Requirements

IS 10322 (Part II) – 1982 / IEC 598 – 1 (1979) Luminaires: Part II

– Construction Requirements

IS 10322 (Part V/ Sec. II) – 2012 Luminaires: Part V – Particular

Requirements, Sec 2 Recessed Luminaires (First Revision)

IS 10322 (Part V/Sec. III):2012/IEC 60598-2-3 (1979) Luminaires:

Part 5 Particular requirements, Sec 3 Luminaires for road and

street lighting (First revision)

IS 10322 (Part V/Sec IV):1987/IEC 60598-2-4 (1979) Luminaires:

Part 5 Particular requirements, Section IV Portable general

purpose

IS 10322 (Part V/ Sec V):1987/ IEC 60598-2-5 Luminaires: Part 5

Particular requirements, Section V Flood lights [superseding IS

1947]

Recommended Values of Illumination as per BIS: 3646 (Part-II)

Environment Management Plan As approved by Environment Ministry

Water Quality IS 10500 – 2012: Indian Standards for drinking Water

Minimum toilet block with all the

facilities

National Building Code. IS: 1172, IS: 2064 and IS: 2065

Separate toilets for Men, Women and physically handicapped


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Sanitation requirements Applicable Byelaws for each building type

Fire Protection System (FPS) National Building Code of India (NBC)

Security Measures In line with international standards and as per the applicable local

law

Emergency Management Plan In consultation with Police, Fire, Medical Department etc.

5. Utilities

a. Standby DG Set of adequate capacity shall be provided to meet the emergency load

requirements or for backup during power outages along with the secondary backup for

the minimum operation.

b. Adequate underground/overhead water storage shall be provided to cater for a day

requirement of domestic flushing and firefighting purpose.

c. 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 – H: Operation and Maintenance Requirements

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 facility shall be maintained as 5-Star hotel as per best industry practices.

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 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

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 the Authority. The Authority 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.


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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.

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 the Project 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 Authority (for information) along with the application for Completion

Certificate.

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

c. 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:


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Component Performance Indicator

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:

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.


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Component Performance Indicator

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 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.

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 the Authority.

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 Authority.

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.


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e. Liasoning with the nearby emergency services such as trauma centres, hospitals, police station,

fire brigade office.

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.

Inspections

The Concessionaire shall plan inspection programme for the Project Facilities for its smooth operations

as follows:

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 observation of the specific object/ item of the Project Facilities for identification and for

quantification of the deficiencies or damages of the Project Facilities.

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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Schedule – I: Vesting Certificate

1. The Uttarakhand Tourism Development Board (the “Authority”) refer to the Concession Agreement

dated *** (the "Agreement") entered into between the Authority, and **** (the "Concessionaire")

for development of the Project under ("DBFOT") basis.

2. The Authority and hereby acknowledge compliance and non- fulfilment by the Concessionaire of

the requirements set forth in Clause 17.2.8 of the Concession Agreement on the basis that upon

issue of this Vesting Certificate, the Authority shall be deemed to have acquired, and all title and

interest of the Concessionaire in or about the Project shall be deemed to have vested unto the

Government, free from any encumbrances, charges and liens whatsoever.

3. Notwithstanding anything to the contrary contained hereinabove, it shall be a condition of this

Vesting Certificate that nothing contained herein shall be construed or interpreted as waiving the

obligation of the Concessionaire to rectify and remedy any defect or deficiency in any of the

requirements under the Agreement and/or relieving the Concessionaire in any manner of the same

Signed this *** day of ***, 20** at [***].

AGREED, ACCEPTED AND SIGNED

For and on behalf of the CONCESSIONAIRE

by:


For and on behalf of the Authority by:

(Signature) (Signature)

(Name)

(Name)

(Designation) (Designation)

In the presence of:

1.

2.


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Schedule – J: Format of Performance Bank Guarantee of Concessionaire

Bank Guarantee No.: ______ Dated: _________________

Issuer of Bank Guarantee:

__________________(Name of the Bank)

__________________________________

__________________________________

(Hereinafter referred to as the “Bank”)

Beneficiary of Bank Guarantee:

Chief Executive Officer, Uttarakhand Tourism Development Board

Nature of Bank Guarantee:

Unconditional and irrevocable Bank Guarantee.

Context of Bank Guarantee

Performance in respect of Concession Agreement (hereinafter referred to as the “Agreement”) to be

entered between the Authority and _______________ (hereinafter referred to as the “Concessionaire”)

for the Development of Alaknanda hotel as 5-Star Hotel on DBFOT basis (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.

“Performance Bank Guarantee” 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.

Operative part of the Bank Guarantee

1. At the request of the Concessionaire, we , (name and address of the bank), having its branch

at Uttarakhand, hereinafter referred to as the (“Bank”), do hereby unconditionally and

irrevocably affirm and undertake that we are the Guarantor and are responsible to the Authority

i.e. the beneficiary on behalf of the Concessionaire, up to a total sum of

₹____________(Rupees ________________), such sum being payable by us to the Authority

in a bank branch at Uttarakhand immediately upon receipt of first written demand from the

Authority.

2. We unconditionally and irrevocably undertake to pay to the Authority on an immediate basis,

upon receipt of first written demand from the Authority and without any cavil or argument or

delaying tactics or reference by us to Concessionaire and without any need for the 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 ₹ __________________ (Rupees

___________ Only).

3. We hereby waive the necessity of the 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 Authority that the Authority shall be the sole and the


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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 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 Authority.

6. We unconditionally and irrevocably undertake to pay to the Authority, any amount so demanded

not exceeding ₹__________________ (Rupees ___________ 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 Authority, 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.

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 ₹__________________

(Rupees ___________ 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 Authority serves upon us a written

claim or demand on or before __________.

________________

Authorized Signatory

For Bank


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Schedule – K: Substitution Agreement

THIS SUBSTITUTION AGREEMENT is entered into on this the --------- day of ------------- (Month) ----

(Year) at ------------------------.

AMONGST,

The Uttarakhand Tourism Development Board (hereinafter referred to as the “Authority"), which

expression shall, unless the context otherwise requires, include its administrators, successors and

assigns) of the FIRST PART;

AND

M/s. XXXX Limited, a company incorporated under the provisions of the Companies Act, 1956/ 2013and

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

assigns),

AND

YYYY (Financial Institution/ Bank) having its Registered 0ffice/Head Office at ---------------------------------

-------------- hereinafter referred to as “the Lender”.

OR

ZZZZ (Financial Institution/Bank) having its Registered Office/Head Office at----------------------------------

-------------- acting for and on behalf of the Lenders listed in Schedule I hereto (hereinafter referred as

“the Lender’s Representative” .

WHEREAS,

A. The Authority and s keen to implement a project envisaging construction, operation and

maintenance of -------------------------------------------------------- (more particularly described in Schedule ‘A’

and hereinafter referred to as “the Project “) with private sector participation on Design, Build, Finance,

Operate and Transfer (DBFOT) basis.

B. By the Concession Agreement dated ------------ entered into between the Authority, and the

Concessionaire (hereinafter referred to as “the Concession Agreement”) the Concessionaire has been

granted the Concession to implement the Project on DBFOT basis.

C. With a view to facilitate financing of the Project by the Concessionaire, in pursuance of Clause

------- of the Concession Agreement, the Authority, and the Concessionaire have agreed to enter into

Substitution Agreement being these presents with the Lender/s/Lenders’ Representative.

D. As a condition to making any disbursement pursuant to the Financing Documents, the

Lender(s) has/ have required that the Substitution Agreement being these presents be entered into,

and the Authority and the Concessionaire have agreed to the same

NOW, THEREFORE, THIS AGREEMENT WITNESSETH AS FOLLOWS:

Article – 1: Definitions and Interpretation

1.1 Definitions

In this Agreement the following words and expressions shall, unless repugnant to the context or

meaning thereof, have the meaning hereafter respectively assigned to them.

“Agreement” means this agreement and includes any amendment or modification made to this

agreement in accordance with the provisions hereof.


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“Financial Assistance” means the financial assistance set forth in Schedule I hereto, agreed to be

provided by the Lender(s) to the Concessionaire for financing the Project.

“Lender(s)” means the financial institutions/banks whose name(s) and addresses are set out in

Schedule I hereto.

“Residual Concession Period” means the period which shall be aggregate remainder of the Concession

Period as the Suspension Period.

“Selectee” means a Person proposed by the Lender/Lender’s Representative pursuant to this

Agreement and approved by THE AUTHORITY for substituting the Concessionaire for the residual

Concession Period, in accordance with the provisions of this Agreement.

“Suspension Period” means the period commencing from the expiry of the Cure Period specified in the

Preliminary Notice and ending on the date on which all formalities connected with substitution of the

Concessionaire by the Selectee including handing over of Project Site/Project Facility, in accordance

with this Agreement are completed and the substitution has become effective.

1.2. Capitalised terms used in this Agreement but not defined shall have the meaning assigned to

them respectively in the Concession Agreement.

Article – 2: Substitution of the Concessionaire by the Selectee

2.1 Lenders right to Substitute

the Authority, and the Concessionaire hereby irrevocably agree that upon occurrence of an

Concessionaire Event of Default, the Lender(s) shall, without prejudice to any other rights or remedies

available to them under law/Financing Documents and without being required to exercise or exhaust

such rights or remedies, have the right to seek substitution of the Concessionaire by Selectee for the

residual Concession under the Concession Agreement in accordance with the provisions of this

Agreement. Provided upon substitution the Selectee shall be entitled to the extension of the remainder

of the Concession Period by the Suspension Period.

2.2 Preliminary Notice of Termination

The Authority, shall as soon as possible but in any case not later than 15 days of its knowledge of the

occurrence of the Concessionaire Event of Default issue Preliminary Notice of Termination to the

Concessionaire in terms of Clause 15.1.1 of the Concession Agreement, with a copy thereof

simultaneously to the Lenders. Provided if the Concessionaire Event of Default is the one set out in

Clause 15.1.1 of the Concession Agreement, the Authority shall not be obliged to issue Preliminary

Termination Notice until receipt by of the recall notice issued by the Lender(s) to the Concessionaire

2.3 Suspension of Concession and Takeover of the Project Facility

The Concessionaire irrevocably agrees that if the Cure Period specified in the Preliminary Notice of

Termination lapses without the Concessionaire Event of Default having been cured, the Concession

shall effective from the expiry of such Cure Period stand suspended without any further notice or other

act of the Authority, being required, and that the Authority, shall have the right to enter upon and

takeover the Project Site/Project Facility and to take all such steps as are necessary for the continued

operation and maintenance of the Project Facility, levy, collection and appropriation of Fee subject to

servicing the Debt Due as per the Financing Documents, and the substitution of the Concessionaire by

the Selectee in accordance with this Agreement. The Concessionaire hereby irrevocably consents to

the takeover of the Project Facility/ Project Site by the Authority, forthwith upon suspension becoming

effective.

2.4 Substitution Notice


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The Authority, and the Concessionaire hereby irrevocably agree that in the event of the

Concessionaire’s failure to cure the Event of Default specified in the Preliminary Notice of Termination.

The Lender/Lender’s Representative may, within 30 (thirty) days of the expiry of the Cure Period

specified therein notify the Authority, and the Concessionaire about the intention of the Lender(s) to

seek substitution of the Concessionaire by the Selectee for the Residual Concession (the “Substitution

Notice”).

2.5 Criteria for selection of the Selectee

The Lender/ Lenders’ Representative shall in addition to any other criteria that it may deem fit and

necessary, apply the following criteria in the selection of the Selectee:

(i) the Selectee shall possess the net worth, experience, technical capability and managerial ability

to perform and discharge all the residual duties, obligations and liabilities of the Concessionaire in

respect of the Concession, under the Concession Agreement;

(ii) The Selectee shall have the capability and shall unconditionally consent to assume the liability

for the payment and discharge of dues, if any, of the Concessionaire to the Authority, under and in

accordance with the Concession Agreements and also payment of Debt Due to the Lender(s) upon

terms and conditions as agreed to between the Selectee and the Lenders.

Article – 3: Modality for Substitution

3.1 Modalities for Substitution

The following modalities shall be followed for substitution of the Concessionaire by the Selectee

pursuant to this Agreement:

(i) The Lender(s)/Lenders’ Representative shall be entitled, within a period of 120 (one hundred

twenty) days from the date of delivery of the Substitution Notice pursuant to the preceding Clause 2.2

to invite or procure offers either through private negotiations or public auction or process of tender or

otherwise from the eligible Persons, for the substitution of the Concessionaire by the Selectee and

propose to the Authority, for its approval the Selectee (the “Proposal”). The Proposal of the

Lender/Lender’s Representative shall contain the particulars and information in respect of the Selectee,

the terms of Substitution, particulars of the Debt Due and such data and information as would be

necessary and relevant for the Authority, to decide as to the acceptability of the Selectee. The Lender/

Lender’s Representative shall provide to the Authority, such additional information and clarification in

respect of any data, particulars or information contained in the Proposal, as the Authority, may promptly

and reasonably require.

(ii) The Proposal shall be accompanied by an unconditional undertaking of the Selectee to the

effect that it shall upon acceptance by the Authority, of the Proposal observe, comply with, perform and

fulfill the residual terms, conditions and covenants of the Concession Agreement as if the Selectee had

been the Concessionaire under the Concession Agreement and to assume, discharge and pay the Debt

Due on the terms and conditions agreed to by the Selectee with the Lenders. The Selectee shall also

undertake to enter into such documents and writings with the Authority, and the Lender(s) as may be

necessary or required to give effect to the substitution of the Concessionaire by the Selectee.

(iii) the Authority, shall convey to the Lender/ Lenders’ Representative its acceptance or otherwise

of the Selectee within 30 (thirty) days of (a) the date of receipt of the Proposal by the Authority, the

Authority, or (b) the date of receipt of the additional information and clarifications in respect of any data,

particulars or information comprised in the Proposal, provided by the Lender/Lender’s Representative

to the Authority, the Authority, whichever is later.


Page 149 of 156

(iv) At any time prior to the acceptance of the Selectee by the Authority, pursuant to this Agreement,

the Authority, may require the Lender/Lenders’ Representative to satisfy it as to the eligibility of the

Selectee and the decision of the Authority, as to acceptance or rejection of any Selectee (which shall

be reasonable), shall be final, conclusive and binding on the Lender(s), the Selectee and the

Concessionaire. In the event that the Authority, fails to communicate its acceptance or otherwise or the

objections if any it has to the acceptance of the Proposal/ the Selectee within a period of 30 days

prescribed in preceding sub-Clause (iii) the Authority, shall be deemed to have accepted the Proposal/

the Selectee

(v) The rejection of the Selectee if made by the Authority, shall be reasoned and be made after

hearing the Lender/Lenders’ Representative. Following the rejection of the Proposal, the

Lender/Lenders’ Representative shall have the right to submit a fresh Proposal, proposing another

Selectee, within 30 days of receipt of communication regarding rejection of the Selectee previously

proposed. The provisions of preceding sub-Clause (iii) and (iv) shall apply mutatis mutandis to such

fresh Proposal.

(vi) If the Authority, accepts the Proposal/fresh Proposal, the Authority, shall take all necessary

steps to substitute the Concessionaire by the Selectee by amendment of the Concession Agreement

or by execution of fresh agreement or such other writing as may be required or necessary to give effect

to the substitution of the Concessionaire by the Selectee for the Residual Concession Period.

(vii) The substitution of the Concessionaire by the Selectee shall be deemed to be complete upon

the Selectee executing all necessary documents and writings with or in favour of the Authority, and the

Lender(s) so as to give full effect to the terms and conditions of substitution subject to which the

Selectee has been accepted by the Lender(s) and the Authority, and upon the delivery by the Authority,

of the Project Assets to the Selectee. Upon the substitution becoming effective pursuant to this sub-

Clause all the rights of the Concessionaire under the Concession Agreement shall cease to exist.

Provided nothing contained in this sub-Clause shall prejudice any pending/subsisting claims of the

Concessionaire against the Authority, or any claim of the Authority, against the Concessionaire and the

Selectee shall incur no liability or consequence on account of any previous breach/default and shall

subject to the terms and conditions of the substitution, have a period of 90 days to cure any

breach/default subsisting on the date of substitution and required to be cured.

(viii) The decision of the Lenders in the selection of the Selectee shall be final and binding on the

Concessionaire and shall be deemed to have been made with the concurrence of the Concessionaire.

The Concessionaire hereby expressly waives all rights to object to or challenge such selection of the

Selectee on any ground whatsoever.

3.2 Termination and Termination Payment

(i) Where the Lender/Lenders’ Representative (on behalf of all the Lenders) communicates in

writing that (i) the Lender/ Lender’s Representative does not intend to seek substitution of the

Concessionaire, or (ii) that the Lender/Lenders’ Representative has not been able to find suitable

Selectee or (iii) that the Authority, has declined to accept the Selectee proposed by the

Lender/Lenders’ Representative, the Authority, shall proceed to terminate the Concession and to make

Termination Payment, in accordance with the provisions of the Concession Agreement.

(ii) Notwithstanding anything contained hereinabove, the Authority, shall not upon Termination of

the Concession Agreement, be required to take over, the Debt Due save and except to the extent of

Termination Payment due and payable under the Concession Agreement. In such an event the

Authority, the Authority’s obligation shall be limited to assumption of such liabilities and payments of

Debt Due as the Authority; has agreed to bear under the Concession Agreement.


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(iii) Nothing contained in these presents shall mean or be interpreted as provision of any guarantee

or surety by the Authority, and it is expressly agreed that the Authority, has not provided any surety,

guarantee or counter guarantee whether directly or indirectly for the recovery of amounts advanced by

the Lenders to the Concessionaire.

Article - 4: Mode of Termination Payments

4.1 Mode of Payment

(i) the Authority, and Concessionaire hereby irrevocably agree, and confirm that so long as the

Debt Due is outstanding the Termination Payment and any other amounts due and payable by the

Authority, to the Concessionaire under any of the provisions of the Concession Agreement shall be paid

only by way of credit directly to a bank account designated therefore by the Lender(s)/Lenders’

Representative and advised to the Authority and the Concessionaire in writing. The Lender(s) shall be

entitled to receive and appropriate the same without any further reference to or consent of the

Concessionaire towards the satisfaction of the Debt Due, subject to payment by the Lender(s) of the

surplus amount if any remaining after satisfaction of the Debt Due, to the Concessionaire. Any payment

so made shall to the extent of such payment constitute a valid discharge to the Authority, of its

obligations with regard to the Termination Payment and of any other monies due to the Concessionaire

under the Concession Agreement.

(ii) For the purpose of giving full effect to the provisions contained in the preceding sub-Clause (i),

the Lender(s)/the Lender’s Representative shall be entitled to make a demand for payment of the

Termination Payment if the Concessionaire has failed to make such demand as required under Clause

15.4 of the Concession Agreement within 15 days from the Termination Date under intimation to the

Lender(s)/Lender’s Representative.

(iii) The Concessionaire hereby irrevocably appoints and constitutes the Lender(s)/Lenders’

Representative as its agent to make such demand for Termination Payment. Any demand made by the

Lender(s)/Lenders’ Representative pursuant to the power and authority conferred hereby shall for the

purpose of the Clause 14.4 of the Concession Agreement be deemed to be a demand for Termination

Payment made by the Concessionaire.

Article - 5: General

5.1 General

(i) The Parties hereto expressly represent and warrant that they are duly empowered to sign and

execute this Agreement and the Lenders Representative is duly and fully authorised by each of the

Lenders to enter into this Agreement on their behalf.

(ii) Notices under this Agreement shall be sent to the Addresses first hereinabove mentioned. Any

change in the address of any Party shall be duly notified by a Registered post acknowledgement due

and delivered to the other parties.

(iii) The expressions the “Authority”, the “The Authority”, the “Concessionaire”, the “Lender” and

the “Lenders’ Representative” herein used shall unless there be anything repugnant to the subject or

context include the respective successors, legal representatives, administrators and permitted assigns.

(iv) This Agreement shall not be affected by reorganisation of any Lender, the Concessionaire or

the Authority, and the successor in interest of the Lender or the Authority, shall have the benefit of this

Agreement.

(v) Any dispute, difference or claim arising out of or in connection with or in relation to this

Agreement which is not resolved amicably shall be decided finally by arbitration by a Board of Arbitrators


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comprising of a nominee of each party to the dispute. Such arbitration shall be held in accordance with

the Rules of Arbitration of the Indian Council of Arbitration and shall be subject to the provisions of the

Arbitration and Conciliation Act, 1996. The arbitrators shall issue a reasoned award. The venue of

such arbitration shall be Dehradun, India. The Award shall be final and binding on the Parties. The

Parties agree and undertake to carry out the award of the arbitrators (the “Award”) without delay.

(vi) This Agreement and rights and obligations of the Parties shall remain in full force and effect

pending the Award in any arbitration proceeding hereunder. The Courts in Dehraadun alone shall have

jurisdiction over all matters arising out of or relating to the arbitration agreement contained herein or

proceedings arising out of or relating to the arbitration proceedings thereunder.

(vii) The consultation, recommendation or approval of the Lenders’ Representative under this

Agreement shall always be taken as consultation, recommendation or approval of every concerned

Lender and each such Lender shall be bound by the same.

(viii) This Agreement shall be in addition to and shall not be in derogation of the terms of the

Financing Documents.

(ix) It shall not be necessary for the Lender(s) or the Lenders’ Representative to enforce or exhaust

any other remedy available to them before invoking the provisions of this Agreement.

(x) No amendment, variation or modification to this Agreement shall be valid and effectual unless

made in writing and executed by the duly authorised representatives of all the Parties hereto.

(xi) All stamp duties or other imposts and charges as are applicable on this Agreement or on

amendment of the Concession Agreement or execution of fresh Concession Agreement for the purpose

of substitution as aforesaid shall be borne by and be to the account of the Concessionaire. In the event

of the Lenders making such payment for the time being, it shall be deemed to be a part of the Debt

Dues.

(xii) The Parties hereby expressly agree that for the purpose of giving full and proper effect to this

Agreement, the Concession Agreement and this Agreement shall be read together an construed

harmoniously. The terms of this Agreement shall prevail in the event of any inconsistency with the



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Schedule – L: Indicative List of Clearances

The Concessionaire has to obtain clearances required for the implementation of the project while the

Authority would provide its support if necessary. An indicative list of minimum clearances required for

the project is given in the table below:

Sr. No. Item Agency

1 Water connection Uttarakhand Jal Santhan

2 Shifting of Services and utilities UPCL

3 Traffic Management during operation Traffic Police

4 Application for PAN, GST and Concerned departments of Government of

Uttarakhand and GOI other tax registrations etc.

5 Electricity connection UPCL

6 Clearance for employing labour-Primary

employer Labour Commissioner

7 Clearance for blasting and use of explosives Commissioner of Explosives and Police

Department, Government of Uttarakhand

8 Employment of migrant labour Labour Commissioner

9 Cutting of Trees MOEF, GOI

10 Realignment and channelisation of Nalas,

Natural Stream

Concerned departments of Government of

Uttarakhand

11 Fire safety equipment Concerned departments of Government of

Uttarakhand

12 Drains and sewers Concerned departments of Government of

Uttarakhand

13 Boiler and Diesel Generator Set UPCB

14 Licence for restaurant and related Concerned departments of Government of

Uttarakhand and GOI activities

15 Working in Night Shifts Police Department Municipal Council

16 Re-routing of vehicles Traffic Police

17 Storage of sludge/Silt UPCB


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Schedule – M: List of Prohibited Activities

The Concessionaire shall not undertake following activities on the Project Site:

i. Any activities resulting in pollution to Lake and ground water.

ii. Any activities creating breach of urban design guidelines of Uttarakhand

iii. Any Activities of hazardous nature

iv. Activities resulting air and noise pollution

v. Any activity involving commercial exploitation of Lake water like Pisciculture, other than those

envisaged under the Project

vi. Organizing sports like cricket, hockey, volleyball and football

vii. Activities involving pets and animals

viii. Organizing marriages and other parties

ix. Any other Unlawful activities


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Schedule – N : Deleted


Page 155 of 156

Schedule – O: Memorandum of Understanding

(To be provided later by Concessionaire)


Page 156 of 156

Maps

BANQUET HALL79'-0" x 62'-0"

RESTAURANT52'-0" x 62'-0"

KITCHEN26'-0" x 35'-0"

PANTRY12'-6" x 27'-0"

UP

SERV

ICE

ENTR

Y

TOI. (H)12'-6" x 8'-0"

TOI. (S)8'x8'

RECEPTION

OFFICE7'-0" x 8'-9"

OFFICE7'-0" x 8'-9"

BU

FF

ET

C

OU

NT

ER

UP

O P E N S I T T I N G

UP

TRAVEL DESK13'-0" x 8'-9"

MOMENTOSHOP

13'-0" x 8'-9"

UP

TRIPLE HEIGHT RECEPTION/WAITING LOBBY

65'-6" x 44'-3"

PROJECT:

DRAWN BY

DWG NO:

DATE

SCALE N.T.S.

CHECKED BY AN

THIS DRAWING IS THE PROPERTY OF NAYAK, NAYAKS & ASSOCIATES IT SHALL NOT BECOPIED OR USED WITHOUT THEIR WRITTEN PERMISSION NOR MADE KNOWN TO ATHIRD PARTY.THE INFORMATION IS ISSUED ON THE UNDERSTANDING THAT NO PART THEREOFSHALL BE DUPLICATED FOR THE PURPOSE OTHER THAN THE EXPRESSED PURPOSE.

nayak, nayak's & associates,7- Bhagirathi kunj Roorkee

REVISION STATUS ANDDETAILS

NO DATE

NORTH

CLIENT

SHEET TITLE:

GROUND FLOOR PLAN

LIFT6'x10'

LIFT6'x10'

LIFT LOBBY(12'-6" X 6'-3")

RE-DSESIGNING OFALAKNANDA HOTEL.

PROPOSED UNIT OF UTTARAKHANDDEVELOPMENT CORPORATION LTD. DEHRADUN

8.02.2020

226'

63'-6

"

DESIGNED WALL

SERVICE LIFT5'-0" X 5'-0"

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TOILET5'-0" X 8'-0"

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TOILET5'-0" X 8'-0"

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TRIPLE HEIGHTRECEPTION LOBBY

BELOW

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FT1'

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3'-0

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BEDROOM12'-6" X 17'-0"

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SHAFT4'-0"X3'-0"

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SHAFT4'-0"X3'-0"

UP DN

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REF./C

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NEL

STUDY

BEDROOM12'-6" X 17'-0"

TOILET5'-0" X 8'-0"

BEDROOM12'-6" X 17'-0"

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STUDY

SHA

FT1'

-6"X

3'-0

"

TOILET5'-0" X 8'-0"

BEDROOM12'-6" X 17'-0"

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FFEE

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SHAFT4'-0"X3'-0"

SHAFT4'-0"X3'-0"

SERVICE LIFT5'-0" X 5'-0"SHAFT

4'-0"X3'-0"

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AG

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TOILET5'-0" X 8'-0"

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TOILET5'-0" X 8'-0"

REF./C

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TOILET5'-0" X 8'-0"

BEDROOM12'-6" X 17'-0"

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FFEE

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NEL

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SHAFT4'-0"X3'-0"

SHAFT4'-0"X3'-0"

HOUSE KEEPING12'-6" X 9'-0"

7 ' - 0 " W I D E C O R R I D O R 7 ' - 0 " W I D E C O R R I D O R

LOBBY65'-6" X 16'-9"

FIRE & SERVICESTAIRCASE

ELEC. ROOM8'-0" X 7'-6"

PROJECT:

DRAWN BY

DWG NO:

DATE 8.02.2020

SCALE N.T.S.

CHECKED BY AN




NO DATE

NORTH

CLIENT

SHEET TITLE:

FIRST & SECOND FLOORPLAN



LIFT6'x10'

LIFT6'x10'

LIFT LOBBY(12'-6" X 6'-3")

226'

63'-6

"

TOTAL ROOM - 25NO / FLOOR

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226'

63'-6

"

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TOILET5'-0" X 8'-0"

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STUDY

BEDROOM12'-6" X 17'-0"

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E &C

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TOILET5'-0" X 8'-0"

REF./C

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BEDROOM12'-6" X 17'-0"

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REF./C

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STUDY

BEDROOM12'-6" X 17'-0"

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STUDY

BEDROOM12'-6" X 17'-0"

TOILET5'-0" X 8'-0"

BEDROOM12'-6" X 17'-0"

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BEDROOM12'-6" X 17'-0"

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. PAN

ELSTUD

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SHAFT4'-0"X3'-0"

SHAFT4'-0"X3'-0"

SHAFT4'-0"X3'-0"

SHAFT4'-0"X3'-0"

SHAFT4'-0"X3'-0"

UP DN

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REF./C

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BEDROOM12'-6" X 17'-0"

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SHAFT4'-0"X3'-0"

SHAFT4'-0"X3'-0"

SERVICE LIFT5'-0" X 5'-0"SHAFT

4'-0"X3'-0"

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BEDROOM12'-6" X 17'-0"

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SHAFT4'-0"X3'-0"

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ELSTUD

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BEDROOM19'-0" X 17'-0"

TOILET13'-0" X 8'-0"

BEDROOM19'-0" X 17'-0"

LUGG

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T.V. PA

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SHAFT4'-0"X3'-0"

TOILET13'-0" X 8'-0"

FIRE & SERVICESTAIRCASE

7 ' - 0 " W I D E C O R R I D O R 7 ' - 0 " W I D E C O R R I D O R

LOBBY65'-6" X 16'-9"

SHA

FT1'

-6"X

3'-0

"

SHA

FT1'

-6"X

3'-0

"

HOUSE KEEPING12'-6" X 9'-0"

ELEC. ROOM8'-0" X 7'-6"

PROJECT:

DRAWN BY

DWG NO:

DATE

SCALE N.T.S.

CHECKED BY AN




NO DATE

NORTH

CLIENT

SHEET TITLE:

THIRD & FOURTH FLOOR PLAN



8.02.2020

LIFT6'x10'

LIFT6'x10'

LIFT LOBBY(12'-6" X 6'-3")

TOTAL ROOM - 25NO/FLOORSUITE ROOM - 2NO / FLOOR

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UP

TOI. (H)12'-6" x 8'-0"

TOI. (S)8'x8'

DN

LOBBY65'-6" X 23'-0"

SWIMMING POOL78'-9" X 62'-0"

SERVICE LIFT5'-0" X 5'-0"

OPEN AIR COFEE SHOP65'-6" X 34'-6"

GYM AREA65'-6" X 20'-0"

INDOOR SPORTS GAMES78'-6" X 20'-0"

SEATING DECK

SEATING DECK

(F) CHANGINGROOM

(10'-0" X 12'-0")TOILET(F)(10'-0" X 12'-0")

TOILET(M)(10'-0" X 12'-0")

(M) CHANGINGROOM

(10'-0" X 12'-0")

UP

PROJECT:

DRAWN BY

DWG NO:

DATE

SCALE N.T.S.

CHECKED BY AN




NO DATE

NORTH

CLIENT

SHEET TITLE:

FIFTH FLOOR PLANRE-DSESIGNING OFALAKNANDA HOTEL.


8.02.2020

LIFT6'x10'

LIFT6'x10'

LIFT LOBBY(12'-6" X 6'-3")

UP

CHILDREN POOL

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54.4019

.40

8.30

7.00

43.70

7.50

2.40

18.9

0

79.80

86.50

56.4

015

.60

21.00

22.80 37.20 5.60

5.60

GATE

PARKING 65X44 M.

GANGA JI

MAIN BUILDING

GENERATOR/ ELECTRIC PANELGREEN

GREEN

SERVICE ROAD

RASTA

8.30

9.30

26.3

0

8.00

GREEN

FIRE FIGHTING

65.07

N.H. ( MAIN ROAD)TO RISHIKESH TO ROORKEE

TO CCR

HOTEL ALAKNANDA AND LANDSCAPING

22.50

21.50

114.00

44.0

0

PARKING 65X44 M.

56.0

0

30.00

55.8

0

104.63

AREA STATEMENTTOTAL PLOT AREA ALAKNANDA AND BHAGARTHI HOTEL

TOTAL LAND AREA HOTEL BHAGRATHI INCLUDING PARKING

TOTAL PLOT AREA HOTEL ALAKNANDA INCLUDING PARKING

JOINT APPROACH ROAD

HOTEL BHAGRATHI PARKING AREA

HOTEL ALAKNANDA PARKING AREA

HOTEL BHAGRATHI PLINTH AREA

11069.95 SQM.

4665.93 SQM.

6042.55 SQM.

361.47 SQM.

1435.00 SQM.

2860.00 SQM.

1360.00 SQM.

PARKING

SITE PLAN OF HOTEL ALAKNANDA AND BHAGRATHI