Description
A specialty (or speciality) in medicine is a branch of medical science. After completing medical school, physicians or surgeons usually further their medical education in a specific specialty of medicine by completing a multiple year residency to become a medical specialist.
DEVELOPMENT OF MULTI-SPECIALITY HOSPITAL AT AGRA
Under Integrated Urban Rejuvenation Plan
ON DESIGN, BUILD, FINANCE, OPERATE AND TRANSFER (DBFOT) BASIS UNDER PUBLIC PRIVATE PARTNERSHIP (PPP)
(Revised) RFQ cum RFP DOCUMENT
June 2009
Nodal Agency
AWAS BANDHU, UTTAR PRADESH, HOUSING & URBAN PLANNING DEPARTMENT, GOVERNMENT OF UTTAR PRADESH
IST FLOOR, JANPATH MARKET, LUCKNOW-226001 TEL: 0522-2237161 FAX: 0522-2612098, E-MAIL: [email protected] WEB: awas.up.nic.in Project Consultants
SREI Infrastructure Finance Limited In Association with DHV India Private Limited
AWAS BANDHU UTTAR PRADESH Government of Uttar Pradesh
Request for Proposal:
REVISED RFQ cum RFP DOCUMENT CONTENTS OF THE DOCUMENT VOLUME I : Instructions to Bidders
VOLUME II
:
Draft Concession Agreement
VOLUME III :
Techno Economic Feasibility Report
RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram In Agra
NOTICE INVITING REQUEST FOR QUALIFICATION CUM PROPOSAL
Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh
Development of Multi- Specialty Hospital at Shastripuram, Agra
As Part Of IURP Uttar Pradesh, India on DBFOT basis Government of Uttar Pradesh proposes development of Multi-Specialty Hospital at Shastripuram, Agra . UP Awas Bandhu is the nodal agency for the project. Deficiencies in the public sector health system in providing health services to the population are well known. The inability of the public health sector has forced poor and deprived sections of the population to seek health services from the private sector. Healthcare of people is crucial to the development of a state. Evidence indicates that, in many parts of India, the private sector provides a large volume of health services but with little or no regulation. The private sector is not only India’s most unregulated sector but also it’s most potent and untapped sector. To address the inefficiency and inequity in the health system, many state governments have undertaken health sector reforms. There is growing realisation that, given their respective strengths and weaknesses, neither the public sector nor the private sector alone can operate in the best interest of the health system. There is also a growing belief that public and private sectors in health can potentially gain from one another Agra needs world-class healthcare establishments and the role of private hospitals like this will only enhance our capability in delivering healthcare to the masses. Government of Uttar Pradesh proposes development of Multi-Specialty Hospital at Shastripuram, Agra. The scope of work will cover ? Build & operate 300-bedded super-specialty hospitals as per the International standards / Indian Public Health Standard (IPHS). ? Provide secondary and tertiary level medical services in selected disciplines in the hospital. ? Up-gradation of the hospitals, at a later stage, for starting super specialty courses along with training courses for nursing/ paramedical staff. The development of the project is on Design-Build-Finance-Operate and Transfer (DBFOT) basis under which the developer will Design, Finance, Construct, Maintain and Operate the project. GoUP invites proposals from the eligible developers either on their own or in consortium of up to four members, for being shortlisted for the issue of RFQ cum RFP Document. The Eligibility Criteria and other terms and conditions are given in RFQ cum RFP Document. The RFQ cum RFP may be obtained at the address given below on payment of Rs 25,000/- (Rupees Twenty Five Thousand only), through account payee Demand Draft in favour of Awas Bandhu payable at Lucknow.. The RFQ cum RFP may
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also be downloaded from the web http//awas.up.nic.in and submitted along with the Demand Draft as mentioned above. The last date for submission of RFQ cum RFP is 1300 Hrs on 03.07..2009. For further details please contact The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Tel: 0522-2237161 Fax:0522-2612098, E-Mail: [email protected], Web : awas.up.nic.in The Project Coordinator, SREI Infrastructure Finance Ltd. 5th Floor, D2, Southern Park Saket Place, New Delhi - 110017 Tel: 011-30615721 Fax: 011-30615818 [email protected]
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Disclaimer
1. Though adequate care has been taken in the preparation of this RFQ cum RFP Document (Volumes I and II), the Bidder should satisfy himself that the Document is complete in all respects including its legal validity. 2. Neither Awas Bandhu, UP nor their employees or consultants make any representation or warranty as to the accuracy, reliability or completeness of the information in this RFQ cum RFP (Volumes I and II) and it is not possible for Awas Bandhu, UP to consider the investment objectives, financial situation and particular needs of each party who reads or uses this document. Each prospective Bidder should conduct his own investigations and analysis and check the accuracy, reliability and completeness of the information in this RFQ cum RFP and obtain independent advice from appropriate sources. 3. Neither Awas Bandhu, UP nor their employees or consultants will have any liability to any prospective bidder or any other person under the law of contract, tort, the principles of restitution or unjust enrichment or otherwise for any loss, expense or damage which may arise from or be incurred or suffered in connection with anything contained in this RFQ cum RFP, any matter deemed to form part of this RFQ cum RFP, the award of the Project, the project information and any other information supplied by or on behalf of Awas Bandhu UP, ADA or their employees, any consultants or otherwise arising in any way from the selection process. 4. Awas Bandhu, UP reserves the right to reject any or all of the proposals submitted in response to this RFQ cum RFP at any stage without assigning any reasons whatsoever. 5. Awas Bandhu, UP reserves the right to change any or all of the provisions of this RFQ cum RFP prior to Proposal Due Date. Such changes would be intimated to all the parties being issued this RFQ cum RFP. 6. Awas Bandhu, UP reserves the right to change, modify, add to or alter the Selection Process including inclusion of additional evaluation criteria at later stage, which in no event shall be later than the Proposal Due Date. Any change in the Selection Process shall be intimated to all concerned parties.
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RFQ cum RFP DOCUMENT
Schedule of Bidding Process
1. Last date for receipt of queries 2.Last date for submission of RFQ Cum RFP 25.06.2009 at 1700 hrs 03.07.2009 at 1300 hrs at the office of the Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 03.07.2009 at 1400 hrs Rs. 25000 (Rupees Twenty Five Thousand), through account payee Demand Draft in favour of Awas Bandhu payable at Lucknow.
3.Date and time of Opening of RFQ cum RFP 45.Document Fees
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Table of Contents Page No 1. 2. 3. 4. 5. 5.1. 5.2. 5.3. 5.4. 5.5. 6. 6.1. 6.2. 6.3. 6.4. 6.5. 6.6. 6.7. 6.8. 6.9. 6.10. 6.11. 6.12. 6.13. 6.14. 6.15. 6.16. 6.17. 6.18. 6.19. 6.20. 6.21. 6.22. 6.23. 6.24. 6.25. 6.26. 6.27. 6.28. 6.29. 7. Notice: Inviting Request for Qualification cum Proposal Disclaimer Schedule of Bidding Process Salient Information Abbreviations Definitions Introduction Background of Agra Scope of Project Cost of the Project Commercial Consideration Project Implementation Mechanism Information and Instructions to Bidders Scope of Application Eligible Bidders Change in Consortium Composition Number of Applicants Application Preparation cost Project Inspection and Site Visit Right to Accept or Reject any or all Applications Contents of RFQ cum RFP Document Clarifications Amendment of RFQ cum RFP Language Currency Validity of Application Format and Signing of Application Sealing and Marking of Applications Submission of Bids Application Due date Late Applications Modifications / Substitution / Withdrawal of Proposals Evaluation of Application – Due Date Evaluation of Application – Criteria Evaluation of Application – Supporting Documents Evaluation of Application – Right to Reject Confidentiality Test of responsiveness Clarifications Qualification and Notification RFQ CUM RFP Documents Fees of the Consultants 11 1 2 3 6 7 8 11 11 13 13 13 14 14 14 15 15 15 15 16 16 16 16 16 17 17 17 17 18 19 19 19 19 19 19 19 20 20 20 20 21 22 22
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General Provisions 7.1. General Provisions
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7.2. 7.3. 7.4. 7.5. 7.6. 7.7. 7.8. 7.9. 7.10. 7.11. 7.12. 8.
Confidentiality Communication between Bidders and Awas Bandhu, UP Interpretation of Documents Pre-Bid Conference Enquiries concerning the RFQ cum RFP / Draft Concession Agreement Amendment of RFQ cum RFP Submission of Bids Bid Opening Earnest Money Deposit Performance Security Sources of Funds
23 23 24 24
25
25 25 26 26 27 28 29 29 32 33 33 35 35
Description of the Selection Process 8.1. Criteria for Evaluation 8.2. Evaluation of Financial Proposal (Assessment of Envelope B) Rules regulating the Consortium 9.1. Consortium of Bidders
9.
10. Methodology & Criteria for Evaluation 10.1. Financial Proposal Evaluation 11. Appendices Format for Power of Attorney for Signing Proposal
Format for Power of Attorney for Lead Member of Consortium
Appendix 1A Appendix 1B Appendix 2 Appendix 3 Appendix 4 Appendix 5 Appendix 6 Appendix 7 Appendix 8 Appendix 9A Appendix 9B Exhibit 2 Appendix 10 Appendix 11 Appendix 12 Appendix 13 Appendix 14 Appendix 15 Appendix 16 Annexure A
38
39
Details of Bidder Format for Letter of Application Information related to Experience Format for Establishing Experience of Bidder (BRS 1) Format for Establishing Experience of Bidder (BRS 2) Format for Establishing Financial Capability of the Bidder Format for Financial Capability of Consortium (BRS 4) Deleted
Guidelines for Providing Information related to Financial Capability
40 41 43 44 45 46 47
48
Format for Anti-Collusion Certificate Format for Project Undertaking Format for Project Undertaking Guiding Principles for MOU Format for Memorandum of Understanding (MOU) Deleted Consultancy and Success Fee Commitment Format for Letter of Acceptance Format for Letter of Commitment Financial Proposal Proforma for Bank Guarantee for Performance Security Project Site
50 51 52 53 54 56 57 59 61 62 65
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i.
Salient Information
This bid document comprises the following: a. Information to Bidders (RFQ CUM RFP Document-Vol I) b. Draft Concession Agreement (RFP Document-Vol II) c. Technical Schedule (RFQ CUM RFP Document-Vol II) TEFR is available with the Bid Documents for reference of the bidders.
Following are the salient aspects of information regarding this bid document (RFQ cum RFP):
ii.
The following shall be the Schedule of the Bidding Process. MILESTONE DATE Last Date for Submission up to 13:00 hrs. (Proposal Due 03.07.2009 at 1300 hrs at the Date) office of the Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Opening of Envelope A 03.07.2009 1400 hrs Opening of Envelope B 06.07.2009 1400 hrs
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3 Abbreviations
AW, UP BEC COD EMD EOI EPC FDI FAR ECS GoI GoUP Ha. LCM LOI LOA ADA MOU SPV UP Awas Bandhu, UP Bid Evaluation Committee Commercial Operation Date Earnest Money Deposit Expression of Interest Engineering, Procurement and Construction Foreign Direct Investment Floor Area Ratio Equivalent Car Space Government of India Government of Uttar Pradesh Hectare or Hectares Lead Consortium Member Letter of Intent Letter of Award Agra Development Authority Memorandum of Understanding Special Purpose Vehicle Uttar Pradesh
RFQ CUM RFP Request for Qualification cum Proposal
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Associates
Definitions
For a Bidding Company or a Consortium Member, only those entities would be “Associates” who control and is controlled by or is under the common control with such applicant/consortium member. Bid Document “Bid Document” shall mean any document issued by Awas Bandhu, UP as part of the Bid Process. Bid Process “Bid Process” shall mean various activities taken up by Awas Bandhu, UP leading up to the selection of the Successful Bidder/s. Bidder(s) “Bidder(s)” shall mean Bidding Company or Bidding Consortium that has submitted a Proposal in response to this RFQ CUM RFP Document. Bidding Company “Bidding Company” shall mean a corporate entity (Public or Private Limited) registered under the Companies Act, 1956 or equivalent International law1 satisfying the basic eligibility criteria of bidding. Bid Validity Period “Bid Validity Period” shall mean the period stipulated in Clause 6.13 of Section 6 of this RFQ CUM RFP Document, for which the Proposal submitted is valid. Bank “Bank” shall mean any SBI, Nationalised Bank and Indian Scheduled Commercial Bank whose networth is not less than Rs. 300 crores as on 31st March 2008. Consortium “Consortium” shall mean Group of Entities that have jointly submitted the proposal for the project.
1
Relevant Act as applicable has to be provided along in Envelope A with extract of relevant sections attached to the Act. Page 9
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Consortium Member Each entity in the Bidding Consortium shall be referred to as a Consortium Member. Earnest Money Deposit “Earnest Money Deposit or Bid Security” shall have the meaning as referred in Section 7.10 of this document. Effective Date “Effective Date” means the date on which all the Conditions Precedent are satisfied or waived in writing by both the Parties as per the Concession Agreement. Floor Area Ratio Floor Area Ratio means the quotient of the floor space excluding the area specifically exempted from computation under these 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 “Financial Bid / Financial Proposal” shall mean the information submitted as per Appendix 15 of this document. Good Industry Practice 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. Lead Member / Lead Consortium Member (LCM) In case of a Bidding Consortium, the Lead Member / Lead Consortium Member (LCM) shall be that Consortium Member vested with the prime responsibility of developing the Project and holding not less than 51% stake in the consortium. Letter of Acceptance “Letter of Acceptance” shall have a meaning as referred in Appendix 13 of this Document. It means Letter submitted by the bidder accepting the Award or Intention to Award the Project to the bidder. Letter of Commitment “Letter of Commitment” shall have a meaning as referred Appendix 14 of this Document. Project
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“Project” shall mean Design, Build, Finance, Operation and Transfer of Multi-Specialty Hospital at Shastripuram in Agra more specifically as mentioned under Clause 5.2 of Section 5. Project Site shall mean the area as given in annexure A. Proposal “Proposal” shall mean the Financial Proposal to be submitted by the Bidders in response to this Request for Proposal, unless the context specifically refers to a Techno-Commercial proposal and its sub-proposal (i.e. Technical Proposal and / or Financial Proposal) in which case, “Proposal” shall refer to such sub-proposal. Proposal Due Date “Proposal Due Date” shall have the same meaning as referred to in Clause 6.17 section 6 of this Document. Responsiveness / Non-responsive “Responsiveness / Non-responsive” shall mean as referred in Clause 6.25 of Section 6 of this document. Request for Qualification cum Request for Proposal (RFQcumRFP) “Request for Qualification cum Request for Proposal” shall mean this document advertised to invite the submission of “Qualification and Proposal” to Design, Build, Finance, Operate and Transfer of Multi-Specialty Hospital at Shastripuram in Agra. Selection Process “Selection Process” shall have the same meaning as the 'Bid Process'. Subsidiary/Subsidiaries For a Bidding Company or a Consortium Member, Subsidiary / subsidiaries shall mean only those entities in which the Bidding Company / Consortium Member” hold(s) more than 50% of the voting securities directly. Successful Bidder The Successful Bidder shall mean the bidder who has been issued Letter of Intent by Awas Bandhu, UP and Letter of Award by ADA indicating him as the Successful Bidder.
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INRTODUCTION
5.1 Background of Agra
The city of Agra is situated on the Western Bank of river Yamuna on National Highway (NH-2) at about 200 Kms from Delhi in the state of Uttar Pradesh. In the east, Agra is connected to Kanpur through NH-2 and in the south, it is connected to Gwalior through NH-3 and in the north, it is connected with Aligarh through NH- 93 and in the west, Agra is connected to Fatehpur Sikri through NH-11. `
Location of Agra in India
Regional setting of Agra city
Agra is geographically located at 27°12' North latitudes and 78°12' East longitudes. It has an extremely strategic location on the confluence of three distinct geo-physical regions namely the plain of Uttar Pradesh, the plateau of Madhya Pradesh and the desert of Rajasthan. The city also falls in the center of the four-culture areas- Braj, Bundelkhand, Rajputana and western U.P. Both these factors have played significant roles in shaping the life and history of the city
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Connectivity of Agra city
Historical Background Agra city is of historic importance, which is amply evident from the numerous historical monuments in and around the city. The Hindu epic Mahabharata refers to it as ‘Agraban’, part of Brij Bhoomi, the homeland of Lord Krishna. The earliest recorded history of Agra, is its establishment by a local king in 1475. The city was the capital seat of Mughals in medieval times. The heritage of the city is linked with the Mughal dynasty but numerous other rulers also contributed to the rich past of this city. Agra was founded by Sikandar Lodi in the 16th century. It grew into an important power centre under the Delhi Sultan Sikandar Lodi and he shifted his capital from Delhi in 1504. Babar also stayed in Agra for some time and introduced the concept of square Persian-styled gardens. Emperor Akbar built Agra fort and Jehangir did the beautification with gardens and palaces. The city has a proud possession of “Taj Mahal” as one of the seven wonders of the world, now declared as World Heritage Site. The post-Mughal era of Agra saw the rule of Jats, Marathas and finally the British taking over the city. In addition to its historic importance, Agra is a main center of political, economic, commercial and cultural activities. Physical Characteristics The river Yamuna enters the city from the north-east corner, flows towards south for some distance and then turns towards east. The general slope is from west to east in CIS-Yamuna area on the right bank of the river Yamuna. The climate of Agra city is extreme and tropical. During summer season the maximum temperature of the city rises to 47?C and drops down to minimum of 30?C during winter season. The city receives moderate to high rainfall with an average yearly rainfall of about 686 mm. The ground levels at Agra vary from RL 150 m to 170m. The strata consist of mainly sandy soil. The sub-soil water level is generally 6 to 8 m below ground level.
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The city stretches for about 9.0 kms along the Yamuna river. The major part of the city is on the Western side of Yamuna and has grown beyond the river on the eastern side and is called the Trans Yamuna area while the original part is called as CIS Yamuna.
5.2
Agra Development Authority
Agra Development Authority (ADA) was established under the Uttar Pradesh Urban Planning & Development Act 1973 in order to ensure planned development of the city. ADA has progressed from small beginnings to embrace an overreaching authority in the development scenario of Agra. In consonance with the aspirations of modern India, ADA aims at coordinated and planned development of city: to enable Agra to extend urban infrastructure to absorb the pressures of a rapidly changing society, and to provide an environment which would enable the utmost satisfaction level of all sections of its inhabitants. To fulfil its role, the Authority seeks to coordinate in accordance with a comprehensive Master Plan along with the work of various other agencies involved in the creation and extension of urban infrastructure. Taking forward this development process and to redress the lack of Multi Speciality Hospital in the State of UP, ADA has proposed to set-up a 300 Bed Multi Speciality Hospital in Agra.
5.3 Scope of the Project
Government of Uttar Pradesh (GoUP) through U.P. Awas Bandhu Lucknow intends to undertake various infrastructure projects for implementation on Public Private Partnership (PPP) Mode under “Integrated Urban Rejuvenation Plan” (IURP) scheme for selected cities of the state. Projects to be developed on PPP mode are being identified, developed and implemented in various cities of Uttar Pradesh namely Ghaziabad, Meerut, Agra, Aligarh, Allahabad, Varanasi, Lucknow and Kanpur. Under this a need to develop a Multi Speciality Hospital in Agra was felt . The Hospital is expected to develop as per the International standards/ Indian Public Health Standards. It is envisioned to provide Health care facilities in selected disciplines. The broad scope of work is to develop of a 300 bedded hospital at a site identified by ADA. The Hospital may be upgraded to have Multi Speciality courses along with training courses for nursing and paramedical staff. Agra Development Authority has identified and earmarked total 5 acres of plot located at Shastripuram near Sikandra in Agra. It is easily accessible from major land marks like the Sanjay place. Though easily accessible, the site is located away from the hustle and bustle of the city. The site shall be given on lease for the initial period of 30 years renewable every 30 years up to a maximum of 90 years including construction period.
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The successful bidders shall Design, Build, Finance, Operate and Transfer Multi Specialty Hospital on the 5 acre of plot earmarked for the purpose over the concession period of initial period of 30 years renewable every 30 years up to a maximum of 90 years Concessioning Authority. The successful bidder shall construct following facilities and get all the approvals for commercial operations of 150 beds and allied services in 36 months from the effective date and remaining beds within the next 24 months: including construction period, after which the facility will be transferred to the
A. Minimum Development Obligations (Essential Facilities):
• • To build and operate 300-bedded Multi-specialty hospital as per the International standards / Indian Public Health Standard (IPHS). Atleast four specialties from the following specialties shall be developed in the Hospital. Departments / Specialties Trauma Care Cardio Thoracic care unit (ICCU- Intensive Cardiac Care Unit) Intervention specialty and Cerebral Intervention Kidney Transplant (Haemodialysis) Neurology unit Obstetrics & Gynaecology Paediatric unit (with NICU – Neonatal Intensive Care unit) Dental unit for surgery Ophthalmology and ENT Cancer unit • The hospital shall also have a round the clock emergency unit.
B. Optional Facilities
? ? ? ? ? Service Apartments can be provided within the hospital complex to cater to the needs of the patients and their relatives. Hospital may offer Laboratory Technician and para medical courses within the complex. Restaurants, ATMs, Pharmacy for the convenience of the patients can be provided within the hospital complex. Research Centre can also be setup in the hospital complex. Helipad for picking up patients may be provided. Ambulance facility may be provided
All the facilities are to be developed as per the minimum quality standards set out for the purpose in the technical schedule appended in DCA Volume II with this document.
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While undertaking development of the Project, the Successful Bidder shall adhere to latest amended National Building Code of India, other relevant IS Codes and practices, Development Control Rules, FAR Limits, statutory requirements, guidelines and approvals of the Health Department of the Government of Uttar Pradesh, laws of land, the principles of good industry practices and any other norms as applicable from time to time. The Successful Bidder shall also take into account the guidelines issued by the State Health Department and obtain the necessary approvals. Keeping in view that the hospital services should be world class, the hospital may apply for JCI (joint Commission International) accreditation and obtain the same within five years from the date of operation. The successful bidder shall plan the facilities, manpower and the service standards to meet the stringent quality standards laid down by JCI. The Successful Bidder’s proposed plan to meet the norms of JCI shall be presented to Agra Development Authority. The successful bidder shall be responsible for all the clearances as may be required for the development and operations of the project. 150 beds and allied facilities shall be ready for operation after taking all the clearance(s) within 36 months of the effective date and the remaining beds shall be operational within the next 24 months. For the purpose of providing subsidized health services to poor, the Concessionaire shall provide 1% of the revenues of the hospital every year of the Concession period to the State Health Department. Revenue of hospital shall mean registration fees, hospital bed revenue, diagnostic laboratory test, consultation charges, operation charges and lease rentals from commercial facilities like banks, restaurants etc. Revenue of Hospital shall not include revenue from pharmacy, service apartments, training institutes and consumable cost directly reimbursed by patient. The Concessionaire shall be allowed to mortgage land of the project for availing financial assistance from funding agencies subject to the condition that the 20% of the land value at circle rates is paid upfront to the Concessioning Authority. Revenue Streams The Private Sector Operator will be able to recover its investment through the following indicative streams of revenue: • • • • • • IPD charges OPD charges Procedures and allied charges Investigations charges Revenue from Hospitalization (Room Related) Miscellaneous charges
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5.4 Cost of the Project
The project is estimated to cost Rs. 100.56 crores ( Rupees One hundred crores and fifty six lakh only).
5.5 Commercial Consideration
In consideration of the designated plot of land given on lease for the initial period of 30 years renewable every thirty years upto a maximum of 90 years, the Successful bidder shall pay, to the Concessioning Authority, annually a percentage of total revenue earned as quoted by him in the Financial proposal payable eleventh year (from the year of commercial operations of the first 150 beds) onwards through out the remaining concession period..The concessionaire shall also pay to the concessioning authority a yearly lease rental of Rs. 128/-( Rs. One hundred and twenty eight only ) per sq meter of land for the entire concession period including construction period The Concessionaire shall deposit 1% of the total revenue earned in the year in a fund with the government for the medical well being of the BPL population of Agra city. This will commence from the year of commercial operations of first 150 beds. Bidders may please note that in case of failure of the bidder in completion of the project, as mentioned in the scope of work and as per the minimum standards and specifications as per the technical schedule appended with this document in DCA Volume II, within 60 months, the performance security furnished on the execution of the Agreement shall be forfeited by ADA and blacklisted, as per the Provision of the draft Concession agreement. Additional measures as the Govt. may deem fit would be applicable on such a bidder. However, bidders may note that in case the work is being executed as per the minimum technical specifications in DCA Volume II but delayed due to Force Majeure Event as defined in the Draft Concession Agreement, the remedies pertaining to such Force Majeure Event shall be applicable as per the provisions in the Draft Concession Agreement.
5.6 Project Implementation Mechanism
The successful bidder in case of a consortium shall form a Special Purpose Vehicle (SPV) in the form of limited company under Companies Act, 1956, registered in UP for the purpose of implementation of the project. The Concession Agreement shall be signed between the SPV and ADA. In case, the successful bidder is a single entity, the Concession Agreement shall be signed between the Single Entity and ADA. No SPV shall be formed in case Single Entity is the Successful Bidder. 5.7 The GoUP shall provide single window clearances for all necessary approvals within the state and shall facilitate the Concessionaire in getting clearances and approvals from any agency from outside the state.
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6
INFORMATION AND INSTRUCTION TO BIDDERS
6.1 Scope of Application
6.1.1 ABUP wishes to receive Applications from experienced and capable Bidders for proposal in respect of the Project(s)..
6.2 Eligible Bidders
6.2.1 The Bidder may be a single company or a group of maximum 4 companies (hereinafter referred to as Consortium), coming together to implement the Project. The term Bidder used hereinafter would therefore apply to both a single entity and/or a Consortium. The Bidder should submit a Power of Attorney as per the format enclosed at Appendix 1A, authorizing the signatory of the Application to commit the Bidder. Applications submitted by a Consortium should comply with the following additional requirements:
6.2.2 6.2.3
a. Number of members in a consortium would be limited to maximum of 4; b. The Application should contain the information required for each member of the Consortium c. The purchaser of the RFQ CUM RFP document must be the Bidder itself or member of the consortium submitting the application.
d. An individual Bidder cannot at the same time be member of a Consortium applying for this Project. Further, a member of a particular Consortium cannot be member of any other Consortium applying for this Project; an undertaking towards this end needs to be submitted by all members. e. Members of the Consortium shall nominate one member as the Lead Member. The nomination shall be supported by a Power of Attorney as per the format enclosed at Appendix 1B f. Members of the Consortium shall enter into a Memorandum of Understanding (MOU) as per the format enclosed at Appendix 10 and duly notarized for the purpose of making the Application and submitting a Proposal. The MOU shall, inter alia: i. Convey the intent to form a Special Purpose Vehicle with shareholding commitment(s) as stipulated in this document, which would enter into the Concession Agreements and subsequently carry out all the responsibilities as Concessionaire in terms of the Concession Agreement, in case the Concession to undertake the Project is awarded to the Bidder. ii. Clearly outline the proposed roles and responsibilities of each member in case of Consortium at each stage, iii. Commit the minimum equity stake as stipulated, and iv. include a statement to the effect that all members of the Consortium shall be liable jointly severally for the execution of the Project in accordance with the terms of the Concession Agreement
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g. In case of consortium, the Lead Member shall hold at least 51% share in the shareholding. h. The other members of the consortium shall hold a minimum of 11% share each in the shareholding. 6.2.4 Notwithstanding anything stated elsewhere in this document, ABUP shall have the right to seek updated information from the Bidders to ensure their continued eligibility. Bidders shall provide evidence of their continued eligibility in a manner that is satisfactory to ABUP. Bidder may be disqualified if it is determined by the ABUP, at any stage of the process, that the Bidder will be unable to fulfill the requirements of the Project or fails to continue to satisfy the Eligibility Criteria. Supplementary information or documentations may be sought from Bidders at any time and must so be provided within a reasonable time frame as stipulated by ABUP. Any entity which has been barred or disqualified either by GOI or GOUP or their Departments or agencies from participating in projects (BOT or otherwise) and such disqualification subsists as on the Application date, would not be eligible to submit an Application, either individually or as member of a Consortium. Bidder to submit an affidavit to this effect.
6.2.5
6.3 Changes in Consortium Composition
After shortlisting, change in the composition of the Consortium (except lead member) will be subject to approval of ABUP but applications to change the consortium should reach Awas Bandhu at least 10 days before the last date for submission of RFQ cum RFP. Conditions for such approval will be provided in the RFQ CUM RFP document.
6.4 Number of Applications
Each Bidder shall submit only one (1) Application in response to this RFQ cum RFP. Any Bidder, which submits or participates in more than one Application will be disqualified and will also cause the disqualification of the Consortiums / Bidder of which it is a member as the case may be.
6.5 Application Preparation Cost
The Bidder shall be responsible for all of the costs associated with the preparation of its Application and its participation in the Selection process. ABUP will not be responsible or in any way liable for such costs, regardless of the conduct or outcome of the qualification process.
6.6 Project Inspection and Site Visit
6.6.1 It is desirable that each Bidder submits its Application after inspecting the sites; and ascertaining for itself the location, surroundings, access, transport, right of way or any other matter considered relevant by it. 6.6.2 Site visit may be facilitated by ABUP. A prospective Bidder may notify ABUP in writing 3 days prior to planned visit. ABUP would endeavor to facilitate the site visit depending upon the availability of the concerned officials. 6.6.3 It would be deemed that by submitting the Application, Bidder has: (a) Made a complete and careful examination of the RFQ CUM RFP and
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(b) Received all relevant information requested from ABUP. 6.6.4 ABUP shall not be liable for any mistake or error on the part of the Bidder in respect of the above.
6.7 Right to Accept or Reject any or all Applications
6.7.1 Notwithstanding anything contained in this RFQ cum RFP, ABUP reserves the right to accept or reject any Application and to annul the bidding process and reject all Applications / Proposals, at any time without any liability or any obligation for such acceptance, rejection or annulment, without assigning any reasons. ABUP reserves the right to reject any Application if:
6.7.2
(a) At any time, a material misrepresentation is made or uncovered, or (b) The bidder does not respond promptly and thoroughly to requests for supplemental information required for the evaluation of the Application. Such misrepresentation / improper response would lead to the disqualification of the Bidder. If the Bidder is a Consortium, then the entire Consortium would be disqualified / rejected.
6.8 Contents of RFQ cum RFP Document
The RFQ cum RFP Document comprises the contents as given in the Table of Contents and would additionally include any Addenda issued in accordance with the provisions of this Document.
6.9 Clarifications
Interested parties may address their queries relating to the RFQ cum RFP Document by email only at [email protected] with a mandatory copy to consultants at [email protected]. The queries should reach the above latest by 1700 hrs on 25.06.2009. ABUP would endeavor to respond to the queries by the date mentioned in the Schedule of Bidding Process. The responses will be sent by fax/ email.
6.10 Amendment of RFQ cum RFP
6.10.1 At any time prior to the deadline for submission of Application, ABUP may, for any reason, whether at its own initiative or in response to clarifications requested by any Bidder, modify the RFQ cum RFP Document by the issuance of an Addendum.
6.10.2 Any Addendum thus issued will be sent in writing to all those who have purchased the RFQ cum RFP Document and shall also be uploaded on www.awas.up.nic.in
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6.11 Language
The Application and all related correspondence and documents should be written in the English language. Supporting documents and printed literature furnished by Bidder with the Application may be in any other language provided that they are accompanied by appropriate translations of the pertinent passages in the English language duly certified appropriately. Supporting materials, which are not translated into English, may not be considered. For the purpose of interpretation and evaluation of the Application, the English language translation shall prevail.
6.12 Currency
The currency for the purpose of the Application shall be the Indian Rupee (INR). The conversion to Indian Rupees shall be clearly indicated in the Appendix 4. In all such cases, the original figures in the relevant foreign currency and the INR equivalent thereof must be given. The exchange rate(s) applied shall be clearly stated. The conversion to Indian Rupees shall be based on the closing exchange rate published by the Reserve Bank of India as on 31st December 2008. ABUP reserves the right to use any other suitable exchange rate for the purposes of uniform evaluation for all Bidders.
6.13 Validity of Application
Applications shall remain valid for a period not less than 180 days from the Application Due Date. ABUP reserves the right to reject any Application, which does not meet this requirement.
6.14 Format and Signing of Application
6.14.1 The Bidder would provide all the information as per this RFQ cum RFP Document. ABUP would evaluate only those Applications that are received in the required format and are complete in all respects. 6.14.2 The Bidder shall prepare one original of the documents comprising the Application and clearly marked "ORIGINAL". In addition, the Bidder shall make two copies of the Application, clearly marked "COPY". In the event of any discrepancy between the original and the copies, the original shall prevail. 6.14.3 The Application and its copies shall be typed or written in indelible ink and each page shall be initialled and stamped by the Bidder. All the alterations, omissions, additions, or any other amendments made to the Application shall be initialled by the person(s) signing the Application.
6.15 Sealing and Marking of Applications
6.15.1The First Envelop should be marked as Envelop A (original and copy) and shall contain: a) Power of Attorney for the signing authority as per the format enclosed at Appendix 1A, b) Power of Attorney for the Lead member of the consortium as per the format enclosed at Appendix 1B, in case of Consortium; c) Bidder details (Appendix 2)
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d) Application in the prescribed format (Appendix 3) along with supporting documents; e) Completed Format for Experience as in Appendix 4 (BRS 1 to 2), along with supporting documents. f) Completed Format for Financial Capability Evaluation as in Appendix 5 (BRS3 &4) and Appendix 7, along with supporting documents.
g) Format of Anti collusion certificate as in Appendix 8. h) Format of Project Undertaking as in Appendix 9A. i) In case of a Consortium, an undertaking from each member of Consortium certifying that it is an exclusive member of that particular consortium alone and not a member of any other consortium nor an independent Bidder, bidding for this project and has submitted only one (1) Application in response to this RFQ CUM RFP. (Appendix 9B) MOU in case of a Consortium (Appendix 10);
j)
k) Earnest Money Deposit l) Letter of Undertaking for the success fee of 1% of the Project Cost net of taxes, and Consultancy Fees as per Appendix-12 m) Letter of Acceptance as per Appendix-13 n) Letter of Commitment as per Appendix-14 o) Documentary evidence, if applicable, relating to experience of group companies/associates as per clause 8.1.2. 6.15.2 The second Envelop should be marked as Envelop B and shall include: • Financial Proposal as per Appendix-15. Please note that Awas Bandhu, UP retains the right to ask for any further information/ clarification during the Bid Process. 6.15.3 The Bidder shall also enclose in a separate envelope, enclosed in the outer envelope, a demand draft for Rs 25,000/- (Rupees Twenty Five Thousand Only), through account payee Demand Draft in favour of Awas Bandhu payable at Lucknow on any scheduled bank towards non refundable Document Fee. Application unaccompanied by this demand draft will not be considered for evaluation and short-listing.
6.16 Submission of Bid
Both the Envelopes A and B shall be put together in one envelope and be sealed properly. The Bidder shall seal the original
and copy duly marking the envelopes as "ORIGINAL" and "COPY" the envelopes shall then be sealed in an outer envelope super scribing “RFQ cum RFP for DEVELOPMENT OF MULTI-SPECIALTY HOSPITAL AT SHASTRIPURAM IN AGRA, UTTAR PRADESH” and also the name(s) of bidder/consortium The envelope shall be addressed to:
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The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India Tel: 0522-2237161 Fax:0522-2612098, E-Mail: [email protected], Web: awas.up.nic.in 6.15.5 If the envelope is not sealed and marked as instructed above, ABUP assumes no responsibility for the misplacement or premature opening of the contents of the Application submitted.
6.17 Application Due Date
Applications should be submitted before 1300 hours IST on the Application Due Date mentioned in the Schedule of Bidding Process, at the address provided above in the manner and form as detailed in this RFQ cum RFP. Applications submitted by either facsimile transmission, telex or e-mail will not be considered for evaluation and short listing. However ABUP reserves the right to extend the Application Due Date and Time, at any time prior to opening of RFQ cum RFP Applications; in such cases the applications received prior to such extension shall not be opened. Further if the RFQ cum RFP document is materially modified along/during such extended period, the RFQ cum RFP application received prior to extension shall be returned to the applicants and appropriate time shall be allowed for resubmission of the Applications.
6.18 Late Applications
Applications received after the Application Due Date shall not be considered,
6.19 Modifications/ Substitution/ Withdrawal of Proposals
The Bidder may modify, substitute or withdraw its Proposal after submission, provided that written notice of the modification, substitution or withdrawal is received by ABUP before the Proposal Due Date and time. No Proposal shall be modified or substituted or withdrawn by the Bidder after the Proposal Due Date and time
6.20 Evaluation of Application - Due Date
ABUP would open the Applications after 1400 hours 1ST on the Application Due Date mentioned in the Schedule of Bidding Process, for the purpose of evaluation.
6.21 Evaluation of Application - Criteria
ABUP would subsequently examine and evaluate Applications in Accordance with the criteria set out in Section 8.
6.22 Evaluation of Application - Supporting Documents
ABUP reserves the right to call for supporting documentation to verify the data provided by Bidders, at any time during the bidding process. The Bidder in such cases would need to provide the requested clarification / documents
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promptly and within the stipulated time failing which the Bidder is liable to be disqualified at any stage of the bidding process.
6.23 Evaluation of Application - Right to Reject
ABUP reserves the right to reject any Application if: (a) At any time, a material misrepresentation is made or uncovered; or (b) The Bidder does not respond promptly and thoroughly to requests for supplemental information required for the evaluation of the Application.
6.24 Confidentiality
Information relating to the examination, clarification, evaluation, and recommendation for the short-listed Bidders shall not be disclosed to any person not officially concerned with the process. ABUP will treat all information submitted as part of Application in confidence and would require all those who have access to such material to treat the same in confidence. ABUP will not divulge any such information unless it is ordered to do so by any authority that has the power under law to require its disclosure.
6.25 Tests of responsiveness
6.25.1 Prior to evaluation of Applications, ABUP will determine whether each Application is responsive to the requirements of the RFQ cum RFP. An Application shall be considered responsive if the Application: a) is received by the Application Due Date (Clause 2.16) including any extension thereof pursuant to Clause 2.17 b) is accompanied by MOU in case of a Consortium ( Appendix 10), if applicable, duly supported by Board resolution and charter documents c) Contains information required as per Appendix 3, 4(BRS 1 to2), 5(BRS 3 to 4) and 7. d) It is accompanied by Bid Document Fee of Rs. 25,000/e) It is accompanied by a valid Earnest Money Deposit ; f) Letter of Undertaking for the Success fee of 1% of project cost (net of taxes) to the consultants and Consultancy Fees as per Exhibit 10. g) Letter of Acceptance as per Appendix-13 h) Letter of Commitment as per Appendix-14 i) Contains all the documents which were to be submitted as per the provisions of Section 6.15 of this Document. ABUP reserves the right to reject any Application which is non-responsive and no request for alteration, modification, substitution or withdrawal shall be entertained by ABUP in respect of such Applications.
6.26 Clarifications
To facilitate evaluation of Applications, ABUP may at its sole discretion, seek clarifications in writing from any Bidder regarding its Application.
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6.27 Qualification and Notification
After the evaluation of Applications, ABUP would announce a list of successful Bidders (Bidders) who meet the Qualification Criteria. At the same time, ABUP would notify the other Bidders that their Applications have been unsuccessful.
6.28 RFQ CUM RFP Documents
RFQ CUM RFP Documents contain the following: Volume I Volume II Instruction to Bidders Draft Concession Agreement, Technical Schedule
TEFR is available with the above documents for the reference of the bidder. However the bidder has to conduct his own feasibility before submitting the bids.
6.29 Fees of the Consultants
SREI Infrastructure Finance Ltd in consortium with DHV India Pvt. Ltd. has been appointed as a Consultant to assist Awas Bandhu, UP in handling the bid process management for the selection of the Successful bidder. The Success Fee of 1% of the project cost exclusive of taxes at applicable rates has been agreed by Awas Bandhu UP, to be paid to SREI Infrastructure Finance Ltd. for providing the above mentioned advisory services. The Success Fee shall be net of all taxes (1% of Project Cost is net of all taxes). Every bidder shall therefore submit along with the Proposal, an undertaking as per Appendix-12 for the Success Fees of the Consultants (calculated at the rate of 1% of the project cost as mentioned in Section 5.3 of this RFQ cum RFP document, plus taxes as applicable) and the Consultancy fees of Rs. 1, 00,000/- (Rupees One Lakh only) to be reimbursed to Awas Bandhu, UP. This success fee shall be paid in the form of a Demand Draft issued by a Bank in favour of SREI Infrastructure Finance Ltd. Such a Demand Draft shall be extendable for a further period of 6 months by replacing it with a fresh Demand Draft after 5 months of its issue if required and asked by Awas Bandhu, UP due to delay in signing of Concession Agreement or otherwise beyond a period of 5 months from the date of issue of the said Demand Draft. The Success Fee in the form of Demand Draft shall be handed over to Awas Bandhu, UP by the Successful Bidder before the signing of the Concession Agreement. The successful bidder shall pay and deposit the amount of withholding or other taxes to the credit of the relevant tax authorities and issue a certificate of deduction and payment to SREI Infrastructure Finance Ltd.
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The Consultancy Fee of Rs. 1, 00,000/- (Rupees One Lakh only) paid by Awas Bandhu,UP to the Consultants will be reimbursed by the bidder to Awas Bandhu, UP within 2 weeks of signing the concession agreement between ADA and Bidder, on receipt of invoice from Awas Bandhu, UP.
7.1
7.1.1
General Provisions
Non-Discriminatory and Transparent Bidding Proceedings
Awas Bandhu, UP shall ensure that the rules for the Bid Process for the Project are applied in a non-discriminatory, transparent and objective manner. Awas Bandhu, UP shall not provide to any Bidder, information with regard to the Project or the Bidding Process, which may have the effect of restricting competition.
7.1.2
Prohibition against Collusion with other Bidder
Each Bidder shall warrant by its Bid that the contents of its Bid have been arrived at independently. Any Bid which has been arrived at through consultation, collusion, or understanding with any other prospective Bidder for the purpose of restricting competition shall be deemed to be invalid and the Bidder shall lose its Earnest Money Deposit. The anti-collusion certificate submitted at the time of submission of RFQ CUM RFP shall be applicable.
7.1.3
Inducements
Any effort by a Bidder to influence processing of Bids or award decision by Awas Bandhu, UP or any officer, agent or Advisor thereof may result in the rejection of such Bidder’s Bid. In such a rejection of Bid, the Bidder shall lose its Earnest Money Deposit.
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7.2
Confidentiality
confidential, and shall take all reasonable precautions that all those who have access to such material, treat this in confidence. Awas Bandhu, UP will not divulge any such information unless it is ordered to do so by any authority, which has the power to require its release.
7.2.1 Awas Bandhu, UP shall treat all Bids and other documents, information and solutions submitted by Bidders as
7.2.2 Each Bidder shall, whether or not it submits a Bid, treat the RFQ CUM RFP Documents and other documents, information and solutions provided by Awas Bandhu, UP in connection with the Project or the bidding proceedings as confidential for a period of five (5) years from the issuance of the RFQ CUM RFP Documents. During this period, the Bidder shall not disclose or utilize any such documents, information without the written approval of Awas Bandhu, UP or as required by law or any governmental authority. 7.2.3 A was Bandhu, UP shall have the right to release the Bid information provided by the Bidders to its Advisors for the purpose of Bid evaluation and negotiations. Each Bidder shall have the right to release these RFQ CUM RFP Documents and other Documents to its advisors and to financial institutions for the purpose of Bid preparation, negotiations and financing. Both Awas Bandhu, UP and the Bidder shall ensure that their Advisors and/ or financial institutions treat this information in confidence. 7.2.4 Any information relating to examination, clarification, evaluation and comparison of bids and recommendations for the award of a contract shall not be disclosed to Bidders or any other person not officially concerned with the Bid Process until the award to the Successful Bidder has been communicated, except of reasons of public transparency.
7.3
Communication between Bidders and Awas Bandhu, UP
All communication, unless specified otherwise, on these RFQ CUM RFP Documents to Awas Bandhu, UP shall be addressed to: The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Tel: 0522-2237161 Fax:0522-2612098, E-Mail: [email protected] Web: http://awas.up.nic.in
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All communication to the Bidder shall be sent to the Authorised Representative & Signatory at the addresses mentioned in the covering letters to this RFQ CUM RFP, unless Awas Bandhu, UP is advised otherwise.
7.4
Interpretation of Documents
Awas Bandhu, UP will have the sole discretion in relation to: • The interpretation of this RFP, the Proposals and any documentation provided in support of the Proposals; and • All decisions in relation to the evaluation and ranking of Proposals, whether or not to request for any clarifications or additional information from Bidder in relation to its Proposal and the selection of the Successful Bidder. • Awas Bandhu, UP will have no obligation to explain its interpretation of this RFQ CUM RFP, the Proposals or their supporting documentation and information or to explain the evaluation process, ranking process or the selection of the Successful Bidder.
7.5
Pre-Bid Conference
Deleted
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7.6
7.6.1
Enquiries concerning the RFQ cum RFP / Draft Concession Agreement
UP encourages a careful review of these RFQ CUM RFP Documents and preparation of the observations/ comments by the Bidder. The Bidder should send their comments in writing to Awas Bandhu Awas Bandhu, UP at its discretion, may respond to inquiries submitted by any Bidder.. Such a response will be sent in writing to all the Bidders and will qualify as an “Addendum”. All inquiries should be submitted to the Awas Bandhu, UP in writing by e-mail to [email protected] with a copy marked to [email protected] No interpretation, revision or other communication regarding this solicitation is valid unless in writing and is signed by an officer so designated by the Executive Director of Awas Bandhu, UP. Written copies of Awas Bandhu, UP responses, including a description of the inquiry but without identifying its source, will be sent to all the Bidder(s) and will qualify as an “Addendum”
7.6.2
7.6.3
7.6.4
7.7
7.7.1
Amendment of RFQ cum RFP
On its own initiative or on the basis of the Pre-Bid Conference and any further discussions with any/ all Bidder(s), Awas Bandhu, UP may at its own discretion make changes in the technical/commercial parameters for the Project, which would be common for all the Bidders. Such changes in the technical / commercial parameters of the Project will qualify as an “Addendum”. The Addendum will be posted on the website of Awas Bandhu, UP http://awas.up.nic.in and will be binding on the bidders. Each such Addendum shall become part of the RFQ CUM RFP Documents. In order to offer prospective Bidders a reasonable time to take into account an Addendum while preparing their Proposals, or for any other reason, Awas Bandhu, UP may, at its discretion, extend the Proposal Due Date.
7.7.2
7.7.3
7.8
7.8.1
• •
Submission of Bids
Document Fee
The Bidder shall submit Document Fee of Rs. 25,000/- (Rupees Twenty Five Thousand only) along with the Proposal. The Bid Document Fee shall be in the form of a Demand Draft in favour of Awas Bandhu, UP, payable at Lucknow.
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• •
The Bid Document Fee is non-refundable. Bids not accompanied by Bid Document Fee shall be rejected.
7.9
•
Bid Opening
All Bids received by Awas Bandhu, UP will remain sealed and unopened in Awas Bandhu, UP’s possession until the Proposal Due Date. Awas Bandhu, UP shall open all Bids, received on or prior to the Proposal Due Date mentioned under Schedule of Selection Process or on any date as extended by Awas Bandhu, UP and communicated to the bidders. The Bids shall be opened in the presence of Bidders’ representatives, who choose to attend. Bidders’ representatives attending the Bid Opening shall register to evidence their presence. The following information will be announced at the Bid Opening and recorded: ? Bidder’s names ? Names of Consortium Members After the Bid Opening, information relating to the examination, clarification and evaluation of Bids and recommendations concerning the Bid Award shall not be disclosed.
•
•
7.10 Earnest Money Deposit
• The Bidder shall submit an Earnest Money Deposit (EMD) for an amount of Rs.1,00,56,000/- (Rs. One crore and fifty six Lacs only) along with its Proposal. The Earnest Money Deposit shall be in the form of a Bank Guarantee in favour of Awas Bandhu, UP, payable at Lucknow. The EMD shall be valid for a minimum period of 90 days more than Bid Validity Period. Upon any extension of the Bid Validity Period, the validity of the EMD shall be extended by the corresponding period. Awas Bandhu, UP shall have the right to reject the Proposal, which does not include the Earnest Money Deposit as non-responsive. The EMD of Unsuccessful Bidders, except the second successful bidder will be returned within a period of ten (10) days from the date of acceptance of Letter of Intent by the Successful Bidder. However, the EMD of second successful bidder shall be returned on signing of the concession agreement by the successful bidder. The EMD of the Successful Bidder shall be returned on submission of Performance Security by the Successful Bidder to the Concessioning Authority as per Section 6.24 of this RFQ CUM RFP Document.
•
•
•
•
•
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•
In addition to the above, Awas Bandhu, UP will promptly release EMD of all the Bidders in the event Awas Bandhu, UP decides to terminate the Bidding Process. The EMD shall be forfeited by Awas Bandhu, UP, in any of the following case: ? ? ? ? The Bidder withdraws his bid after the Proposal Due Date Successful Bidder fails to accept Letter of Intent Successful Bidder fails to submit the Performance Security or As per the provisions of Draft Concession Agreement
•
7.11 Performance Security
The Successful Bidder shall for due and faithful performance of its obligations during the Project completion, provide to ADA a performance security of Rs. 5,02,80,000/- (Rupees Five crores two lacs and eighty thousand only) in the form of Bank Guarantee (in the format prescribed in the RFQ CUM RFP) from SBI or any Nationalised Bank or Indian Scheduled Commercial Bank whose networth is not less than Rs. 1000 crores as on 31st March 2008 as per Section 4. The performance security shall be provided within 15 days of issue of Letter of Award by ADA. The Performance Security shall be released to the Successful Bidder as per provisions of the Draft Concession Agreement as follow: 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the issuance of Construction Completion Certificate by the Concessioning Authority. The next 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the start of Commercial operation of all the 300 beds. The balance 50% of the Performance Security in the form of bank guarantee shall remain in force and effect beyond the period of six months from the date of expiry of the Concession period. It shall be duly discharged and released to the Concessionaire beyond the period of six months from the date of the expiry of lease period Concession period and transfer of the Multi specialty hospital to ADA. The performance security in the form of bank guarantee shall be renewed every year beyond the period of six months from the date of the expiry of the Concession Period by the Concessionaire. If the Agreement is terminated due to any event other than a Concessionaire Event of Default, the Performance Security shall, subject to the Concessioning Authority’s right to receive or recover amounts, if any, due from the Concessionaire under this Agreement, be duly discharged and released to the Concessionaire. Upon occurrence of a Concessionaire Default, the Concessioning Authority shall, without prejudice to its other rights and remedies hereunder or in law, be entitled to invoke and appropriate the relevant amounts from the Performance Security as Damages for such Concessionaire Default. Upon such invocation and appropriation from the
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Performance Security, the Concessionaire shall, within 15 (fifteen) days thereof, replenish, in case of partial appropriation, the Performance Security to its original level, and in case of appropriation of the entire Performance Security provide a fresh Performance Security, as the case may be, and the Concessionaire shall, within the time so granted, replenish or furnish fresh Performance Security as aforesaid failing which the Concessioning Authority shall be entitled to terminate this Agreement in accordance with Article 13 of the Concession Agreement. In case the successful bidder fails to furnish the Performance Security within the stipulated time as mentioned herein, the LOA shall stand void and LOI may be issued to the second successful bidder.
7.12 Sources of Funds
The responsibility to raise funds for the Project would rest with the Successful Bidder.
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8
8.1
DESCRIPTION OF THE SELECTION PROCESS
CRITERIA FOR EVALUATION
8.1.1 Evaluation Parameters The Bidder's competence and capability is proposed to be established by the following parameters: (a) Technical Experience (b) Financial capability factor, in terms of: i. Turn over ii. Net worth iii. Operating profits 8.1.2 On each of these parameters, the Bidder would be required to meet the evaluation criteria as detailed in this Section . Bidders meeting all the criteria only will be qualified for further evaluation of the Proposal. 8.1.2 Eligible Experience Technical Experience For the purpose of this RFQ cum RFP, the applicant which could be single entity or the consortium shall be evaluated on the following: (i) (ii) Development or construction of core infrastructure projects (either individually or as a consortium member) Development or construction of similar Infrastructure projects ( either individually or as a consortium member) each having a minimum project cost of Rupees 10 crores
Eligible project: a) Projects awarded/awarded and under execution/completed during the last seven financial years, not before 31st March 2001, shall only be considered. b) Only eligible projects should be considered for category (i) above for estimation of the technical experience. An eligible project would have minimum project cost of at least Rupees 13.00 crores. For such category (i) evaluation, core infrastructure projects would mean national highways and expressway, airports, refineries and pipelines thereof, railways, ports, power, telecom, industrial parks, SEZs, Group Housing and Integrated/Hi-tech Township. (c)More weightage will be given to experience of similar kind of infrastructure projects than to experience of infrastructure projects. Similar infrastructure sector shall mean Hospitals and Medical Institutions of 100 or more beds. (d) Experience as a consortium member will be considered in proportion to the equity holding in the project at the time of execution /construction of the Project. Documentary evidence in the form of a CA certificate (Appendix 4) must be submitted along with the proposal:
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a) a certificate from the appropriate authorities of respective clients should be submitted in support of the above in case of completed projects. b) Relevant pages of the Contract Agreement in projects which are awarded and under execution as per clause 8.1.2 (a). Relevant pages shall mean the Preamble of this CA detailing the Parties and the last pages detailing the signatories. c) A copy of the Work Order/Letter of Award in cases where the work has been awarded within three months before the RFQ CUM RFP application due date. 8.1.3 Details of Experience The Bidder should furnish details of technical experience as on the date of submission of RFQ cum RFP as per Appendix 4, Bid Response Sheet No. 1. The Bidder must provide the necessary project specific information as per Appendix 4, Bid Response Sheet No. 2. 8.1.4 Financial Capability
The financial capability of the bidder / consortium will be evaluated on the basis of (a) Turnover (b) Net Worth and (c) Operating profits The Bidders should provide information regarding the above based on audited annual accounts. The Application must be accompanied by the audited Balance Sheet and Profit and Loss Account of the Bidder (of each member in case of a consortium) as per Appendix 5 for the last five (5) Financial Years not prior to 2002-03. 8.1.5 Evaluation Criteria for Financial Capability For the purpose of Qualification, the applicant – a single entity or a consortium should demonstrate the Threshold Financial Capability measured on the following criteria: 1. 2. 3. 4. Minimum Turnover of Rs. 34 crores in each of the last three financial years not earlier than 2004-05 Minimum Net worth of Rs. 20 Crores as on 31st March 2008 as certified by Chartered Accountant. Minimum Average Operating profits of Rs 10 crores for 3 out of last 5 years not prior to 2002-03 Single entity bidder and all members of the consortium, if applicable, should be profit-making concerns for the last 3 yrs not prior to 2004-05.
8.1.6 Special Conditions for a Consortium In case the Bidder is a Consortium, turnover, net worth and operating profits would be taken as an arithmetic sum of net worth, turnover and operating profits of each member of the Consortium, calculated in the ratio of their stake in the consortium/JV. The Consortium would be required to meet the threshold criteria on the basis of aggregate figures subject to provisions of this Clause .
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8.1.7 Evaluation methodology The technical and financial capacity of the bidder will be evaluated as per following: S.No 1. 1a. Criteria Technical criteria Core infrastructure Marks 65% 30 marks Marking System Number of eligible 3 marks for initial projects – 15 marks project and 1.5 marks for every addl project. Cumulative cost- 15 1.5 marks for initial Rs marks 13 crores and 0.75 marks for every addl. comleted Rs. 13 crs. or 0.50 marks for every other addl. Rs. 13 crs. Number of eligible 4 marks for initial projects – 20 marks project and 2 marks for every addl project. Cumulative cost- 15 3 marks for initial Rs marks 10 crores and 2 marks for every completed addl Rs. 10 crs or 1.5 marks for every other addl. Rs. 10 crs. 10 marks for the initial Rs 20 crores and 5 marks for addl Rs. 20 crs 7 marks for the initial Rs 34crores and 3 marks for addl Rs 34 crs 7 marks for the initial Rs 10 crores and 3 marks for addl Rs. 10 crs
1b.
Similar infrastructure
35 marks
2 2a.
Financial criteria Networth
35% 15 marks
2b.
Turnover
10 marks
2c.
Average Operating profits
10 marks
8.1.8 For evaluation of technical experience as per clause 3.2.1 and of financial capability as per clause 3.5, the financial and technical capabilities of the group companies/associates shall also be considered (for Projects costing Rs.300.00 cr or more). For these purposes group companies/associates shall mean the following “For the purposes hereof, associate means, in relation to the applicant/consortium member a person who controls and is controlled by or is under the common control with such applicant/consortium member. As used in this definition, the expression ‘control’ means, with respect to a person, which is company or corporation, the ownership, directly or indirectly of more than 50% of the voting shares of such person, and
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with respect to a person which is not a company or corporation, the power to direct the management and policies of such a person, whether by operation of law or by contract or otherwise”. 3.7.2.1 In case the RFQ CUM RFP applicant claims the technical and/or financial capacity of its group companies/associates, the applicant shall necessarily submit documentary evidence in proof of such claims. Such documentary evidence shall consist of CA certificates to support such capacity and also to establish requisite “Control” relationship as defined in 3.7.2 above. 8.1.9 The scores for the technical and financial capacity evaluated as per clause 3.7.1 shall be added to arrive at combined score of each applicant against maximum total marks of 100. Applicants scoring 50% or more in the combined scores shall be eligible for opening of the financial proposal.
8.2
Evaluation of Financial Proposal (Assessment of Envelope B)
Financial Proposal of the Bidders only who have secured 50 % or more marks (Clause 8.1.7) on the evaluation of envelop A would be evaluated. The evaluation criteria for assessment of the Financial Proposals are described in Section 10 of this RFQ cum RFP. In case of ambiguity between the amount in words and figures the former shall prevail.
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9
RULES REGULATING THE CONSORTIUM
The objective of this stage is to outline the Rules regarding the Consortium. The Envelope A shall contain the information in respect of the Bidder/Consortium as per Clause 6.15 of this RFQ CUM RFP document. Following are the rules which shall guide the operation of the Consortium:
9.1 Consortium of Bidders
9.1.1 Rules Regulating the Participation of a Consortium of Companies
Awas Bandhu, UP may also consider a bid submitted by a consortium of companies subject to the following conditions: 1. The Consortium Members should not exceed four. 2. The foreign construction company / Developer may apply directly for the project or in association with Indian Partner subject to the prevailing GoI, FDI and Indian Laws. 3. The members of the Consortium must form a Special Purpose Vehicle (SPV) and submit an MoU to that extent as per Clause 6.2.3 (f) below. 4. The commercial arrangements and roles and responsibilities between the consortium partners should be specified in Memorandum of Understanding and duly executed copy of MOU should be submitted along with the proposal. The MOU to be entered into between the Consortium Members as per Appendix 10 of this RFQ CUM RFP Document shall reflect the above. 5. The members of the consortium shall designate among themselves one member as “Lead Consortium Member”. 6. Lead Consortium Member shall hold a minimum of 51% equity in the SPV and each of the other Consortium Member shall hold a minimum of 11% in the SPV. 7. The Members of the Consortium shall execute Power of Attorney as per the format enclosed in Appendix 1B of RFQ cum RFQ CUM RFP Document. 8. A bidder who has applied for a project in its individual capacity or as a part of a consortium cannot participate as a Member of any other Consortium applying for this Project.
9.1.2
Change in Composition of Consortium
There should be no change in the consortium structure after the submission of bid. If there are any changes in the consortium structure by any bidder, Awas Bandhu, UP reserves the right not to consider the change in the consortium and to reject such a bid. No change in Consortium Members shall be allowed till the completion of the project or a minimum of 5 years ( which ever is later). However, the Lead Consortium Member shall not be allowed to be changed over the entire Concession
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Period and shall continue to hold 51% stake in the consortium till the start of Commercial Operations of all 300 beds. The Lead Consortium member shall be allowed to dilute the stake after the commercial operations date with the approval of the Concessioning Authority such that the stake of the Lead Consortium Member in the consortium shall not fall below 26% at any time till the end of the Concession Period.
9.1.3
Other Conditions in Respect of Consortium
Each Consortium Member shall have a minimum of 11% stake in the SPV formed. None of the Consortium Member shall be allowed to dilute its stake till the completion of the project or a minimum of 3 years (whichever is later). Lead Consortium Member shall invest minimum 51% of the equity towards the project. Lead Consortium Member shall not be allowed to dilute its stake to a level below 51% till the start of Commercial Operations of all the 300 beds The Lead Consortium Member shall be allowed to dilute the stake after the commercial operations date with the approval of the Concessioning Authority such that the stake of the Lead Consortium Member in the consortium shall not fall below 26% at any time till the end of the Concession Period. Any change in Consortium members may be allowed only if equal or better replacement is there. However, any change in consortium shall be at the discretion of the Concessioning Authority. The Concessionaire may be allowed to novate the agreement after completion of three consecutive years of commercial operations and realization of the full project land value ( at circle rates) by the Concessioning Authority. The Concessionaire shall submit the details of the proposed novatee along with its other qualifications (financial and technical capabilities) to the Concessioning Authorities for its due approval. Novatee, the Concessionaire and the Concessioning Authority shall enter into a tripartite agreement. Concessioning Authority shall reserve the right to reject any novation at any time. No further novation shall be permitted.
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10 METHODOLOGY & CRITERIA FOR EVALUATION OF FINANCIAL BID (ENVELOP B)
10.1 Financial Proposal Evaluation
• This part of the Request for Proposal provides information on the methodology that will be used to evaluate the Financial Proposals received. The Project will be awarded to such Eligible Bidder, which submits a responsive Bid and offers to enter into a Draft Concession Agreement on the best financial terms with ADA. These RFQ CUM RFP Documents stipulate the minimum qualification for the Project. These RFQ CUM RFP Documents may be amended or technical and financial parameters of the Project may be changed by Awas Bandhu, UP by issue of an Addendum. Such an Addendum will form part of these RFQ CUM RFP Documents and would be common for all the Bidders. Bid Evaluation Committee reserves the right to reject the Proposals, which do not conform to the provisions stipulated in the RFQ CUM RFP Documents. Financial Proposal of only the Bidders who have achieve 50% or more marks after evaluation of Envelope A, would be opened and evaluated. The Financial Proposals of the non-responsive Bidders would be returned to the respective Bidders unopened. Bid Evaluation Committee shall evaluate and submit its recommendations to the competent authority.
•
•
•
•
10.1.1 Responsiveness of Financial Proposal
? BEC through Awas Bandhu, UP will open Envelope ‘B’ of only who have achieved on 50% or more marks after evaluation of Envelope A as per Section 8.1.7 of this document. Any bid containing caveats/ deviations from RFQ cum RFP Documents is liable to be rejected by BEC/ Awas Bandhu, UP. Bidders shall be ranked as per the percentage share of the total revenue earned to be given to the ADA annually starting eleventh year (from the year of commercial operations of the first 150 beds) onwards till the end of the concession period ( as quoted by them. The proposal of the bidder quoting the highest percentage share of total revenue earned shall be considered as the proposal having highest financial score. The proposal with highest financial score would be ranked first.
?
10.1.2 Determination of Preferred Bidder
• Awas Bandhu, UP shall issue a Letter of Intent to the Successful Bidder after obtaining approval from the Competent Authority which needs to be accepted within 7 days of issuance of Letter of Intent.
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• •
ADA shall issue a Letter of Award (LOA) after getting the approval of the Board to the successful bidder within 7 days of issuance of LOI by Awas Bandhu, UP. The Successful Bidder shall enter into Concession Agreement with ADA for the implementation of the project within 30 days of issuance of LOA.
•
The successful Bidder shall be required to give performance security before signing of the Concession Agreement within 30 days of issue of Letter of Award. If the Successful Bidder fails in entering into contract (Concession Agreement) as required without giving the required clarifications to the satisfaction of Awas Bandhu UP, Awas Bandhu UP reserves the right to begin negotiations with the next highest ranked Bidder and so on.
•
Awas Bandhu, UP also reserves the right to reject any Proposal if: At any time, a material misrepresentation is made or uncovered, or The Bidder does not respond promptly and thoroughly to the requests for supplementary information required for evaluation of the Proposal. The Proposal deviates from the commercial parameters of these RFQ CUM RFP Documents.
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APPENDICES
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APPENDIX 1A FORMAT FOR POWER OF ATTORNEY FOR SIGNING PROPOSAL (On a Stamp Paper of appropriate value) POWER OF ATTORNEY Know all men by these presents, we ____________ (name and address of the registered office) do hereby constitute, appoint and authorize Mr./Ms. _____________________ (name and address of residence) who is presently employed with us and holding the position of __________________ as our attorney, to do in our name and on our behalf, all such acts, deeds and things necessary in connection with or incidental to our proposal for the [insert name of project] on Design, Build, Finance, Operate and Transfer (DBFOT) basis in the state of Uttar Pradesh, including signing and submission of all documents and providing information/ responses to Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh, (ABUP), representing us in all matters before GOUP, and generally dealing with ABUP in all matters in connection with our proposal for the said Project. We hereby agree to ratify all such acts, deeds and things lawfully done by our said attorney pursuant to this Power of Attorney and that all such acts, deeds and things lawfully done by our aforesaid attorney shall and shall always be deemed to have been done by us. For -----------------------(Signature) (Name, Title and Address) Accepted ________________ (Signature) (Name, Title and Address of the Attorney) Company seal & stamp
Notes: 1. To be executed by the sole Bidder or the Lead Member in case of a Consortium duly supported .by a Board Resolution 2. 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, where required, the executants(s) should submit for verification the extract of the charter documents and documents such as a resolution / power of attorney in favour of the Person executing this Power of Attorney for the delegation of power hereunder on behalf of the Bidder.
3.
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APPENDIX 1B FORMAT FOR POWER OF ATTORNEY FOR LEAD MEMBER OF CONSORTIUM (On a Stamp Paper of appropriate value) POWER OF ATTORNEY
Whereas Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh., (ABUP) has invited Proposals from interested parties for the [insert name of project] on Design, Build, Finance, Operate and Transfer (DBFOT) basis ("the Project"). Whereas, the members of the Consortium are interested in bidding for the Project and implementing the Project in accordance with the terms and conditions of the Bid Document and other connected documents in respect of the Project, and Whereas, it is necessary under the Bid Document for the members of the Consortium to nominate one of them as the Lead Member with all necessary power and authority to do for and on behalf of the Consortium, all such acts, deeds and things as may be necessary in connection with or incidental to the Consortium’s proposal for the Project. NOW THIS POWER OF ATTORNEY WITNESSETH THAT: We, M/s. _________________, and M/s. ________________ (the respective names and addresses of the registered office) do hereby constitute, appoint and authorize M/s. __________________________ as the Lead Member of the Consortium and as our attorney, to do on behalf of the Consortium, all or any of such acts, deeds or things as may be necessary in connection with or incidental to the Consortium’s proposal for the Project, including submission of application/ proposal, participating in conferences, responding to queries, submission of information/ documents and generally to represent the Consortium in all its dealings with Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh., (ABUP), or any other Government Agency or any person, in connection with the Project until culmination of the process of bidding and thereafter till the Concession Agreement is entered into with Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh., (ABUP). We hereby agree to ratify all such acts, deeds and things lawfully done by Lead Member as our said attorney pursuant to this Power of Attorney and that all acts deeds and things lawfully done by our aforesaid attorney shall and shall always be deemed to have been done by us/Consortium.
Dated this _______ Day of ________ 200_. (Executants) (To be executed by all the members of the Consortium) Company seal & stamp
Note: 1. The mode of execution of the Power of Attorney should be in accordance with the procedure, if any, laid down by the applicable law and the charter documents of the executant(s) and when it is so required the same should be under common seal affixed in accordance with the required procedure. The executant(s) should submit for verification the extract of the charter documents and documents such as Board Resolution and Power of Attorney in favour of the person executing this Power of Attorney in favour of the Lead Member.
2.
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APPENDIX 2 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
3
Brief description of the Company including details of its main lines of business and proposed roles and responsibilities in this Project.
Name, Designation, Address and Phone Nos. of Authorized Signatory of the Bidder (a) Name: (b) Designation: (c) Company: (d) Address: (e) Telephone No: (f) E-mail Address: (g) Fax No: Details of individual (s) who will serve as the point of contact / communication for ABUP, within the Company (a) Name: (b) Designation: (c) Address: (d) Telephone No. (e) E-mail address: (f) Fax No. In case of Consortium: The information above (1-4) should be provided for all the Members of the Consortium Information regarding role of each Member should be provided as per table below:
4
5 (a) (b)
1.1.1
1.1.2
Name of Member
1.1.3
Role of the Member*
1 2
Specify whether Lead Member, Associate Member
(Signature of Authorised Signatory) Company seal & stamp
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[On the Letter Head of the Bidder (in case of Single Bidder) or Lead Member (in case of a Consortium)]
APPENDIX 3 FORMAT FOR LETTER OF APPLICATION
Date: -----------The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India [insert name of project] on Design, Build, Finance, Operate and Transfer (DBFOT) basis Sir, Being duly authorized to represent and act on behalf of _________________ (hereinafter referred to as "the Bidder"), and having reviewed and fully understood all of the qualification requirements and information provided, the undersigned hereby expresses it’s interest and apply for qualification for the [insert name of project]. We are enclosing our Proposal, in one Original and two Copies, with the details as per the requirements of the Bid Document, for your evaluation. The undersigned hereby also declares that the statements made and the information provided in the Proposal are complete, true and correct in every detail. We confirm that the application is valid for a period of 180 days from the due date of submission of application and unconditional. We hereby also confirm the following: 1. The Proposal is being submitted by (name of the biding Company/Lead Consortium member) who is the Bidding Company/the Lead Consortium Member of the Bidding Consortium Comprising (mention the names of the entities who are the Consortium Members), in accordance with the conditions stipulated in the RFQ CUM RFP. As the Bidding Company/Lead Consortium Member (in case of a Bidding Consortium), we hereby confirm to abide by the roles and responsibilities assigned to us as per the MoU between the Consortium Members and as outlined in this RFQ CUM RFP. We have examined in detail and have understood the terms and conditions stipulated in the RFQ CUM RFP Document issued by Awas Bandhu, UP and in any subsequent communication sent by Awas Bandhu, UP. We agree and undertake to abide by all these terms and conditions. Our Proposal is consistent with all the requirements of submission as stated in the RFQ CUM RFP or in any of the subsequent communications from Awas Bandhu, UP. We confirm that there are no conditions in “Envelope B: Financial Proposal”. The information submitted in our Proposal is complete, is strictly as per the requirements stipulated in the RFQ CUM RFP, and is correct to the best of our knowledge and understanding. We would be solely responsible for any errors or omissions in our Proposal.
2. 3.
4. 5.
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6. 7.
We confirm that we have studied the provisions of the relevant Indian laws and regulations required to enable us to prepare this Financial Proposal and as required to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra, in the event that we are finally selected. We confirm that all the terms and conditions of the Proposal are firm and valid for acceptance for a period of 120 days from the Proposal due date.
Our PAN number is ----------------Our TAN number is ----------------Thanking You, Yours Sincerely, For and on behalf of Signature Name of the Person Designation : (name of the Bidding Company / Lead Consortium Member and the Company Seal) : (Authorised Representative & Signatory) : :
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APPENDIX 4 INFORMATION RELATED TO EXPERIENCE GUIDELINES 1. Member Code : NA= Not Applicable in case of a single entity Bidder, LM =Lead member, AM= Associate Member 2. The Chartered Accountant issuing the certification for Experience of the Bidder must hold a valid Certificate of Practice. 3. Any Bidder consisting of a Single Entity should fill in details as per the row titled Single Entity Bidder and ignore the other rows mentioned below. In case of a Consortium, the details need to be provided as per the lower rows and the row titled Single Entity Bidder may be ignored.
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FORMAT FOR ESTABLISHING EXPERIENCE OF BIDDER BID RESPONSE SHEET 1 Authority for whom carried out Equity holding at the time of execution/construction
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Type: Similar or core infrastructure
Project Cost Rs. crores
Date of
Name of the Project
Total
Note: 1. 2. 3.
Only the eligible projects that satisfy technical criteria shall be included. All the Financial numbers are to be given in INR The format shall be filled up for each member of the consortium and as a cumulative experience for the consortium
(Signature of Authorised Signatory)
Company seal & stamp
Signature , Name, Address and Membership No. of Chartered Accountant
RFQ cum RFP – Volume I- Instruction to Bidder
Estimated Marks
Commencement
Completion
Location
Award
S.No
RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital At Shastripuram In Agra
Bid Response Sheet 2
Name of Bidder: 1. 2. 3. 4. 5. 6. 7. 8. 9 10.
Member Code: Category: Name of Contract Country Name of Employer Employer’s address, telephone and fax no.) Role (strike out whichever is not applicable) Developer/Prime contractor/ Subcontractor Value of the Total Contract (in specified currencies and INR) Value of the Bidder’s Contract (in specified currencies and INR) Certified Billings till date (in specified currencies and INR and exchange rate) Date of Award Date of Commencement of Project/ Contract Date of Completion/ Commissioning
(Signature of Authorised Signatory) Company seal & stamp
Instructions 1. Information provided in this section is intended to serve as a back up for information provided in accordance with Appendix 4, Bid Response Sheet 1. 2. The Projects cited must comply with the eligibility criteria specified in Clause 3.2.3. 3. A separate sheet should be filled for each of the Eligible Projects.
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APPENDIX 5 FORMAT FOR ESTABLISHING FINANCIAL CAPABILITY OF THE BIDDER Bid Response Sheet 3 Format for Financial Capability of Single Entity Bidder Turnover, Net Worth and Net Cash Accruals Operating Profits(OP) (Rs. Crores) Year Year Year Year Turnover ( Rs. Crores) Year Year
Net Worth (Rs. Crores ) As on 31.3.08
(Signature of Authorised Signatory) Company seal & stamp Signature , Name, Address and Membership No. of Chartered Accountant
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BID RESPONSE SHEET 4 Format for Financial Capability of Consortium Turnover, Net Worth and Net Cash Accruals Turnover ( Rs Crores) Bidder Type Equity share (%) Year Year year Net Worth (Rs. Crores) As on 31st March 2008 Year
Operating Profit (OP) (Rs. crores) Year Year Total CA
Consortium Member 1 Consortium Member 2 Consortium Member …. Total Aggregate Turnover = Rs ---------------- crores Aggregate Net worth = Rs ________ crores Aggregate Operating Profit = Rs ______ crores
(Signature of Authorised Signatory) Company seal & stamp
Signature , Name, Address and Membership No. of Chartered Accountant
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APPENDIX 7
GUIDELINES FOR PROVIDING INFORMATION RELATED TO FINANCIAL CAPABILITY 1. The Bidder should provide the Financial Capability based on its own audited financial statements. Financial capability of the Bidder's parent company or its subsidiary or any associate company (who are not Members of the Consortium) will not be considered for computation of the Financial Capability of the Bidder. 2. Member Code LM = Lead member, AM = Associate Member 3. Instructions for calculation of Financial Capability: (a) Operating profit = Income before interest and tax (b) Net Worth = Subscribed and Paid-up Equity (including Share Premium, if any) + Reserves - Revaluation Reserves - Miscellaneous expenditure not written off-Deferred Revenue Expenditure-Deficit in Profit & Loss Account (c) The financial year would be the same as followed by the Bidder for its annual report. Year 1 will be the last Financial Year. Year 2 shall be the year immediately preceding Year 1. (d) The Bidder shall provide audited Annual Reports as required under this Bid Document. For a Consortium, audited Annual Reports of all Members shall be provided. (e) In case of a Consortium comprising of members with holdings in each other, the cross holdings between the group companies comprising part of the Consortium will be deducted for the purpose of Net Worth calculations. 4. Financial details of the Bidder. If the Bidder is a consortium the Financial Details of all the members. The Financial Details should be provided in the following manner.
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Name of Member: SN Particulars as per the Audited Balance Sheet Year 3
Role of Member: Year 2 Year 1 TOTAL
1 2 3 4 5 6 7 8 9 10 11
Profit After Tax (PAT) Depreciation Other non-cash expenditure Subscribed and Paid up Equity Reserves Revaluation reserves Miscellaneous expenditure not written off Deferred Revenue Expenditure Deficit in Profit & Loss Account Operating profit ( Profit before interest and tax) Net Worth = (4+5-6-7-8-9)
(Signature of Authorised Signatory) Company seal & stamp Signature , Name, Address and Membership No. of Chartered Accountant
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APPENDIX 8 FORMAT FOR ANTI-COLLUSION CERTIFICATE [To be submitted on the letter heads of the bidders separately] Anti-Collusion Certificate Date: -----------The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India [insert name of project] on Design, Build, Finance, Operate and Transfer (DBFOT) basis Sir, We hereby certify and confirm that in the preparation and submission of this Bid, 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, restrictive or monopolistic trade practice. 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 Bid. Dated this ______________ Day of ________________, 200_ Name of the Bidder Signature of the Authorised Person Note: To be submitted by each Member in case of Consortium.
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APPENDIX 9A FORMAT FOR PROJECT UNDERTAKING [To be submitted on the letter heads of the bidders separately] The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India [insert name of project] on Design,Build, Finance, Operate and Transfer (DBFOT) basis Sir, We have read and understood the Bid Document in respect of the captioned project provided to us by the Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh We hereby agree and undertake as under: (a) Notwithstanding any qualifications or conditions, whether implied or otherwise, contained in our Bid we hereby represent and confirm that our Bid is unqualified and unconditional in all respects. We are not barred by the Government of India or the Government of Uttar Pradesh or their Departments or Agencies from participating in any projects (DBFOT or otherwise). Dated this ___________________ Day of _______________, . Name of the Bidder _________________________________ Signature of the Authorised Person Company seal & stamp
(b)
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APPENDIX 9B FORMAT FOR PROJECT UNDERTAKING [In case of Consortium] [To be submitted on the letter heads of the bidders separately] The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India [insert name of project] on Design,Build, Finance, Operate and Transfer (DBFOT) basis Sir, We have read and understood the Bid Document in respect of the captioned project provided to us by the Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh We hereby agree and undertake to be an exclusive member of the consortium and not a member of any other consortium nor an independent Bidder, bidding for this project and has submitted only one (1) Application in response to this RFQ CUM RFP
Dated this ___________________ Day of _______________, . Name of the Bidder _________________________________ Signature of the Authorised Person
Company seal & stamp
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Exhibit 2
Principles of the Memorandum of Understanding to be executed between the Members of a Consortium
In case of a Bidding Consortium, the principles according to which the Memorandum of Understanding (MoU) shall be executed between/among the Consortium Members are stated below: 1. The MoU should clearly specify the roles and responsibilities of each of the Consortium Members, along with their proposed equity contribution. It is expected that the individual members have role definitions not conflicting with those of the other Consortium Members. The MoU should clearly designate one of the Consortium Members as the Lead Consortium Member. The Lead Consortium Member shall be responsible for: a. Tying up finances for the Project b. Liasoning with the lending institutions and mobilizing debt resources for the Project. c. Ensuring the individual and collective commitment of each of the Consortium members in honouring the Developer’s obligations towards ADA. The Lead Consortium Member would be responsible for the overall execution of the Project. All Consortium Members shall be jointly and severally responsible for the same. The MoU shall be duly signed by each of the Consortium Members The MoU should be executed an appropriate stamp paper The MoU should be specific to this Project The MoU should be valid for a minimum period of twelve months from the Last Date for submission of the Request for Proposal. The validity period of the MoU should be extendible on the original terms, if required by ADA. MoU should clearly specify that in case of award of the project each consortium member will invest at least 11% equity for project.
2. 3.
4. 5. 6. 7.
8.
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APPENDIX 10 FORMAT FOR MEMORANDUM OF UNDERSTANDING (MOU)
(On Non – judicial stamp paper of Rs 100/- or such appropriate document duly attested by notary public)
This Memorandum of Understanding (MOU) entered into this _____day of _______ 2008 at ______ Between _______________(hereinafter referred as”________”) and having office at _______, India Party of the First Part 2.1 And ________(hereinafter referred as”__________”) and having office at ____________, India Party of the Second Part The parties are individually referred to as Party and collectively as Parties. WHEREAS Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh, (ABUP) has invited RFQ cum RFP from entities interested in [insert name of project] Project. AND WHEREAS the Parties have had discussions for formation of a Consortium for bidding for the said Project and have reached an understanding on the following points with respect to the Parties’ rights and obligations towards each other and their working relationship. IT IS HEREBY AS MUTUAL UNDERSTANDING OF THE PARTIES AGREED AND DECLARED AS FOLLOWS: 1. That the Parties will form a Special Purpose Vehicle (SPV) with the shareholding commitments expressly stated. The said SPV shall not undertake any other business during the Concession Period, to domicile the Project prior to the start of implementation of the Project. 2. That the equity share holding of the Parties in the issued and paid up capital of the SPV shall not be less than as Specified Under Evaluation Criteria Mentioned in RFQ cum RFP Document during the Concession Period. 3. That M/s____________, and M/s____________, who are Members of the Consortium commit to hold the following equity stake in the SPV which are in line with the requirements of Clause 3 of Evaluation criteria of this Document at all times during the Lease Period 2.2 2.4 2.6 Name of Member 1. M/s. 2. M/s. 2.3 2.5 2.7 Type of Member % of shareholding
4. That any dilution in the equity holding by the Parties in the SPV shall be as per the provisions of the Concession Agreement that will be executed on award of the Project to us.
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5. However the parties undertake that there shall be no changes in respect of the lead member in case of a consortium till the execution of the concession agreement. 6. That the Parties shall carry out all responsibilities as Concessionaire in terms of the Concession Agreement. 7. That the roles and the responsibilities of each Party at each stage of the Bidding shall be as follows: 2.8 Name of Member 1. M/s. 2. M/s. 2.9 Type of Member Role & Responsibility
2.10 2.12
2.11 2.13
8. That the Parties shall be jointly and severally liable for the execution of the Project in accordance with the terms of the Concession agreement to be executed on award of the Project. 9. That the Parties affirm that they shall implement the Project in good faith and shall take all necessary steps to see the Project through expeditiously. They shall not negotiate with any other party for this Project. 10. That this MOU shall be governed in accordance with the laws of India and courts in Lucknow shall have exclusive jurisdiction to adjudicate disputes arising from the terms herein. In witness whereof the Parties affirm that the information provided is accurate and true and have caused this MOU to be duly executed on the date and year above mentioned. Witness: 1. 2. First Party Second Party
Company seal & stamp
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APPENDIX-12 Consultancy and Success Fee Commitment to SREI Infrastructure Finance Ltd in consortium with DHV India Pvt Ltd The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Uttar Pradesh Sub: Commitment to pay the Success Fee and Consultancy Fee to SREI Infrastructure Finance Ltd in association with DHV India Pvt Ltd Sir, We ___________( the “Member”), /[ our consortium consisting of the following members ( the “Member”)]
1 2 3
[Lead party] [ ] [ ]
Have /[Has] submitted our/ [its] Bid for the development of Multi-Specialty Hospital at Shastripuram on Design Build Finance Operate and Transfer basis in Agra. We hereby write to inform you that if the Single Entity / Consortium is selected as the successful bidder for implementing the project, the Concessionaire shall pay SREI Infrastructure Finance Ltd in consortium with DHV India Pvt Ltd a Success fee at the rate of 1% of the cost of the project (clause 5.4) as per clause 6.4. The Demand Draft in favour of SREI Infrastructure Finance Ltd for the said fee shall be handed over to Awas Bandhu UP before the signing of the Concession Agreement. The Consultancy Fee of Rs. 1,00,000/- (Rupees One Lakh only) paid by Awas Bandhu to the Consultants will be reimbursed to Awas Bandhu, UP within 2 weeks of receipt of invoice from Awas Bandhu, UP.
SIGNATURE _____________ NAME _____________
DESIGNATION _____________ COMPANY SEAL COMPANY ______________ DATE _______________
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APPENDIX-13 Format of Letter of Acceptance (The Letter of Acceptance is to be submitted by EACH Consortium Member of the Bidding Consortium) Date: Place: The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Uttar Pradesh Sub: Proposal for selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra Dear Sir, This has reference to the Proposal being submitted by (name of the Lead Consortium Member of the Bidding Consortium), as Lead Consortium Member of the Bidding Consortium comprising (mention name(s) of the Consortium Members) in respect of selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra in response to the RFQ cum RFP Document issued by Awas Bandhu, UP. We hereby confirm the following: (a) We (name of the Consortium Members furnishing the Letter of Acceptance), have examined in detail and have understood and satisfied ourselves regarding the contents including in respect of the following: a. The RFQ cum RFP Document issued by Awas Bandhu, UP; b. All subsequent communication between Awas Bandhu, UP and the Bidder, represented by (Mention name of the Lead Consortium Member) c. The Proposal being submitted by (name of the Lead Consortium Member) (b) We agree to abide by the terms and conditions of the RFQ CUM RFP Document and the Proposal being submitted by the Lead Consortium Member in respect of the Project. (c) We also reaffirm that (name of the Lead Consortium Member) continues to be the Lead Consortium Member and that (please give name, designation and address of authorized representative and signatory here) designated as the authorized representative and signatory of the Lead Consortium Member of the Bidding Consortium is the authorized representative and signatory in respect of all matters concerning our Proposal for this Project and contractual commitments thereof. Thanking You, Yours Sincerely,
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For and on behalf of Signature Name of the Person Designation
: (name of the Bidding Company / Lead Consortium Member and the Company Seal) : (Authorised Representative & Signatory) : :
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APPENDIX-14 Format of Letter of Commitment (The Letter of Commitment is to be submitted by EACH Promoter(s) and/or Associate(s) and/or Subsidiary (ies) of the Bidding Company / Consortium Members of the Bidding Consortium whose strength have to be credited for) Date: Place: The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Uttar Pradesh Sub: Proposal for selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra Dear Sir, This has reference to the Proposal being submitted by (name of the Lead Consortium Member of the Bidding Consortium), as Lead Consortium Member of the Bidding Consortium comprising (mention name(s) of the Consortium Members) in respect of selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra in response to the Request for Proposal (“RFQ CUM RFP”) Document issued by Awas Bandhu, UP. We hereby confirm the following: 1. We (name of the Promoter/Affiliate/Subsidiary), have examined in detail and have understood and satisfied ourselves regarding the contents including in respect of the following: a. The RFQ CUM RFP Document issued by Awas Bandhu, UP; b. All subsequent communication between Awas Bandhu, UP and the Bidder, represented by (name of the Bidding Company or of the Lead Consortium Member in case of a Bidding Consortium); c. The Financial Proposal being submitted by (name of the Bidding Company or of the Lead Consortium Member in case of a Bidding Consortium) 2. We agree to abide by the terms and conditions of the RFQ CUM RFP Document and the Proposal being submitted by the Bidding Company / Lead Consortium Member in respect of the Project. 3. We also reaffirm that (please give name, designation and address of authorized representative and signatory here) designated as the authorized representative and signatory of the Bidding Company / Lead Consortium Member of the Bidding Consortium is the authorized representative and signatory in respect of all matters concerning our Proposal for this Project and contractual commitments thereof. Thanking You, Yours Sincerely,
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For and on behalf of Signature Name of the Person Designation
: (name of the Bidding Company / Lead Consortium Member and the Company Seal) : (Authorised Representative & Signatory) : :
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APPENDIX-15 Financial Proposal (Format for Information Submission) (To be provided on the letterhead of the Bidder) Date: Place: The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Uttar Pradesh Dear Sir, Sub: Proposal for selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra 1. We the undersigned Bidder, submit the following as our Financial Proposal in response to the RFQ cum RFQ CUM RFP issued by Awas Bandhu, UP. -------- % ( ---------- percentage) share of total revenue earned to be given to ADA annually starting eleventh year (from the year of commercial operations of the first 150 beds) onwards till the end of the Concession Period in form of Demand Draft in favour of Agra Development Authority payable at Agra as consideration to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram on the plot of land provided in Agra. 2. We confirm that the Financial Proposal conforms to all the terms and conditions stipulated in the Request for Proposal Document. 3. We confirm that our Financial Proposal is FINAL in all respects and contains NO conditions. 4. We confirm that in the event of more than one Responsive Bidders quoting the same lumpsum value, Awas Bandhu, UP shall break the tie by way of draw between such Bidders. 5. We confirm that, the information submitted in our Financial Proposal is complete and is correct to the best of our knowledge and understanding. We would be solely responsible for any errors or omissions in our Proposal. 6. We confirm that we have studied the provisions of relevant Indian laws and regulations required to enable us to prepare this Financial Proposal and as required to design, build, finance, operate and transfer the Project, in the event that we are finally selected. Thanking You, Yours Sincerely, For and on behalf of Signature Name of the Person Designation : (name of the Bidding Company / Lead Consortium Member and the Company Seal) : (Authorised Representative & Signatory) : :
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APPENDIX-16 Proforma for Bank Guarantee for Performance Security – Agra Development
Authority
[To be issued by SBI or any Nationalised Bank or Indian Scheduled Commercial Bank whose Net Worth is not less than INR 1000 crores as on 31st March 2008] From: …………………………………………………………………………… [Name and Address of Bank/ Financial Institution] The Vice Chairman, Agra Development Authority, Agra Uttar Pradesh
1. In consideration of the Governor of Uttar Pradesh represented by ________________ (hereinafter called “ the Government”) having agreed to exempt __________________ (hereinafter called “ the said Bidder(s)“) from the demand, under the terms and condition of an Agreement, dated _________made between ____________________and Agra Development Authority for Design, Build, Operate and Transfer “Multi-Specialty Hospital at Shastripuram in Agra” (hereinafter called “ the said Agreement”), of performance security for the due fulfilment by the said Developer(s)of the terms and conditions contained in the said Agreement , on production of a bank guarantee for Rs. (Rupees only). We, _____________________ (hereinafter referred to as “the Bank”) at the request of ______________/ Bidder(s)/ do hereby undertake to pay to the Government an amount not exceeding Rs. /- against any loss or damage caused to or suffered or would be caused to or suffered by the Government by reason of any breach by the said Developer(s)of any of the terms or conditions contained in the said Agreement. 2. We __________________________ (indicate the name of bank) do hereby undertake to pay the amounts due and payable under this guarantee without any demur, merely on a demand from the Government stating that the amount claimed is due by way of loss or damage caused to or would be caused to or suffered by the Government by reason of breach by the said Bidder(s) of any of the terms or conditions contained in the said agreement or by reason of the Bidder(s) failure to perform the said Agreement. Any such demand made or the bank shall be conclusive as regards the amount due and payable by the Bank under this guarantee. However, our liability under this guarantee shall be restricted to an amount not exceeding Rs. /-. 3. We undertake to pay to the Government any money so demanded notwithstanding any dispute or disputes raised by the Bidder(s) in any suit or proceeding pending before any court or Tribunal relating to our liability under this present being absolute and unequivocal, unless otherwise directed by such Court or Tribunal. The payment so made by us under this bond shall be a valid discharge of our liability for payment there under and the Bidder(s) supplier (s) shall have no claim against us for making such payment.
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4. We __________________________________ (Indicate the name of bank) further agree that the guarantee herein contained shall remain in full force and effect during the period that would be taken for the performance of the said Agreement and that it shall continue to be enforceable till all the dues of the Government under or by virtue of the said Agreement have been fully paid and its claims satisfied or discharged or till Govt certifies that the terms and conditions of the said Agreement, have been fully and properly carried out by the said Bidder(s)and accordingly discharges this guarantee, however not exceeding six months beyond the date of expiry of the Concession Period. Unless a demand or claim under this guarantee is made on us in writing on or before the date of expiry of we shall be discharged from all liability under this guarantee thereafter. 5. We _____________________ (indicate the name of Bank) further agree with the Government that the Government shall have the fullest liberty without our consent and without affecting in any manner our obligations hereunder to vary any of the terms and conditions of the said Agreement or to extend time of performance by the said Bidder(s)from time to time or to postpone for any time or from time to time any of the powers exercisable by the Government against the said Bidder(s) and to forbear or enforce any of the terms and conditions relating in the said agreement and we shall not be relieved from our liability by reason of any such variation or extension being granted to the said Bidder(s)or for any forbearance act or commission on the part of the Government or any indulgence by the Government to the said Bidder(s)or by any such matter or thing whatsoever which under the law relating to sureties would, but for this provision, have effect of so relieving us. 6. This guarantee will not be discharged due to the change in the constitution of the Bank or the Bidder(s)/ Supplier(s). 7. We, __________________________ lastly undertake not to revoke this guarantee during (indicate the name of bank) its currency except with the previous consent of the Government in writing.
SEAL OF [BANK/FINANCIAL INSTITUTION] ……………………………….. NAME OF [BANK/FINANCIAL INSTITUTION] ……………………………….. SIGNATURE …………………………….. NAME …………………………….. TITLE …………………………….. DATE ……………………………..
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ANNEXURE A – Project Site Detail of Site
Proposed Location of Multi-Specialty Hospital at Sector C-2, Shastripuram
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VOLUME II Draft Concession Agreement Between Agra Development Authority And ____________________________
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Index
Article 1.1. 1.2. 1.3. 1.4. Article 2.1. Article 3.1. Article 4.1. 4.2. 4.3. Article 5.1. 5.2. 5.3. Article 6.1. Article 7.1. 7.2. 7.3. Article 8.1. Article 9.1. 9.2. 9.3. Article 10.1. 10.2. Article 11.1. 11.2. 11.3. Article 12.1. 12.2. 12.3. 12.4. 12.5. 12.6. Article 1. Definitions and Interpretation Definitions Interpretation Measurements and Arithmetic Conventions Priority of Agreements and Errors/Discrepancies 2. Scope of the Project Scope of the Project 3. Consideration of the Contract The Consideration 4. Conditions Precedent to the Agreement Conditions Precedent Compliance Certificate Non-Fulfillment of the Conditions Precedent 5. Obligations of the Concessionaire Obligations of the Concessionaire Obligations relating to Other Agreements Obligations relating to Change in Ownership 6. Obligations of the Concessioning Authority Obligations of the Concessioning Authority 7. Representations and Warranties Representations and Warranties of the Concessionaire Representations and Warranties of the Concessioning Authority Disclosure 8. Disclaimer Disclaimer 9. Performance Security Performance Security Appropriation of Performance Security Release of Performance Security 10. Access on Project Site Project Site Others 11. Construction on the Project Site Obligations prior to the commencement of any work Project Start and Completion date Completion Certificate 12. Force Majeure Force Majeure Force Majeure Events Duty to Report Force Majeure Event Effect of Force Majeure Event Allocation of Costs Arising out of Force Majeure Dispute Resolution 13. Termination 6 6 9 11 11 13 13 15 15 16 16 16 16 18 18 19 19 21 21 22 22 23 24 25 25 26 26 26 26 28 28 28 29 29 29 29 30 30 30 30 31 31 31 32
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13.1. Termination for Concessionaire Default 13.2. Procedure to issue Termination Notice 13.3. Effect of Termination 13.4. Other Rights and Obligations of the Concessioning Authority Article 14. Liability and Indemnity 14.1. General indemnity 14.2. Liability of Concessioning Authority 14.3. Indemnity by the Concessionaire 14.4. No consequential claims 14.5. Survival on Termination Article 15. Dispute Resolution 15.1. Dispute resolution 15.2. Conciliation 15.3. Arbitration Article 16. Miscellaneous 16.1. Governing Law and Jurisdiction 16.2. Waiver of Immunity 16.3. Delayed Payments 16.4. Waiver 16.5. Liability for Inspection of Documents 16.6. Exclusion of Implied Warranties etc. 16.7. Survival 16.8. Entire Agreement 16.9. Severability 16.10. No partnership 16.11. Third Parties 16.12. Successors and Assigns 16.13. Notices 16.14. Language 16.15. Counterparts 16.16. Validity Schedule 1. Project Site Schedule 2. Technical Schedule
32 33 33 33 35 35 35 35 36 36 37 37 37 37 39 39 39 39 39 40 40 40 40 41 41 41 41 41 42 42 42 43 44
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CONCESSION AGREEMENT
This AGREEMENT is entered into on this [ ] day of [ ] (Month), 2009 at Agra BETWEEN 1. Agra Development Authority established under the Uttar Pradesh Urban Planning and Development Act 1973, having its registered office at Jaipur House, Agra, Uttar Pradesh (hereinafter referred to as ‘Concessioning Authority’ which expression shall unless repugnant to the subject or the context include its successors) of One Part; AND 2. ______________, a company incorporated under the Companies Act, 1956, and having its registered office at _________________________ (hereinafter referred to as the ‘Concessionaire’ which expression shall unless repugnant to the subject or the context include its successors) of the Other Part. WHEREAS: A. The Government of Uttar Pradesh has established Agra Development Authority under the Uttar Pradesh Urban Planning and Development Act 1973(hereinafter called the “Act”), for the development and planning of Agra. In order to develop the healthcare infrastructure in Agra, ADA intends to setup a 300 Bed MultiSpecialty Hospital and related facilities and has earmarked 5 acres of land for the same. Agra Development Authority is the rightful Lessor of the land situated in Agra, Uttar Pradesh, India as marked in Schedule 1 (hereinafter referred to as “the said land”), admeasuring approximately 5 Acres, on which it is proposed to develop 300 bedded Multi-Specialty Hospital under PPP mode. Concessioning Authority through Awas Bandhu,UP had invited proposals for the selection of a Concessionaire through the competitive route on the basis of Design, Build, Finance Operate and Transfer the Project, from bidders, including the Consortium comprising of _____________ as the Lead Member/Company by issuing the Request for Qualification cum Request for Proposal (“RFQ cum RFP”) document dated 4th June 2009 containing inter-alia the minimum qualification for a bidder and containing the technical and commercial parameters of the Project and the terms and conditions for the implementation of the Project. On evaluation of the submitted proposals, Awas Bandhu, UP accepted the proposal of the Consortium/Company and issued Letter of Intent (“LOI”) dated __________ to the Consortium/Company specifying interalia the obligation of the Parties to create a Special Purpose Vehicle for implementing the Project [ Applicable in case of Consortium]
B.
C.
D.
E.
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Pursuant to the issuance of LOI vide letter no. ___________ dated ________, the Consortium have incorporated and constituted ______________ as the Special Purpose Vehicle created for the sole purpose of implementation the Project which is Concessionaire. F. The Concessionaire is desirous of developing the Project, in accordance with all approved plans and has the necessary capability for completion of the project and has offered his services and has made payment of 1% of the project cost and taxes as applicable to M/s SREI Infrastructure Finance Ltd in consortium with DHV India Pvt. Ltd..
NOW THEREFORE IN CONSIDERATION OF THE FOREGOING AND THE RESPECTIVE COVENANTS AND AGREEMENTS SET FORTH IN THIS CONCESSION AGREEMENT, THE SUFFICIENCY AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, AND INTENDING TO BE LEGALLY BOUND THE CONCESSIONING AUTHORITY AND THE CONCESSIONAIRE (HEREINAFTER REFERRED TO AS “PARTIES” AND INDIVIDUALLY AS “PARTY”) HEREBY AGREE AND THIS AGREEMENT WITNESSTH AS FOLLOWS:
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Article 1.
1.1. Definitions
Definitions and Interpretation
The words and expressions defined in this Agreement shall, unless repugnant to the context or meaning thereof, have the meaning ascribed thereto herein, and the words and expressions defined in the Schedules and used therein shall have the meaning ascribed thereto in the Schedules; “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; “Affected Party” shall have the meaning set forth in Clause 12.1; “Agreement” or “Concession Agreement” means this Agreement, the Schedules hereto and any amendments thereto made in accordance with the provisions contained in this Agreement; “Agreement Date” means the date of execution of this Agreement; “Applicable Laws” means all laws, brought into force and effect by GOI or the State Government including rules, regulations and notifications made there under, and judgments, decrees, injunctions, writs and orders of any court of record, applicable to this Agreement and the exercise, performance and discharge of the respective rights and obligations of the Parties hereunder, as may be in force and effect during the subsistence of this Agreement; “Applicable Permits” means all clearances, licenses, permits, authorisations, 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; “Approvals” means all approvals, permissions, authorisations, consents and notifications from any Governmental Authority, regulatory or departmental authority including, but not limited to the approvals of the Agra Development Authority, Secretariat for Industrial Assistance, Reserve Bank of India and any other regulatory authority, as may be applicable. “Arbitration Act” means the Arbitration and Conciliation Act, 1996 and shall include modifications to or any re-enactment thereof, as in force from time to time; “Bank Guarantee” means an irrevocable and unconditional bank guarantee payable on demand issued by a bank in favour of Concessioning Authority and furnished by the Concessionaire to Concessioning Authority for guaranteeing the due performance of the obligations of the Concessionaire under this Agreement. Here Bank means any Indian Nationalized Bank or any Indian Scheduled Commercial Bank whose net worth is not less than Rs.300 crores as on 31st March 2008. “Bid” means the documents in their entirety comprised in the bid submitted by the Concessionaire in response to the RFQ/RFP in accordance with the provisions thereof; “Business Day” means a day on which banks are generally open for business in the city of Agra in India;
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“Change in Ownership” means a transfer of the direct and/or indirect legal or beneficial ownership of any shares, or securities convertible into shares, that causes the change in management structure of the bidder company according to the opinion of the Concessioning Authority; “Conditions Precedent” shall have the meaning set forth in Clause 4.1; “Construction Period” means maximum period of 36 months from the Effective Date for the operations of 150 beds plus next 24 months for the operations of the remaining 150 beds , after which commercial operations must start; “Consortium” means the group of entities that have jointly submitted the proposal for the Project. “Consortium Member” means each entity in the Consortium shall be referred to as a Consortium Member. “Damages” shall have the meaning set forth in Sub-clause (t) of Clause 1.2; “Developmental and Operations Standard(s)” means the minimum parameters and standards to be achieved by the Concessionaire in the construction, development and operations of the Project in accordance with internationally sound engineering practices, National Building Code and Applicable Law and / or as determined by the relevant Governmental Authority; “Dispute” shall have the meaning set forth in Clause 15.1.1; “Dispute Resolution Procedure” means the procedure for resolution of Disputes set forth in Article 15; “Effective Date” means the date on which all the conditions Precedent are satisfied or waived as per Article 4 in writing by both the Parties. “Financial Commitment” means the legally binding undertaking of the Concessionaire to mobilize the financial requirements of the project, for ensuring the completion of the project; “Force Majeure” or “Force Majeure Event” shall have the meaning set forth in as per Clause 12; “GOI” means the Government of India; “Good Industry Practice” means the practices, methods, techniques, designs, standards, skills, diligence, efficiency, reliability and prudence which are generally and reasonably expected from a reasonably skilled and experienced operator engaged in the same type of undertaking as envisaged under this Agreement and which would be expected to result in the performance of its obligations by the Concessionaire in accordance with this Agreement, Applicable Laws and Applicable Permits in reliable, safe, economical and efficient manner; “Government Instrumentality” means any department, division or sub-division of the Government of India or the State Government and includes any commission, board, authority, agency or municipal and other local authority or statutory body including Panchayat under the control of the Government of India or the State Government, as the case may be, and having jurisdiction over all or any part of Agra or the performance of all or any of the services or obligations of the Concessionaire under or pursuant to this Agreement; “Indemnified Party” means the Party entitled to the benefit of an indemnity pursuant to Article 14;
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“Indemnifying Party” means the Party obligated to indemnify the other Party pursuant to Article 14; “Lenders” shall mean the banks, financial institutions, international credit agencies that extend or agree to extend a credit facility to the Concessionaire in relation to the Project; “Parties” means the parties to this Agreement collectively and “Party” shall mean any of the parties to this Agreement individually; “Performance Security” shall have the meaning set forth in Clause 9.1; “Project” shall mean Design, Build, Finance, Operate and Transfer of 300 Bed Multi Specialty Hospital with at least four specialties from the selected specialties like Trauma centre, Plastic surgery unit, Burn Unit, Neurology, Ophthalmology in the hospital as mentioned in Annexure B of this document, round the clock emergency unit along with 15 acres Site earmarked for the purpose in accordance with the provisions of this Agreement at the end of the concession period;(more specifically as mentioned in Article 2 of this agreement) “Project Completion Date” shall mean the date on which the Concessioning Authority has issued the Project Completion Certificate after completion of the Project and shall have the meaning set forth in Clause 11.2; “Project Completion Certificate” shall mean the Project Completion Certificate issued by the Concessioning Authority certifying completion of Project by the Concessionaire; “Rs.” or “Rupees” refers to the lawful currency of the Republic of India;
“”Revenue of Hospital” shall mean registration fees, hospital bed revenue, diagnostic laboratory test, consultation charges, operation charges and lease rentals from commercial facilities like banks, restaurants etc. Revenue of Hospital shall not include revenue from pharmacy, service apartments, training institutes and consumable cost directly reimbursed by patient.
“Security Interest” means any existing or future mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, security interest or other encumbrances of any kind securing or conferring any priority of payment in respect of any obligation of any Person and includes without limitation any right granted by a transaction which, in legal terms, is not the granting of security but which has an economic or financial effect similar to the granting of security in each case under any Applicable Law. “Site” means the Project site measuring 5 acres as given in Schedule 1 of this Agreement given on lease for a period of initially for 30 years renewable every 30 years up to a maximum of 90 years. The Project shall mean the same as defined in this Agreement. “Standards of Reasonable and Prudent Concessionaire” means the standards, practices, methods and procedures expected from a person seeking in good faith to perform its contractual obligations and in so doing and in the general conduct of its undertaking exercising that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced Person engaged in the same type of undertaking under the same or similar circumstances and conditions including the conditions as contemplated by the Basic Documents.
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“Taxation” or “Tax” means all forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions, rates and levies (including without limitation social security contributions and any other payroll taxes), whenever and wherever imposed (whether imposed by way of withholding or deduction for or on account of tax or otherwise) and in respect of any person and all penalties, charges, costs and interest relating to it; “Third Party Agreements” means all Agreements entered into between the Concessionaire and third Persons, including, but not limited to other Agreements with Concessionaire and vendors of any goods or services to the Concessionaire. “Termination” means the expiry of the Concession period or termination of this Agreement; “Termination Notice” means the communication issued in accordance with this Agreement by one Party to the other Party terminating this Agreement;
1.2.
Interpretation
1.2.1. In this Agreement, unless the context otherwise requires,
(a) references to any legislation or any provision thereof shall include amendment or reenactment or consolidation of such legislation or any provision thereof so far as such amendment or re-enactment or consolidation applies or is capable of applying to any transaction entered into hereunder; (b) references to laws of India or Indian law or regulation having the force of law shall include the laws, acts, ordinances, rules, regulations, bye laws or notifications which have the force of law in the territory of India and as from time to time may be amended, modified, supplemented, extended or re-enacted; (c) references to a “person” and words denoting a natural person shall be construed as a reference to any individual, firm, company, corporation, society, trust, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the above and shall include successors and assigns subject to the provisions of this Agreement; (d) the table of contents, headings or sub-headings in this Agreement are for convenience of reference only and shall not be used in, and shall not affect, the construction or interpretation of this Agreement; (e) the words “include” and “including” are to be construed without limitation and shall be deemed to be followed by “without limitation” or “but not limited to” whether or not they are followed by such phrases; (f) references to “construction” include, unless the context otherwise requires, investigation, design, developing, engineering, procurement, delivery, transportation, installation, processing, fabrication, testing, commissioning and other activities that are to be completed on or before “Project Completion Date” as per the scope of work as defined under Article 2, and “construct” shall be construed accordingly; (g) any reference to any period of time shall mean a reference to that according to Indian Standard Time;
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(h) any reference to day shall mean a reference to a calendar day; (i) any reference to month shall mean a reference to a calendar month as per the Gregorian calendar; (j) references to any date, period or Milestone shall mean and include such date, period or Milestone as may be extended pursuant to this Agreement; (k) 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 the next business day; (l) the words importing singular shall include plural and vice versa; (m) references to any gender shall include the other and the neutral gender;
“lakh or lac” means a hundred thousand (100,000) and “crore” means ten million (10,000,000); (o) references to the “winding-up”, “merger”, amalgamation”, “takeover”, “dissolution”, “insolvency”, or “reorganization” of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding-up, reorganization, dissolution, arrangement, protection, change in management or relief of debtors; (p) 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; provided that this Sub-clause shall not operate so as to increase liabilities or obligations of the Concessioning Authority hereunder or pursuant hereto in any manner whatsoever; (q) 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 hand of a duly authorized representative of such Party, as the case may be, in this behalf and not otherwise; (r) the Schedules and Recitals to this Agreement form an integral part of this Agreement and will be in full force and effect as though they were expressly set out in the body of this Agreement; (s) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this Agreement shall, except where the context otherwise requires, mean references to Recitals, Articles, Clauses, Sub-clauses and Schedules of or to this Agreement, and references to a Paragraph shall, subject to any contrary indication, be construed as a reference to a Paragraph of this Agreement or of the Schedule in which such reference appears; and (t) 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 (the “Damages”).
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(u) any reference to Build shall mean Construct and vice-versa unless the context otherwise requires (v) any reference to Operate/Operations shall mean Operate and Transfer/ Operations & Maintenance unless the context otherwise requires
1.2.2. Unless expressly provided otherwise in this Agreement, any documentation required to be provided or
furnished by the Concessionaire to the Concessioning Authority and/or the agency or person appointed by the Concessioning Authority shall be provided free of cost and in two copies, and if the Concessioning Authority and/or the person appointed by the Concessioning Authority is required to return any such documentation with their comments and/or approval, they shall be entitled to retain one copy thereof.
1.2.3. the rule of construction, if any, that a contract should be interpreted against the parties responsible for
the drafting and preparation thereof, shall not apply.
1.2.4. any word or expression used in this Agreement shall, unless otherwise defined or construed in this
Agreement, bear its ordinary English meaning.
1.3.
Measurements and Arithmetic Conventions
All measurements and calculations shall be in the metric system and calculations done to 2 (two) decimal places, with the third digit of 5 (five) or above being rounded up and below 5 (five) being rounded down.
1.4.
Priority of Agreements and Errors/Discrepancies
1.4.1. This Agreement, and all other Agreements and documents forming part of this Agreement are to be
taken as mutually explanatory and, unless otherwise expressly provided elsewhere in this Agreement, the priority of this Agreement and other documents and agreements forming part hereof shall, in the event of any conflict between them, be in the following order:
(a) (b) (c)
this Agreement; RFQ cum RFP Document all other agreements and documents forming part hereof;
i.e. the agreement at (a) above shall prevail over the agreements and documents at (b) and (c) above and (b) shall prevail over all documents in (c) above.
1.4.2. In case of ambiguities or discrepancies within this Agreement, the following shall apply:
(a) between two or more Clauses of this Agreement, the provisions of a specific Clause relevant to the issue under consideration shall prevail over those in other Clauses; (b) between the Clauses of this agreement and the Schedules, the Clauses shall prevail and between Schedules and Annexes, the Schedules shall prevail;
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(c) between the written description on the Drawings and the Specifications and Standards, the latter shall prevail; (d) between the dimension scaled from the Drawing and its specific written dimension, the latter shall prevail; and (e) between any value written in numerals and that in words, the latter shall prevail.
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Article 2.
Scope of the Project
2.1. Scope of the Project
The Concessionaire shall Design, Build, Finance, Operate and Transfer Multi Specialty Hospital on the 5 acre plot earmarked for the purpose given on lease over the concession period of initial 30 years renewable every 30 years up to a maximum period of 90 years including construction period, after which the facility shall be transferred to the Concessioning Authority. The successful bidder shall construct following facilities and get all the approvals for commercial operations within 36 months from the effective date. A. Minimum Development Obligations (Essential Facilities):
• • To build and operate 300 bedded (150 beds and allied services within 36 months and remaining beds in the next 24 months) Multi-specialty hospital as per the International standards / Indian Public Health Standard (IPHS). Atleast four specialties from the following disciplines shall be developed in the Hospital. Departments / Specialties Trauma Care Cardio Thoracic care unit (ICCU- Intensive Cardiac Care Unit) Intervention specialty and Cerebral Intervention Kidney Transplant (Hemodialysis) Neurology unit Obs & Gynecology Pediatric unit (with NICU – Neonetal Intensive Care unit) Dental unit for surgery Ophthalmology and ENT Cancer unit • The hospital shall also have a round the clock emergency unit.
All the facilities are to be developed as per the minimum quality standards set out for the purpose in the Technical Schedule appended in DCA Volume II with this document. While undertaking development of the Project, the Successful Bidder shall adhere to latest amended National Building Code of India, other relevant IS Codes and practices, Development Control Rules, FAR Limits, statutory requirements, guidelines and approvals of the Health Department of the Government of Uttar Pradesh, laws of land, the principles of good industry practices and any other norms as applicable from time to time. The developer shall also take into account the guidelines issued by the State Health Department and obtain the necessary approvals.
Keeping in view that the hospital services should be world class, the hospital shall apply for JCI (joint Commission International) accreditation and obtain the same within five years from the date of operation. The Concessionaire shall plan the facilities, manpower and the service standards to meet the stringent quality standards laid down by JCI. The Concessionaire’s proposed plan to meet the norms of JCI shall be presented to Agra Development Authority.
The Concessionaire shall be responsible for all the clearances as may be required for the development and operations of the project. 150 beds and allied services shall be ready for operation after taking all the clearance(s) within 36 months of the effective date and remaining beds in the next 24 months.
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For the purpose of providing subsidized health services to poor, the Concessionaire shall provide 1% of the total revenues of the hospital every year to the fund created by the government starting commercial operations throughout the concession period . Revenue of hospital shall mean registration fees, hospital bed revenue, diagnostic laboratory test, consultation charges, operation charges and lease rentals from commercial facilities like banks, restaurants etc. Revenue of Hospital shall not include revenue from pharmacy, service apartments, training institutes and consumable cost directly reimbursed by patient.
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Article 3.
Consideration of the Contract
3.1. The Consideration
3.1.1. Subject to and in accordance with the provisions of this Agreement, the Applicable Laws, rules and
regulations and the Applicable Permits, the Concessionaire shall pay to the Concessioning Authority: Annually a percentage of total revenue earned as quoted in the Financial proposal payable eleventh year (from the year of commercial operations of the first 150 beds) onwards through out the remaining concession period.
3.1.2. Subject to and in accordance with the provisions of this Agreement, the Consideration hereby given by
Concessionaire, the Concessionaire shall be entitled to Construct and operate the Project on the land area given on Concession period the initial period of 30 years renewable every thirty years upto a maximum of 90 years including construction period, subject to : (a) performing and fulfilling all of the Concessionaire’s obligations under and in accordance with this Agreement; and (b) bear and pay all costs, expenses and charges in connection with or incidental to the performance of the obligations of the Concessionaire under this Agreement; and (c) At the end of the concession period, the entire construction made by the Concessionaire till that date on the Project site as part of the scope of work shall get transferred without any consideration to the Concessioning Authority.
3.1.3. In consideration of the mutual covenants and other good and valuable consideration expressed herein,
the Concessionaire hereby accepts the Consideration to be given and agrees to construct and operate the Project on land given for the initial period of 30 years renewable every thirty years upto a maximum of 90 years Concession period including construction period as per the scope of work given in Article 2 and minimum specifications mentioned in the technical schedules and to perform/discharge all of its obligations in accordance with the provisions hereof.
3.1.4
The Concessionaire shall also pay to the Concessioning Authority a yearly lease rental of Rs. 128/-( Rs. One hundred and twenty eight only ) per sq meter of land for the entire concession period including construction period
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Article 4.
Conditions Precedent to the Agreement
4.1. Conditions Precedent
4.1.1. The respective rights and obligations of the Parties under this Agreement shall be subject to the
satisfaction in full of the conditions precedent specified in this Clause 4.1 (the “Conditions Precedent”).
4.1.2. The Concessionaire may, upon providing the Performance Security to the Concessioning Authority in
accordance with Article 9, by notice require the Concessioning Authority to satisfy the Conditions Precedent set forth in this Clause 4.1.2 within a period of 30 (thirty) days of the notice, and the obligations of the Concessioning Authority hereunder shall be deemed to have been performed when the Concessioning Authority shall have handed over to the Concessionaire the peaceful possession of the Site free from all above ground encroachments as demarcated under Schedule 1;
4.1.3. Concessionaire shall satisfy the Conditions Precedent at any time within 30 (thirty) days from the date
the Concessioning Authority has given the Letter of Intent for the appointment of the Concessionaire and all the Conditions Precedent shall be deemed to have been fulfilled when the Concessionaire shall have
(a) provided Performance Security to the Concessioning Authority; and (b) Delivered to the Concessioning Authority a legal opinion from the legal counsel of the Concessionaire with respect to the authority of the Concessionaire to enter into this Agreement and the enforceability of the provisions thereof (c) The members of the Consortium must form a Special Purpose Vehicle (SPV) and submit an MoU for the purpose of Special Purpose Vehicle.
4.2. Compliance Certificate
Upon compliance with the Conditions Precedent, each Party shall forthwith issue a Compliance Certificate pursuant to which the obligations of the Parties under this Agreement shall commence.
4.3. Non-Fulfillment of the Conditions Precedent
4.3.1. In the event of failure by any Party to procure compliance with any of the Conditions Precedent as per
the provisions of this Article 4 and the other Party have not waived any of the conditions (partially or absolutely), the Agreement shall cease to have any effect as of that date.
4.3.2. In the event of the Agreement not coming into effect on account of the Concessionaire not fulfilling the
Conditions Precedent then the Concessionaire shall forfeit the Earnest Money Deposit and the Performance Security.
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4.3.3. In the event of the Agreement not coming into effect on account of the Concessioning Authority not
fulfilling any of the Conditions Precedent then the Earnest Money Deposit and the Performance Security shall be returned to the Concessionaire.
4.3.4. Notwithstanding anything contained in this clause, the Parties may mutually decide to extend the time
period for the fulfillment of the Conditions Precedent.
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Article 5.
Obligations of the Concessionaire
5.1. Obligations of the Concessionaire
5.1.1. Subject to and on the terms and conditions of this Agreement, the Concessionaire shall at its cost and
expense procure finance for and undertake the Project scope of work as mentioned in Article 2 and observe, fulfill, comply with and perform all its obligations set out in this Agreement or arising hereunder.
5.1.2. The Concessionaire shall comply with all Applicable Laws in the performance of its obligations under
this Agreement.
5.1.3. Without prejudice to Clauses 5.1.1 and 5.1.2 above, the Concessionaire shall discharge its obligations
as per the National Building Code, Development Control Rules, the principles of good industry practice and as a reasonable and prudent person, statutory requirements, laws of the land and any other norms, which are applicable from time to time.
5.1.4. The Concessionaire shall get prior approval of the Concessioning Authority in case of there is any
change in the facilities defined under the Project during the Concession Period.
5.1.5. The Hospital Site shall be used only for the purpose mentioned in Article 2. Any other usage of the site
shall not be permitted during the concession period without prior approval of the Concessioning Authority
5.1.6. Without prejudice to Clauses 5.1.1 and 5.1.2 above the Concessionaire shall, at its own cost and
expense observe, undertake, comply with and perform, in addition to and not in derogation of, its obligations elsewhere set out in this Agreement, the following:
(a) make, or cause to be made, necessary applications to the relevant Governmental Agencies with such particulars and details, as may be required for obtaining all Applicable Permits and obtain such Applicable Permits in conformity with the Applicable Laws; (b) procure, as required, the appropriate proprietary rights, licences, agreements and permissions for materials, methods, processes and systems used or incorporated into development and operations of the Project; (c) not to damage any other infrastructure or any other utility developed by the Concessioning Authority or any other utilities developed and maintained by any other authority or person and in case of any such damage to undertake the repair and also to pay for any losses that is incurred by the Concessioning Authority or any authority or any other person, as the case may be. (d) ensure and procure that the Concessionaire shall comply with all Applicable Permits and Applicable Laws in the performance by them of any of the Concessionaire’s obligations under this Agreement;
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(e) not to do or omit to do any act, deed or thing which may in any manner be violative of any of the provisions of this Agreement; (f) not to create any third party rights, except for the purpose of borrowing from banks, on the land given on Concession for 50 years. But also to ensure that Government of UP/Concessioning Authority are not adversely affected in any way; (g) shall make payment towards the Concessioning Authority as per provisions of this Agreement; (h) Procure at its own costs, expenses and risk all services necessary for the construction and operations of the Project including without limitation electricity, water, materials and labour; (i) shall ensure reservation in matters of employment as per applicable Government of UP policies (j) shall complete construction of the Project and get necessary approvals for commercial operations within a period of 36 months from the Effective Date; and (k) Transfer the Project assets in working condition on the date of termination of Concession to the Concessioning Authority. (l) The 1% of total revenue generation from the activities of the hospital shall be given to the State Government funds to be utilized by the Medical and Health department for the treatment of the BPL families starting the year of commercial operations.
5.2. Obligations relating to Other Agreements
5.2.1. It is expressly agreed that the Concessionaire shall, at all times, be 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.
5.2.2. 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 under Article 2.1.
5.3. Obligations relating to Change in Ownership
The Concessionaire shall not undertake or permit any Change in Ownership, except with the prior written approval of the Concessioning Authority as per the provisions of this Article 5.3.
5.3.1. No change in Consortium Members shall be allowed till the completion of the project or a minimum of 3
years (whichever is later). However, the Lead Consortium Member shall not be allowed to be changed over the entire Concession Period and shall continue to hold 51% stake in the Consortium till the start of Commercial Operations. The Lead Consortium Member shall be allowed to dilute the stake after the commercial operations date with the approval of the Concessioning Authority such that the stake of the
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Lead Consortium Member in the consortium shall not fall below 26% at any time till the end of Concession Period.
5.3.2. Each Consortium Member shall invest minimum 11% stake in SPV. None of the Consortium
Member shall be allowed to dilute its stake till the completion of the Project or a minimum of 3 years from the date of signing of the Concession Agreement (whichever is later).
5.3.3 Lead Consortium Member shall invest minimum 51% stake in the SPV. Lead Consortium Member shall not be allowed to dilute its stake to a level below 51% till the start of commercial operations. The Lead Consortium Member shall be allowed to dilute the stake after the commercial operations date with the approval of the Concessioning Authority such that the stake of the Lead Consortium Member in the consortium shall not fall below 26% at any time till the end of Concession Period. This holds for the single entity bidder also and hence no bidder who has 100% equity in the Project can dilute it to a level below 51% till the start of commercial operations. Remaining stake can be diluted as per the provisions of Clause 5.3.3. 5.3.4 The Concessionaire may be allowed to novate the agreement after completion of three consecutive years of commercial operations and realization of the full project land value ( at circle rates) by the Concessioning Authority. The Concessionaire shall submit the details of the proposed novatee along with its other qualifications (financial and technical capabilities) to the Concessioning Authorities for its due approval. Novatee, the Concessionaire and the Concessioning Authority shall enter into a tripartite agreement. Concessioning Authority shall reserve the right to reject any novation at any time. No further novation shall be permitted
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Article 6.
Obligations of the Concessioning Authority
6.1. Obligations of the Concessioning Authority
6.1.1. The Concessioning Authority shall, at its own cost and expense, undertake, comply with and perform all
its obligations set out in this Agreement or arising hereunder.
6.1.2. The Concessioning Authority agrees to provide support to the Concessionaire and undertakes to
observe, comply with and perform, subject to and in accordance with the provisions of this Agreement and the Applicable Laws, the following:
(a) upon written request from the Concessionaire, and subject to the Concessionaire complying with Applicable Laws, provide all reasonable support and assistance to the Concessionaire in procuring Applicable Permits required from any Government Instrumentality for implementation and operation of the Project; (b) upon written request from the Concessionaire, assist the Concessionaire in obtaining access to all necessary infrastructure facilities and utilities, including water at rates and on terms no less favourable to the Concessionaire than those generally available to commercial customers receiving substantially equivalent services; (c) extend the assistance of its good offices on a reasonable effort basis to assist the Concessionaire in the provision of electricity; (d) procure that no barriers are erected or placed on the Project site or the way towards the Project site by the Concessioning Authority, by any Government Instrumentality or persons claiming through or under it, except for reasons of Emergency or national security, law; (e) assist the Concessionaire in procuring Police assistance for regulation of movement of any person on the Project site, removal of trespassers and for security of the material, labour and machinery; (f) not to do or omit to do any act, deed or thing which may in any manner be violative of any of the provisions of this Agreement; and (g) support, cooperate with and facilitate the Concessionaire in the implementation of the Project.
6.1.3
The Concessioning Authority shall allow mortgage of project land by the Concessionaire for availing financial assistance from funding agencies subject to the condition of receipt of 20% of the project land value at circle rates upfront from the Concessionaire.
6.1.4
The GoUP shall provide single window clearances for all necessary approvals within the state and shall facilitate the Concessionaire in getting clearances and approvals from any agency from outside the state.
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Article 7.
Representations and Warranties
7.1. Representations and Warranties of the Concessionaire
The Concessionaire represents and warrants to the Concessioning Authority that: (a) it is duly organized and validly existing under the laws of India, and has full power and authority to execute and perform its obligations under this Agreement and to carry out the transactions contemplated hereby; (b) it has taken all necessary corporate and other actions under Applicable Laws to authorize the execution and delivery of this Agreement and to validly exercise its rights and perform its obligations under this Agreement; (c) it has the financial standing and capacity to undertake the Project in accordance with the terms of this Agreement; (d) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms hereof, and its obligations under this Agreement will be legally valid, binding and enforceable obligations against it in accordance with the terms hereof; (e) it is subject to the laws of India, and hereby expressly and irrevocably waives any immunity in any jurisdiction in respect of this Agreement or matters arising there under including any obligation, liability or responsibility hereunder; (f) the information furnished in the Bid and as updated on or before the date of this Agreement is true and accurate in all respects as on the date of this Agreement; (g) the execution, delivery and performance of this Agreement will not conflict with, result in the breach of, constitute a default under, or accelerate performance required by any of the terms of its Memorandum and Articles of Association or any Applicable Laws or any covenant, contract, agreement, arrangement, 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; (h) there are no actions, suits, proceedings, or investigations pending or, to its 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 this Agreement or which individually or in the aggregate may result in any material impairment of its ability to perform any of its obligations under this Agreement; (i) it has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any court or any legally binding order of any Government Instrumentality which may result in any material adverse effect on its ability to perform its obligations under this Agreement and no fact or circumstance exists which may give rise to such proceedings that would adversely affect the performance of its obligations under this Agreement; (j) it has complied with Applicable Laws in all material respects 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 a material adverse effect on its ability to perform its obligations under this Agreement;
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(k) the existing Lead Consortium Members hold not less than 51% (fifty – one percent) of it’s issued and paid up Equity and together with the existing consortium member hold not less than 100% as on the date of this Agreement and the respective holding of each Consortium Member conforms to the representation made by the Consortium and accepted by the Concessioning Authority as part of the Bid and that no member of the Consortium shall hold less than 11% (eleven per cent) of such as per the provisions of Article 5.3; (l) no order has been made and no resolution has been passed for the winding up of the Concessionaire or for a provisional liquidator to be appointed in respect of the Concessionaire and no petition has been presented and no meeting has been convened for the purpose of winding up the Concessionaire. No receiver has been appointed in respect of the Concessionaire or all or any of its assets. The Concessionaire is not insolvent or unable to pay its debts as they fall due. (m) no representation or warranty by it contained herein or in any other document furnished by it to the Concessioning Authority or to any Government Instrumentality in relation to Applicable Permits contains or will contain any untrue statement of material fact or omits or will omit to state a material fact necessary to make such representation or warranty not misleading; and no sums, in cash or kind, have been paid or will be paid, by it or on its behalf, to any person by way of fees, commission or otherwise for securing the grant of land or entering into this Agreement or for influencing or attempting to influence any officer or employee of the Concessioning Authority in connection therewith. (o) It shall not novate the Concession Agreement and any rights and obligation arising therefrom to any party without any written approval from the Concessioning Authority.
7.2. Representations and Warranties of the Concessioning Authority
The Concessioning Authority represents and warrants to the Concessionaire that: (a) it has full power and authority to execute, deliver and perform its obligations under this Agreement and to carry out the transactions contemplated herein and that it has taken all actions necessary to execute this Agreement, exercise its rights and perform its obligations, under this Agreement; (b) it has taken all necessary action under the Applicable Laws to authorise the execution, delivery and performance of this Agreement; (c) it has the financial standing and capacity to perform its obligations under the Agreement; (d) this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (e) there are no actions, suits or proceedings pending or, to its 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 default or breach of this Agreement or which individually or in the aggregate may result in any material impairment of its ability to perform its obligations under this Agreement; (f) it has no knowledge of any violation or default with respect to any order, writ, injunction or any decree of any court or any legally binding order of any Government
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Instrumentality which may result in any material adverse effect on the Concessionaire’s ability to perform its obligations under this Agreement; (g) it has complied with Applicable Laws in all material respects; (h) it has not entered into any other Agreement, contract, transaction, arrangement or understanding in relation to the same Project or part of the Project with any third party, or the sale, Concession assignment, or other disposition in whole or in part in respect of the said land other than the disclosed in this Agreement; (i) all information provided by it in the Tender Notice and invitation to bid in connection with the Project is, to the best of its knowledge and belief, true and accurate in all material respects; (j) it has good and valid right for construction of the Project, and has power and authority to give land on 50 years Concession to the Concessionaire; and (k) upon the Concessionaire completing the Project as per this Agreement, and performing the covenants herein, it shall not at any time during the 50 years Concession, interfere with peaceful enjoyment of the land by the Concessionaire, except in accordance with the provisions of this Agreement.
7.3. Disclosure
In the event that any occurrence or circumstance comes to the attention of either Party that renders any of its aforesaid representations or warranties untrue or incorrect, such Party shall immediately notify the other Party of the same. Such notification shall not have the effect of remedying any breach of the representation or warranty that has been found to be untrue or incorrect nor shall it adversely affect or waive any obligation of either Party under this Agreement.
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Article 8.
8.1. Disclaimer
Disclaimer
8.1.1. 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 Tender Notice, Scope of the services to be provided, Project site, Specifications and Standards set for providing quality of services, local conditions, possible demand and all information provided by the Concessioning Authority, and has determined to its satisfaction the accuracy or otherwise thereof and the nature and extent of difficulties, risks and hazards as are likely to arise or may be faced by it in the course of performance of its obligations hereunder. Save as provided in Clause 7.2, the Concessioning Authority makes no representation whatsoever, express, implicit or otherwise, regarding the accuracy and/or completeness of the information provided by it and the Concessionaire confirms that it shall have no claim whatsoever against the Concessioning Authority in this regard.
8.1.2. The Concessionaire acknowledges and hereby accepts the risk of inadequacy, mistake or error in or
relating to any of the matters set forth in Clause 8.1.1 above and hereby acknowledges and agrees that the Concessioning Authority shall not be liable for the same in any manner whatsoever to the Concessionaire or any person claiming through or under this Agreement.
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Article 9.
Performance Security
9.1. Performance Security
The Concessionaire has submitted to the Concessioning Authority Performance Guarantee of Rs. 5,02,80,000/- (Rupees Five crores two lacs and eighty thousand only) in the form of a Bank Guarantee in favor of Agra Development Authority, payable at Agra; the details of which are given below: The Performance Security shall be valid for a period of twelve months and shall be renewed every year, at least 30 days prior to the last date. All charges, fees, costs and expenses related to the Bank Guarantee shall be borne and paid by the Concessionaire. 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the issuance of Construction Completion Certificate by the Concessioning Authority. The next 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the start of Commercial Operation. The Concessionaire undertakes and warrants to Concessioning Authority that the balance 50% of bank guarantee furnished as above shall be irrevocable and shall continue to be effective and enforceable six months beyond the period of six months from the date of the expiry of the Concession Period.
9.2. Appropriation of Performance Security
Upon occurrence of a Concessionaire Default, the Concessioning Authority shall, without prejudice to its other rights and remedies hereunder or in law, be entitled to invoke and appropriate the relevant amounts from the Performance Security as Damages for such Concessionaire Default. Upon such invocation and appropriation from the Performance Security, the Concessionaire shall, within 15 (fifteen) days thereof, replenish, in case of partial appropriation, the Performance Security to its original level, and in case of appropriation of the entire Performance Security provide a fresh Performance Security, as the case may be, and the Concessionaire shall, within the time so granted, replenish or furnish fresh Performance Security as aforesaid failing which the Concessioning Authority shall be entitled to terminate this Agreement in accordance with Article 13.
9.3. Release of Performance Security
25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the issuance of Construction Completion Certificate by the Concessioning Authority. The next 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the start of Commercial Operation. The balance 50% of the Performance Security in the form of bank guarantee shall remain in force and effect beyond the period of six months from the date of the expiry of the Concession Period. It shall be duly discharged and released to the Concessionaire beyond the period of six months from the date of expiry of the Concession Period and transfer of the Project along with the land toADA 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 land to ADA. If the
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Agreement is terminated due to any event other than a Concessionaire Event of Default, the Performance Security shall, subject to the Concessioning Authority’s right to receive or recover amounts, if any, due from the Concessionaire under this Agreement, be duly discharged and released to the Concessionaire.
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Article 10.
10.1. Project Site
Access on Project Site
The Project site shall comprise of the land as described in Schedule- 1 and which shall be given on Concession by the Concessioning Authority to the Concessionaire for the initial period of 30 years renewable every thirty years upto a maximum of 90 years including construction period.
10.1.1. The Concessioning Authority on providing the performance security and signing this Agreement, shall
within 15 days, give on Concession to the Concessionaire, the Project site for the initial period of 30 years renewable every thirty years upto a maximum of 90 years for the Scope of the Project as mentioned in Article 2.
10.1.2. It is being expressly agreed and understood that the Concessioning Authority shall have no liability
whatsoever in respect of survey and investigations carried out or work undertaken by the Concessionaire pursuant hereto in the event of Termination or otherwise.
10.1.3. It is expressly agreed that the rights granted hereunder shall terminate automatically and forthwith,
without the need for any action to be taken by the Concessioning Authority to terminate the rights, upon the Termination of this Agreement for any reason whatsoever.
10.1.4. It is expressly agreed that mining rights do not form part of the rights granted to the Concessionaire
under this Agreement and the Concessionaire hereby acknowledges that it shall not have any mining rights or any interest in the underlying minerals on or under the area where cable have been laid. For the avoidance of doubt, mining rights mean the right to mine any and all minerals or interest therein.
10.2. Others
10.2.1. Access to the Concessioning Authority and any person appointed as the Engineers / consultants
appointed by Concessioning Authority The right of way granted for construction on the Project site shall always be subject to the right of access of the person appointed by the Concessioning Authority for inspection, viewing and exercise of their rights and performance of their obligations under this Agreement.
10.2.2.
Special/temporary right of way
The Concessionaire shall bear all costs and charges for any special or temporary right of way required by it in connection with access to the Project Site. The Concessionaire shall obtain at its cost such facilities on or outside the Site as may be required by it for the purposes of the Construction and the performance of its obligations under this Agreement.
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Article 11.
Construction on the Project Site
11.1. Obligations prior to the commencement of any work
Prior to commencement of any work, the Concessionaire shall: (a) submit to the Concessioning Authority time schedule for completion; (b) appoint its representative duly authorised to deal with the Concessioning Authority in respect of all matters under or arising out of or relating to this Agreement; (c) Undertake, do and perform all such acts, deeds and things as may be necessary or required before commencement of any work under and in accordance with this Agreement, the Applicable Laws and Applicable Permits; and (d) Procure all such approvals/consents/permits as necessary as per applicable laws
11.2. Project Start and Completion date
11.2.1. On or after the Effective Date, the Concessionaire shall undertake construction of Project. The 36th
month from the Effective Date shall be the scheduled date for completion of the Project ( 150 beds and allied services and the next 24 months for the remaining 150 beds) and the Concessionaire agrees and undertakes that Project shall be completed on or before the Scheduled Date.
11.2.2. In the event that Project is not completed by the Scheduled Completion Date, unless the delay is on
account of reasons solely attributable to the Concessioning Authority or due to Force Majeure, the Concessioning Authority shall encash 10% of the Performance Security amount per month, for a maximum period of six months after which Concessioning Authority shall be entitled to terminate this Agreement. . The Performance Security shall be replenished by the Concessionaire as soon the Performance Security is encashed by the Concessioning Authority.
11.3. Completion Certificate
The Concessionaire after completion of the Project shall inform in writing to the Concessioning Authority that it has completed the construction as per Project scope. The Concessioning Authority shall issue the Completion Certificate, after which the Concessionaire can start the commercial operations.
11.4. Delay in commercial operations
If the commercial operations for the Project are not achieved within the stipulated time period for reasons not attributable to the Concessionaire, the Concessioning Authority shall determine any extension of the dates set forth in the commercial operations time schedule to which the Concessionaire is reasonably entitled. The Concessioning Authority shall extend such dates and the Concession Period shall deemed to be extended by a period equal in length to the period extended.
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Article 12.
Force Majeure
12.1. Force Majeure
As used in this Agreement, the expression “Force Majeure” or “Force Majeure Event” shall mean occurrence in India of any or all of events, as defined in Clause 12.2, if it affects the performance by the Party claiming the benefit of Force Majeure (the “Affected Party”) of its obligations under this Agreement and which act or event (i) is beyond the reasonable control of the Affected Party, and (ii) the Affected Party could not have prevented or overcome by exercise of due diligence and following Good Industry Practice, and (iii) has Material Adverse Effect on the Affected Party.
12.2. Force Majeure Events
A Force Majeure Event shall mean one or more of the following acts or events: (a) act of God, plague, lightning, earthquake, landslide, cyclone, flood, volcanic eruption, radioactive contamination; (b) an act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy) (c) any failure of another service provider to the extent caused by any of the Force Majeure Event mentioned above affecting the performance of the Agreement; (d) any event or circumstances of a nature analogous to any of the foregoing;
12.3. Duty to Report Force Majeure Event
Upon occurrence of a Force Majeure Event, the Affected Party shall by notice report such occurrence to the other Party forthwith. Any notice pursuant hereto shall include full particulars of: (a) the nature and extent of each Force Majeure Event with evidence in support thereof; (b) 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; (c) the measures which the Affected Party is taking or proposes to take for alleviating the impact of such Force Majeure Event; and (d) any other information relevant to the Affected Party’s claim. The Affected Party shall not be entitled to any relief under the Agreement for or in respect of a Force Majeure Event unless it shall have notified the other Party of the occurrence of the Force Majeure Event as soon as reasonably practicable, and in any event not later than 24 (twenty four) hours after the Affected Party knew, or ought reasonably to have known, of its occurrence, and shall have given particulars of the probable material effect that the Force Majeure Event is likely to have on the performance of its obligations under this Agreement.
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12.4. Effect of Force Majeure Event
Upon the occurrence of any Force Majeure Event the period set forth for the Project Completion Date shall be extended by a period equal in length to the duration of the Force Majeure Event.
12.5. Allocation of Costs Arising out of Force Majeure
Upon occurrence of any Force Majeure Event, the Parties shall bear their respective costs and no Party shall be required to pay to the other Party any costs thereof. Neither Party 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 hereto.
12.6. Dispute Resolution
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 as mentioned in Article 15; provided 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.
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Article 13.
Termination
13.1. Termination for Concessionaire Default
Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 15 (fifteen) days, the Concessionaire shall be deemed to be in default of this Agreement (a “Concessionaire Default”), unless the default has occurred solely as a result of any breach of this Agreement by the Concessioning Authority or due to Force Majeure event. The defaults referred to herein shall include: (a) the Performance Security has been partially or fully invoked and appropriated by the Concessioning Authority as per the Concession Agreement and the Concessionaire fails to replenish or provide fresh Performance Security within a Cure Period of 15 (fifteen) days; (b) the Concessionaire does not make payment to the Concessioning Authority and remains in default for a period of more than 15 days from the due date of payment; (c) the Concessionaire does not complete the Project as per the date mentioned in the Agreement and continues to be in default for 180 (One Hundred and Eighty) days; (d) the Concessionaire does not construct and operate any of the items mentioned in the scope of work; (e) the Concessionaire abandons or manifests intention to abandon the Project without prior written consent of the Concessioning Authority; (f) the Concessionaire has failed to make any payment towards damages to any user or any utility within the period specified in this Agreement; (g) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement; (h) Change in management control of the Concessionaire Company which according to the Concessioning Authority may have material adverse effect towards the completion of the Project. (i) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets at any time before the Scheduled Project Completion Date; (j) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Concessioning Authority, a Material Adverse Effect; (k) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court;
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(l) the Concessionaire has failed to fulfill any obligation, for which failure Termination has been specified in this Agreement; or (m) the Concessionaire commits a material default in complying with any other provision of this Agreement. The Concessionaire novates and / or assigns the agreement to any third party without any prior written approval from the Concessioning Authority.
13.2. Procedure to issue Termination Notice
Without prejudice to any other rights or remedies which the Concessioning Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Concessioning Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Concessioning Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice.
13.3. Effect of Termination
Upon Termination as per article 13.1, the Concessionaire hereby acknowledges that no Termination Payment shall be due or payable by the Concessioning Authority. Concessionaire acknowledges that within 10 days of termination, the Concessionaire vacates the Project site. Concessionaire acknowledges that once the agreement is terminated the land allocated shall be returned back to the Concessioning Authority. In such case, the lease deed will stand cancelled ipso facto and land is returned back to the Concessioning 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 without any consideration to the Concessioning Authority. Concessioning Authority at its own discretion may repay the consideration already paid by the Concessionaire after adjusting for any direct or indirect losses that Concessioning Authority might have incurred due to delay in completion of the Project. No liability with respect to the land or assets shall devolve on Concessioning Authority.
13.4. Other Rights and Obligations of the Concessioning Authority
Upon Termination for any reason whatsoever, the Concessioning Authority shall: (a) be deemed to have taken possession and control of the Project site and any construction made on such site till the date of termination; (b) take possession and control of all materials, stores, implements and construction on or about the Project; (c) be entitled to restrain the Concessionaire and any person claiming through or under the Concessionaire from entering upon the Project Site or any part of the Project; and (d) Invoke the Performance Security as part Damages. In case termination is done by the Concessioning Authority not because of the default of the Concessionaire, then in such condition the Concessioning Authority will pay for all the financial
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loses incurred by the Concessionaire and the quantum of the financial losses will be decided by the Arbitrator as per Clause 15.3. 13.4 A The Concessioning Authority shall have at all times right to reject any name which has been proposed in relation to the novation of this agreement
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Article 14.
Liability and Indemnity
14.1. General indemnity
The Concessionaire will indemnify, defend, save and hold harmless the Concessioning 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 Concessioning Authority indemnified persons.
14.2. Liability of Concessioning Authority
The Concessioning 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) (b) defect in title and/or the rights of the Concessioning Authority in the land given on Concession to the Concessionaire breach by the Concessioning 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 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 and the same shall be the liability of the Concessionaire.
14.3. Indemnity by the Concessionaire
Without limiting the generality of Clause 14.1, the Concessionaire shall fully indemnify, hold harmless and defend the Concessioning Authority from and against any and all loss and/or damages arising out of or with respect to: (a) (b) (c) (d) failure of the Concessionaire to comply with Applicable Laws and Applicable Permits; 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 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. Breach by the Concessionaire of any of the obligations under this Agreement.
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14.4. No consequential claims
Notwithstanding anything to the contrary contained in this Article 14, 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.
14.5. Survival on Termination
The provisions of this Article 14 shall survive Termination.
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Article 15.
Dispute Resolution
15.1. Dispute resolution
15.1.1. Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in
relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the “Dispute”) shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 15.2.
15.1.2. The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this
Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute.
15.2. Conciliation
In the event of any Dispute between the Parties, either Party may call upon the Vice Chairman of the Concessioning Authority to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Vice Chairman of the Concessioning Authority within 7 (seven) days from the date of reference to discuss and attempt to amicably resolve the Dispute , either Party may require such Dispute to be referred to the Principle Secretary, Housing for amicable settlement. If the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 15.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 15.3.
15.3. Arbitration
15.3.1. Any Dispute which is not resolved amicably by conciliation, as provided in Clause 15.2, shall be
decided by reference to Arbitral Tribunal appointed in accordance with Clause 15.3.2. Arbitration shall be held in accordance with the provisions of Arbitration and Conciliation Act, 1996 .The venue of arbitration shall be Agra, and the language of arbitration proceedings shall be English.
15.3.2. The Arbitral Tribunal shall consist of three arbitrators. Each Party shall appoint one arbitrator, and the
third arbitrator shall be appointed by the two arbitrators so appointed, and in the event of disagreement between the two arbitrators, the appointment shall be made in accordance with the Arbitration and Conciliation Act, 1996.
15.3.3. The arbitrators shall make a reasoned award (the “Award”). Any Award made in any arbitration held
pursuant to this Article 15 shall be final and binding on the Parties as from the date it is made, and the
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Concessionaire and the Concessioning Authority agree and undertake to carry out such Award without delay.
15.3.4. The Concessionaire and the Concessioning Authority agree that an Award may be enforced against
the Concessionaire and/or the Concessioning Authority, as the case may be, and their respective assets wherever situated.
15.3.5. This Agreement and the rights and obligations of the Parties shall remain in full force and effect,
pending the Award in any arbitration proceedings hereunder.
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Article 16.
Miscellaneous
16.1. 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 Agra shall have jurisdiction over matters arising out of or relating to this Agreement.
16.2. Waiver of Immunity
Each Party unconditionally and irrevocably: (a) (b) agrees that the execution, delivery and performance by it of this Agreement constitute commercial acts done and performed for commercial purpose; agrees that, should any proceedings be brought against it or its assets, property or revenues in any jurisdiction in relation to this Agreement or any transaction contemplated by this Agreement, no immunity from such proceedings shall be claimed by or on behalf of the Party with respect to its assets; waives any right of immunity which it or its assets, property or revenues now has, may acquire in the future or which may be attributed to it in any jurisdiction;
(c)
16.3. Delayed Payments
The Parties hereto agree that payments due from one Party to the other Party under the provisions of this Agreement shall be made within the period set forth therein, and if no such period is specified, within 15 (fifteen) days of receiving a demand along with the necessary particulars. In the event of delay beyond such period, the defaulting Party shall pay penalty for the period of delay calculated at a rate equal to 12% per annum, and recovery thereof shall be without prejudice to the rights of the Parties under this Agreement including Termination thereof.
16.4. Waiver
16.4.1. Waiver, including partial or conditional waiver, by either Party of any default by the other Party in the
observance and performance of any provision of or obligations under this Agreement:-
(a)
shall not operate or be construed as a waiver of any other or subsequent default hereof or of other provisions or obligations under this Agreement; (b) shall not be effective unless it is in writing and executed by a duly authorised representative of the Party; and (c) shall not affect the validity or enforceability of this Agreement in any manner.
16.4.2. Neither the failure by either Party to insist on any occasion upon the performance of the terms,
conditions and provisions of this Agreement or any obligation thereunder nor time or other indulgence
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granted by a Party to the other Party shall be treated or deemed as waiver of such breach or acceptance of any variation or the relinquishment of any such right hereunder.
16.5. Liability for Inspection of Documents
Except to the extent expressly provided in this Agreement: (a) no review, comment or inspection by the Concessioning Authority of any document submitted by the Concessionaire nor any observation or inspection of any document or operations conducted at the Project Site hereunder shall relieve or absolve the Concessionaire from its obligations, duties and liabilities under this Agreement, the Applicable Laws and Applicable Permits; and the Concessioning Authority shall not be liable to the Concessionaire by reason of any review, comment, approval, observation or inspection referred to in Sub clause (a) above.
(b)
16.6. 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 either Party not contained in a binding legal Agreement executed by both Parties.
16.7. Survival
16.7.1.
(a) (b)
Termination shall:
not relieve the Concessionaire or the Concessioning Authority, as the case may be, of any obligations hereunder which expressly or by implication survive Termination hereof; and except as otherwise provided in any provision of this Agreement expressly limiting the liability of either Party, 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.
All obligations surviving Termination shall only survive for a period of 5 (five) years following the date of such Termination.
16.7.2.
16.8. Entire Agreement
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 such modification or amendment is agreed to in writing by the Parties and duly executed by persons especially empowered in this behalf by the respective Parties. All prior written or oral understandings, offers or other communications of every kind pertaining to this Agreement are abrogated and withdrawn.
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16.9. 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 to one or more provisions which may be substituted for such invalid, unenforceable or illegal provisions, as nearly as is practicable to such invalid, illegal or unenforceable provision. Failure to agree upon any such provisions shall not be subject to the Dispute Resolution Procedure set forth under this Agreement or otherwise.
16.10. No partnership
This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the Parties, or to impose any partnership obligation or liability upon either Party, and neither Party shall have any right, power or authority to enter into any Agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other Party.
16.11. Third Parties
This Agreement is intended solely for the benefit of the Parties, and nothing in this Agreement shall be construed to create any duty to, standard of care with reference to, or any liability to, any person not a Party to this Agreement, unless expressly provided in this Agreement.
16.12. Successors and Assigns
This Agreement shall be binding upon, and inure to the benefit of the Parties and their lawful successors, as per the provisions of this Agreement.
16.13. Notices
Unless otherwise stated, all notices, approvals, instructions and other communications for the purposes of this Agreement shall be given in writing and may be given by facsimile, by personal delivery or by sending the same by prepaid registered mail addressed to the Party concerned at its address stated in the title of this Agreement or the fax numbers set out below and/or any other address subsequently notified to the other Parties for the purposes of this clause 16.14 and shall be deemed to be effective (in the case of registered mail) 10 calendar days after posting, (in the case of facsimile) two Business Days after receipt of a transmission report confirming dispatch or (in the case of personal delivery) at the time of delivery. If to Concessioning Authority: Address : Agra Development authority Jaipur House, Agra Uttar Pradesh Tel: No. 0091-0562-2511178, 0562-511017 Fax No. :
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RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Attention If to the Concessionaire: Address Telephone Fax Attention
: Vice Chairman
: : : :
16.14. Language
All notices required to be given by one Party to the other Party and all other communications, Documentation and proceedings which are in any way relevant to this Agreement shall be in writing and in English or Hindi language.
16.15. Counterparts
This Agreement may be executed in two counterparts, each of which, when executed and delivered, shall constitute an original of this Agreement.
16.16. Validity
This Agreement shall be valid for the entire concession period
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED THIS AGREEMENT AS OF THE DAY, MONTH AND YEAR FIRST ABOVE WRITTEN. SIGNED, SEALED AND DELIVERED For and on behalf of Concessioning Authority (Agra Development Authority) by: (Signature) (Name) (Designation) In the presence of: 1.
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SIGNED, SEALED AND DELIVERED For and on behalf of CONCESSIONAIRE by:
(Signature) (Name) (Designation)
RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
2.
Schedule 1. Project Site
Details of Site
Location Map
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RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Schedule 2. Technical Schedule
The proposed Multi specialty hospital at Agra shall have 300 beds. Atleast four specialties from the following disciplines shall be developed in the Hospital. Sr. No. 1 2 3 4 5 6 7 8 9 10 Departments / Specialties Trauma Care Cardio Thoracic care unit (ICCU- Intensive Cardiac Care Unit) Intervention specialty and Cerebral Intervention Kidney Transplant (Hemodialysis) Neurology unit Obs & Gynecology Pediatric unit (with NICU – Neonetal Intensive Care unit) Dental unit for surgery Ophthalmology and ENT Cancer unit
The Concessionaire may also develop additional specialties other than those mentioned above. The hospital shall also have a round the clock emergency unit.
Accreditation Keeping in view that the hospital services should be world class, it is proposed that the hospital shall apply for JCI (joint Commission International) accreditation and obtain the same within five years from the date of operation. The Concessionaire should plan the facilities, manpower and the service standards to meet the stringent quality standards laid down by JCI. The Concessionaire’s proposed plan to meet the norms of JCI shall be presented to Agra Development Authority. A. Planning ? ? The hospital shall be developed with 300 bed capacity within 24 months from the Effective Date. The hospital shall be planned in accordance with the Development Control Regulations applicable to the region and norms if any prescribed by the Medical Council of India, Ministry of Health and Family Welfare and the State Health Department. ? ? The developer shall obtain necessary clearances and approval for the plans from the relevant authority as per the requirements. Service Apartments can be provided within the hospital complex to cater to the needs of the patients and their relatives.
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RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
? ? ?
Institute offering Laboratory Technician courses, Nursing courses can also be developed within the hospital complex. Restaurants, ATMs, Pharmacy for the convenience of the patients can be provided within the hospital complex. Research Institutes can also be setup in the hospital complex.
B. Designing ? ? ? ? Modular design to enable addition of new departments, least disturbance to existing facilities, quality, and added benefits of economy of scale shall be preferred. Architectural design norms as per NBC (National Building Code – 2005) Structural Design norms as per NBC and BIS (Bureau of Indian Standards) Services design norms as per CPEEHO (Central Public Health and Environmental Engineering Organisation), NBC and BIS In case of contradiction between the JCI Accreditation standards and the Design Norms specified above, the former shall prevail. C. Construction The construction shall be strictly as per the design norms specified above.
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Techno Economic Feasibility Report
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1.
Introduction:
Being centrally located on the national map, Agra forms an important regional urban center. Its central location makes it a major transport node at the regional level as well as national level. This has also led to an extremely rapid and hap-hazard growth and development pattern. The biggest resource for Uttar Pradesh is its large human resource and there is urgent need to invest in human capital if the State is to improve its ranking on Human Development Index and the country is to attain the Millennium Development Goals by 2015. Improvement in Health outcomes is an important part of the Development strategy of the State and, hence, the State Government is taking several steps to remedy the situation. Agra needs world class health care establishments to enhance the capability in delivering healthcare to masses. Agra development Authority aims to establish a multi-speciality Hospital at Shastri Puram near Sikandara. The total land identified for this purpose is 5 acres. The proposed Hospital offers an attractive investment opportunity for the private sector. Development Objectives: • Bridge the deficiencies in Public Health system • Provide Health care to people, a crucial development input. • To tap the potential of the Private Sector in providing health care. • To regulate the public sector investment in Health care.
2.
Need of Project:
Deficiencies in Public health system in providing health care facilities to the population is known. Healthcare is a crutial development input. The potential of private sector in providing health care facilities is still not fully tapped. Collaboration with the private sector in providing health facilities has generated many challenges and opportunities. Agra needs world class health care establishments and the role of private hospitals will only enhance our capacity in delivering healthcare to the masses. In spite of the entry of some major health care players, the city still laks high quality medical infrastructure at affordable prices. The city is weak in Trauma and Critical care, Burn treatments and Plastic surgery.
3.
City Profile:
Location and Connectivity The city of Agra is situated on the Western Bank of river Yamuna on National Highway (NH-2) at about 200 Kms from Delhi in the state of Uttar Pradesh. In the east, Agra is connected to Kanpur through NH-2 and in the south, it is connected to Gwalior through NH-3 and in the north, it is connected with Aligarh through NH- 93 and in the west, Agra is connected to Fatehpur Sikri through NH-11.
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
`
Agra
is
Location of Agra in India
Regional setting of Agra city
geographically located at 27°12' North latitudes and 78°12' East longitudes. It has an extremely strategic location on the confluence of three distinct geo-physical regions namely the plain of Uttar Pradesh, the plateau of Madhya Pradesh and the desert of Rajasthan. The city also falls in the center of the four-culture areas- Braj, Bundelkhand, Rajputana and western U.P. Both these factors have played significant roles in shaping the life and history of the city
Connectivity of Agra city
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Historical Background Agra city is of historic importance, which is amply evident from the numerous historical monuments in and around the city. The Hindu epic Mahabharata refers to it as ‘Agraban’, part of Brij Bhoomi, the homeland of Lord Krishna. The earliest recorded history of Agra, is its establishment by a local king in 1475. The city was the capital seat of Mughals in ancient times. The heritage of the city is linked with the Mughal dynasty but numerous other rulers also contributed to the rich past of this city. Agra was founded by Sikandar Lodi in the 16th century. It grew into an important power centre under the Delhi Sultan Sikandar Lodi and he shifted his capital from Delhi in 1504. Babar also stayed in Agra for some time and introduced the concept of square Persian-styled gardens. Emperor Akbar built Agra fort and Jehangir did the beautification with gardens and palaces. The city has a proud possession of “Taj Mahal” as one of the seven wonders of the world, now declared as World Heritage Site. The post-Mughal era of Agra saw the rule of Jats, Marathas and finally the British taking over the city. In addition to its historic importance, Agra is a main center of political, economic, commercial and cultural activities. Physical Characteristics The river Yamuna enters the city from the north-east corner, flows towards south for some distance and then turns towards east. The general slope is from west to east in CIS-Yamuna area on the right bank of the river Yamuna. The climate of Agra city is extreme and tropical. During summer season the maximum temperature of the city rises to 47?C and drops down to minimum of 30?C during winter season. The city receives moderate to high rainfall with an average yearly rainfall of about 686 mm. The ground levels at Agra vary from RL 150 m to 170m. The strata consist of mainly sandy soil. The sub-soil water level is generally 6 to 8 m below ground level. The city stretches for about 9.0 kms along the Yamuna river. The major part of the city is on the Western side of Yamuna and has grown beyond the river on the eastern side and is called the Trans Yamuna area while the original part is called as CIS Yamuna.
Significance of tourism in Agra Agra’s importance on tourist map cannot be underestimated; it is one of the key tourist destinations attracting tourists from all over the world. The city forms one edge of the prime tourist circuit in India- the so-called Golden Triangle, the other two cities being Delhi and Jaipur. The city is rich in its art, heritage and culture, which are also reflected in its historical monuments. This makes the city as one of the most attractive tourist places of the country. The Agra city currently has three world heritage sites: the Taj Mahal, Agra Fort and Fatehpur Sikri. This entire area is called Taj Trapezium (TTZ), a 10,400 sq. km area around the monument where industrial business is limited.
Golden Triangle
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Tourist Destinations The city has huge tourism potential due to the Taj Mahal. The city has numerous monuments of historical importance that give impetus to the tourism in the city. The major tourist spots in the city include Taj Mahal, Fatehpur Sikri, forts, temples, etc. Radha Swami Samadhi, Dayal Bagh, Ram Bagh, Jama Masjid, Mehtab Bagh, Itmad-ud-Daulah, Sikandara, Mariyam’s Tomb, Mankameshwar Mandir, Rawali, Kailash Mandir, Balkeshwar Mandir, Baptist Church, Sai-ka-Takia are also major attraction spots for tourists and devotees. Population Growth The population of Agra city is 12.75 lakhs as per Census 2001 with a decadal growth rate of 30.37 per cent. During the post-independence period commerce showed a phenomenal increase with the associated industrial development and establishment of industrial estate, which resulted in the increase of city population. In last four decades, the decadal growth rate was maximum of 32.15 per cent during 1971-81. The population projection for the year 2021 has been taken as 22.69 lakhs.
Population growth-Agra
14 Population in lakhs 12 10 8 6 4 2 0 Year 1961 1971 1981 1991 2001 5.91 4.62 9.78 7.81 12.75
Population and Growth RateAgra
Year Population (lakhs) 1961 4.62 1971 5.91 1981 7.81 1991 9.78 2001 12.75 Population projection (estimated) 2006 14.93 2011 17.53 2016 19.88 2021 22.69 Source: Census of India, 2001 Composition of Growth
Growth Rate (%) 27.92 32.15 25.22 30.37 -
It has been observed that the population of the city has increased at different growth rates. In 1981 the Nagar Nigam area has extended from 61.80 sqkm to 141.0 sqkm. The population increased during 1971-81shows 72.93 per cent natural increase and about 27.07 per cent in-migration, which show about 27.92 per cent total increase.
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Composition of Growth Population increase during 1971-81 % of total 1981-91 Natural Increase 4.31 72.93 In-migration 1.6 27.07 Jurisdictional change Total Increase 5.91 100.00 7.81 Source: Census of India Density The administrative limits of the Nagar Nigam Agra encompass an area of 141.0 sq. km with a population density of about 9043 persons per sq. km as per 2001 census. A comparison of the gross density of the city clearly indicates an increasing trend from the year 1981 to 2001. The density has shown a sudden decrease because Nagar Nigam area has increased more than two times whereas the population has not increased to that extent. The old city areas where the settlements started flourishing from the Mughal period like Lohamandi, Shahganj are highly congested while the density is lowest in colonial Agra. The large open areas between the fort and the Taj has remained undeveloped because it is the most low-lying area and hence more prone to floods. Population Density Year Population (lakhs) 1961 4.62 1971 5.91 1981 7.81 1991 9.78 2001 12.75 Source: Census of India, 2001 Area (sqkm) 61.80 61.80 141.00 141.00 141.00 Gross Density 7476 9563 5539 6936 9043 Year % of total 1991-2001 9.78 % of total -
Thus, it can be seen that the density in the mixed land use areas of the Mughal city is the maximum while in the institutional colonial areas it is the minimum. The density in these areas is as high as compared to the other parts of the city. Infrastructure Facilities in Agra Existing Linkages Agra is well connected by air, rail and road network. The city is on daily route of Indian Airlines and is only 30 minutes flight from Delhi. It is also on the main Delhi-Mumbai broad gauge (BG) railway line and well connected by BG to major cities like: Bharatpur, Gwalior and Kanpur. Agra is served by seven railway stations: Raja-kiMandi, Agra Cantonment, Agra City, Agra Fort, Idgah, Yamuna Kinara and Bilochpura and 3 bus stations (Agra Fort, Idgah and Transport Nagar). The city is falling on the corridor of Golden Quadrilateral under the ever since major scheme of NHDP. Moreover it is located on the junction of four National Highways namely Delhi - Kolkata (NH-2), Agra - Mumbai (NH-3), Agra - Jaipur (NH-11) and Agra - Aligarh (NH-93) and two State Highways namely Agra - Fatehabad (SH-62) and Agra – Gajnair (SH-39). The city is considered, from tourism point of view, to be one of the nodes of ‘golden triangle’ consisting of Delhi – Agra – Jaipur. The journey time by rail from the Delhi to Agra takes about 3 hours. Road Network
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
The road network within the city is not developed enough to cater for the requirement of tourism, which Taj Mahal attracts. Intermediate Public Transport (IPT) is the popular mode of transport due to lack of proper public transport system. In fact the road network of the city offers poor level of service affecting safety, efficiency and economy of traffic operation within the city. The total road length of 1724 km in Agra Nagar Nigam area (including pucca road, semi pucca road, kaccha road) hasn’t increased in last three years (since 2003). Mahatma Gandhi Road (MG Road) acts as north-south spine of the city dividing the CIS Yamuna area into two parts. It is a major commercial corridor handling about 60-70% of the traffic in the city. Thus it is the busiest road of the city, which has traffic congestion problems in the following six junctions: Bhagwan Takies, Hariparwat, Raja Mandi, St. Johns, Collectorate and State bank. Apart from MG Road junctions another six congested junctions have been identified. These are: Ram Bagh, Water Works Circle, Sultan Ganj Pulia, Yamuna Kinara marg, Bizli Ghar, Subhash Bazar (Kotwali Area). Agra Master Plan Agra Master Plan 2021 envisages an urban area of the order of 20,000 ha which has been subdivided into various landuses as given in the table. It is also estimated the housing shortage for the plan period of the order of 2.5 lakh. The important policy are as under: Hospitals Scenarion in Agra Total Number of Hospitals in Agra: 66 • Number of Hospitals • with >500 beds- 2 • 200- 499 beds – 1 • 50-199 Beds – 16 • <50 Beds - 47 Hospital SNMC Hospital Lady Layola Hospital District Hospital Beds 976 200 119
Total Number of beds is 2898. Estimated Demand for Hospital Beds for the year 2013 is for 1280 More Hospital beds to be added in the district as per WHO Estimate. 4. Development Controls and Regulations: The provisions of the Master Plan of Agra and Bye Laws shall form the guiding factor for the development of the Multi-speciality Hospital. The facility should be planned with adequate features of safety, fire safety, ventilation, power back up, maintenance, parking facility etc. The detailed requirement: Bidders would follow the technical specification for construction of project. 5. Justification for the Project
Development Mode: The facility is proposed to be developed on Design, Build, Finance, Operate and Transfer Basis (DBFOT) under Public Private Partnership Mode where under the land will be leased for a period the initial period of 30 years renewable every thirty years upto a maximum of 90 years
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
6.
Concessionaire:
Concessionaire would be responsible for designing, financing, constructing, operating & maintaining the facility for the entire concession period. At the end of concession period the project site and the entire facility thereon shall transferred back to the Authority without any encumbrance and at NIL value. 7. Building(s):
The concessionaire can design the building(s) in any style of their choice, the hospital should be adequately designed to help to develop the building(s) into a major and identifiable land mark in the city and the region. 8. TIE-UP:
Bidder shall ensure & demonstrate that the service/ technology providers, partners and designers of the facility are appropriate for the project requirement, scale and Complexity. Also, that the technology and material providers possess the desired capability for design, supply, implementation & ongoing maintenance support acceptable at various stages of the project. 9. Conformance to bye-laws:
Bidders shall ensure that the design of entire facility conforms to the provisions of Agra Master Plan,, Bye-laws, requirements of all statutory/regulatory bodies in respect all needful measures. 10. Project Approvals:
Concessionaire will be responsible to obtain all approvals from local bodies, statutory & regulatory authorities in respect of Building Plan of the facility to be constructed by him. All needful work and safety measure be provided & maintained by the concessionaire during the entire concession period. For any loss of life/property or any other such accidents and claims the claims thereof shall be borne by the concessionaire, Concessioning Authority will in no way being responsible for the same. Developer shall arrange for the power supply requirements including D.G. set for required power back-up on its own and shall be solely responsible for all aspects related to it. The developer should ensure adequate parking facilities within the premises so that no spill over parking happens on access roads.
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Financial Feasibility
Introduction Being centrally located on the national map, Agra forms an important regional urban center. Its central location makes it a major transport node at the regional level as well as national level. This has also led to an extremely rapid and hap-hazard growth and development pattern. The biggest resource for Uttar Pradesh is its large human resource and there is urgent need to invest in human capital if the State is to improve its ranking on Human Development Index and the country is to attain the Millennium Development Goals by 2015. Improvement in Health outcomes is an important part of the Development strategy of the State and, hence, the State Government is taking several steps to remedy the situation. Agra needs world class health care establishments to enhance the capability in delivering healthcare to masses. Agra development Authority aims to establish a multi-speciality Hospital at Shastri Puram near Sikandara. The total land identified for this purpose is 5 acres. The proposed Hospital offers an attractive investment opportunity for the private sector Project Cost Total Project cost of 300 Bedded Multi Speciality Hospital is estimated to be Rs.10056 Lakhs approximately. The details of the project cost are tabulated below: Sl.No 1 2 3 4 5 Particular Land Cost Total Construction Cost (Development, Structural, Pre-Op, Equipment, Contingencies) Preliminary, Preoperative & Startup Expenses Provision for Contingencies Interest During Construction Total Project Cost Basic assumptions for estimation of the project cost are as follows: a. Preliminary, Preoperative & Startup Expenses @ 1% of the sum of land and construction cost (to be written off in five years starting from 1st year of operation.) b. Provision for contingencies @ 5% of the sum of land, construction cost and preoperative expenses. c. Interest during construction is @ 12% payable quarterly. Total construction period 24 months. Need of Project: Deficiencies in Public health system in providing health care facilities to the population is known. Healthcare is a crutial development input. The potential of private sector in providing health care facilities is still not fully tapped. Collaboration with the private sector in providing health facilities has generated many challenges and opportunities. Agra needs world class health care establishments and the role of private hospitals will only enhance our capacity in delivering healthcare to the masses.
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Amount in Rs Lakh 1292 7500 88 440 1177 10056
Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
In spite of the entry of some major health care players, the city still laks high quality medical infrastructure at affordable prices. The city is weak in Trauma and Critical care, Burn treatments and Plastic surgery. Assumptions Basic assumption for estimation of projected revenue and expense from the project are as following: 1. Number of beds: 300 2. Debt: Equity for the project is 1.5:1 3. Basic space requirement in a hospital is 800 square feet per bed. Therefore total space requirement for 300 beds is 240000 square feet. 4. Area available is 5 Acres. 60% of total area is taken as constructed area. With FAR of 2 allowed the area available for construction is 6 Acres. 5. Average Length of Stay per admitted patient is 4 days 6. Number of days in a year is taken as 310 7. Construction period is taken as 36 months 8. Total Number of Beds to come up in first three years is 150 and remaining 150 will come up in next two years. Year Year Year Year -1 Year -2 Year -3 1 2 3 Beds Beds Beds Beds Beds Beds 0 0 0 150 150 300 9. Various revenue streams taken are as follows: ¾ Room Related Revenue ? Beds will be of 2 Category: Category 1 will consist of 70% of the beds and Per Bed Charge will be Rs. 1500/- per day. Category 2 will consist of 30% of the beds and Per Bed Charge will be Rs. 2000/- per day ? Occupancy Rate will be as follows: Year Year Year Year Year Year Year Year Year Year Year 1 2 3 4 5 6 7 8 9 10 11 Beds 150 150 300 300 300 300 300 300 300 300 300 Occupancy 60% 70% 50% 60% 75% 80% 80% 80% 80% 80% 90% ? 11th year onwards occupancy will remain at 90%. ¾ OPD Revenue ? Number of OPDs: Twice a day; 4 hours per OPD. It is also assumed that there will be 10 departments. Average capacity of OPD is taken as 60%. Average time devoted by Doctor per patient is taken as 8 minutes ? OPD Charges are taken as Rs. 300 per patient ¾ Investigation Revenue ? All the in Patients will get their investigations done in the hospital and 40% of the total out patients will their investigations done in the hospital. ? It is assumed that 60% of the investigation tests will be common tests costing Rs 200 on an average and 40% of the investigation tests will be specialized tests costing Rs 1500 on an average ¾ Procedure Revenue
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
? ? ?
It is assumed that there is a requirement of 1 Major Operation theatre for every 100 beds. In a day on an average 3 procedures are conducted per OT per day Cost of major operation varies from Rs. 20000-200000 depending upon the type of operation Average cost of major operation based on table mentioned below is taken as Rs. 70000 2790 Category Category Category Category Category 1 2 3 4 5 15% 15% 25% 30% 15% 200000 100000 50000 30000 20000 69500
Numner of Patients per annum Percentage Distribution of Patients Cost of Opeartion Average Cost of Opeartion ? ? ?
It is assumed that there is a requirement of 1 Minor Operation theatre for every 150 beds. In a day on an average 3 procedures are conducted per OT per day Cost of major operation varies from Rs. 1000-10000 depending upon the type of operation Average cost of major operation based on table mentioned below is taken as Rs. 4500 1860 Category Category Category Category 1 2 3 4 25% 25% 25% 25% 10000 5000 2500 1000 4625
Numner of Patients per annum Percentage Distribution of Patients Cost of Opeartion Average Cost of Opeartion
¾ Revenue from Allied Services w.r.t Major Procedures ? When a person undergoes a major procedure he requires pre and post allied OT Procedures such as PAC, ICU & other activities. These services are cost intensive and has been assumed at 30% of the major procedure revenue. ¾ Miscellaneous Revenue ? 15% of the total revenue will come from Health Insurance, Pharmaceuticals, Medical Consumables, Medical Equipments, Cafeteria and other Non Hospital related revenue. 10. Various expenditure heads taken are as follows: ¾ Salary and Wages ? A manpower deployment chart is prepared consisting of MD, HoDs, Consultants, SRs, JRs, Surgeons, Nurses & Administration Staff. Numbers Charges per Month 1 300000 10 200000 20 150000 20 40000 40 25000 90 15000 50 7000
Page 11
MD HODs Consultants SRs JRs Nurses Admin/ Support Staff
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
¾ ¾
¾ ¾ ¾ ¾ ¾
Total Expenditure on Wages and Salary p.a. 1056 ? Per annum increase on an average is taken as 3% Surgeon Fees/Doctor Share ? Doctors and Surgeons conducting major and minor procedure will collect charges of 30% of total revenue generated from conducting these procedures. Pharmaceuticals and Consumables ? Pharmaceuticals and Consumables will be used while conducting major and minor procedures and investigations and test. It is assumed that cost of this component is 20% of the total revenue generated from conducting procedures and investigations Utilities ? Cost of Utilities per Bed per Annum is taken as Rs 25000 per bed. Maintenance ? Maintenance cost is taken as 5% of the total revenue generated Administrative Expenses ? Administrative Expenses are taken as 2% of the total revenue generated Marketing and PR ? Marketing and PR Expenses are taken as 5% of the total revenue generated initially and 2% from 6th year onwards Annual Payment to State Government ? 1% of the total revenue generated will have to be deposited with the government throughout concession period.
Based on the above assumptions profitability projections of the project was calculated for 35 years which are as following Projected Revenue Amount in Rs. Crores Year 10 62.61 33.45 29.16 7.54 0.00 21.62 Year 15 70.97 37.74 33.23 0.00 0.00 33.23 Year 20 78.31 42.49 35.82 0.00 0.00 35.82 Year 25 86.84 47.87 38.97 0.00 0.00 38.97 Year 30 96.90 54.01 42.89 0.00 0.00 42.89 Year 35 108.91 61.06 47.85 0.00 0.00 47.85
S.No. 1 2 3 4 5 6
Description Year 5 Operating Revenue 53.03 Opearting Expenditure 29.00 Net Opearting Income 24.03 Yearly Repayment 7.54 Yearly Interest 3.05 Income After Repayment of Loan & Interest 13.44
Financial Parameter S.No 1 2 Parameter Project IRR NPV of the revenue of 35 years discounted @ 12% Value 15.04% Rs. 19.00 Crores
Observation It is evident from the above table that expected revenue from the Hospital for period of 35 years is 14.06%.
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doc_820152405.pdf
A specialty (or speciality) in medicine is a branch of medical science. After completing medical school, physicians or surgeons usually further their medical education in a specific specialty of medicine by completing a multiple year residency to become a medical specialist.
DEVELOPMENT OF MULTI-SPECIALITY HOSPITAL AT AGRA
Under Integrated Urban Rejuvenation Plan
ON DESIGN, BUILD, FINANCE, OPERATE AND TRANSFER (DBFOT) BASIS UNDER PUBLIC PRIVATE PARTNERSHIP (PPP)
(Revised) RFQ cum RFP DOCUMENT
June 2009
Nodal Agency
AWAS BANDHU, UTTAR PRADESH, HOUSING & URBAN PLANNING DEPARTMENT, GOVERNMENT OF UTTAR PRADESH
IST FLOOR, JANPATH MARKET, LUCKNOW-226001 TEL: 0522-2237161 FAX: 0522-2612098, E-MAIL: [email protected] WEB: awas.up.nic.in Project Consultants
SREI Infrastructure Finance Limited In Association with DHV India Private Limited
AWAS BANDHU UTTAR PRADESH Government of Uttar Pradesh
Request for Proposal:
REVISED RFQ cum RFP DOCUMENT CONTENTS OF THE DOCUMENT VOLUME I : Instructions to Bidders
VOLUME II
:
Draft Concession Agreement
VOLUME III :
Techno Economic Feasibility Report
RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram In Agra
NOTICE INVITING REQUEST FOR QUALIFICATION CUM PROPOSAL
Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh
Development of Multi- Specialty Hospital at Shastripuram, Agra
As Part Of IURP Uttar Pradesh, India on DBFOT basis Government of Uttar Pradesh proposes development of Multi-Specialty Hospital at Shastripuram, Agra . UP Awas Bandhu is the nodal agency for the project. Deficiencies in the public sector health system in providing health services to the population are well known. The inability of the public health sector has forced poor and deprived sections of the population to seek health services from the private sector. Healthcare of people is crucial to the development of a state. Evidence indicates that, in many parts of India, the private sector provides a large volume of health services but with little or no regulation. The private sector is not only India’s most unregulated sector but also it’s most potent and untapped sector. To address the inefficiency and inequity in the health system, many state governments have undertaken health sector reforms. There is growing realisation that, given their respective strengths and weaknesses, neither the public sector nor the private sector alone can operate in the best interest of the health system. There is also a growing belief that public and private sectors in health can potentially gain from one another Agra needs world-class healthcare establishments and the role of private hospitals like this will only enhance our capability in delivering healthcare to the masses. Government of Uttar Pradesh proposes development of Multi-Specialty Hospital at Shastripuram, Agra. The scope of work will cover ? Build & operate 300-bedded super-specialty hospitals as per the International standards / Indian Public Health Standard (IPHS). ? Provide secondary and tertiary level medical services in selected disciplines in the hospital. ? Up-gradation of the hospitals, at a later stage, for starting super specialty courses along with training courses for nursing/ paramedical staff. The development of the project is on Design-Build-Finance-Operate and Transfer (DBFOT) basis under which the developer will Design, Finance, Construct, Maintain and Operate the project. GoUP invites proposals from the eligible developers either on their own or in consortium of up to four members, for being shortlisted for the issue of RFQ cum RFP Document. The Eligibility Criteria and other terms and conditions are given in RFQ cum RFP Document. The RFQ cum RFP may be obtained at the address given below on payment of Rs 25,000/- (Rupees Twenty Five Thousand only), through account payee Demand Draft in favour of Awas Bandhu payable at Lucknow.. The RFQ cum RFP may
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also be downloaded from the web http//awas.up.nic.in and submitted along with the Demand Draft as mentioned above. The last date for submission of RFQ cum RFP is 1300 Hrs on 03.07..2009. For further details please contact The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Tel: 0522-2237161 Fax:0522-2612098, E-Mail: [email protected], Web : awas.up.nic.in The Project Coordinator, SREI Infrastructure Finance Ltd. 5th Floor, D2, Southern Park Saket Place, New Delhi - 110017 Tel: 011-30615721 Fax: 011-30615818 [email protected]
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Disclaimer
1. Though adequate care has been taken in the preparation of this RFQ cum RFP Document (Volumes I and II), the Bidder should satisfy himself that the Document is complete in all respects including its legal validity. 2. Neither Awas Bandhu, UP nor their employees or consultants make any representation or warranty as to the accuracy, reliability or completeness of the information in this RFQ cum RFP (Volumes I and II) and it is not possible for Awas Bandhu, UP to consider the investment objectives, financial situation and particular needs of each party who reads or uses this document. Each prospective Bidder should conduct his own investigations and analysis and check the accuracy, reliability and completeness of the information in this RFQ cum RFP and obtain independent advice from appropriate sources. 3. Neither Awas Bandhu, UP nor their employees or consultants will have any liability to any prospective bidder or any other person under the law of contract, tort, the principles of restitution or unjust enrichment or otherwise for any loss, expense or damage which may arise from or be incurred or suffered in connection with anything contained in this RFQ cum RFP, any matter deemed to form part of this RFQ cum RFP, the award of the Project, the project information and any other information supplied by or on behalf of Awas Bandhu UP, ADA or their employees, any consultants or otherwise arising in any way from the selection process. 4. Awas Bandhu, UP reserves the right to reject any or all of the proposals submitted in response to this RFQ cum RFP at any stage without assigning any reasons whatsoever. 5. Awas Bandhu, UP reserves the right to change any or all of the provisions of this RFQ cum RFP prior to Proposal Due Date. Such changes would be intimated to all the parties being issued this RFQ cum RFP. 6. Awas Bandhu, UP reserves the right to change, modify, add to or alter the Selection Process including inclusion of additional evaluation criteria at later stage, which in no event shall be later than the Proposal Due Date. Any change in the Selection Process shall be intimated to all concerned parties.
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RFQ cum RFP DOCUMENT
Schedule of Bidding Process
1. Last date for receipt of queries 2.Last date for submission of RFQ Cum RFP 25.06.2009 at 1700 hrs 03.07.2009 at 1300 hrs at the office of the Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 03.07.2009 at 1400 hrs Rs. 25000 (Rupees Twenty Five Thousand), through account payee Demand Draft in favour of Awas Bandhu payable at Lucknow.
3.Date and time of Opening of RFQ cum RFP 45.Document Fees
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Table of Contents Page No 1. 2. 3. 4. 5. 5.1. 5.2. 5.3. 5.4. 5.5. 6. 6.1. 6.2. 6.3. 6.4. 6.5. 6.6. 6.7. 6.8. 6.9. 6.10. 6.11. 6.12. 6.13. 6.14. 6.15. 6.16. 6.17. 6.18. 6.19. 6.20. 6.21. 6.22. 6.23. 6.24. 6.25. 6.26. 6.27. 6.28. 6.29. 7. Notice: Inviting Request for Qualification cum Proposal Disclaimer Schedule of Bidding Process Salient Information Abbreviations Definitions Introduction Background of Agra Scope of Project Cost of the Project Commercial Consideration Project Implementation Mechanism Information and Instructions to Bidders Scope of Application Eligible Bidders Change in Consortium Composition Number of Applicants Application Preparation cost Project Inspection and Site Visit Right to Accept or Reject any or all Applications Contents of RFQ cum RFP Document Clarifications Amendment of RFQ cum RFP Language Currency Validity of Application Format and Signing of Application Sealing and Marking of Applications Submission of Bids Application Due date Late Applications Modifications / Substitution / Withdrawal of Proposals Evaluation of Application – Due Date Evaluation of Application – Criteria Evaluation of Application – Supporting Documents Evaluation of Application – Right to Reject Confidentiality Test of responsiveness Clarifications Qualification and Notification RFQ CUM RFP Documents Fees of the Consultants 11 1 2 3 6 7 8 11 11 13 13 13 14 14 14 15 15 15 15 16 16 16 16 16 17 17 17 17 18 19 19 19 19 19 19 19 20 20 20 20 21 22 22
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General Provisions 7.1. General Provisions
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7.2. 7.3. 7.4. 7.5. 7.6. 7.7. 7.8. 7.9. 7.10. 7.11. 7.12. 8.
Confidentiality Communication between Bidders and Awas Bandhu, UP Interpretation of Documents Pre-Bid Conference Enquiries concerning the RFQ cum RFP / Draft Concession Agreement Amendment of RFQ cum RFP Submission of Bids Bid Opening Earnest Money Deposit Performance Security Sources of Funds
23 23 24 24
25
25 25 26 26 27 28 29 29 32 33 33 35 35
Description of the Selection Process 8.1. Criteria for Evaluation 8.2. Evaluation of Financial Proposal (Assessment of Envelope B) Rules regulating the Consortium 9.1. Consortium of Bidders
9.
10. Methodology & Criteria for Evaluation 10.1. Financial Proposal Evaluation 11. Appendices Format for Power of Attorney for Signing Proposal
Format for Power of Attorney for Lead Member of Consortium
Appendix 1A Appendix 1B Appendix 2 Appendix 3 Appendix 4 Appendix 5 Appendix 6 Appendix 7 Appendix 8 Appendix 9A Appendix 9B Exhibit 2 Appendix 10 Appendix 11 Appendix 12 Appendix 13 Appendix 14 Appendix 15 Appendix 16 Annexure A
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Details of Bidder Format for Letter of Application Information related to Experience Format for Establishing Experience of Bidder (BRS 1) Format for Establishing Experience of Bidder (BRS 2) Format for Establishing Financial Capability of the Bidder Format for Financial Capability of Consortium (BRS 4) Deleted
Guidelines for Providing Information related to Financial Capability
40 41 43 44 45 46 47
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Format for Anti-Collusion Certificate Format for Project Undertaking Format for Project Undertaking Guiding Principles for MOU Format for Memorandum of Understanding (MOU) Deleted Consultancy and Success Fee Commitment Format for Letter of Acceptance Format for Letter of Commitment Financial Proposal Proforma for Bank Guarantee for Performance Security Project Site
50 51 52 53 54 56 57 59 61 62 65
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i.
Salient Information
This bid document comprises the following: a. Information to Bidders (RFQ CUM RFP Document-Vol I) b. Draft Concession Agreement (RFP Document-Vol II) c. Technical Schedule (RFQ CUM RFP Document-Vol II) TEFR is available with the Bid Documents for reference of the bidders.
Following are the salient aspects of information regarding this bid document (RFQ cum RFP):
ii.
The following shall be the Schedule of the Bidding Process. MILESTONE DATE Last Date for Submission up to 13:00 hrs. (Proposal Due 03.07.2009 at 1300 hrs at the Date) office of the Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Opening of Envelope A 03.07.2009 1400 hrs Opening of Envelope B 06.07.2009 1400 hrs
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3 Abbreviations
AW, UP BEC COD EMD EOI EPC FDI FAR ECS GoI GoUP Ha. LCM LOI LOA ADA MOU SPV UP Awas Bandhu, UP Bid Evaluation Committee Commercial Operation Date Earnest Money Deposit Expression of Interest Engineering, Procurement and Construction Foreign Direct Investment Floor Area Ratio Equivalent Car Space Government of India Government of Uttar Pradesh Hectare or Hectares Lead Consortium Member Letter of Intent Letter of Award Agra Development Authority Memorandum of Understanding Special Purpose Vehicle Uttar Pradesh
RFQ CUM RFP Request for Qualification cum Proposal
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Associates
Definitions
For a Bidding Company or a Consortium Member, only those entities would be “Associates” who control and is controlled by or is under the common control with such applicant/consortium member. Bid Document “Bid Document” shall mean any document issued by Awas Bandhu, UP as part of the Bid Process. Bid Process “Bid Process” shall mean various activities taken up by Awas Bandhu, UP leading up to the selection of the Successful Bidder/s. Bidder(s) “Bidder(s)” shall mean Bidding Company or Bidding Consortium that has submitted a Proposal in response to this RFQ CUM RFP Document. Bidding Company “Bidding Company” shall mean a corporate entity (Public or Private Limited) registered under the Companies Act, 1956 or equivalent International law1 satisfying the basic eligibility criteria of bidding. Bid Validity Period “Bid Validity Period” shall mean the period stipulated in Clause 6.13 of Section 6 of this RFQ CUM RFP Document, for which the Proposal submitted is valid. Bank “Bank” shall mean any SBI, Nationalised Bank and Indian Scheduled Commercial Bank whose networth is not less than Rs. 300 crores as on 31st March 2008. Consortium “Consortium” shall mean Group of Entities that have jointly submitted the proposal for the project.
1
Relevant Act as applicable has to be provided along in Envelope A with extract of relevant sections attached to the Act. Page 9
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Consortium Member Each entity in the Bidding Consortium shall be referred to as a Consortium Member. Earnest Money Deposit “Earnest Money Deposit or Bid Security” shall have the meaning as referred in Section 7.10 of this document. Effective Date “Effective Date” means the date on which all the Conditions Precedent are satisfied or waived in writing by both the Parties as per the Concession Agreement. Floor Area Ratio Floor Area Ratio means the quotient of the floor space excluding the area specifically exempted from computation under these 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 “Financial Bid / Financial Proposal” shall mean the information submitted as per Appendix 15 of this document. Good Industry Practice 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. Lead Member / Lead Consortium Member (LCM) In case of a Bidding Consortium, the Lead Member / Lead Consortium Member (LCM) shall be that Consortium Member vested with the prime responsibility of developing the Project and holding not less than 51% stake in the consortium. Letter of Acceptance “Letter of Acceptance” shall have a meaning as referred in Appendix 13 of this Document. It means Letter submitted by the bidder accepting the Award or Intention to Award the Project to the bidder. Letter of Commitment “Letter of Commitment” shall have a meaning as referred Appendix 14 of this Document. Project
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“Project” shall mean Design, Build, Finance, Operation and Transfer of Multi-Specialty Hospital at Shastripuram in Agra more specifically as mentioned under Clause 5.2 of Section 5. Project Site shall mean the area as given in annexure A. Proposal “Proposal” shall mean the Financial Proposal to be submitted by the Bidders in response to this Request for Proposal, unless the context specifically refers to a Techno-Commercial proposal and its sub-proposal (i.e. Technical Proposal and / or Financial Proposal) in which case, “Proposal” shall refer to such sub-proposal. Proposal Due Date “Proposal Due Date” shall have the same meaning as referred to in Clause 6.17 section 6 of this Document. Responsiveness / Non-responsive “Responsiveness / Non-responsive” shall mean as referred in Clause 6.25 of Section 6 of this document. Request for Qualification cum Request for Proposal (RFQcumRFP) “Request for Qualification cum Request for Proposal” shall mean this document advertised to invite the submission of “Qualification and Proposal” to Design, Build, Finance, Operate and Transfer of Multi-Specialty Hospital at Shastripuram in Agra. Selection Process “Selection Process” shall have the same meaning as the 'Bid Process'. Subsidiary/Subsidiaries For a Bidding Company or a Consortium Member, Subsidiary / subsidiaries shall mean only those entities in which the Bidding Company / Consortium Member” hold(s) more than 50% of the voting securities directly. Successful Bidder The Successful Bidder shall mean the bidder who has been issued Letter of Intent by Awas Bandhu, UP and Letter of Award by ADA indicating him as the Successful Bidder.
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5
INRTODUCTION
5.1 Background of Agra
The city of Agra is situated on the Western Bank of river Yamuna on National Highway (NH-2) at about 200 Kms from Delhi in the state of Uttar Pradesh. In the east, Agra is connected to Kanpur through NH-2 and in the south, it is connected to Gwalior through NH-3 and in the north, it is connected with Aligarh through NH- 93 and in the west, Agra is connected to Fatehpur Sikri through NH-11. `
Location of Agra in India
Regional setting of Agra city
Agra is geographically located at 27°12' North latitudes and 78°12' East longitudes. It has an extremely strategic location on the confluence of three distinct geo-physical regions namely the plain of Uttar Pradesh, the plateau of Madhya Pradesh and the desert of Rajasthan. The city also falls in the center of the four-culture areas- Braj, Bundelkhand, Rajputana and western U.P. Both these factors have played significant roles in shaping the life and history of the city
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Connectivity of Agra city
Historical Background Agra city is of historic importance, which is amply evident from the numerous historical monuments in and around the city. The Hindu epic Mahabharata refers to it as ‘Agraban’, part of Brij Bhoomi, the homeland of Lord Krishna. The earliest recorded history of Agra, is its establishment by a local king in 1475. The city was the capital seat of Mughals in medieval times. The heritage of the city is linked with the Mughal dynasty but numerous other rulers also contributed to the rich past of this city. Agra was founded by Sikandar Lodi in the 16th century. It grew into an important power centre under the Delhi Sultan Sikandar Lodi and he shifted his capital from Delhi in 1504. Babar also stayed in Agra for some time and introduced the concept of square Persian-styled gardens. Emperor Akbar built Agra fort and Jehangir did the beautification with gardens and palaces. The city has a proud possession of “Taj Mahal” as one of the seven wonders of the world, now declared as World Heritage Site. The post-Mughal era of Agra saw the rule of Jats, Marathas and finally the British taking over the city. In addition to its historic importance, Agra is a main center of political, economic, commercial and cultural activities. Physical Characteristics The river Yamuna enters the city from the north-east corner, flows towards south for some distance and then turns towards east. The general slope is from west to east in CIS-Yamuna area on the right bank of the river Yamuna. The climate of Agra city is extreme and tropical. During summer season the maximum temperature of the city rises to 47?C and drops down to minimum of 30?C during winter season. The city receives moderate to high rainfall with an average yearly rainfall of about 686 mm. The ground levels at Agra vary from RL 150 m to 170m. The strata consist of mainly sandy soil. The sub-soil water level is generally 6 to 8 m below ground level.
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The city stretches for about 9.0 kms along the Yamuna river. The major part of the city is on the Western side of Yamuna and has grown beyond the river on the eastern side and is called the Trans Yamuna area while the original part is called as CIS Yamuna.
5.2
Agra Development Authority
Agra Development Authority (ADA) was established under the Uttar Pradesh Urban Planning & Development Act 1973 in order to ensure planned development of the city. ADA has progressed from small beginnings to embrace an overreaching authority in the development scenario of Agra. In consonance with the aspirations of modern India, ADA aims at coordinated and planned development of city: to enable Agra to extend urban infrastructure to absorb the pressures of a rapidly changing society, and to provide an environment which would enable the utmost satisfaction level of all sections of its inhabitants. To fulfil its role, the Authority seeks to coordinate in accordance with a comprehensive Master Plan along with the work of various other agencies involved in the creation and extension of urban infrastructure. Taking forward this development process and to redress the lack of Multi Speciality Hospital in the State of UP, ADA has proposed to set-up a 300 Bed Multi Speciality Hospital in Agra.
5.3 Scope of the Project
Government of Uttar Pradesh (GoUP) through U.P. Awas Bandhu Lucknow intends to undertake various infrastructure projects for implementation on Public Private Partnership (PPP) Mode under “Integrated Urban Rejuvenation Plan” (IURP) scheme for selected cities of the state. Projects to be developed on PPP mode are being identified, developed and implemented in various cities of Uttar Pradesh namely Ghaziabad, Meerut, Agra, Aligarh, Allahabad, Varanasi, Lucknow and Kanpur. Under this a need to develop a Multi Speciality Hospital in Agra was felt . The Hospital is expected to develop as per the International standards/ Indian Public Health Standards. It is envisioned to provide Health care facilities in selected disciplines. The broad scope of work is to develop of a 300 bedded hospital at a site identified by ADA. The Hospital may be upgraded to have Multi Speciality courses along with training courses for nursing and paramedical staff. Agra Development Authority has identified and earmarked total 5 acres of plot located at Shastripuram near Sikandra in Agra. It is easily accessible from major land marks like the Sanjay place. Though easily accessible, the site is located away from the hustle and bustle of the city. The site shall be given on lease for the initial period of 30 years renewable every 30 years up to a maximum of 90 years including construction period.
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The successful bidders shall Design, Build, Finance, Operate and Transfer Multi Specialty Hospital on the 5 acre of plot earmarked for the purpose over the concession period of initial period of 30 years renewable every 30 years up to a maximum of 90 years Concessioning Authority. The successful bidder shall construct following facilities and get all the approvals for commercial operations of 150 beds and allied services in 36 months from the effective date and remaining beds within the next 24 months: including construction period, after which the facility will be transferred to the
A. Minimum Development Obligations (Essential Facilities):
• • To build and operate 300-bedded Multi-specialty hospital as per the International standards / Indian Public Health Standard (IPHS). Atleast four specialties from the following specialties shall be developed in the Hospital. Departments / Specialties Trauma Care Cardio Thoracic care unit (ICCU- Intensive Cardiac Care Unit) Intervention specialty and Cerebral Intervention Kidney Transplant (Haemodialysis) Neurology unit Obstetrics & Gynaecology Paediatric unit (with NICU – Neonatal Intensive Care unit) Dental unit for surgery Ophthalmology and ENT Cancer unit • The hospital shall also have a round the clock emergency unit.
B. Optional Facilities
? ? ? ? ? Service Apartments can be provided within the hospital complex to cater to the needs of the patients and their relatives. Hospital may offer Laboratory Technician and para medical courses within the complex. Restaurants, ATMs, Pharmacy for the convenience of the patients can be provided within the hospital complex. Research Centre can also be setup in the hospital complex. Helipad for picking up patients may be provided. Ambulance facility may be provided
All the facilities are to be developed as per the minimum quality standards set out for the purpose in the technical schedule appended in DCA Volume II with this document.
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While undertaking development of the Project, the Successful Bidder shall adhere to latest amended National Building Code of India, other relevant IS Codes and practices, Development Control Rules, FAR Limits, statutory requirements, guidelines and approvals of the Health Department of the Government of Uttar Pradesh, laws of land, the principles of good industry practices and any other norms as applicable from time to time. The Successful Bidder shall also take into account the guidelines issued by the State Health Department and obtain the necessary approvals. Keeping in view that the hospital services should be world class, the hospital may apply for JCI (joint Commission International) accreditation and obtain the same within five years from the date of operation. The successful bidder shall plan the facilities, manpower and the service standards to meet the stringent quality standards laid down by JCI. The Successful Bidder’s proposed plan to meet the norms of JCI shall be presented to Agra Development Authority. The successful bidder shall be responsible for all the clearances as may be required for the development and operations of the project. 150 beds and allied facilities shall be ready for operation after taking all the clearance(s) within 36 months of the effective date and the remaining beds shall be operational within the next 24 months. For the purpose of providing subsidized health services to poor, the Concessionaire shall provide 1% of the revenues of the hospital every year of the Concession period to the State Health Department. Revenue of hospital shall mean registration fees, hospital bed revenue, diagnostic laboratory test, consultation charges, operation charges and lease rentals from commercial facilities like banks, restaurants etc. Revenue of Hospital shall not include revenue from pharmacy, service apartments, training institutes and consumable cost directly reimbursed by patient. The Concessionaire shall be allowed to mortgage land of the project for availing financial assistance from funding agencies subject to the condition that the 20% of the land value at circle rates is paid upfront to the Concessioning Authority. Revenue Streams The Private Sector Operator will be able to recover its investment through the following indicative streams of revenue: • • • • • • IPD charges OPD charges Procedures and allied charges Investigations charges Revenue from Hospitalization (Room Related) Miscellaneous charges
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5.4 Cost of the Project
The project is estimated to cost Rs. 100.56 crores ( Rupees One hundred crores and fifty six lakh only).
5.5 Commercial Consideration
In consideration of the designated plot of land given on lease for the initial period of 30 years renewable every thirty years upto a maximum of 90 years, the Successful bidder shall pay, to the Concessioning Authority, annually a percentage of total revenue earned as quoted by him in the Financial proposal payable eleventh year (from the year of commercial operations of the first 150 beds) onwards through out the remaining concession period..The concessionaire shall also pay to the concessioning authority a yearly lease rental of Rs. 128/-( Rs. One hundred and twenty eight only ) per sq meter of land for the entire concession period including construction period The Concessionaire shall deposit 1% of the total revenue earned in the year in a fund with the government for the medical well being of the BPL population of Agra city. This will commence from the year of commercial operations of first 150 beds. Bidders may please note that in case of failure of the bidder in completion of the project, as mentioned in the scope of work and as per the minimum standards and specifications as per the technical schedule appended with this document in DCA Volume II, within 60 months, the performance security furnished on the execution of the Agreement shall be forfeited by ADA and blacklisted, as per the Provision of the draft Concession agreement. Additional measures as the Govt. may deem fit would be applicable on such a bidder. However, bidders may note that in case the work is being executed as per the minimum technical specifications in DCA Volume II but delayed due to Force Majeure Event as defined in the Draft Concession Agreement, the remedies pertaining to such Force Majeure Event shall be applicable as per the provisions in the Draft Concession Agreement.
5.6 Project Implementation Mechanism
The successful bidder in case of a consortium shall form a Special Purpose Vehicle (SPV) in the form of limited company under Companies Act, 1956, registered in UP for the purpose of implementation of the project. The Concession Agreement shall be signed between the SPV and ADA. In case, the successful bidder is a single entity, the Concession Agreement shall be signed between the Single Entity and ADA. No SPV shall be formed in case Single Entity is the Successful Bidder. 5.7 The GoUP shall provide single window clearances for all necessary approvals within the state and shall facilitate the Concessionaire in getting clearances and approvals from any agency from outside the state.
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6
INFORMATION AND INSTRUCTION TO BIDDERS
6.1 Scope of Application
6.1.1 ABUP wishes to receive Applications from experienced and capable Bidders for proposal in respect of the Project(s)..
6.2 Eligible Bidders
6.2.1 The Bidder may be a single company or a group of maximum 4 companies (hereinafter referred to as Consortium), coming together to implement the Project. The term Bidder used hereinafter would therefore apply to both a single entity and/or a Consortium. The Bidder should submit a Power of Attorney as per the format enclosed at Appendix 1A, authorizing the signatory of the Application to commit the Bidder. Applications submitted by a Consortium should comply with the following additional requirements:
6.2.2 6.2.3
a. Number of members in a consortium would be limited to maximum of 4; b. The Application should contain the information required for each member of the Consortium c. The purchaser of the RFQ CUM RFP document must be the Bidder itself or member of the consortium submitting the application.
d. An individual Bidder cannot at the same time be member of a Consortium applying for this Project. Further, a member of a particular Consortium cannot be member of any other Consortium applying for this Project; an undertaking towards this end needs to be submitted by all members. e. Members of the Consortium shall nominate one member as the Lead Member. The nomination shall be supported by a Power of Attorney as per the format enclosed at Appendix 1B f. Members of the Consortium shall enter into a Memorandum of Understanding (MOU) as per the format enclosed at Appendix 10 and duly notarized for the purpose of making the Application and submitting a Proposal. The MOU shall, inter alia: i. Convey the intent to form a Special Purpose Vehicle with shareholding commitment(s) as stipulated in this document, which would enter into the Concession Agreements and subsequently carry out all the responsibilities as Concessionaire in terms of the Concession Agreement, in case the Concession to undertake the Project is awarded to the Bidder. ii. Clearly outline the proposed roles and responsibilities of each member in case of Consortium at each stage, iii. Commit the minimum equity stake as stipulated, and iv. include a statement to the effect that all members of the Consortium shall be liable jointly severally for the execution of the Project in accordance with the terms of the Concession Agreement
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g. In case of consortium, the Lead Member shall hold at least 51% share in the shareholding. h. The other members of the consortium shall hold a minimum of 11% share each in the shareholding. 6.2.4 Notwithstanding anything stated elsewhere in this document, ABUP shall have the right to seek updated information from the Bidders to ensure their continued eligibility. Bidders shall provide evidence of their continued eligibility in a manner that is satisfactory to ABUP. Bidder may be disqualified if it is determined by the ABUP, at any stage of the process, that the Bidder will be unable to fulfill the requirements of the Project or fails to continue to satisfy the Eligibility Criteria. Supplementary information or documentations may be sought from Bidders at any time and must so be provided within a reasonable time frame as stipulated by ABUP. Any entity which has been barred or disqualified either by GOI or GOUP or their Departments or agencies from participating in projects (BOT or otherwise) and such disqualification subsists as on the Application date, would not be eligible to submit an Application, either individually or as member of a Consortium. Bidder to submit an affidavit to this effect.
6.2.5
6.3 Changes in Consortium Composition
After shortlisting, change in the composition of the Consortium (except lead member) will be subject to approval of ABUP but applications to change the consortium should reach Awas Bandhu at least 10 days before the last date for submission of RFQ cum RFP. Conditions for such approval will be provided in the RFQ CUM RFP document.
6.4 Number of Applications
Each Bidder shall submit only one (1) Application in response to this RFQ cum RFP. Any Bidder, which submits or participates in more than one Application will be disqualified and will also cause the disqualification of the Consortiums / Bidder of which it is a member as the case may be.
6.5 Application Preparation Cost
The Bidder shall be responsible for all of the costs associated with the preparation of its Application and its participation in the Selection process. ABUP will not be responsible or in any way liable for such costs, regardless of the conduct or outcome of the qualification process.
6.6 Project Inspection and Site Visit
6.6.1 It is desirable that each Bidder submits its Application after inspecting the sites; and ascertaining for itself the location, surroundings, access, transport, right of way or any other matter considered relevant by it. 6.6.2 Site visit may be facilitated by ABUP. A prospective Bidder may notify ABUP in writing 3 days prior to planned visit. ABUP would endeavor to facilitate the site visit depending upon the availability of the concerned officials. 6.6.3 It would be deemed that by submitting the Application, Bidder has: (a) Made a complete and careful examination of the RFQ CUM RFP and
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(b) Received all relevant information requested from ABUP. 6.6.4 ABUP shall not be liable for any mistake or error on the part of the Bidder in respect of the above.
6.7 Right to Accept or Reject any or all Applications
6.7.1 Notwithstanding anything contained in this RFQ cum RFP, ABUP reserves the right to accept or reject any Application and to annul the bidding process and reject all Applications / Proposals, at any time without any liability or any obligation for such acceptance, rejection or annulment, without assigning any reasons. ABUP reserves the right to reject any Application if:
6.7.2
(a) At any time, a material misrepresentation is made or uncovered, or (b) The bidder does not respond promptly and thoroughly to requests for supplemental information required for the evaluation of the Application. Such misrepresentation / improper response would lead to the disqualification of the Bidder. If the Bidder is a Consortium, then the entire Consortium would be disqualified / rejected.
6.8 Contents of RFQ cum RFP Document
The RFQ cum RFP Document comprises the contents as given in the Table of Contents and would additionally include any Addenda issued in accordance with the provisions of this Document.
6.9 Clarifications
Interested parties may address their queries relating to the RFQ cum RFP Document by email only at [email protected] with a mandatory copy to consultants at [email protected]. The queries should reach the above latest by 1700 hrs on 25.06.2009. ABUP would endeavor to respond to the queries by the date mentioned in the Schedule of Bidding Process. The responses will be sent by fax/ email.
6.10 Amendment of RFQ cum RFP
6.10.1 At any time prior to the deadline for submission of Application, ABUP may, for any reason, whether at its own initiative or in response to clarifications requested by any Bidder, modify the RFQ cum RFP Document by the issuance of an Addendum.
6.10.2 Any Addendum thus issued will be sent in writing to all those who have purchased the RFQ cum RFP Document and shall also be uploaded on www.awas.up.nic.in
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6.11 Language
The Application and all related correspondence and documents should be written in the English language. Supporting documents and printed literature furnished by Bidder with the Application may be in any other language provided that they are accompanied by appropriate translations of the pertinent passages in the English language duly certified appropriately. Supporting materials, which are not translated into English, may not be considered. For the purpose of interpretation and evaluation of the Application, the English language translation shall prevail.
6.12 Currency
The currency for the purpose of the Application shall be the Indian Rupee (INR). The conversion to Indian Rupees shall be clearly indicated in the Appendix 4. In all such cases, the original figures in the relevant foreign currency and the INR equivalent thereof must be given. The exchange rate(s) applied shall be clearly stated. The conversion to Indian Rupees shall be based on the closing exchange rate published by the Reserve Bank of India as on 31st December 2008. ABUP reserves the right to use any other suitable exchange rate for the purposes of uniform evaluation for all Bidders.
6.13 Validity of Application
Applications shall remain valid for a period not less than 180 days from the Application Due Date. ABUP reserves the right to reject any Application, which does not meet this requirement.
6.14 Format and Signing of Application
6.14.1 The Bidder would provide all the information as per this RFQ cum RFP Document. ABUP would evaluate only those Applications that are received in the required format and are complete in all respects. 6.14.2 The Bidder shall prepare one original of the documents comprising the Application and clearly marked "ORIGINAL". In addition, the Bidder shall make two copies of the Application, clearly marked "COPY". In the event of any discrepancy between the original and the copies, the original shall prevail. 6.14.3 The Application and its copies shall be typed or written in indelible ink and each page shall be initialled and stamped by the Bidder. All the alterations, omissions, additions, or any other amendments made to the Application shall be initialled by the person(s) signing the Application.
6.15 Sealing and Marking of Applications
6.15.1The First Envelop should be marked as Envelop A (original and copy) and shall contain: a) Power of Attorney for the signing authority as per the format enclosed at Appendix 1A, b) Power of Attorney for the Lead member of the consortium as per the format enclosed at Appendix 1B, in case of Consortium; c) Bidder details (Appendix 2)
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d) Application in the prescribed format (Appendix 3) along with supporting documents; e) Completed Format for Experience as in Appendix 4 (BRS 1 to 2), along with supporting documents. f) Completed Format for Financial Capability Evaluation as in Appendix 5 (BRS3 &4) and Appendix 7, along with supporting documents.
g) Format of Anti collusion certificate as in Appendix 8. h) Format of Project Undertaking as in Appendix 9A. i) In case of a Consortium, an undertaking from each member of Consortium certifying that it is an exclusive member of that particular consortium alone and not a member of any other consortium nor an independent Bidder, bidding for this project and has submitted only one (1) Application in response to this RFQ CUM RFP. (Appendix 9B) MOU in case of a Consortium (Appendix 10);
j)
k) Earnest Money Deposit l) Letter of Undertaking for the success fee of 1% of the Project Cost net of taxes, and Consultancy Fees as per Appendix-12 m) Letter of Acceptance as per Appendix-13 n) Letter of Commitment as per Appendix-14 o) Documentary evidence, if applicable, relating to experience of group companies/associates as per clause 8.1.2. 6.15.2 The second Envelop should be marked as Envelop B and shall include: • Financial Proposal as per Appendix-15. Please note that Awas Bandhu, UP retains the right to ask for any further information/ clarification during the Bid Process. 6.15.3 The Bidder shall also enclose in a separate envelope, enclosed in the outer envelope, a demand draft for Rs 25,000/- (Rupees Twenty Five Thousand Only), through account payee Demand Draft in favour of Awas Bandhu payable at Lucknow on any scheduled bank towards non refundable Document Fee. Application unaccompanied by this demand draft will not be considered for evaluation and short-listing.
6.16 Submission of Bid
Both the Envelopes A and B shall be put together in one envelope and be sealed properly. The Bidder shall seal the original
and copy duly marking the envelopes as "ORIGINAL" and "COPY" the envelopes shall then be sealed in an outer envelope super scribing “RFQ cum RFP for DEVELOPMENT OF MULTI-SPECIALTY HOSPITAL AT SHASTRIPURAM IN AGRA, UTTAR PRADESH” and also the name(s) of bidder/consortium The envelope shall be addressed to:
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The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India Tel: 0522-2237161 Fax:0522-2612098, E-Mail: [email protected], Web: awas.up.nic.in 6.15.5 If the envelope is not sealed and marked as instructed above, ABUP assumes no responsibility for the misplacement or premature opening of the contents of the Application submitted.
6.17 Application Due Date
Applications should be submitted before 1300 hours IST on the Application Due Date mentioned in the Schedule of Bidding Process, at the address provided above in the manner and form as detailed in this RFQ cum RFP. Applications submitted by either facsimile transmission, telex or e-mail will not be considered for evaluation and short listing. However ABUP reserves the right to extend the Application Due Date and Time, at any time prior to opening of RFQ cum RFP Applications; in such cases the applications received prior to such extension shall not be opened. Further if the RFQ cum RFP document is materially modified along/during such extended period, the RFQ cum RFP application received prior to extension shall be returned to the applicants and appropriate time shall be allowed for resubmission of the Applications.
6.18 Late Applications
Applications received after the Application Due Date shall not be considered,
6.19 Modifications/ Substitution/ Withdrawal of Proposals
The Bidder may modify, substitute or withdraw its Proposal after submission, provided that written notice of the modification, substitution or withdrawal is received by ABUP before the Proposal Due Date and time. No Proposal shall be modified or substituted or withdrawn by the Bidder after the Proposal Due Date and time
6.20 Evaluation of Application - Due Date
ABUP would open the Applications after 1400 hours 1ST on the Application Due Date mentioned in the Schedule of Bidding Process, for the purpose of evaluation.
6.21 Evaluation of Application - Criteria
ABUP would subsequently examine and evaluate Applications in Accordance with the criteria set out in Section 8.
6.22 Evaluation of Application - Supporting Documents
ABUP reserves the right to call for supporting documentation to verify the data provided by Bidders, at any time during the bidding process. The Bidder in such cases would need to provide the requested clarification / documents
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promptly and within the stipulated time failing which the Bidder is liable to be disqualified at any stage of the bidding process.
6.23 Evaluation of Application - Right to Reject
ABUP reserves the right to reject any Application if: (a) At any time, a material misrepresentation is made or uncovered; or (b) The Bidder does not respond promptly and thoroughly to requests for supplemental information required for the evaluation of the Application.
6.24 Confidentiality
Information relating to the examination, clarification, evaluation, and recommendation for the short-listed Bidders shall not be disclosed to any person not officially concerned with the process. ABUP will treat all information submitted as part of Application in confidence and would require all those who have access to such material to treat the same in confidence. ABUP will not divulge any such information unless it is ordered to do so by any authority that has the power under law to require its disclosure.
6.25 Tests of responsiveness
6.25.1 Prior to evaluation of Applications, ABUP will determine whether each Application is responsive to the requirements of the RFQ cum RFP. An Application shall be considered responsive if the Application: a) is received by the Application Due Date (Clause 2.16) including any extension thereof pursuant to Clause 2.17 b) is accompanied by MOU in case of a Consortium ( Appendix 10), if applicable, duly supported by Board resolution and charter documents c) Contains information required as per Appendix 3, 4(BRS 1 to2), 5(BRS 3 to 4) and 7. d) It is accompanied by Bid Document Fee of Rs. 25,000/e) It is accompanied by a valid Earnest Money Deposit ; f) Letter of Undertaking for the Success fee of 1% of project cost (net of taxes) to the consultants and Consultancy Fees as per Exhibit 10. g) Letter of Acceptance as per Appendix-13 h) Letter of Commitment as per Appendix-14 i) Contains all the documents which were to be submitted as per the provisions of Section 6.15 of this Document. ABUP reserves the right to reject any Application which is non-responsive and no request for alteration, modification, substitution or withdrawal shall be entertained by ABUP in respect of such Applications.
6.26 Clarifications
To facilitate evaluation of Applications, ABUP may at its sole discretion, seek clarifications in writing from any Bidder regarding its Application.
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6.27 Qualification and Notification
After the evaluation of Applications, ABUP would announce a list of successful Bidders (Bidders) who meet the Qualification Criteria. At the same time, ABUP would notify the other Bidders that their Applications have been unsuccessful.
6.28 RFQ CUM RFP Documents
RFQ CUM RFP Documents contain the following: Volume I Volume II Instruction to Bidders Draft Concession Agreement, Technical Schedule
TEFR is available with the above documents for the reference of the bidder. However the bidder has to conduct his own feasibility before submitting the bids.
6.29 Fees of the Consultants
SREI Infrastructure Finance Ltd in consortium with DHV India Pvt. Ltd. has been appointed as a Consultant to assist Awas Bandhu, UP in handling the bid process management for the selection of the Successful bidder. The Success Fee of 1% of the project cost exclusive of taxes at applicable rates has been agreed by Awas Bandhu UP, to be paid to SREI Infrastructure Finance Ltd. for providing the above mentioned advisory services. The Success Fee shall be net of all taxes (1% of Project Cost is net of all taxes). Every bidder shall therefore submit along with the Proposal, an undertaking as per Appendix-12 for the Success Fees of the Consultants (calculated at the rate of 1% of the project cost as mentioned in Section 5.3 of this RFQ cum RFP document, plus taxes as applicable) and the Consultancy fees of Rs. 1, 00,000/- (Rupees One Lakh only) to be reimbursed to Awas Bandhu, UP. This success fee shall be paid in the form of a Demand Draft issued by a Bank in favour of SREI Infrastructure Finance Ltd. Such a Demand Draft shall be extendable for a further period of 6 months by replacing it with a fresh Demand Draft after 5 months of its issue if required and asked by Awas Bandhu, UP due to delay in signing of Concession Agreement or otherwise beyond a period of 5 months from the date of issue of the said Demand Draft. The Success Fee in the form of Demand Draft shall be handed over to Awas Bandhu, UP by the Successful Bidder before the signing of the Concession Agreement. The successful bidder shall pay and deposit the amount of withholding or other taxes to the credit of the relevant tax authorities and issue a certificate of deduction and payment to SREI Infrastructure Finance Ltd.
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The Consultancy Fee of Rs. 1, 00,000/- (Rupees One Lakh only) paid by Awas Bandhu,UP to the Consultants will be reimbursed by the bidder to Awas Bandhu, UP within 2 weeks of signing the concession agreement between ADA and Bidder, on receipt of invoice from Awas Bandhu, UP.
7.1
7.1.1
General Provisions
Non-Discriminatory and Transparent Bidding Proceedings
Awas Bandhu, UP shall ensure that the rules for the Bid Process for the Project are applied in a non-discriminatory, transparent and objective manner. Awas Bandhu, UP shall not provide to any Bidder, information with regard to the Project or the Bidding Process, which may have the effect of restricting competition.
7.1.2
Prohibition against Collusion with other Bidder
Each Bidder shall warrant by its Bid that the contents of its Bid have been arrived at independently. Any Bid which has been arrived at through consultation, collusion, or understanding with any other prospective Bidder for the purpose of restricting competition shall be deemed to be invalid and the Bidder shall lose its Earnest Money Deposit. The anti-collusion certificate submitted at the time of submission of RFQ CUM RFP shall be applicable.
7.1.3
Inducements
Any effort by a Bidder to influence processing of Bids or award decision by Awas Bandhu, UP or any officer, agent or Advisor thereof may result in the rejection of such Bidder’s Bid. In such a rejection of Bid, the Bidder shall lose its Earnest Money Deposit.
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7.2
Confidentiality
confidential, and shall take all reasonable precautions that all those who have access to such material, treat this in confidence. Awas Bandhu, UP will not divulge any such information unless it is ordered to do so by any authority, which has the power to require its release.
7.2.1 Awas Bandhu, UP shall treat all Bids and other documents, information and solutions submitted by Bidders as
7.2.2 Each Bidder shall, whether or not it submits a Bid, treat the RFQ CUM RFP Documents and other documents, information and solutions provided by Awas Bandhu, UP in connection with the Project or the bidding proceedings as confidential for a period of five (5) years from the issuance of the RFQ CUM RFP Documents. During this period, the Bidder shall not disclose or utilize any such documents, information without the written approval of Awas Bandhu, UP or as required by law or any governmental authority. 7.2.3 A was Bandhu, UP shall have the right to release the Bid information provided by the Bidders to its Advisors for the purpose of Bid evaluation and negotiations. Each Bidder shall have the right to release these RFQ CUM RFP Documents and other Documents to its advisors and to financial institutions for the purpose of Bid preparation, negotiations and financing. Both Awas Bandhu, UP and the Bidder shall ensure that their Advisors and/ or financial institutions treat this information in confidence. 7.2.4 Any information relating to examination, clarification, evaluation and comparison of bids and recommendations for the award of a contract shall not be disclosed to Bidders or any other person not officially concerned with the Bid Process until the award to the Successful Bidder has been communicated, except of reasons of public transparency.
7.3
Communication between Bidders and Awas Bandhu, UP
All communication, unless specified otherwise, on these RFQ CUM RFP Documents to Awas Bandhu, UP shall be addressed to: The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Tel: 0522-2237161 Fax:0522-2612098, E-Mail: [email protected] Web: http://awas.up.nic.in
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All communication to the Bidder shall be sent to the Authorised Representative & Signatory at the addresses mentioned in the covering letters to this RFQ CUM RFP, unless Awas Bandhu, UP is advised otherwise.
7.4
Interpretation of Documents
Awas Bandhu, UP will have the sole discretion in relation to: • The interpretation of this RFP, the Proposals and any documentation provided in support of the Proposals; and • All decisions in relation to the evaluation and ranking of Proposals, whether or not to request for any clarifications or additional information from Bidder in relation to its Proposal and the selection of the Successful Bidder. • Awas Bandhu, UP will have no obligation to explain its interpretation of this RFQ CUM RFP, the Proposals or their supporting documentation and information or to explain the evaluation process, ranking process or the selection of the Successful Bidder.
7.5
Pre-Bid Conference
Deleted
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7.6
7.6.1
Enquiries concerning the RFQ cum RFP / Draft Concession Agreement
UP encourages a careful review of these RFQ CUM RFP Documents and preparation of the observations/ comments by the Bidder. The Bidder should send their comments in writing to Awas Bandhu Awas Bandhu, UP at its discretion, may respond to inquiries submitted by any Bidder.. Such a response will be sent in writing to all the Bidders and will qualify as an “Addendum”. All inquiries should be submitted to the Awas Bandhu, UP in writing by e-mail to [email protected] with a copy marked to [email protected] No interpretation, revision or other communication regarding this solicitation is valid unless in writing and is signed by an officer so designated by the Executive Director of Awas Bandhu, UP. Written copies of Awas Bandhu, UP responses, including a description of the inquiry but without identifying its source, will be sent to all the Bidder(s) and will qualify as an “Addendum”
7.6.2
7.6.3
7.6.4
7.7
7.7.1
Amendment of RFQ cum RFP
On its own initiative or on the basis of the Pre-Bid Conference and any further discussions with any/ all Bidder(s), Awas Bandhu, UP may at its own discretion make changes in the technical/commercial parameters for the Project, which would be common for all the Bidders. Such changes in the technical / commercial parameters of the Project will qualify as an “Addendum”. The Addendum will be posted on the website of Awas Bandhu, UP http://awas.up.nic.in and will be binding on the bidders. Each such Addendum shall become part of the RFQ CUM RFP Documents. In order to offer prospective Bidders a reasonable time to take into account an Addendum while preparing their Proposals, or for any other reason, Awas Bandhu, UP may, at its discretion, extend the Proposal Due Date.
7.7.2
7.7.3
7.8
7.8.1
• •
Submission of Bids
Document Fee
The Bidder shall submit Document Fee of Rs. 25,000/- (Rupees Twenty Five Thousand only) along with the Proposal. The Bid Document Fee shall be in the form of a Demand Draft in favour of Awas Bandhu, UP, payable at Lucknow.
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• •
The Bid Document Fee is non-refundable. Bids not accompanied by Bid Document Fee shall be rejected.
7.9
•
Bid Opening
All Bids received by Awas Bandhu, UP will remain sealed and unopened in Awas Bandhu, UP’s possession until the Proposal Due Date. Awas Bandhu, UP shall open all Bids, received on or prior to the Proposal Due Date mentioned under Schedule of Selection Process or on any date as extended by Awas Bandhu, UP and communicated to the bidders. The Bids shall be opened in the presence of Bidders’ representatives, who choose to attend. Bidders’ representatives attending the Bid Opening shall register to evidence their presence. The following information will be announced at the Bid Opening and recorded: ? Bidder’s names ? Names of Consortium Members After the Bid Opening, information relating to the examination, clarification and evaluation of Bids and recommendations concerning the Bid Award shall not be disclosed.
•
•
7.10 Earnest Money Deposit
• The Bidder shall submit an Earnest Money Deposit (EMD) for an amount of Rs.1,00,56,000/- (Rs. One crore and fifty six Lacs only) along with its Proposal. The Earnest Money Deposit shall be in the form of a Bank Guarantee in favour of Awas Bandhu, UP, payable at Lucknow. The EMD shall be valid for a minimum period of 90 days more than Bid Validity Period. Upon any extension of the Bid Validity Period, the validity of the EMD shall be extended by the corresponding period. Awas Bandhu, UP shall have the right to reject the Proposal, which does not include the Earnest Money Deposit as non-responsive. The EMD of Unsuccessful Bidders, except the second successful bidder will be returned within a period of ten (10) days from the date of acceptance of Letter of Intent by the Successful Bidder. However, the EMD of second successful bidder shall be returned on signing of the concession agreement by the successful bidder. The EMD of the Successful Bidder shall be returned on submission of Performance Security by the Successful Bidder to the Concessioning Authority as per Section 6.24 of this RFQ CUM RFP Document.
•
•
•
•
•
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•
In addition to the above, Awas Bandhu, UP will promptly release EMD of all the Bidders in the event Awas Bandhu, UP decides to terminate the Bidding Process. The EMD shall be forfeited by Awas Bandhu, UP, in any of the following case: ? ? ? ? The Bidder withdraws his bid after the Proposal Due Date Successful Bidder fails to accept Letter of Intent Successful Bidder fails to submit the Performance Security or As per the provisions of Draft Concession Agreement
•
7.11 Performance Security
The Successful Bidder shall for due and faithful performance of its obligations during the Project completion, provide to ADA a performance security of Rs. 5,02,80,000/- (Rupees Five crores two lacs and eighty thousand only) in the form of Bank Guarantee (in the format prescribed in the RFQ CUM RFP) from SBI or any Nationalised Bank or Indian Scheduled Commercial Bank whose networth is not less than Rs. 1000 crores as on 31st March 2008 as per Section 4. The performance security shall be provided within 15 days of issue of Letter of Award by ADA. The Performance Security shall be released to the Successful Bidder as per provisions of the Draft Concession Agreement as follow: 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the issuance of Construction Completion Certificate by the Concessioning Authority. The next 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the start of Commercial operation of all the 300 beds. The balance 50% of the Performance Security in the form of bank guarantee shall remain in force and effect beyond the period of six months from the date of expiry of the Concession period. It shall be duly discharged and released to the Concessionaire beyond the period of six months from the date of the expiry of lease period Concession period and transfer of the Multi specialty hospital to ADA. The performance security in the form of bank guarantee shall be renewed every year beyond the period of six months from the date of the expiry of the Concession Period by the Concessionaire. If the Agreement is terminated due to any event other than a Concessionaire Event of Default, the Performance Security shall, subject to the Concessioning Authority’s right to receive or recover amounts, if any, due from the Concessionaire under this Agreement, be duly discharged and released to the Concessionaire. Upon occurrence of a Concessionaire Default, the Concessioning Authority shall, without prejudice to its other rights and remedies hereunder or in law, be entitled to invoke and appropriate the relevant amounts from the Performance Security as Damages for such Concessionaire Default. Upon such invocation and appropriation from the
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Performance Security, the Concessionaire shall, within 15 (fifteen) days thereof, replenish, in case of partial appropriation, the Performance Security to its original level, and in case of appropriation of the entire Performance Security provide a fresh Performance Security, as the case may be, and the Concessionaire shall, within the time so granted, replenish or furnish fresh Performance Security as aforesaid failing which the Concessioning Authority shall be entitled to terminate this Agreement in accordance with Article 13 of the Concession Agreement. In case the successful bidder fails to furnish the Performance Security within the stipulated time as mentioned herein, the LOA shall stand void and LOI may be issued to the second successful bidder.
7.12 Sources of Funds
The responsibility to raise funds for the Project would rest with the Successful Bidder.
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8
8.1
DESCRIPTION OF THE SELECTION PROCESS
CRITERIA FOR EVALUATION
8.1.1 Evaluation Parameters The Bidder's competence and capability is proposed to be established by the following parameters: (a) Technical Experience (b) Financial capability factor, in terms of: i. Turn over ii. Net worth iii. Operating profits 8.1.2 On each of these parameters, the Bidder would be required to meet the evaluation criteria as detailed in this Section . Bidders meeting all the criteria only will be qualified for further evaluation of the Proposal. 8.1.2 Eligible Experience Technical Experience For the purpose of this RFQ cum RFP, the applicant which could be single entity or the consortium shall be evaluated on the following: (i) (ii) Development or construction of core infrastructure projects (either individually or as a consortium member) Development or construction of similar Infrastructure projects ( either individually or as a consortium member) each having a minimum project cost of Rupees 10 crores
Eligible project: a) Projects awarded/awarded and under execution/completed during the last seven financial years, not before 31st March 2001, shall only be considered. b) Only eligible projects should be considered for category (i) above for estimation of the technical experience. An eligible project would have minimum project cost of at least Rupees 13.00 crores. For such category (i) evaluation, core infrastructure projects would mean national highways and expressway, airports, refineries and pipelines thereof, railways, ports, power, telecom, industrial parks, SEZs, Group Housing and Integrated/Hi-tech Township. (c)More weightage will be given to experience of similar kind of infrastructure projects than to experience of infrastructure projects. Similar infrastructure sector shall mean Hospitals and Medical Institutions of 100 or more beds. (d) Experience as a consortium member will be considered in proportion to the equity holding in the project at the time of execution /construction of the Project. Documentary evidence in the form of a CA certificate (Appendix 4) must be submitted along with the proposal:
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a) a certificate from the appropriate authorities of respective clients should be submitted in support of the above in case of completed projects. b) Relevant pages of the Contract Agreement in projects which are awarded and under execution as per clause 8.1.2 (a). Relevant pages shall mean the Preamble of this CA detailing the Parties and the last pages detailing the signatories. c) A copy of the Work Order/Letter of Award in cases where the work has been awarded within three months before the RFQ CUM RFP application due date. 8.1.3 Details of Experience The Bidder should furnish details of technical experience as on the date of submission of RFQ cum RFP as per Appendix 4, Bid Response Sheet No. 1. The Bidder must provide the necessary project specific information as per Appendix 4, Bid Response Sheet No. 2. 8.1.4 Financial Capability
The financial capability of the bidder / consortium will be evaluated on the basis of (a) Turnover (b) Net Worth and (c) Operating profits The Bidders should provide information regarding the above based on audited annual accounts. The Application must be accompanied by the audited Balance Sheet and Profit and Loss Account of the Bidder (of each member in case of a consortium) as per Appendix 5 for the last five (5) Financial Years not prior to 2002-03. 8.1.5 Evaluation Criteria for Financial Capability For the purpose of Qualification, the applicant – a single entity or a consortium should demonstrate the Threshold Financial Capability measured on the following criteria: 1. 2. 3. 4. Minimum Turnover of Rs. 34 crores in each of the last three financial years not earlier than 2004-05 Minimum Net worth of Rs. 20 Crores as on 31st March 2008 as certified by Chartered Accountant. Minimum Average Operating profits of Rs 10 crores for 3 out of last 5 years not prior to 2002-03 Single entity bidder and all members of the consortium, if applicable, should be profit-making concerns for the last 3 yrs not prior to 2004-05.
8.1.6 Special Conditions for a Consortium In case the Bidder is a Consortium, turnover, net worth and operating profits would be taken as an arithmetic sum of net worth, turnover and operating profits of each member of the Consortium, calculated in the ratio of their stake in the consortium/JV. The Consortium would be required to meet the threshold criteria on the basis of aggregate figures subject to provisions of this Clause .
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8.1.7 Evaluation methodology The technical and financial capacity of the bidder will be evaluated as per following: S.No 1. 1a. Criteria Technical criteria Core infrastructure Marks 65% 30 marks Marking System Number of eligible 3 marks for initial projects – 15 marks project and 1.5 marks for every addl project. Cumulative cost- 15 1.5 marks for initial Rs marks 13 crores and 0.75 marks for every addl. comleted Rs. 13 crs. or 0.50 marks for every other addl. Rs. 13 crs. Number of eligible 4 marks for initial projects – 20 marks project and 2 marks for every addl project. Cumulative cost- 15 3 marks for initial Rs marks 10 crores and 2 marks for every completed addl Rs. 10 crs or 1.5 marks for every other addl. Rs. 10 crs. 10 marks for the initial Rs 20 crores and 5 marks for addl Rs. 20 crs 7 marks for the initial Rs 34crores and 3 marks for addl Rs 34 crs 7 marks for the initial Rs 10 crores and 3 marks for addl Rs. 10 crs
1b.
Similar infrastructure
35 marks
2 2a.
Financial criteria Networth
35% 15 marks
2b.
Turnover
10 marks
2c.
Average Operating profits
10 marks
8.1.8 For evaluation of technical experience as per clause 3.2.1 and of financial capability as per clause 3.5, the financial and technical capabilities of the group companies/associates shall also be considered (for Projects costing Rs.300.00 cr or more). For these purposes group companies/associates shall mean the following “For the purposes hereof, associate means, in relation to the applicant/consortium member a person who controls and is controlled by or is under the common control with such applicant/consortium member. As used in this definition, the expression ‘control’ means, with respect to a person, which is company or corporation, the ownership, directly or indirectly of more than 50% of the voting shares of such person, and
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with respect to a person which is not a company or corporation, the power to direct the management and policies of such a person, whether by operation of law or by contract or otherwise”. 3.7.2.1 In case the RFQ CUM RFP applicant claims the technical and/or financial capacity of its group companies/associates, the applicant shall necessarily submit documentary evidence in proof of such claims. Such documentary evidence shall consist of CA certificates to support such capacity and also to establish requisite “Control” relationship as defined in 3.7.2 above. 8.1.9 The scores for the technical and financial capacity evaluated as per clause 3.7.1 shall be added to arrive at combined score of each applicant against maximum total marks of 100. Applicants scoring 50% or more in the combined scores shall be eligible for opening of the financial proposal.
8.2
Evaluation of Financial Proposal (Assessment of Envelope B)
Financial Proposal of the Bidders only who have secured 50 % or more marks (Clause 8.1.7) on the evaluation of envelop A would be evaluated. The evaluation criteria for assessment of the Financial Proposals are described in Section 10 of this RFQ cum RFP. In case of ambiguity between the amount in words and figures the former shall prevail.
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9
RULES REGULATING THE CONSORTIUM
The objective of this stage is to outline the Rules regarding the Consortium. The Envelope A shall contain the information in respect of the Bidder/Consortium as per Clause 6.15 of this RFQ CUM RFP document. Following are the rules which shall guide the operation of the Consortium:
9.1 Consortium of Bidders
9.1.1 Rules Regulating the Participation of a Consortium of Companies
Awas Bandhu, UP may also consider a bid submitted by a consortium of companies subject to the following conditions: 1. The Consortium Members should not exceed four. 2. The foreign construction company / Developer may apply directly for the project or in association with Indian Partner subject to the prevailing GoI, FDI and Indian Laws. 3. The members of the Consortium must form a Special Purpose Vehicle (SPV) and submit an MoU to that extent as per Clause 6.2.3 (f) below. 4. The commercial arrangements and roles and responsibilities between the consortium partners should be specified in Memorandum of Understanding and duly executed copy of MOU should be submitted along with the proposal. The MOU to be entered into between the Consortium Members as per Appendix 10 of this RFQ CUM RFP Document shall reflect the above. 5. The members of the consortium shall designate among themselves one member as “Lead Consortium Member”. 6. Lead Consortium Member shall hold a minimum of 51% equity in the SPV and each of the other Consortium Member shall hold a minimum of 11% in the SPV. 7. The Members of the Consortium shall execute Power of Attorney as per the format enclosed in Appendix 1B of RFQ cum RFQ CUM RFP Document. 8. A bidder who has applied for a project in its individual capacity or as a part of a consortium cannot participate as a Member of any other Consortium applying for this Project.
9.1.2
Change in Composition of Consortium
There should be no change in the consortium structure after the submission of bid. If there are any changes in the consortium structure by any bidder, Awas Bandhu, UP reserves the right not to consider the change in the consortium and to reject such a bid. No change in Consortium Members shall be allowed till the completion of the project or a minimum of 5 years ( which ever is later). However, the Lead Consortium Member shall not be allowed to be changed over the entire Concession
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Period and shall continue to hold 51% stake in the consortium till the start of Commercial Operations of all 300 beds. The Lead Consortium member shall be allowed to dilute the stake after the commercial operations date with the approval of the Concessioning Authority such that the stake of the Lead Consortium Member in the consortium shall not fall below 26% at any time till the end of the Concession Period.
9.1.3
Other Conditions in Respect of Consortium
Each Consortium Member shall have a minimum of 11% stake in the SPV formed. None of the Consortium Member shall be allowed to dilute its stake till the completion of the project or a minimum of 3 years (whichever is later). Lead Consortium Member shall invest minimum 51% of the equity towards the project. Lead Consortium Member shall not be allowed to dilute its stake to a level below 51% till the start of Commercial Operations of all the 300 beds The Lead Consortium Member shall be allowed to dilute the stake after the commercial operations date with the approval of the Concessioning Authority such that the stake of the Lead Consortium Member in the consortium shall not fall below 26% at any time till the end of the Concession Period. Any change in Consortium members may be allowed only if equal or better replacement is there. However, any change in consortium shall be at the discretion of the Concessioning Authority. The Concessionaire may be allowed to novate the agreement after completion of three consecutive years of commercial operations and realization of the full project land value ( at circle rates) by the Concessioning Authority. The Concessionaire shall submit the details of the proposed novatee along with its other qualifications (financial and technical capabilities) to the Concessioning Authorities for its due approval. Novatee, the Concessionaire and the Concessioning Authority shall enter into a tripartite agreement. Concessioning Authority shall reserve the right to reject any novation at any time. No further novation shall be permitted.
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10 METHODOLOGY & CRITERIA FOR EVALUATION OF FINANCIAL BID (ENVELOP B)
10.1 Financial Proposal Evaluation
• This part of the Request for Proposal provides information on the methodology that will be used to evaluate the Financial Proposals received. The Project will be awarded to such Eligible Bidder, which submits a responsive Bid and offers to enter into a Draft Concession Agreement on the best financial terms with ADA. These RFQ CUM RFP Documents stipulate the minimum qualification for the Project. These RFQ CUM RFP Documents may be amended or technical and financial parameters of the Project may be changed by Awas Bandhu, UP by issue of an Addendum. Such an Addendum will form part of these RFQ CUM RFP Documents and would be common for all the Bidders. Bid Evaluation Committee reserves the right to reject the Proposals, which do not conform to the provisions stipulated in the RFQ CUM RFP Documents. Financial Proposal of only the Bidders who have achieve 50% or more marks after evaluation of Envelope A, would be opened and evaluated. The Financial Proposals of the non-responsive Bidders would be returned to the respective Bidders unopened. Bid Evaluation Committee shall evaluate and submit its recommendations to the competent authority.
•
•
•
•
10.1.1 Responsiveness of Financial Proposal
? BEC through Awas Bandhu, UP will open Envelope ‘B’ of only who have achieved on 50% or more marks after evaluation of Envelope A as per Section 8.1.7 of this document. Any bid containing caveats/ deviations from RFQ cum RFP Documents is liable to be rejected by BEC/ Awas Bandhu, UP. Bidders shall be ranked as per the percentage share of the total revenue earned to be given to the ADA annually starting eleventh year (from the year of commercial operations of the first 150 beds) onwards till the end of the concession period ( as quoted by them. The proposal of the bidder quoting the highest percentage share of total revenue earned shall be considered as the proposal having highest financial score. The proposal with highest financial score would be ranked first.
?
10.1.2 Determination of Preferred Bidder
• Awas Bandhu, UP shall issue a Letter of Intent to the Successful Bidder after obtaining approval from the Competent Authority which needs to be accepted within 7 days of issuance of Letter of Intent.
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• •
ADA shall issue a Letter of Award (LOA) after getting the approval of the Board to the successful bidder within 7 days of issuance of LOI by Awas Bandhu, UP. The Successful Bidder shall enter into Concession Agreement with ADA for the implementation of the project within 30 days of issuance of LOA.
•
The successful Bidder shall be required to give performance security before signing of the Concession Agreement within 30 days of issue of Letter of Award. If the Successful Bidder fails in entering into contract (Concession Agreement) as required without giving the required clarifications to the satisfaction of Awas Bandhu UP, Awas Bandhu UP reserves the right to begin negotiations with the next highest ranked Bidder and so on.
•
Awas Bandhu, UP also reserves the right to reject any Proposal if: At any time, a material misrepresentation is made or uncovered, or The Bidder does not respond promptly and thoroughly to the requests for supplementary information required for evaluation of the Proposal. The Proposal deviates from the commercial parameters of these RFQ CUM RFP Documents.
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APPENDICES
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APPENDIX 1A FORMAT FOR POWER OF ATTORNEY FOR SIGNING PROPOSAL (On a Stamp Paper of appropriate value) POWER OF ATTORNEY Know all men by these presents, we ____________ (name and address of the registered office) do hereby constitute, appoint and authorize Mr./Ms. _____________________ (name and address of residence) who is presently employed with us and holding the position of __________________ as our attorney, to do in our name and on our behalf, all such acts, deeds and things necessary in connection with or incidental to our proposal for the [insert name of project] on Design, Build, Finance, Operate and Transfer (DBFOT) basis in the state of Uttar Pradesh, including signing and submission of all documents and providing information/ responses to Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh, (ABUP), representing us in all matters before GOUP, and generally dealing with ABUP in all matters in connection with our proposal for the said Project. We hereby agree to ratify all such acts, deeds and things lawfully done by our said attorney pursuant to this Power of Attorney and that all such acts, deeds and things lawfully done by our aforesaid attorney shall and shall always be deemed to have been done by us. For -----------------------(Signature) (Name, Title and Address) Accepted ________________ (Signature) (Name, Title and Address of the Attorney) Company seal & stamp
Notes: 1. To be executed by the sole Bidder or the Lead Member in case of a Consortium duly supported .by a Board Resolution 2. 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, where required, the executants(s) should submit for verification the extract of the charter documents and documents such as a resolution / power of attorney in favour of the Person executing this Power of Attorney for the delegation of power hereunder on behalf of the Bidder.
3.
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APPENDIX 1B FORMAT FOR POWER OF ATTORNEY FOR LEAD MEMBER OF CONSORTIUM (On a Stamp Paper of appropriate value) POWER OF ATTORNEY
Whereas Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh., (ABUP) has invited Proposals from interested parties for the [insert name of project] on Design, Build, Finance, Operate and Transfer (DBFOT) basis ("the Project"). Whereas, the members of the Consortium are interested in bidding for the Project and implementing the Project in accordance with the terms and conditions of the Bid Document and other connected documents in respect of the Project, and Whereas, it is necessary under the Bid Document for the members of the Consortium to nominate one of them as the Lead Member with all necessary power and authority to do for and on behalf of the Consortium, all such acts, deeds and things as may be necessary in connection with or incidental to the Consortium’s proposal for the Project. NOW THIS POWER OF ATTORNEY WITNESSETH THAT: We, M/s. _________________, and M/s. ________________ (the respective names and addresses of the registered office) do hereby constitute, appoint and authorize M/s. __________________________ as the Lead Member of the Consortium and as our attorney, to do on behalf of the Consortium, all or any of such acts, deeds or things as may be necessary in connection with or incidental to the Consortium’s proposal for the Project, including submission of application/ proposal, participating in conferences, responding to queries, submission of information/ documents and generally to represent the Consortium in all its dealings with Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh., (ABUP), or any other Government Agency or any person, in connection with the Project until culmination of the process of bidding and thereafter till the Concession Agreement is entered into with Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh., (ABUP). We hereby agree to ratify all such acts, deeds and things lawfully done by Lead Member as our said attorney pursuant to this Power of Attorney and that all acts deeds and things lawfully done by our aforesaid attorney shall and shall always be deemed to have been done by us/Consortium.
Dated this _______ Day of ________ 200_. (Executants) (To be executed by all the members of the Consortium) Company seal & stamp
Note: 1. The mode of execution of the Power of Attorney should be in accordance with the procedure, if any, laid down by the applicable law and the charter documents of the executant(s) and when it is so required the same should be under common seal affixed in accordance with the required procedure. The executant(s) should submit for verification the extract of the charter documents and documents such as Board Resolution and Power of Attorney in favour of the person executing this Power of Attorney in favour of the Lead Member.
2.
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APPENDIX 2 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
3
Brief description of the Company including details of its main lines of business and proposed roles and responsibilities in this Project.
Name, Designation, Address and Phone Nos. of Authorized Signatory of the Bidder (a) Name: (b) Designation: (c) Company: (d) Address: (e) Telephone No: (f) E-mail Address: (g) Fax No: Details of individual (s) who will serve as the point of contact / communication for ABUP, within the Company (a) Name: (b) Designation: (c) Address: (d) Telephone No. (e) E-mail address: (f) Fax No. In case of Consortium: The information above (1-4) should be provided for all the Members of the Consortium Information regarding role of each Member should be provided as per table below:
4
5 (a) (b)
1.1.1
1.1.2
Name of Member
1.1.3
Role of the Member*
1 2
Specify whether Lead Member, Associate Member
(Signature of Authorised Signatory) Company seal & stamp
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[On the Letter Head of the Bidder (in case of Single Bidder) or Lead Member (in case of a Consortium)]
APPENDIX 3 FORMAT FOR LETTER OF APPLICATION
Date: -----------The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India [insert name of project] on Design, Build, Finance, Operate and Transfer (DBFOT) basis Sir, Being duly authorized to represent and act on behalf of _________________ (hereinafter referred to as "the Bidder"), and having reviewed and fully understood all of the qualification requirements and information provided, the undersigned hereby expresses it’s interest and apply for qualification for the [insert name of project]. We are enclosing our Proposal, in one Original and two Copies, with the details as per the requirements of the Bid Document, for your evaluation. The undersigned hereby also declares that the statements made and the information provided in the Proposal are complete, true and correct in every detail. We confirm that the application is valid for a period of 180 days from the due date of submission of application and unconditional. We hereby also confirm the following: 1. The Proposal is being submitted by (name of the biding Company/Lead Consortium member) who is the Bidding Company/the Lead Consortium Member of the Bidding Consortium Comprising (mention the names of the entities who are the Consortium Members), in accordance with the conditions stipulated in the RFQ CUM RFP. As the Bidding Company/Lead Consortium Member (in case of a Bidding Consortium), we hereby confirm to abide by the roles and responsibilities assigned to us as per the MoU between the Consortium Members and as outlined in this RFQ CUM RFP. We have examined in detail and have understood the terms and conditions stipulated in the RFQ CUM RFP Document issued by Awas Bandhu, UP and in any subsequent communication sent by Awas Bandhu, UP. We agree and undertake to abide by all these terms and conditions. Our Proposal is consistent with all the requirements of submission as stated in the RFQ CUM RFP or in any of the subsequent communications from Awas Bandhu, UP. We confirm that there are no conditions in “Envelope B: Financial Proposal”. The information submitted in our Proposal is complete, is strictly as per the requirements stipulated in the RFQ CUM RFP, and is correct to the best of our knowledge and understanding. We would be solely responsible for any errors or omissions in our Proposal.
2. 3.
4. 5.
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6. 7.
We confirm that we have studied the provisions of the relevant Indian laws and regulations required to enable us to prepare this Financial Proposal and as required to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra, in the event that we are finally selected. We confirm that all the terms and conditions of the Proposal are firm and valid for acceptance for a period of 120 days from the Proposal due date.
Our PAN number is ----------------Our TAN number is ----------------Thanking You, Yours Sincerely, For and on behalf of Signature Name of the Person Designation : (name of the Bidding Company / Lead Consortium Member and the Company Seal) : (Authorised Representative & Signatory) : :
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APPENDIX 4 INFORMATION RELATED TO EXPERIENCE GUIDELINES 1. Member Code : NA= Not Applicable in case of a single entity Bidder, LM =Lead member, AM= Associate Member 2. The Chartered Accountant issuing the certification for Experience of the Bidder must hold a valid Certificate of Practice. 3. Any Bidder consisting of a Single Entity should fill in details as per the row titled Single Entity Bidder and ignore the other rows mentioned below. In case of a Consortium, the details need to be provided as per the lower rows and the row titled Single Entity Bidder may be ignored.
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FORMAT FOR ESTABLISHING EXPERIENCE OF BIDDER BID RESPONSE SHEET 1 Authority for whom carried out Equity holding at the time of execution/construction
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Type: Similar or core infrastructure
Project Cost Rs. crores
Date of
Name of the Project
Total
Note: 1. 2. 3.
Only the eligible projects that satisfy technical criteria shall be included. All the Financial numbers are to be given in INR The format shall be filled up for each member of the consortium and as a cumulative experience for the consortium
(Signature of Authorised Signatory)
Company seal & stamp
Signature , Name, Address and Membership No. of Chartered Accountant
RFQ cum RFP – Volume I- Instruction to Bidder
Estimated Marks
Commencement
Completion
Location
Award
S.No
RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital At Shastripuram In Agra
Bid Response Sheet 2
Name of Bidder: 1. 2. 3. 4. 5. 6. 7. 8. 9 10.
Member Code: Category: Name of Contract Country Name of Employer Employer’s address, telephone and fax no.) Role (strike out whichever is not applicable) Developer/Prime contractor/ Subcontractor Value of the Total Contract (in specified currencies and INR) Value of the Bidder’s Contract (in specified currencies and INR) Certified Billings till date (in specified currencies and INR and exchange rate) Date of Award Date of Commencement of Project/ Contract Date of Completion/ Commissioning
(Signature of Authorised Signatory) Company seal & stamp
Instructions 1. Information provided in this section is intended to serve as a back up for information provided in accordance with Appendix 4, Bid Response Sheet 1. 2. The Projects cited must comply with the eligibility criteria specified in Clause 3.2.3. 3. A separate sheet should be filled for each of the Eligible Projects.
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APPENDIX 5 FORMAT FOR ESTABLISHING FINANCIAL CAPABILITY OF THE BIDDER Bid Response Sheet 3 Format for Financial Capability of Single Entity Bidder Turnover, Net Worth and Net Cash Accruals Operating Profits(OP) (Rs. Crores) Year Year Year Year Turnover ( Rs. Crores) Year Year
Net Worth (Rs. Crores ) As on 31.3.08
(Signature of Authorised Signatory) Company seal & stamp Signature , Name, Address and Membership No. of Chartered Accountant
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BID RESPONSE SHEET 4 Format for Financial Capability of Consortium Turnover, Net Worth and Net Cash Accruals Turnover ( Rs Crores) Bidder Type Equity share (%) Year Year year Net Worth (Rs. Crores) As on 31st March 2008 Year
Operating Profit (OP) (Rs. crores) Year Year Total CA
Consortium Member 1 Consortium Member 2 Consortium Member …. Total Aggregate Turnover = Rs ---------------- crores Aggregate Net worth = Rs ________ crores Aggregate Operating Profit = Rs ______ crores
(Signature of Authorised Signatory) Company seal & stamp
Signature , Name, Address and Membership No. of Chartered Accountant
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APPENDIX 7
GUIDELINES FOR PROVIDING INFORMATION RELATED TO FINANCIAL CAPABILITY 1. The Bidder should provide the Financial Capability based on its own audited financial statements. Financial capability of the Bidder's parent company or its subsidiary or any associate company (who are not Members of the Consortium) will not be considered for computation of the Financial Capability of the Bidder. 2. Member Code LM = Lead member, AM = Associate Member 3. Instructions for calculation of Financial Capability: (a) Operating profit = Income before interest and tax (b) Net Worth = Subscribed and Paid-up Equity (including Share Premium, if any) + Reserves - Revaluation Reserves - Miscellaneous expenditure not written off-Deferred Revenue Expenditure-Deficit in Profit & Loss Account (c) The financial year would be the same as followed by the Bidder for its annual report. Year 1 will be the last Financial Year. Year 2 shall be the year immediately preceding Year 1. (d) The Bidder shall provide audited Annual Reports as required under this Bid Document. For a Consortium, audited Annual Reports of all Members shall be provided. (e) In case of a Consortium comprising of members with holdings in each other, the cross holdings between the group companies comprising part of the Consortium will be deducted for the purpose of Net Worth calculations. 4. Financial details of the Bidder. If the Bidder is a consortium the Financial Details of all the members. The Financial Details should be provided in the following manner.
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Name of Member: SN Particulars as per the Audited Balance Sheet Year 3
Role of Member: Year 2 Year 1 TOTAL
1 2 3 4 5 6 7 8 9 10 11
Profit After Tax (PAT) Depreciation Other non-cash expenditure Subscribed and Paid up Equity Reserves Revaluation reserves Miscellaneous expenditure not written off Deferred Revenue Expenditure Deficit in Profit & Loss Account Operating profit ( Profit before interest and tax) Net Worth = (4+5-6-7-8-9)
(Signature of Authorised Signatory) Company seal & stamp Signature , Name, Address and Membership No. of Chartered Accountant
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APPENDIX 8 FORMAT FOR ANTI-COLLUSION CERTIFICATE [To be submitted on the letter heads of the bidders separately] Anti-Collusion Certificate Date: -----------The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India [insert name of project] on Design, Build, Finance, Operate and Transfer (DBFOT) basis Sir, We hereby certify and confirm that in the preparation and submission of this Bid, 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, restrictive or monopolistic trade practice. 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 Bid. Dated this ______________ Day of ________________, 200_ Name of the Bidder Signature of the Authorised Person Note: To be submitted by each Member in case of Consortium.
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APPENDIX 9A FORMAT FOR PROJECT UNDERTAKING [To be submitted on the letter heads of the bidders separately] The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India [insert name of project] on Design,Build, Finance, Operate and Transfer (DBFOT) basis Sir, We have read and understood the Bid Document in respect of the captioned project provided to us by the Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh We hereby agree and undertake as under: (a) Notwithstanding any qualifications or conditions, whether implied or otherwise, contained in our Bid we hereby represent and confirm that our Bid is unqualified and unconditional in all respects. We are not barred by the Government of India or the Government of Uttar Pradesh or their Departments or Agencies from participating in any projects (DBFOT or otherwise). Dated this ___________________ Day of _______________, . Name of the Bidder _________________________________ Signature of the Authorised Person Company seal & stamp
(b)
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APPENDIX 9B FORMAT FOR PROJECT UNDERTAKING [In case of Consortium] [To be submitted on the letter heads of the bidders separately] The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 India [insert name of project] on Design,Build, Finance, Operate and Transfer (DBFOT) basis Sir, We have read and understood the Bid Document in respect of the captioned project provided to us by the Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh We hereby agree and undertake to be an exclusive member of the consortium and not a member of any other consortium nor an independent Bidder, bidding for this project and has submitted only one (1) Application in response to this RFQ CUM RFP
Dated this ___________________ Day of _______________, . Name of the Bidder _________________________________ Signature of the Authorised Person
Company seal & stamp
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Exhibit 2
Principles of the Memorandum of Understanding to be executed between the Members of a Consortium
In case of a Bidding Consortium, the principles according to which the Memorandum of Understanding (MoU) shall be executed between/among the Consortium Members are stated below: 1. The MoU should clearly specify the roles and responsibilities of each of the Consortium Members, along with their proposed equity contribution. It is expected that the individual members have role definitions not conflicting with those of the other Consortium Members. The MoU should clearly designate one of the Consortium Members as the Lead Consortium Member. The Lead Consortium Member shall be responsible for: a. Tying up finances for the Project b. Liasoning with the lending institutions and mobilizing debt resources for the Project. c. Ensuring the individual and collective commitment of each of the Consortium members in honouring the Developer’s obligations towards ADA. The Lead Consortium Member would be responsible for the overall execution of the Project. All Consortium Members shall be jointly and severally responsible for the same. The MoU shall be duly signed by each of the Consortium Members The MoU should be executed an appropriate stamp paper The MoU should be specific to this Project The MoU should be valid for a minimum period of twelve months from the Last Date for submission of the Request for Proposal. The validity period of the MoU should be extendible on the original terms, if required by ADA. MoU should clearly specify that in case of award of the project each consortium member will invest at least 11% equity for project.
2. 3.
4. 5. 6. 7.
8.
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APPENDIX 10 FORMAT FOR MEMORANDUM OF UNDERSTANDING (MOU)
(On Non – judicial stamp paper of Rs 100/- or such appropriate document duly attested by notary public)
This Memorandum of Understanding (MOU) entered into this _____day of _______ 2008 at ______ Between _______________(hereinafter referred as”________”) and having office at _______, India Party of the First Part 2.1 And ________(hereinafter referred as”__________”) and having office at ____________, India Party of the Second Part The parties are individually referred to as Party and collectively as Parties. WHEREAS Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government Of Uttar Pradesh, (ABUP) has invited RFQ cum RFP from entities interested in [insert name of project] Project. AND WHEREAS the Parties have had discussions for formation of a Consortium for bidding for the said Project and have reached an understanding on the following points with respect to the Parties’ rights and obligations towards each other and their working relationship. IT IS HEREBY AS MUTUAL UNDERSTANDING OF THE PARTIES AGREED AND DECLARED AS FOLLOWS: 1. That the Parties will form a Special Purpose Vehicle (SPV) with the shareholding commitments expressly stated. The said SPV shall not undertake any other business during the Concession Period, to domicile the Project prior to the start of implementation of the Project. 2. That the equity share holding of the Parties in the issued and paid up capital of the SPV shall not be less than as Specified Under Evaluation Criteria Mentioned in RFQ cum RFP Document during the Concession Period. 3. That M/s____________, and M/s____________, who are Members of the Consortium commit to hold the following equity stake in the SPV which are in line with the requirements of Clause 3 of Evaluation criteria of this Document at all times during the Lease Period 2.2 2.4 2.6 Name of Member 1. M/s. 2. M/s. 2.3 2.5 2.7 Type of Member % of shareholding
4. That any dilution in the equity holding by the Parties in the SPV shall be as per the provisions of the Concession Agreement that will be executed on award of the Project to us.
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5. However the parties undertake that there shall be no changes in respect of the lead member in case of a consortium till the execution of the concession agreement. 6. That the Parties shall carry out all responsibilities as Concessionaire in terms of the Concession Agreement. 7. That the roles and the responsibilities of each Party at each stage of the Bidding shall be as follows: 2.8 Name of Member 1. M/s. 2. M/s. 2.9 Type of Member Role & Responsibility
2.10 2.12
2.11 2.13
8. That the Parties shall be jointly and severally liable for the execution of the Project in accordance with the terms of the Concession agreement to be executed on award of the Project. 9. That the Parties affirm that they shall implement the Project in good faith and shall take all necessary steps to see the Project through expeditiously. They shall not negotiate with any other party for this Project. 10. That this MOU shall be governed in accordance with the laws of India and courts in Lucknow shall have exclusive jurisdiction to adjudicate disputes arising from the terms herein. In witness whereof the Parties affirm that the information provided is accurate and true and have caused this MOU to be duly executed on the date and year above mentioned. Witness: 1. 2. First Party Second Party
Company seal & stamp
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APPENDIX-12 Consultancy and Success Fee Commitment to SREI Infrastructure Finance Ltd in consortium with DHV India Pvt Ltd The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Uttar Pradesh Sub: Commitment to pay the Success Fee and Consultancy Fee to SREI Infrastructure Finance Ltd in association with DHV India Pvt Ltd Sir, We ___________( the “Member”), /[ our consortium consisting of the following members ( the “Member”)]
1 2 3
[Lead party] [ ] [ ]
Have /[Has] submitted our/ [its] Bid for the development of Multi-Specialty Hospital at Shastripuram on Design Build Finance Operate and Transfer basis in Agra. We hereby write to inform you that if the Single Entity / Consortium is selected as the successful bidder for implementing the project, the Concessionaire shall pay SREI Infrastructure Finance Ltd in consortium with DHV India Pvt Ltd a Success fee at the rate of 1% of the cost of the project (clause 5.4) as per clause 6.4. The Demand Draft in favour of SREI Infrastructure Finance Ltd for the said fee shall be handed over to Awas Bandhu UP before the signing of the Concession Agreement. The Consultancy Fee of Rs. 1,00,000/- (Rupees One Lakh only) paid by Awas Bandhu to the Consultants will be reimbursed to Awas Bandhu, UP within 2 weeks of receipt of invoice from Awas Bandhu, UP.
SIGNATURE _____________ NAME _____________
DESIGNATION _____________ COMPANY SEAL COMPANY ______________ DATE _______________
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APPENDIX-13 Format of Letter of Acceptance (The Letter of Acceptance is to be submitted by EACH Consortium Member of the Bidding Consortium) Date: Place: The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Uttar Pradesh Sub: Proposal for selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra Dear Sir, This has reference to the Proposal being submitted by (name of the Lead Consortium Member of the Bidding Consortium), as Lead Consortium Member of the Bidding Consortium comprising (mention name(s) of the Consortium Members) in respect of selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra in response to the RFQ cum RFP Document issued by Awas Bandhu, UP. We hereby confirm the following: (a) We (name of the Consortium Members furnishing the Letter of Acceptance), have examined in detail and have understood and satisfied ourselves regarding the contents including in respect of the following: a. The RFQ cum RFP Document issued by Awas Bandhu, UP; b. All subsequent communication between Awas Bandhu, UP and the Bidder, represented by (Mention name of the Lead Consortium Member) c. The Proposal being submitted by (name of the Lead Consortium Member) (b) We agree to abide by the terms and conditions of the RFQ CUM RFP Document and the Proposal being submitted by the Lead Consortium Member in respect of the Project. (c) We also reaffirm that (name of the Lead Consortium Member) continues to be the Lead Consortium Member and that (please give name, designation and address of authorized representative and signatory here) designated as the authorized representative and signatory of the Lead Consortium Member of the Bidding Consortium is the authorized representative and signatory in respect of all matters concerning our Proposal for this Project and contractual commitments thereof. Thanking You, Yours Sincerely,
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For and on behalf of Signature Name of the Person Designation
: (name of the Bidding Company / Lead Consortium Member and the Company Seal) : (Authorised Representative & Signatory) : :
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APPENDIX-14 Format of Letter of Commitment (The Letter of Commitment is to be submitted by EACH Promoter(s) and/or Associate(s) and/or Subsidiary (ies) of the Bidding Company / Consortium Members of the Bidding Consortium whose strength have to be credited for) Date: Place: The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Uttar Pradesh Sub: Proposal for selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra Dear Sir, This has reference to the Proposal being submitted by (name of the Lead Consortium Member of the Bidding Consortium), as Lead Consortium Member of the Bidding Consortium comprising (mention name(s) of the Consortium Members) in respect of selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra in response to the Request for Proposal (“RFQ CUM RFP”) Document issued by Awas Bandhu, UP. We hereby confirm the following: 1. We (name of the Promoter/Affiliate/Subsidiary), have examined in detail and have understood and satisfied ourselves regarding the contents including in respect of the following: a. The RFQ CUM RFP Document issued by Awas Bandhu, UP; b. All subsequent communication between Awas Bandhu, UP and the Bidder, represented by (name of the Bidding Company or of the Lead Consortium Member in case of a Bidding Consortium); c. The Financial Proposal being submitted by (name of the Bidding Company or of the Lead Consortium Member in case of a Bidding Consortium) 2. We agree to abide by the terms and conditions of the RFQ CUM RFP Document and the Proposal being submitted by the Bidding Company / Lead Consortium Member in respect of the Project. 3. We also reaffirm that (please give name, designation and address of authorized representative and signatory here) designated as the authorized representative and signatory of the Bidding Company / Lead Consortium Member of the Bidding Consortium is the authorized representative and signatory in respect of all matters concerning our Proposal for this Project and contractual commitments thereof. Thanking You, Yours Sincerely,
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For and on behalf of Signature Name of the Person Designation
: (name of the Bidding Company / Lead Consortium Member and the Company Seal) : (Authorised Representative & Signatory) : :
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APPENDIX-15 Financial Proposal (Format for Information Submission) (To be provided on the letterhead of the Bidder) Date: Place: The Executive Director, Awas Bandhu, Uttar Pradesh, Housing & Urban Planning Department, Government of Uttar Pradesh Ist Floor, Janpath Market, Lucknow-226001 Uttar Pradesh Dear Sir, Sub: Proposal for selection of Successful Bidder to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram in Agra 1. We the undersigned Bidder, submit the following as our Financial Proposal in response to the RFQ cum RFQ CUM RFP issued by Awas Bandhu, UP. -------- % ( ---------- percentage) share of total revenue earned to be given to ADA annually starting eleventh year (from the year of commercial operations of the first 150 beds) onwards till the end of the Concession Period in form of Demand Draft in favour of Agra Development Authority payable at Agra as consideration to Design, Build, Finance, Operate and Transfer Multi-Specialty Hospital at Shastripuram on the plot of land provided in Agra. 2. We confirm that the Financial Proposal conforms to all the terms and conditions stipulated in the Request for Proposal Document. 3. We confirm that our Financial Proposal is FINAL in all respects and contains NO conditions. 4. We confirm that in the event of more than one Responsive Bidders quoting the same lumpsum value, Awas Bandhu, UP shall break the tie by way of draw between such Bidders. 5. We confirm that, the information submitted in our Financial Proposal is complete and is correct to the best of our knowledge and understanding. We would be solely responsible for any errors or omissions in our Proposal. 6. We confirm that we have studied the provisions of relevant Indian laws and regulations required to enable us to prepare this Financial Proposal and as required to design, build, finance, operate and transfer the Project, in the event that we are finally selected. Thanking You, Yours Sincerely, For and on behalf of Signature Name of the Person Designation : (name of the Bidding Company / Lead Consortium Member and the Company Seal) : (Authorised Representative & Signatory) : :
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APPENDIX-16 Proforma for Bank Guarantee for Performance Security – Agra Development
Authority
[To be issued by SBI or any Nationalised Bank or Indian Scheduled Commercial Bank whose Net Worth is not less than INR 1000 crores as on 31st March 2008] From: …………………………………………………………………………… [Name and Address of Bank/ Financial Institution] The Vice Chairman, Agra Development Authority, Agra Uttar Pradesh
1. In consideration of the Governor of Uttar Pradesh represented by ________________ (hereinafter called “ the Government”) having agreed to exempt __________________ (hereinafter called “ the said Bidder(s)“) from the demand, under the terms and condition of an Agreement, dated _________made between ____________________and Agra Development Authority for Design, Build, Operate and Transfer “Multi-Specialty Hospital at Shastripuram in Agra” (hereinafter called “ the said Agreement”), of performance security for the due fulfilment by the said Developer(s)of the terms and conditions contained in the said Agreement , on production of a bank guarantee for Rs. (Rupees only). We, _____________________ (hereinafter referred to as “the Bank”) at the request of ______________/ Bidder(s)/ do hereby undertake to pay to the Government an amount not exceeding Rs. /- against any loss or damage caused to or suffered or would be caused to or suffered by the Government by reason of any breach by the said Developer(s)of any of the terms or conditions contained in the said Agreement. 2. We __________________________ (indicate the name of bank) do hereby undertake to pay the amounts due and payable under this guarantee without any demur, merely on a demand from the Government stating that the amount claimed is due by way of loss or damage caused to or would be caused to or suffered by the Government by reason of breach by the said Bidder(s) of any of the terms or conditions contained in the said agreement or by reason of the Bidder(s) failure to perform the said Agreement. Any such demand made or the bank shall be conclusive as regards the amount due and payable by the Bank under this guarantee. However, our liability under this guarantee shall be restricted to an amount not exceeding Rs. /-. 3. We undertake to pay to the Government any money so demanded notwithstanding any dispute or disputes raised by the Bidder(s) in any suit or proceeding pending before any court or Tribunal relating to our liability under this present being absolute and unequivocal, unless otherwise directed by such Court or Tribunal. The payment so made by us under this bond shall be a valid discharge of our liability for payment there under and the Bidder(s) supplier (s) shall have no claim against us for making such payment.
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4. We __________________________________ (Indicate the name of bank) further agree that the guarantee herein contained shall remain in full force and effect during the period that would be taken for the performance of the said Agreement and that it shall continue to be enforceable till all the dues of the Government under or by virtue of the said Agreement have been fully paid and its claims satisfied or discharged or till Govt certifies that the terms and conditions of the said Agreement, have been fully and properly carried out by the said Bidder(s)and accordingly discharges this guarantee, however not exceeding six months beyond the date of expiry of the Concession Period. Unless a demand or claim under this guarantee is made on us in writing on or before the date of expiry of we shall be discharged from all liability under this guarantee thereafter. 5. We _____________________ (indicate the name of Bank) further agree with the Government that the Government shall have the fullest liberty without our consent and without affecting in any manner our obligations hereunder to vary any of the terms and conditions of the said Agreement or to extend time of performance by the said Bidder(s)from time to time or to postpone for any time or from time to time any of the powers exercisable by the Government against the said Bidder(s) and to forbear or enforce any of the terms and conditions relating in the said agreement and we shall not be relieved from our liability by reason of any such variation or extension being granted to the said Bidder(s)or for any forbearance act or commission on the part of the Government or any indulgence by the Government to the said Bidder(s)or by any such matter or thing whatsoever which under the law relating to sureties would, but for this provision, have effect of so relieving us. 6. This guarantee will not be discharged due to the change in the constitution of the Bank or the Bidder(s)/ Supplier(s). 7. We, __________________________ lastly undertake not to revoke this guarantee during (indicate the name of bank) its currency except with the previous consent of the Government in writing.
SEAL OF [BANK/FINANCIAL INSTITUTION] ……………………………….. NAME OF [BANK/FINANCIAL INSTITUTION] ……………………………….. SIGNATURE …………………………….. NAME …………………………….. TITLE …………………………….. DATE ……………………………..
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ANNEXURE A – Project Site Detail of Site
Proposed Location of Multi-Specialty Hospital at Sector C-2, Shastripuram
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VOLUME II Draft Concession Agreement Between Agra Development Authority And ____________________________
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Index
Article 1.1. 1.2. 1.3. 1.4. Article 2.1. Article 3.1. Article 4.1. 4.2. 4.3. Article 5.1. 5.2. 5.3. Article 6.1. Article 7.1. 7.2. 7.3. Article 8.1. Article 9.1. 9.2. 9.3. Article 10.1. 10.2. Article 11.1. 11.2. 11.3. Article 12.1. 12.2. 12.3. 12.4. 12.5. 12.6. Article 1. Definitions and Interpretation Definitions Interpretation Measurements and Arithmetic Conventions Priority of Agreements and Errors/Discrepancies 2. Scope of the Project Scope of the Project 3. Consideration of the Contract The Consideration 4. Conditions Precedent to the Agreement Conditions Precedent Compliance Certificate Non-Fulfillment of the Conditions Precedent 5. Obligations of the Concessionaire Obligations of the Concessionaire Obligations relating to Other Agreements Obligations relating to Change in Ownership 6. Obligations of the Concessioning Authority Obligations of the Concessioning Authority 7. Representations and Warranties Representations and Warranties of the Concessionaire Representations and Warranties of the Concessioning Authority Disclosure 8. Disclaimer Disclaimer 9. Performance Security Performance Security Appropriation of Performance Security Release of Performance Security 10. Access on Project Site Project Site Others 11. Construction on the Project Site Obligations prior to the commencement of any work Project Start and Completion date Completion Certificate 12. Force Majeure Force Majeure Force Majeure Events Duty to Report Force Majeure Event Effect of Force Majeure Event Allocation of Costs Arising out of Force Majeure Dispute Resolution 13. Termination 6 6 9 11 11 13 13 15 15 16 16 16 16 18 18 19 19 21 21 22 22 23 24 25 25 26 26 26 26 28 28 28 29 29 29 29 30 30 30 30 31 31 31 32
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13.1. Termination for Concessionaire Default 13.2. Procedure to issue Termination Notice 13.3. Effect of Termination 13.4. Other Rights and Obligations of the Concessioning Authority Article 14. Liability and Indemnity 14.1. General indemnity 14.2. Liability of Concessioning Authority 14.3. Indemnity by the Concessionaire 14.4. No consequential claims 14.5. Survival on Termination Article 15. Dispute Resolution 15.1. Dispute resolution 15.2. Conciliation 15.3. Arbitration Article 16. Miscellaneous 16.1. Governing Law and Jurisdiction 16.2. Waiver of Immunity 16.3. Delayed Payments 16.4. Waiver 16.5. Liability for Inspection of Documents 16.6. Exclusion of Implied Warranties etc. 16.7. Survival 16.8. Entire Agreement 16.9. Severability 16.10. No partnership 16.11. Third Parties 16.12. Successors and Assigns 16.13. Notices 16.14. Language 16.15. Counterparts 16.16. Validity Schedule 1. Project Site Schedule 2. Technical Schedule
32 33 33 33 35 35 35 35 36 36 37 37 37 37 39 39 39 39 39 40 40 40 40 41 41 41 41 41 42 42 42 43 44
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CONCESSION AGREEMENT
This AGREEMENT is entered into on this [ ] day of [ ] (Month), 2009 at Agra BETWEEN 1. Agra Development Authority established under the Uttar Pradesh Urban Planning and Development Act 1973, having its registered office at Jaipur House, Agra, Uttar Pradesh (hereinafter referred to as ‘Concessioning Authority’ which expression shall unless repugnant to the subject or the context include its successors) of One Part; AND 2. ______________, a company incorporated under the Companies Act, 1956, and having its registered office at _________________________ (hereinafter referred to as the ‘Concessionaire’ which expression shall unless repugnant to the subject or the context include its successors) of the Other Part. WHEREAS: A. The Government of Uttar Pradesh has established Agra Development Authority under the Uttar Pradesh Urban Planning and Development Act 1973(hereinafter called the “Act”), for the development and planning of Agra. In order to develop the healthcare infrastructure in Agra, ADA intends to setup a 300 Bed MultiSpecialty Hospital and related facilities and has earmarked 5 acres of land for the same. Agra Development Authority is the rightful Lessor of the land situated in Agra, Uttar Pradesh, India as marked in Schedule 1 (hereinafter referred to as “the said land”), admeasuring approximately 5 Acres, on which it is proposed to develop 300 bedded Multi-Specialty Hospital under PPP mode. Concessioning Authority through Awas Bandhu,UP had invited proposals for the selection of a Concessionaire through the competitive route on the basis of Design, Build, Finance Operate and Transfer the Project, from bidders, including the Consortium comprising of _____________ as the Lead Member/Company by issuing the Request for Qualification cum Request for Proposal (“RFQ cum RFP”) document dated 4th June 2009 containing inter-alia the minimum qualification for a bidder and containing the technical and commercial parameters of the Project and the terms and conditions for the implementation of the Project. On evaluation of the submitted proposals, Awas Bandhu, UP accepted the proposal of the Consortium/Company and issued Letter of Intent (“LOI”) dated __________ to the Consortium/Company specifying interalia the obligation of the Parties to create a Special Purpose Vehicle for implementing the Project [ Applicable in case of Consortium]
B.
C.
D.
E.
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Pursuant to the issuance of LOI vide letter no. ___________ dated ________, the Consortium have incorporated and constituted ______________ as the Special Purpose Vehicle created for the sole purpose of implementation the Project which is Concessionaire. F. The Concessionaire is desirous of developing the Project, in accordance with all approved plans and has the necessary capability for completion of the project and has offered his services and has made payment of 1% of the project cost and taxes as applicable to M/s SREI Infrastructure Finance Ltd in consortium with DHV India Pvt. Ltd..
NOW THEREFORE IN CONSIDERATION OF THE FOREGOING AND THE RESPECTIVE COVENANTS AND AGREEMENTS SET FORTH IN THIS CONCESSION AGREEMENT, THE SUFFICIENCY AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, AND INTENDING TO BE LEGALLY BOUND THE CONCESSIONING AUTHORITY AND THE CONCESSIONAIRE (HEREINAFTER REFERRED TO AS “PARTIES” AND INDIVIDUALLY AS “PARTY”) HEREBY AGREE AND THIS AGREEMENT WITNESSTH AS FOLLOWS:
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Article 1.
1.1. Definitions
Definitions and Interpretation
The words and expressions defined in this Agreement shall, unless repugnant to the context or meaning thereof, have the meaning ascribed thereto herein, and the words and expressions defined in the Schedules and used therein shall have the meaning ascribed thereto in the Schedules; “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; “Affected Party” shall have the meaning set forth in Clause 12.1; “Agreement” or “Concession Agreement” means this Agreement, the Schedules hereto and any amendments thereto made in accordance with the provisions contained in this Agreement; “Agreement Date” means the date of execution of this Agreement; “Applicable Laws” means all laws, brought into force and effect by GOI or the State Government including rules, regulations and notifications made there under, and judgments, decrees, injunctions, writs and orders of any court of record, applicable to this Agreement and the exercise, performance and discharge of the respective rights and obligations of the Parties hereunder, as may be in force and effect during the subsistence of this Agreement; “Applicable Permits” means all clearances, licenses, permits, authorisations, 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; “Approvals” means all approvals, permissions, authorisations, consents and notifications from any Governmental Authority, regulatory or departmental authority including, but not limited to the approvals of the Agra Development Authority, Secretariat for Industrial Assistance, Reserve Bank of India and any other regulatory authority, as may be applicable. “Arbitration Act” means the Arbitration and Conciliation Act, 1996 and shall include modifications to or any re-enactment thereof, as in force from time to time; “Bank Guarantee” means an irrevocable and unconditional bank guarantee payable on demand issued by a bank in favour of Concessioning Authority and furnished by the Concessionaire to Concessioning Authority for guaranteeing the due performance of the obligations of the Concessionaire under this Agreement. Here Bank means any Indian Nationalized Bank or any Indian Scheduled Commercial Bank whose net worth is not less than Rs.300 crores as on 31st March 2008. “Bid” means the documents in their entirety comprised in the bid submitted by the Concessionaire in response to the RFQ/RFP in accordance with the provisions thereof; “Business Day” means a day on which banks are generally open for business in the city of Agra in India;
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“Change in Ownership” means a transfer of the direct and/or indirect legal or beneficial ownership of any shares, or securities convertible into shares, that causes the change in management structure of the bidder company according to the opinion of the Concessioning Authority; “Conditions Precedent” shall have the meaning set forth in Clause 4.1; “Construction Period” means maximum period of 36 months from the Effective Date for the operations of 150 beds plus next 24 months for the operations of the remaining 150 beds , after which commercial operations must start; “Consortium” means the group of entities that have jointly submitted the proposal for the Project. “Consortium Member” means each entity in the Consortium shall be referred to as a Consortium Member. “Damages” shall have the meaning set forth in Sub-clause (t) of Clause 1.2; “Developmental and Operations Standard(s)” means the minimum parameters and standards to be achieved by the Concessionaire in the construction, development and operations of the Project in accordance with internationally sound engineering practices, National Building Code and Applicable Law and / or as determined by the relevant Governmental Authority; “Dispute” shall have the meaning set forth in Clause 15.1.1; “Dispute Resolution Procedure” means the procedure for resolution of Disputes set forth in Article 15; “Effective Date” means the date on which all the conditions Precedent are satisfied or waived as per Article 4 in writing by both the Parties. “Financial Commitment” means the legally binding undertaking of the Concessionaire to mobilize the financial requirements of the project, for ensuring the completion of the project; “Force Majeure” or “Force Majeure Event” shall have the meaning set forth in as per Clause 12; “GOI” means the Government of India; “Good Industry Practice” means the practices, methods, techniques, designs, standards, skills, diligence, efficiency, reliability and prudence which are generally and reasonably expected from a reasonably skilled and experienced operator engaged in the same type of undertaking as envisaged under this Agreement and which would be expected to result in the performance of its obligations by the Concessionaire in accordance with this Agreement, Applicable Laws and Applicable Permits in reliable, safe, economical and efficient manner; “Government Instrumentality” means any department, division or sub-division of the Government of India or the State Government and includes any commission, board, authority, agency or municipal and other local authority or statutory body including Panchayat under the control of the Government of India or the State Government, as the case may be, and having jurisdiction over all or any part of Agra or the performance of all or any of the services or obligations of the Concessionaire under or pursuant to this Agreement; “Indemnified Party” means the Party entitled to the benefit of an indemnity pursuant to Article 14;
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“Indemnifying Party” means the Party obligated to indemnify the other Party pursuant to Article 14; “Lenders” shall mean the banks, financial institutions, international credit agencies that extend or agree to extend a credit facility to the Concessionaire in relation to the Project; “Parties” means the parties to this Agreement collectively and “Party” shall mean any of the parties to this Agreement individually; “Performance Security” shall have the meaning set forth in Clause 9.1; “Project” shall mean Design, Build, Finance, Operate and Transfer of 300 Bed Multi Specialty Hospital with at least four specialties from the selected specialties like Trauma centre, Plastic surgery unit, Burn Unit, Neurology, Ophthalmology in the hospital as mentioned in Annexure B of this document, round the clock emergency unit along with 15 acres Site earmarked for the purpose in accordance with the provisions of this Agreement at the end of the concession period;(more specifically as mentioned in Article 2 of this agreement) “Project Completion Date” shall mean the date on which the Concessioning Authority has issued the Project Completion Certificate after completion of the Project and shall have the meaning set forth in Clause 11.2; “Project Completion Certificate” shall mean the Project Completion Certificate issued by the Concessioning Authority certifying completion of Project by the Concessionaire; “Rs.” or “Rupees” refers to the lawful currency of the Republic of India;
“”Revenue of Hospital” shall mean registration fees, hospital bed revenue, diagnostic laboratory test, consultation charges, operation charges and lease rentals from commercial facilities like banks, restaurants etc. Revenue of Hospital shall not include revenue from pharmacy, service apartments, training institutes and consumable cost directly reimbursed by patient.
“Security Interest” means any existing or future mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, security interest or other encumbrances of any kind securing or conferring any priority of payment in respect of any obligation of any Person and includes without limitation any right granted by a transaction which, in legal terms, is not the granting of security but which has an economic or financial effect similar to the granting of security in each case under any Applicable Law. “Site” means the Project site measuring 5 acres as given in Schedule 1 of this Agreement given on lease for a period of initially for 30 years renewable every 30 years up to a maximum of 90 years. The Project shall mean the same as defined in this Agreement. “Standards of Reasonable and Prudent Concessionaire” means the standards, practices, methods and procedures expected from a person seeking in good faith to perform its contractual obligations and in so doing and in the general conduct of its undertaking exercising that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced Person engaged in the same type of undertaking under the same or similar circumstances and conditions including the conditions as contemplated by the Basic Documents.
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“Taxation” or “Tax” means all forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions, rates and levies (including without limitation social security contributions and any other payroll taxes), whenever and wherever imposed (whether imposed by way of withholding or deduction for or on account of tax or otherwise) and in respect of any person and all penalties, charges, costs and interest relating to it; “Third Party Agreements” means all Agreements entered into between the Concessionaire and third Persons, including, but not limited to other Agreements with Concessionaire and vendors of any goods or services to the Concessionaire. “Termination” means the expiry of the Concession period or termination of this Agreement; “Termination Notice” means the communication issued in accordance with this Agreement by one Party to the other Party terminating this Agreement;
1.2.
Interpretation
1.2.1. In this Agreement, unless the context otherwise requires,
(a) references to any legislation or any provision thereof shall include amendment or reenactment or consolidation of such legislation or any provision thereof so far as such amendment or re-enactment or consolidation applies or is capable of applying to any transaction entered into hereunder; (b) references to laws of India or Indian law or regulation having the force of law shall include the laws, acts, ordinances, rules, regulations, bye laws or notifications which have the force of law in the territory of India and as from time to time may be amended, modified, supplemented, extended or re-enacted; (c) references to a “person” and words denoting a natural person shall be construed as a reference to any individual, firm, company, corporation, society, trust, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the above and shall include successors and assigns subject to the provisions of this Agreement; (d) the table of contents, headings or sub-headings in this Agreement are for convenience of reference only and shall not be used in, and shall not affect, the construction or interpretation of this Agreement; (e) the words “include” and “including” are to be construed without limitation and shall be deemed to be followed by “without limitation” or “but not limited to” whether or not they are followed by such phrases; (f) references to “construction” include, unless the context otherwise requires, investigation, design, developing, engineering, procurement, delivery, transportation, installation, processing, fabrication, testing, commissioning and other activities that are to be completed on or before “Project Completion Date” as per the scope of work as defined under Article 2, and “construct” shall be construed accordingly; (g) any reference to any period of time shall mean a reference to that according to Indian Standard Time;
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(h) any reference to day shall mean a reference to a calendar day; (i) any reference to month shall mean a reference to a calendar month as per the Gregorian calendar; (j) references to any date, period or Milestone shall mean and include such date, period or Milestone as may be extended pursuant to this Agreement; (k) 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 the next business day; (l) the words importing singular shall include plural and vice versa; (m) references to any gender shall include the other and the neutral gender;
“lakh or lac” means a hundred thousand (100,000) and “crore” means ten million (10,000,000); (o) references to the “winding-up”, “merger”, amalgamation”, “takeover”, “dissolution”, “insolvency”, or “reorganization” of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding-up, reorganization, dissolution, arrangement, protection, change in management or relief of debtors; (p) 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; provided that this Sub-clause shall not operate so as to increase liabilities or obligations of the Concessioning Authority hereunder or pursuant hereto in any manner whatsoever; (q) 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 hand of a duly authorized representative of such Party, as the case may be, in this behalf and not otherwise; (r) the Schedules and Recitals to this Agreement form an integral part of this Agreement and will be in full force and effect as though they were expressly set out in the body of this Agreement; (s) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this Agreement shall, except where the context otherwise requires, mean references to Recitals, Articles, Clauses, Sub-clauses and Schedules of or to this Agreement, and references to a Paragraph shall, subject to any contrary indication, be construed as a reference to a Paragraph of this Agreement or of the Schedule in which such reference appears; and (t) 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 (the “Damages”).Request for Proposal – Volume II: Draft Concession Agreement Page 10
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(u) any reference to Build shall mean Construct and vice-versa unless the context otherwise requires (v) any reference to Operate/Operations shall mean Operate and Transfer/ Operations & Maintenance unless the context otherwise requires
1.2.2. Unless expressly provided otherwise in this Agreement, any documentation required to be provided or
furnished by the Concessionaire to the Concessioning Authority and/or the agency or person appointed by the Concessioning Authority shall be provided free of cost and in two copies, and if the Concessioning Authority and/or the person appointed by the Concessioning Authority is required to return any such documentation with their comments and/or approval, they shall be entitled to retain one copy thereof.
1.2.3. the rule of construction, if any, that a contract should be interpreted against the parties responsible for
the drafting and preparation thereof, shall not apply.
1.2.4. any word or expression used in this Agreement shall, unless otherwise defined or construed in this
Agreement, bear its ordinary English meaning.
1.3.
Measurements and Arithmetic Conventions
All measurements and calculations shall be in the metric system and calculations done to 2 (two) decimal places, with the third digit of 5 (five) or above being rounded up and below 5 (five) being rounded down.
1.4.
Priority of Agreements and Errors/Discrepancies
1.4.1. This Agreement, and all other Agreements and documents forming part of this Agreement are to be
taken as mutually explanatory and, unless otherwise expressly provided elsewhere in this Agreement, the priority of this Agreement and other documents and agreements forming part hereof shall, in the event of any conflict between them, be in the following order:
(a) (b) (c)
this Agreement; RFQ cum RFP Document all other agreements and documents forming part hereof;
i.e. the agreement at (a) above shall prevail over the agreements and documents at (b) and (c) above and (b) shall prevail over all documents in (c) above.
1.4.2. In case of ambiguities or discrepancies within this Agreement, the following shall apply:
(a) between two or more Clauses of this Agreement, the provisions of a specific Clause relevant to the issue under consideration shall prevail over those in other Clauses; (b) between the Clauses of this agreement and the Schedules, the Clauses shall prevail and between Schedules and Annexes, the Schedules shall prevail;
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(c) between the written description on the Drawings and the Specifications and Standards, the latter shall prevail; (d) between the dimension scaled from the Drawing and its specific written dimension, the latter shall prevail; and (e) between any value written in numerals and that in words, the latter shall prevail.
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Article 2.
Scope of the Project
2.1. Scope of the Project
The Concessionaire shall Design, Build, Finance, Operate and Transfer Multi Specialty Hospital on the 5 acre plot earmarked for the purpose given on lease over the concession period of initial 30 years renewable every 30 years up to a maximum period of 90 years including construction period, after which the facility shall be transferred to the Concessioning Authority. The successful bidder shall construct following facilities and get all the approvals for commercial operations within 36 months from the effective date. A. Minimum Development Obligations (Essential Facilities):
• • To build and operate 300 bedded (150 beds and allied services within 36 months and remaining beds in the next 24 months) Multi-specialty hospital as per the International standards / Indian Public Health Standard (IPHS). Atleast four specialties from the following disciplines shall be developed in the Hospital. Departments / Specialties Trauma Care Cardio Thoracic care unit (ICCU- Intensive Cardiac Care Unit) Intervention specialty and Cerebral Intervention Kidney Transplant (Hemodialysis) Neurology unit Obs & Gynecology Pediatric unit (with NICU – Neonetal Intensive Care unit) Dental unit for surgery Ophthalmology and ENT Cancer unit • The hospital shall also have a round the clock emergency unit.
All the facilities are to be developed as per the minimum quality standards set out for the purpose in the Technical Schedule appended in DCA Volume II with this document. While undertaking development of the Project, the Successful Bidder shall adhere to latest amended National Building Code of India, other relevant IS Codes and practices, Development Control Rules, FAR Limits, statutory requirements, guidelines and approvals of the Health Department of the Government of Uttar Pradesh, laws of land, the principles of good industry practices and any other norms as applicable from time to time. The developer shall also take into account the guidelines issued by the State Health Department and obtain the necessary approvals.
Keeping in view that the hospital services should be world class, the hospital shall apply for JCI (joint Commission International) accreditation and obtain the same within five years from the date of operation. The Concessionaire shall plan the facilities, manpower and the service standards to meet the stringent quality standards laid down by JCI. The Concessionaire’s proposed plan to meet the norms of JCI shall be presented to Agra Development Authority.
The Concessionaire shall be responsible for all the clearances as may be required for the development and operations of the project. 150 beds and allied services shall be ready for operation after taking all the clearance(s) within 36 months of the effective date and remaining beds in the next 24 months.
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For the purpose of providing subsidized health services to poor, the Concessionaire shall provide 1% of the total revenues of the hospital every year to the fund created by the government starting commercial operations throughout the concession period . Revenue of hospital shall mean registration fees, hospital bed revenue, diagnostic laboratory test, consultation charges, operation charges and lease rentals from commercial facilities like banks, restaurants etc. Revenue of Hospital shall not include revenue from pharmacy, service apartments, training institutes and consumable cost directly reimbursed by patient.
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Article 3.
Consideration of the Contract
3.1. The Consideration
3.1.1. Subject to and in accordance with the provisions of this Agreement, the Applicable Laws, rules and
regulations and the Applicable Permits, the Concessionaire shall pay to the Concessioning Authority: Annually a percentage of total revenue earned as quoted in the Financial proposal payable eleventh year (from the year of commercial operations of the first 150 beds) onwards through out the remaining concession period.
3.1.2. Subject to and in accordance with the provisions of this Agreement, the Consideration hereby given by
Concessionaire, the Concessionaire shall be entitled to Construct and operate the Project on the land area given on Concession period the initial period of 30 years renewable every thirty years upto a maximum of 90 years including construction period, subject to : (a) performing and fulfilling all of the Concessionaire’s obligations under and in accordance with this Agreement; and (b) bear and pay all costs, expenses and charges in connection with or incidental to the performance of the obligations of the Concessionaire under this Agreement; and (c) At the end of the concession period, the entire construction made by the Concessionaire till that date on the Project site as part of the scope of work shall get transferred without any consideration to the Concessioning Authority.
3.1.3. In consideration of the mutual covenants and other good and valuable consideration expressed herein,
the Concessionaire hereby accepts the Consideration to be given and agrees to construct and operate the Project on land given for the initial period of 30 years renewable every thirty years upto a maximum of 90 years Concession period including construction period as per the scope of work given in Article 2 and minimum specifications mentioned in the technical schedules and to perform/discharge all of its obligations in accordance with the provisions hereof.
3.1.4
The Concessionaire shall also pay to the Concessioning Authority a yearly lease rental of Rs. 128/-( Rs. One hundred and twenty eight only ) per sq meter of land for the entire concession period including construction period
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Article 4.
Conditions Precedent to the Agreement
4.1. Conditions Precedent
4.1.1. The respective rights and obligations of the Parties under this Agreement shall be subject to the
satisfaction in full of the conditions precedent specified in this Clause 4.1 (the “Conditions Precedent”).
4.1.2. The Concessionaire may, upon providing the Performance Security to the Concessioning Authority in
accordance with Article 9, by notice require the Concessioning Authority to satisfy the Conditions Precedent set forth in this Clause 4.1.2 within a period of 30 (thirty) days of the notice, and the obligations of the Concessioning Authority hereunder shall be deemed to have been performed when the Concessioning Authority shall have handed over to the Concessionaire the peaceful possession of the Site free from all above ground encroachments as demarcated under Schedule 1;
4.1.3. Concessionaire shall satisfy the Conditions Precedent at any time within 30 (thirty) days from the date
the Concessioning Authority has given the Letter of Intent for the appointment of the Concessionaire and all the Conditions Precedent shall be deemed to have been fulfilled when the Concessionaire shall have
(a) provided Performance Security to the Concessioning Authority; and (b) Delivered to the Concessioning Authority a legal opinion from the legal counsel of the Concessionaire with respect to the authority of the Concessionaire to enter into this Agreement and the enforceability of the provisions thereof (c) The members of the Consortium must form a Special Purpose Vehicle (SPV) and submit an MoU for the purpose of Special Purpose Vehicle.
4.2. Compliance Certificate
Upon compliance with the Conditions Precedent, each Party shall forthwith issue a Compliance Certificate pursuant to which the obligations of the Parties under this Agreement shall commence.
4.3. Non-Fulfillment of the Conditions Precedent
4.3.1. In the event of failure by any Party to procure compliance with any of the Conditions Precedent as per
the provisions of this Article 4 and the other Party have not waived any of the conditions (partially or absolutely), the Agreement shall cease to have any effect as of that date.
4.3.2. In the event of the Agreement not coming into effect on account of the Concessionaire not fulfilling the
Conditions Precedent then the Concessionaire shall forfeit the Earnest Money Deposit and the Performance Security.
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4.3.3. In the event of the Agreement not coming into effect on account of the Concessioning Authority not
fulfilling any of the Conditions Precedent then the Earnest Money Deposit and the Performance Security shall be returned to the Concessionaire.
4.3.4. Notwithstanding anything contained in this clause, the Parties may mutually decide to extend the time
period for the fulfillment of the Conditions Precedent.
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Article 5.
Obligations of the Concessionaire
5.1. Obligations of the Concessionaire
5.1.1. Subject to and on the terms and conditions of this Agreement, the Concessionaire shall at its cost and
expense procure finance for and undertake the Project scope of work as mentioned in Article 2 and observe, fulfill, comply with and perform all its obligations set out in this Agreement or arising hereunder.
5.1.2. The Concessionaire shall comply with all Applicable Laws in the performance of its obligations under
this Agreement.
5.1.3. Without prejudice to Clauses 5.1.1 and 5.1.2 above, the Concessionaire shall discharge its obligations
as per the National Building Code, Development Control Rules, the principles of good industry practice and as a reasonable and prudent person, statutory requirements, laws of the land and any other norms, which are applicable from time to time.
5.1.4. The Concessionaire shall get prior approval of the Concessioning Authority in case of there is any
change in the facilities defined under the Project during the Concession Period.
5.1.5. The Hospital Site shall be used only for the purpose mentioned in Article 2. Any other usage of the site
shall not be permitted during the concession period without prior approval of the Concessioning Authority
5.1.6. Without prejudice to Clauses 5.1.1 and 5.1.2 above the Concessionaire shall, at its own cost and
expense observe, undertake, comply with and perform, in addition to and not in derogation of, its obligations elsewhere set out in this Agreement, the following:
(a) make, or cause to be made, necessary applications to the relevant Governmental Agencies with such particulars and details, as may be required for obtaining all Applicable Permits and obtain such Applicable Permits in conformity with the Applicable Laws; (b) procure, as required, the appropriate proprietary rights, licences, agreements and permissions for materials, methods, processes and systems used or incorporated into development and operations of the Project; (c) not to damage any other infrastructure or any other utility developed by the Concessioning Authority or any other utilities developed and maintained by any other authority or person and in case of any such damage to undertake the repair and also to pay for any losses that is incurred by the Concessioning Authority or any authority or any other person, as the case may be. (d) ensure and procure that the Concessionaire shall comply with all Applicable Permits and Applicable Laws in the performance by them of any of the Concessionaire’s obligations under this Agreement;
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(e) not to do or omit to do any act, deed or thing which may in any manner be violative of any of the provisions of this Agreement; (f) not to create any third party rights, except for the purpose of borrowing from banks, on the land given on Concession for 50 years. But also to ensure that Government of UP/Concessioning Authority are not adversely affected in any way; (g) shall make payment towards the Concessioning Authority as per provisions of this Agreement; (h) Procure at its own costs, expenses and risk all services necessary for the construction and operations of the Project including without limitation electricity, water, materials and labour; (i) shall ensure reservation in matters of employment as per applicable Government of UP policies (j) shall complete construction of the Project and get necessary approvals for commercial operations within a period of 36 months from the Effective Date; and (k) Transfer the Project assets in working condition on the date of termination of Concession to the Concessioning Authority. (l) The 1% of total revenue generation from the activities of the hospital shall be given to the State Government funds to be utilized by the Medical and Health department for the treatment of the BPL families starting the year of commercial operations.
5.2. Obligations relating to Other Agreements
5.2.1. It is expressly agreed that the Concessionaire shall, at all times, be 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.
5.2.2. 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 under Article 2.1.
5.3. Obligations relating to Change in Ownership
The Concessionaire shall not undertake or permit any Change in Ownership, except with the prior written approval of the Concessioning Authority as per the provisions of this Article 5.3.
5.3.1. No change in Consortium Members shall be allowed till the completion of the project or a minimum of 3
years (whichever is later). However, the Lead Consortium Member shall not be allowed to be changed over the entire Concession Period and shall continue to hold 51% stake in the Consortium till the start of Commercial Operations. The Lead Consortium Member shall be allowed to dilute the stake after the commercial operations date with the approval of the Concessioning Authority such that the stake of the
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Lead Consortium Member in the consortium shall not fall below 26% at any time till the end of Concession Period.
5.3.2. Each Consortium Member shall invest minimum 11% stake in SPV. None of the Consortium
Member shall be allowed to dilute its stake till the completion of the Project or a minimum of 3 years from the date of signing of the Concession Agreement (whichever is later).
5.3.3 Lead Consortium Member shall invest minimum 51% stake in the SPV. Lead Consortium Member shall not be allowed to dilute its stake to a level below 51% till the start of commercial operations. The Lead Consortium Member shall be allowed to dilute the stake after the commercial operations date with the approval of the Concessioning Authority such that the stake of the Lead Consortium Member in the consortium shall not fall below 26% at any time till the end of Concession Period. This holds for the single entity bidder also and hence no bidder who has 100% equity in the Project can dilute it to a level below 51% till the start of commercial operations. Remaining stake can be diluted as per the provisions of Clause 5.3.3. 5.3.4 The Concessionaire may be allowed to novate the agreement after completion of three consecutive years of commercial operations and realization of the full project land value ( at circle rates) by the Concessioning Authority. The Concessionaire shall submit the details of the proposed novatee along with its other qualifications (financial and technical capabilities) to the Concessioning Authorities for its due approval. Novatee, the Concessionaire and the Concessioning Authority shall enter into a tripartite agreement. Concessioning Authority shall reserve the right to reject any novation at any time. No further novation shall be permitted
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Article 6.
Obligations of the Concessioning Authority
6.1. Obligations of the Concessioning Authority
6.1.1. The Concessioning Authority shall, at its own cost and expense, undertake, comply with and perform all
its obligations set out in this Agreement or arising hereunder.
6.1.2. The Concessioning Authority agrees to provide support to the Concessionaire and undertakes to
observe, comply with and perform, subject to and in accordance with the provisions of this Agreement and the Applicable Laws, the following:
(a) upon written request from the Concessionaire, and subject to the Concessionaire complying with Applicable Laws, provide all reasonable support and assistance to the Concessionaire in procuring Applicable Permits required from any Government Instrumentality for implementation and operation of the Project; (b) upon written request from the Concessionaire, assist the Concessionaire in obtaining access to all necessary infrastructure facilities and utilities, including water at rates and on terms no less favourable to the Concessionaire than those generally available to commercial customers receiving substantially equivalent services; (c) extend the assistance of its good offices on a reasonable effort basis to assist the Concessionaire in the provision of electricity; (d) procure that no barriers are erected or placed on the Project site or the way towards the Project site by the Concessioning Authority, by any Government Instrumentality or persons claiming through or under it, except for reasons of Emergency or national security, law; (e) assist the Concessionaire in procuring Police assistance for regulation of movement of any person on the Project site, removal of trespassers and for security of the material, labour and machinery; (f) not to do or omit to do any act, deed or thing which may in any manner be violative of any of the provisions of this Agreement; and (g) support, cooperate with and facilitate the Concessionaire in the implementation of the Project.
6.1.3
The Concessioning Authority shall allow mortgage of project land by the Concessionaire for availing financial assistance from funding agencies subject to the condition of receipt of 20% of the project land value at circle rates upfront from the Concessionaire.
6.1.4
The GoUP shall provide single window clearances for all necessary approvals within the state and shall facilitate the Concessionaire in getting clearances and approvals from any agency from outside the state.
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Article 7.
Representations and Warranties
7.1. Representations and Warranties of the Concessionaire
The Concessionaire represents and warrants to the Concessioning Authority that: (a) it is duly organized and validly existing under the laws of India, and has full power and authority to execute and perform its obligations under this Agreement and to carry out the transactions contemplated hereby; (b) it has taken all necessary corporate and other actions under Applicable Laws to authorize the execution and delivery of this Agreement and to validly exercise its rights and perform its obligations under this Agreement; (c) it has the financial standing and capacity to undertake the Project in accordance with the terms of this Agreement; (d) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms hereof, and its obligations under this Agreement will be legally valid, binding and enforceable obligations against it in accordance with the terms hereof; (e) it is subject to the laws of India, and hereby expressly and irrevocably waives any immunity in any jurisdiction in respect of this Agreement or matters arising there under including any obligation, liability or responsibility hereunder; (f) the information furnished in the Bid and as updated on or before the date of this Agreement is true and accurate in all respects as on the date of this Agreement; (g) the execution, delivery and performance of this Agreement will not conflict with, result in the breach of, constitute a default under, or accelerate performance required by any of the terms of its Memorandum and Articles of Association or any Applicable Laws or any covenant, contract, agreement, arrangement, 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; (h) there are no actions, suits, proceedings, or investigations pending or, to its 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 this Agreement or which individually or in the aggregate may result in any material impairment of its ability to perform any of its obligations under this Agreement; (i) it has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any court or any legally binding order of any Government Instrumentality which may result in any material adverse effect on its ability to perform its obligations under this Agreement and no fact or circumstance exists which may give rise to such proceedings that would adversely affect the performance of its obligations under this Agreement; (j) it has complied with Applicable Laws in all material respects 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 a material adverse effect on its ability to perform its obligations under this Agreement;
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(k) the existing Lead Consortium Members hold not less than 51% (fifty – one percent) of it’s issued and paid up Equity and together with the existing consortium member hold not less than 100% as on the date of this Agreement and the respective holding of each Consortium Member conforms to the representation made by the Consortium and accepted by the Concessioning Authority as part of the Bid and that no member of the Consortium shall hold less than 11% (eleven per cent) of such as per the provisions of Article 5.3; (l) no order has been made and no resolution has been passed for the winding up of the Concessionaire or for a provisional liquidator to be appointed in respect of the Concessionaire and no petition has been presented and no meeting has been convened for the purpose of winding up the Concessionaire. No receiver has been appointed in respect of the Concessionaire or all or any of its assets. The Concessionaire is not insolvent or unable to pay its debts as they fall due. (m) no representation or warranty by it contained herein or in any other document furnished by it to the Concessioning Authority or to any Government Instrumentality in relation to Applicable Permits contains or will contain any untrue statement of material fact or omits or will omit to state a material fact necessary to make such representation or warranty not misleading; and
no sums, in cash or kind, have been paid or will be paid, by it or on its behalf, to any person by way of fees, commission or otherwise for securing the grant of land or entering into this Agreement or for influencing or attempting to influence any officer or employee of the Concessioning Authority in connection therewith. (o) It shall not novate the Concession Agreement and any rights and obligation arising therefrom to any party without any written approval from the Concessioning Authority.7.2. Representations and Warranties of the Concessioning Authority
The Concessioning Authority represents and warrants to the Concessionaire that: (a) it has full power and authority to execute, deliver and perform its obligations under this Agreement and to carry out the transactions contemplated herein and that it has taken all actions necessary to execute this Agreement, exercise its rights and perform its obligations, under this Agreement; (b) it has taken all necessary action under the Applicable Laws to authorise the execution, delivery and performance of this Agreement; (c) it has the financial standing and capacity to perform its obligations under the Agreement; (d) this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (e) there are no actions, suits or proceedings pending or, to its 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 default or breach of this Agreement or which individually or in the aggregate may result in any material impairment of its ability to perform its obligations under this Agreement; (f) it has no knowledge of any violation or default with respect to any order, writ, injunction or any decree of any court or any legally binding order of any Government
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Instrumentality which may result in any material adverse effect on the Concessionaire’s ability to perform its obligations under this Agreement; (g) it has complied with Applicable Laws in all material respects; (h) it has not entered into any other Agreement, contract, transaction, arrangement or understanding in relation to the same Project or part of the Project with any third party, or the sale, Concession assignment, or other disposition in whole or in part in respect of the said land other than the disclosed in this Agreement; (i) all information provided by it in the Tender Notice and invitation to bid in connection with the Project is, to the best of its knowledge and belief, true and accurate in all material respects; (j) it has good and valid right for construction of the Project, and has power and authority to give land on 50 years Concession to the Concessionaire; and (k) upon the Concessionaire completing the Project as per this Agreement, and performing the covenants herein, it shall not at any time during the 50 years Concession, interfere with peaceful enjoyment of the land by the Concessionaire, except in accordance with the provisions of this Agreement.
7.3. Disclosure
In the event that any occurrence or circumstance comes to the attention of either Party that renders any of its aforesaid representations or warranties untrue or incorrect, such Party shall immediately notify the other Party of the same. Such notification shall not have the effect of remedying any breach of the representation or warranty that has been found to be untrue or incorrect nor shall it adversely affect or waive any obligation of either Party under this Agreement.
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Article 8.
8.1. Disclaimer
Disclaimer
8.1.1. 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 Tender Notice, Scope of the services to be provided, Project site, Specifications and Standards set for providing quality of services, local conditions, possible demand and all information provided by the Concessioning Authority, and has determined to its satisfaction the accuracy or otherwise thereof and the nature and extent of difficulties, risks and hazards as are likely to arise or may be faced by it in the course of performance of its obligations hereunder. Save as provided in Clause 7.2, the Concessioning Authority makes no representation whatsoever, express, implicit or otherwise, regarding the accuracy and/or completeness of the information provided by it and the Concessionaire confirms that it shall have no claim whatsoever against the Concessioning Authority in this regard.
8.1.2. The Concessionaire acknowledges and hereby accepts the risk of inadequacy, mistake or error in or
relating to any of the matters set forth in Clause 8.1.1 above and hereby acknowledges and agrees that the Concessioning Authority shall not be liable for the same in any manner whatsoever to the Concessionaire or any person claiming through or under this Agreement.
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Article 9.
Performance Security
9.1. Performance Security
The Concessionaire has submitted to the Concessioning Authority Performance Guarantee of Rs. 5,02,80,000/- (Rupees Five crores two lacs and eighty thousand only) in the form of a Bank Guarantee in favor of Agra Development Authority, payable at Agra; the details of which are given below: The Performance Security shall be valid for a period of twelve months and shall be renewed every year, at least 30 days prior to the last date. All charges, fees, costs and expenses related to the Bank Guarantee shall be borne and paid by the Concessionaire. 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the issuance of Construction Completion Certificate by the Concessioning Authority. The next 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the start of Commercial Operation. The Concessionaire undertakes and warrants to Concessioning Authority that the balance 50% of bank guarantee furnished as above shall be irrevocable and shall continue to be effective and enforceable six months beyond the period of six months from the date of the expiry of the Concession Period.
9.2. Appropriation of Performance Security
Upon occurrence of a Concessionaire Default, the Concessioning Authority shall, without prejudice to its other rights and remedies hereunder or in law, be entitled to invoke and appropriate the relevant amounts from the Performance Security as Damages for such Concessionaire Default. Upon such invocation and appropriation from the Performance Security, the Concessionaire shall, within 15 (fifteen) days thereof, replenish, in case of partial appropriation, the Performance Security to its original level, and in case of appropriation of the entire Performance Security provide a fresh Performance Security, as the case may be, and the Concessionaire shall, within the time so granted, replenish or furnish fresh Performance Security as aforesaid failing which the Concessioning Authority shall be entitled to terminate this Agreement in accordance with Article 13.
9.3. Release of Performance Security
25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the issuance of Construction Completion Certificate by the Concessioning Authority. The next 25% of the Performance Security in the form of bank guarantee shall be released to the Concessionaire on the start of Commercial Operation. The balance 50% of the Performance Security in the form of bank guarantee shall remain in force and effect beyond the period of six months from the date of the expiry of the Concession Period. It shall be duly discharged and released to the Concessionaire beyond the period of six months from the date of expiry of the Concession Period and transfer of the Project along with the land toADA 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 land to ADA. If the
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Agreement is terminated due to any event other than a Concessionaire Event of Default, the Performance Security shall, subject to the Concessioning Authority’s right to receive or recover amounts, if any, due from the Concessionaire under this Agreement, be duly discharged and released to the Concessionaire.
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Article 10.
10.1. Project Site
Access on Project Site
The Project site shall comprise of the land as described in Schedule- 1 and which shall be given on Concession by the Concessioning Authority to the Concessionaire for the initial period of 30 years renewable every thirty years upto a maximum of 90 years including construction period.
10.1.1. The Concessioning Authority on providing the performance security and signing this Agreement, shall
within 15 days, give on Concession to the Concessionaire, the Project site for the initial period of 30 years renewable every thirty years upto a maximum of 90 years for the Scope of the Project as mentioned in Article 2.
10.1.2. It is being expressly agreed and understood that the Concessioning Authority shall have no liability
whatsoever in respect of survey and investigations carried out or work undertaken by the Concessionaire pursuant hereto in the event of Termination or otherwise.
10.1.3. It is expressly agreed that the rights granted hereunder shall terminate automatically and forthwith,
without the need for any action to be taken by the Concessioning Authority to terminate the rights, upon the Termination of this Agreement for any reason whatsoever.
10.1.4. It is expressly agreed that mining rights do not form part of the rights granted to the Concessionaire
under this Agreement and the Concessionaire hereby acknowledges that it shall not have any mining rights or any interest in the underlying minerals on or under the area where cable have been laid. For the avoidance of doubt, mining rights mean the right to mine any and all minerals or interest therein.
10.2. Others
10.2.1. Access to the Concessioning Authority and any person appointed as the Engineers / consultants
appointed by Concessioning Authority The right of way granted for construction on the Project site shall always be subject to the right of access of the person appointed by the Concessioning Authority for inspection, viewing and exercise of their rights and performance of their obligations under this Agreement.
10.2.2.
Special/temporary right of way
The Concessionaire shall bear all costs and charges for any special or temporary right of way required by it in connection with access to the Project Site. The Concessionaire shall obtain at its cost such facilities on or outside the Site as may be required by it for the purposes of the Construction and the performance of its obligations under this Agreement.
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Article 11.
Construction on the Project Site
11.1. Obligations prior to the commencement of any work
Prior to commencement of any work, the Concessionaire shall: (a) submit to the Concessioning Authority time schedule for completion; (b) appoint its representative duly authorised to deal with the Concessioning Authority in respect of all matters under or arising out of or relating to this Agreement; (c) Undertake, do and perform all such acts, deeds and things as may be necessary or required before commencement of any work under and in accordance with this Agreement, the Applicable Laws and Applicable Permits; and (d) Procure all such approvals/consents/permits as necessary as per applicable laws
11.2. Project Start and Completion date
11.2.1. On or after the Effective Date, the Concessionaire shall undertake construction of Project. The 36th
month from the Effective Date shall be the scheduled date for completion of the Project ( 150 beds and allied services and the next 24 months for the remaining 150 beds) and the Concessionaire agrees and undertakes that Project shall be completed on or before the Scheduled Date.
11.2.2. In the event that Project is not completed by the Scheduled Completion Date, unless the delay is on
account of reasons solely attributable to the Concessioning Authority or due to Force Majeure, the Concessioning Authority shall encash 10% of the Performance Security amount per month, for a maximum period of six months after which Concessioning Authority shall be entitled to terminate this Agreement. . The Performance Security shall be replenished by the Concessionaire as soon the Performance Security is encashed by the Concessioning Authority.
11.3. Completion Certificate
The Concessionaire after completion of the Project shall inform in writing to the Concessioning Authority that it has completed the construction as per Project scope. The Concessioning Authority shall issue the Completion Certificate, after which the Concessionaire can start the commercial operations.
11.4. Delay in commercial operations
If the commercial operations for the Project are not achieved within the stipulated time period for reasons not attributable to the Concessionaire, the Concessioning Authority shall determine any extension of the dates set forth in the commercial operations time schedule to which the Concessionaire is reasonably entitled. The Concessioning Authority shall extend such dates and the Concession Period shall deemed to be extended by a period equal in length to the period extended.
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Article 12.
Force Majeure
12.1. Force Majeure
As used in this Agreement, the expression “Force Majeure” or “Force Majeure Event” shall mean occurrence in India of any or all of events, as defined in Clause 12.2, if it affects the performance by the Party claiming the benefit of Force Majeure (the “Affected Party”) of its obligations under this Agreement and which act or event (i) is beyond the reasonable control of the Affected Party, and (ii) the Affected Party could not have prevented or overcome by exercise of due diligence and following Good Industry Practice, and (iii) has Material Adverse Effect on the Affected Party.
12.2. Force Majeure Events
A Force Majeure Event shall mean one or more of the following acts or events: (a) act of God, plague, lightning, earthquake, landslide, cyclone, flood, volcanic eruption, radioactive contamination; (b) an act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy) (c) any failure of another service provider to the extent caused by any of the Force Majeure Event mentioned above affecting the performance of the Agreement; (d) any event or circumstances of a nature analogous to any of the foregoing;
12.3. Duty to Report Force Majeure Event
Upon occurrence of a Force Majeure Event, the Affected Party shall by notice report such occurrence to the other Party forthwith. Any notice pursuant hereto shall include full particulars of: (a) the nature and extent of each Force Majeure Event with evidence in support thereof; (b) 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; (c) the measures which the Affected Party is taking or proposes to take for alleviating the impact of such Force Majeure Event; and (d) any other information relevant to the Affected Party’s claim. The Affected Party shall not be entitled to any relief under the Agreement for or in respect of a Force Majeure Event unless it shall have notified the other Party of the occurrence of the Force Majeure Event as soon as reasonably practicable, and in any event not later than 24 (twenty four) hours after the Affected Party knew, or ought reasonably to have known, of its occurrence, and shall have given particulars of the probable material effect that the Force Majeure Event is likely to have on the performance of its obligations under this Agreement.
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12.4. Effect of Force Majeure Event
Upon the occurrence of any Force Majeure Event the period set forth for the Project Completion Date shall be extended by a period equal in length to the duration of the Force Majeure Event.
12.5. Allocation of Costs Arising out of Force Majeure
Upon occurrence of any Force Majeure Event, the Parties shall bear their respective costs and no Party shall be required to pay to the other Party any costs thereof. Neither Party 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 hereto.
12.6. Dispute Resolution
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 as mentioned in Article 15; provided 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.
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Article 13.
Termination
13.1. Termination for Concessionaire Default
Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Concessionaire fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 15 (fifteen) days, the Concessionaire shall be deemed to be in default of this Agreement (a “Concessionaire Default”), unless the default has occurred solely as a result of any breach of this Agreement by the Concessioning Authority or due to Force Majeure event. The defaults referred to herein shall include: (a) the Performance Security has been partially or fully invoked and appropriated by the Concessioning Authority as per the Concession Agreement and the Concessionaire fails to replenish or provide fresh Performance Security within a Cure Period of 15 (fifteen) days; (b) the Concessionaire does not make payment to the Concessioning Authority and remains in default for a period of more than 15 days from the due date of payment; (c) the Concessionaire does not complete the Project as per the date mentioned in the Agreement and continues to be in default for 180 (One Hundred and Eighty) days; (d) the Concessionaire does not construct and operate any of the items mentioned in the scope of work; (e) the Concessionaire abandons or manifests intention to abandon the Project without prior written consent of the Concessioning Authority; (f) the Concessionaire has failed to make any payment towards damages to any user or any utility within the period specified in this Agreement; (g) the Concessionaire repudiates this Agreement or otherwise takes any action or evidences or conveys an intention not to be bound by the Agreement; (h) Change in management control of the Concessionaire Company which according to the Concessioning Authority may have material adverse effect towards the completion of the Project. (i) the Concessionaire is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for the Concessionaire or for the whole or material part of its assets at any time before the Scheduled Project Completion Date; (j) the Concessionaire has been, or is in the process of being liquidated, dissolved, wound-up, amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of the Concessioning Authority, a Material Adverse Effect; (k) a resolution for winding up of the Concessionaire is passed, or any petition for winding up of the Concessionaire is admitted by a court of competent jurisdiction and a provisional liquidator or receiver is appointed and such order has not been set aside within 90 (ninety) days of the date thereof or the Concessionaire is ordered to be wound up by Court;
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(l) the Concessionaire has failed to fulfill any obligation, for which failure Termination has been specified in this Agreement; or (m) the Concessionaire commits a material default in complying with any other provision of this Agreement.
The Concessionaire novates and / or assigns the agreement to any third party without any prior written approval from the Concessioning Authority.13.2. Procedure to issue Termination Notice
Without prejudice to any other rights or remedies which the Concessioning Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Concessioning Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Concessioning Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice.
13.3. Effect of Termination
Upon Termination as per article 13.1, the Concessionaire hereby acknowledges that no Termination Payment shall be due or payable by the Concessioning Authority. Concessionaire acknowledges that within 10 days of termination, the Concessionaire vacates the Project site. Concessionaire acknowledges that once the agreement is terminated the land allocated shall be returned back to the Concessioning Authority. In such case, the lease deed will stand cancelled ipso facto and land is returned back to the Concessioning 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 without any consideration to the Concessioning Authority. Concessioning Authority at its own discretion may repay the consideration already paid by the Concessionaire after adjusting for any direct or indirect losses that Concessioning Authority might have incurred due to delay in completion of the Project. No liability with respect to the land or assets shall devolve on Concessioning Authority.
13.4. Other Rights and Obligations of the Concessioning Authority
Upon Termination for any reason whatsoever, the Concessioning Authority shall: (a) be deemed to have taken possession and control of the Project site and any construction made on such site till the date of termination; (b) take possession and control of all materials, stores, implements and construction on or about the Project; (c) be entitled to restrain the Concessionaire and any person claiming through or under the Concessionaire from entering upon the Project Site or any part of the Project; and (d) Invoke the Performance Security as part Damages. In case termination is done by the Concessioning Authority not because of the default of the Concessionaire, then in such condition the Concessioning Authority will pay for all the financial
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loses incurred by the Concessionaire and the quantum of the financial losses will be decided by the Arbitrator as per Clause 15.3. 13.4 A The Concessioning Authority shall have at all times right to reject any name which has been proposed in relation to the novation of this agreement
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Article 14.
Liability and Indemnity
14.1. General indemnity
The Concessionaire will indemnify, defend, save and hold harmless the Concessioning 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 Concessioning Authority indemnified persons.
14.2. Liability of Concessioning Authority
The Concessioning 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) (b) defect in title and/or the rights of the Concessioning Authority in the land given on Concession to the Concessionaire breach by the Concessioning 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 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 and the same shall be the liability of the Concessionaire.
14.3. Indemnity by the Concessionaire
Without limiting the generality of Clause 14.1, the Concessionaire shall fully indemnify, hold harmless and defend the Concessioning Authority from and against any and all loss and/or damages arising out of or with respect to: (a) (b) (c) (d) failure of the Concessionaire to comply with Applicable Laws and Applicable Permits; 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 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. Breach by the Concessionaire of any of the obligations under this Agreement.
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14.4. No consequential claims
Notwithstanding anything to the contrary contained in this Article 14, 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.
14.5. Survival on Termination
The provisions of this Article 14 shall survive Termination.
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Article 15.
Dispute Resolution
15.1. Dispute resolution
15.1.1. Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in
relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the “Dispute”) shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 15.2.
15.1.2. The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this
Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute.
15.2. Conciliation
In the event of any Dispute between the Parties, either Party may call upon the Vice Chairman of the Concessioning Authority to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Vice Chairman of the Concessioning Authority within 7 (seven) days from the date of reference to discuss and attempt to amicably resolve the Dispute , either Party may require such Dispute to be referred to the Principle Secretary, Housing for amicable settlement. If the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 15.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 15.3.
15.3. Arbitration
15.3.1. Any Dispute which is not resolved amicably by conciliation, as provided in Clause 15.2, shall be
decided by reference to Arbitral Tribunal appointed in accordance with Clause 15.3.2. Arbitration shall be held in accordance with the provisions of Arbitration and Conciliation Act, 1996 .The venue of arbitration shall be Agra, and the language of arbitration proceedings shall be English.
15.3.2. The Arbitral Tribunal shall consist of three arbitrators. Each Party shall appoint one arbitrator, and the
third arbitrator shall be appointed by the two arbitrators so appointed, and in the event of disagreement between the two arbitrators, the appointment shall be made in accordance with the Arbitration and Conciliation Act, 1996.
15.3.3. The arbitrators shall make a reasoned award (the “Award”). Any Award made in any arbitration held
pursuant to this Article 15 shall be final and binding on the Parties as from the date it is made, and the
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Concessionaire and the Concessioning Authority agree and undertake to carry out such Award without delay.
15.3.4. The Concessionaire and the Concessioning Authority agree that an Award may be enforced against
the Concessionaire and/or the Concessioning Authority, as the case may be, and their respective assets wherever situated.
15.3.5. This Agreement and the rights and obligations of the Parties shall remain in full force and effect,
pending the Award in any arbitration proceedings hereunder.
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Article 16.
Miscellaneous
16.1. 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 Agra shall have jurisdiction over matters arising out of or relating to this Agreement.
16.2. Waiver of Immunity
Each Party unconditionally and irrevocably: (a) (b) agrees that the execution, delivery and performance by it of this Agreement constitute commercial acts done and performed for commercial purpose; agrees that, should any proceedings be brought against it or its assets, property or revenues in any jurisdiction in relation to this Agreement or any transaction contemplated by this Agreement, no immunity from such proceedings shall be claimed by or on behalf of the Party with respect to its assets; waives any right of immunity which it or its assets, property or revenues now has, may acquire in the future or which may be attributed to it in any jurisdiction;
(c)
16.3. Delayed Payments
The Parties hereto agree that payments due from one Party to the other Party under the provisions of this Agreement shall be made within the period set forth therein, and if no such period is specified, within 15 (fifteen) days of receiving a demand along with the necessary particulars. In the event of delay beyond such period, the defaulting Party shall pay penalty for the period of delay calculated at a rate equal to 12% per annum, and recovery thereof shall be without prejudice to the rights of the Parties under this Agreement including Termination thereof.
16.4. Waiver
16.4.1. Waiver, including partial or conditional waiver, by either Party of any default by the other Party in the
observance and performance of any provision of or obligations under this Agreement:-
(a)
shall not operate or be construed as a waiver of any other or subsequent default hereof or of other provisions or obligations under this Agreement; (b) shall not be effective unless it is in writing and executed by a duly authorised representative of the Party; and (c) shall not affect the validity or enforceability of this Agreement in any manner.
16.4.2. Neither the failure by either Party to insist on any occasion upon the performance of the terms,
conditions and provisions of this Agreement or any obligation thereunder nor time or other indulgence
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granted by a Party to the other Party shall be treated or deemed as waiver of such breach or acceptance of any variation or the relinquishment of any such right hereunder.
16.5. Liability for Inspection of Documents
Except to the extent expressly provided in this Agreement: (a) no review, comment or inspection by the Concessioning Authority of any document submitted by the Concessionaire nor any observation or inspection of any document or operations conducted at the Project Site hereunder shall relieve or absolve the Concessionaire from its obligations, duties and liabilities under this Agreement, the Applicable Laws and Applicable Permits; and the Concessioning Authority shall not be liable to the Concessionaire by reason of any review, comment, approval, observation or inspection referred to in Sub clause (a) above.
(b)
16.6. 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 either Party not contained in a binding legal Agreement executed by both Parties.
16.7. Survival
16.7.1.
(a) (b)
Termination shall:
not relieve the Concessionaire or the Concessioning Authority, as the case may be, of any obligations hereunder which expressly or by implication survive Termination hereof; and except as otherwise provided in any provision of this Agreement expressly limiting the liability of either Party, 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.
All obligations surviving Termination shall only survive for a period of 5 (five) years following the date of such Termination.
16.7.2.
16.8. Entire Agreement
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 such modification or amendment is agreed to in writing by the Parties and duly executed by persons especially empowered in this behalf by the respective Parties. All prior written or oral understandings, offers or other communications of every kind pertaining to this Agreement are abrogated and withdrawn.
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16.9. 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 to one or more provisions which may be substituted for such invalid, unenforceable or illegal provisions, as nearly as is practicable to such invalid, illegal or unenforceable provision. Failure to agree upon any such provisions shall not be subject to the Dispute Resolution Procedure set forth under this Agreement or otherwise.
16.10. No partnership
This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the Parties, or to impose any partnership obligation or liability upon either Party, and neither Party shall have any right, power or authority to enter into any Agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other Party.
16.11. Third Parties
This Agreement is intended solely for the benefit of the Parties, and nothing in this Agreement shall be construed to create any duty to, standard of care with reference to, or any liability to, any person not a Party to this Agreement, unless expressly provided in this Agreement.
16.12. Successors and Assigns
This Agreement shall be binding upon, and inure to the benefit of the Parties and their lawful successors, as per the provisions of this Agreement.
16.13. Notices
Unless otherwise stated, all notices, approvals, instructions and other communications for the purposes of this Agreement shall be given in writing and may be given by facsimile, by personal delivery or by sending the same by prepaid registered mail addressed to the Party concerned at its address stated in the title of this Agreement or the fax numbers set out below and/or any other address subsequently notified to the other Parties for the purposes of this clause 16.14 and shall be deemed to be effective (in the case of registered mail) 10 calendar days after posting, (in the case of facsimile) two Business Days after receipt of a transmission report confirming dispatch or (in the case of personal delivery) at the time of delivery. If to Concessioning Authority: Address : Agra Development authority Jaipur House, Agra Uttar Pradesh Tel: No. 0091-0562-2511178, 0562-511017 Fax No. :
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Attention If to the Concessionaire: Address Telephone Fax Attention
: Vice Chairman
: : : :
16.14. Language
All notices required to be given by one Party to the other Party and all other communications, Documentation and proceedings which are in any way relevant to this Agreement shall be in writing and in English or Hindi language.
16.15. Counterparts
This Agreement may be executed in two counterparts, each of which, when executed and delivered, shall constitute an original of this Agreement.
16.16. Validity
This Agreement shall be valid for the entire concession period
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED THIS AGREEMENT AS OF THE DAY, MONTH AND YEAR FIRST ABOVE WRITTEN. SIGNED, SEALED AND DELIVERED For and on behalf of Concessioning Authority (Agra Development Authority) by: (Signature) (Name) (Designation) In the presence of: 1.
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SIGNED, SEALED AND DELIVERED For and on behalf of CONCESSIONAIRE by:
(Signature) (Name) (Designation)
RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
2.
Schedule 1. Project Site
Details of Site
Location Map
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Schedule 2. Technical Schedule
The proposed Multi specialty hospital at Agra shall have 300 beds. Atleast four specialties from the following disciplines shall be developed in the Hospital. Sr. No. 1 2 3 4 5 6 7 8 9 10 Departments / Specialties Trauma Care Cardio Thoracic care unit (ICCU- Intensive Cardiac Care Unit) Intervention specialty and Cerebral Intervention Kidney Transplant (Hemodialysis) Neurology unit Obs & Gynecology Pediatric unit (with NICU – Neonetal Intensive Care unit) Dental unit for surgery Ophthalmology and ENT Cancer unit
The Concessionaire may also develop additional specialties other than those mentioned above. The hospital shall also have a round the clock emergency unit.
Accreditation Keeping in view that the hospital services should be world class, it is proposed that the hospital shall apply for JCI (joint Commission International) accreditation and obtain the same within five years from the date of operation. The Concessionaire should plan the facilities, manpower and the service standards to meet the stringent quality standards laid down by JCI. The Concessionaire’s proposed plan to meet the norms of JCI shall be presented to Agra Development Authority. A. Planning ? ? The hospital shall be developed with 300 bed capacity within 24 months from the Effective Date. The hospital shall be planned in accordance with the Development Control Regulations applicable to the region and norms if any prescribed by the Medical Council of India, Ministry of Health and Family Welfare and the State Health Department. ? ? The developer shall obtain necessary clearances and approval for the plans from the relevant authority as per the requirements. Service Apartments can be provided within the hospital complex to cater to the needs of the patients and their relatives.
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RFQ cum RFP for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
? ? ?
Institute offering Laboratory Technician courses, Nursing courses can also be developed within the hospital complex. Restaurants, ATMs, Pharmacy for the convenience of the patients can be provided within the hospital complex. Research Institutes can also be setup in the hospital complex.
B. Designing ? ? ? ? Modular design to enable addition of new departments, least disturbance to existing facilities, quality, and added benefits of economy of scale shall be preferred. Architectural design norms as per NBC (National Building Code – 2005) Structural Design norms as per NBC and BIS (Bureau of Indian Standards) Services design norms as per CPEEHO (Central Public Health and Environmental Engineering Organisation), NBC and BIS In case of contradiction between the JCI Accreditation standards and the Design Norms specified above, the former shall prevail. C. Construction The construction shall be strictly as per the design norms specified above.
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Techno Economic Feasibility Report
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1.
Introduction:
Being centrally located on the national map, Agra forms an important regional urban center. Its central location makes it a major transport node at the regional level as well as national level. This has also led to an extremely rapid and hap-hazard growth and development pattern. The biggest resource for Uttar Pradesh is its large human resource and there is urgent need to invest in human capital if the State is to improve its ranking on Human Development Index and the country is to attain the Millennium Development Goals by 2015. Improvement in Health outcomes is an important part of the Development strategy of the State and, hence, the State Government is taking several steps to remedy the situation. Agra needs world class health care establishments to enhance the capability in delivering healthcare to masses. Agra development Authority aims to establish a multi-speciality Hospital at Shastri Puram near Sikandara. The total land identified for this purpose is 5 acres. The proposed Hospital offers an attractive investment opportunity for the private sector. Development Objectives: • Bridge the deficiencies in Public Health system • Provide Health care to people, a crucial development input. • To tap the potential of the Private Sector in providing health care. • To regulate the public sector investment in Health care.
2.
Need of Project:
Deficiencies in Public health system in providing health care facilities to the population is known. Healthcare is a crutial development input. The potential of private sector in providing health care facilities is still not fully tapped. Collaboration with the private sector in providing health facilities has generated many challenges and opportunities. Agra needs world class health care establishments and the role of private hospitals will only enhance our capacity in delivering healthcare to the masses. In spite of the entry of some major health care players, the city still laks high quality medical infrastructure at affordable prices. The city is weak in Trauma and Critical care, Burn treatments and Plastic surgery.
3.
City Profile:
Location and Connectivity The city of Agra is situated on the Western Bank of river Yamuna on National Highway (NH-2) at about 200 Kms from Delhi in the state of Uttar Pradesh. In the east, Agra is connected to Kanpur through NH-2 and in the south, it is connected to Gwalior through NH-3 and in the north, it is connected with Aligarh through NH- 93 and in the west, Agra is connected to Fatehpur Sikri through NH-11.
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
`
Agra
is
Location of Agra in India
Regional setting of Agra city
geographically located at 27°12' North latitudes and 78°12' East longitudes. It has an extremely strategic location on the confluence of three distinct geo-physical regions namely the plain of Uttar Pradesh, the plateau of Madhya Pradesh and the desert of Rajasthan. The city also falls in the center of the four-culture areas- Braj, Bundelkhand, Rajputana and western U.P. Both these factors have played significant roles in shaping the life and history of the city
Connectivity of Agra city
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Historical Background Agra city is of historic importance, which is amply evident from the numerous historical monuments in and around the city. The Hindu epic Mahabharata refers to it as ‘Agraban’, part of Brij Bhoomi, the homeland of Lord Krishna. The earliest recorded history of Agra, is its establishment by a local king in 1475. The city was the capital seat of Mughals in ancient times. The heritage of the city is linked with the Mughal dynasty but numerous other rulers also contributed to the rich past of this city. Agra was founded by Sikandar Lodi in the 16th century. It grew into an important power centre under the Delhi Sultan Sikandar Lodi and he shifted his capital from Delhi in 1504. Babar also stayed in Agra for some time and introduced the concept of square Persian-styled gardens. Emperor Akbar built Agra fort and Jehangir did the beautification with gardens and palaces. The city has a proud possession of “Taj Mahal” as one of the seven wonders of the world, now declared as World Heritage Site. The post-Mughal era of Agra saw the rule of Jats, Marathas and finally the British taking over the city. In addition to its historic importance, Agra is a main center of political, economic, commercial and cultural activities. Physical Characteristics The river Yamuna enters the city from the north-east corner, flows towards south for some distance and then turns towards east. The general slope is from west to east in CIS-Yamuna area on the right bank of the river Yamuna. The climate of Agra city is extreme and tropical. During summer season the maximum temperature of the city rises to 47?C and drops down to minimum of 30?C during winter season. The city receives moderate to high rainfall with an average yearly rainfall of about 686 mm. The ground levels at Agra vary from RL 150 m to 170m. The strata consist of mainly sandy soil. The sub-soil water level is generally 6 to 8 m below ground level. The city stretches for about 9.0 kms along the Yamuna river. The major part of the city is on the Western side of Yamuna and has grown beyond the river on the eastern side and is called the Trans Yamuna area while the original part is called as CIS Yamuna.
Significance of tourism in Agra Agra’s importance on tourist map cannot be underestimated; it is one of the key tourist destinations attracting tourists from all over the world. The city forms one edge of the prime tourist circuit in India- the so-called Golden Triangle, the other two cities being Delhi and Jaipur. The city is rich in its art, heritage and culture, which are also reflected in its historical monuments. This makes the city as one of the most attractive tourist places of the country. The Agra city currently has three world heritage sites: the Taj Mahal, Agra Fort and Fatehpur Sikri. This entire area is called Taj Trapezium (TTZ), a 10,400 sq. km area around the monument where industrial business is limited.
Golden Triangle
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Tourist Destinations The city has huge tourism potential due to the Taj Mahal. The city has numerous monuments of historical importance that give impetus to the tourism in the city. The major tourist spots in the city include Taj Mahal, Fatehpur Sikri, forts, temples, etc. Radha Swami Samadhi, Dayal Bagh, Ram Bagh, Jama Masjid, Mehtab Bagh, Itmad-ud-Daulah, Sikandara, Mariyam’s Tomb, Mankameshwar Mandir, Rawali, Kailash Mandir, Balkeshwar Mandir, Baptist Church, Sai-ka-Takia are also major attraction spots for tourists and devotees. Population Growth The population of Agra city is 12.75 lakhs as per Census 2001 with a decadal growth rate of 30.37 per cent. During the post-independence period commerce showed a phenomenal increase with the associated industrial development and establishment of industrial estate, which resulted in the increase of city population. In last four decades, the decadal growth rate was maximum of 32.15 per cent during 1971-81. The population projection for the year 2021 has been taken as 22.69 lakhs.
Population growth-Agra
14 Population in lakhs 12 10 8 6 4 2 0 Year 1961 1971 1981 1991 2001 5.91 4.62 9.78 7.81 12.75
Population and Growth RateAgra
Year Population (lakhs) 1961 4.62 1971 5.91 1981 7.81 1991 9.78 2001 12.75 Population projection (estimated) 2006 14.93 2011 17.53 2016 19.88 2021 22.69 Source: Census of India, 2001 Composition of Growth
Growth Rate (%) 27.92 32.15 25.22 30.37 -
It has been observed that the population of the city has increased at different growth rates. In 1981 the Nagar Nigam area has extended from 61.80 sqkm to 141.0 sqkm. The population increased during 1971-81shows 72.93 per cent natural increase and about 27.07 per cent in-migration, which show about 27.92 per cent total increase.
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Composition of Growth Population increase during 1971-81 % of total 1981-91 Natural Increase 4.31 72.93 In-migration 1.6 27.07 Jurisdictional change Total Increase 5.91 100.00 7.81 Source: Census of India Density The administrative limits of the Nagar Nigam Agra encompass an area of 141.0 sq. km with a population density of about 9043 persons per sq. km as per 2001 census. A comparison of the gross density of the city clearly indicates an increasing trend from the year 1981 to 2001. The density has shown a sudden decrease because Nagar Nigam area has increased more than two times whereas the population has not increased to that extent. The old city areas where the settlements started flourishing from the Mughal period like Lohamandi, Shahganj are highly congested while the density is lowest in colonial Agra. The large open areas between the fort and the Taj has remained undeveloped because it is the most low-lying area and hence more prone to floods. Population Density Year Population (lakhs) 1961 4.62 1971 5.91 1981 7.81 1991 9.78 2001 12.75 Source: Census of India, 2001 Area (sqkm) 61.80 61.80 141.00 141.00 141.00 Gross Density 7476 9563 5539 6936 9043 Year % of total 1991-2001 9.78 % of total -
Thus, it can be seen that the density in the mixed land use areas of the Mughal city is the maximum while in the institutional colonial areas it is the minimum. The density in these areas is as high as compared to the other parts of the city. Infrastructure Facilities in Agra Existing Linkages Agra is well connected by air, rail and road network. The city is on daily route of Indian Airlines and is only 30 minutes flight from Delhi. It is also on the main Delhi-Mumbai broad gauge (BG) railway line and well connected by BG to major cities like: Bharatpur, Gwalior and Kanpur. Agra is served by seven railway stations: Raja-kiMandi, Agra Cantonment, Agra City, Agra Fort, Idgah, Yamuna Kinara and Bilochpura and 3 bus stations (Agra Fort, Idgah and Transport Nagar). The city is falling on the corridor of Golden Quadrilateral under the ever since major scheme of NHDP. Moreover it is located on the junction of four National Highways namely Delhi - Kolkata (NH-2), Agra - Mumbai (NH-3), Agra - Jaipur (NH-11) and Agra - Aligarh (NH-93) and two State Highways namely Agra - Fatehabad (SH-62) and Agra – Gajnair (SH-39). The city is considered, from tourism point of view, to be one of the nodes of ‘golden triangle’ consisting of Delhi – Agra – Jaipur. The journey time by rail from the Delhi to Agra takes about 3 hours. Road Network
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
The road network within the city is not developed enough to cater for the requirement of tourism, which Taj Mahal attracts. Intermediate Public Transport (IPT) is the popular mode of transport due to lack of proper public transport system. In fact the road network of the city offers poor level of service affecting safety, efficiency and economy of traffic operation within the city. The total road length of 1724 km in Agra Nagar Nigam area (including pucca road, semi pucca road, kaccha road) hasn’t increased in last three years (since 2003). Mahatma Gandhi Road (MG Road) acts as north-south spine of the city dividing the CIS Yamuna area into two parts. It is a major commercial corridor handling about 60-70% of the traffic in the city. Thus it is the busiest road of the city, which has traffic congestion problems in the following six junctions: Bhagwan Takies, Hariparwat, Raja Mandi, St. Johns, Collectorate and State bank. Apart from MG Road junctions another six congested junctions have been identified. These are: Ram Bagh, Water Works Circle, Sultan Ganj Pulia, Yamuna Kinara marg, Bizli Ghar, Subhash Bazar (Kotwali Area). Agra Master Plan Agra Master Plan 2021 envisages an urban area of the order of 20,000 ha which has been subdivided into various landuses as given in the table. It is also estimated the housing shortage for the plan period of the order of 2.5 lakh. The important policy are as under: Hospitals Scenarion in Agra Total Number of Hospitals in Agra: 66 • Number of Hospitals • with >500 beds- 2 • 200- 499 beds – 1 • 50-199 Beds – 16 • <50 Beds - 47 Hospital SNMC Hospital Lady Layola Hospital District Hospital Beds 976 200 119
Total Number of beds is 2898. Estimated Demand for Hospital Beds for the year 2013 is for 1280 More Hospital beds to be added in the district as per WHO Estimate. 4. Development Controls and Regulations: The provisions of the Master Plan of Agra and Bye Laws shall form the guiding factor for the development of the Multi-speciality Hospital. The facility should be planned with adequate features of safety, fire safety, ventilation, power back up, maintenance, parking facility etc. The detailed requirement: Bidders would follow the technical specification for construction of project. 5. Justification for the Project
Development Mode: The facility is proposed to be developed on Design, Build, Finance, Operate and Transfer Basis (DBFOT) under Public Private Partnership Mode where under the land will be leased for a period the initial period of 30 years renewable every thirty years upto a maximum of 90 years
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
6.
Concessionaire:
Concessionaire would be responsible for designing, financing, constructing, operating & maintaining the facility for the entire concession period. At the end of concession period the project site and the entire facility thereon shall transferred back to the Authority without any encumbrance and at NIL value. 7. Building(s):
The concessionaire can design the building(s) in any style of their choice, the hospital should be adequately designed to help to develop the building(s) into a major and identifiable land mark in the city and the region. 8. TIE-UP:
Bidder shall ensure & demonstrate that the service/ technology providers, partners and designers of the facility are appropriate for the project requirement, scale and Complexity. Also, that the technology and material providers possess the desired capability for design, supply, implementation & ongoing maintenance support acceptable at various stages of the project. 9. Conformance to bye-laws:
Bidders shall ensure that the design of entire facility conforms to the provisions of Agra Master Plan,, Bye-laws, requirements of all statutory/regulatory bodies in respect all needful measures. 10. Project Approvals:
Concessionaire will be responsible to obtain all approvals from local bodies, statutory & regulatory authorities in respect of Building Plan of the facility to be constructed by him. All needful work and safety measure be provided & maintained by the concessionaire during the entire concession period. For any loss of life/property or any other such accidents and claims the claims thereof shall be borne by the concessionaire, Concessioning Authority will in no way being responsible for the same. Developer shall arrange for the power supply requirements including D.G. set for required power back-up on its own and shall be solely responsible for all aspects related to it. The developer should ensure adequate parking facilities within the premises so that no spill over parking happens on access roads.
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
Financial Feasibility
Introduction Being centrally located on the national map, Agra forms an important regional urban center. Its central location makes it a major transport node at the regional level as well as national level. This has also led to an extremely rapid and hap-hazard growth and development pattern. The biggest resource for Uttar Pradesh is its large human resource and there is urgent need to invest in human capital if the State is to improve its ranking on Human Development Index and the country is to attain the Millennium Development Goals by 2015. Improvement in Health outcomes is an important part of the Development strategy of the State and, hence, the State Government is taking several steps to remedy the situation. Agra needs world class health care establishments to enhance the capability in delivering healthcare to masses. Agra development Authority aims to establish a multi-speciality Hospital at Shastri Puram near Sikandara. The total land identified for this purpose is 5 acres. The proposed Hospital offers an attractive investment opportunity for the private sector Project Cost Total Project cost of 300 Bedded Multi Speciality Hospital is estimated to be Rs.10056 Lakhs approximately. The details of the project cost are tabulated below: Sl.No 1 2 3 4 5 Particular Land Cost Total Construction Cost (Development, Structural, Pre-Op, Equipment, Contingencies) Preliminary, Preoperative & Startup Expenses Provision for Contingencies Interest During Construction Total Project Cost Basic assumptions for estimation of the project cost are as follows: a. Preliminary, Preoperative & Startup Expenses @ 1% of the sum of land and construction cost (to be written off in five years starting from 1st year of operation.) b. Provision for contingencies @ 5% of the sum of land, construction cost and preoperative expenses. c. Interest during construction is @ 12% payable quarterly. Total construction period 24 months. Need of Project: Deficiencies in Public health system in providing health care facilities to the population is known. Healthcare is a crutial development input. The potential of private sector in providing health care facilities is still not fully tapped. Collaboration with the private sector in providing health facilities has generated many challenges and opportunities. Agra needs world class health care establishments and the role of private hospitals will only enhance our capacity in delivering healthcare to the masses.
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Amount in Rs Lakh 1292 7500 88 440 1177 10056
Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
In spite of the entry of some major health care players, the city still laks high quality medical infrastructure at affordable prices. The city is weak in Trauma and Critical care, Burn treatments and Plastic surgery. Assumptions Basic assumption for estimation of projected revenue and expense from the project are as following: 1. Number of beds: 300 2. Debt: Equity for the project is 1.5:1 3. Basic space requirement in a hospital is 800 square feet per bed. Therefore total space requirement for 300 beds is 240000 square feet. 4. Area available is 5 Acres. 60% of total area is taken as constructed area. With FAR of 2 allowed the area available for construction is 6 Acres. 5. Average Length of Stay per admitted patient is 4 days 6. Number of days in a year is taken as 310 7. Construction period is taken as 36 months 8. Total Number of Beds to come up in first three years is 150 and remaining 150 will come up in next two years. Year Year Year Year -1 Year -2 Year -3 1 2 3 Beds Beds Beds Beds Beds Beds 0 0 0 150 150 300 9. Various revenue streams taken are as follows: ¾ Room Related Revenue ? Beds will be of 2 Category: Category 1 will consist of 70% of the beds and Per Bed Charge will be Rs. 1500/- per day. Category 2 will consist of 30% of the beds and Per Bed Charge will be Rs. 2000/- per day ? Occupancy Rate will be as follows: Year Year Year Year Year Year Year Year Year Year Year 1 2 3 4 5 6 7 8 9 10 11 Beds 150 150 300 300 300 300 300 300 300 300 300 Occupancy 60% 70% 50% 60% 75% 80% 80% 80% 80% 80% 90% ? 11th year onwards occupancy will remain at 90%. ¾ OPD Revenue ? Number of OPDs: Twice a day; 4 hours per OPD. It is also assumed that there will be 10 departments. Average capacity of OPD is taken as 60%. Average time devoted by Doctor per patient is taken as 8 minutes ? OPD Charges are taken as Rs. 300 per patient ¾ Investigation Revenue ? All the in Patients will get their investigations done in the hospital and 40% of the total out patients will their investigations done in the hospital. ? It is assumed that 60% of the investigation tests will be common tests costing Rs 200 on an average and 40% of the investigation tests will be specialized tests costing Rs 1500 on an average ¾ Procedure Revenue
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
? ? ?
It is assumed that there is a requirement of 1 Major Operation theatre for every 100 beds. In a day on an average 3 procedures are conducted per OT per day Cost of major operation varies from Rs. 20000-200000 depending upon the type of operation Average cost of major operation based on table mentioned below is taken as Rs. 70000 2790 Category Category Category Category Category 1 2 3 4 5 15% 15% 25% 30% 15% 200000 100000 50000 30000 20000 69500
Numner of Patients per annum Percentage Distribution of Patients Cost of Opeartion Average Cost of Opeartion ? ? ?
It is assumed that there is a requirement of 1 Minor Operation theatre for every 150 beds. In a day on an average 3 procedures are conducted per OT per day Cost of major operation varies from Rs. 1000-10000 depending upon the type of operation Average cost of major operation based on table mentioned below is taken as Rs. 4500 1860 Category Category Category Category 1 2 3 4 25% 25% 25% 25% 10000 5000 2500 1000 4625
Numner of Patients per annum Percentage Distribution of Patients Cost of Opeartion Average Cost of Opeartion
¾ Revenue from Allied Services w.r.t Major Procedures ? When a person undergoes a major procedure he requires pre and post allied OT Procedures such as PAC, ICU & other activities. These services are cost intensive and has been assumed at 30% of the major procedure revenue. ¾ Miscellaneous Revenue ? 15% of the total revenue will come from Health Insurance, Pharmaceuticals, Medical Consumables, Medical Equipments, Cafeteria and other Non Hospital related revenue. 10. Various expenditure heads taken are as follows: ¾ Salary and Wages ? A manpower deployment chart is prepared consisting of MD, HoDs, Consultants, SRs, JRs, Surgeons, Nurses & Administration Staff. Numbers Charges per Month 1 300000 10 200000 20 150000 20 40000 40 25000 90 15000 50 7000
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MD HODs Consultants SRs JRs Nurses Admin/ Support Staff
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Request for Proposal for Design, Build, Finance, Operate and Transfer Multi Specialty Hospital in Agra
¾ ¾
¾ ¾ ¾ ¾ ¾
Total Expenditure on Wages and Salary p.a. 1056 ? Per annum increase on an average is taken as 3% Surgeon Fees/Doctor Share ? Doctors and Surgeons conducting major and minor procedure will collect charges of 30% of total revenue generated from conducting these procedures. Pharmaceuticals and Consumables ? Pharmaceuticals and Consumables will be used while conducting major and minor procedures and investigations and test. It is assumed that cost of this component is 20% of the total revenue generated from conducting procedures and investigations Utilities ? Cost of Utilities per Bed per Annum is taken as Rs 25000 per bed. Maintenance ? Maintenance cost is taken as 5% of the total revenue generated Administrative Expenses ? Administrative Expenses are taken as 2% of the total revenue generated Marketing and PR ? Marketing and PR Expenses are taken as 5% of the total revenue generated initially and 2% from 6th year onwards Annual Payment to State Government ? 1% of the total revenue generated will have to be deposited with the government throughout concession period.
Based on the above assumptions profitability projections of the project was calculated for 35 years which are as following Projected Revenue Amount in Rs. Crores Year 10 62.61 33.45 29.16 7.54 0.00 21.62 Year 15 70.97 37.74 33.23 0.00 0.00 33.23 Year 20 78.31 42.49 35.82 0.00 0.00 35.82 Year 25 86.84 47.87 38.97 0.00 0.00 38.97 Year 30 96.90 54.01 42.89 0.00 0.00 42.89 Year 35 108.91 61.06 47.85 0.00 0.00 47.85
S.No. 1 2 3 4 5 6
Description Year 5 Operating Revenue 53.03 Opearting Expenditure 29.00 Net Opearting Income 24.03 Yearly Repayment 7.54 Yearly Interest 3.05 Income After Repayment of Loan & Interest 13.44
Financial Parameter S.No 1 2 Parameter Project IRR NPV of the revenue of 35 years discounted @ 12% Value 15.04% Rs. 19.00 Crores
Observation It is evident from the above table that expected revenue from the Hospital for period of 35 years is 14.06%.
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