madhya pradesh tourism notice inviting bids for lease of...

ADDENDUM

With reference to our advertisement dated 07.05.2012, for Development of

Resort and Water Sports Activities at Village Hanuwantia at Indira Sagar reservoir

Distt. Khandwa, tender date is extend to 20.06.2012. Closing date for sale of tender will

be 18.06.2012.

Sunil Dubey

Director (TPU)

Madhya Pradesh Tourism

Notice Inviting Bids for Lease of Land

Request for proposal for development of Tourism and related facilities at Indira Sagar on DBFOT basis

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REQUEST FOR PROPOSAL (RFP)

FOR

DEVELOPMENT OF TOURISM

RELATED FACILITIES

AT

INDIRA SAGAR ON DBFOT BASIS

RFP NO. - 1

(7/05/2012) Madhya Pradesh State Tourism Development

Corporation Ltd. Paryatan Bhawan, Bhadbhada Road, Bhopal 462 003

Website: www.mptourism.com

Details of modification in RFP-I

1. Clause No. 4 of the Development Agreement : Performance Security will be @ 5%

of the Total Project Cost . (PAGE NO. 68)

2. Clause No. 14 of the Development Agreement: O & M Security will be @ 2% of the

Total Project Cost. (PAGE NO. 78)

3. RFP, Para 2.2.5: The words "two years" has been replaced by the words "five years"

and the words "date of completion of the project" has been replaced by the "date of

commencement". (PAGE NO. 8)

4. RFP, Para 2.17.8: In this clause the words 'material representation' (second last line)

has been replaced by the words 'material mis-representations'. (PAGE NO. 17)

5. Appendix - IV (RPF)

Appendix-IV (Joint Bidding Agreement) at Para (A) - The sentence "four lining of

Bhopal Bypass Road Project" has been replaced by the sentence "Tourism Related

Facilities at Indira Sagar". (PAGE NO. 47)

6. Appendix - IV (RPF) Para 6.2

In this Para 6.2 the words "second anniversary" has been replaced by "fifth

anniversary" and "project completion date" has been replaced by "project

commencement date". (PAGE NO. 49)

http://www.mptourism.com/


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BRIEF NOTE ON PROJECT

Indira Sagar Dam built on river Narmada is located in District

Khandwa of Madhya Pradesh. It is approximately 200 kms away

from both Indore and Bhopal, the commercial and political capitals

of the state. This biggest manmade lake in the country, which came

into being as a consequence of the dam, is more than 900 sq. kms

and offers immense opportunities for tourism development.

Madhya Pradesh State Tourism Development Corporation has been

authorised to invite private investment for the development of

tourist resorts at village Hanvantiya about 15 kms upstream of the

dam. The Corporation has already started the work of developing

the lake front and shall construct necessary jetty, boat club and

other basic amenities. Private parties shall be licensed to operate

house boats, cruise; speed boats and undertake other water sport

activities. Tourist infrastructure will also be constructed on an

island, Phephirya khurd, located nearby. The Ecotourism

Development Board will take up various eco tourism activities on

other islands which beckon the nature lovers.

The private investors shall be entitled to all the benefits that the

recent proactive Tourism Policy 2010 provides, which includes

exemption in luxury, entertainment and other taxes. Five years

from now the State Tourism Department envisages this project as

one of the most popular leisurely destination which would match

the best anywhere in or outside the country.


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M.P. STATE TOURISM DEVELOPMENT CORPORATION

DISCLAIMER

The information contained in this Request for Proposal document (the

“RFP”) or subsequently provided to Bidder(s), whether verbally or in

documentary or any other form, by or on behalf of the Corporation or any of

its employees or advisors, is provided to Bidder(s) on the terms and conditions

set out in this RFP and such other terms and conditions subject to which such

information is provided.

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

Corporation to the prospective Bidder or any other person. The purpose of

this RFP is to provide interested parties with information that may be useful to

them in the formulation of their Bid for qualification pursuant to this RFP.

This RFP includes statements, which reflect various assumptions and

assessments arrived at by the Corporation in relation to the Project. Such

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

information that each Bidder may require. This RFP may not be appropriate

for all persons, and it is not possible for the Corporation, its employees or

advisors to consider the investment objectives, financial situation and

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

assessments, statements and information contained in this RFP may not be

complete, accurate, adequate or correct. Each Bidder should therefore,

conduct its own investigations and analysis and should check the accuracy,

adequacy, correctness, reliability and completeness of the assumptions,

assessments, statements and information contained in this RFP and obtain

independent advice from appropriate sources.

Information provided in this RFP to the Bidder(s) is on a wide range of

matters, some of which may depend upon interpretation of law. The

information given is not intended to be an exhaustive account of statutory

requirements and should not be regarded as a complete or authoritative

statement of law. Madhya Pradesh State Tourism Development Corporation

Ltd. (CORPORATION) accepts no responsibility for the accuracy or otherwise

for any interpretation or opinion on law expressed herein.

Corporation, its employees and advisors make no representation or warranty

and shall have no liability to any person, including any Bidder or Bidder,

under any law, statute, rules or regulations or tort, principles of restitution or

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

may arise from or be incurred or suffered on account of anything contained in

this RFP or otherwise, including the accuracy, adequacy, correctness,

completeness or reliability of the RFP and any assessment, assumption,

statement or information contained therein or deemed to form part of this RFP

or arising in any way with the Bidder for participation in the Bidding Process.


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Corporation also accepts no liability of any nature whether resulting from

negligence or otherwise howsoever caused arising from reliance of any

Bidder upon the statements contained in this RFP.

Corporation may, in its absolute discretion but without being under any

obligation to do so, update, amend or supplement the information, assessment

or assumptions contained in this RFP.

The issue of this RFP does not imply that the Corporation is bound to select

and to appoint the selected Bidder or Developer, for the Project and the

Corporation reserves the right to reject all or any of the Bids or Bids without

assigning any reasons whatsoever.

The Bidder shall bear all its costs associated with or relating to the

preparation and submission of its Bid including but not limited to preparation,

copying, postage, delivery fees, expenses associated with any demonstrations

or presentations which may be required by Corporation or any other costs

incurred in connection with or relating to its Bid. All such costs and expenses

will remain with the Bidder and the Corporation shall not be liable in any

manner whatsoever for the same or for any other costs or other expenses

incurred by an Bidder in preparation or submission of the Bid, regardless of

the conduct or outcome of the Bidding Process.


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SECTION - 1

INTRODUCTION

1.1 Background

1.1.1 Madhya Pradesh State Tourism Development Corporation Ltd., (the

“Corporation”) is engaged in the promotion of tourism in the State

and as part of this endeavour, the Corporation has decided to undertake

development of Tourism and related facilities at Indira Sagar (the

“Project”), through Public-Private Partnership (the “PPP”) on Design,

Build, Finance, Operate and Transfer (the "DBFOT") basis, and has

decided to carry out the bidding process for selection of the bidder to

whom the Project may be awarded. Brief particulars of the Project are

as follows:

Name of the

Project

Area, Plot No. &

Khasra No.

Estimated

Project Cost

( ` In crore)

Upset Price

( ` in Lakh)

Annual

Development

Fee

Development

of Tourism

and related

facilities at

Indira Sagar

Plot No.- 1

i)Approx. 4.44

Acre from

Khasra No. 72

ii)Approx. 3.50

Acre from

Khasra No. 73

iii)Approx. 1.97

Acre from

Khasra No. 74

vi)Approx. 0.17

Acre from

Khasra No. 76

Total area =

10.08 acres

15.00

91.72

` 1.50 / sqmt.

The Corporation intends to select suitable Bidder (the “Bidders”) who

will be eligible for development of Tourism and related facilities at

Indira Sagar through an open competitive bidding process in

accordance with the procedure set out herein.

1.1.2 The selected Bidder, who is either a company incorporated under the

Companies Act, 1956 or undertakes to incorporate as such prior to

execution of the Development agreement (the “Developer”) shall be

responsible for designing, engineering, financing, procurement,

construction, operation and maintenance of the Project under and in

accordance with the provisions of a long - term Development

agreement (the “Development Agreement”) to be entered into

between the Developer and the Corporation in the form provided by

the Corporation as part of the Bidding Documents annexed hereto.


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1.1.3 The scope of work will broadly include development of Tourism and

related facilities at Indira Sagar and the operation and maintenance

thereof.

1.1.4 Indicative capital cost of the Project (the “Estimated Project Cost”) is

based on the estimates prepared by the Corporation. The assessment of

actual costs, however, will have to be made by the Bidders.

1.1.5 The Corporation shall receive Bids pursuant to this RFP in accordance

with the terms set forth herein as modified, altered, amended and

clarified from time to time by the Corporation, and all Bids shall be

prepared and submitted in accordance with such terms on or before the

date specified in Clause 1.3 for submission of Bids (the “Bid Due

Date”).

1.2 Brief description of bidding Process

1.2.1 (i) The Corporation has adopted a single bidding process (collectively

referred to as the “Bidding Process”) divided into two stages for

selection of the bidder for award of the Project. The first stage (the

“Qualification Stage”) of the process involves qualification of

interested parties/ consortia (the “Bidder”) who make a Bid in

accordance with the provisions of this RFP which expression shall,

unless repugnant to the context, include the Members of the

Consortium.

(ii) Interested parties may purchase the tender document as per tender

schedule indicated in clause 1.3 from MPSTDC Head Office,

Bhopal between 10:00 a.m. to 5:00 p.m. on all working days or by

post/ courier upon a written request accompanied by the non

refundable cost of Tender Document ` 20,000/- ( ` Twenty

thousand only) plus courier/ postal charges of ` 250/- through a

Demand Draft of any nationalized bank in favour of ‘MPSTDC’

payable at Bhopal.

(iii)The tender document can also be downloaded from the

Corporation's website http://www.mptourism.com/Tender.htm and

bidders using downloaded tender form shall intimate details to

MPSTDC for further communication and cost of tender i.e.

` 20,000/- shall also be submitted in the form of DD along with

tender documents.

1.2.2 At the end of first stage, the Corporation will announce a list of all pre-

qualified Bidders whose financial bids will be opened on a pre-decided

date and time. All qualified bidders will be invited to the opening of

financial bids.



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1.2.3 Government of India has issued guidelines (see Appendix-V) for

qualification of bidders seeking to acquire stakes in any public sector

enterprise through the process of disinvestment. These guidelines shall

apply mutatis mutandis to this Bidding Process. The Corporation may

disqualify a Bidder in accordance with the aforesaid guidelines at any

stage of the Bidding Process. Bidder must satisfy themselves that they

are qualified to bid, in terms of Appendix-V.

1.2.4 Bidder would be required to furnish all the information specified in

this RFP. Financial bids of only those Bidders that are pre-qualified

and short-listed will be opened for award of the Project.

1.2.5 In terms of the RFP, a Bidder will be required to deposit, along with its

Bid, a bid security of ` 20.00 lakh ( ` Twenty lakh only) (the "Bid

Security"), refundable no later than 60 (sixty) days from the Bid Due

Date, except in the case of the selected Bidder whose Bid Security

shall be retained till it has provided a Performance Security under the

Development Agreement. The Bidders will have to provide Bid

Security in the form of a Demand Draft in favour of MPSTDC payable

at Bhopal of any Nationalized Bank or a bank guarantee acceptable to

the Corporation and in such event, the validity period of the bank

guarantee shall not be less than 180 (one hundred and eighty) days

from the Bid Due Date, and may be extended as may be mutually

agreed between the Corporation and the Bidder from time to time. The

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

Security.

1.2.6 Generally, the Highest Bidder shall be the selected Bidder. The

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

the process specified in the RFP, be invited to match the Bid submitted

by the Highest Bidder in case such Highest Bidder withdraws or is not

selected for any reason. In the event that none of the other Bidders

match the Bid of the Highest Bidder, the Corporation may, in its

discretion, invite fresh Bids from the remaining Bidders as per the

procedure set forth in this document or annul the Bidding Process, as

the case may be.

1.2.7 Bidders are invited to examine the Project in greater detail, and to

carry out, at their cost, such studies as may be required for submitting

their respective Bids for award of the Development Right including

implementation of the Project.

1.2.8 As part of the Bidding Documents, the Corporation is providing a draft

Development Agreement, other information pertaining/ relevant to the

Project available with it and the format of Financial Bid.

1.2.9 Bids will be invited for the Project on the basis of a premium as

upfront payment, (the "Premium") to the Corporation for award of the

Development Right. The Development period is pre-determined, and


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indicated in the draft Development Agreement forming part of the

Bidding Documents. The Premium amount shall constitute the sole

criteria for evaluation of Bids. The Project shall be awarded to the

Bidder quoting the highest Premium.

In this RFP, the term “Highest Bidder” shall mean the Bidder who is

offering the highest Premium.

1.2.10 Any queries or request for additional information concerning this RFP

shall be submitted in writing or by fax and e-mail to the officer

designated in Clause 2.13.5 below. The envelopes/communications

shall clearly bear the following identification/ title:

"Queries/ Request for Additional Information: RFP No. 1 for

development of Tourism and related facilities at Indira Sagar”.

1.3 Schedule of Bidding Process

The Corporation shall endeavour to adhere to the following schedule:

Event Description Date

Qualification Stage

1. Opening date for sale of Tender 07/05/12

2. Last date for receiving queries 22/05/12

3. Pre-Bid Meeting 26/05/12

4. Closing date for sale of Tender 31/05/12

5. Due Date & time for submission

of Tender

07/06/12 (1500 hrs.)

6. Opening of Technical Bid 07/06/12 (1600 hrs.)


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SECTION - 2

INSTRUCTIONS TO BIDDER & CRITERIA FOR EVALUATION

A. GENERAL

2.1 Scope of Bid

2.1.1 The Corporation wishes to receive Bids for the Project in order to select

experienced and capable Bidder.

2.2 Eligibility of Bidder

2.2.1 For determining the eligibility of Bidder for their pre-qualification

hereunder, the following shall apply:

(a) The Bidder for pre-qualification may be a single entity or a group

of entities (the “Consortium”), coming together to implement the

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

of a Consortium, as the case may be, can be member of another

Bidder. The term Bidder used herein would apply to both a single

entity and a Consortium.

(b) A Bidder may be a natural person, private entity, or any

combination of them under an existing agreement to form a

Consortium. A Consortium shall be eligible for consideration

subject to the conditions set out in Clause 2.2.5 below.

(c) A Bidder shall not have a conflict of interest (the “Conflict of

Interest”) that affects the Bidding Process. Any Bidder found to

have a Conflict of Interest shall be disqualified. A Bidder shall be

deemed to have a Conflict of Interest affecting the Bidding

Process, if :

(i) The Bidder, its Member or Associate (or any constituent

thereof) and any other Bidder, its Member or any Associate thereof

(or any constituent thereof) have common controlling shareholders

or other ownership interest is more than 25% (twenty five per cent)

of the subscribed and paid up equity share capital thereof; provided

further that this disqualification shall not apply to any ownership

by a bank, insurance company, pension fund or a public financial

institution referred to in section 4A of the Companies Act 1956.

(ii) a constituent of such Bidder is also a constituent of another

Bidder; or

(iii)such Bidder, or any Associate thereof receives or has received

any direct or indirect subsidy, grant, concessional loan or


6

subordinated debt from any other Bidder, or any Associate thereof

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

subordinated debt to any other Bidder, its Member or any

Associate thereof; or

(iv) such Bidder has the same legal representative for purposes of

this Bid as any other Bidder; or

(v) such Bidder, or any Associate thereof has a relationship with

another Bidder, or any Associate thereof, directly or through

common third party/ parties, that puts either or both of them in a

position to have access to each others’ information about, or to

influence the Bid of either or each other; or

(vi) such Bidder, or any Associate thereof has participated as a

consultant to the Corporation in the preparation of any documents,

design or technical specifications of the Project.

(d) A Bidder shall be liable for disqualification if any legal, financial

or technical adviser of the Corporation in relation to the Project is

engaged by the Bidder, its Member or any Associate thereof, as

the case may be, in any manner for matters related to or

incidental to the Project. For the avoidance of doubt, this

disqualification shall not apply where such adviser was engaged

by the Bidder, its Member or Associate in the past but its

assignment expired or was terminated 6 (six) months prior to the

date of issue of this RFP. Nor will this disqualification apply

where such adviser is engaged after a period of 3 (three) years

from the date of commercial operation of the Project.

Explanation: In case an Bidder is a Consortium, then the term Bidder

as used in this Clause 2.2.1, shall include each Member of such

Consortium.

2.2.2 To be eligible for pre-qualification and short-listing, a Bidder shall

fulfil the following conditions of eligibility:

(A) Technical Capacity: For demonstrating technical capacity and

experience (the “Technical Capacity”), the Bidder shall, over the past

5 (five) financial years preceding the Bid Due Date, have:

(i) paid for, and/or received payments for, development of Eligible

Project(s)

The Eligible Project will mean:

(a) A development project that has been undertaken as a PPP

project or on any of following basis


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(i) A project of Hotel / Resort having rating 3/4/5 star and

above with minimum 50 rooms developed / set up and

owned for last five years.

(ii) A hotel / resort project having rating of 3/4/5 star and

minimum 50 rooms being operated for the last 5 years.

(iii) A convention centre developed / set up / owned for last

5 years.

(iv) Any real estate project developed /setup/ owned for last

five years.

and

for such projects the Bidder should have paid for execution of its

construction works or received payments from its client(s) for

construction works executed, fully or partially (EPC Contract), during

the 5 (five) financial years immediately preceding the Bid Due Date,

and only the payments (gross) actually made or received, as the case

may be, during such 5 (five) financial years shall qualify for purposes

of computing the Technical Experience. However, payments/receipts

of less than ` 3.00 crore (` Three crore) shall not be reckoned as

payments/receipts for Eligible Projects. For the avoidance of doubt,

construction works shall not include supply of goods or equipment

except when such goods or equipment form part of a turn-key

construction contract/ EPC contract for the project. Further, the cost of

land shall not be included hereunder;

and such that the sum total of all such project(s) is more than ` 15

crore (` Fifteen crore)] (the “Technical Capability”).

(b) the entity claiming experience should have held, in the

company owing the Eligible Project, a minimum of 26%

(twenty six per cent) equity during the entire year for which

Eligible Experience is being claimed;

(B) Financial Capacity: The Bidder shall have a minimum Net Worth (the

“Financial Capacity”) of ` 5.00 crore (` Five crore) at the close of

the preceding financial year.

2.2.3 The Bidder shall enclose with its Bid, to be submitted as per the format

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

(i) Certificate(s) from its statutory auditors or the concerned

client(s) stating the payments made/ received for works

commissioned, as the case may be, during the past 5 years in

respect of the projects specified in paragraph 2.2.2 (A) above.

In case a particular job/ contract has been jointly executed by


8

the Bidder (as part of a consortium), it should further support its

claim for the share in work done for that particular job/ contract

by producing a certificate from its statutory auditor or the

client; and

(ii) certificate(s) from its statutory auditors specifying the net worth

of the Bidder, as at the close of the preceding financial year,

and also specifying that the methodology adopted for

calculating such net worth conforms to the provisions of this

Clause 2.2.3 (ii). For the purposes of this RFP, net worth (the

“Net Worth”) shall mean the sum of subscribed and paid up

equity and reserves from which shall be deducted the sum of

revaluation reserves, miscellaneous expenditure not written off

and reserves not available for distribution to equity share

holders.

2.2.4 The Bidder should submit a Power of Attorney as per the format at

Appendix-II, authorising the signatory of the Bid to commit the

Bidder. In the case of a Consortium, the Members should submit a

Power of Attorney in favour of the Lead Member as per format at

Appendix-III.

2.2.5 Where the Bidder is a single entity, it may be required to form an

appropriate Special Purpose Vehicle, incorporated under the Indian

Companies Act 1956 (the “SPV”), to execute the Development

Agreement and implement the Project. In such case the Bidder should

hold minimum 51% equity in SPV with equity lock-in for minimum

five years from the date of commencement. In case the Bidder is a

Consortium, it shall, in addition to forming a SPV, comply with the

following additional requirements:

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

(b) in case of consortium each member should commit to hold at

least 26% (twenty six per cent) of the paid up & subscribed

equity of SPV.

(c) members of the Consortium shall nominate one member as the

lead member (the “Lead Member). The nomination(s) shall be

supported by a Power of Attorney, as per the format at

Appendix-III, signed by all the other members of the

Consortium;

(d) the Bid should include a brief description of the roles and

responsibilities of individual members, particularly with

reference to financial, technical and O&M obligations;

(e) an individual Bidder cannot at the same time be member of a

Consortium applying for the project. Further, a member of a


9

particular Bidder Consortium cannot be member of any other

Bidder Consortium applying for the project;

(f) the members of a Consortium shall form an appropriate SPV to

execute the Project, if awarded to the Consortium;

(g) members of the Consortium shall enter into a binding Joint

Bidding Agreement, substantially in the form specified at

Appendix-IV (the “Jt. Bidding Agreement”) for the purpose

submitting a Bid. The Jt. Bidding Agreement, to be submitted

along with the Bid, shall, inter alia:

(i) convey the intent to form an SPV with shareholding/

ownership equity commitment(s) in accordance with

this RFP, which would enter into the Development

Agreement and subsequently perform all the obligations

of the Developer in terms of the Development

Agreement, in case the Development Right to undertake

the Project is awarded to the Consortium;

(ii) clearly outline the proposed roles and responsibilities, if

any, of each member;

(iii) commit the minimum equity stake to be held by each

member;

(iv) commit that each of the members, shall subscribe to

26% (twenty six per cent) or more of subscribed and

paid up equity capital of the SPV and shall further

commit that each such member shall hold it for a period

of 5 (five) years from Project Completion Date;

(v) include a statement to the effect that all members of the

Consortium shall be liable jointly and severally for all

obligations of the Developer in relation to the Project

until the completion of the Project is achieved in

accordance with the Development Agreement; and

(h) except as provided under this RFP and the Bidding Documents,

there shall not be any amendment to the Jt. Bidding Agreement

without the prior written consent of the MPSTDC.

2.2.6 Any bidder who has been barred by the Central/ State Government, or

by an entity created or controlled by it, from participating in any

project (DBFOT or otherwise), and the bar subsists as on the date of

Bid, would not be eligible to submit an Bid, either individually or as

member of a Consortium.


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2.2.7 A Bidder including any Consortium Member or Associate should, in

the last 3 (three) years, have neither failed to perform on any contract,

as evidenced by imposition of a penalty by an arbitral or judicial

Corporation or a judicial pronouncement or arbitration award against

the Bidder, Consortium Member or Associate, as the case may be, nor

has been expelled from any project or contract nor have had any

contract terminated by Central/State Government or any entity created

or controlled by it for breach by such Bidder, Consortium Member or

Associate.

2.2.8 In computing the Technical Capacity and Net Worth of the Bidder/

Consortium Members under Clauses 2.2.2 & 2.2.3 the Technical

Capacity and Net Worth of their respective Associates would also be

eligible hereunder.

For purposes of this RFP, Associate means, in relation to the Bidder/

Consortium Member, a person who controls, is controlled by, or is

under the common control with such Bidder/ Consortium Member (the

“Associate”). As used in this definition, the expression “control”

means, with respect to a person which is a company or Corporation,

the ownership, directly or indirectly, of more than 50% (fifty per cent)

of the voting shares of such person, and with respect to a person which

is not a company or Corporation, the power to direct the management

and policies of such person by operation of law.

It is clarified that a certificate from a qualified external auditor who

audits the book of accounts of the Bidder or the Consortium Member

shall be provided to demonstrate that a person is an Associate of the

Bidder or the Consortium as the case may be.

2.2.9

(a) Bidder should attach clearly marked and referenced

continuation sheets in the event that the space provided in the

prescribed forms in the Annexes is insufficient. Alternatively,

Bidder may format the prescribed forms making due provision

for incorporation of the requested information;

(b) information supplied by a Bidder (or other constituent Member

if the Bidder is a Consortium) must apply to the Bidder,

Member or Associate named in the Bid and not, unless

specifically requested, to other associated companies or firms.

2.3 Change in composition of the Consortium

2.3.1 Change in the composition of a Consortium will not be permitted by

the Corporation during the Bidding Process.


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2.4 Number of Bids and costs thereof

2.4.1 No Bidder shall submit more than one Bid for the Project. A Bidder

applying individually or as a member of a Consortium shall not be

entitled to submit another Bid either individually or as a member of

any Consortium, as the case may be.

2.4.2 The Bidder shall be responsible for all of the costs associated with the

preparation of their Bids and their participation in the Bid Process. The

Corporation will not be responsible or in any way liable for such costs,

regardless of the conduct or outcome of the Bidding Process.

2.5 Site visit and verification of information

Bidders are encouraged to submit their respective Bids after visiting

the Project site and ascertaining for themselves the site conditions,

traffic, location, surroundings, climate, availability of power, water and

other utilities for construction, access to site, handling and storage of

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

matter considered relevant by them.

2.6 Acknowledgement by Bidder

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

(a) made a complete and careful examination of the RFP;

(b) received all relevant information requested from the

Corporation;

(c) accepted the risk of inadequacy, error or mistake in the

information provided in the RFP or furnished by or on behalf of

the Corporation relating to any of the matters referred to in this

document; and

(d) agreed to be bound by the undertakings provided by it under

and in terms hereof.

2.6.2 The Corporation shall not be liable for any omission, mistake or error

in respect of any of the above or on account of any matter or thing

arising out of or concerning or relating to the RFP or the Bidding

Process, including any error or mistake therein or in any information or

data given by the Corporation.

2.7 Right to accept or reject any or all Bids

2.7.1 Notwithstanding anything contained in this RFP, the Corporation

reserves the right to accept or reject any Bid and to annul the Bidding

Process and reject all Bids, at any time without any liability or any


12

obligation for such acceptance, rejection or annulment, and without

assigning any reasons therefore. In the event that the Corporation

rejects or annuls all the Bids, it may, in its discretion, invite all eligible

Bidders to submit fresh Bids hereunder.

2.7.2 The Corporation reserves the right to reject any Bid if:

(a) at any time, a material misrepresentation is made or uncovered,

or

(b) the Bidder does not provide, within the time specified by the

Corporation, the supplemental information sought by the

Corporation for evaluation of the Bid.

If the Bidder is a Consortium, then the entire Consortium may be

disqualified/ rejected. If such disqualification/ rejection occurs after the

Bids have been opened and the Highest Bidder gets disqualified/

rejected, then the Corporation reserves the right to:

(i) invite the remaining Bidders to match the Highest Bidder/

submit their Bids in accordance with the RFP; or

(ii) take any such measure as may be deemed fit in the sole

discretion of the Corporation, including annulment of the

Bidding Process.

2.7.3 In case it is found during the evaluation or at any time before signing

of the Development Agreement or after its execution and during the

period of subsistence thereof, that one or more of the pre-qualification

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

material misrepresentation or has given any materially incorrect or

false information, the Bidder shall be disqualified forthwith if not yet

appointed as the Developer either by issue of the LOA or entering into

of the Development Agreement, and if the Bidder/SPV has already

been issued the LOA or has entered into the Development Agreement,

as the case may be, the same shall, notwithstanding anything to the

contrary contained therein or in this RFP, be liable to be terminated, by

a communication in writing by the Corporation to the Bidder, without

the Corporation being liable in any manner whatsoever to the Bidder

and without prejudice to any other right or remedy which the

Corporation may have under this RFP, the Bidding Documents, the

Development Agreement or under applicable law.

2.7.4 The Corporation reserves the right to verify all statements, information

and documents submitted by the Bidder in response to the RFP. Any

such verification or lack of such verification by the Corporation shall


13

not relieve the Bidder of its obligations or liabilities hereunder nor will

it affect any rights of the Corporation there under.

B. DOCUMENTS

2.8 Contents of the RFP

2.8.1 This RFP comprises the disclaimer set forth hereinabove, the contents

as listed below, and will additionally include any Addenda issued in

accordance with Clause 2.10.

Invitation for Bid

Section 1. Introduction

Section 2. Instructions to Bidder & Criteria for Evaluation

Section 3. Fraud & Corrupt Practices

Section 4. Pre Bid Conference

Section 5. Miscellaneous

Appendices

I. Letter comprising the Bid (Including Annexure I to V)

II. Power of Attorney for signing of Bid

III. Power of Attorney for Lead Member of Consortium

IV. Joint Bidding Agreement for Consortium

V. Guidelines of the Department of Disinvestment

VI. Bank Guarantee for Bid Security

VII. Format for Bid Security

VIII. Format for Financial Bid

2.8.2 The Financial Bid format, the draft Development Agreement and the

Schedules to Development Agreement to be provided by Corporation

as part of the Bid Documents shall be deemed to be part of this RFP.

2.9 Clarifications

2.9.1 Bidders requiring any clarification on the RFP may notify Corporation

in writing or by fax in accordance with Clause 1.2.10. They should

send in their queries before the date mentioned in the Schedule of

Bidding Process specified in Clause 1.3. The responses will be sent by

fax or e-mail and will be uploaded on the website of the Corporation

which can be viewed at http://www.mptourism.com/Tender.htm.



14

Corporation will forward all the queries and its responses thereto, to

all Bidders without identifying the source of queries.

2.9.2 Corporation shall endeavour to respond to the questions raised or

clarifications sought by the Bidders. However, Corporation reserves

the right not to respond to any question or provide any clarification, in

its sole discretion, and nothing in this Clause shall be taken or read as

compelling or requiring Corporation to respond to any question or to

provide any clarification.

2.9.3 Corporation may also on its own motion, if deemed necessary, issue

interpretations and clarifications to all Bidders. All clarifications and

interpretations issued by Corporation shall be deemed to be part of the

Bidding Documents. Verbal clarifications and information given by

Corporation or its employees or representatives shall not in any way

or manner be binding on Corporation.

2.10 Amendment of RFP

2.10.1 At any time prior to the deadline for submission of Bid, the

Corporation may, for any reason, whether at its own initiative or in

response to clarifications requested by an Bidder, modify the RFP by

the issuance of Addenda.

2.10.2 Any Addendum thus issued will be sent in writing to all those who

have purchased the RFP.

2.10.3 In order to afford the Bidder a reasonable time for taking an

Addendum into account, or for any other reason, the Corporation may,

in its sole discretion, extend the Bid Due Date.

C. PREPARATION AND SUBMISSION OF BID

2.11 Language

The Bid and all related correspondence and documents in relation to

the Bidding Process shall be in English language. Supporting

documents and printed literature furnished by the Bidder with the Bid

may be in any other language provided that they are accompanied by

translations of all the pertinent passages in the English language, duly

authenticated and certified by the Bidder. Supporting materials, which

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

of interpretation and evaluation of the Bid, the English language

translation shall prevail.

2.12 Format and signing of Bid

2.12.1 The Bidder shall provide all the information sought under this RFP.

The Corporation will evaluate only those Bids that are received in the


15

required formats and complete in all respects. Incomplete and /or

conditional Bids shall be liable to rejection.

2.12.2 The Bidder shall prepare 1 (one) original set of the Bid (together with

originals/ copies of documents required to be submitted along

therewith pursuant to this RFP) and clearly marked “ORIGINAL”. In

addition, the Bidder shall submit 1 (one) copy of the Bid, alongwith

documents required to be submitted along therewith pursuant to this

RFP, marked “COPY”.

2.12.3 The Bid and its copy shall be typed or written in indelible ink and

signed by the authorised signatory of the Bidder who shall also initial

each page in blue ink. In case of printed and published documents,

only the cover shall be initialled. All the alterations, omissions,

additions or any other amendments made to the Bid shall be initialled

by the person(s) signing the Bid. The Bid shall contain page numbers

and shall be bound together in hard cover.

2.13 Sealing and Marking of Bids

2.13.1 The Bidder shall submit the Bid in the format specified at Appendix-I,

together with the documents specified in Clause 2.13.2, and seal it in

an envelope and mark the envelope as “TECHNICAL BID”. The

Bidder shall seal the original and the copy of the Bid, together with

their respective enclosures, in separate envelopes duly marking the

envelopes as “ORIGINAL” and “COPY”. The envelope shall then be

sealed in an outer envelope which shall also be marked in accordance

with Clauses 2.13.2 and 2.13.3.

2.13.2 The Technical Bid shall contain:

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

and supporting documents;

(ii) Bank Draft/Bank Guarantee of Bid Security in the prescribed

format (Appendix - VI)

(iii) A copy of this RFP Part-I, the Development Agreement and the

Schedules of Development Agreement with each page initialled

by the person signing the Bid in pursuance of the Power of

Attorney referred to in Clause (iv) herein below.

(iv) Power of Attorney for signing the Bid as per the format at

Appendix-II;

(v) if applicable, the Power of Attorney for Lead Member of

Consortium as per the format at Appendix-III;

(vi) copy of the Joint Bidding Agreement, in case of a Consortium,

substantially in the format at Appendix-IV;


16

(v) copy of Memorandum and Articles of Association, if the

Bidder is a body corporate, and if a partnership then a copy of

its partnership deed; and

2.13.3 The Bidder shall submit the Financial Bid in the format specified at

Appendix VIII of this RFP and seal it in an envelope and mark the

envelope as “FINANCIAL BID”

2.13.4 The envelopes of Technical Bid and Financial Bids shall be sealed in

separate envelope and shall be kept in one outer envelope marked as

under:-

“Bids for Development of Tourism and related facilities at

Indira Sagar” RFP NO. 1

2.13.5 Each of the envelopes shall be addressed to:

ATTN. OF: Mr. Sunil Dubey

DESIGNATION: Director (Tourism Promotion Unit)

ADDRESS: MP State Tourism Development

Corporation Ltd.,

Paryatan Bhawan, Bhadbhada Road,

Bhopal 462 003

2.13.6 If the envelopes are not sealed and marked as instructed above, the

Corporation assumes no responsibility for the misplacement or

premature opening of the contents of the Bid and consequent losses, if

any, suffered by the Bidder.

2.13.7 Bids submitted by fax, telex, telegram or e-mail shall not be

entertained and shall be rejected.

2.14 Bid Due Date

2.14.1 Bids should be submitted before 1500 hours IST on 07/06/2012 (the

Bid Due Date), at the address provided in Clause 2.13.5 in the manner

and form as detailed in this RFP. A receipt thereof should be obtained

from the person specified in Clause 2.13.5.

2.14.2 The Corporation may, in its sole discretion, extend the Bid Due Date

by issuing an Addendum in accordance with Clause 2.10 uniformly for

all Bidder.

2.15 Late Bids


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Bids received by the Corporation after the specified time on the Bid

Due Date shall not be eligible for consideration and shall be summarily

rejected.

2.16 Modifications/substitution of Bids

2.16.1 No Bid for modification or substitution of Bid after submission shall

be entertained.

2.16.2 Any alteration/ modification in the Bid or additional information

supplied subsequent to the Bid Due Date, unless the same has been

expressly sought for by the Corporation, shall be disregarded.

D. EVALUATION PROCESS

2.17 Opening and Evaluation of Bids

2.17.1 The Corporation shall open the Bids at 1600 hours IST on 07/06/2012

(the Bid Due Date), at the place specified in Clause 2.13.5 and in the

presence of the Bidder who choose to attend.

2.17.2 The Corporation will subsequently examine and evaluate Bids in

accordance with the prequalification criteria set forth.

2.17.3 Bidder are advised that pre-qualification of Bidder will be entirely at

the discretion of the Corporation. Bidder will be deemed to have

understood and agreed that no explanation or justification on any

aspect of the Bidding Process or selection will be given.

2.17.4 Any information contained in the Bid shall not in any way be

construed as binding on the Corporation, its agents, successors or

assigns, but shall be binding against the Bidder if the Project is

subsequently awarded to it on the basis of such information.

2.17.5 Financial bids of only qualified parties will be opened on a date for

which qualified parties will be notified in advance and will have the

right to nominate any official to participate in the process of financial

bid opening. The financial bids of those bidders who do not meet the

technical and financial parameters for pre-qualification, will be

returned unopened.

2.17.6 The Corporation reserves the right not to proceed with the Bidding

Process at any time without notice or liability and to reject any or all

Bid(s) without assigning any reasons.

2.17.7 If any information furnished by the Bidder is found to be incomplete,

or contained in formats other than those specified herein, the

Corporation may, in its sole discretion, exclude the relevant project

from computation of the Eligibility of the Bidder.


18

2.17.8 In the event that an Bidder claims credit for an Eligible Project, and

such claim is determined by the Corporation as incorrect or erroneous,

the Corporation shall reject such claim and exclude the same from

computation of the Eligible Score, and may also, while computing the

aggregate Experience Score of the Bidder, make a further deduction

equivalent to the claim rejected hereunder. Where any information is

found to be patently false or amounting to a material mis-

representations, the Corporation reserves the right to reject the Bid

and/ or Bid.

2.18 Validity of Bids

The bids shall be valid for a period of not less than 120 (one hundred

and twenty) days from the Bid Due Date. The validity of Bids may be

extended by mutual consent of the respective Bidders and Corporation.

2.19 Confidentiality

Information relating to the examination, clarification, evaluation and

recommendation for the bidders shall not be disclosed to any person

who is not officially concerned with the process or is not a retained

professional advisor advising Corporation in relation to, or matters

arising out of, or concerning the Bidding Process. Corporation will

treat all information, submitted as part of the Bid, in confidence and

will require all those who have access to such material to treat the

same in confidence. Corporation may not divulge any such information

unless it is directed to do so by any statutory entity that has the power

under law to require its disclosure or is to enforce or assert any right or

privilege of the statutory entity and/ or Corporation.

2.20 Correspondence with the Bidder

Corporation shall not entertain any correspondence with any Bidder in

relation to acceptance or rejection of any Bid.

2.21 Tests of responsiveness

2.21.1 Prior to evaluation of Bids, the Corporation shall determine whether

each Bid is responsive to the requirements of the RFP. An Bid shall be

considered responsive only if:

(a) it is received as per format at Appendix-I.

(b) It is accompanies by bid security as per the format at

Appendix - VII.

(c) it is received by the Bid Due Date including any extension

thereof pursuant to Clause 2.14.2;


19

(d) it is signed, sealed, bound together in hard cover, and

marked as stipulated in Clauses 2.12 and 2.13;

(e) it is accompanied by the Power of Attorney, and in the case

of a Consortium, the Power of Attorney as specified in

Clause 2.2.4;

(f) it contains all the information and documents (complete in

all respects) as requested in this RFP;

(g) it contains information in formats same as those specified in

this RFP;

(h) it contains certificates from its statutory auditors in the

formats specified at Appendix-I of the RFP for each

Eligible Project;

(i) it contains proof of the payment of ` 20,000.00 (` twenty

thousand only) to Corporation towards the cost of the RFP

document; as per clause 1.2.1

(j) it is accompanied by the Jt. Bidding Agreement (for

Consortium), specific to the Project, as stipulated in Clause

2.2.5(g);

(k) it does not contain any condition or qualification; and

(l) it is not non-responsive in terms hereof.

2.21.2 The Corporation reserves the right to reject any Bid which is non-

responsive and no request for alteration, modification, substitution or

withdrawal shall be entertained by the Corporation in respect of such

Bid.

2.22 Clarifications

2.22.1 To facilitate evaluation of Bids, the Corporation may, at its sole

discretion, seek clarifications from any Bidder regarding its Bid. Such

clarification(s) shall be provided within the time specified by the

Corporation for this purpose. Any request for clarification(s) and all

clarification(s) in response thereto shall be in writing.

2.22.2 If an Bidder does not provide clarifications sought under Clause 2.22.1

above within the prescribed time, its Bid shall be liable to be rejected.

In case the Bid is not rejected, the Corporation may proceed to

evaluate the Bid by construing the particulars requiring clarification to

the best of its understanding, and the Bidder shall be barred from

subsequently questioning such interpretation of the Corporation.

2.23 Bid Security


20

2.23.1 The Bidder shall furnish as part of its Bid, a Bid Security referred to in

Clause 1.2.5 hereinabove in the form of a Bank Draft or a bank

guarantee issued by a nationalized bank, or a Scheduled Bank in India,

in favour of Corporation in the format at Appendix – II (the “Bank

Guarantee”) and having a validity period of not less than 180 days

from the Bid Due Date, and may be extended by the Bidder from time

to time. For the avoidance of doubt, Scheduled Bank shall mean a bank

as defined under Section 2(e) of the Reserve Bank of India Act, 1934.

2.23.2 Corporation shall not be liable to pay any interest on the Bid Security

deposit so made and the same shall be interest free.

2.23.3 Any Bid not accompanied by the Bid Security shall be rejected by

Corporation as non-responsive.

2.23.4 Save as provided in Clause 1.2.5 above, the Bid Security of

unsuccessful Bidders will be returned by Corporation, without any

interest, as promptly as possible on signing of Development

Agreement with the Selected Bidder or when the Bidding process is

cancelled by Corporation.

2.23.5 The Selected Bidder’s Bid Security will be returned, without any

interest, upon the Bidder signing the Development Agreement and

furnishing the Performance Security in accordance with the provisions

thereof. Corporation may, at the Selected Bidder’s option, adjust the

amount of Bid Security in the amount of Performance Security to be

provided by him in accordance with the provisions of the Development

Agreement.

2.23.6 Corporation shall be entitled to forfeit and appropriate the Bid Security

as mutually agreed genuine pre-estimated compensation / damages to

Corporation in any of the events specified in Clause 2.23.7 herein

below. The Bidder, by submitting its Bid pursuant to this RFP, shall be

deemed to have acknowledged and confirmed that Corporation will

suffer loss and damage on account of withdrawal of its Bid or for any

other default by the Bidder during the Bid validity period. No

relaxation of any kind on Bid Security shall be given to any Bidder.

2.23.7 The Bid Security shall be forfeited and appropriated by Corporation as

mutually agreed genuine pre-estimated compensation and damages


21

payable to Corporation for, inter alia, time, cost and effort of

Corporation without prejudice to any other right or remedy that may

be available to Corporation hereunder or otherwise, under the

following conditions:

a) If a Bidder engages in a corrupt practice, fraudulent practice,

coercive practice, undesirable practice or restrictive practice as

specified in Clause 3 of this RFP;

b) If a Bidder withdraws its Bid during the period of Bid validity

as specified in this RFP and as extended by the Bidder from

time to time;

c) In the case of Selected Bidder, if it fails within the specified

time limit -

i) to sign the Development Agreement and/or

ii) to furnish the Performance Security within the period

prescribed therefore in the Development Agreement; or

d) In case the Selected Bidder, having signed the Development

Agreement, commits any breach thereof prior to furnishing the

Performance Security.

E. QUALIFICATION AND BIDDING

2.24 Short-listing and notification

After the evaluation of Bids, the Corporation would announce a list of

qualified Bidder who will be eligible for opening of Financial Bids. At

the same time, the Corporation would notify the other Bidder that they

have not been short-listed. The Corporation will not entertain any

query or clarification from Bidder who fail to qualify.

2.25 Submission of Bids

The Bidders will be requested to submit a Bid in the form and manner

to be set out in the Bidding Documents.

Only qualified Bidder shall be invited by the Corporation to attend the

opening of financial bids.

2.26 Proprietary data

All documents and other information supplied by the Corporation or

submitted by an Bidder to the Corporation shall remain or become the


22

property of the Corporation. Bidder are to treat all information as

strictly confidential and shall not use it for any purpose other than for

preparation and submission of their Bid. The Corporation will not

return any Bid or any information provided along therewith.

2.27 Correspondence with the Bidder

Save and except as provided in this RFP, the Corporation shall not

entertain any correspondence with any Bidder in relation to the

acceptance or rejection of any Bid.

2.28 Selection of Bidder

2.28.1 The Bidder adjudged as responsive in terms of Clause 2.2.2 and

quoting the highest Premium (highest Bidder) offered to Corporation,

shall be declared as the Selected Bidder (the “Selected Bidder”).

2.28.2 In the event that two or more Bidders quote the same amount of

Premium (the "Tie Bidders"), Corporation shall identify the Selected

Bidder by draw of lots, which shall be conducted, with prior notice, in

the presence of the Tie Bidders who choose to attend.

2.28.3 In the event that the highest Bidder withdraws or is not selected for

any reason in the first instance (the “first round of bidding”),

Corporation may invite all the remaining Bidders to revalidate or

extend their respective Bid Security, as necessary, and match the Bid

of the aforesaid highest Bidder (the “second round of bidding”). If in

the second round of bidding, only one Bidder matches the highest

Bidder, it shall be the Selected Bidder. If two or more Bidders match

the said highest Bidder in the second round of bidding, then the

Bidder whose Bid was higher as compared to other Bidder(s) in the

first round of bidding shall be the Selected Bidder. For example, if the

third and fifth highest Bidders in the first round of bidding offer to

match the said highest Bidder in the second round of bidding, the said

third highest bidder shall be the Selected Bidder.

2.28.4 In the event that no Bidder offers to match the highest Bidder in the

second round of bidding as specified in Clause 2.28.3, Corporation

may, in its discretion, invite fresh Bids (the “third round of

bidding”) from all Bidders except highest Bidder of the first round of

bidding, or annul the Bidding Process, as the case may be. In case the

Bidders are invited in the third round of bidding to revalidate or

extend their Bid Security, as necessary, and offer fresh Bids, they


23

shall be eligible for submission of fresh Bids provided, however, that

in such third round of bidding only such bids shall be eligible for

consideration which are higher than the Bid of the second highest

Bidder in the first round of bidding.

2.28.5 After selection, a Letter of Award (the “LOA”) shall be issued, in

duplicate, by Corporation to the Selected Bidder and the Selected

Bidder shall, within 7 (seven) days of the receipt of the LOA, sign and

return the duplicate copy of the LOA in acknowledgement thereof. In

the event the duplicate copy of the LOA duly signed by the Selected

Bidder is not received by the stipulated date, Corporation may, unless

it consents to extension of time for submission thereof, appropriate

the Bid Security of such Bidder as mutually agreed genuine pre-

estimated loss and damage suffered by Corporation on account of

failure of the Selected Bidder to acknowledge the LOA, and the next

eligible Bidder may be considered.

2.28.6 After acknowledgement of the LOA as aforesaid by the Selected

Bidder, it shall execute the Development Agreement within the period

stipulated in LOA. The Selected Bidder shall not be entitled to seek

any deviation in the Development Agreement.

2.29 Details of Experience

2.29.1 The Bidder should furnish the details of Eligible Experience for the

last 5 (five) financial years immediately preceding the Bid Due Date.

2.29.2 The Bidder must provide the necessary information relating to

Technical Capacity as per format at Annex-II of Appendix-I.

2.29.3 The Bidder should furnish the required Project-specific information

and evidence in support of its claim of Technical Capacity, as per

format at Annex-IV of Appendix-I.

2.30 Financial information for purposes of evaluation

2.30.1 The Bid must be accompanied by the Audited Annual Reports of the

Bidder (of each Member in case of a Consortium) for the last 5 (five)

financial years, preceding the year in which the Bid is made. In case

the Bidder is less than 5 years old, such audited annual reports will be

considered for evaluation as are available subject to the condition that

it fulfils the criterion.


24

2.30.2 In case the annual accounts for the latest financial year are not audited

and therefore the Bidder cannot make it available, the Bidder shall give

an undertaking to this effect and the statutory auditor shall certify the

same. In such a case, the Bidder shall provide the Audited Annual

Reports for 5 (five) years preceding the year for which the Audited

Annual Report is not being provided subject to clause 2.30.1 above.

2.30.3 The Bidder must establish the minimum Net Worth specified in Clause

2.2.2 (B), and provide details as per format at Annex-III of

Appendix-I.


25

SECTION - 3

FRAUD AND CORRUPT PRACTICES

3.1 The Bidder and their respective officers, employees, agents and advisers

shall observe the highest standard of ethics during the Bidding Process.

Notwithstanding anything to the contrary contained herein, the

Corporation may reject a Bid without being liable in any manner

whatsoever to the Bidder if it determines that the Bidder has, directly or

indirectly or through an agent, engaged in corrupt practice, fraudulent

practice, coercive practice, undesirable practice or restrictive practice in

the Bidding Process.

3.2 Without prejudice to the rights of the Corporation under Clause 3.1

hereinabove, if an Bidder is found by the Corporation to have directly or

indirectly or through an agent, engaged or indulged in any corrupt

practice, fraudulent practice, coercive practice, undesirable practice or

restrictive practice during the Bidding Process, such Bidder shall not be

eligible to participate in any tender or RFP issued by the Corporation

during a period of 2 (two) years from the date such Bidder is found by

the Corporation to have directly or indirectly or through an agent,

engaged or indulged in any corrupt practice, fraudulent practice,

coercive practice, undesirable practice or restrictive practice, as the case

may be.

3.3 For the purposes of this Clause 3, the following terms shall have the

meaning hereinafter respectively assigned to them:

(a) “corrupt practice” means (i) the offering, giving, receiving, or

soliciting, directly or indirectly, of anything of value to

influence the actions of any person connected with the Bidding

Process (for avoidance of doubt, offering of employment to, or

employing, or engaging in any manner whatsoever, directly or

indirectly, any official of the Corporation who is or has been

associated in any manner, directly or indirectly, with the

Bidding Process or the LOA or has dealt with matters

concerning the Development Agreement or arising there from,

before or after the execution thereof, at any time prior to the

expiry of one year from the date such official resigns or retires

from or otherwise ceases to be in the service of the

Corporation, shall be deemed to constitute influencing the

actions of a person connected with the Bidding Process); or (ii)

save and except as permitted under sub clause (d) of Clause

2.2.1, engaging in any manner whatsoever, whether during the

Bidding Process or after the issue of the LOA or after the

execution of the Development Agreement, as the case may be,

any person in respect of any matter relating to the Project or

the LOA or the Development Agreement, who at any time has


26

been or is a legal, financial or technical adviser of the

Corporation in relation to any matter concerning the Project;

(b) “fraudulent practice” means a misrepresentation or omission

of facts or suppression of facts or disclosure of incomplete

facts, in order to influence the Bidding Process;

(c) “coercive practice” means impairing or harming or

threatening to impair or harm, directly or indirectly, any person

or property to influence any person’s participation or action in

the Bidding Process;

(d) “undesirable practice” means (i) establishing contact with any

person connected with or employed or engaged by the

Corporation with the objective of canvassing, lobbying or in

any manner influencing or attempting to influence the Bidding

Process; or (ii) having a Conflict of Interest; and

(e) “restrictive practice” means forming a cartel or arriving at

any understanding or arrangement among Bidder with the

objective of restricting or manipulating a full and fair

competition in the Bidding Process.


27

SECTION - 4

PRE-BID CONFERENCE

4.1 A Pre-Bid conference of the interested parties shall be convened at the

designated date, time and place.

4.2 During the course of Pre-Bid conference, the parties who choose to

attend will be free to seek clarifications and make suggestions for

consideration of the Corporation. The Corporation shall endeavor to

provide clarifications and such further information as it may, in its sole

discretion, consider appropriate for facilitating a fair, transparent and

competitive Bidding Process.


28

SECTION - 5

MISCELLANEOUS

5.1 The Bidding Process shall be governed by, and construed in

accordance with, the laws of India and the Courts at Madhya Pradesh

shall have exclusive jurisdiction over all disputes arising under,

pursuant to and/ or in connection with the Bidding Process.

5.2 The Corporation, in its sole discretion and without incurring any

obligation or liability, reserves the right, at any time, to;

(a) suspend and/or cancel the Bidding Process and/or amend and/ or

supplement the Bidding Process or modify the dates or other

terms and conditions relating thereto;

(b) consult with any Bidder in order to receive clarification or further

information;

(c) pre-qualify or not to pre-qualify any Bidder and/ or to consult

with any Bidder in order to receive clarification or further

information;

(d) award/or not award the project to the project to the Bidder who is

the Highest Bidder;

(e) retain any information and/ or evidence submitted to the

Corporation by, on behalf of, and/ or in relation to any Bidder;

and/ or

(f) Independently verify, disqualify, reject and/ or accept any and all

submissions or other information and/ or evidence submitted by

or on behalf of any Bidder.

5.3 It shall be deemed that by submitting the Bid, the Bidder agrees and

releases the Corporation, its employees, agents and advisers,

irrevocably, unconditionally, fully and finally from any and all liability

for claims, losses, damages, costs, expenses or liabilities in any way

related to or arising from the exercise of any rights and/ or

performance of any obligations hereunder and the Bidding Documents,

pursuant hereto, and/ or in connection with the Bidding Process, to the

fullest extent permitted by applicable law, and waives any and all

rights and/ or claims it may have in this respect, whether actual or

contingent, whether present or in future.


29

APPENDIX - I

Letter Comprising the Bid

Dated:

To,

The Managing Director,

MP State Tourism Development Corporation Ltd.


Bhopal 462 003

Sub: Development of Tourism and related facilities at Indira Sagar on

DBFOT Basis.

Dear Sir,

With reference to your RFP document No. 1 dated 7.05.2012 $, I/we,

having examined the RFP document and understood its contents, hereby

submit my/our Bid for the aforesaid project. The Bid is unconditional and

unqualified.

2. I/ We acknowledge that the Corporation will be relying on the

information provided in the Bid and the documents accompanying such Bid

for qualification of the Bidder and award of the aforesaid project, and we

certify that all information provided in the Bid and in Annexes I to IV is true

and correct; nothing has been omitted which renders such information

misleading; and all documents accompanying such Bid are true copies of their

respective originals.

3. This statement is made for the express purpose of qualifying and award

as a Bidder for the development, construction, operation and maintenance of

the aforesaid Project.

4. I/ We shall make available to the Corporation any additional

information it may find necessary or require to supplement or authenticate the

Qualification statement.

5. I/ We acknowledge the right of the Corporation to reject our Bid

without assigning any reason or otherwise and hereby waive, to the fullest

extent permitted by applicable law, our right to challenge the same on any

account whatsoever.

6. I/ We certify that in the last three years, we/ any of the Consortium

Members or our/ their Associates have neither failed to perform on any

contract, as evidenced by imposition of a penalty by an arbitral or judicial

Corporation or a judicial pronouncement or arbitration award, nor been

$ All blank spaces shall be suitably filled up by the Bidder to reflect the particulars relating to

such Bidder.


30

expelled from any project or contract nor have had any contract terminated for

breach on our part as provided in clause 2.2.6 & 2.2.7

7. I/ We declare that:

(a) I/ We have examined and have no reservations to the RFP

document, including any Addendum issued by the Corporation.

(b) I/ We do not have any conflict of interest in accordance with

the RFP document; and

(c) I/We have not directly or indirectly or through an agent

engaged or indulged in any corrupt practice, fraudulent

practice, coercive practice, undesirable practice or restrictive

practice, as defined in the RFP document, in respect of any

tender or request for proposal issued by or any agreement

entered into with the Corporation or any other public sector

enterprise or any government, Central or State; and

(d) I/ We hereby certify that we have taken steps to ensure that in

conformity with the provisions of Section 3 of the RFP

document, no person acting for us or on our behalf has engaged

or will engage in any corrupt practice, fraudulent practice,

coercive practice, undesirable practice or restrictive practice.

8. I/ We understand that you may cancel the Bidding Process at any time

and that you are neither bound to accept any Bid that you may receive nor to

invite the Bidder to Bid for the Project, without incurring any liability to the

Bidder.

9. I/ We believe that we/ our Consortium/ proposed Consortium

satisfy(ies) the Net Worth criteria and meet(s) all the requirements as specified

in the RFP document and are/ is qualified to submit the Bid and for award of

Project.

10. I/ We declare that we/ any Member of the Consortium, or our/ its

Associates are not a Member of a/ any other Consortium applying for pre-

qualification.

11. I/ We certify that in regard to matters other than security and integrity

of the country, we/ any Member of the Consortium or any of our/ their

Associates have not been convicted by a Court of Law or indicted or adverse

orders passed by a regulatory Corporation which could cast a doubt on our

ability to undertake the Project or which relates to a grave offence that

outrages the moral sense of the community.

12. I/ We further certify that in regard to matters relating to security and

integrity of the country, we/ any Member of the Consortium or any of our/

their Associates have not been charge-sheeted by any agency of the

Government or convicted by a Court of Law.


31

13. I/ We further certify that no investigation by a regulatory body is

pending either against us/ any Member of the Consortium or against our/ their

Associates or against our CEO or any of our directors/ managers/ employees.

14. I/ We further certify that we are qualified to submit a Bid in

accordance with the guidelines for qualification of bidders seeking to acquire

stakes in Public Sector Enterprises through the process of disinvestment issued

by the GOI vide Department of Disinvestment OM No. 6/4/2001-DD-II dated

13th July, 2001 which guidelines apply mutatis mutandis to the Bidding

Process. A copy of the aforesaid guidelines form part of the RFP at Appendix-

V thereof.

15. I/ We undertake that in case due to any change in facts or

circumstances during the Bidding Process, we are attracted by the provisions

of disqualification in terms of the guidelines referred to above, we shall

intimate Corporation of the same immediately.

16. The Statement of Legal Capacity as per format provided at Annex-V in

Appendix-I of the RFP document, and duly signed, is enclosed. The power of

attorney for signing of Bid and the power of attorney for Lead Member of

consortium, as per format provided at Appendix II and III respectively of the

RFP, are also enclosed.

17. In the event of my/ our being declared as the Selected Bidder, I/We

agree to enter into a Development Agreement in accordance with the draft that

has been provided to me/us prior to the Bid Due Date. We agree not to seek

any changes in the aforesaid draft and agree to abide by the same.

18. I/We have studied all the Bidding Documents carefully and also

surveyed the site. We understand that except to the extent as expressly set

forth in the Development Agreement, we shall have no claim, right or title

arising out of any documents or information provided to us by Corporation or

in respect of any matter arising out of or concerning or relating to the Bidding

Process including the award of Development Right.

19. The [Premium] has been quoted by me/us after taking into

consideration all the terms and conditions stated in the RFP, draft

Development Agreement, our own estimates of costs and after a careful

assessment of the site and all the conditions that may affect the Bid.

20. I/We offer a Bid Security of ` 20.00 lakh (` Twenty lakh only) to

Corporation in accordance with the RFP Document.

21. The Bid Security in the form of a Bank Draft/Bank Guarantee is

attached.


32

22. I/We agree and understand that the Bid is subject to the provisions of

the Bidding Documents. In no case, I/We shall have any claim or right of

whatsoever nature if the Project / Development Right is not awarded to me/us

or our Bid is not opened.

23. I/ We understand that the selected Bidder shall either be an existing

Company incorporated under the Indian Companies Act, 1956, or shall

incorporate itself as such prior to execution of the Development Agreement.

24. We agree and undertake to be jointly and severally liable for all the

obligations of the Developer under the Development Agreement in

accordance with the Development Agreement.}$

25. I/We hereby irrevocably waive any right which we may have at any

stage at law or howsoever otherwise arising to challenge or question any

decision taken by Corporation in connection with the selection of the Bidder,

or in connection with the Bidding Process itself, in respect of the above

mentioned Project and the terms and implementation thereof.

26. I/We agree to keep this offer valid for 120 (one hundred and twenty)

days from the Bid Due Date specified in the RFP.

27. I/We agree and undertake to abide by all the terms and conditions of

the RFP document.

In witness thereof, I/ we submit this Bid under and in accordance with the

terms of the RFP document.

Yours faithfully,

Date: (Signature, name and designation of the Authorized Signatory)

Place: Name and seal of the Bidder/ Lead Member

$ Omit if the Bidder is not a Consortium.


33

Appendix I

Annex-I

ANNEX-I

Details of Bidder

1. (a) Name:

(b) Address of the corporate headquarters and its branch office(s)

(c) Date of incorporation and/ or commencement of business:

2. Brief description of the Company including details of its main lines of

business and proposed role and responsibilities in this Project:

3. Details of individual(s) who will serve as the point of contact/ communication

for the Corporation:

(a) Name:

(b) Designation:

(c) Company:

(d) Address:

(e) Telephone Number:

(f) E-Mail Address:

(g) Fax Number:

4. Particulars of the Authorised Signatory of the Bidder:

(a) Name:

(b) Designation:

(c) Address:

(d) Phone Number:

(e) Fax Number:

5. In case of a Consortium:

(a) The information above (1-4) should be provided for all the Members of

the Consortium.

(b) A copy of the Jt. Bidding Agreement, as envisaged in Clause 2.2.5(g)

should be attached to the Bid.


34

(c) Information regarding the role of each Member should be provided as

per table below:

Sl.

No.

Name of Member Role*

{Refer Clause

2.2.5(d)}$

Percentage of equity in the

Consortium{Refer Clauses

2.2.5(a), (b), (c) & (g)}

1.

2.

3.

4.

* The role of each Member, as may be determined by the Bidder, should

be indicated in accordance with instruction 4 at Annex-IV.

(d) The following information shall also be provided for each Member of

the Consortium:

Name of Bidder/ member of Consortium:

No. Criteria Yes No

1. Has the Bidder/ constituent of the Consortium been

barred by the Central/ State Government, or any

entity created or controlled by it, from participating

in any project.

2. If the answer to 1 is yes, does the bar subsist as on

the date of Bid?

6. A statement by the Bidder and each of the Members of its Consortium

(where applicable) or any of their Associates disclosing material non-

performance or contractual non-compliance in past projects,

contractual disputes and litigation/ arbitration in the recent past is

given below (Attach extra sheets, if necessary): in terms of clause 2.2.6

& 2.2.7.

$ All provisions contained in curly parenthesis shall be suitably modified by the Bidder to reflect the

particulars relating to such Bidder.


35

Appendix I

Annex-II

ANNEX-II

Technical Capacity of the Bidder @

Bidder

type #

(1)

Member

Code*

(2)

Project

(3)

` in crores$$

Payments made/

received for

construction of

Eligible Projects (4)

Payments made for

development of

Eligible Projects

(5)

Single

entity

Bidder

Consortium

Member 1

Consortium

Member 2

Consortium

Member 3

Aggregate Experience

@ Provide details of only those projects that have been undertaken by the Bidder under its own name

and/ or by an Associate specified in Clause 2.2.8 and/ or by a project company.

# An Bidder consisting of a single entity should fill in details as per the row titled Single entity Bidder

and ignore the rows titled Consortium Member. In case of a Consortium, the row titled Single entity

Bidder may be ignored. In case credit is claimed for an Associate, necessary evidence to establish the

relationship of the Bidder with such Associate, in terms of Clause 2.2.8, shall be provided.

* Member Code shall indicate NA for Not Applicable in case of a single entity Bidder. For other

Members, the following abbreviations are suggested viz. LM means Lead Member, TM means

Technical Member, FM means Financial Member, OMM means Operation & Maintenance Member,

OM means Other Member. $$

For conversion of US Dollars to Rupees, the rate of conversion shall be Rupees 50(fifty) to a US

Dollar. In case of any other currency, the same shall first be converted to US Dollars as on the date 60

(Sixty) days prior to the Bid Due Date, and the amount so derived in US Dollars shall be converted into

Rupees at the aforesaid rate. The conversion rate of such currencies shall be the daily representative

exchange rates published by the International Monetary Fund for the relevant date.


36

Appendix I

Annex-III

ANNEX-III

Financial Capacity of the Bidder

(In ` crore$$

)

Bidder type $ Member Code

£ Net Worth

€

(1)

(2)

Year

1

(3)

Single entity Bidder

Consortium Member 1

Consortium Member 2

Consortium Member 3

TOTAL

Name & address of Bidder’s Bankers:

$ An Bidder consisting of a single entity should fill in details as per the row titled Single entity

Bidder and ignore the rows titled Consortium Members. In case of a Consortium, row titled

Single entity Bidder may be ignored.

£For Member Code, see instruction 4 at Annex-IV of this Appendix-I.

€The Bidder should provide details of its own Financial Capability or of an Associate

specified in Clause 2.2.8.

$$ For conversion of US Dollars to Rupees, the rate of conversion shall be Rupees 50(fifty) to

a US Dollar. In case of any other currency, the same shall first be converted to US Dollars as

on the date 60 (Sixty) days prior to the Bid Due Date, and the amount so derived in US

Dollars shall be converted into Rupees at the aforesaid rate. The conversion rate of such

currencies shall be the daily representative exchange rates published by the International

Monetary Fund for the relevant date.


37

Instructions:

1. The Bidder/ its constituent Consortium Members shall attach copies of the

balance sheets, financial statements and Annual Reports for 5 (five) years

preceding the Bid Due Date. The financial statements shall:

(a) reflect the financial situation of the Bidder or Consortium Members

and its/ their Associates where the Bidder is relying on its Associate’s

financials;

(b) be audited by a statutory auditor;

(c) be complete, including all notes to the financial statements; and

(d) correspond to accounting periods already completed and audited (no

statements for partial periods shall be requested or accepted).

2. Net Worth shall mean (Subscribed and Paid-up Equity + Reserves) less

(Revaluation reserves + miscellaneous expenditure not written off + reserves

not available for distribution to equity shareholders).

3. Year 1 will be the latest completed financial year, preceding the bidding.

4. In the case of a Consortium, a copy of the Jt. Bidding Agreement shall be

submitted in accordance with Clause 2.2.5 (g) of the RFP document.

5. The Bidder shall also provide the name and address of the Bankers to the

Bidder.

6. The Bidder shall provide an Auditor’s Certificate specifying the net worth of

the Bidder and also specifying the methodology adopted for calculating such

net worth in accordance with Clause 2.2.3 (ii) of the RFP document.


38

Appendix I

Annex-IV

ANNEX-IV

Details of Eligible Projects

Project Code: Member Code:

Item

(1)

Particulars of the Project

(3)

Title & nature of the project

Category

Year-wise (a) payments received/

made for construction, (b)

payments made for development of

PPP projects and/ or (c) revenues

appropriated

Entity for which the project was

constructed/ developed

Location

Project cost

Date of commencement of project/

contract

Date of completion/

commissioning

Equity shareholding

(with period during which equity

was held)

Whether credit is being taken for

the Eligible Experience of an

Associate (Yes/ No)

Instructions:

1. Bidders are expected to provide information in respect of each Eligible

Projects in this Annex. The projects cited must comply with the eligibility

criteria specified in Clause 2.2.2 (A) of the RFP, as the case may be.

Information provided in this section is intended to serve as a back up for

information provided in the Bid. Bidder should also refer to the Instructions

below.


39

2. For a single entity Bidder, the Project Codes would be a, b, c, d etc. In case the

Bidder is a Consortium then for Member 1, the Project Codes would be 1a, 1b,

1c, 1d etc., for Member 2 the Project Codes shall be 2a, 2b, 2c, 2d etc., and so

on.

3. A separate sheet should be filled for each Eligible Project.

4. Member Code shall indicate NA for Not Applicable in case of a single entity

Bidder. For other Members, the following abbreviations are suggested viz. LM

means Lead Member, TM means Technical Member, FM means Financial

Member, OMM means Operation & Maintenance Member; and OM means

Other Member. In case the Eligible Project relates to an Associate of the

Bidder or its Member, write “Associate” along with Member Code.

5. The total payments received/ made and/or revenues appropriated for each

Eligible Project are to be stated in Annex-II of this Appendix-I. The figures to

be provided here should indicate the break-up for the past 5 (five) financial

years. Year 1 refers to the financial year immediately preceding the Bid Due

Date; Year 2 refers to the year before Year 1, Year 3 refers to the year before

Year 2, and so on (Refer Clause 2.2.12). Payment for construction works

should only include capital expenditure, and should not include expenditure on

repairs and maintenance.

6. In case of development project, particulars such as name, address and contact

details of owner/ Corporation / Agency (i.e. Development Right grantor,

counter party to PPA, etc.) may be provided. In case of EPC projects, similar

particulars of the client need to be provided.

7. Provide the estimated capital cost of Eligible Project.

8. For development project, the date of commissioning of the project, upon

completion, should be indicated. In case of EPC project, date of completion of

construction should be indicated. In the case of projects under construction,

the likely date of completion or commissioning, as the case may be, shall be

indicated.

9. For development project, the equity shareholding of the Bidder, in the

company owning the Eligible Project, held continuously during the period for

which Eligible Experience is claimed, needs to be given {Refer Clause

2.2.2(A)}.

10. Experience for any activity relating to an Eligible Project shall not be claimed

by two or more Members of the Consortium. In other words, no double

counting by a consortium in respect of the same experience shall be permitted

in any manner whatsoever.

11. Certificate from the Bidder’s statutory auditor$ or its respective clients must be

furnished as per formats below for each Eligible Project. In jurisdictions that

do not have statutory auditors, the auditors who audit the annual accounts of

the Bidder/ Member/Associate may provide the requisite certification.

13. If the Bidder is claiming experience for development project, it should provide

a certificate from its statutory auditor in the format below:

$ In case duly certified audited annual financial statements containing the requisite details are provided,

a separate certification by statutory auditors would not be necessary.


40

Certificate from the Statutory Auditor regarding PPP projects

Based on its books of accounts and other published information authenticated by it,

this is to certify that …………………….. (name of the Bidder/Member/Associate) is/

was an equity shareholder in ……………….. (title of the project company) and holds/

held ` ……… cr. (` ………………………….. crore) of equity (which constitutes

……..%€ of the total paid up and subscribed equity capital) of the project company

from …………... (date) to …………….. (date)¥. The project was/is likely to be

commissioned on ……………. (date of commissioning of the project).

We further certify that the total estimated capital cost of the project is ` ……… cr.

(` …………………crore), of which ` ……… cr. (` …………… crore) of capital

expenditure was incurred during the past five financial years as per year-wise details

noted below:

………………………

………………………

Name of the audit firm:

Seal of the audit firm: (Signature, name and designation of the authorised signatory)

Date:

Provide Certificate as per this format only. Attach Explanatory Notes to the Certificate, if necessary.

Statutory auditor means the entity that audits and certifies the annual accounts of the company. € Refer instruction no. 10 in this Annex-IV.

¥ In case the project is owned by the Bidder company, this language may be suitably modified to read:

“It is certified that …………….. (name of Bidder) constructed and/ or owned the ………….. (name of

project) from ……………….. (date) to ………………… (date).”


41

Appendix I

Annex-IV

14. If the Bidder is claiming experience for EPC project, it should provide a

certificate from its statutory auditors or the client in the format below:

Certificate from the Statutory Auditor/ Client regarding construction works

Based on its books of accounts and other published information authenticated by it,

{this is to certify that …………………….. (name of the Bidder/Member/Associate)

was engaged by ……………….. (title of the project company) to execute

……………… (name of project) for …………………. (nature of project)}. The

construction of the project commenced on ………….. (date) and the project was/ is

likely to be commissioned on …………… (date, if any). It is certified that

……………. (name of the Bidder/ Member/ Associate) received/paid ` ……….. cr.

(` …………………………… crore) by way of payment for the aforesaid

construction works.

We further certify that the total estimated capital cost of the project is ` …… cr.

(` …………………crore), of which the Bidder/Member/Associate received/paid ` ……… cr. (` ……………………… crore), in terms of the RFP, during the past five

financial years as per year-wise details noted below:

………………………

………………………

{It is further certified that the payments/ receipts indicated above are restricted to the

share of the Bidder who undertook these works as a partner or a member of joint

venture/ consortium.}


Seal of the audit firm: (Signature, name and designation of the authorised signatory).

Date:

Provide Certificate as per this format only. Attach Explanatory Notes to the Certificate, if necessary.

Statutory auditor means the entity that audits and certifies the annual accounts of the company.

In case the Bidder owned the Eligible Project and engaged a contractor for undertaking the

construction works, this language may be modified to read: “ this is to certify that …………… (name

of Bidder/ Member/ Associate) held 26% or more of the paid up and subscribed share capital in

the……………. (name of Project company) when it undertook construction of the ……………….

(name of Project) through ………………… (name of the contractor).

This certification should only be provided in case of jobs/ contracts, which are executed as part of a

partnership/ joint venture/ consortium. The payments indicated in the certificate should be restricted to

the share of Bidder in such partnership/ joint venture/ consortium. This portion may be omitted if the

contract did not involve a partnership/ joint venture/ consortium. In case where work is not executed by

partnership/ joint venture/ consortium, this paragraph may be deleted.


42

Appendix I

Annex-IV

15. In the event that credit is being taken for the Eligible Experience of an

Associate, the Bidder should also provide a certificate in the format below:

$ In the event that the Bidder/ Consortium Member exercises control oven an Associate by operation of

law, this certificate may be suitably modified and copies of the relevant law may be enclosed and

referred to.

£ In the case of indirect share-holding, the intervening companies in the chain of ownership should also

be Associates i.e., the share-holding in each such company should be more than 50% in order to

establish that the chain of “control” is not broken.

16. It may be noted that in the absence of any detail in the above certificates, the

information would be considered inadequate and could lead to exclusion of the

relevant project in computation of Experience.

Certificate from Statutory Auditor/ Company Secretary regarding Associate$

Based on the authenticated record of the Company, this is to certify that more than

50% (fifty per cent) of the subscribed and paid up voting equity of ………………

(name of the Associate) is held, directly or indirectly£, by ……………….. (name

of Bidder/ Consortium Member). By virtue of the aforesaid share-holding, the

latter exercises control over the former, who is an Associate in terms of Clause

2.2.8 of the RFP.

A brief description of the said equity held, directly or indirectly, is given below:

{Describe the share-holding of the Bidder/ Consortium Member in the Associate}


Seal of the audit firm: (Signature, name and designation of Date: the authorised

signatory).


43

APPENDIX- I

ANNEX-V

Statement of Legal Capacity

(To be forwarded on the letterhead of the Bidder/ Lead Member of Consortium)

Ref. Date:

To,

The Managing Director

MP State Tourism Development Corporation Ltd.


Bhopal 462 003

Dear Sir,

We hereby confirm that we/ our members in the Consortium (constitution of which

has been described in the Bid) satisfy the terms and conditions laid out in the RFP

document.

We have agreed that …………………… (insert member’s name) will act as the Lead

Member of our consortium.*

We have agreed that ………………….. (insert individual’s name) will act as our

representative/ will act as the representative of the consortium on its behalf* and has

been duly authorized to submit the RFP. Further, the authorised signatory is vested

with requisite powers to furnish such letter and authenticate the same.

Thanking you,

Yours faithfully,

(Signature, name and designation of the authorised signatory)

For and on behalf of……………………………..

*Please strike out whichever is not applicable.


44

APPENDIX II

Power of Attorney for signing of Bid

Know all men by these presents, We……………………………………………..

(name of the firm and address of the registered office) do hereby irrevocably

constitute, nominate, appoint and authorise Mr/ Ms (name), ……………………

son/daughter/wife of ……………………………… and presently residing at

…………………., who is presently employed with us/ the Lead Member of our

Consortium and holding the position of ……………………………. , as our true and

lawful attorney (hereinafter referred to as the “Attorney”) to do in our name and on

our behalf, all such acts, deeds and things as are necessary or required in connection

with or incidental to submission of our Bid for qualification and submission of our bid

for the Development of Tourism and related facilities at Indira Sagar proposed or

being developed by MP State Tourism Development Corporation Ltd., (the

“Corporation”) including but not limited to signing and submission of all Bids, bids

and other documents and writings, participate in Pre-Bids and other conferences and

providing information/ responses to the Corporation, representing us in all matters

before the Corporation, signing and execution of all contracts including the

Development Agreement and undertakings consequent to acceptance of our bid, and

generally dealing with the Corporation in all matters in connection with or relating to

or arising out of our bid for the said Project and/ or upon award thereof to us and/or

till the entering into of the Development Agreement with the Corporation.

AND we hereby agree to ratify and confirm and do hereby ratify and confirm all acts,

deeds and things done or caused to be done by our said Attorney pursuant to and in

exercise of the powers conferred by this Power of Attorney and that all acts, deeds

and things done by our said Attorney in exercise of the powers hereby conferred shall

and shall always be deemed to have been done by us.

IN WITNESS WHEREOF WE, …………………………., THE ABOVE NAMED

PRINCIPAL HAVE EXECUTED THIS POWER OF ATTORNEY ON THIS ………

DAY OF …………. 2…..

For

…………………………..

(Signature, name, designation and address)

Witnesses:

1.

(Notarised)

2.


45

Appendix II

Page 2

Accepted

……………………………

(Signature)

(Name, Title and Address of the Attorney)

Notes:

The mode of execution of the Power of Attorney should be in accordance with the

procedure, if any, laid down by the applicable law and the charter documents of

the executant(s) and when it is so required, the same should be under common

seal affixed in accordance with the required procedure.

Wherever required, the Bidder should submit for verification the extract of the

charter documents and documents such as a board or shareholders’ 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.


46

APPENDIX III

Power of Attorney for Lead Member of Consortium

Whereas the MP State Tourism Development Corporation (“the Corporation”) has

invited Bids from interested parties for Development of Tourism and related facilities

at Indira Sagar (the “Project”).

Whereas, …………………….., …………………….., …………………….. and

…………………….. (collectively the “Consortium”) being Members of the

Consortium are interested in bidding for the Project in accordance with the terms and

conditions of the Request for Proposal (RFP) and other connected documents in

respect of the Project, and

Whereas, it is necessary for the Members of the Consortium to designate one of them

as the Lead Member with all necessary power and Corporation to do for and on

behalf of the Consortium, all acts, deeds and things as may be necessary in

connection with the Consortium’s bid for the Project and its execution.

NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS

We, …………………….. having our registered office at …………………….., and

M/s. .…………………….. having our registered office at ……………………..,

(hereinafter collectively referred to as the “Principals”) do hereby irrevocably

designate, nominate, constitute, appoint and authorise M/s ……………………..

having its registered office at …………………….., being one of the Members of the

Consortium, as the Lead Member and true and lawful attorney of the Consortium

(hereinafter referred to as the “Attorney”). We hereby irrevocably authorise the

Attorney (with power to sub-delegate) to conduct all business for and on behalf of the

Consortium and any one of us during the bidding process and, in the event the

Consortium is awarded the Development Right/contract, during the execution of the

Project and in this regard, to do on our behalf and on behalf of the Consortium, all or

any of such acts, deeds or things as are necessary or required or incidental to the pre-

qualification of the Consortium and submission of its bid for the Project, including but

not limited to signing and submission of all Bids, bids and other documents and

writings, participate in bidders and other conferences, respond to queries, submit

information/ documents, sign and execute contracts and undertakings consequent to

acceptance of the bid of the Consortium and generally to represent the Consortium in

all its dealings with the CORPORATION, and/ or any other Government Agency or

any person, in all matters in connection with or relating to or arising out of the

Consortium’s bid for the Project and/ or upon award thereof till the Development

Agreement is entered into with the Corporation.

AND hereby agree to ratify and confirm and do hereby ratify and confirm all acts,

deeds and things done or caused to be done by our said Attorney pursuant to and in

exercise of the powers conferred by this Power of Attorney and that all acts, deeds

and things done by our said Attorney in exercise of the powers hereby conferred shall

and shall always be deemed to have been done by us/ Consortium.


47

IN WITNESS WHEREOF WE THE PRINCIPALS ABOVE NAMED HAVE

EXECUTED THIS POWER OF ATTORNEY ON THIS …………………. DAY OF

………. 2..…

For ……………………..

(Signature)

……………………..

(Name & Title)

For ……………………..

(Signature)

……………………..

(Name & Title)

Witnesses:

1.

2.

………………………………………

(Executants)

(To be executed by all the Members of the Consortium)

Notes:

The mode of execution of the Power of Attorney should be in accordance with the

procedure, if any, laid down by the applicable law and the charter documents of

the executant(s) and when it is so required, the same should be under common

seal affixed in accordance with the required procedure.

Also, wherever required, the Bidder should submit for verification the extract of

the charter documents and documents such as a board or shareholders’

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.


48

APPENDIX IV

Joint Bidding Agreement

(To be executed o n Stamp paper of appropriate value)

THIS JOINT BIDDING AGREEMENT is entered into on this the ………… day of

………… 20…

AMONGST

1. {………… Limited, a company incorporated under the Companies Act, 1956}

and having its registered office at ………… (hereinafter referred to as the

“First Part” which expression shall, unless repugnant to the context include

its successors and permitted assigns)

AND

2. {………… Limited, a company incorporated under the Companies Act, 1956}


“Second Part” which expression shall, unless repugnant to the context include

its successors and permitted assigns)

AND

3. {………… Limited, a company incorporated under the Companies Act, 1956


“Third Part” which expression shall, unless repugnant to the context include

its successors and permitted assigns)}

The above mentioned parties of the FIRST, SECOND and THIRD PART are

collectively referred to as the “Parties” and each is individually referred to as

a “Party”

WHEREAS,

(A) MP State Tourism Development Corporation Ltd., established under the

companies Act, 1956 and having its registered offices at MP State Tourism

Development Corporation Ltd. Paryatan Bhawan, Bhadbhada Road, Bhopal,

hereinafter referred to as the “Corporation” which expression shall, unless

repugnant to the context or meaning thereof, include its administrators,

successors and assigns) has invited Bids (the Bids”) by its NIT No.

…………….. dated ……… (the “RFP”) for pre-qualification and short-

listing of bidders for development and operation/ maintenance of Tourism

related facilities at Indira Sagar (the “Project”) through public private

partnership.


49

(B) The Parties are interested in jointly bidding for the Project as members of a

Consortium and in accordance with the terms and conditions of the RFP

document and other bid documents in respect of the Project, and

(C) It is a necessary condition under the RFP document that the members of the

Consortium shall enter into a Joint Bidding Agreement and furnish a copy

thereof with the Bid.

NOW IT IS HEREBY AGREED as follows:

1. Definitions and Interpretations

In this Agreement, the capitalized terms shall, unless the context otherwise

requires, have the meaning ascribed thereto under the RFP.

2. Consortium

2.1 The Parties do hereby irrevocably constitute a consortium (the “Consortium”)

for the purposes of jointly participating in the Bidding Process for the Project.

2.2 The Parties hereby undertake to participate in the Bidding Process only

through this Consortium and not individually and/ or through any other

consortium constituted for this Project, either directly or indirectly or through

any of their Associates.

3. Covenants

The Parties hereby undertake that in the event the Consortium is declared the

selected Bidder and awarded the Project, it shall incorporate a special purpose

vehicle (the “SPV”) under the Indian Companies Act 1956 for entering into a

Development Agreement with the Corporation and for performing all its

obligations as the Developer in terms of the Development Agreement for the

Project.

4. Role of the Parties

The Parties hereby undertake to perform the roles and responsibilities as

described below:

(a) Party of the First Part shall be the Lead member of the Consortium and

shall have the power of attorney from all Parties for conducting all

business for and on behalf of the Consortium during the Bidding

Process and until the Commencement Date under the Development

Agreement when all the obligations of the SPV shall become effective;

(b) Party of the Second Part shall be {the Technical Member of the

Consortium;}

{(c) Party of the Third Part shall be the other Member of the Consortium}


50

5. Joint and Several Liability

The Parties do hereby undertake to be jointly and severally responsible for all

obligations and liabilities relating to the Project and in accordance with the

terms of the RFP and the Development Agreement, till such time as the

Project Completion is achieved under and in accordance with the

Development Agreement.

6. Shareholding in the SPV

6.1 The Parties agree that the proportion of shareholding among the Parties in the

SPV shall be as follows:

First Party:

Second Party:

{Third Party:}

6.2 The Parties undertake that a minimum of 26% (twenty six per cent) of the

subscribed and paid up equity share capital of the SPV shall, at all times till

the fifth anniversary of the Project Commencement Date, be held by the

Parties for the Project in terms of the RFP.

6.3 The Parties undertake that they shall comply with all equity lock-in

requirements set forth in the Development Agreement.

7. Representation of the Parties

Each Party represents to the other Parties as of the date of this Agreement that:

(a) Such Party is duly organized, validly existing and in good standing

under the laws of its incorporation and has all requisite power and

Corporation to enter into this Agreement;

(b) The execution, delivery and performance by such Party of this

Agreement has been authorized by all necessary and appropriate

corporate or governmental action and a copy of the extract of the

charter documents and board resolution/ power of attorney in favour of

the person executing this Agreement for the delegation of power and

Corporation to execute this Agreement on behalf of the Consortium

Member is annexed to this Agreement, and will not, to the best of its

knowledge:

(i) require any consent or approval not already obtained;

(ii) violate any Applicable Law presently in effect and having

applicability to it;

(iii) violate the memorandum and articles of association, by-laws or

other applicable organizational documents thereof;


51

(iv) violate any clearance, permit, Development Right, grant,

license or other governmental authorization, approval,

judgment, order or decree or any mortgage agreement,

indenture or any other instrument to which such Party is a party

or by which such Party or any of its properties or assets are

bound or that is otherwise applicable to such Party; or

(v) create or impose any liens, mortgages, pledges, claims, security

interests, charges or Encumbrances or obligations to create a

lien, charge, pledge, security interest, encumbrances or

mortgage in or on the property of such Party, except for

encumbrances that would not, individually or in the aggregate,

have a material adverse effect on the financial condition or

prospects or business of such Party so as to prevent such Party

from fulfilling its obligations under this Agreement;

(c) this Agreement is the legal and binding obligation of such Party,

enforceable in accordance with its terms against it; and

(d) there is no litigation pending or, to the best of such Party's knowledge,

threatened to which it or any of its Affiliates is a party that presently

affects or which would have a material adverse effect on the financial

condition or prospects or business of such Party in the fulfillment of its

obligations under this Agreement.

8. Termination

This Agreement shall be effective from the date hereof and shall continue in

full force and effect until the Completion of the Project is achieved under and

in accordance with the Development Agreement, in case the Project is

awarded to the Consortium. However, in case the Consortium is either not pre-

qualified for the Project or does not get selected for award of the Project, the

Agreement will stand terminated in case the Bidder is not pre-qualified or

upon return of the Bid Security by the Corporation to the Bidder, as the case

may be.

9. Miscellaneous

9.1 This Joint Bidding Agreement shall be governed by laws of India.

9.2 The Parties acknowledge and accept that this Agreement shall not be amended

by the Parties without the prior written consent of the Corporation.


52

IN WITNESS WHEREOF THE PARTIES ABOVE NAMED HAVE EXECUTED

AND DELIVERED THIS AGREEMENT AS OF THE DATE FIRST ABOVE

WRITTEN.

SIGNED, SEALED AND DELIVERED SIGNED, SEALED AND DELIVERED

For and on behalf of

LEAD MEMBER by: SECOND PART

(Signature) (Signature)

(Name) (Name)

(Designation) (Designation)

(Address) (Address)

SIGNED, SEALED AND DELIVERED


THIRD PART

(Signature)

(Name)

(Designation)

(Address)

1. 2.

Notes:

1. The mode of the execution of the Joint Bidding Agreement should be in

accordance with the procedure, if any, laid down by the Applicable Law

and the charter documents of the executant(s) and when it is so required,

the same should be under common seal affixed in accordance with the

required procedure.

2. Each Joint Bidding Agreement should attach a copy of the extract of the

charter documents and documents such as resolution / power of attorney

in favour of the person executing this Agreement for the delegation of

power and Corporation to execute this Agreement on behalf of the

Consortium Member.


53

APPENDIX V1

Guidelines of the Department of Disinvestment

No. 6/4/2001-DD-II

Government of India

Department of Disinvestment

Block 14, CGO Complex

New Delhi.

Dated 13th

July, 2001.

OFFICE MEMORANDUM

Sub: Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector

Enterprises through the process of disinvestment

Government has examined the issue of framing comprehensive and transparent

guidelines defining the criteria for bidders interested in PSE-disinvestment so that the

parties selected through competitive bidding could inspire public confidence. Earlier,

criteria like net worth, experience etc. used to be prescribed. Based on experience and

in consultation with concerned departments, Government has decided to prescribe the

following additional criteria for the qualification/ disqualification of the parties

seeking to acquire stakes in public sector enterprises through disinvestment:

(a) In regard to matters other than the security and integrity of the country,

any conviction by a Court of Law or indictment/ adverse order by a

regulatory Corporation that casts a doubt on the ability of the bidder to

manage the public sector unit when it is disinvested, or which relates to a

grave offence would constitute disqualification. Grave offence is defined

to be of such a nature that it outrages the moral sense of the community.

The decision in regard to the nature of the offence would be taken on case

to case basis after considering the facts of the case and relevant legal

principles, by the Government of India.

(b) In regard to matters relating to the security and integrity of the country,

any charge-sheet by an agency of the Government/ conviction by a Court

of Law for an offence committed by the bidding party or by any sister

concern of the bidding party would result in disqualification. The decision

in regard to the relationship between the sister concerns would be taken,

based on the relevant facts and after examining whether the two concerns

are substantially controlled by the same person/ persons.

(c) In both (a) and (b), disqualification shall continue for a period that

Government deems appropriate.

(d) Any entity, which is disqualified from participating in the disinvestment

process, would not be allowed to remain associated with it or get

associated merely because it has preferred an appeal against the order

1 These guidelines may be modified or substituted by the Government from time to time.


54

based on which it has been disqualified. The mere pendency of appeal will

have no effect on the disqualification.

(e) The disqualification criteria would come into effect immediately and

would apply to all bidders for various disinvestment transactions, which

have not been completed as yet.

(f) Before disqualifying a concern, a Show Cause Notice why it should not be

disqualified would be issued to it and it would be given an opportunity to

explain its position.

(g) Henceforth, these criteria will be prescribed in the advertisements seeking

Expression of Interest (EOI) from the interested parties. The interested

parties would be required to provide the information on the above criteria,

along with their Expressions of Interest (EOI). The bidders shall be

required to provide with their EOI an undertaking to the effect that no

investigation by a regulatory Corporation is pending against them. In case

any investigation is pending against the concern or its sister concern or

against its CEO or any of its Directors/ Managers/ employees, full details

of such investigation including the name of the investigating agency, the

charge/ offence for which the investigation has been launched, name and

designation of persons against whom the investigation has been launched

and other relevant information should be disclosed, to the satisfaction of

the Government. For other criteria also, a similar undertaking shall be

obtained along with EOI.

sd/-

(A.K. Tewari)

Under Secretary to the Government of India


55

APPENDIX VI

FORMAT FOR BANK GUARANTEE

(To be issued by a Scheduled National Bank in India)

B.G. No. __________________________________ dated __________.

This Deed of Guarantee executed at ——————— by ______________

(Name of Bank) having its Head/Registered office at ____________________ (hereinafter referred to as “the Guarantor”) which

expression shall unless it be repugnant to the subject or context thereof

include its, successors and assigns;

In favour of The Madhya Pradesh State Tourism Development Corporation (hereinafter called “MPSTDC”), having its office at Paryatan Bhavan,

Bhadbhada Road, Bhopal, India which expression shall unless it be

repugnant to the subject or context thereof include its, successors and assigns;

WHEREAS

A. M/s. ______________________ Ltd.2, a Company registered under

provisions of the Companies Act, having its registered office at ____________ (hereinafter called “the Bidder”) which expression

shall unless it be repugnant to the subject or context thereof include

its/their executors administrators, successors and assigns, has/have Bid for the development of a Resort at at Indira Sagar District

Khandwa on Development Agreement (hereinafter referred to as

“the Project”).

B. In terms of Clause 1.2.5 of the Bid document dated ................. issued

in respect of the Project (hereinafter referred to as “Bid document”)

the Bidder is required to furnish to MPSTDC an unconditional and

irrevocable Bank Guarantee for an amount of ` 20,00,000/-

(` Twenty lakh only) as Bid Security.

C. The Guarantor has at the request of the Bidder and for valid

consideration agreed to provide such Bank Guarantee being these

presents:

2 In case of consortium, incorporate names and addresses of the consortium members.


56

NOW THEREFORE THIS DEED WITNESSETH AS FOLLOWS:

a) The Guarantor, as primary obligor shall, without demur, pay to MPSTDC an amount not

exceeding ` 20.00 Lakh/- ( ` Twenty lakh only), within 5 days of receipt of a written

demand from MPSTDC calling upon the Guarantor to pay the said amount and stating

that the Bid Security provided by the Bidder has been forfeited.

b) Any such demand made on the Guarantor by MPSTDC shall be conclusive and absolute

as regards the forfeiture of Bid Security and the amount due and payable by the Guarantor

under this Guarantee.

c) The above payment shall be made without any reference to the Bidder or any other person

and irrespective of whether the claim of MPSTDC is disputed by the Bidder or not.

d) This Guarantee shall be irrevocable and remain in full force for a period of Six (06)

months from ..................... or for such extended period as may be mutually agreed

between MPSTDC and the Bidder and shall continue to be enforceable till all amounts

under this Guarantee are paid.

e) The Guarantee shall not be affected by any change in the constitution or winding up of

the Bidder/the Guarantor or any absorption, merger or amalgamation of the Bidder/the

Guarantor with any other person.

f) In order to give full effect to this Guarantee, MPSTDC shall be entitled to treat the

Guarantor as the principal debtor. The obligations of the Guarantor shall not be affected

by any variations in the terms and conditions of the Bid document or other documents or

by extension of time of performance of any obligations granted to the Bidder or

postponement/non exercise/delayed exercise of any of its rights by MPSTDC against the

Bidder or any indulgence shown by MPSTDC to the Bidder and. the Guarantor shall not

be relieved from its obligations under this Bank Guarantee on account of any such

variation, extension, postponement, non exercise, delayed exercise or omission on the part

of MPSTDC or any indulgence by MPSTDC to the Bidder to give such matter or thing

whatsoever which under the law relating to sureties would but for this provision have

effect of so relieving the Guarantor.

g) The Guarantor has power to issue this Guarantee and discharge the obligations

contemplated herein, the undersigned is duly authorised to execute this Guarantee

pursuant to the power granted.

IN WITNESS WHEREOF THE GUARANTOR HAS SET ITS HANDS

HEREUNTO ON THE DAY, MONTH AND YEAR FIRST HEREINABOVE WRITTEN.

Signed and Delivered by ——————-

Bank by the hand of Mr——————-

its ——————— and authorised official.


57

APPENDIX - VII

FORMAT FOR BID SECURITY

Details of the Bid Security enclosed herewith

No. No./date of Bank draft/bankers cheque/Bank Guarantee

Amount Name, branch and address of issuing Bank


58

APPENDIX - VIII

FORMAT FOR FINANCIAL BID

Financial Bid (Envelope-B) To, The Managing Director M.P. State Tourism Development Corporation, Bhopal

Dear Sir,

I am submitting my financial bid as under: Financial Bid:

Particulars of Plot

Fixed reserved value Amount of BID offered(for the entire plot area) (In figures) (In words)

Plot No. 1

Area 10.08 acre

` 91.72 LAKH

I have gone through the terms and conditions and guide lines as mentioned in the Bid document and I shall abide by them. Date

Name of the authorized person

Signature

Seal

Affix a recent passport

photograph of the authorized

signatory


59

DEVELOPMENT AGREEMENT

FOR

DEVELOPMENT OF TOURIST

FACILITIES

AT

INDIRA SAGAR


60

Contents

1. DEFINITIONS AND INTERPRETATION 62

2. SCOPE OF PROJECT 67

3. GRANT OF DEVELOPMENT RIGHT 67

4. PERFORMANCE SECURITY 68

5. PARTIES’ RIGHTS IN THE PROJECT 69

6. OBLIGATIONS OF THE DEVELOPER 70

7. OBLIGATIONS OF MPSTDC 73

8. REPRESENTATIONS AND WARRANTIES 74

9. DISCLAIMER 76

10. THE SITE 76

11. DELETED 76

12 REPORTING REQUIREMENTS 77

13 COMPLETION 77

14 O&M SECURITY 78

15. OPERATION AND MAINTENANCE 78

16. DEVELOPMENT FEE 79

17. INDEMNITY 80

18. SAFETY REQUIREMENT 81

19. PREMIUM 80

20. RENEWAL OF NEW DEVELOPMENT RIGHT UPON EXPIRY 81

21. INSURANCE 81

22. FORCE MAJEURE 81

23. DEFAULT AND TERMINATION 83

24. OBLIGATIONS TO HAND OVER 86

25. DIVESTMENT OF RIGHTS AND INTERESTS 86

26. RIGHT OF RE-ENTRY 87

27. DISPUTE AND ITS RESOLUTION 88

27. DISCLOSURE 89

28. GOVERNING LAW AND JURISDICTION 89

29. MISCELLANEOUS 89


61

DEVELOPMENT AGREEMENT

This Agreement is entered into on this the _________ day of ______

______, 2012

BETWEEN

The Madhya Pradesh State Tourism Development Corporation Ltd represented by its

[______] and having its principal office at

……………………………………………………(hereinafter referred to as

“MPSTDC” which expression shall unless repugnant to the context or meaning

thereof include its administrators, successors and assigns) of One Part,

AND

[__________________________ LIMITED], a company

incorporated under the provisions of the Companies Act, 1956 and

having its registered office at ______________ (Hereinafter referred to

as the “Developer” which expression shall unless repugnant to the

context or meaning thereof include its successors and permitted

substitutes) of the Second Part

WHEREAS

A) The DEPARTMENT OF TOURISM , GOVERNMENT OF MADHYA

PRADESH (hereinafter referred to as “ DOT” owns and possesses land

measuring …….. square meters (along with buildings situated) at

………………………., (“hereinafter referred to as “Site”) and is interested in

Development of this land as a Tourist Destination hereinafter called “Project” on

build, operate and transfer (“DBFOT”) basis.

B) Department of Tourism has authorized MPSTDC vide notification no. [___]

dated [__] to undertake the development of the said Project on DBFOT basis on

the terms and conditions contained in the Request for Proposal and addendums

and clarifications thereto and this Agreement including the Schedules and

Annexure hereof.

C) MPSTDC had accordingly invited proposals vide RFP NO. 1 & Tender Notice No

______/ dated ____________(“the Tender Notice”) for selection of a bidder for

the aforesaid Project including the detailed design, engineering, financing,

procurement, construction, operation and maintenance on basis subject to and on

the terms and conditions contained in the DBFOT RFP document.


62

D) After evaluation of the Bids so received, MPSTDC had accepted the Bid of

...................... the Consortium comprising of M/s. __________________ (Lead

member), M/s. __________________(Member), and M/s. __________________

(Member), and issued its Letter of Award No………….. dated ………. (“LOA”)

to the Consortium requiring, inter alia, the execution of this Development

Agreement.

E) The Consortium/bidder has since promoted and incorporated ----------------------as

the Developer, and has requested MPSTDC to accept the Developer as the entity

which shall undertake and perform the obligations and exercise the rights of the

Consortium/bidder under the LOA, for executing the Project.

F) MPSTDC in accordance with the provisions of RFP has agreed accordingly to

enter into this Development Agreement with the Developer for execution of the

Project on DBFOT basis, subject to and on the terms and conditions set forth

hereinafter.

G) The Developer has duly provided the Performance Security to the MPSTDC in

terms hereto.

NOW THEREFORE IN CONSIDERATION OF THE PREMISES AND THE

MUTUAL COVENANTS HEREINAFTER CONTAINED, THE PARTIES

HERETO HEREBY AGREE AND THIS AGREEMENT WITNESSETH AS

FOLLOWS:


63

PRELIMINARY

DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, the following words and expressions shall, unless

repugnant to the context or meaning thereof, have the meaning hereinafter

respectively assigned to them:

1. “Accounting Year” means the financial year commencing from 1st April of any

calendar year and ending on 31st March of the next calendar year.

2. “Agreement” or the “Development Agreement” means this Agreement, its

Recitals, Schedules and Annexure hereto and any amendments thereto made in

accordance with the provisions contained in this Agreement.

3. “Applicable Laws” means all laws, promulgated or brought into force and

effect by the State Government and/or the Government of India including rules,

regulations and notifications made there-under, and judgments, decrees,

injunctions, writs and orders of any court or 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.

4. “Applicable Permits” means all clearances, permits, authorizations, consents

and approvals required to be obtained or maintained under Applicable Laws in

connection with the detailed design, engineering, financing, procurement,

construction, operation and maintenance of the Project during the subsistence of

this Agreement.

5. “Bid” means the documents in their entirety comprised in the bid submitted by

the Bidder in response to the Tender Notice in accordance with the provisions

thereof.

6. "Commencement Date" means the date on which the physical possession of

the land is handed over free from Encumbrances to the Developer.

7. “Consortium Member” and “Lead Member” means the members and lead

member of the Consortium referred to in recital D.

8. “Construction Period” means the period beginning from the Commencement

Date and ending on the Project Completion Date.

9. “Construction Works” means all works and things necessary to complete the

Project for use thereof in accordance with this Agreement.

10. “Contractor” means the person or persons, as the case may be, with whom the

Developer has entered into any EPC Contract, maintenance contract, or any

other agreement the Developer may enter into for engineering, construction,

operation and/or maintenance of the Project or matters incidental thereto.

11. “Developer” means the company incorporated under the companies Act

promoted by the bidder/members of the consortium which shall undertake and

perform the obligations and exercise the rights of the Consortium/bidder under

the LOA and the Development Agreement, for executing the Project.

12. “Development Rights” shall have the meaning ascribed thereto in Clause 3

13. “ Development Fee” shall have the meaning ascribed thereto in Clause 16


64

14. “Development Period” means the period beginning from the Project

Completion Date and ending at the end of 30 years of such Project Completion

Date unless terminated earlier or extended in terms hereof.

15. “Dispute” shall have the meaning set forth in Clause 26.

16. “Dispute Resolution” means the procedure for Dispute resolution set forth in

Clause 26.

17. “DOT” means the Department of Tourism Govt. of Madhya Pradesh

18. “EPC Contract” means the contract or contracts entered into by the Developer

with one or more Contractors for the detailed working design, engineering,

procurement of materials and equipment, construction, and completion of the

Project in accordance with the provisions of this Agreement,

19. “Encumbrances” means any encumbrances on any part of the Project or

Project Buildings such as mortgage, charge, pledge, lien, hypothecation, security

interest, assignment, privilege or priority of any kind having the effect of

security or other such obligations and shall include without limitation any

designation of loss payees or beneficiaries or any similar arrangement under any

insurance policy pertaining to the Project, physical encumbrances and

encroachments on the Site where applicable herein.

20. “Equity” means the sum expressed in Indian Rupees representing the paid up

equity share capital for meeting the equity component of the total project cost

and shall include the convertible instruments or other similar forms of capital

which shall compulsorily convert into equity share capital of the Company and

any interest free funds advanced by any shareholder of the Company for

meeting such equity component,

21. “Event of Default” or “Developer Default” shall have the meaning set forth in

Clause 23.

22. “Force Majeure” or “Force Majeure Event” shall mean an act, event,

condition or occurrence specified which is not in the Control of any parties to

the agreement as stated and described in Clause 22

23. “GOMP” means the Government of the State of Madhya Pradesh.

24. “GOI” means the Government of India.

25. “Good Industry Practice” means those practices, methods, techniques,

standards, skills, diligence and prudence which are generally and reasonably

expected of and accepted internationally from a reasonably skilled and

experienced operator engaged in the same type of undertaking as envisaged

under this Agreement and acting generally in accordance with the provisions of

applicable law, and would mean good engineering practices in the design,

engineering, construction and project management and which would be

expected to result in the performance of its obligations by the Developer and in

the operation and maintenance of the Project in accordance with this

Agreement, Applicable Laws, Applicable Permits, reliability, safety,

environment protection, economy and efficiency.

26. “Government Agency” means GOI, GOMP or any Ministry, Department,

Commission, Board, Authority, instrumentality or agency, under the control of

GOI or GOMP having jurisdiction over all or any part of the Project or the


65

performance of all or any of the services or obligations of the MPSTDC and the

Developer under or pursuant to this Agreement.

27. “Indemnifying Party” means the Party obligated to indemnify the other Party

pursuant to clause 17

28. Deleted

29. “Initial Inspection” / “Second Inspection” shall have the meaning contained

in clause 24.1

30. “Land Acquisition Act” shall mean Land Acquisition Act 1894 including

amendment made thereof, and as in force in Madhya Pradesh from time to time.

31. “LOA” or “Letter of Award” means the letter of award referred to in the

Recital (D).

32. “MPSTDC Representative” means such person or persons as may be

authorized in writing by MPSTDC to act on its behalf under this Agreement and

shall include any person or persons having authority to exercise any rights or

perform and fulfill any obligations of MPSTDC under this Agreement.

33. “O & M Security” shall have the meaning as described in Clause 14.

34. “Parties” means the parties to this Agreement collectively and “Party” shall

mean any of the Parties to this Agreement individually.

35. “Performance Security” shall have the meaning as described in Clause 4.

36. “Premium” means one time payment made by Developer before entering into

this agreement and shall have the meaning as ascribed in Clause 19.

37. “Project” means the commercial building, restaurant, hotel, motels, water

sports, public utilities and other incidental facilities to be built as described in

Clause 2 and in accordance with the Schedule B in accordance with the

Development Rights granted hereunder.

38. “Project Agreements” means collectively this Agreement, the Financing

Documents, the EPC Contract, if any, the maintenance contract, if any, and any

other agreements or contracts entered into by the Developer relating to the

Project during the subsistence of this Agreement.

39. “Project Completion Date” is the date on which the Project is complete as per

the Specifications and Standards, having been granted all the relevant and

necessary clearances and certificates by the competent authorities under the

Applicable Laws.

40. “Public Purpose” shall mean the purpose for which the land can be

acquired under Land Acquisition Act.

41. “Reservoir” means the water body as described in Schedule A.

42. “`” Or “Rupees” means the lawful currency of the Republic of India.

43. “Scheduled Project Completion Date” shall have the meaning contained in

clause 13.

44. "Security Zone" means such area of the reservoirs as may be determined

from time to time by the authority that owns Indira Sagar Dam within

which the developer shall be barred from taking up any activity of any

kind.


66

45. “Site” shall mean the real estate described in Schedule A.

46. “Specifications and Standards” means the relevant specifications and

standards for development of the Project and Project Building relating to the

design and construction thereof and includes any modifications thereof or

additions thereto.

47. “Termination” means the expiry or termination of this Agreement and the

Development Right hereunder, and “Termination Date” means the date on

which this Agreement and the Development Right hereunder expires pursuant to

the provisions of this Agreement or is terminated by a Termination Notice.

48. “Termination Notice” means the communication issued in accordance with

this Agreement by any one Party to the other Party terminating this

Agreement.

49. “Total Project Cost” means the lowest of :

a) the capital cost of the Project as set forth in the Financial Package as

approved by lender, if any;

b) the actual capital cost of the Project upon completion as certified by

the Statutory Auditor of the Developer;

c) a sum of ` 15.00 crore (` Fifteen crore only) (i.e. amount mentioned

in 1.1.1 of ITB)

1.2 In this Agreement, unless the context otherwise requires,

a) any reference to a statutory provision shall include such provision as

is from time to time modified or re-enacted or consolidated so far as

such modification or re-enactment or consolidation applies or is

capable of applying to any transactions entered into hereunder;

b) references to Indian law shall include the laws, acts, ordinances, rules,

regulations, or bye laws which have the force of law in any State or

Union Territory forming part of the Union of India;

c) the words importing singular shall include plural and vice versa, and

words denoting natural persons shall include partnerships, firms,

companies, corporations, joint ventures, trusts, associations,

organisations or other entities (whether or not having a separate legal

entity);

d) the headings are for convenience of reference only and shall not be

used in and shall not affect the construction or interpretation of this

Agreement;

e) terms and words beginning with capital letters and defined in this

Agreement shall have the meaning ascribed thereto herein and the

terms and words defined in the Schedules and used therein shall have

the meaning ascribed thereto in the Schedules;

f) the words “include” and “including” are to be construed without

limitation;

g) references to “construction” include, unless the context otherwise

requires, investigation, design, engineering, procurement, delivery,


67

transportation, installation, processing, fabrication, testing,

commissioning and other activities incidental to the construction;

h) any reference to any period of time shall mean a reference to that

according to Indian Standard Time;

i) any reference to day shall mean a reference to a calendar day;

j) any reference to month shall mean a reference to a calendar month;

k) any reference to year unless otherwise defined shall mean the

calendar year

l) the Schedules to this Agreement form an integral part of this

Agreement and will be in full force and effect as though they were

expressly set out in the body of this Agreement;

m) any reference at any time to any agreement, deed, instrument, license

or document of any description shall be construed as reference to that

agreement, deed, instrument, license or other document as amended,

varied, supplemented, modified or suspended at the time of such

reference provided that this clause shall not operate so as to increase

liabilities or obligations of MPSTDC hereunder or pursuant hereto in

any manner whatsoever except as expressly provided in this

agreement;

n) references to Recitals, Articles, Clauses, Sub-clauses, Paragraphs, or

Schedules in this Agreement shall, except where the context otherwise

requires, be deemed to be references to Recitals, Articles, Clauses,

Sub-clauses, paragraphs, and Schedules of or to this Agreement;

o) 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 effectual only

if it is in writing under the hands of duly authorized representative of

such Party, as the case may be, in this behalf and not otherwise;

p) 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;

q) 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 pre-

determined amount of indemnification of loss and damage likely to be

suffered and incurred by the Party entitled to receive the same and are

not by way of penalty or liquidated damages (the “Damages”);

r) unless otherwise expressly provided in this Agreement any

Documentation required to be provided or furnished by the Developer

to MPSTDC shall be provided free of cost and in three copies and on a

computer CD/floppy or such media as is required for a Soft Copy

storage and if MPSTDC is required to return any such Documentation

with their comments and/ or approval, they shall be entitled to retain

two copies thereof;

s) In the event of any dispute in respect of interpretation of any clause of

the agreement, the decision of MPSTDC shall be final and binding


68

subject to the parties to this agreement taking recourse to legal action

under any other law for the time being in force in the State of Madhya

Pradesh in terms of the agreement.

1.3 Measurements and Arithmetic Conventions

All measurements and calculations shall be in metric system and calculations

done to 2 decimal places, with the third digit of 5 or above being rounded up

and below 5 being rounded down.

1.4 Priority of contract documents and errors/ discrepancies

In case of ambiguities or discrepancies within this Agreement the following

shall apply:

A. between two Clauses of this Agreement, the provisions of the specific

clause relevant to the issue under consideration shall prevail over those in

other Clauses;

B. between the Clauses and the Schedules, the Clauses shall prevail save as

otherwise expressly set forth in this agreement;

C. between any value written in numerals and that in words, the latter shall

prevail.

2. SCOPE OF PROJECT

The scope of the Project shall mean and include, during the Development

Period:

(a) design, engineering, finance and construction of the Project on the

Site described in Schedule A while meeting the minimum

prescribed requirements set forth in schedule - B

(b) operation and maintenance of the Project in accordance with the

provisions of this Agreement; and

(c) performance and fulfilment of all other obligations of the

Developer in accordance with the provisions of this Agreement and

matters incidental thereto or necessary for the performance of any

or all of the obligations of the Developer under this Agreement.

3 GRANT OF DEVELOPMENT RIGHT

3.1 Subject to and in accordance with the provisions of this Agreement, the

Applicable Laws and the Applicable Permits, MPSTDC hereby grants to the

Developer the Development Right set forth herein including the exclusive

right, licence and authority during the subsistence of this Agreement to design

construct, operate and maintain the Project (the "Development Right") for a


69

period of 30 (thirty) years beginning from the Project Completion Date and

ending at the end of 30 years of such Project Completion Date unless

terminated earlier or extended in terms hereof, and the Developer hereby

accepts the Development Right and agrees to implement the Project in

accordance with the terms and conditions set forth herein.

3.2 Subject to and in accordance with the provisions of this Agreement, the

Development Right hereby granted shall oblige or entitle (as the case may be)

the Developer to:

(a) access and right to the Site to the extent conferred by the provisions of

this Agreement;

(b) to design, engineer and construct the Project Buildings and facilities in

accordance with the Specifications and Standards and for the use as

specified herein;

(c) manage, operate and maintain the Project and use the Project for its

own commercial use or sub-license it or part thereof to Sub-Licensees

for commercial or other use, during the Development Period and

regulate the use of the Project by third parties including the Sub-

Licensees;

(d) demand, collect and appropriate premium and/or license and/or any

other fee/charges from the Sub-Licensees / users for using the Project

or any part thereof or any services provided by the Developer;

(e) perform and fulfil all of the Developer's obligations under and in

accordance with this Agreement;

(f) bear and pay all costs, expenses and charges in connection with or

incidental to the performance of the obligations of the Developer under

this Agreement;

(g) not assign, transfer or sublet or create any lien or Encumbrance on this

Agreement, or the Development Right hereby granted or on the whole

or any part of the Project or Project Buildings and facilities or Site nor

transfer, lease or part possession therewith, save and except as

expressly permitted by this Agreement;

4 PERFORMANCE SECURITY

4.1. The Developer has agreed to, for the due and faithful performance of its

obligations during the Construction Period, provide to the MPSTDC a security

for a sum equivalent to ` 75.00 lakh (5% of the estimated Project Cost) on or

before signing of this Agreement, in the form of an irrevocable and

unconditional Bank Guarantee from a Scheduled Bank issued in favour of the

MPSTDC valid for six months beyond the Scheduled Project Completion Date

in the form set forth in Schedule C. (“Performance Security”).


70

4.2 The Performance Security shall be released by the MPSTDC to the Developer

upon completion of the Project to the satisfaction of the MPSTDC and when

the Developer shall have provided all the necessary certification in evidence of

such completion to MPSTDC.

4.3 In the event the Developer is in breach of the terms of the Agreement during

the Construction Period, the MPSTDC shall, without prejudice to its other

rights and remedies hereunder or in law be entitled to encash and appropriate

such amounts as may have been determined, from the Performance Security as

Damages for such Developer Default. Upon such encashment and

appropriation from the Performance Security, the Developer shall, within 30

(thirty) days thereof, replenish, in case of partial appropriation, to its original

level the Performance Security, and in case of appropriation of the entire

Performance Security provide a fresh Performance Security, as the case may

be, failing which MPSTDC shall be entitled to terminate this Agreement in

accordance with Clause 23 and appropriate entire Performance Security as

Damages.

4.4 The Performance Security shall remain in force for entire construction period

and will be released on issuance of Project Completion Certificate.

5. PARTIES’ RIGHTS IN THE PROJECT

5.1 The Parties agree as follows :

a) The Developer may choose to operate a part or whole of the Project by

itself as permissible under law and shall take the requisite approval

from the concerned authorities before starting such activities and shall

also be liable to pay all tax, levies etc as levied by GOI, GOMP, or any

other agency from time to time for the use of such premises.

b) The Developer may sub-license to any third party of its choice for

operating any part of the Project operations. Such sub-license shall

expressly provide that the sub-license shall be automatically co-

terminus with this Agreement and that the sub-license shall

automatically stand revoked and terminated upon termination of this

Agreement.

c) MPSTDC will have the right to develop on its own or through any

developer/agency/or person(s) any facility/activities in the reservoir.

d) If a facility which has been created in the reservoir and is also

mentioned in Schedule 'B' needs to be augmented, the Developer will

be required to obtain separate license from MPSTDC for such

augmentation. If the developer desires to create a new facility in the

reservoir, he shall be required to obtain a separate license for the same

as well. MPSTDC shall prescribe such license fee and impose such

conditions that it considers appropriate, while granting any license

under this clause.

e) Environmental clearance for the project shall be obtained by the

developer. In case of augmentation of project by Developer, creation


71

of any new facilities, the necessary clearance, if any, will be taken by

the Developer at its own cost. For the avoidance of doubt, it is clarified

that MPSTDC will not be in any manner liable for refusal of any

clearance/permission by any Government instrumentality,.

f) MPSTDC shall have the right to grant right to access or right of way

on, over, under, through or across the site for the purpose of ;

I. Supply of electricity, gas, laying of telephone cables, water, sewerage,

drainage or any other facilities or utilities;

II. Transportation of other services to the public.

III. Use of Jetty and water based activities.

For the avoidance of doubt, it is clarified that any such permission if

granted by MPSTDC shall not be inconsistent with the development

undertaken by Developer. In case of any damage due to such action of

MPSTDC the cost of such damages will be paid by MPSTDC.

g) Developer shall submit initial plan for development of site as per the

requirement mentioned in Schedule-B. However, on completion,

Developer shall have the right to augment the facilities or create newer

facilities at site for the purpose of development of tourism and related

activities. Developer can also augment the plan during the project

construction period. However, no reduction in the mandatory facilities

mentioned in Schedule-B shall be permitted.

5.2 The Developer acknowledges that it shall not create any mortgage, lien,

charge or Encumbrance on the Project, Project buildings & facilities, Site or

land. There shall be no step-in or substitution rights whatsoever for any bank

or financial institutions at any time.

5.3 The Developer acknowledges that the authorized representative of MPSTDC

shall always have the right to enter the Project, Project Buildings & facilities

and Site, without requiring any consent, approval or permission from the

Developer, subject to the MPSTDC not disturbing the peaceful possession

thereof by any person.

5.4 The Consortium Members shall commit to hold a minimum of 78% of the

equity (with each member holding not less then 26% of equity) during the

construction period and 5 years after the Project Completion Date.

6. OBLIGATIONS OF THE DEVELOPER

6.1 The Developer 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, all necessary applications in the name

of GOMP/DOT/MPSTDC as the case may be to the relevant

Governmental Agencies with such particulars and details, as may


72

be necessary for obtaining all Applicable Permits, and obtain such

Applicable Permits in conformity with the Applicable Laws

(b) remove promptly from the Project Site all surplus construction

machinery and materials, waste materials (including, without

limitation, hazardous materials and waste water) and rubbish and

shall keep the Project in a neat and clean condition and in

conformity with the Applicable Laws and Applicable Permits;

(c) obtain and maintain in force on and from the Commencement Date

all insurance in accordance with the provisions of this Agreement

and Good Industry Practice;

(d) make reasonable efforts to maintain harmony and good industrial

relations among the personnel employed in connection with the

performance of the Developer’s obligations under this Agreement;

(e) comply with all Applicable Permits and Applicable Laws in the

performance of the Developer’s obligations under this Agreement

including those being performed by any of the Contractors;

(f) develop, implement and administer a surveillance and safety

program for the Project Buildings & facilities, the users thereof,

and the Contractors’ personnel engaged in the provision of any

services under any of the Project Agreements including correction

of safety violations and deficiencies, and taking of all other actions

necessary to provide a safe environment in accordance with the

requirements of this agreement and Applicable Laws and Good

Industry Practice;

(g) at all times, afford access to the Site to the authorized

representatives of any Governmental Agency having jurisdiction

over the Project, including those concerned with safety, security or

environmental protection to inspect the Project and to investigate

any matter within their authority and upon reasonable notice, the

Developer shall provide, to such persons reasonable assistance

necessary to carry out their respective duties and functions with

minimum disruption to the construction, operation and

maintenance of the Project consistent with the purpose for which

such persons have gained such access to the Site.

(h) not to permit any contractor or person to create or place any

Encumbrance or security interest over all or any part of Site,

Project buildings & facilities, or on any rights of the Developer

therein or under this Agreement, save and except as expressly set

forth in this Agreement;

(i) be responsible for safety, soundness and durability of the Project

including other structures forming part thereof and their

compliance with the Specifications and Standards;


73

(j) not claim or demand possession or control of any real estate which

does not form part of the Project;

(k) after receiving vacant possession of the Site or part thereof, ensure

that such Site remains free from all encroachments and take all

steps necessary to remove encroachments, if any;

(l) indemnify the MPSTDC against all actions, suits, claims, demands

and proceedings and any loss or damage or cost or expense that

may be suffered by them on account of anything done or omitted to

be done by the Developer in connection with the performance of its

obligations under this Agreement;

(m) pay the Development Fee as specified in Clause 16 of this

Agreement ;

(n) comply with the obligations to hand over the Project to MPSTDC,

or to the nominee of MPSTDC upon Termination of the

Agreement.

(o) not to take up any activity in the security zone

(p) not infringe with fishing rights of local people and fishing licensees

of appropriate authority.

(q) Comply with conditions laid down in Annexure -I of Schedule 'A'

6.2 Obligations with respect of construction of the project

The Developer shall, before commencement of construction of the Project:

a) submit to the MPSTDC its detailed design, construction

methodology, quality assurance procedures, and the procurement,

engineering and construction time schedule for completion of the

Project by the Scheduled Project Completion Date as set forth in this

agreement, for review and comments. MPSTDC shall, within 10 days

of such submission, review the same and provide its comments to the

Developer. The Developer shall take into consideration the comments

provided by MPSTDC. Provided that failure to review and/or convey

its comments shall not relieve the Developer of its obligations and

liabilities under this Agreement in any manner nor shall the MPSTDC

be liable for the same in any manner. Provided further, that in the

event MPSTDC fails to provide its comments to the Developer with

in the time period specified herein, then the Developer may

commence construction;

b) appoint its duly authorized representative to deal with the MPSTDC

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 construction under


74

and in accordance with this agreement, the Applicable Laws and

Applicable Permits;

(d) undertake the detailed design, engineering, procurement, financing,

construction and maintenance of the Project in accordance with

Specifications and Standards.

(e) comply with the provisions of this Agreement, Applicable Laws and

Applicable Permits and conform to Good Industry Practice for

ensuring high standards of safety for the Project. In particular, the

Developer shall develop, implement and administer, a safety

programme for providing a safe environment on the project, and shall

comply with the safety requirement.

f) construct and complete the Project by the Scheduled Project

Completion Date. Upon completion of the project, the Developer

shall obtain all requisite clearances and certificates necessary under

the Applicable Laws including Completion Certificate and the

occupancy certificate.

7. OBLIGATIONS OF MPSTDC

MPSTDC agrees to observe, comply and perform in addition to and not in

derogation of its obligations elsewhere set out in this Agreement, the following:

a) that the MPSTDC shall hand over the vacant physical possession of the

Site free from Encumbrances to the Developer with in 30 (thirty) days

of signing of this Agreement and in the event MPSTDC fails to hand

over the Site in such time, MPSTDC shall pay damages to the

Developer at the rate of Rs.1000/- (` One Thousand) per day till such

delay continues,

b) that the MPSTDC shall grant development right to and enable access

to the Site to the Developer in accordance with the terms contained

herein;

c) assist and provide all reasonable support to the Developer in obtaining

Applicable Permits in the name of MPSTDC, which shall be limited to

signing the relevant application forms by MPSTDC;

d) upon written request from the Developer, assist the Developer on best

effort basis in obtaining access to all necessary infrastructure facilities

and utilities, including water, electricity etc. at rates and on terms no

less favourable to the Developer than those generally available to

commercial customers receiving substantially equivalent services;

e) Ensure completion and maintenance of Jetty and related infrastructure

over the development period as detailed out in Para (iv) of Schedule

‘B’ atleast six months prior to the scheduled Project Completion Date.

f) observe and comply with its obligations set forth in this Agreement


75

8. REPRESENTATIONS AND WARRANTIES

8.1 Representations and Warranties of the Developer

The Developer represents and warrants to MPSTDC that:

(a) it is duly organised 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 authorise 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 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 those of any member of

the Consortium} 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


76

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


(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;

(k) It may undertake or permit any Change in Ownership only after

compliance of Clause 5.4.

(l) {the selected bidder/ Consortium Members and its/their} Associates

have the financial standing and resources to fund the required Equity

and to raise the debt necessary for undertaking and implementing the

Project in accordance with this Agreement;

(m) {the selected bidder/ each Consortium Member} is duly organised and

validly existing under the laws of the jurisdiction of its incorporation,

and has requested MPSTDC to enter into this Agreement pursuant to

the Letter of Award, and has agreed to and unconditionally accepted

the terms and conditions set forth in this Agreement;

(n) all its rights and interests in the Project shall pass to and vest in

MPSTDC on the Divestment Date free and clear of all liens, claims

and encumbrances, without any further act or deed on its part or that of

the MPSTDC.

(o) no representation or warranty by it contained herein or in any other

document furnished by it to MPSTDC or to any Government

Instrumentality in relation to Applicable Permits contains or will

contain any untrue or misleading statement of material fact or omits or

will omit to state a material fact necessary to make such representation

or warranty not misleading;

(p) 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 or for

influencing or attempting to influence any officer or employee of

MPSTDC for entering into this Agreement.

(q) all information provided by the {selected bidder/ Consortium

Members} in response to the Request for Proposals or otherwise, is to

the best of its knowledge and belief, true and accurate in all material

respects.

8.2 Representations and Warranties of the MPSTDC

MPSTDC represents and warrants to the Developer that:

(a) it has full power and authority to execute, deliver and perform its

obligations under this Agreement and to carry out the transactions


77

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 actions 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 this Agreement;

(d) this Agreement constitutes a legal, valid and binding obligation

enforceable against it in accordance with the terms hereof;

(e) 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 Instrumentality which may result in any

material adverse effect on the MPSTDC ’s ability to perform its


(f) it has complied with Applicable Laws in all material respects; and

(g) it has good and valid right to the Site, and has power and authority to

grant a licence in respect thereto to the Developer.

8.3 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 right,

remedy or obligation of either Party under this Agreement

9. DISCLAIMER

9.1 The Developer acknowledges that prior to the execution of this Agreement,

the Developer has after a complete and careful examination made an

independent evaluation of likely revenue from the project, Specifications and

Standards, Site, scope of work, designs and all the information provided by

MPSTDC and has determined to its satisfaction the nature and extent of such

difficulties, risks and hazards as are likely to arise or may be faced by the

Developer in the course of performance of its obligations hereunder.

9.2 The Developer acknowledges and hereby accepts the risk of inadequacy,

mistake or error in or relating to any of the matters set forth in Clause 9.1

above and hereby confirms that MPSTDC shall not be liable for the same in

any manner whatsoever to the Developer, the Consortium Members/Bidder or

their Associates.


78

10. THE SITE

a) MPSTDC hereby grants to the Developer the right to enter upon the Site and

to survey design, engineer, procure, construct, lease, and maintain the Project

including the Project buildings & facilities in accordance with the provisions

of this Agreement.

b) The right to use the Site shall be granted for the purpose of carrying out the

functions by the Developer as prescribed under the Agreement and not for any

other purposes;

c) For the purpose of claiming tax depreciation, the property representing the

capital investment made by the Developer shall be deemed to be acquired and

owned by the Developer.

11 Deleted

12. REPORTING REQUIREMENTS

The Developer shall keep reporting to MPSTDC the status report of the project on

quarterly basis for ensuring compliance with the layout plan. The report shall provide

the following details.

The status of the project approval from the statutory authorities

Status of development on site and the cost incurred for the same on

quarterly basis

An envisaged plan for the development in the next quarter

The Developer shall also submit to the MPSTDC, annual audited result

of the Project on or before 1st of October every year during the term of

this Agreement.

13. COMPLETION

a) The construction of the Project shall be completed on or before 24 months from

the Commencement Date unless otherwise extended as per the provisions of

this agreement (“Scheduled Project Completion Date”).

b) The Project shall be deemed to be completed only when the mandatory

requirements set forth in Schedule - B are completed as per the Specifications

and Standards and are legally ready to be used, having been granted all the

relevant and necessary clearances and certificates by the competent authorities

under the Applicable Laws.

c) The Developer may be permitted to start marketing and open to public other

facilities as and when they are completed. However, such services or facilities

can be placed into commercial use only after issuance of Provisional

Completion Certificate by MPSTDC. For the avoidance of doubt, it is clarified

that such Provisional Completion Certificate shall not absolve Developer from


79

the responsibility of Project Completion by Scheduled Completion Date which

has to be carried out as per sub clause 13 (a) of this Agreement.

d) In case of delay in completion of the Project by Scheduled Completion Date,

Developer shall be liable to pay Damages to MPSTDC @ ` 7500.00 (0.1% of

the Performance Security) per day for such delay. In case of non-payment of

Damages, MPSTDC reserves the right to recover it by encashing and

appropriating the amount from the Performance Security. For avoidance of

doubt, it is agreed that if completion of any part of the project is delayed for any

reason solely attributable to MPSTDC, GOMP, DOT or due to Force Majeure,

no damages shall be payable by the Developer to the MPSTDC in such case.

14 O&M SECURITY

14.1For due and faithful performance of its obligations during the Operation and

Maintenance period, the Developer shall provide MPSTDC as Security (“O&M

Security”) in the form of irrevocable and unconditional Bank Guarantee in the

prescribed format given in Schedule-D from a scheduled Bank acceptable to

MPSTDC for the sum equivalent to ` 30.00 lakh (2% of the estimated Project

Cost). The Guarantee shall continue to remain in force for the entire Development

Period and the same shall be provided by the Developer before the issuance of

Project Completion Certificate.

14.2In the event the Developer is in breach of the terms of the Agreement during the

Operation and Maintenance Period, the MPSTDC shall, without prejudice to its

other rights and remedies hereunder or in law be entitled to encash and

appropriate the relevant amounts from the O&M Security as Damages for such

Developer Default. Upon such encashment and appropriation from the O&M

Security, the Developer shall, within 30 (thirty) days thereof, replenish, in case of

partial appropriation, to its original level the O&M Security, and in case of

appropriation of the entire O&M Security provide a fresh O&M Security, as the

case may be, and the Developer shall, within the time so granted, replenish or

furnish fresh O&M Security as aforesaid failing which MPSTDC shall be entitled

to terminate this Agreement in accordance with Clause 23 and appropriate such

O&M Security as Damages.

15. OPERATION AND MAINTENANCE

15.1.1 The Developer shall at its own cost operate and maintain the common areas,

façade, outer boundaries of the project by itself, or through O&M Contractors

and if required, modify, repair or otherwise make improvements to the Project

to comply with the Specifications and Standards, and other requirements set

forth in this Agreement, Good Industry Practice, Applicable Laws and

Applicable Permits and more specifically:

a) permit safe occupation and use of sub-licensed premises by the Sub-

Licensee’s during normal operating conditions;

b) charge, collect and retain the premium and license fee from the Sub-Licenses

and other uses in accordance with this Agreement;


80

c) undertake at its own cost routine maintenance including prompt repairs of

cracks, concrete joints, drains, lighting and signage etc. of common areas,

façade, outer boundaries of the project.

d) carry out periodic preventive maintenance to the project at its own cost.

e) prevent with the assistance of concerned law enforcement agencies

unauthorized entry to and exit from the Project.

f) prevent with the assistance of the concerned law enforcement agencies

encroachments on the Project including Site.

g) maintain a public relations unit to interface with and attend to suggestions

from users of the Project.

h) adhere to the safety standards as per the best industry practice.

i) maintain the mandatory requirements mentioned in Schedule B and

constructed in compliance of clause 5.1(g)

15.2 The Developer shall ensure that at all times, during the Development Period,

the Project is maintained in a manner that it complies with the relevant

Specifications and Standards.

15.3 The Developer shall keep the Project Facilities in a clean, tidy and orderly

condition free of litter.

15.4 In the event the developer does not maintain the Project and it has become

unsafe for the use, MPSTDC shall have the right to get it repaired at the cost

of Developer and in case of non-payment of such cost by Developer,

MPSTDC shall have the right to recover the amount by en-cashing the

Operation & Maintenance Security and appropriate the proceeds thereof. In

case of such encashment, the Developer shall be liable to replenish the O&M

Security within a period of 15 days of such encashment, failing which

MPSTDC shall have the right to take action for termination of Development

Agreement.

15.5 The Developer shall undertake periodic (at least once every three months)

inspection of the Project to determine the condition of the Project including its

compliance or otherwise with the Specifications and Standards and the

maintenance required.

15.6 MPSTDC may inspect the Project at any time for a review of the compliance

by the Developer with its maintenance obligations under this Agreement.

16 DEVELOPMENT FEE

16.1 In consideration of the Development Rights granted hereunder, the Developer

shall pay to MPSTDC during the Development Period and commencing from

the Project Completion Date, as Development Fee, ` 1.50 /sqmt. per annum.


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16.2 The Development Fee shall be paid in advance every year, at the

commencement of the year.

16.3 Notwithstanding anything to the contrary contained elsewhere in this

Agreement, the Development Fee once paid is non-refundable under any

circumstances whatsoever.

16.4 In case of non-payment of Development Fee by the Developer, MPSTDC shall

be entitled to recover the same by encashing and appropriating the amount

from O&M Security. Failing which MPSTDC reserves the right, without

prejudice to its other rights and remedies under this Agreement, to terminate

the Agreement and take over the Project.

17. INDEMNITY

The Developer hereby undertakes to indemnify and hold MPSTDC harmless

against all cost, damages, liabilities, expenses arising out of any third party

claims relating to torts or contracts relatable to the operation and maintenance of

the Project and Project Buildings & facilities during the Construction Period and

the Development Period.

18. SAFETY REQUIREMENT

18.1 The Developer shall comply with the provisions of this Agreement,

Applicable Laws and Applicable Permits and conform to Good Industry

Practice for securing the safety of the users. In particular, the Developer shall

develop, implement and administer a surveillance and safety programmef for

providing a safe environment on or about the project, and shall comply with

all the necessary safety requirements.

18.2 In the case of unsafe conditions, the Developer shall follow the relevant

operating procedures. Such procedures shall be in accordance with Applicable

Laws, Applicable Permits and provisions of this Agreement.

18.3 All costs and expenses arising out of or relating to safety requirements shall be

borne by the Developer to the extent such costs and expenses form part of the

work and services included in the Scope of the Project.

19. PREMIUM

19.1 The MPSTDC acknowledges and agrees that the Developer has paid a premium

equal to ` …………….. (‘Premium’) before the date of signing of this

Agreement.

19.2 The Premium paid shall be exclusive of any other fee/charges payable by the

Developer to the MPSTDC under the provisions of this Agreement.

Notwithstanding anything to the contrary contained elsewhere in this

Agreement, the Premium once paid is non-refundable under any circumstances

whatsoever.


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20. RENEWAL OF DEVELOPMENT RIGHT UPON EXPIRY

20.1 The Developer shall be entitled to the right of renewal; on the expiry of 30

year period.

20.2 Atleast twelve months prior to the expiry of this Agreement, the Developer

shall inform in writing to MPSTDC if it is willing to continue with the

Development Rights granted herein and shall make an application for the grant

of renewal of Development Rights of the Project, for a further period of 30

years on the same terms and conditions except for those explicitly provided in

clause 20.4 & 20.5 of this Agreement. Provided that Developer can exercise

such right only if it has complied with all the terms and conditions of the

Development Agreement and it is not in breach of any of the terms of the

Development Agreement which has been notified by MPSTDC. In case the

Developer is in breach of any of the terms and conditions of the Development

Agreement resulting in an Event of Default, the renewal of Development

Rights shall be subject to the Developer rectifying the breach within a cure

period of 2 months and failure to rectify such breach shall not entitle the

Developer for renewal of Development Rights. For the avoidance of doubt it is

clarified that if the developer does not make any application to MPSTDC

within the time provided in this clause, it shall be deemed that it is not willing

for renewal of Development Rights.

20.3 In case Developer is not willing to continue with the Development Rights

granted herein, it shall inform in writing to MPSTDC atleast twelve months

prior to the expiry of this Agreement, its intentions whereof. In such a case

the Project shall be handed over to MPSTDC by Developer as per the

provisions of Clause 24 of this Agreement.

20.4 The annual Development Fee for the of renewed period shall be six times the

fee payable as per Clause 16 of this agreement.

20.5 The O & M Security for the renewed period of 30 years shall be 4 (four) times

the amount mentioned in clause 14.1 i.e. ` 7.50 lakh.

21. INSURANCE

The Developer shall effect and maintain, or cause to be affected and

maintained, at no cost to MPSTDC during the Development Period insurance

for earthquakes, floods, lightning, accidents, fire and riots for the replacement

costs and building costs of the Project and Project Building.

22. FORCE MAJEURE

22.1 The Developer or MPSTDC, as the case may be, shall be entitled to initially

suspend the performance of its respective obligations under this

Agreement to the extent that the Developer or MPSTDC, as the case

may be, is unable to render such performance by an event of Force Majeure

(a "Force Majeure Event")


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22.2 In this Agreement, no event or circumstance and/or no combination and

circumstances shall be treated as a “Force Majeure Event” unless it satisfies

all the following conditions:

(a) materially and adversely affects the performance of an obligation;

(b) are beyond the reasonable control of the affected Party;

(c) such Party could not have prevented or reasonably overcome

with the exercise of Good Industry Practice or reasonable skill and

care;

(d) do not result from the negligence or misconduct of such Party or the

failure of such Party to perform its obligations hereunder;

(e) which, by itself or consequently disables either party to perform its

respective obligations under this agreement.

22.3 “Force Majeure Event” includes the following events and/ or circumstances

to the extent that they or their consequences satisfy the requirements set

forth in Clause 22.2:

i. war (whether declared or undeclared), invasion, armed conflict or

act of foreign enemy in each case involving or directly affecting the

Site;

ii. revolution, riot, insurrection or other civil commotion, act of

terrorism or sabotage in each case within the Site or near vicinity;

iii. nuclear explosion, radioactive or chemical contamination or

ionizing radiation directly affecting the Site and/or the

Assets, unless the source or cause of the explosion,

contamination, radiation or hazardous thing is brought to or near the

Site by the Developer or any Affiliate of the Developer or any Sub-

Contractor of the Developer or any of their respective employees,

servants or agents;

iv. strikes, working to rule, go-slows and/or lockouts which are in

each case widespread, nationwide or political and affects the Site;

v. any effect of the natural elements, including lighting, fire, earthquake,

unprecedented rains, tidal wave, flood, storm, cyclone, typhoon or

tornado, within the Site or near vicinity;

vi. explosion (other than a nuclear explosion or an explosion resulting

from an act of war) within the Site or near vicinity;

a) epidemic or plague within the Site or near vicinity; and,

b) any event or circumstances of a nature analogous to any events set forth in

paragraphs (i) to (vii) of this Clause 22.3 within the Site or near vicinity.

22.4 Procedure for Force Majeure

22.4.1 If a Party claims relief on account of a Force Majeure Event, then the

Party claiming to be affected by the Force Majeure Event shall,

immediately on becoming aware of the Force Majeure Event, give

notice of and describe in detail:

i that the Force Majeure Event(s) that has occurred;

ii the obligation(s) affected


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iii the dates of commencement and estimated cessation of such

event of Force Majeure; and

iv the manner in which the Force Majeure event(s) affect the

Party's ability to perform its obligation(s) under this

Agreement.

v the nature and extent of relief sought if any. No Party shall be

able to suspend or excuse the non-performance of its

obligations hereunder unless such Party has given the notice

specified above. The Parties expressly agree that payment of

Annual Fee may also be suspended during the pendency of

Force Majeure Event and/or its effect.

22.4.2 The affected Party shall have the right to suspend the performance of

the obligation(s) affected, upon delivery of the notice of the

occurrence of a Force Majeure Event in accordance with sub-Clause

22.4.1 above. The affected party, to the extent rendered unable to

perform its obligations or part thereof under this Development

Agreement, as a consequence of the Force Majeure Event, shall be

excused from performance of the obligations provided that the

excuse from performance shall be of no greater scope and of no

longer duration than is reasonably warranted by the Force Majeure

Event.

22.4.3 The time granted for performance of any obligation or compliance

and for the exercise of any right by the Party affected by Force

Majeure Event, shall be extended over the period during which such

Force Majeure Event continues and by such additional period

thereafter as is necessary to enable the affected Party to achieve the

level of activity prevailing before the event of Force Majeure Event.

22.4.4 Each Party shall bear its own costs, if any, incurred as a consequence

of the Force Majeure Event.

22.4.5 The Party receiving the claim for relief under Force Majeure Event

shall, if it wishes to dispute the claim, give a written notice of dispute

to the Party making the claim within 30 (thirty) days of receiving the

notice of claim. If the notice of claim is not contested within 30

(thirty) days as stated above, all the Parties to this Development

Agreement shall be deemed to have accepted the validity of the

claim. If any Party disputes a claim, the Parties shall follow the

procedures set forth in Clause 24.

22.5 Mitigation

The Party claiming to be affected by a Force Majeure Event shall

take all reasonable steps to prevent, reduce to a minimum and mitigate

the effect of such Force Majeure Event. The affected Party shall also

make efforts to resume performance of its obligations under this

Agreement as soon as possible and upon resumption, shall forthwith

notify the other Party of the same in writing.


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23. DEFAULT AND TERMINATION

23.1 Developer- Event of Default

For the purposes of this Development Agreement, each of the following events or

circumstances, to the extent not caused by a default of MPSTDC or Force Majeure

Event, shall be considered, as events of default of the Developer (the "Developer

Event of Default") which, if not remedied within the Cure Period upon receipt of

written notice from MPSTDC, shall provide MPSTDC the right to terminate this

Development Agreement in accordance with Clause 23.3:

(a) any breach, including but not limited to the events specified hereunder, but

excluding Payment Default(s), by the Developer of its obligations under this

Development Agreement, and such breach if capable of being remedied, is not

remedied within 60 (sixty) days of receipt of written notice, from MPSTDC

specifying such breach and requiring the Developer to remedy the same;

(b) any representation or warranty of the Developer herein contained which is, as

of the date hereof, found to be materially false, incorrect or misleading or the

Developer is at any time hereafter found to be in breach thereof;;

(c) Suspension by the Developer of the performance of the obligations under this

Development Agreement for a period exceeding 30 (thirty) consecutive days

(except during the subsistence of a Force Majeure Event);

(d) failure by the Developer to operate and maintain the Assets in accordance with

the Applicable Laws or committing a default of its obligation as provided for

in clause 15;

(e) failure of the Developer to maintain insurance(s) as required in terms of

Clause 21.

(f) the Developer is ordered to be wound up by a court; filing of a petition for

voluntary winding up by the Developer, or levy of an execution or restraint on

the Developer’s assets, or appointment of a provisional liquidator,

administrator, trustee or receiver of the whole or substantially whole of the

undertaking of Developer by a court of competent jurisdiction;

(g) the Developer is adjudged bankrupt or insolvent, or if a trustee or receiver is

appointed for the Developer or for the whole or material part of its assets that

has a material bearing on the Project;

(h) the Developer 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 MPSTDC , a Material Adverse Effect;

(i) failure to replenish O & M Security under clause 15.4


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(j) the Developer using or permitting or causing the use of the Site for purposes

other than the objective mentioned above

(k) the Developer doing or permitting to do any act, matter, deed or thing in

violation of Applicable Law and/or Applicable Permits;

(l) the Developer setting up an interest in the Site or any portion thereof (i)

adverse to that of MPSTDC or (ii) a third person; or (iii) claiming an absolute

interest in the Site or any portion thereof in itself;

(m) non-compliance of Equity lock-in provisions, if any, set forth in the bid

document.

(n) failure to achieve the Project Completion Date on or the Extended Project

Completion Period, as the case may be;

(o) commits a breach of its any obligations as contained in this agreement.

(p) Violation or breach of security zone as determined from time to time as per

clause 1.1(44)

23.2 MPSTDC Event of Default

For the purposes of this Development Agreement, each of the following events

or circumstances, to the extent not caused by a default of the Developer or are not

Force Majeure Events, shall be considered, as events of default of MPSTDC

("MPSTDC Event of Default"), which shall provide the Developer the right to

terminate this Development Agreement in accordance with Clause 23:

(i) failure to provide to the Developer the rights to the Site in accordance with

this Development Agreement;

(ii) MPSTDC commits a material default in complying with any of the provisions

of this Agreement and such default has a Material Adverse Effect on the

performance of the Obligations of the Developer.

23.3 Notice of Termination

23.3.1 Without prejudice to any other rights or remedies which the non-defaulting

Party may have under this Development Agreement, upon the occurrence of either a

Developer Event of Default or a MPSTDC Event of Default, the defaulting Party shall

be liable for the breach caused and consequences thereof and the non-defaulting Party

shall have the right to issue a notice expressing it’s intention to terminate this

Development Agreement to the other Party (the “Notice of Intention to Terminate”)..

Upon the issuance of a Notice of Intention to Terminate, the defaulting Party shall

have the right to rectify or cure the breach within 60 (Sixty) days of receipt of such

Notice of Intention to Terminate (“Cure Period”). If the breach is not rectified by the

defaulting Party within the Cure Period, the non-defaulting Party shall have the right

to terminate this Development Agreement by issuance of a termination notice (the

“Termination Notice”).

23.3.1(a) Notwithstanding anything contained in the Development Agreement, the

Developer cannot exercise the right to issue Notice of Intention to Terminate 180 days

after the commencement date.


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23.3.2 Without prejudice to anything contrary as contained in this Development

Agreement, upon the failure of the Developer to rectify a Payment Default MPSTDC

shall have the right to terminate this Development Agreement by issuance of a

Termination Notice. Provided that in case of termination of the Development

Agreement under this Clause 23, MPSTDC shall not be required to issue any prior

notice expressing its intention to terminate the Development Agreement and calling

upon him to cure or rectify the Payment Default and the Developer hereby expressly

waives his right, if any, to challenge the same on the ground of non-issuance of prior

Notice of Intention to terminate in case of termination of this Development

Agreement on the ground of Payment Default.

23.3.3 Save and except as otherwise provided in this agreement and without

prejudice to any other right or remedy which MPSTDC may have in respect thereof

under this Agreement, upon the occurrence of any breach by the developer under this

Agreement including any Event of Default, the MPSTDC shall be entitled to

appropriate the Performance Security, bid security and to terminate this Agreement by

a communication in writing (the "Termination Notice") to the developer, if it has

failed to cure such breach or default within the period provided for in the same

notice.

24. OBLIGATIONS TO HAND OVER

24.1 DEFECTS LIABILITY

a. In case the Developer is not offering to continue with the renewal of

Development rights on the expiry of this agreement in accordance with

Clause 20, atleast 10 months prior to the expiry of the Development

Period, the Developer and the MPSTDC shall conduct a joint

inspection (the “Initial Inspection”) of the Project and the Project

Building and the shortcomings, if any, in the premises as per the

Applicable Laws and the provisions hereof shall be pointed out by the

MPSTDC and the Developer shall ensure the rectification of the same

within 6 months (‘Renewal Works”).

b. Not less than 3 months prior to the expiry of the Development Period,

the Developer and the MPSTDC shall conduct a joint inspection (the

“Second Inspection”) of all elements of the Project and the Project

Building (whether or not the Renewal Works have been carried out. If

any of the elements of the shortcomings communicated earlier is not

rectified, the same shall be brought to the knowledge of Developer by

the MPSTDC; and the Developer shall rectify the same within a period

of not more than 30 days from such communication by MPSTDC.

c. On rectification of the shortcomings as above, the Project shall be

vested by the Developer in the MPSTDC. Provide that, in the event of

Developer’s failure to fully rectify any defects and shortcomings,

MPSTDC shall have the right to rectify the same at the cost of the

Developer and recover such cost from the Developer.

24.2 DIVESTMENT OF RIGHTS AND INTERESTS


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I. Upon Termination or expiry of this Agreement, the Developer shall comply

with the following:

a) notify to MPSTDC forthwith the location and particulars of all

assets of the Project.

b) deliver forthwith actual or constructive possession of the Project

free and clear of all Encumbrances and execute such deeds,

writings and documents as may be required by the MPSTDC for

fully and effectively divesting the Developer of all of the rights,

title and interest of the Developer in the Project and Project

Buildings & facilities and conveying the Project and Project

Buildings & facilities free of any charge or cost to MPSTDC; and

c) the Project and Project Buildings & facilities shall have been

renewed and cured of all defects and deficiencies as necessary so

that the Project and Project Buildings & facilities is compliant with

the Specifications and Standards set forth in this Agreement;

d) The Project and Project Buildings & facilities shall be free from

defects in accordance with O&M requirements;

e) The Developer shall deliver relevant records and reports pertaining

to the Project and Project Buildings & facilities and its detailed

design, engineering, construction, operation, and maintenance

including all operation and maintenance records and programmes

and manuals pertaining thereto and complete up to date as-built

Drawings to the MPSTDC;

f) The Developer shall comply with all other requirements as may be

prescribed under Applicable Laws to complete the divestment and

assignment of all the rights, title and interest of the Developer in

the Project free from all Encumbrances absolutely and free of any

charge or tax to MPSTDC or its nominee.

II. Upon the Developer conforming, to the satisfaction of MPSTDC, to all the

obligations to hand over herein, and handing over actual or constructive

possession of the Project to MPSTDC or a person nominated by MPSTDC

in this regard, MPSTDC shall issue a certificate substantially in the form

set forth in Schedule – ‘F’ (the “Divestment Certificate”) confirming the

same.

25. RIGHT OF RE-ENTRY

MPSTDC reserves to itself the right to re-entry in the project and such right

shall not be enforced unless a notice is served on the Developer setting out the

precise reason for which such right is purported to be exercised and an

opportunity of hearing will be given to the Developer, if it so desires. In such

a situation the Developer will be required to hand over the possession of the


89

Project as per the Divestment Conditions mentioned in clauses 24. Such right

to re-entry shall be exercised only in case GoMP is of the opinion that such

land is required for Public Purpose.

Provided that on exercise of such right, the Developer shall be paid a cash

compensation for the value of the assets as valued by MP Public Works

Department. Such payment will be made by MPSTDC at the time of taking

over the possession of the project. In case of disagreement between the

MPSTDC and the Developer, MPSTDC shall pay the sum as ascertained

above and shall take over the possession of the Project. Any dispute in this

regard shall be resolved as per the procedure set forth in clause 26.

26. DISPUTE AND ITS RESOLUTION-

Save where expressly stated to the contrary in this Agreement, any dispute,

difference or controversy of whatever nature howsoever arising under, out of

or in relation to this Agreement including non completion of the Project,

between the Parties and so notified in writing by either Party to the other (the

“Dispute”) in the first instance shall be attempted to be resolved in accordance

with the procedure set forth below.

26.1 Amicable Resolution

In the event of any Dispute between the Parties, either Party may call

upon Principal Secretary, Tourism Department, GOMP to mediate and

assist the Parties in arriving at an amicable settlement thereof.

26.2 Arbitration

26.2.1 Any Dispute, which is not resolved amicably, as provided above, shall

be finally decided by reference to Arbitration by a Board of Arbitrators

appointed as per the provisions of the Arbitration & Conciliation Act,

1996 and any subsequent amendment thereto. Such arbitration shall be

held in accordance with the Rules of Arbitration of the Indian Council

of Arbitration and shall be subject to the provisions of the Arbitration

and Conciliation Act, 1996 and as amended from time to time

thereafter.

26.2.2 The siting of all challenges arising out of the agreement or to its

implementation shall be the district court of Bhopal and High Courts in

the state of Madhya Pradesh.

26.3 Arbitration Awards to be binding

a. The Developer and MPSTDC undertake to carry out any decision or

award of the arbitrators (the “Award”) without delay. Awards relating


90

to any Dispute shall be final and binding on the Parties as from the date

they are made.

b. The Developer and MPSTDC agree that an Award may be enforced

against the Developer and the MPSTDC as the case may be and their

respective assets wherever situated.

c. This Agreement and rights and obligations of the Parties shall remain

in full force and effect pending the Award in any arbitration

proceeding hereunder.

27 DISCLOSURE

The Developer shall make available for inspection during normal business

hours on all working days copies of all records and reports to MPSTDC as and

when required.

28. GOVERNING LAW AND JURISDICTION

This Agreement shall be construed and interpreted in accordance with the

Applicable Laws and the Courts in Madhya Pradesh shall have jurisdiction

over all matters arising out of or relating to this Agreement.

29 MISCELLANEOUS

29.1 Waiver

Waiver by either Party of any default by other Party in the observance and

performance of any provision of or obligations of or under this Agreement;

a) shall not operate or be construed as a waiver of any other or

subsequent default hereof or of other provisions of or obligations under

this Agreement;

b) shall not be effective unless it is in writing and executed by a duly

authorised representative of the Party; and

c) shall not affect the validity or enforceability of this Agreement in any

manner.

29.2. 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 there under nor time or other indulgence 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.

29.3 Survival


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I. Termination of this Agreement (a) shall not relieve the Developer or

MPSTDC of any obligations hereunder which expressly or by implication

survives Termination hereof, and (b) except as otherwise provided in any

provision of this Agreement expressly limiting the liability of either

Party, shall not relieve either Party of any obligations or liabilities for

loss or damage to the other Party arising out of or caused by acts or

omissions of such Party prior to the effectiveness of such Termination or

arising out of such termination.

II. All obligations surviving the cancellation, expiration or Termination of

this Agreement shall only survive for a period of 5 (five) years following

the date of such Termination or expiry of this Agreement.

29.4 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 expressly previously approved in writing by the

MPSTDC and executed by the person expressly authorised by a resolution

of the Developer in this behalf.

29.5 Notices

i. Any notice or other communication to be given by a Party to the other Party

under, or in connection with the matters contemplated by this Agreement shall

be in writing and shall:

1. in the case of the Developer, be marked for the attention of the person

set out opposite the corresponding signature below or to such other

address marked for such other attention as the Developer may from

time to time designate by notice to the MPSTDC, provided that notices

or other communications be confirmed by sending a copy thereof by

first class registered airmail or by courier and/or also be sent by

facsimile to the number as the Developer may from time to time

designate by notice to MPSTDC; and

2. in the case of MPSTDC, be given by letter and be addressed to the

Managing Director, the MPSTDC

i. Copies of all notices shall also be sent by facsimile and by

registered acknowledgement due pre-paid post or courier.

ii. Copies of all notices shall also be sent to the Lessor

Representative.

29.6 Severability


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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 one or more provisions which may be

substituted for such invalid, unenforceable or illegal provisions, as nearly as

is practicable to such invalid, illegal or unenforceable provision. Failure to

agree upon any such provisions shall not be subject to dispute resolution

under this Agreement or otherwise.

29.7 No Partnership

Nothing contained in this Agreement shall be construed or interpreted as

constituting a partnership between the Parties. Neither Party shall have any

authority to bind the other in any manner whatsoever.

29.8 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 language.

29.9 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.

29.10 Counterparts

This Agreement may be executed in two counterparts, each of which when

executed and delivered shall constitute an original of this Agreement.


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IN WITNESS WHEREOF THE, PARTIES HAVE EXECUTED AND DELIVERED

THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.

SIGNED SEALED AND DELIVERED


MADHYA PRADESH STATE TOURISM DEVELOPMENT CORPORATION

LTD.

By

__________ (Signature)

MADHYA PRADESH STATE TOURISM DEVELOPMENT CORPORATION Ltd.

(A Govt. of M.P. Undertaking)

PARYATAN BHAVAN, Bhadbhada Road,

Bhopal –462 001 (Madhya Pradesh)

Phone:

Fax:

__________(Name)

___________(Designation)



DEVELOPER by:

______________(Signature)

______________(Name)

______________(Designation)

Address :

In the presence of:

1.

2.


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SCHEDULE – A

Details of Site

1. Land and other related real estate on offer for Development Rights

2. Description of the water body along with its boundaries and security zone.

However the limits of security zone described herein shall stand modified if so

required by Indira Sagar dam authority.

SCHEDULE – B

a) Buildings/Facilities required to be constructed.

b) Details of infrastructure to be built by MPSTDC (see clause 7.e)

SCHEDULE – C

Formats of Performance Security as described in Clause 4

SCHEDULE – D

Format of O&M Security as described in Clause 14

SCHEDULE – E

Format of Project Completion Certificate

SCHEDULE--F

Format of Divestment Certificate as described in Clause 24.2 II


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SCHEDULE - A

1. Terms & Conditions laid down by Narmada Valley Development Authority

and NHDC which are mandatory to comply with, by the developer are placed

at Annexure-I (Please see clause 6.1(q) of Development Agreement.)

2. Details of land at village Hanvantia on which Development rights will be

given is as follows :-

i) Approx. 4.44 Acre from Khasra No. 72

ii) Approx. 3.50 Acre from Khasra No. 73

iii) Approx. 1.97 Acre from Khasra No. 74

vi) Approx. 0.17 Acre from Khasra No. 76

Total area 10.08 acre (site map of the land plot-1 is placed at

Annexure-II)

3. The security zone shall lie between Indira Sagar Dam and 760 35' 55" E

Longitude. Tourist activities shall be permissible in the Tourism zone i.e. 760

35' 55" E to 760 58' 33" E Longitude. In case, the authority that owns the

Indira Sagar Dam (NHDC) makes any changes in the security zone, the tourist

zone will be changed accordingly and tourist activities will be permissible in

that area only. Map showing security zone and tourism zone is placed at

Annexure-III.

(Please see clause1.1(44) and 6.1 (o))


96

Schedule - A

Annexure - I

Conditions imposed by Narmada Valley Department :

1. The developer and Tourism Department shall both observe dam

safety guidelines, regulatory provisions related to conservation of

river eco system of Central Water Commission.

2. The reservoir shall not be used for disposal of any waste.

3. Tourism Department shall monitor the water quality and aquatic life.

Conditions imposed by NHDC :

1. The area of 2 km upstream & 2 km downstream is the most sensitive

security area. However no tourism activity will be permissible

between the dam and the longitude 76aa˚35'55" E without specific

permission of NHDC.

2. MPSTDC shall provide a barrier in the reservoir at a distance of 2

Km from the Dam so that no Tourist Boat comes near the project site

i.e. Dam Gates and Power House etc.

3. MPSTDC shall impose reasonable restrictions on boating during

night.

4. No garbage would be disposed off in reservoir.

5. During monsoon period, the water level fluctuations may be up to 21

meters. The Tourism activities shall be restricted during this period.

Awareness campaign to avoid situation of sudden water rise and

accidents may carried out regularly. Warning signs should also be

displayed.

6. Creation of Tourism facility will necessitate enhanced security

arrangement for Indira Sagar Power Station. Any additional

expenditure on this account may be payable by MPSTDC to NHDC.

7. Any person with doubtful identity and activities should be promptly

reported to the security /police immediately.


97

Schedule "A"

Annexure II

Site Map Showing Plot No.-1

Plot No. 1

10.08 Acres


98

Schedule "A"

Annexure III

Map showing Security Zone and Tourism Zone

Tourism Zone

Security Zone


99

M.P. State Tourism Development Corporation Ltd.

(Development Agreement)

SCHEDULE ‘B’

Total land - 10.08 Acres.

Project Cost - ` 15.00 Crore

i) Planning Restrictions :- Maximum Height Permissible - 9 mtrs.

Ground Coverage - 30%

ii) Mandatory Requirements :- 1. Lodging facilities for minimum 100 persons.

2. Restaurant.

3. Administrative block.

4. Staff quarters.

5. 24 hrs. uninterrupted water/electricity supply.

6. Solid waste management system. (as approved by MPSTDC)

7. Internal roads.

8. Green belt/landscaping.

9. Fencing/Compound wall

10. Parking.

11. Water sports activities such as cruise-1 Carring capacity minimum 40 pax,

motor boats - 2 minimum 4+1

12. Drivers dormitory.

13. STD/ISD/Internet facility.

14. Public amenities.


100

iii) Desirables :- 1. Bar.

2. Swimming pool.

3. Gym.

4. Entrance plaza.

5. Multi purpose hall.

6. Gazebos.

7. Children’s play equipments.

iv) Facilities to be Developed by M.P. Tourism Jetty

Slipway

Boat club

Public amenities at boat club

Pathway leading towards boat club

Landscaping

NOTE: Planning restrictions may be relaxed by MPSTDC subject to

applicable law.


101

SCHEDULE- C

PERFORMANCE SECURITY


Madhya Pradesh State Tourism Development Corporation Ltd.

Bhopal

WHEREAS:

(A) **** (the “Developer”) and the Madhya Pradesh State Tourism Development

Corporation Ltd. (the “MPSTDC”) have entered into a Development

Agreement dated __________(the “Agreement”) whereby the MPSTDC has

agreed to the Developer undertaking development of Tourism and related

facilities at Indira Sagar on Develop, Build, Finance, Operate and Transfer

(“DBFOT”) basis, subject to and in accordance with the provisions of the

Agreement.

(B) The Agreement requires the Developer to furnish a Performance Security to

the MPSTDC in a sum of ` ........... lakh ( ` ............ Lakh only) (the

“Guarantee Amount”) as security for due and faithful performance of its

obligations, under and in accordance with the Agreement, during the

Construction Period (as defined in the Agreement).

(C) We, ***** through our Branch at ***** (the “Bank” ) have agreed to furnish

this Bank Guarantee by way of Performance Security.

NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees

and affirms as follows:

1. The Bank hereby unconditionally and irrevocably guarantees the due and

faithful performance of the Developer’s obligations during the Construction

Period, under and in accordance with the Agreement, and agrees and

undertakes to pay to the MPSTDC, upon its mere first written demand and

without any demur, reservation, recourse, contest or protest, and without any

reference to the Developer, such sum or sums up to an aggregate sum of the

Guarantee Amount as the MPSTDC shall claim without the MPSTDC being

required to prove or to show grounds or reasons for its demand and/or for the

sum specified therein.

2. letter from the MPSTDC under the hand of an Officer not below the rank of

Chief General Manager in the MPSTDC that the Developer has committed

default in the due and faithful performance of all or any of its obligations

under and in accordance with the Agreement shall be Conclusive, final

and binding on the Bank. The Bank further agrees that the MPSTDC shall be

the sole judge as to whether the Developer is in default in due and faithful

performance of its obligations during the Construction Period under the

Agreement and its decision that the Developer is in default shall be final, and

binding on the Bank, notwithstanding any differences between the MPSTDC

and the Developer or any dispute between them pending before any court,

tribunal, arbitrators or any other MPSTDC or body or by the discharge of the

Developer for any reason whatsoever.


102

3. In order to give effect to this Guarantee, the MPSTDC shall be entitled to act

as if the Bank were the principal debtor and any change in the constitution of

the Developer and/or the Bank whether by their absorption with any other

body or corporation or otherwise shall not in any way or manner affect the

liability or obligation of the Bank under this Guarantee.

4. It shall not be necessary, and the Bank hereby waives any necessity, for the

MPSTDC to proceed against the Developer before presenting to the Bank its

demand under this Guarantee.

5. The MPSTDC shall have the liberty, without affecting in any manner the

liability of the Bank under this Guarantee, to vary at any time, the terms and

conditions of the Agreement or to extend the time or period for the compliance

with, fulfillment and/or performance of all or any of the obligations of the

Developer contained in the Agreement or to postpone for any time and from

time to time any of the rights and powers exercisable by the MPSTDC against

the Developer and either to enforce or forbear from enforcing any of the terms

and conditions contained in the agreement and/or the securities available to the

MPSTDC, and the Bank shall not be released from its liability and obligation

under these presents by any exercise by the MPSTDC of the liberty with

reference to the matters aforesaid or by reason of time omission on the part of

the MPSTDC or of any other forbearance, indulgence, act or which under any

law relating to sureties and guarantors would but for this provision have the

effect of releasing the Bank form its liability and obligation under this

Guarantee and the Bank hereby waives all of its rights under any such law.

6. This Guarantee is in addition to and not in substitution of any other guarantee

or security now or which may hereafter be held by the MPSTDC in respect of

or relating to the Agreement or for the fulfillment, compliance and/or

performance of all or any of the obligation of the Developer under the

Agreement.

7. Notwithstanding anything contain hereinbefore, the liability of the Bank under

this guarantee is restricted to the Guarantee Amount and this Guarantee will

remain in Force for the period specified in paragraph 8 below and unless a

demand or claim in writing is made by the MPSTDC on the Bank under this

Guarantee, not later than 6 (six) months from the date of expiry of this

Guarantee, all rights of the MPSTDC under this Guarantee shall be forfeited

and the Bank shall be relieved from its liabilities hereunder.

8. The Performance Security Shall cease to be in force and effect when the

Developer shall have completed the Construction of the Project to the

satisfaction of MPSTDC and provided the Developer is not in breach of this

agreement. Thereafter upon request made by the Developer for release of the


103

Performance Security along with the particulars required hereunder, the

MPSTDC shall release the Performance Security forthwith.

9. The Bank undertakes not to revoke this Guarantee during its currency except

with the previous express consent of the MPSTDC in writing and declares that

it has the power to issue this guarantee and the undersigned has full powers to

do so on behalf of the Bank.

10. Any notice by way of request, demand or otherwise hereunder may be sent by

post addressed to the Bank at its above referred Branch, which shall be

deemed to have been duly authorized to receive such notice and to effect

payment thereof forthwith, and if sent by post it shall be deemed to have been

given at the time when it ought to have been delivered in due course of post

and in proving such notice, when given by post, it shall be sufficient to prove

that the envelope containing the notice was posted and a certificate signed by

an officer of the MPSTDC that the envelope was so posted shall be

conclusive.

11. This Guarantee shall come into force with immediate effect and shall remain

in force and effect for a period of one year or until it is released earlier by the

MPSTDC pursuant to the provisions of the Agreement.

Signed and sealed this ** day of *** 200* at ***.


For and on behalf of the Bank by:

(Signature)

(Name)

(Designation)

(Address)

Note: The Developer shall keep the bank guarantee valid over the entire

construction period by renewing it from time to time in compliance of clause 4.1.


104

SCHEDULE - D

OPERATION AND MAINTENANCE SECURITY


Madhya Pradesh State Tourism Development Corporation Ltd.

Bhopal

WHEREAS:

(A) **** (the “Developer”) and the Madhya Pradesh State Tourism Development

Corporation Ltd. (the “MPSTDC”) have entered into a Development

Agreement dated __________(the “Agreement”) whereby the MPSTDC has

agreed to the Developer undertaking development of Tourism and related

facilities at Indira Sagar on Develop, Build, Finance, Operate and Transfer

(“DBFOT”) basis, subject to and in accordance with the provisions of the

Agreement.

(B) The Agreement requires the Developer to furnish an Operation and

Maintenance Security to the MPSTDC in compliance with clause 14.1 of the

Development Agreement in a sum of ` ........ lakh ( ` ....... lakh only) (the

“_________”) as security for due and faithful performance of its obligations,

under and in accordance with the Agreement, during the Construction Period

(as defined in the Agreement).

(C) We, ***** through our Branch at ***** (the “Bank”) have agreed to furnish

this Bank Guarantee by way of Performance Security.

NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees

and affirms as follows:

1. The Bank hereby unconditionally and irrevocably guarantees the due and

faithful performance of the Developer’s obligations during the Construction

Period, under and in accordance with the Agreement, and agrees and

undertakes to pay to the MPSTDC, upon its mere first written demand and

without any demur, reservation, recourse, contest or protest, and without any

reference to the Developer, such sum or sums up to an aggregate sum of the

Guarantee Amount as the MPSTDC shall claim without the MPSTDC being

required to prove or to show grounds or reasons for its demand and/or for the

sum specified therein.

2. A letter from the MPSTDC under the hand of an Officer not below the rank of

Dy. General Manager in the MPSTDC that the Developer has committed

default in the due and faithful performance of all or any of its obligations

under and in accordance with the Agreement shall be Conclusive, final

and binding on the Bank. The Bank further agrees that the MPSTDC shall be

the sole judge as to whether the Developer is in default in due and faithful

performance of its obligations during the Construction Period under the

Agreement and its decision that the Developer is in default shall be final, and


105

binding on the Bank, notwithstanding any differences between the MPSTDC

and the Developer or any dispute between them pending before any court,

tribunal, arbitrators or any other MPSTDC or body or by the discharge of the

Developer for any reason whatsoever.

3. In order to give effect to this Guarantee, the MPSTDC shall be entitled to act

as if the Bank were the principal debtor and any change in the constitution of

the Developer and/or the Bank whether by their absorption with any other

body or corporation or otherwise shall not in any way or manner affect the

liability or obligation of the Bank under this Guarantee.

4. It shall not be necessary, and the Bank hereby waives any necessity, for the

MPSTDC to proceed against the Developer before presenting to the Bank its

demand under this Guarantee.

5. The MPSTDC shall have the liberty, without affecting in any manner the

liability of the Bank under this Guarantee, to vary at any time, the terms and

conditions of the Agreement or to extend the time or period for the compliance

with, fulfillment and/or performance of all or any of the obligations of the

Developer contained in the Agreement or to postpone for any time and from

time to time any of the rights and powers exercisable by the MPSTDC against

the Developer and either to enforce or forbear from enforcing any of the terms

and conditions contained in the agreement and/or the securities available to the

MPSTDC, and the Bank shall not be released from its liability and obligation

under these presents by any exercise by the MPSTDC of the liberty with

reference to the matters aforesaid or by reason of time omission on the part of

the MPSTDC or of any other forbearance, indulgence, act or which under any

law relating to sureties and guarantors would but for this provision have the

effect of releasing the Bank form its liability and obligation under this

Guarantee and the Bank hereby waives all of its rights under any such law.

6. This Guarantee is in addition to and not in substitution of any other guarantee

or security now or which may hereafter be held by the MPSTDC in respect of

or relating to the Agreement or for the fulfillment, compliance and/or

performance of all or any of the obligation of the Developer under the

Agreement.

7. Notwithstanding anything contain hereinbefore, the liability of the Bank under

this guarantee is restricted to the Guarantee Amount and this Guarantee will

remain in Force for the period specified in paragraph 8 below and unless a

demand or claim in writing is made by the MPSTDC on the Bank under this

Guarantee, not later than 6 (six) months from the date of expiry of this

Guarantee, all rights of the MPSTDC under this Guarantee shall be forfeited

and the Bank shall be relieved from its liabilities hereunder.


106

8. The Performance Security shall cease to be in force and effect till the entire

Development Period.

9. The Bank undertakes not to revoke this Guarantee during its currency except

with the previous express consent of the MPSTDC in writing and declares that

it has the power to issue this guarantee and the undersigned has full powers to

do so on behalf of the Bank.

10. Any notice by way of request, demand or otherwise hereunder may be sent by

post addressed to the Bank at its above referred Branch, which shall be

deemed to have been duly authorized to receive such notice and to effect

payment thereof forthwith, and if sent by post it shall be deemed to have been

given at the time when it ought to have been delivered in due course of post

and in proving such notice, when given by post, it shall be sufficient to prove

that the envelope containing the notice was posted and a certificate signed by

an officer of the MPSTDC that the envelope was so posted shall be

conclusive.

12. This Guarantee shall come into force with immediate effect and shall remain

in force and effect for a period of one year or until it is released earlier by the

MPSTDC pursuant to the provisions of the Agreement.

Signed and sealed this ** day of *** 20** at ***.


For and on behalf of the Bank by:

(Signature)

(Name)

(Designation)

(Address)

Note : The Developer shall keep this bank guarantee valid for the entire development period by

renewing it from time to time for ensuring compliance with clause 14.1 as may be

directed by MPSTDC.


107

SCHEDULE- E

COMPLETION CERTIFICATE

1. I, **** (Name of the Officer), acting under and in accordance with the

Development Agreement dated **** (the “Agreement”) for development of

tourism and related facilities at Indira Sagar on Develop, Build, Finance,

Operate and Transfer (DBFOT) basis, through **** (Name of Developer),

hereby certify that the facilities specified in Clause 13 and Schedule-B of the

Agreement have been successfully undertaken to determine completion of the

Project with the provisions of the Agreement, and I am satisfied that the

Project can be safely and reliably placed in commercial service of the Users

thereof.

2. It is certified that in terms of the aforesaid Agreement, all mandatory works

forming part of project have been completed, and the Project is hereby

declared fit for entry in to commercial operation on this the *** day of ***

20**.



MPSTDC by:

(Signature)

(Name)

(Designation)

(Address)


108

PROVISIONAL COMPLETION CERTIFICATE

1. I, **** (Name of the Officer), acting under and in accordance with the Development

Agreement dated **** (the “Agreement”) for development of tourism and related

facilities at Indira Sagar on Develop, Build, Finance, Operate and Transfer (DBFOT)

basis, through **** (Name of Developer), hereby certify that the facilities specified

in Schedule-B of the Agreement have been undertaken to determine compliance of

the Project with the provisions of the Agreement,

2. Constructions Works that were found to be incomplete and/or deficient have been

specified in the List appended hereto, and the Developer has agreed and accepted that

it shall complete and/or rectify all such works in the time and manner set forth in the

Agreement. (Some of the incomplete works have been delayed as a result of reasons

attributable to the MPSTDC or due to Force Majeure and the Provisional Certificate

cannot be withheld on this account. Through the remaining incomplete works have

been delayed as a result of reason attributable to the Developer,)* I am satisfied that

having regard to the nature and extent of following facilities developed so far, it

would not be prudent to withhold commercial operation of the Project pending

completion thereof ;

1.

2.

3.

4.

5.

3. In view of the foregoing, I am satisfied that the above facilities of the Project can be

safely and reliably placed in commercial service of the Users thereof, and in terms of

the Agreement, the Project is hereby provisionally declared fit for entry into

commercial operation on this the *** day of *** 20**

ACCEPTED, SIGNED, SEALED SIGNED, SEALED AND

AND DELIVERED DELIVERED

For and on behalf of For and on behalf of

DEVELOPER by: MPSTDC by:


(Name and Designation) (Name and Designation)

(Address) (Address)


109

SCHEDULE- F

VESTING CERTIFICATE

1. The Madhya Pradesh State Tourism Development Corporation Ltd.

(the “MPSTDC”) refers to the Development Agreement dated *** (the

“Agreement”) entered into between the MPSTDC and *** (the

“Developer”) for development of tourism and related facilities at Indira

Sagar on Develop, Build, Finance, Operate and Transfer (“DBFOT”)

basis.

2. The MPSTDC hereby acknowledges compliance and fulfillment by the

Developer of the Divestment Requirements set forth in Clause 24.2 of

the Agreement. Upon issue of this Vesting Certificate, the MPSTDC

shall be deemed to have acquired, and all title and interest of the

Developer in or about the Project shall be deemed to have vested up to

the MPSTDC, free from any encumbrances, charges and liens

whatsoever.

3. Notwithstanding anything to the contrary contained hereinabove, it

shall be a condition of this Vesting Certificates that nothing contained

herein shall be construed or interpreted as waiving the obligation of the

Developer to rectify and remedy any defect or deficiency in any of the

Divestment Required and/or relieving the Developer in any manner of

the same.

Signed this *** day of ***, 20** at Bhopal.

AGREED, ACCEPTED AND SIGNED SIGNED AND DELIVERED

For and on behalf of For and on behalf of

DEVELOPER by: MPSTDC OF INDIA by:


(Name) (Name)

(Designation) (Designation)

(Address) (Address)

In presence of

1. 2.